[Title 23 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2022 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
          
          Title 23

Highways

                         Revised as of April 1, 2022

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2022
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 23:
          Chapter I--Federal Highway Administration, 
          Department of Transportation                               3
          Chapter II--National Highway Traffic Safety 
          Administration and Federal Highway Administration, 
          Department of Transportation                             623
          Chapter III--National Highway Traffic Safety 
          Administration, Department of Transportation             691
  Finding Aids:
      Table of CFR Titles and Chapters........................     773
      Alphabetical List of Agencies Appearing in the CFR......     793
      List of CFR Sections Affected...........................     803

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 23 CFR 1.1 refers to 
                       title 23, part 1, section 
                       1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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``[RESERVED]'' TERMINOLOGY

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This material, like any other properly issued regulation, has the force 
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that volume.

[[Page vii]]

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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    April 1, 2022







[[Page ix]]



                               THIS TITLE

    Title 23--Highways is composed of one volume. The contents of this 
volume represent the current regulations of the National Highway Traffic 
Safety Administration and the Federal Highway Administration, Department 
of Transportation, issued under this title of the CFR as of April 1, 
2022.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                           TITLE 23--HIGHWAYS




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                                                                    Part

chapter i--Federal Highway Administration, Department of 
  Transportation............................................           1

chapter ii--National Highway Traffic Safety Administration 
  and Federal Highway Administration, Department of 
  Transportation............................................        1200

chapter iii--National Highway Traffic Safety Administration, 
  Department of Transportation..............................        1313

[[Page 3]]



 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------

           SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
Part                                                                Page
1               General.....................................           7
                    SUBCHAPTER B--PAYMENT PROCEDURES
140             Reimbursement...............................          12
172             Procurement, management, and administration 
                    of engineering and design related 
                    services................................          19
180             Credit assistance for surface transportation 
                    projects................................          34
190             Incentive payments for controlling outdoor 
                    advertising on the interstate system....          34
192             Drug offender's driver's license suspension.          35
                       SUBCHAPTER C--CIVIL RIGHTS
200             Title VI program and related statutes--
                    implementation and review procedures....          39
230             External programs...........................          42
                SUBCHAPTER D--NATIONAL HIGHWAY INSTITUTE
260             Education and training programs.............          84
                   SUBCHAPTER E--PLANNING AND RESEARCH
420             Planning and research program administration          90
450             Planning assistance and standards...........         101
460             Public road mileage for apportionment of 
                    highway safety funds....................         153
470             Highway systems.............................         154
490             National performance management measures....         160
         SUBCHAPTER F--TRANSPORTATION INFRASTRUCTURE MANAGEMENT
500             Management and monitoring systems...........         211

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505             Projects of national and regional 
                    significance evaluation and rating......         217
511             Real-Time System Management Information 
                    Program.................................         220
515             Asset management plans......................         223
            SUBCHAPTER G--ENGINEERING AND TRAFFIC OPERATIONS
620             Engineering.................................         232
625             Design standards for highways...............         234
626             Pavement policy.............................         238
627             Value engineering...........................         238
630             Preconstruction procedures..................         242
633             Required contract provisions................         257
635             Construction and maintenance................         271
636             Design-build contracting....................         305
637             Construction inspection and approval........         321
645             Utilities...................................         324
646             Railroads...................................         342
650             Bridges, structures, and hydraulics.........         351
652

[Reserved]

655             Traffic operations..........................         375
656             Carpool and vanpool projects................         381
657             Certification of size and weight enforcement         383
658             Truck size and weight, route designations--
                    length, width and weight limitations....         388
660             Special programs (Direct Federal)...........         450
661             Indian Reservation Road Bridge Program......         456
667             Periodic evaluation of facilities repeatedly 
                    requiring repair and reconstruction due 
                    to emergency events.....................         462
668             Emergency relief program....................         463
669             Enforcement of heavy vehicle use tax........         471
               SUBCHAPTER H--RIGHT-OF-WAY AND ENVIRONMENT
710             Right-of-way and real estate................         474
750             Highway beautification......................         496
751             Junkyard control and acquisition............         514
752             Landscape and roadside development..........         519
771             Environmental impact and related procedures.         522
772             Procedures for abatement of highway traffic 
                    noise and construction noise............         546
773             Surface Transportation Project Delivery 
                    Program application requirements and 
                    termination.............................         553
774             Parks, recreation areas, wildlife and 
                    waterfowl refuges, and historic sites 
                    (Section 4(f))..........................         562
777             Mitigation of impacts to wetlands and 
                    natural habitat.........................         573

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778             Pilot program for eliminating duplication of 
                    environmental reviews...................         577
                   SUBCHAPTER I--PUBLIC TRANSPORTATION
810             Mass transit and special use highway 
                    projects................................         582
                      SUBCHAPTER J--HIGHWAY SAFETY
924             Highway safety improvement program..........         588
            SUBCHAPTER K--INTELLIGENT TRANSPORTATION SYSTEMS
940             Intelligent transportation system 
                    architecture and standards..............         594
950             Electronic toll collection..................         596
                  SUBCHAPTER L--FEDERAL LANDS HIGHWAYS
970             National Park Service management systems....         599
971             Forest Service management systems...........         604
972             Fish and Wildlife Service management systems         610
973             Management systems pertaining to the Bureau 
                    of Indian Affairs and the Indian 
                    Reservation Roads Program...............         616
974-999

[Reserved]

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           SUBCHAPTER A_GENERAL MANAGEMENT AND ADMINISTRATION





PART 1_GENERAL--Table of Contents



Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Federal-State cooperation; authority of State highway departments.
1.5 Information furnished by State highway departments.
1.7 Urban area boundaries.
1.8 [Reserved]
1.9 Limitation on Federal participation.
1.11 Engineering services.
1.23 Rights-of-way.
1.27 Maintenance.
1.28 [Reserved]
1.32 Issuance of directives.
1.33 Conflicts of interest.
1.35 Bonus program.
1.36 Compliance with Federal laws and regulations.

    Authority: 23 U.S.C. 315; 49 CFR 1.48(b).

    Source: 25 FR 4162, May 11, 1960, unless otherwise noted.



Sec.  1.1  Purpose.

    The purpose of the regulations in this part is to implement and 
carry out the provisions of Federal law relating to the administration 
of Federal aid for highways.



Sec.  1.2  Definitions.

    (a) Terms defined in 23 U.S.C. 101(a), shall have the same meaning 
where used in the regulations in this part, except as modified herein.
    (b) The following terms where used in the regulations in this part 
shall have the following meaning:
    Administrator. The Federal Highway Administrator.
    Advertising policy. The national policy relating to the regulation 
of outdoor advertising declared in title 23 U.S.C. 131.
    Advertising standards. The ``National Standards for Regulation by 
States of Outdoor Advertising Signs, Displays and Devices Adjacent to 
the National System of Interstate and Defense Highways'' promulgated by 
the Secretary (part 20 of this chapter).
    Federal laws. The provisions of title 23 U.S.C., and all other 
Federal laws, heretofore or hereafter enacted, relating to Federal aid 
for highways.
    Latest available Federal census. The latest available Federal 
decennial census, except for the establishment of urban area.
    Project. An undertaking by a State highway department for highway 
construction, including preliminary engineering, acquisition of rights-
of-way and actual construction, or for highway planning and research, or 
for any other work or activity to carry out the provisions of the 
Federal laws for the administration of Federal aid for highways.
    Secondary road plan. A plan for administration of Federal aid for 
highways on the Federal-aid secondary highway system pursuant to 23 
U.S.C. 117.
    Secretary. The Secretary of Transportation.
    State. Any State of the United States, the District of Columbia and 
Puerto Rico.
    Urban area. An area including and adjacent to a municipality or 
other urban place having a population of five thousand or more, as 
determined by the latest available published official Federal census, 
decennial or special, within boundaries to be fixed by a State highway 
department, subject to the approval of the Administrator.

[25 FR 4162, May 11, 1960, as amended at 35 FR 18719, Dec. 10, 1970]



Sec.  1.3  Federal-State cooperation; authority of State highway departments.

    The Administrator shall cooperate with the States, through their 
respective State highway departments, in the construction of Federal-aid 
highways. Each State highway department, maintained in conformity with 
23 U.S.C. 302, shall be authorized, by the laws of the State, to make 
final decisions for the State in all matters relating to, and to enter 
into, on behalf of the State, all contracts and agreements for projects 
and to take such other actions on behalf of the State as may be 
necessary

[[Page 8]]

to comply with the Federal laws and the regulations in this part.



Sec.  1.5  Information furnished by State highway departments.

    At the request of the Administrator the State highway department 
shall furnish to him such information as the Administrator shall deem 
desirable in administering the Federal-aid highway program.



Sec.  1.7  Urban area boundaries.

    Boundaries of an urban area shall be submitted by the State highway 
department and be approved by the Administrator prior to the inclusion 
in a program of any project wholly or partly in such area involving 
funds authorized for and limited to urban areas.



Sec.  1.8  [Reserved]



Sec.  1.9  Limitation on Federal participation.

    (a) Federal-aid funds shall not participate in any cost which is not 
incurred in conformity with applicable Federal and State law, the 
regulations in this title, and policies and procedures prescribed by the 
Administrator. Federal funds shall not be paid on account of any cost 
incurred prior to authorization by the Administrator to the State 
highway department to proceed with the project or part thereof involving 
such cost.
    (b) Notwithstanding the provisions of paragraph (a) of this section 
the Administrator may, upon the request of a State highway department, 
approve the participation of Federal-aid funds in a previously incurred 
cost if he finds:
    (1) That his approval will not adversely affect the public,
    (2) That the State highway department has acted in good faith, and 
that there has been no willful violation of Federal requirements,
    (3) That there has been substantial compliance with all other 
requirements prescribed by the Administrator, and full compliance with 
requirements mandated by Federal statute,
    (4) That the cost to the United States will not be in excess of the 
cost which it would have incurred had there been full compliance, and
    (5) That the quality of work undertaken has not been impaired.
    (c) Any request submitted under paragraph (b) of this section shall 
be accompanied by a detailed description of the relevant circumstances 
and facts, and shall explain the necessity for incurring the costs in 
question.

[38 FR 18368, July 10, 1973]



Sec.  1.11  Engineering services.

    (a) Federal participation. Costs of engineering services performed 
by the State highway department or any instrumentality or entity 
referred to in paragraph (b) of this section may be eligible for Federal 
participation only to the extent that such costs are directly 
attributable and properly allocable to specific projects.
    (b) Governmental engineering organizations. The State highway 
department may utilize, under its supervision, the services of well-
qualified and suitably equipped engineering organizations of other 
governmental instrumentalities for making surveys, preparing plans, 
specifications and estimates, and for supervising the construction of 
any project.
    (c) Railroad and utility engineering organizations. The State 
highway department may utilize, under its supervision, the services of 
well-qualified and suitably equipped engineering organizations of the 
affected railroad companies for railway-highway crossing projects and of 
the affected utility companies for projects involving utility 
installations.
    (d) [Reserved]
    (e) Responsibility of the State highway department. The State 
highway department is not relieved of its responsibilities under Federal 
law and the regulations in this part in the event it utilizes the 
services of any engineering organization under paragraphs (b), (c) or 
(d) of this section.

[25 FR 4162, May 11, 1960, as amended at 53 FR 18276, May 23, 1988; 57 
FR 60728, Dec. 22, 1992; 66 FR 58666, Nov. 23, 2001]



Sec.  1.23  Rights-of-way.

    (a) Interest to be acquired. The State shall acquire rights-of-way 
of such nature and extent as are adequate for the

[[Page 9]]

construction, operation and maintenance of a project.
    (b) Use for highway purposes. Except as provided under paragraph (c) 
of this section, all real property, including air space, within the 
right-of-way boundaries of a project shall be devoted exclusively to 
public highway purposes. No project shall be accepted as complete until 
this requirement has been satisfied. The State highway department shall 
be responsible for preserving such right-of-way free of all public and 
private installations, facilities or encroachments, except (1) those 
approved under paragraph (c) of this section; (2) those which the 
Administrator approves as constituting a part of a highway or as 
necessary for its operation, use or maintenance for public highway 
purposes and (3) informational sites established and maintained in 
accordance with Sec.  1.35 of the regulations in this part.
    (c) Other use or occupancy. Subject to 23 U.S.C. 111, the temporary 
or permanent occupancy or use of right-of-way, including air space, for 
nonhighway purposes and the reservation of subsurface mineral rights 
within the boundaries of the rights-of-way of Federal-aid highways, may 
be approved by the Administrator, if he determines that such occupancy, 
use or reservation is in the public interest and will not impair the 
highway or interfere with the free and safe flow of traffic thereon.



Sec.  1.27  Maintenance.

    The responsibility imposed upon the State highway department, 
pursuant to 23 U.S.C. 116, for the maintenance of projects shall be 
carried out in accordance with policies and procedures issued by the 
Administrator. The State highway department may provide for such 
maintenance by formal agreement with any adequately equipped county, 
municipality or other governmental instrumentality, but such an 
agreement shall not relieve the State highway department of its 
responsibility for such maintenance.



Sec.  1.28  [Reserved]



Sec.  1.32  Issuance of directives.

    (a) The Administrator shall promulgate and require the observance of 
policies and procedures, and may take other action as he deems 
appropriate or necessary for carrying out the provisions and purposes of 
Federal laws, the policies of the Federal Highway Administration, and 
the regulations of this part.
    (b) The Administrator or his delegated representative, as 
appropriate, is authorized to issue the following type of directives:
    (1) Federal Highway Administration Regulations are issued by the 
Administrator or his delegate, as necessary, to implement and carry out 
the provisions of title 23 U.S.C., relating to the administration of 
Federal aid for highways, direct Federal programs and State and 
community safety programs; and title 49 U.S.C., relating to motor 
carrier safety; and other applicable laws and programs under his 
jurisdiction.
    (2) Notices are temporary issuances transmitting one-time or short-
term instructions or information which is expected to remain in effect 
for less than 90 days or for a predetermined period of time normally not 
to exceed one year.
    (3) Orders are directives limited in volume and contain permanent or 
longlasting policy, instructions, and procedures. FHWA Orders are to be 
used primarily as internal FHWA directives.
    (4) Joint Interagency Orders and Notices are used by FHWA and the 
National Highway Traffic Safety Administration (NHTSA) to issue joint 
policies, procedures, and information pertaining to the joint 
administration of the State and Community Highway Safety Program. Where 
necessary, other joint directives may be issued with other modal 
administrations within the Department of Transportation.
    (5) Manuals are generally designed for use in issuing permanent or 
long-lasting detailed policy and procedure. Some of the major manuals 
recognized by the FHWA Directives System follow:

[[Page 10]]

    (i) The Federal-Aid Highway Program Manual has been established to 
assemble and organize program material of the type previously contained 
in the Policy and Procedure and Instructional Memoranda which will 
continue in effect until specifically revoked or published in the new 
manual. Regulatory material is printed in italics in the manual and also 
appears in this code. Nonregulatory material is printed in delegate 
type.
    (ii) The Administrative Manual covers all internal FHWA 
administrative support functions.
    (iii) The Highway Planning Program Manual covers the methods and 
procedures necessary to conduct the highway planning functions.
    (iv) The Research and Development Manual series entitled, ``The 
Federally Coordinated Program of Research and Development in Highway 
Transportation'' describes the FHWA research and development program.
    (v) The External Audit Manual provides guidance to FHWA auditors in 
their review of State programs and processes.
    (vi) The Civil Rights and Equal Opportunity Manual provides guidance 
to FHWA and State Civil Rights and Equal Employment Opportunity 
Officers.
    (vii) The BMCS Operations Manual provides program guidance for all 
field employees assigned to the motor carrier safety program.
    (viii) The Highway Safety Program Manual, issued jointly by FHWA and 
NHTSA, contains volumes relating to the joint administration of the 
program.
    (6) Handbooks are internal operating instructions published in book 
form where, because of the program area covered, it is desirable to 
provide greater detail of administrative and technical instructions.
    (7) Transmittals identify and explain the original issuance or page 
change, provide background information, and provide filing instructions 
for insertion of new pages and removal of changed pages, or both.

(49 U.S.C. 1655)

[39 FR 1512, Jan. 10, 1974]



Sec.  1.33  Conflicts of interest.

    No official or employee of a State or any other governmental 
instrumentality who is authorized in his official capacity to negotiate, 
make, accept or approve, or to take part in negotiating, making, 
accepting or approving any contract or subcontract in connection with a 
project shall have, directly or indirectly, any financial or other 
personal interest in any such contract or subcontract. No engineer, 
attorney, appraiser, inspector or other person performing services for a 
State or a governmental instrumentality in connection with a project 
shall have, directly or indirectly, a financial or other personal 
interest, other than his employment or retention by a State or other 
governmental instrumentality, in any contract or subcontract in 
connection with such project. No officer or employee of such person 
retained by a State or other governmental instrumentality shall have, 
directly or indirectly, any financial or other personal interest in any 
real property acquired for a project unless such interest is openly 
disclosed upon the public records of the State highway department and of 
such other governmental instrumentality, and such officer, employee or 
person has not participated in such acquisition for and in behalf of the 
State. It shall be the responsibility of the State to enforce the 
requirements of this section.



Sec.  1.35  Bonus program.

    (a) Any agreement entered into by a State pursuant to the provisions 
of section 12 of the Federal-Aid Highway Act of 1958, Pub. L. 85-381, 72 
Stat. 95, as amended, shall provide for the control or regulation of 
outdoor advertising, consistent with the advertising policy and 
standards promulgated by the Administrator, in areas adjacent to the 
entire mileage of the Interstate System within that State, except such 
segments as may be excluded from the application of such policy and 
standards by section 12.
    (b) Any such agreement for the control of advertising may provide 
for establishing publicly owned informational sites, whether publicly or 
privately operated, within the limits of or adjacent to the right-of-way 
of the

[[Page 11]]

Interstate System on condition that no such site shall be established or 
maintained except at locations and in accordance with plans, in 
furtherance of the advertising policy and standards, submitted to and 
approved by the Administrator.
    (c) No advertising right in the acquisition of which Federal funds 
participated shall be disposed of without the prior approval of the 
Administrator.

[39 FR 28628, Aug. 9, 1974]



Sec.  1.36  Compliance with Federal laws and regulations.

    If the Administrator determines that a State has violated or failed 
to comply with the Federal laws or the regulations in this part with 
respect to a project, he may withhold payment to the State of Federal 
funds on account of such project, withhold approval of further projects 
in the State, and take such other action that he deems appropriate under 
the circumstances, until compliance or remedial action has been 
accomplished by the State to the satisfaction of the Administrator.

[[Page 12]]



                     SUBCHAPTER B_PAYMENT PROCEDURES





PART 140_REIMBURSEMENT--Table of Contents



Subparts A-D [Reserved]

        Subpart E_Administrative Settlement Costs_Contract Claims

Sec.
140.501 Purpose.
140.503 Definition.
140.505 Reimbursable costs.

             Subpart F_Reimbursement for Bond Issue Projects

140.601 Purpose.
140.602 Requirements and conditions.
140.603 Programs.
140.604 Reimbursable schedule.
140.605 Approval actions.
140.606 Project agreements.
140.607 Construction.
140.608 Reimbursable bond interest costs of Interstate projects.
140.609 Progress and final vouchers.
140.610 Conversion from bond issue to funded project status.
140.611 Determination of bond retirement.
140.612 Cash management.

Appendix to Subpart F of Part 140--Reimbursable Schedule for Converted 
          ``E'' (Bond Issue) Projects (Other Than Interstate Projects)

Subpart G [Reserved]

              Subpart H_State Highway Agency Audit Expense

140.801 Purpose.
140.803 Policy.
140.805 Definitions.
140.807 Reimbursable costs.

                Subpart I_Reimbursement for Railroad Work

140.900 Purpose.
140.902 Applicability.
140.904 Reimbursement basis.
140.906 Labor costs.
140.907 Overhead and indirect construction costs.
140.908 Materials and supplies.
140.910 Equipment.
140.912 Transportation.
140.914 Credits for improvements.
140.916 Protection.
140.918 Maintenance and extended construction.
140.920 Lump sum payments.
140.922 Billings.

    Authority: 23 U.S.C. 101(e), 106, 109(e), 114(a), 120(g), 121, 122, 
130, and 315; and 49 CFR 1.48(b).

Subparts A-D [Reserved]



        Subpart E_Administrative Settlement Costs_Contract Claims

    Source: 44 FR 59233, Oct. 15, 1979, unless otherwise noted.



Sec.  140.501  Purpose.

    This regulation establishes the criteria for eligibility for 
reimbursement of administrative settlement costs in defense of contract 
claims on projects performed by a State under Federal-aid procedures.



Sec.  140.503  Definition.

    Administrative settlement costs are costs related to the defense and 
settlement of contract claims including, but not limited to, salaries of 
a contracting officer or his/her authorized representative, attorneys, 
and/or members of State boards of arbitration, appeals boards, or 
similar tribunals, which are allocable to the findings and 
determinations of contract claims, but not including administrative or 
overhead costs.



Sec.  140.505  Reimbursable costs.

    (a) Federal funds may participate in administrative settlement costs 
which are:
    (1) Incurred after notice of claim,
    (2) Properly supported,
    (3) Directly allocable to a specific Federal-aid or Federal project,
    (4) For employment of special counsel for review and defense of 
contract claims, when
    (i) Recommended by the State Attorney General or State Highway 
Agency (SHA) legal counsel and
    (ii) Approved in advance by the FHWA Division Administrator, with 
advice of FHWA Regional Counsel, and
    (5) For travel and transportation expenses, if in accord with 
established policy and practices.

[[Page 13]]

    (b) No reimbursement shall be made if it is determined by FHWA that 
there was negligence or wrongdoing of any kind by SHA officials with 
respect to the claim.



             Subpart F_Reimbursement for Bond Issue Projects

    Source: 48 FR 54971, Dec. 8, 1983, unless otherwise noted.



Sec.  140.601  Purpose.

    To prescribe policies and procedures for the use of Federal funds by 
State highway agencies (SHAs) to aid in the retirement of the principal 
and interest of bonds, pursuant to 23 U.S.C. 122 and the payment of 
interest on bonds of eligible Interstate projects.



Sec.  140.602  Requirements and conditions.

    (a) An SHA that uses the proceeds of bonds issued by the State, a 
county, city or other political subdivision of the State, for the 
construction of projects on the Federal-aid primary or Interstate 
system, or extensions of any of the Federal-aid highway systems in urban 
areas, or for substitute highway projects approved under 23 U.S.C. 
103(e)(4), may claim payment of any portion of such sums apportioned to 
it for expenditures on such system to aid in the retirement of the 
principal of bonds at their maturities, to the extent that the proceeds 
of bonds have actually been expended in the construction of projects.
    (b) Any interest earned and payable on bonds, the proceeds of which 
were expended on Interstate projects after November 6, 1978, is an 
eligible cost of construction. The amount of interest eligible for 
participation will be based on (1) the date the proceeds were expended 
on the project, (2) amount expended, and (3) the date of conversion to a 
regularly funded project. As provided for in section 115(c), Pub. L. 95-
599, November 6, 1978, interest on bonds issued in any fiscal year by a 
State after November 6, 1978, may be paid under the authority of 23 
U.S.C. 122 only if such SHA was eligible to obligate Interstate 
Discretionary funds under the provisions of 23 U.S.C. 118(b) during such 
fiscal year, and the Administrator certifies that such eligible SHA has 
utilized, or will utilize to the fullest extent possible during such 
fiscal year, its authority to obligate funds under 23 U.S.C. 118(b).
    (c) The Federal share payable at the time of conversion, as provided 
for in Sec.  140.610 shall be the legal pro rata in effect at the time 
of execution of the project agreement for the bond issue project.
    (d) The authorization of a bond issue project does not constitute a 
commitment of Federal funds until the project is converted to a regular 
Federal-aid project as provided for in Sec.  140.610.
    (e) Reimbursements for the redemption of bonds may not precede, by 
more than 60 days, the scheduled date of the retirement of the bonds.
    (f) Federal funds are not eligible for payment into sinking funds 
created and maintained for the subsequent retirement of bonds.



Sec.  140.603  Programs.

    Programs covering projects to be financed from the proceeds of bonds 
shall be prepared and submitted to FHWA. Project designations shall be 
the same as for regular Federal-aid projects except that the prefix 
letter ``B'' for bond issue shall be used as the first letter of each 
project designation, e.g., ``BI'' for Bond Issue Projects--Interstate.



Sec.  140.604  Reimbursable schedule.

    Projects to be financed from other than Interstate funds shall be 
subject to a 36-month reimbursable schedule upon conversion to regular 
Federal-aid financing (See appendix). FHWA will consider requests for 
waiver of this provision at the time of conversion action. Waivers are 
subject to the availability of liquidating cash.



Sec.  140.605  Approval actions.

    (a) Authorization to proceed with preliminary engineering and 
acquisition of rights-of-way shall be issued in the same manner as for 
regularly financed Federal-aid projects.
    (b) Authorization of physical construction shall be given in the 
same manner as for regularly financed Federal-aid projects. The total 
cost and

[[Page 14]]

Federal funds required, including interest, shall be indicated in the 
plans, specifications, and estimates.
    (c) Projects subject to the reimbursable schedule shall be 
identified as an ``E'' project when the SHA is authorized to proceed 
with all or any phase of the work.
    (d) Concurrence in the award of contracts shall be given.



Sec.  140.606  Project agreements.

    Project Agreements, Form PR-2, shall be prepared and executed. 
Agreement provision 8 on the reverse side of Form PR-2 \1\ shall apply 
for bond issue projects.
---------------------------------------------------------------------------

    \1\ The text of FHWA Form PR-2 is found in 23 CFR part 630, subpart 
C, appendix A.
---------------------------------------------------------------------------



Sec.  140.607  Construction.

    Construction shall be supervised by the SHA in the same manner as 
for regularly financed Federal-aid projects. The FHWA will make 
construction inspections and reports.



Sec.  140.608  Reimbursable bond interest costs of Interstate projects.

    (a) Bond interest earned on bonds actually retired may be reimbursed 
on the Federal pro rata basis applicable to such projects in accordance 
with Sec.  140.602(b) and (c).
    (b) No interest will be reimbursed for bonds issued after November 
6, 1978, used to retire or otherwise refinance bonds issued prior to 
that date.



Sec.  140.609  Progress and final vouchers.

    (a) Progress vouchers may be submitted for the Federal share of 
bonds retired or about to be retired, including eligible interest on 
Interstate Bond Issue Projects, the proceeds of which have actually been 
expended for the construction of the project.
    (b) Upon completion of a bond issue project, a final voucher shall 
be submitted by the SHA. After final review, the SHA will be advised as 
to the total cost and Federal fund participation for the project.



Sec.  140.610  Conversion from bond issue to funded project status.

    (a) At such time as the SHA elects to apply available apportioned 
Federal-aid funds to the retirement of bonds, including eligible 
interest earned and payable on Interstate Bond Projects, subject to 
available obligational authority, its claim shall be supported by 
appropriate certifications as follows:

    I hereby certify that the following bonds, (list), the proceeds of 
which have been actually expended in the construction of bond issue 
projects authorized by title 23 U.S.C., section 122, (1) have been 
retired on ___, or (2) mature and are scheduled for retirement on ___, 
which is __ days in advance of the maturity date of ___.

    Eligible interest claimed on Interstate Bond Projects shall be shown 
for each bond and the certification shall include the statement:

    I also certify that interest earned and paid or payable for each 
bond listed has been determined from the date on and after which the 
respective bond proceeds were actually expended on the project.

    (b) The SHA's request for full conversion of a completed projects), 
or partial conversion of an active or completed project(s), may be made 
by letter, inclusive of the appropriate certification as described in 
Sec.  140.610(a) making reference to any progress payments received or 
the final voucher(s) previously submitted and approved in accordance 
with Sec.  140.609.
    (c) Approval of the conversion action shall be by the Division 
Administrator.
    (d) The SHA's request for partial conversion of an active or 
completed bond issue project shall provide for: (1) Conversion to funded 
project status of the portion to be financed out of the balance of 
currently available apportioned funds, and (2) retention of the unfunded 
portion of the project in the bond program.
    (e) Where the SHA's request involves the partial conversion of a 
completed bond issue project, payment of the Federal funds made 
available under the conversion action shall be accomplished through use 
of Form PR-20, Voucher for Work Performed under Provisions of the 
Federal-aid and Federal Highway Acts, prepared in the division office 
and appropriately cross-referenced to the Bond Issue Project final 
voucher previously submitted and approved. The final voucher will be 
reduced by the amount of the approved reimbursement.

[[Page 15]]



Sec.  140.611  Determination of bond retirement.

    Division Administrators shall be responsible for the prompt review 
of the SHA's records to determine that bonds issued to finance the 
projects and for which reimbursement has been made, including eligible 
bond interest expense, have been retired pursuant to the State's 
certification required by Sec.  140.610(a), and that such action is 
documented in the project file.



Sec.  140.612  Cash management.

    By July 1 of each year the SHA will provide FHWA with a schedule, 
including the anticipated claims for reimbursement, of bond projects to 
be converted during the next two fiscal years. The data will be used by 
FHWA in determining liquidating cash required to finance such 
conversions.



   Sec. Appendix to Subpart F of Part 140--Reimbursable Schedule for 
 Converted ``E'' (Bond Issue) Projects (other than Interstate Projects)

------------------------------------------------------------------------
                                                       Cumulative amount
                                                          reimbursable
 Time in months following conversion from ``E'' (bond     (percent of
          issue) project to regular project              Federal funds
                                                           obligated)
------------------------------------------------------------------------
1....................................................                  1
2....................................................                  2
3....................................................                  5
4....................................................                  9
5....................................................                 13
6....................................................                 18
7....................................................                 23
8....................................................                 29
9....................................................                 34
10...................................................                 39
11...................................................                 44
12...................................................                 49
13...................................................                 54
14...................................................                 58
15...................................................                 61
16...................................................                 64
17...................................................                 67
18...................................................                 70
19...................................................                 73
20...................................................                 75
21...................................................                 77
22...................................................                 79
23...................................................                 81
24...................................................                 83
25...................................................                 85
26...................................................                 87
27...................................................                 89
28...................................................                 91
29...................................................                 93
30...................................................                 94
31...................................................                 95
32...................................................                 96
34...................................................                 97
35...................................................                 99
36...................................................                100
------------------------------------------------------------------------

Subpart G [Reserved]



              Subpart H_State Highway Agency Audit Expense

    Source: 49 FR 45578, Nov. 19, 1984, unless otherwise noted.



Sec.  140.801  Purpose.

    To establish the reimbursement criteria for Federal participation in 
project related audit expenses.



Sec.  140.803  Policy.

    Project related audits performed in accordance with generally 
accepted auditing standards (as modified by the Comptroller General of 
the United States) and applicable Federal laws and regulations are 
eligible for Federal participation. The State highway agency (SHA) may 
use other State, local public agency, and Federal audit organizations as 
well as licensed or certified public accounting firms to augment its 
audit force.



Sec.  140.805  Definitions.

    (a) Project related audits. Audits which directly benefit Federal-
aid highway projects. Audits performed in accordance with the 
requirements of 23 CFR part 12, audits of third party contract costs, 
and other audits providing assurance that a recipient has complied with 
FHWA regulations are all considered project related audits. Audits 
benefiting only nonfederal projects, those performed for SHA management 
use only, or those serving similar nonfederal purposes are not 
considered project related.
    (b) Third party contract costs. Project related costs incurred by 
railroads, utilities, consultants, governmental instrumentalities, 
universities, nonprofit organizations, construction contractors (force 
account work), and organizations engaged in right-of-way studies, 
planning, research, or related activities where the terms of a proposal

[[Page 16]]

or contract (including lump sum) necessitate an audit. Construction 
contracts (except force account work) are not included in this group.



Sec.  140.807  Reimbursable costs.

    (a) Federal funds may be used to reimburse an SHA for the following 
types of project related audit costs:
    (1) Salaries, wages, and related costs paid to public employees in 
accordance with subpart G of this part,
    (2) Payments by the SHA to any Federal, State, or local public 
agency audit organization, and
    (3) Payments by the SHA to licensed or certified public accounting 
firms.
    (b) Audit costs incurred by an SHA shall be equitably distributed to 
all benefiting parties. The portion of these costs allocated to the 
Federal-Aid Highway Program which are not directly related to a specific 
project or projects shall be equitably distributed, as a minimum, to the 
major FHWA funding categories in that State.



                Subpart I_Reimbursement for Railroad Work

    Source: 40 FR 16057, Apr. 9, 1975, unless otherwise noted.



Sec.  140.900  Purpose.

    The purpose of this subpart is to prescribe policies and procedures 
on reimbursement to the States for railroad work done on projects 
undertaken pursuant to the provisions of 23 CFR part 646, subpart B.



Sec.  140.902  Applicability.

    This subpart, and all references hereinafter made to ``projects,'' 
applies to Federal-aid projects involving railroad facilities, including 
projects for the elimination of hazards of railroad-highway crossings, 
and other projects which use railroad properties or which involve 
adjustments required by highway construction to either railroad 
facilities or facilities that are jointly owned or used by railroad and 
utility companies.



Sec.  140.904  Reimbursement basis.

    (a) General. On projects involving the elimination of hazards of 
railroad-highway crossings, and on other projects where a railroad 
company is not obligated to move or to change its facilities at its own 
expense, reimbursement will be made for the costs incurred by the State 
in making changes to railroad facilities as required in connection with 
a Federal-aid highway project, in accordance with the provisions of this 
subpart.
    (b) Eligibility. To be eligible, the costs must be:
    (1) For work which is included in an approved statewide 
transportation improvement program.
    (2) Incurred subsequent to the date of authorization by the Federal 
Highway Administration (FHWA),
    (3) Incurred in accordance with the provisions of 23 CFR, part 646, 
subpart B, and
    (4) Properly attributable to the project.

[40 FR 16057, Apr. 9, 1975, as amended at 53 FR 18276, May 23, 1988; 62 
FR 45328, Aug. 27, 1997]



Sec.  140.906  Labor costs.

    (a) General. (1) Salaries and wages, at actual or average rates, and 
related expenses paid by a company to individuals, for the time they are 
working on the project, are reimbursable when supported by adequate 
records. This shall include labor costs associated with preliminary 
engineering, construction engineering, right-of-way, and force account 
construction.
    (2) Salaries and expenses paid to individuals who are normally part 
of the overhead organization of the company may be reimbursed for the 
time they are working directly on the project, such as for accounting 
and bill preparation, when supported by adequate records and when the 
work performed by such individuals is essential to the project and could 
not have been accomplished as economically by employees outside the 
overhead organization.
    (3) Amounts paid to engineers, architects and others for services 
directly related to projects may be reimbursed.
    (b) Labor surcharges. (1) Labor surcharges include worker 
compensation insurance, public liability and property damage insurance, 
and such fringe benefits as the company has established for the benefit 
of its employees. The

[[Page 17]]

cost of labor surcharges will be reimbursed at actual cost to the 
company or a company may, at its option, use an additive rate or other 
similar technique in lieu of actual costs provided that (i) the rate is 
based on historical cost data of the company, (ii) such rate is 
representative of actual costs incurred, (iii) the rate is adjusted at 
least annually taking into consideration known anticipated changes and 
correcting for any over or under applied costs for the preceding period, 
and (iv) the rate is approved by the SHA and FHWA.
    (2) Where the company is a self-insurer there may be reimbursement:
    (i) At experience rates properly developed from actual costs, not to 
exceed the rates of a regular insurance company for the class of 
employment covered, or
    (ii) At the option of the company, a fixed rate of 8 percent of 
direct labor costs for worker compensation and public liability and 
property damage insurance together.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 56 
FR 56578, Nov. 6, 1991]



Sec.  140.907  Overhead and indirect construction costs.

    (a) A State may elect to reimburse the railroad company for its 
overhead and indirect construction costs.
    (b) The FHWA will participate in these costs provided that:
    (1) The costs are distributed to all applicable work orders and 
other functions on an equitable and uniform basis in accordance with 
generally accepted accounting principles;
    (2) The costs included in the distribution are limited to costs 
actually incurred by the railroad;
    (3) The costs are eligible in accordance with the Federal 
Acquisition Regulation (48 CFR), part 31, Contract Cost Principles and 
Procedures, relating to contracts with commercial organizations;
    (4) The costs are considered reasonable;
    (5) Records are readily available at a single location which 
adequately support the costs included in the distribution, the method 
used for distributing the costs, and the basis for determining additive 
rates;
    (6) The rates are adjusted at least annually taking into 
consideration any overrecovery or underrecovery of costs; and
    (7) The railroad maintains written procedures which assure proper 
control and distribution of the overhead and indirect construction 
costs.

[53 FR 18276, May 23, 1988]



Sec.  140.908  Materials and supplies.

    (a) Procurement. Materials and supplies, if available, are to be 
furnished from company stock, except they may be obtained from other 
sources near the project site when available at less cost. Where not 
available from company stock, they may be purchased either under 
competitive bids or existing continuing contracts, under which the 
lowest available prices are developed. Minor quantities and proprietary 
products are excluded from these requirements. The company shall not be 
required to change its existing standards for materials used in 
permanent changes to its facilities.
    (b) Costs. (1) Materials and supplies furnished from company stock 
shall be billed at current stock price of such new or used material at 
time of issue.
    (2) Materials and supplies not furnished from company stock shall be 
billed at actual costs to the company delivered to the point of entry on 
the railroad company's line nearest the source of procurement.
    (3) A reasonable cost of plant inspection and testing may be 
included in the costs of materials and supplies where such expense has 
been incurred. The computation of actual costs of materials and supplies 
shall include the deduction of all offered discounts, rebates and 
allowances.
    (c) Materials recovered. (1) Materials recovered from temporary use 
and accepted for reuse by the company shall be credited to the project 
at prices charged to the job, less a consideration for loss in service 
life at 10 percent for rails, angle bars, tie plates and metal turnout 
materials and 15 percent for all other materials. Materials recovered 
from the permanent facility of the

[[Page 18]]

company that are accepted by the company for return to stock shall be 
credited to the project at current stock prices of such used material.
    (2) Materials recovered and not accepted for reuse by the company, 
if determined to have a net sale value, shall be sold by the State or 
railroad following an opportunity for State inspection and appropriate 
solicitation for bids, to the highest bidder; or if the company 
practices a system of periodic disposal by sale, credit to the project 
shall be at the going prices supported by the records of the company. 
Where applicable, credit for materials recovered from the permanent 
facility in length or quantities in excess of that being placed should 
be reduced to reflect any increased cost of railroad operation resulting 
from the adjustment.
    (d) Removal costs. Federal participation in the costs of removing, 
salvaging, transporting, and handling recovered materials will be 
limited to the value of materials recovered, except where FHWA approves 
additional measures for restoration of affected areas as required by the 
physical construction or by reason of safety or aesthetics.
    (e) Handling costs. The actual and direct costs of handling and 
loading out of materials and supplies at and from company stores or 
material yards and of unloading and handling of recovered materials 
accepted by the company at its stores or material yards, are 
reimbursable. At the option of the company, 5 percent of the amounts 
billed for the materials and supplies which are issued from company 
stores and material yards will be reimbursable in lieu of actual costs.
    (f) Credit losses. On projects where a company actually suffers loss 
by application of credits, the company shall have the opportunity of 
submitting a detailed statement of such loss as a basis for further 
adjustment.



Sec.  140.910  Equipment.

    (a) Company owned equipment. Cost of company-owned equipment may be 
reimbursed for the average or actual cost of operation, light and 
running repairs, and depreciation, or at industry rates representative 
of actual costs as agreed to by the railroad, SHA, and FHWA. 
Reimbursement for company-owned vehicles may be made at average or 
actual costs or at rates of recorded use per mile which are 
representative of actual costs and agreed to by the company, SHA, and 
FHWA.
    (b) Other equipment. Where company owned equipment is not available, 
reimbursement will be limited to the amount of rental paid (1) to the 
lowest qualified bidder, (2) under existing continuing contracts at 
reasonable cost, or (3) as an exception, by negotiation where (b) (1) 
and (2) are impractical due to project location or schedule.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]



Sec.  140.912  Transportation.

    (a) Employees. The company's cost of necessary employee 
transportation and subsistence directly attributable to the project, 
which is consistent with overall policy of the company, is reimbursable.
    (b) Materials, supplies, and equipment. The most economical movement 
of materials, supplies and equipment to the project and necessary return 
to storage, including the associated costs of loading and unloading 
equipment, is reimbursable. Transportation by a railroad company over 
its own lines in a revenue train is reimbursable at average or actual 
costs, at rates which are representative of actual costs, or at rates 
which the company charges its customers for similar shipments provided 
the rate structure is documented and available to the public. These 
rates are to be agreed to by the company, SHA, and FHWA. No charge will 
be made for transportation by work train other than the operating 
expenses of the work train. When it is more practicable or more 
economical to move equipment on its own wheels, reimbursement may be 
made at average or actual costs or at rates which are representative of 
actual costs and are agreed to by the railroad, SHA, and FHWA.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]



Sec.  140.914  Credits for improvements.

    (a) Credit shall be made to the project for additions or 
improvements

[[Page 19]]

which provide for higher quality or increased service capability of the 
operating facility and which are provided solely for the benefit of the 
company.
    (b) Where buildings and other depreciable structures of a company 
which are integral to operation of rail traffic must be replaced, credit 
shall be made to the project as set forth in 23 CFR 646.216(c)(2).
    (c) No credit is required for additions or improvements which are:
    (1) Necessitated by the requirements of the highway project.
    (2) Replacements which, although not identical, are of equivalent 
standard.
    (3) Replacements of devices or materials no longer regularly 
manufactured and the next highest grade or size is used.
    (4) Required by governmental and appropriate regulatory commission 
requirements.



Sec.  140.916  Protection.

    The cost of essential protective services which, in the opinion of a 
railroad company, are required to ensure safety to railroad operations 
during certain periods of the construction of a project, is reimbursable 
provided an item for such services is incorporated in the State-railroad 
agreement or in a work order issued by the State and approved by FHWA.



Sec.  140.918  Maintenance and extended construction.

    The cost of maintenance and extended construction is reimbursable to 
the extent provided for in 23 CFR 646.216(f)(4), and where included in 
the State-Railroad Agreement or otherwise approved by the State and 
FHWA.



Sec.  140.920  Lump sum payments.

    Where approved by FHWA, pursuant to 23 CFR 646.216(d)(3), 
reimbursement may be made as a lump sum payment, in lieu of actual 
costs.



Sec.  140.922  Billings.

    (a) After the executed State-Railroad Agreement has been approved by 
FHWA, the company may be reimbursed on progress billings of incurred 
costs. Costs for materials stockpiled at the project site or 
specifically purchased and delivered to the company for use on the 
project may be reimbursed on progress billings following approval of the 
executed State-Railroad Agreement or the written agreement under 23 CFR 
646.218(c).
    (b) The company shall provide one final and complete billing of all 
incurred costs, or of the agreed-to lump sum, within one year following 
completion of the reimbursable railroad work. Otherwise, previous 
payments to the company may be considered final, except as agreed to 
between the SHA and the railroad.
    (c) All company cost records and accounts relating to the project 
are subject to audit by representatives of the State and/or the Federal 
Government for a period of three years from the date final payment has 
been received by the company.
    (d) A railroad company must advise the State promptly of any 
outstanding obligation of the State's contractor for services furnished 
by the company such as protective services.

[40 FR 16057, Apr. 9, 1975, as amended at 40 FR 29712, July 15, 1975; 62 
FR 45328, Aug. 27, 1997]



PART 172_PROCUREMENT, MANAGEMENT, AND ADMINISTRATION OF ENGINEERING 
AND DESIGN RELATED SERVICES--Table of Contents



Sec.
172.1 Purpose and applicability.
172.3 Definitions.
172.5 Program management and oversight.
172.7 Procurement methods and procedures.
172.9 Contracts and administration.
172.11 Allowable costs and oversight.

    Authority: 23 U.S.C. 106, 112, 114(a), 302, 315, and 402; 40 U.S.C. 
1101 et seq.; 48 CFR part 31; 49 CFR 1.48(b); and 2 CFR part 200.

    Source: 80 FR 29927, May 22, 2015, unless otherwise noted.



Sec.  172.1  Purpose and applicability.

    This part prescribes the requirements for the procurement, 
management, and administration of engineering and design related 
services under 23 U.S.C. 112 and as supplemented by the Uniform 
Administrative Requirements For Federal Awards rule. The Uniform 
Administrative Requirements, Cost Principles and Audit Requirements For 
Federal Awards rule (2 CFR part 200) shall

[[Page 20]]

apply except where inconsistent with the requirements of this part and 
other laws and regulations applicable to the Federal-aid highway program 
(FAHP). The requirements herein apply to federally funded contracts for 
engineering and design related services for projects subject to the 
provisions of 23 U.S.C. 112(a) (related to construction) and are issued 
to ensure that a qualified consultant is obtained through an equitable 
qualifications-based selection procurement process, that prescribed work 
is properly accomplished in a timely manner, and at fair and reasonable 
cost. State transportation agencies (STA) (or other recipients) shall 
ensure that subrecipients comply with the requirements of this part and 
the Uniform Administrative Requirements, Cost Principles and Audit 
Requirements For Federal Awards rule. Federally funded contracts for 
services not defined as engineering and design related, or for services 
not in furtherance of a highway construction project or activity subject 
to the provisions of 23 U.S.C. 112(a), are not subject to the 
requirements of this part and shall be procured and administered under 
the requirements of the Uniform Administrative Requirements, Cost 
Principles and Audit Requirements For Federal Awards rule and procedures 
applicable to such activities.



Sec.  172.3  Definitions.

    As used in this part:
    Audit means a formal examination, in accordance with professional 
standards, of a consultant's accounting systems, incurred cost records, 
and other cost presentations to test the reasonableness, allowability, 
and allocability of costs in accordance with the Federal cost principles 
(as specified in 48 CFR part 31).
    Cognizant agency means any governmental agency that has performed an 
audit in accordance with generally accepted government auditing 
standards to test compliance with the requirements of the Federal cost 
principles (as specified in 48 CFR part 31) and issued an audit report 
of the consultant's indirect cost rate, or any described agency that has 
conducted a review of an audit report and related workpapers prepared by 
a certified public accountant and issued a letter of concurrence with 
the audited indirect cost rate(s). A cognizant agency may be any of the 
following:
    (1) A Federal agency;
    (2) A State transportation agency of the State where the 
consultant's accounting and financial records are located; or
    (3) A State transportation agency to which cognizance for the 
particular indirect cost rate(s) of a consulting firm has been delegated 
or transferred in writing by the State transportation agency identified 
in paragraph (2) of this definition.
    Competitive negotiation means qualifications-based selection 
procurement procedures complying with 40 U.S.C. 1101-1104, commonly 
referred to as the Brooks Act.
    Consultant means the individual or firm providing engineering and 
design related services as a party to a contract with a recipient or 
subrecipient of Federal assistance (as defined in 2 CFR 200.86 or 2 CFR 
200.93, respectively).
    Contract means a written procurement contract or agreement between a 
contracting agency and consultant reimbursed under a FAHP grant or 
subgrant and includes any procurement subcontract under a contract.
    Contracting agencies means a State transportation agency or a 
procuring agency of the State acting in conjunction with and at the 
direction of the State transportation agency, other recipients, and all 
subrecipients that are responsible for the procurement, management, and 
administration of engineering and design related services.
    Contract modification means an agreement modifying the terms or 
conditions of an original or existing contract.
    Engineering and design related services means:
    (1) Program management, construction management, feasibility 
studies, preliminary engineering, design engineering, surveying, 
mapping, or architectural related services with respect to a highway 
construction project subject to 23 U.S.C. 112(a) as defined in 23 U.S.C. 
112(b)(2)(A); and

[[Page 21]]

    (2) Professional services of an architectural or engineering nature, 
as defined by State law, which are required to or may logically or 
justifiably be performed or approved by a person licensed, registered, 
or certified to provide the services with respect to a highway 
construction project subject to 23 U.S.C. 112(a) and as defined in 40 
U.S.C. 1102(2).
    Federal cost principles means the cost principles contained in 48 
CFR part 31 of the Federal Acquisition Regulation for determination of 
allowable costs of commercial, for-profit entities.
    Fixed fee means a sum expressed in U.S. dollars established to cover 
the consultant's profit and other business expenses not allowable or 
otherwise included as a direct or indirect cost.
    Management support role means performing engineering management 
services or other services acting on the contracting agency's behalf, 
which are subject to review and oversight by agency officials, such as a 
program or project administration role typically performed by the 
contracting agency and necessary to fulfill the duties imposed by title 
23 of the United States Code, other Federal and State laws, and 
applicable regulations.
    Noncompetitive means the method of procurement of engineering and 
design related services when it is not feasible to award the contract 
using competitive negotiation or small purchase procurement methods.
    One-year applicable accounting period means the annual accounting 
period for which financial statements are regularly prepared by the 
consultant.
    Scope of work means all services, work activities, and actions 
required of the consultant by the obligations of the contract.
    Small purchases means the method of procurement of engineering and 
design related services where an adequate number of qualified sources 
are reviewed and the total contract costs do not exceed an established 
simplified acquisition threshold.
    State transportation agency (STA) means that department or agency 
maintained in conformity with 23 U.S.C. 302 and charged under State law 
with the responsibility for highway construction (as defined in 23 
U.S.C. 101); and that is authorized by the laws of the State to make 
final decisions in all matters relating to, and to enter into, all 
contracts and agreements for projects and activities to fulfill the 
duties imposed by title 23 United States Code, title 23 Code of Federal 
Regulations, and other applicable Federal laws and regulations.
    Subconsultant means the individual or firm contracted by a 
consultant to provide engineering and design related or other types of 
services that are part of the services which the consultant is under 
contract to provide to a recipient (as defined in 23 CFR 200.86) or 
subrecipient (as defined in 2 CFR 200.93) of Federal assistance.



Sec.  172.5  Program management and oversight.

    (a) STA responsibilities. STAs or other recipients shall develop and 
sustain organizational capacity and provide the resources necessary for 
the procurement, management, and administration of engineering and 
design related consultant services, reimbursed in whole or in part with 
FAHP funding, as specified in 23 U.S.C. 302(a). Responsibilities shall 
include the following:
    (1) Preparing and maintaining written policies and procedures for 
the procurement, management, and administration of engineering and 
design related consultant services in accordance with paragraph (c) of 
this section;
    (2) Establishing a procedure for estimating the level of effort, 
schedule, and costs of needed consultant services and associated agency 
staffing and resources for management and oversight in support of 
project authorization requests submitted to FHWA for approval, as 
specified in 23 CFR 630.106;
    (3) Procuring, managing, and administering engineering and design 
related consultant services in accordance with applicable Federal and 
State laws, regulations, and approved policies and procedures, as 
specified in 23 CFR 1.9(a); and
    (4) Administering subawards in accordance with State laws and 
procedures as specified in 2 CFR part 1201, and the requirements of 23 
U.S.C. 106(g)(4), and 2 CFR 200.331. Administering subawards includes 
providing

[[Page 22]]

oversight of the procurement, management, and administration of 
engineering and design related consultant services by subrecipients to 
ensure compliance with applicable Federal and State laws and 
regulations. Nothing in this part shall be taken as relieving the STA 
(or other recipient) of its responsibility under laws and regulations 
applicable to the FAHP for the work performed under any consultant 
agreement or contract entered into by a subrecipient.
    (b) Subrecipient responsibilities. Subrecipients shall develop and 
sustain organizational capacity and provide the resources necessary for 
the procurement, management, and administration of engineering and 
design related consultant services, reimbursed in whole or in part with 
FAHP funding as specified in 23 U.S.C. 106(g)(4)(A). Responsibilities 
shall include the following:
    (1) Adopting written policies and procedures prescribed by the 
awarding STA or other recipient for the procurement, management, and 
administration of engineering and design related consultant services in 
accordance with applicable Federal and State laws and regulations; or 
when not prescribed, shall include:
    (i) Preparing and maintaining its own written policies and 
procedures in accordance with paragraph (c) of this section; or
    (ii) Submitting documentation associated with each procurement and 
subsequent contract to the awarding STA or other grantee for review to 
assess compliance with applicable Federal and State laws, regulations, 
and the requirements of this part;
    (2) Procuring, managing, and administering engineering and design 
related consultant services in accordance with applicable Federal and 
State laws, regulations, and approved policies and procedures, as 
specified in 23 CFR 1.9(a).
    (c) Written policies and procedures. The contracting agency shall 
prepare and maintain written policies and procedures for the 
procurement, management, and administration of engineering and design 
related consultant services. The FHWA shall approve the written policies 
and procedures, including all revisions to such policies and procedures, 
of the STA or recipient to assess compliance with applicable 
requirements. The STA or other recipient shall approve the written 
policies and procedures, including all revisions to such policies and 
procedures, of a subrecipient to assess compliance with applicable 
requirements. These policies and procedures shall address, as 
appropriate for each method of procurement a contracting agency proposes 
to use, the following items to ensure compliance with Federal and State 
laws, regulations, and the requirements of this part:
    (1) Preparing a scope of work and evaluation factors for the 
ranking/selection of a consultant;
    (2) Soliciting interests, qualifications, or proposals from 
prospective consultants;
    (3) Preventing, identifying, and mitigating conflicts of interest 
for employees of both the contracting agency and consultants and 
promptly disclosing in writing any potential conflict to the STA and 
FHWA, as specified in 2 CFR 200.112 and 23 CFR 1.33, and the 
requirements of this part.
    (4) Verifying suspension and debarment actions and eligibility of 
consultants, as specified in 2 CFR part 1200 and 2 CFR part 180;
    (5) Evaluating interests, qualifications, or proposals and the 
ranking/selection of a consultant;
    (6) Determining, based upon State procedures and the size and 
complexity of a project, the need for additional discussions following 
RFP submission and evaluation;
    (7) Preparing an independent agency estimate for use in negotiation 
with the selected consultant;
    (8) Selecting appropriate contract type, payment method, and terms 
and incorporating required contract provisions, assurances, and 
certifications in accordance with Sec.  172.9;
    (9) Negotiating a contract with the selected consultant including 
instructions for proper disposal of concealed cost proposals of 
unsuccessful bidders;
    (10) Establishing elements of contract costs, accepting indirect 
cost rate(s) for application to contracts, and assuring consultant 
compliance with

[[Page 23]]

the Federal cost principles in accordance with Sec.  172.11;
    (11) Ensuring consultant costs billed are allowable in accordance 
with the Federal cost principles and consistent with the contract terms 
as well as the acceptability and progress of the consultant's work;
    (12) Monitoring the consultant's work and compliance with the terms, 
conditions, and specifications of the contract;
    (13) Preparing a consultant's performance evaluation when services 
are completed and using such performance data in future evaluation and 
ranking of consultant to provide similar services;
    (14) Closing-out a contract;
    (15) Retaining supporting programmatic and contract records, as 
specified in 2 CFR 200.333 and the requirements of this part;
    (16) Determining the extent to which the consultant, which is 
responsible for the professional quality, technical accuracy, and 
coordination of services, may be reasonably liable for costs resulting 
from errors and omissions in the work furnished under its contract;
    (17) Assessing administrative, contractual, or legal remedies in 
instances where consultants violate or breach contract terms and 
conditions, and providing for such sanctions and penalties as may be 
appropriate; and
    (18) Resolving disputes in the procurement, management, and 
administration of engineering and design related consultant services.
    (d) A contracting agency may formally adopt, by statute or within 
approved written policies and procedures as specified in paragraph (c) 
of this section, any direct Federal Government or other contracting 
regulation, standard, or procedure provided its application does not 
conflict with the provisions of 23 U.S.C. 112, the requirements of this 
part, and other laws and regulations applicable to the FAHP.
    (e) Notwithstanding paragraph (d) of this section, a contracting 
agency shall have a reasonable period of time, not to exceed 12 months 
from the effective date of this rule unless an extension is granted for 
unique or extenuating circumstances, to issue or update current written 
policies and procedures for review and approval in accordance with 
paragraph (c) of this section and consistent with the requirements of 
this part.



Sec.  172.7  Procurement methods and procedures.

    (a) Procurement methods. The procurement of engineering and design 
related services funded by FAHP funds and related to a highway 
construction project subject to the provisions of 23 U.S.C. 112(a) shall 
be conducted in accordance with one of three methods: Competitive 
negotiation (qualifications-based selection) procurement, small 
purchases procurement for small dollar value contracts, and 
noncompetitive procurement where specific conditions exist allowing 
solicitation and negotiation to take place with a single consultant.
    (1) Competitive negotiation (qualifications-based selection). Except 
as provided in paragraphs (a)(2) and (3) of this section, contracting 
agencies shall use the competitive negotiation method for the 
procurement of engineering and design related services when FAHP funds 
are involved in the contract, as specified in 23 U.S.C. 112(b)(2)(A). 
The solicitation, evaluation, ranking, selection, and negotiation shall 
comply with the qualifications-based selection procurement procedures 
for architectural and engineering services codified under 40 U.S.C. 
1101-1104, commonly referred to as the Brooks Act. In accordance with 
the requirements of the Brooks Act, the following procedures shall apply 
to the competitive negotiation procurement method:
    (i) Solicitation. The solicitation process shall be by public 
announcement, public advertisement, or any other public forum or method 
that assures qualified in-State and out-of-State consultants are given a 
fair opportunity to be considered for award of the contract. Procurement 
procedures may involve a single step process with issuance of a request 
for proposal (RFP) to all interested consultants or a multiphase process 
with issuance of a request for statements or letters of interest or 
qualifications (RFQ) whereby responding consultants are ranked based on 
qualifications and a RFP is then provided to three or more of the

[[Page 24]]

most highly qualified consultants. Minimum qualifications of consultants 
to perform services under general work categories or areas of expertise 
may also be assessed through a prequalification process whereby annual 
statements of qualifications and performance data are encouraged. 
Regardless of any process utilized for prequalification of consultants 
or for an initial assessment of a consultant's qualifications under a 
RFQ, a RFP specific to the project, task, or service is required for 
evaluation of a consultant's specific technical approach and 
qualifications.
    (ii) Request for proposal (RFP). The RFP shall provide all 
information and requirements necessary for interested consultants to 
provide a response to the RFP and compete for the solicited services. 
The RFP shall:
    (A) Provide a clear, accurate, and detailed description of the scope 
of work, technical requirements, and qualifications of consultants 
necessary for the services to be rendered. To the extent practicable, 
the scope of work should detail the purpose and description of the 
project, services to be performed, deliverables to be provided, 
estimated schedule for performance of the work, and applicable 
standards, specifications, and policies;
    (B) Identify the requirements for any discussions that may be 
conducted with three or more of the most highly qualified consultants 
following submission and evaluation of proposals;
    (C) Identify evaluation factors including their relative weight of 
importance in accordance with paragraph (a)(1)(iii) of this section;
    (D) Specify the contract type and method(s) of payment anticipated 
to contract for the solicited services in accordance with Sec.  172.9;
    (E) Identify any special provisions or contract requirements 
associated with the solicited services;
    (F) Require that submission of any requested cost proposals or 
elements of cost be in a concealed format and separate from technical/
qualifications proposals, since these shall not be considered in the 
evaluation, ranking, and selection phase; and
    (G) Provide an estimated schedule for the procurement process and 
establish a submittal deadline for responses to the RFP that provides 
sufficient time for interested consultants to receive notice, prepare, 
and submit a proposal, which except in unusual circumstances shall be 
not less than 14 calendar days from the date of issuance of the RFP.
    (iii) Evaluation factors. (A) Criteria used for evaluation, ranking, 
and selection of consultants to perform engineering and design related 
services must assess the demonstrated competence and qualifications for 
the type of professional services solicited. These qualifications-based 
factors may include, but are not limited to, technical approach (e.g., 
project understanding, innovative concepts or alternatives, quality 
control procedures), work experience, specialized expertise, 
professional licensure, staff capabilities, workload capacity, and past 
performance.
    (B) Price shall not be used as a factor in the evaluation, ranking, 
and selection phase. All price or cost related items which include, but 
are not limited to, cost proposals, direct salaries/wage rates, indirect 
cost rates, and other direct costs are prohibited from being used as 
evaluation criteria.
    (C) In-State or local preference shall not be used as a factor in 
the evaluation, ranking, and selection phase. State licensing laws are 
not preempted by this provision and professional licensure within a 
jurisdiction may be established as a requirement for the minimum 
qualifications and competence of a consultant to perform the solicited 
services.
    (D) The following nonqualifications-based evaluation criteria are 
permitted under the specified conditions and provided the combined total 
of these criteria do not exceed a nominal value of 10 percent of the 
total evaluation criteria to maintain the integrity of a qualifications-
based selection:
    (1) A local presence may be used as a nominal evaluation factor 
where appropriate. This criteria shall not be based on political or 
jurisdictional boundaries and may be applied on a project-by-project 
basis for contracts where a need has been established for a consultant 
to provide a local presence, a local presence will add value to the 
quality

[[Page 25]]

and efficiency of the project, and application of this criteria leaves 
an appropriate number of qualified consultants, given the nature and 
size of the project. If a consultant from outside of the locality area 
indicates as part of a proposal that it will satisfy the criteria in 
some manner, such as establishing a local project office, that 
commitment shall be considered to have satisfied the local presence 
criteria.
    (2) The participation of qualified and certified Disadvantaged 
Business Enterprise (DBE) subconsultants may be used as a nominal 
evaluation criterion where appropriate in accordance with 49 CFR part 26 
and a contracting agency's FHWA-approved DBE program.
    (iv) Evaluation, ranking, and selection. (A) The contracting agency 
shall evaluate consultant proposals based on the criteria established 
and published within the public solicitation.
    (B) Although the contract will be with the consultant, proposal 
evaluations shall consider the qualifications of the consultant and any 
subconsultants identified within the proposal with respect to the scope 
of work and established criteria.
    (C) The contracting agency shall specify in the RFP discussion 
requirements that shall follow submission and evaluation of proposals 
and based on the size and complexity of the project or as defined in 
contracting agency written policies and procedures, as specified in 
Sec.  172.5(c). Discussions, as required by the RFP, may be written, by 
telephone, video conference, or by oral presentation/interview and shall 
be with at least three of the most highly qualified consultants to 
clarify the technical approach, qualifications, and capabilities 
provided in response to the RFP.
    (D) From the proposal evaluation and any subsequent discussions 
which may have been conducted, the contracting agency shall rank, in 
order of preference, at least three consultants determined most highly 
qualified to perform the solicited services based on the established and 
published criteria. In instances where only two qualified consultants 
respond to the solicitation, the contracting agency may proceed with 
evaluation and selection if it is determined that the solicitation did 
not contain conditions or requirements that arbitrarily limited 
competition. Alternatively, a contracting agency may pursue procurement 
following the noncompetitive method when competition is determined to be 
inadequate and it is determined to not be feasible or practical to re-
compete under a new solicitation as specified in paragraph 
(a)(3)(iii)(C) of this section.
    (E) Notification must be provided to responding consultants of the 
final ranking of the three most highly qualified consultants.
    (F) The contracting agency shall retain supporting documentation of 
the solicitation, proposal, evaluation, and selection of the consultant 
in accordance with this section and the provisions of 2 CFR 200.333.
    (v) Negotiation. (A) The process for negotiation of the contract 
shall comply with the requirements codified in 40 U.S.C. 1104(b) for the 
order of negotiation.
    (B) Independent estimate. Prior to receipt or review of the most 
highly qualified consultant's cost proposal, the contracting agency 
shall prepare a detailed independent estimate with an appropriate 
breakdown of the work or labor hours, types or classifications of labor 
required, other direct costs, and consultant's fixed fee for the defined 
scope of work. The independent estimate shall serve as the basis for 
negotiation.
    (C) The contracting agency shall establish elements of contract 
costs (e.g., indirect cost rates, direct salary or wage rates, fixed 
fee, and other direct costs) separately in accordance with Sec.  172.11. 
The use of the independent estimate and determination of cost allowance 
in accordance with Sec.  172.11 shall ensure contracts for the 
consultant services are obtained at a fair and reasonable cost, as 
specified in 40 U.S.C. 1104(a).
    (D) If concealed cost proposals were submitted in conjunction with 
technical/qualifications proposals, the contracting agency may consider 
only the cost proposal of the consultant with which negotiations are 
initiated. Due to the confidential nature of this data, as specified in 
23 U.S.C. 112(b)(2)(E), concealed cost proposals of unsuccessful 
consultants may be disposed of in

[[Page 26]]

accordance with written policies and procedures established under Sec.  
172.5(c).
    (E) The contracting agency shall retain documentation of negotiation 
activities and resources used in the analysis of costs to establish 
elements of the contract in accordance with the provisions of 2 CFR 
200.333. This documentation shall include the consultant cost 
certification and documentation supporting the acceptance of the 
indirect cost rate to be applied to the contract, as specified in Sec.  
172.11(c).
    (2) Small purchases. The contracting agency may use the State's 
small purchase procedures that reflect applicable State laws and 
regulations for the procurement of engineering and design related 
services provided the total contract costs do not exceed the Federal 
simplified acquisition threshold (as defined in 48 CFR 2.101). When a 
lower threshold for use of small purchase procedures is established in 
State law, regulation, or policy, the lower threshold shall apply to the 
use of FAHP funds. The following additional requirements shall apply to 
the small purchase procurement method:
    (i) The scope of work, project phases, and contract requirements 
shall not be broken down into smaller components merely to permit the 
use of small purchase procedures.
    (ii) A minimum of three consultants are required to satisfy the 
adequate number of qualified sources reviewed. In instances where only 
two qualified consultants respond to the solicitation, the contracting 
agency may proceed with evaluation and selection if it is determined 
that the solicitation did not contain conditions or requirements which 
arbitrarily limited competition. Alternatively, a contracting agency may 
pursue procurement following the noncompetitive method when competition 
is determined to be inadequate and it is determined to not be feasible 
or practical to re compete under a new solicitation as specified in 
Sec.  172.7(a)(3)(iii)(C).
    (iii) Contract costs may be negotiated in accordance with State 
small purchase procedures; however, the allowability of costs shall be 
determined in accordance with the Federal cost principles.
    (iv) The full amount of any contract modification or amendment that 
would cause the total contract amount to exceed the established 
simplified acquisition threshold is ineligible for Federal-aid funding. 
The FHWA may withdraw all Federal-aid from a contract if it is modified 
or amended above the applicable established simplified acquisition 
threshold.
    (3) Noncompetitive. The following requirements shall apply to the 
noncompetitive procurement method:
    (i) A contracting agency may use its own noncompetitive procedures 
that reflect applicable State and local laws and regulations and conform 
to applicable Federal requirements.
    (ii) A contracting agency shall establish a process to determine 
when noncompetitive procedures will be used and shall submit 
justification to, and receive approval from FHWA before using this form 
of contracting.
    (iii) A contracting agency may award a contract by noncompetitive 
procedures under the following limited circumstances:
    (A) The service is available only from a single source;
    (B) There is an emergency which will not permit the time necessary 
to conduct competitive negotiations; or
    (C) After solicitation of a number of sources, competition is 
determined to be inadequate.
    (iv) Contract costs may be negotiated in accordance with contracting 
agency noncompetitive procedures; however, the allowability of costs 
shall be determined in accordance with the Federal cost principles.
    (b) Additional procurement requirements--(1) Uniform administrative 
requirements, cost principles and audit requirements for Federal awards. 
(i) STAs or other recipients and their subrecipients shall comply with 
procurement requirements established in State and local laws, 
regulations, policies, and procedures that are not addressed by or are 
not in conflict with applicable Federal laws and regulations, as 
specified in 2 CFR part 1201.
    (ii) When State and local procurement laws, regulations, policies, 
or procedures are in conflict with applicable Federal laws and 
regulations, a contracting agency shall comply with

[[Page 27]]

Federal requirements to be eligible for Federal-aid reimbursement of the 
associated costs of the services incurred following FHWA authorization, 
as specified in 2 CFR 200.102(c).
    (2) Disadvantaged Business Enterprise (DBE) program. (i) A 
contracting agency shall give consideration to DBE consultants in the 
procurement of engineering and design related service contracts subject 
to 23 U.S.C. 112(b)(2) in accordance with 49 CFR part 26. When DBE 
program participation goals cannot be met through race-neutral measures, 
additional DBE participation on engineering and design related services 
contracts may be achieved in accordance with a contracting agency's FHWA 
approved DBE program through either:
    (A) Use of an evaluation criterion in the qualifications-based 
selection of consultants, as specified in Sec.  172.7(a)(1)(iii)(D); or
    (B) Establishment of a contract participation goal.
    (ii) The use of quotas or exclusive set-asides for DBE consultants 
is prohibited, as specified in 49 CFR 26.43.
    (3) Suspension and debarment. A contracting agency shall verify 
suspension and debarment actions and eligibility status of consultants 
and subconsultants prior to entering into an agreement or contract in 
accordance with 2 CFR part 1200 and 2 CFR part 180.
    (4) Conflicts of interest. (i) A contracting agency shall maintain a 
written code of standards of conduct governing the performance of their 
employees engaged in the award and administration of engineering and 
design related services contracts under this part and governing the 
conduct and roles of consultants in the performance of services under 
such contracts to prevent, identify, and mitigate conflicts of interest 
in accordance with 2 CFR 200.112, 23 CFR 1.33 and the provisions of this 
paragraph (b)(4).
    (ii) No employee, officer, or agent of the contracting agency shall 
participate in selection, or in the award or administration of a 
contract supported by Federal-aid funds if a conflict of interest, real 
or apparent, would be involved. Such a conflict arises when there is a 
financial or other interest in the consultant selected for award by:
    (A) The employee, officer, or agent;
    (B) Any member of his or her immediate family;
    (C) His or her partner; or
    (D) An organization that employs or is about to employ any of the 
above.
    (iii) The contracting agency's officers, employees, or agents shall 
neither solicit nor accept gratuities, favors, or anything of monetary 
value from consultants, potential consultants, or parties to 
subagreements. A contracting agency may establish dollar thresholds 
where the financial interest is not substantial or the gift is an 
unsolicited item of nominal value.
    (iv) A contracting agency may provide additional prohibitions 
relative to real, apparent, or potential conflicts of interest.
    (v) To the extent permitted by State or local law or regulations, 
the standards of conduct required by this paragraph shall provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the contracting agency's officers, employees, or 
agents, or by consultants or their agents.
    (vi) A contracting agency shall promptly disclose in writing any 
potential conflict of interest to FHWA.
    (5) Consultant services in management support roles. (i) When FAHP 
funds participate in a consultant services contract, the contracting 
agency shall receive approval from FHWA, or the recipient as 
appropriate, before utilizing a consultant to act in a management 
support role for the contracting agency; unless an alternate approval 
procedure has been approved. Use of consultants in management support 
roles does not relieve the contracting agency of responsibilities 
associated with the use of FAHP funds, as specified in 23 U.S.C. 302(a) 
and 23 U.S.C. 106(g)(4) and should be limited to large projects or 
circumstances where unusual cost or time constraints exist, unique 
technical or managerial expertise is required, and/or an increase in 
contracting agency staff is not a viable option.
    (ii) Management support roles may include, but are not limited to, 
providing oversight of an element of a highway program, function, or 
service on behalf of the contracting agency or may involve managing or 
providing

[[Page 28]]

oversight of a project, series of projects, or the work of other 
consultants and contractors on behalf of the contracting agency. 
Contracting agency written policies and procedures as specified in Sec.  
172.5(c) may further define allowable management roles and services a 
consultant may provide, specific approval responsibilities, and 
associated controls necessary to ensure compliance with Federal 
requirements.
    (iii) Use of consultants or subconsultants in management support 
roles requires appropriate conflicts of interest standards as specified 
in paragraph (b)(4) of this section and adequate contracting agency 
staffing to administer and monitor the management consultant contract, 
as specified in Sec.  172.9(d). A consultant serving in a management 
support role may be precluded from providing additional services on 
projects, activities, or contracts under its oversight due to potential 
conflicts of interest.
    (iv) FAHP funds shall not participate in the costs of a consultant 
serving in a management support role where the consultant was not 
procured in accordance with Federal and State requirements, as specified 
in 23 CFR 1.9(a).
    (v) Where benefiting more than a single Federal-aid project, 
allocability of consultant contract costs for services related to a 
management support role shall be distributed consistent with the cost 
principles applicable to the contracting agency, as specified in 2 CFR 
part 200, subpart E--Cost Principles.



Sec.  172.9  Contracts and administration.

    (a) Contract types. The contracting agency shall use the following 
types of contracts:
    (1) Project-specific. A contract between the contracting agency and 
consultant for the performance of services and defined scope of work 
related to a specific project or projects.
    (2) Multiphase. A project-specific contract where the solicited 
services are divided into phases whereby the specific scope of work and 
associated costs may be negotiated and authorized by phase as the 
project progresses.
    (3) On-call or indefinite delivery/indefinite quantity (IDIQ). A 
contract for the performance of services for a number of projects, under 
task or work orders issued on an as-needed or on-call basis, for an 
established contract period. The procurement of services to be performed 
under on-call or IDIQ contracts shall follow either competitive 
negotiation or small purchase procurement procedures, as specified in 
Sec.  172.7. The solicitation and contract provisions shall address the 
following requirements:
    (i) Specify a reasonable maximum length of contract period, 
including the number and period of any allowable contract extensions, 
which shall not exceed 5 years;
    (ii) Specify a maximum total contract dollar amount that may be 
awarded under a contract;
    (iii) Include a statement of work, requirements, specifications, or 
other description to define the general scope, complexity, and 
professional nature of the services; and
    (iv) If multiple consultants are to be selected and multiple on-call 
or IDIQ contracts awarded through a single solicitation for specific 
services:
    (A) Identify the number of consultants that may be selected or 
contracts that may be awarded from the solicitation; and
    (B) Specify the procedures the contracting agency will use in 
competing and awarding task or work orders among the selected, qualified 
consultants. Task or work orders shall not be competed and awarded among 
the selected, qualified consultants on the basis of costs under on-call 
or IDIQ contracts for services procured with competitive negotiation 
procedures. Under competitive negotiation procurement, each specific 
task or work order shall be awarded to the selected, qualified 
consultants:
    (1) Through an additional qualifications-based selection procedure, 
which may include, but does not require, a formal RFP in accordance with 
Sec.  172.5(a)(1)(ii); or
    (2) On a regional basis whereby the State is divided into regions 
and consultants are selected to provide on-call or IDIQ services for an 
assigned region(s) identified within the solicitation.
    (b) Payment methods. (1) The method of payment to the consultant 
shall be set forth in the original solicitation,

[[Page 29]]

contract, and in any contract modification thereto. The methods of 
payment shall be: Lump sum, cost plus fixed fee, cost per unit of work, 
or specific rates of compensation. A single contract may contain 
different payment methods as appropriate for compensation of different 
elements of work.
    (2) The cost plus a percentage of cost and percentage of 
construction cost methods of payment shall not be used.
    (3) The lump sum payment method shall only be used when the 
contracting agency has established the extent, scope, complexity, 
character, and duration of the work to be required to a degree that fair 
and reasonable compensation, including a fixed fee, can be determined at 
the time of negotiation.
    (4) When the method of payment is other than lump sum, the contract 
shall specify a maximum amount payable which shall not be exceeded 
unless adjusted by a contract modification.
    (5) The specific rates of compensation payment method provides for 
reimbursement on the basis of direct labor hours at specified fixed 
hourly rates, including direct labor costs, indirect costs, and fee or 
profit, plus any other direct expenses or costs, subject to an agreement 
maximum amount. This payment method shall only be used when it is not 
possible at the time of procurement to estimate the extent or duration 
of the work or to estimate costs with any reasonable degree of accuracy. 
This specific rates of compensation payment method should be limited to 
contracts or components of contracts for specialized or support type 
services where the consultant is not in direct control of the number of 
hours worked, such as construction engineering and inspection. When 
using this payment method, the contracting agency shall manage and 
monitor the consultant's level of effort and classification of employees 
used to perform the contracted services.
    (6) A contracting agency may withhold retainage from payments in 
accordance with prompt pay requirements, as specified in 49 CFR 26.29. 
When retainage is used, the terms and conditions of the contract shall 
clearly define agency requirements, including periodic reduction in 
retention and the conditions for release of retention.
    (c) Contract provisions. (1) All contracts and subcontracts shall 
include the following provisions, either by reference or by physical 
incorporation into the language of each contract or subcontract, as 
applicable:
    (i) Administrative, contractual, or legal remedies in instances 
where consultants violate or breach contract terms and conditions, and 
provide for such sanctions and penalties as may be appropriate;
    (ii) Notice of contracting agency requirements and regulations 
pertaining to reporting;
    (iii) Contracting agency requirements and regulations pertaining to 
copyrights and rights in data;
    (iv) Access by recipient, the subrecipient, FHWA, the U.S. 
Department of Transportation's Inspector General, the Comptroller 
General of the United States, or any of their duly authorized 
representatives to any books, documents, papers, and records of the 
consultant which are directly pertinent to that specific contract for 
the purpose of making audit, examination, excerpts, and transcriptions;
    (v) Retention of all required records for not less than 3 years 
after the contracting agency makes final payment and all other pending 
matters are closed;
    (vi) Standard DOT Title VI Assurances (DOT Order 1050.2);
    (vii) Disadvantaged Business Enterprise (DBE) assurance, as 
specified in 49 CFR 26.13(b);
    (viii) Prompt pay requirements, as specified in 49 CFR 26.29;
    (ix) Determination of allowable costs in accordance with the Federal 
cost principles;
    (x) Contracting agency requirements pertaining to consultant errors 
and omissions;
    (xi) Contracting agency requirements pertaining to conflicts of 
interest, as specified in 23 CFR 1.33 and the requirements of this part; 
and
    (xii) A provision for termination for cause and termination for 
convenience by the contracting agency including the manner by which it 
will be effected and the basis for settlement.
    (2) All contracts and subcontracts exceeding $100,000 shall contain, 
either by reference or by physical incorporation

[[Page 30]]

into the language of each contract, a provision for lobbying 
certification and disclosure, as specified in 49 CFR part 20.
    (d) Contract administration and monitoring--(1) Responsible charge. 
A full-time, public employee of the contracting agency qualified to 
ensure that the work delivered under contract is complete, accurate, and 
consistent with the terms, conditions, and specifications of the 
contract shall be in responsible charge of each contract or project. 
While an independent consultant may be procured to serve in a program or 
project management support role, as specified in Sec.  172.7(b)(5), or 
to provide technical assistance in review and acceptance of engineering 
and design related services performed and products developed by other 
consultants, the contracting agency shall designate a public employee as 
being in responsible charge. A public employee may serve in responsible 
charge of multiple projects and contracting agencies may use multiple 
public employees to fulfill monitoring responsibilities. The term 
responsible charge is intended to be applied only in the context defined 
within this regulation. It may or may not correspond to its usage in 
State laws regulating the licensure and/or conduct of professional 
engineers. The public employee's responsibilities shall include:
    (i) Administering inherently governmental activities including, but 
not limited to, contract negotiation, contract payment, and evaluation 
of compliance, performance, and quality of services provided by 
consultant;
    (ii) Being familiar with the contract requirements, scope of 
services to be performed, and products to be produced by the consultant;
    (iii) Being familiar with the qualifications and responsibilities of 
the consultant's staff and evaluating any requested changes in key 
personnel;
    (iv) Scheduling and attending progress and project review meetings, 
commensurate with the magnitude, complexity, and type of work, to ensure 
the work is progressing in accordance with established scope of work and 
schedule milestones;
    (v) Ensuring consultant costs billed are allowable in accordance 
with the Federal cost principles and consistent with the contract terms 
as well as the acceptability and progress of the consultant's work;
    (vi) Evaluating and participating in decisions for contract 
modifications; and
    (vii) Documenting contract monitoring activities and maintaining 
supporting contract records, as specified in 2 CFR 200.333.
    (2) Performance evaluation. The contracting agency shall prepare an 
evaluation summarizing the consultant's performance on a contract. The 
performance evaluation should include, but not be limited to, an 
assessment of the timely completion of work, adherence to contract scope 
and budget, and quality of the work conducted. The contracting agency 
shall provide the consultant a copy of the performance evaluation and an 
opportunity to provide written comments to be attached to the 
evaluation. The contracting agency should prepare additional interim 
performance evaluations based on the scope, complexity, and size of the 
contract as a means to provide feedback, foster communication, and 
achieve desired changes or improvements. Completed performance 
evaluations should be archived for consideration as an element of past 
performance in the future evaluation of the consultant to provide 
similar services.
    (e) Contract modification. (1) Contract modifications are required 
for any amendments to the terms of the existing contract that change the 
cost of the contract; significantly change the character, scope, 
complexity, or duration of the work; or significantly change the 
conditions under which the work is required to be performed.
    (2) A contract modification shall clearly define and document the 
changes made to the contract, establish the method of payment for any 
adjustments in contract costs, and be in compliance with the terms and 
conditions of the contract and original procurement.
    (3) A contracting agency shall negotiate contract modifications 
following the same procedures as the negotiation of the original 
contract.
    (4) A contracting agency may add to a contract only the type of 
services and

[[Page 31]]

work included within the scope of services of the original solicitation 
from which a qualifications-based selection was made.
    (5) For any additional engineering and design related services 
outside of the scope of work established in the original request for 
proposal, a contracting agency shall:
    (i) Procure the services under a new solicitation;
    (ii) Perform the work itself using contracting agency staff; or
    (iii) Use a different, existing contract under which the services 
would be within the scope of work.
    (6) Overruns in the costs of the work shall not automatically 
warrant an increase in the fixed fee portion of a cost plus fixed fee 
reimbursed contract. Permitted changes to the scope of work or duration 
may warrant consideration for adjustment of the fixed fee portion of 
cost plus fixed fee or lump sum reimbursed contracts.



Sec.  172.11  Allowable costs and oversight.

    (a) Allowable costs. (1) Costs or prices based on estimated costs 
for contracts shall be eligible for Federal-aid reimbursement only to 
the extent that costs incurred or cost estimates included in negotiated 
prices are allowable in accordance with the Federal cost principles.
    (2) Consultants shall be responsible for accounting for costs 
appropriately and for maintaining records, including supporting 
documentation, adequate to demonstrate that costs claimed have been 
incurred, are allocable to the contract, and comply with Federal cost 
principles.
    (b) Elements of contract costs. The following requirements shall 
apply to the establishment of the specified elements of contract costs:
    (1) Indirect cost rates. (i) Indirect cost rates shall be updated on 
an annual basis in accordance with the consultant's annual accounting 
period and in compliance with the Federal cost principles.
    (ii) Contracting agencies shall accept a consultant's or 
subconsultant's indirect cost rate(s) established for a 1-year 
applicable accounting period by a cognizant agency that has:
    (A) Performed an audit in accordance with generally accepted 
government auditing standards to test compliance with the requirements 
of the Federal cost principles and issued an audit report of the 
consultant's indirect cost rate(s); or
    (B) Conducted a review of an audit report and related workpapers 
prepared by a certified public accountant and issued a letter of 
concurrence with the related audited indirect cost rate(s).
    (iii) When the indirect cost rate has not been established by a 
cognizant agency in accordance with paragraph (b)(1)(ii) of this 
section, a STA or other recipient shall perform an evaluation of a 
consultant's or subconsultant's indirect cost rate prior to acceptance 
and application of the rate to contracts administered by the recipient 
or its subrecipients. The evaluation performed by STAs or other 
recipients to establish or accept an indirect cost rate shall provide 
assurance of compliance with the Federal cost principles and may consist 
of one or more of the following:
    (A) Performing an audit in accordance with generally accepted 
government auditing standards and issuing an audit report;
    (B) Reviewing and accepting an audit report and related workpapers 
prepared by a certified public accountant or another STA;
    (C) Establishing a provisional indirect cost rate for the specific 
contract and adjusting contract costs based upon an audited final rate 
at the completion of the contract; or
    (D) Conducting other evaluations in accordance with a risk-based 
oversight process as specified in paragraph (c)(2) of this section and 
within the agency's approved written policies and procedures, as 
specified in Sec.  172.5(c).
    (iv) A lower indirect cost rate may be accepted for use on a 
contract if submitted voluntarily by a consultant; however, the 
consultant's offer of a lower indirect cost rate shall not be a 
condition or qualification to be considered for the work or contract 
award.
    (v) Once accepted in accordance with paragraphs (b)(1)(ii) through 
(iv) of this section, contracting agencies shall apply such indirect 
cost rate for the

[[Page 32]]

purposes of contract estimation, negotiation, administration, reporting, 
and contract payment and the indirect cost rate shall not be limited by 
administrative or de facto ceilings of any kind.
    (vi) A consultant's accepted indirect cost rate for its 1-year 
applicable accounting period shall be applied to contracts; however, 
once an indirect cost rate is established for a contract, it may be 
extended beyond the 1-year applicable period, through the duration of 
the specific contract, provided all concerned parties agree. Agreement 
to the extension of the 1-year applicable period shall not be a 
condition or qualification to be considered for the work or contract 
award.
    (vii) Disputed rates. If an indirect cost rate established by a 
cognizant agency in paragraph (b)(1)(ii) of this section is in dispute, 
the contracting agency does not have to accept the rate. A contracting 
agency may perform its own audit or other evaluation of the consultant's 
indirect cost rate for application to the specific contract, until or 
unless the dispute is resolved. A contracting agency may alternatively 
negotiate a provisional indirect cost rate for the specific contract and 
adjust contract costs based upon an audited final rate. Only the 
consultant and the parties involved in performing the indirect cost 
audit may dispute the established indirect cost rate. If an error is 
discovered in the established indirect cost rate, the rate may be 
disputed by any prospective contracting agency.
    (2) Direct salary or wage rates. (i) Compensation for each employee 
or classification of employee must be reasonable for the work performed 
in accordance with the Federal cost principles.
    (ii) To provide for fair and reasonable compensation, considering 
the classification, experience, and responsibility of employees 
necessary to provide the desired engineering and design related 
services, contracting agencies may establish consultant direct salary or 
wage rate limitations or ``benchmarks'' based upon an objective 
assessment of the reasonableness of proposed rates performed in 
accordance with the reasonableness provisions of the Federal cost 
principles.
    (iii) When an assessment of reasonableness in accordance with the 
Federal cost principles has not been performed, contracting agencies 
shall use and apply the consultant's actual direct salary or wage rates 
for estimation, negotiation, administration, and payment of contracts 
and contract modifications.
    (3) Fixed fee. (i) The determination of the amount of fixed fee 
shall consider the scope, complexity, contract duration, degree of risk 
borne by the consultant, amount of subcontracting, and professional 
nature of the services as well as the size and type of contract.
    (ii) The establishment of fixed fee shall be contract or task order 
specific.
    (iii) Fixed fees in excess of 15 percent of the total direct labor 
and indirect costs of the contract may be justified only when 
exceptional circumstances exist.
    (4) Other direct costs. A contracting agency shall use the Federal 
cost principles in determining the reasonableness, allowability, and 
allocability of other direct contract costs.
    (c) Oversight--(1) Agency controls. Contracting agencies shall 
provide reasonable assurance that consultant costs on contracts 
reimbursed in whole or in part with FAHP funding are allowable in 
accordance with the Federal cost principles and consistent with the 
contract terms considering the contract type and payment method. 
Contracting agency written policies, procedures, contract documents, and 
other controls, as specified in Sec. Sec.  172.5(c) and 172.9 shall 
address the establishment, acceptance, and administration of contract 
costs to assure compliance with the Federal cost principles and 
requirements of this section.
    (2) Risk-based analysis. The STAs or other recipient may employ a 
risk-based oversight process to provide reasonable assurance of 
consultant compliance with Federal cost principles on FAHP funded 
contracts administered by the recipient or its subrecipients. If 
employed, this risk-based oversight process shall be incorporated into 
STA or other recipient written policies and procedures, as specified in 
Sec.  172.5(c). In addition to ensuring allowability of direct contract 
costs, the risk-based oversight process shall address the evaluation and 
acceptance of consultant and subconsultant indirect cost

[[Page 33]]

rates for application to contracts. A risk-based oversight process shall 
consist of the following:
    (i) Risk assessments. Conducting and documenting an annual 
assessment of risks of noncompliance with the Federal cost principles 
per consultant doing business with the agency, considering the following 
factors:
    (A) Consultant's contract volume within the State;
    (B) Number of States in which the consultant operates;
    (C) Experience of consultant with FAHP contracts;
    (D) History and professional reputation of consultant;
    (E) Audit history of consultant;
    (F) Type and complexity of consultant accounting system;
    (G) Size (number of employees or annual revenues) of consultant;
    (H) Relevant experience of certified public accountant performing 
audit of consultant;
    (I) Assessment of consultant's internal controls;
    (J) Changes in consultant organizational structure; and
    (K) Other factors as appropriate.
    (ii) Risk mitigation and evaluation procedures. Allocating 
resources, as considered necessary based on the results of the annual 
risk assessment, to provide reasonable assurance of compliance with the 
Federal cost principles through application of the following types of 
risk mitigation and evaluation procedures appropriate to the consultant 
and circumstances:
    (A) Audits performed in accordance with generally accepted 
government audit standards to test compliance with the requirements of 
the Federal cost principles;
    (B) Certified public accountant or other STA workpaper reviews;
    (C) Other analytical procedures;
    (D) Consultant cost certifications in accordance with paragraph 
(c)(3) of this section; and
    (E) Consultant and certified public accountant training on the 
Federal cost principles.
    (iii) Documentation. Maintaining supporting documentation of the 
risk-based analysis procedures performed to support the allowability and 
acceptance of consultant costs on FAHP funded contracts.
    (3) Consultant cost certification. (i) Indirect cost rate proposals 
for the consultant's 1-year applicable accounting period shall not be 
accepted and no agreement shall be made by a contracting agency to 
establish final indirect cost rates, unless the costs have been 
certified by an official of the consultant as being allowable in 
accordance with the Federal cost principles. The certification 
requirement shall apply to all indirect cost rate proposals submitted by 
consultants and subconsultants for acceptance by a STA or other 
recipient. Each consultant or subconsultant is responsible for 
certification of its own indirect cost rate and may not certify the rate 
of another firm.
    (ii) The certifying official shall be an individual executive or 
financial officer of the consultant's organization at a level no lower 
than a Vice President or Chief Financial Officer, or equivalent, who has 
the authority to represent the financial information utilized to 
establish the indirect cost rate proposal submitted for acceptance.
    (iii) The certification of final indirect costs shall read as 
follows:

                   Certificate of Final Indirect Costs

    This is to certify that I have reviewed this proposal to establish 
final indirect cost rates and to the best of my knowledge and belief:
    1. All costs included in this proposal (identify proposal and date) 
to establish final indirect cost rates for (identify period covered by 
rate) are allowable in accordance with the cost principles of the 
Federal Acquisition Regulation (FAR) of title 48, Code of Federal 
Regulations (CFR), part 31; and
    2. This proposal does not include any costs which are expressly 
unallowable under applicable cost principles of the FAR of 48 CFR part 
31.

Firm:___________________________________________________________________

Signature:______________________________________________________________

Name of Certifying Official:____________________________________________

Title:__________________________________________________________________

Date of Execution:______________________________________________________

    (4) Sanctions and penalties. Contracting agency written policies, 
procedures, and contract documents, as specified in Sec. Sec.  172.5(c) 
and 172.9(c), shall address the range of administrative, contractual, or 
legal remedies that may be assessed in accordance with

[[Page 34]]

Federal and State laws and regulations where consultants violate or 
breach contract terms and conditions. Where consultants knowingly charge 
unallowable costs to a FAHP funded contract:
    (i) Contracting agencies shall pursue administrative, contractual, 
or legal remedies and provide for such sanctions and penalties as may be 
appropriate; and
    (ii) Consultants are subject to suspension and debarment actions as 
specified in 2 CFR part 1200 and 2 CFR part 180, potential cause of 
action under the False Claims Act as specified in 32 U.S.C. 3729-3733, 
and prosecution for making a false statement as specified in 18 U.S.C. 
1020.
    (d) Prenotification; confidentiality of data. FHWA, recipients, and 
subrecipients of FAHP funds may share audit information in complying 
with the recipient's or subrecipient's acceptance of a consultant's 
indirect cost rates pursuant to 23 U.S.C. 112 and this part provided 
that the consultant is given notice of each use and transfer. Audit 
information shall not be provided to other consultants or any other 
government agency not sharing the cost data, or to any firm or 
government agency for purposes other than complying with the recipient's 
or subrecipient's acceptance of a consultant's indirect cost rates 
pursuant to 23 U.S.C. 112 and this part without the written permission 
of the affected consultants. If prohibited by law, such cost and rate 
data shall not be disclosed under any circumstance; however, should a 
release be required by law or court order, such release shall make note 
of the confidential nature of the data.



PART 180_CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS--
Table of Contents



    Authority: Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241, 
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48.

    Source: 64 FR 29750, June 2, 1999, unless otherwise noted.



Sec.  180.1  Cross-reference to credit assistance.

    The regulations in 49 CFR part 80 shall be followed in complying 
with the requirements of this part. Title 49 CFR part 80 implements the 
Transportation Infrastructure Finance and Innovation Act of 1998, secs. 
1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241.



PART 190_INCENTIVE PAYMENTS FOR CONTROLLING OUTDOOR ADVERTISING 
ON THE INTERSTATE SYSTEM--Table of Contents



Sec.
190.1 Purpose.
190.3 Agreement to control advertising.
190.5 Bonus project claims.
190.7 Processing of claims.

    Authority: 23 U.S.C. 131(j) and 315; 49 CFR 1.48(b).

    Source: 43 FR 42742, Sept. 21, 1978, unless otherwise noted.



Sec.  190.1  Purpose.

    The purpose of this regulation is to prescribe project procedures 
for making the incentive payments authorized by 23 U.S.C. 131(j).



Sec.  190.3  Agreement to control advertising.

    To qualify for the bonus payment, a State must have entered into an 
agreement with the Secretary to control outdoor advertising. It must 
fulfill, and must continue to fulfill its obligations under such 
agreement consistent with 23 CFR 750.101.



Sec.  190.5  Bonus project claims.

    (a) The State may claim payment by submitting a form PR-20 voucher, 
supported by strip maps which identify advertising control limits and 
areas excluded from the claim and form FHWA-1175, for the one-half 
percent bonus claim.
    (b) The bonus payment computation is based on projects or portions 
thereof for which (1) the section of highway on which the project is 
located has been opened to traffic, and (2) final payment has been made. 
A bonus project may cover an individual project, a part thereof, or a 
combination of projects, on a section of an Interstate route.
    (c) The eligible system mileage to be shown for a bonus project is 
that on

[[Page 35]]

which advertising controls are in effect. The eligible system mileage 
reported in subsequent projects on the same Interstate route section 
should cover only the additional system mileage not previously reported. 
Eligible project cost is the total participating cost (State and Federal 
share of approved preliminary engineering (PE), right-of-way (R-O-W), 
and construction) exclusive of any ineligible costs. The amount of the 
bonus payment is to be based on the eligible total costs of the 
supporting projects included in each claim.
    (d) Progress vouchers for route sections on which additional one-
half percent bonus payments are to be claimed are to be so identified, 
and the final claim for each route section is to be identified as the 
final voucher.



Sec.  190.7  Processing of claims.

    Audited and approved PR-20 vouchers with form FHWA-1175 shall be 
forwarded to the regional office for submission to the Finance Division, 
Washington Headquarters, for payment. The associated strip maps shall be 
retained with the division office copies of the PR-20 vouchers.



PART 192_DRUG OFFENDER'S DRIVER'S LICENSE SUSPENSION--Table of Contents



Sec.
192.1 Scope.
192.2 Purpose.
192.3 Definitions.
192.4 Adoption of drug offender's driver's license suspension.
192.5 Certification requirements.
192.6 Period of availability of withheld funds.
192.7 Apportionment of withheld funds after compliance.
192.8 Period of availability of subsequently apportioned funds.
192.9 Effect of noncompliance.
192.10 Procedures affecting States in noncompliance.

    Authority: 23 U.S.C. 159 and 315.

    Source: 57 FR 35999, Aug. 12, 1992, unless otherwise noted. 
Redesignated at 60 FR 50100, Sept. 28, 1995.



Sec.  192.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. Sec.  159, which encourages States to enact and enforce drug 
offender's driver's license suspensions.



Sec.  192.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take in order to avoid the withholding of Federal-aid highway funds for 
noncompliance with 23 U.S.C. 159.



Sec.  192.3  Definitions.

    As used in this part:
    (a) Convicted includes adjudicated under juvenile proceedings.
    (b) Driver's license means a license issued by a State to any 
individual that authorizes the individual to operate a motor vehicle on 
highways.
    (c) Drug offense means:
    (1) The possession, distribution, manufacture, cultivation, sale, 
transfer, or the attempt or conspiracy to possess, distribute, 
manufacture, cultivate, sell, or transfer any substance the possession 
of which is prohibited under the Controlled Substances Act, or
    (2) The operation of a motor vehicle under the influence of such a 
substance.
    (d) Substance the possession of which is prohibited under the 
Controlled Substances Act or substance means a controlled or counterfeit 
chemical, as those terms are defined in subsections 102 (6) and (7) of 
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 
U.S.C. 802 (6) and (7) and listed in 21 CFR 1308.11-.15.

[57 FR 35999, Aug. 12, 1992; 58 FR 62415, Nov. 26, 1993; 59 FR 39256, 
Aug. 2, 1994]



Sec.  192.4  Adoption of drug offender's driver's license suspension.

    (a) The Secretary shall withhold five percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1), 
104(b)(3), and 104(b)(5) of title 23 of the United States Code on the 
first day of fiscal years 1994 and 1995 if the States does not meet the 
requirements of this section on that date.
    (b) The Secretary shall withhold ten percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1), 
104(b)(3), and 104(b)(5) of title 23 of the United States Code on the 
first day of fiscal year 1996 and any subsequent fiscal year if the 
State does

[[Page 36]]

not meet the requirements of this section on that date.
    (c) A State meets the requirements of this section if:
    (1) The State has enacted and is enforcing a law that requires in 
all circumstances, or requires in the absence of compelling 
circumstances warranting an exception:
    (i) The revocation, or suspension for at least 6 months, of the 
driver's license of any individual who is convicted, after the enactment 
of such law, of
    (A) Any violation of the Controlled Substances Act, or
    (B) Any drug offense, and
    (ii) A delay in the issuance or reinstatement of a driver's license 
to such an individual for at least 6 months after the individual 
otherwise would have been eligible to have a driver's license issued or 
reinstated if the individual does not have a driver's license, or the 
driver's license of the individual is suspended, at the time the 
individual is so convicted, or
    (2) The Governor of the State:
    (i) Submits to the Secretary no earlier than the adjournment sine 
die of the first regularly scheduled session of the State's legislature 
which begins after November 5, 1990, a written certification stating 
that he or she is opposed to the enactment or enforcement in the State 
of a law described in paragraph (c)(1) of this section relating to the 
revocation, suspension, issuance, or reinstatement of driver's licenses 
to convicted drug offenders; and
    (ii) Submits to the Secretary a written certification that the 
legislature (including both Houses where applicable) has adopted a 
resolution expressing its opposition to a law described in paragraph 
(c)(1) of this section.
    (d) A State that makes exceptions for compelling circumstances must 
do so in accordance with a State law, regulation, binding policy 
directive or Statewide published guidelines establishing the conditions 
for making such exceptions and in exceptional circumstances specific to 
the offender.



Sec.  192.5  Certification requirements.

    (a) Each State shall certify to the Secretary of Transportation by 
April 1, 1993 and by January 1 of each subsequent year that it meets the 
requirements of 23 U.S.C. 159 and this regulation.
    (b) If the State believes it meets the requirements of 23 U.S.C. 159 
and this regulation on the basis that it has enacted and is enforcing a 
law that suspends or revokes the driver's license of drug offenders, the 
certification shall contain:
    (1) A statement by the Governor of the State that the State has 
enacted and is enforcing a Drug Offender's Driver's License Suspension 
law that conforms to 23 U.S.C. 159(a)(3)(A). The certifying statement 
may be worded as follows: I, (Name of Governor), Governor of the (State 
or Commonwealth) of ______, do hereby certify that the (State or 
Commonwealth) of ______, has enacted is enforcing a Drug Offender's 
Driver's License Suspension law that conforms to section 23 U.S. C. 
159(a)(3)(A).
    (2) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 159 and this regulation, the certification 
shall include also:
    (i) A copy of the State law, regulation, or binding policy directive 
implementing or interpreting such law or regulation relating to the 
suspension, revocation, issuance or reinstatement or driver's licenses 
of drug offenders, and
    (ii) A statement describing the steps the State is taking to enforce 
its law with regard to within State convictions, out-of-State 
convictions, Federal convictions and juvenile adjudications. The 
statement shall demonstrate that, upon receiving notification that a 
State driver has been convicted of a within State, out-of-State or 
Federal conviction or juvenile adjudication, the State is revoking, 
suspending or delaying the issuance of that drug offender's driver's 
license; and that, when the State convicts an individual of a drug 
offense, it is notifying the appropriate State office or, if the 
offender is a non-resident driver, the appropriate office in the 
driver's home State. If the State is not yet making these notifications, 
the State may satisfy this element by submitting a plan describing the 
steps it is taking to establish notification procedures.

[[Page 37]]

    (c) If the State believes it meets the requirements of 23 U.S.C. 
159(a)(3)(B) on the basis that it opposes a law that requires the 
suspension, revocation or delay in issuance or reinstatement of the 
driver's license of drug offenders that conforms to 23 U.S.C. 
159(a)(3)(A), the certification shall contain:
    (1) A statement by the Governor of the State that he or she is 
opposed to the enactment or enforcement of a law that conforms to 23 
U.S.C. 159(a)(3)(A) and that the State legislature has adopted a 
resolution expressing its opposition to such a law. The certifying 
statement may be worded as follows: I, (Name of Governor), Governor of 
the (State or Commonwealth of ______, do hereby certify that I am 
opposed to the enactment or enforcement of a law that conforms to 23 
U.S.C. 159(a)(3)(A) and that the legislature of the (State or 
Commonwealth) of ______, has adopted a resolution expressing its 
opposition to such a law.
    (2) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 159(a)(3)(B) and this regulation, the 
certification shall include a copy of the resolution.
    (d) The Governor each year shall submit the original and three 
copies of the certification to the local FHWA Division Administrator. 
The FHWA Division Administrator shall retain the original and forward 
one copy each to the FHWA Regional Administrator, FHWA Chief Counsel, 
and the Director of the Office of Highway Safety.
    (e) Any changes to the original certification or supplemental 
information necessitated by the review of the certifications as they are 
forwarded, State legislative changes or changes in State enforcement 
activity (including failure to make progress in a plan previously 
submitted) shall be submitted in the same manner as the original.

[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100, 
Sept. 28, 1995]



Sec.  192.6  Period of availability of withheld funds.

    (a) Funds withheld under Sec.  1212.4 from apportionment to any 
State on or before September 30, 1995, will remain available for 
apportionment as follows:
    (1) If the funds would have been apportioned under 23 U.S.C. 
104(b)(5)(A) but for this section, the funds will remain available until 
the end of the fiscal year for which the funds are authorized to be 
appropriated.
    (2) If the funds would have been apportioned under 23 U.S.C. 
104(b)(5)(B) but for this section, the funds will remain available until 
the end of the second fiscal year following the fiscal year for which 
the funds are authorized to be appropriated.
    (3) If the funds would have been apportioned under 23 U.S.C. 
104(b)(1) or 104(b)(3) but for this section, the funds will remain 
available until the end of the third fiscal year following the fiscal 
year for which the funds are authorized to be appropriated.
    (b) Funds withheld under Sec.  1212.4 from apportionment to any 
State after September 30, 1995 will not be available for apportionment 
to the State.



Sec.  192.7  Apportionment of withheld funds after compliance.

    Funds withheld under Sec.  1212.4 from apportionment, which remain 
available for apportionment under Sec.  1212.6(a), will be made 
available to any State that conforms to the requirements of Sec.  1212.4 
before the last day of the period of availability as defined in Sec.  
1212.6(a).

[57 FR 35999, Aug. 12, 1992, as amended at 59 FR 39256, Aug. 2, 1994]



Sec.  192.8  Period of availability of subsequently apportioned funds.

    (a) Funds apportioned pursuant to Sec.  1212.7 will remain available 
for expenditure as follows:
    (1) Funds originally apportioned under 23 U.S.C. 104(b)(5)(A) will 
remain available until the end of the fiscal year succeeding the fiscal 
year in which the funds are apportioned.
    (2) Funds originally apportioned under 23 U.S.C. 104(b)(1), 
104(b)(2), 104(b)(5)(B), or 104(b)(6) will remain available until the 
end of the third fiscal year succeeding the fiscal year in which the 
funds are apportioned.
    (b) Sums apportioned to a State pursuant to Sec.  1212.7 and not 
obligated at the end of the periods defined in Sec.  1212.8(a), shall 
lapse or, in the case of funds apportioned under 23 U.S.C. 104(b)(5), 
shall lapse and be made available by the Secretary for projects in 
accordance with 23 U.S.C. 118(b).

[[Page 38]]



Sec.  192.9  Effect of noncompliance.

    If a State has not met the requirements of 23 U.S.C. 159(a)(3) at 
the end of the period for which funds withheld under Sec.  1212.4 are 
available for apportionment to a State under Sec.  1212.6, then such 
funds shall lapse or, in the case of funds withheld from apportionment 
under 23 U.S.C. 104(b)(5), shall lapse and be made available by the 
Secretary for projects in accordance with 23 U.S.C. 118(b).



Sec.  192.10  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 159, based on FHWA's preliminary review of its statutes, 
will be advised of the funds expected to be withheld under Sec.  1212.4 
from apportionment, as part of the advance notice of apportionments 
required under 23 U.S.C. 104(e), normally not later than ninety days 
prior to final apportionment.
    (b) If FHWA determines that the State is not in compliance with 23 
U.S.C. 159 based on the agencies' preliminary review, the State may, 
within 30 days of its receipt of the advance notice of apportionments, 
submit documentation showing why it is in compliance. Documentation 
shall be submitted to the Federal Highway Administration, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
    (c) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 159(a)(3), based on FHWA's final determination, will 
receive notice of the funds being withheld under Sec.  1212.4 from 
apportionment, as part of the certification of apportionments required 
under 23 U.S.C. 104(e), which normally occurs on October 1 of each 
fiscal year.

[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100, 
Sept. 28, 1995; 74 FR 28442, June 16, 2009]

[[Page 39]]



                        SUBCHAPTER C_CIVIL RIGHTS





PART 200_TITLE VI PROGRAM AND RELATED STATUTES_IMPLEMENTATION 
AND REVIEW PROCEDURES--Table of Contents



Sec.
200.1 Purpose.
200.3 Application of this part.
200.5 Definitions.
200.7 FHWA Title VI policy.
200.9 State highway agency responsibilities.
200.11 Procedures for processing Title VI reviews.

    Authority: Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d 
to 2000d-4; Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-
3619; 42 U.S.C. 4601 to 4655; 23 U.S.C. 109(h); 23 U.S.C. 324.

    Source: 41 FR 53982, Dec. 10, 1976, unless otherwise noted.



Sec.  200.1  Purpose.

    To provide guidelines for: (a) Implementing the Federal Highway 
Administration (FHWA) Title VI compliance program under Title VI of the 
Civil Rights Act of 1964 and related civil rights laws and regulations, 
and (b) Conducting Title VI program compliance reviews relative to the 
Federal-aid highway program.



Sec.  200.3  Application of this part.

    The provisions of this part are applicable to all elements of FHWA 
and provide requirements and guidelines for State highway agencies to 
implement the Title VI Program requirements. The related civil rights 
laws and regulations are listed under Sec.  200.5(p) of this part. Title 
VI requirements for 23 U.S.C. 402 will be covered under a joint FHWA/
NHTSA agreement.



Sec.  200.5  Definitions.

    The following definitions shall apply for the purpose of this part:
    (a) Affirmative action. A good faith effort to eliminate past and 
present discrimination in all federally assisted programs, and to ensure 
future nondiscriminatory practices.
    (b) Beneficiary. Any person or group of persons (other than States) 
entitled to receive benefits, directly or indirectly, from any federally 
assisted program, i.e., relocatees, impacted citizens, communities, etc.
    (c) Citizen participation. An open process in which the rights of 
the community to be informed, to provide comments to the Government and 
to receive a response from the Government are met through a full 
opportunity to be involved and to express needs and goals.
    (d) Compliance. That satisfactory condition existing when a 
recipient has effectively implemented all of the Title VI requirements 
or can demonstrate that every good faith effort toward achieving this 
end has been made.
    (e) Deficiency status. The interim period during which the recipient 
State has been notified of deficiencies, has not voluntarily complied 
with Title VI Program guidelines, but has not been declared in 
noncompliance by the Secretary of Transportation.
    (f) Discrimination. That act (or action) whether intentional or 
unintentional, through which a person in the United States, solely 
because of race, color, religion, sex, or national origin, has been 
otherwise subjected to unequal treatment under any program or activity 
receiving financial assistance from the Federal Highway Administration 
under title 23 U.S.C.
    (g) Facility. Includes all, or any part of, structures, equipment or 
other real or personal property, or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alternation or acquisition of facilities.
    (h) Federal assistance. Includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and

[[Page 40]]

    (5) Any Federal agreement, arrangement, or other contract which has, 
as one of its purposes, the provision of assistance.
    (i) Noncompliance. A recipient has failed to meet prescribed 
requirements and has shown an apparent lack of good faith effort in 
implementing all of the Title VI requirements.
    (j) Persons. Where designation of persons by race, color, or 
national origin is required, the following designations ordinarily may 
be used: ``White not of Hispanic origin'', ``Black not of Hispanic 
origin'', ``Hispanic'', ``Asian or Pacific Islander'', ``American Indian 
or Alaskan Native.'' Additional subcategories based on national origin 
or primary language spoken may be used, where appropriate, on either a 
national or a regional basis.
    (k) Program. Includes any highway, project, or activity for the 
provision of services, financial aid, or other benefits to individuals. 
This includes education or training, work opportunities, health, 
welfare, rehabilitation, housing, or other services, whether provided 
directly by the recipient of Federal financial assistance or provided by 
others through contracts or other arrangements with the recipient.
    (l) State highway agency. That department, commission, board, or 
official of any State charged by its laws with the responsibility for 
highway construction. The term State would be considered equivalent to 
State highway agency if the context so implies.
    (m) Program area officials. The officials in FHWA who are 
responsible for carrying out technical program responsibilities.
    (n) Recipient. Any State, territory, possession, the District of 
Columbia, Puerto Rico, or any political subdivision, or instrumentality 
thereof, or any public or private agency, institution, or organization, 
or other entity, or any individual, in any State, territory, possession, 
the District of Columbia, or Puerto Rico, to whom Federal assistance is 
extended, either directly or through another recipient, for any program. 
Recipient includes any successor, assignee, or transferee thereof. The 
term recipient does not include any ultimate beneficiary under any such 
program.
    (o) Secretary. The Secretary of Transportation as set forth in 49 
CFR 21.17(g)(3) or the Federal Highway Administrator to whom the 
Secretary has delegated his authority in specific cases.
    (p) Title VI Program. The system of requirements developed to 
implement Title VI of the Civil Rights Act of 1964. References in this 
part to Title VI requirements and regulations shall not be limited to 
only Title VI of the Civil Rights Act of 1964. Where appropriate, this 
term also refers to the civil rights provisions of other Federal 
statutes to the extent that they prohibit discrimination on the grounds 
of race, color, sex, or national origin in programs receiving Federal 
financial assistance of the type subject to Title VI itself. These 
Federal statutes are:
    (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-d4 (49 
CFR part 21; the standard DOT Title VI assurances signed by each State 
pursuant to DOT Order 1050.2; Executive Order 11764; 28 CFR 50.3);
    (2) Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (42 U.S.C. 4601-4655) (49 CFR part 25; Pub. L. 91-
646);
    (3) Title VIII of the Civil Rights Act of 1968, amended 1974 (42 
U.S.C. 3601-3619);
    (4) 23 U.S.C. 109(h);
    (5) 23 U.S.C. 324;
    (6) Subsequent Federal-Aid Highway Acts and related statutes.



Sec.  200.7  FHWA Title VI policy.

    It is the policy of the FHWA to ensure compliance with Title VI of 
the Civil Rights Act of 1964; 49 CFR part 21; and related statutes and 
regulations.



Sec.  200.9  State highway agency responsibilities.

    (a) State assurances in accordance with Title VI of the Civil Rights 
Act of 1964.
    (1) Title 49, CFR part 21 (Department of Transportation Regulations 
for the implementation of Title VI of the Civil Rights Act of 1964) 
requires assurances from States that no person in the United States 
shall, on the grounds of race, color, or national origin, be excluded 
from participation in, be denied

[[Page 41]]

the benefits of, or be otherwise subjected to discrimination under any 
program or activity for which the recipient receives Federal assistance 
from the Department of Transportation, including the Federal Highway 
Administration.
    (2) Section 162a of the Federal-Aid Highway Act of 1973 (section 
324, title 23 U.S.C.) requires that there be no discrimination on the 
ground of sex. The FHWA considers all assurances heretofore received to 
have been amended to include a prohibition against discrimination on the 
ground of sex. These assurances were signed by the 50 States, the 
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and 
American Samoa. The State highway agency shall submit a certification to 
the FHWA indicating that the requirements of section 162a of the 
Federal-Aid Highway Act of 1973 have been added to its assurances.
    (3) The State highway agency shall take affirmative action to 
correct any deficiencies found by the FHWA within a reasonable time 
period, not to exceed 90 days, in order to implement Title VI compliance 
in accordance with State-signed assurances and required guidelines. The 
head of the State highway agency shall be held responsible for 
implementing Title VI requirements.
    (4) The State program area officials and Title VI Specialist shall 
conduct annual reviews of all pertinent program areas to determine the 
effectiveness of program area activities at all levels.
    (b) State actions. (1) Establish a civil rights unit and designate a 
coordinator who has a responsible position in the organization and easy 
access to the head of the State highway agency. This unit shall contain 
a Title VI Equal Employment Opportunity Coordinator or a Title VI 
Specialist, who shall be responsible for initiating and monitoring Title 
VI activities and preparing required reports.
    (2) Adequately staff the civil rights unit to effectively implement 
the State civil rights requirements.
    (3) Develop procedures for prompt processing and disposition of 
Title VI and Title VIII complaints received directly by the State and 
not by FHWA. Complaints shall be investigated by State civil rights 
personnel trained in compliance investigations. Identify each 
complainant by race, color, sex, or national origin; the recipient; the 
nature of the complaint; the dates the complaint was filed and the 
investigation completed; the disposition; the date of the disposition; 
and other pertinent information. Each recipient (State) processing Title 
VI complaints shall be required to maintain a similar log. A copy of the 
complaint, together with a copy of the State's report of investigation, 
shall be forwarded to the FHWA division office within 60 days of the 
date the complaint was received by the State.
    (4) Develop procedures for the collection of statistical data (race, 
color, religion, sex, and national origin) of participants in, and 
beneficiaries of State highway programs, i.e., relocatees, impacted 
citizens and affected communities.
    (5) Develop a program to conduct Title VI reviews of program areas.
    (6) Conduct annual reviews of special emphasis program areas to 
determine the effectiveness or program area activities at all levels.
    (7) Conduct Title VI reviews of cities, counties, consultant 
contractors, suppliers, universities, colleges, planning agencies, and 
other recipients of Federal-aid highway funds.
    (8) Review State program directives in coordination with State 
program officials and, where applicable, include Title VI and related 
requirements.
    (9) The State highway agency Title VI designee shall be responsible 
for conducting training programs on Title VI and related statutes for 
State program and civil rights officials.
    (10) Prepare a yearly report of Title VI accomplishments for the 
past year and goals for the next year.
    (11) Beginning October 1, 1976, each State highway agency shall 
annually submit an updated Title VI implementing plan to the Regional 
Federal Highway Administrator for approval or disapproval.
    (12) Develop Title VI information for dissemination to the general 
public and, where appropriate, in languages other than English.

[[Page 42]]

    (13) Establishing procedures for pregrant and postgrant approval 
reviews of State programs and applicants for compliance with Title VI 
requirements; i.e., highway location, design and relocation, and persons 
seeking contracts with the State.
    (14) Establish procedures to identify and eliminate discrimination 
when found to exist.
    (15) Establishing procedures for promptly resolving deficiency 
status and reducing to writing the remedial action agreed to be 
necessary, all within a period not to exceed 90 days.



Sec.  200.11  Procedures for processing Title VI reviews.

    (a) If the regional Title VI review report contains deficiencies and 
recommended actions, the report shall be forwarded by the Regional 
Federal Highway Administrator to the Division Administrator, who will 
forward it with a cover letter to the State highway agency for 
corrective action.
    (b) The division office, in coordination with the Regional Civil 
Rights Officer, shall schedule a meeting with the recipient, to be held 
not later than 30 days from receipt of the deficiency report.
    (c) Recipients placed in a deficiency status shall be given a 
reasonable time, not to exceed 90 days after receipt of the deficiency 
letter, to voluntarily correct deficiencies.
    (d) The Division Administrator shall seek the cooperation of the 
recipient in correcting deficiencies found during the review. The FHWA 
officials shall also provide the technical assistance and guidance 
needed to aid the recipient to comply voluntarily.
    (e) When a recipient fails or refuses to voluntarily comply with 
requirements within the time frame allotted, the Division Administrator 
shall submit to the Regional Administrator two copies of the case file 
and a recommendation that the State be found in noncompliance.
    (f) The Office of Civil Rights shall review the case file for a 
determination of concurrence or noncurrence with a recommendation to the 
Federal Highway Administrator. Should the Federal Highway Administrator 
concur with the recommendation, the file is referred to the Department 
of Transportation, Office of the Secretary, for appropriate action in 
accordance with 49 CFR.



PART 230_EXTERNAL PROGRAMS--Table of Contents



   Subpart A_Equal Employment Opportunity on Federal and Federal-Aid 
         Construction Contracts (Including Supportive Services)

Sec.
230.101 Purpose.
230.103 Definitions.
230.105 Applicability.
230.107 Policy.
230.109 Implementation of specific Equal Employment Opportunity 
          requirements.
230.111 Implementation of special requirements for the provision of on-
          the-job training.
230.113 Implementation of supportive services.
230.115 Special contract requirements for ``Hometown'' or ``Imposed'' 
          Plan areas.
230.117 Reimbursement procedures (Federal-aid highway construction 
          projects only).
230.119 Monitoring of supportive services.
230.121 Reports.

Appendix A to Subpart A of Part 230--Special Provisions
Appendix B to Subpart A of Part 230--Training Special Provisions
Appendix C to Subpart A of Part 230--Federal-Aid Highway Contractors 
          Annual EEO Report (Form PR-1391)
Appendix D to Subpart A of Part 230--Federal-Aid Highway Construction 
          Summary of Employment Data (Form PR-1392)
Appendixes E-F to Subpart A of Part 230 [Reserved]
Appendix G to Subpart A of Part 230--Special Reporting Requirements for 
          ``Hometown'' or ``Imposed'' Plan Areas

  Subpart B_Supportive Services for Minority, Disadvantaged, and Women 
                          Business Enterprises

230.201 Purpose.
230.202 Definitions.
230.203 Policy.
230.204 Implementation of supportive services.
230.205 Supportive services funds obligation.
230.206 Monitoring supportive services.
230.207 Sources of assistance.

  Subpart C_State Highway Agency Equal Employment Opportunity Programs

230.301 Purpose.
230.303 Applicability.

[[Page 43]]

230.305 Definitions.
230.307 Policy.
230.309 Program format.
230.311 State responsibilities.
230.313 Approval procedure.

Appendix A to Subpart C of Part 230--State Highway Agency Equal 
          Employment Opportunity Programs

 Subpart D_Construction Contract Equal Opportunity Compliance Procedures

230.401 Purpose.
230.403 Applicability.
230.405 Administrative responsibilities.
230.407 Definitions.
230.409 Contract compliance review procedures.
230.411 Guidance for conducting reviews.
230.413 Review reports.
230.415 Consolidated compliance reviews.

Appendix A to Subpart D of Part 230--Sample Show Cause Notice
Appendix B to Subpart D of Part 230--Sample Corrective Action Plan
Appendix C to Subpart D of Part 230--Sample Show Cause Rescission
Appendix D to Subpart D of Part 230--Equal Opportunity Compliance Review 
          Process Flow Chart

    Authority: 23 U.S.C. 101, 140, and 315; 42 U.S.C. 2000d et seq.; 49 
CFR 1.48 and 60-1.

    Source: 40 FR 28053, July 3, 1975, unless otherwise noted.



   Subpart A_Equal Employment Opportunity on Federal and Federal-Aid 
         Construction Contracts (Including Supportive Services)



Sec.  230.101  Purpose.

    The purpose of the regulations in this subpart is to prescribe the 
policies, procedures, and guides relative to the implementation of an 
equal employment opportunity program on Federal and Federal-aid highway 
construction contracts, except for those contracts awarded under 23 
U.S.C. 117, and to the preparation and submission of reports pursuant 
thereto.



Sec.  230.103  Definitions.

    For purposes of this subpart--
    Administrator means the Federal Highway Administrator.
    Areawide Plan means an affirmative action plan to increase minority 
utilization of crafts in a specified geographical area pursuant to 
Executive Order 11246, and taking the form of either a ``Hometown'' or 
an ``Imposed'' plan.
    Bid conditions means contract requirements which have been issued by 
OFCC for purposes of implementing a Hometown Plan.
    Division Administrator means the chief Federal Highway 
Administration (FHWA) official assigned to conduct FHWA business in a 
particular State, the District of Columbia, or the Commonwealth of 
Puerto Rico.
    Division Equal Opportunity Officer means an individual with staff 
level responsibilities and necessary authority by which to operate as an 
Equal Opportunity Officer in a Division office. Normally the Equal 
Opportunity Officer will be a full-time civil rights specialist serving 
as staff assistant to the Division Administrator.
    Hometown Plan means a voluntary areawide plan which was developed by 
representatives of affected groups (usually labor unions, minority 
organizations, and contractors), and subsequently approved by the Office 
of Federal Contract Compliance (OFCC), for purposes of implementing the 
equal employment opportunity requirements pursuant to Executive Order 
11246, as amended.
    Imposed Plan means an affirmative action requirement for a specified 
geographical area made mandatory by OFCC and, in some areas, by the 
courts.
    Journeyman means a person who is capable of performing all the 
duties within a given job classification or craft.
    State highway agency means that department, commission, board, or 
official of any State charged by its laws with the responsibility for 
highway construction. The term State should be considered equivalent to 
State highway agency.
    Suggested minimum annual training goals means goals which have been 
assigned to each State highway agency annually for the purpose of 
specifying training positions on selected Federal-aid highway 
construction projects.
    Supportive services means those services provided in connection with 
approved on-the-job training programs for highway construction workers 
and

[[Page 44]]

highway contractors which are designed to increase the overall 
effectiveness of training programs through the performance of functions 
determined to be necessary in connection with such programs, but which 
are not generally considered as comprising part of actual on-the-job 
craft training.
    Trainee means a person who received on-the-job training, whether 
through an apprenticeship program or other programs approved or accepted 
by the FHWA.

[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]



Sec.  230.105  Applicability.

    (a) Federal-aid highway construction projects. This subpart applies 
to all Federal-aid highway construction projects and to Appalachian 
highway construction projects and other State supervised cooperative 
highway construction projects except:
    (1) Federal-aided highway construction projects being constructed 
pursuant to 23 U.S.C. 117; and
    (2) Those projects located in areas where the Office of Federal 
Contract Compliance has implemented an ``Imposed'' or a ``Hometown'' 
Plan, except for those requirements pertaining to specific provisions 
involving on-the-job training and those provisions pertaining to 
supportive services and reporting requirements.
    (b) Direct Federal highway construction projects. This subpart 
applies to all direct Federal highway construction projects except:
    (1) For those provisions relating to the special requirements for 
the provision of supportive services; and
    (2) For those provisions relating to implementation of specific 
equal employment opportunity requirements in areas where the Office of 
Federal Contract Compliance has implemented an ``Imposed'' or 
``Hometown'' plan.



Sec.  230.107  Policy.

    (a) Direct Federal and Federal-aid highway construction projects. It 
is the policy of the FHWA to require that all direct Federal and 
Federal-aid highway construction contracts include the same specific 
equal employment opportunity requirements. It is also the policy to 
require that all direct Federal and Federal-aid highway construction 
subcontracts of $10,000 or more (not including contracts for supplying 
materials) include these same requirements.
    (b) Federal-aid highway construction projects. It is the policy of 
the FHWA to require full utilization of all available training and 
skill-improvement opportunities to assure the increased participation of 
minority groups and disadvantaged persons and women in all phases of the 
highway construction industry. Moreover, it is the policy of the Federal 
Highway Administration to encourage the provision of supportive services 
which will increase the effectiveness of approved on-the-job training 
programs conducted in connection with Federal-aid highway construction 
projects.



Sec.  230.109  Implementation of specific Equal Employment 
Opportunity requirements.

    (a) Federal-aid highway construction projects. The special 
provisions set forth in appendix A shall be included in the advertised 
bidding proposal and made part of the contract for each contract and 
each covered Federal-aid highway construction subcontract.
    (b) Direct Federal highway construction projects. Advertising, award 
and contract administration procedures for direct Federal highway 
construction contracts shall be as set forth in Federal Acquisition 
Regulations (48 CFR, chapter 1, section 22.803(c)). In order to obtain 
information required by 48 CFR, chapter 1, Sec.  22.804-2(c), the 
following requirement shall be included at the end of the bid schedule 
in the proposal and contract assembly:

    I expect to employ the following firms as subcontractors on this 
project: (Naming subcontractors at this time does not constitute a 
binding commitment on the bidder to retain such subcontractors, nor will 
failure to enter names affect the contract award):

Name____________________________________________________________________
Address_________________________________________________________________
Name____________________________________________________________________
Address_________________________________________________________________

[40 FR 28053, July 3, 1975, as amended at 51 FR 22800, June 23, 1986]

[[Page 45]]



Sec.  230.111  Implementation of special requirements for the provision 
of on-the-job training.

    (a) The State highway agency shall determine which Federal-aid 
highway construction contracts shall include the ``Training Special 
Provisions'' (appendix B) and the minimum number of trainees to be 
specified therein after giving appropriate consideration to the 
guidelines set forth in Sec.  230.111(c). The ``Training Special 
Provisions'' shall supersede section 7(b) of the Special Provisions 
(appendix A) entitled ``Specific Equal Employment Opportunity 
Responsibilities.'' Minor wording revisions will be required to the 
``Training Special Provisions'' in areas having ``Hometown'' or 
``Imposed Plan'' requirements.
    (b) The Washington Headquarters shall establish and publish annually 
suggested minimum training goals. These goals will be based on the 
Federal-aid apportioned amounts and the minority population. A State 
will have achieved its goal if the total number of training slots on 
selected federally aided highway construction contracts which have been 
awarded during each 12-month period equals or exceeds the State's 
suggested minimum annual goal. In the event a State highway agency does 
not attain its goal during a calendar year, the State highway agency at 
the end of the calendar year shall inform the Administrator of the 
reasons for its inability to meet the suggested minimum number of 
training slots and the steps to be taken to achieve the goal during the 
next calendar year. The information is to be submitted not later than 30 
days from the end of the calendar year and should be factual, and should 
not only indicate the situations occurring during the year but show the 
project conditions at least through the coming year. The final 
determination will be made on what training goals are considered to be 
realistic based on the information submitted by a State.
    (c) The following guidelines shall be utilized by the State highway 
agency in selecting projects and determining the number of trainees to 
be provided training therein:
    (1) Availability of minorities, women, and disadvantaged for 
training.
    (2) The potential for effective training.
    (3) Duration of the contract.
    (4) Dollar value of the contract.
    (5) Total normal work force that the average bidder could be 
expected to use.
    (6) Geographic location.
    (7) Type of work.
    (8) The need for additional journeymen in the area.
    (9) Recognition of the suggested minimum goal for the State.
    (10) A satisfactory ratio of trainees to journeymen expected to be 
on the contractor's work force during normal operations (considered to 
fall between 1:10 and 1:4).
    (d) Training programs which are established shall be approved only 
if they meet the standards set forth in appendix B with regard to:
    (1) The primary objectives of training and upgrading minority group 
workers, women and disadvantaged persons.
    (2) The development of full journeymen.
    (3) The minimum length and type of training.
    (4) The minimum wages of trainees.
    (5) Trainees certifications.
    (6) Keeping records and furnishing reports.
    (e)(1) Training programs considered by a State highway agency to 
meet the standards under this directive shall be submitted to the FHWA 
division Administrator with a recommendation for approval.
    (2) Employment pursuant to training programs approved by the FHWA 
division Administrator will be exempt from the minimum wage rate 
provisions of section 113 of title 23 U.S.C. Approval, however, shall 
not be given to training programs which provide for employment of 
trainees at wages less than those required by the Special Training 
Provisions. (Appendix B.)
    (f)(1) Apprenticeship programs approved by the U.S. Department of 
Labor as of the date of proposed use by a Federal-aid highway contractor 
or subcontractor need not be formally approved by the State highway 
agency or the FHWA division Administrator. Such programs, including 
their minimum wage provisions, are acceptable for use, provided they are 
administered

[[Page 46]]

in a manner reasonably calculated to meet the equal employment 
opportunity obligations of the contractor.
    (2) Other training programs approved by the U.S. Department of Labor 
as of the date of proposed use by a Federal-aid highway contractor or 
subcontractor are also acceptable for use without the formal approval of 
the State highway agency or the division Administrator provided:
    (i) The U.S. Department of Labor has clearly approved the program 
aspects relating to equal employment opportunity and the payment of 
trainee wage rates in lieu of prevailing wage rates.
    (ii) They are reasonably calculated to qualify the average trainees 
for journeyman status in the classification concerned by the end of the 
training period.
    (iii) They are administered in a manner calculated to meet the equal 
employment obligations of the contractors.
    (g) The State highway agencies have the option of permitting 
Federal-aid highway construction contractors to bid on training to be 
given under this directive. The following procedures are to be utilized 
by those State highway agencies that elect to provide a bid item for 
training:
    (1) The number of training positions shall continue to be specified 
in the Special Training Provisions. Furthermore, this number should be 
converted into an estimated number of hours of training which is to be 
used in arriving at the total bid price for the training item. Increases 
and decreases from the estimated amounts would be handled as overruns or 
underruns;
    (2) A section concerning the method of payment should be included in 
the Special Training Provisions. Some offsite training is permissible as 
long as the training is an integral part of an approved training program 
and does not comprise a substantial part of the overall training. 
Furthermore, the trainee must be concurrently employed on a federally 
aided highway construction project subject to the Special Training 
Provisions attached to this directive. Reimbursement for offsite 
training may only be made to the contractor where he does one or more of 
the following: Contributes to the cost of the training, provides the 
instruction to the trainee, or pays the trainee's wages during the 
offsite training period;
    (3) A State highway agency may modify the special provisions to 
specify the numbers to be trained in specific job classifications;
    (4) A State highway agency can specify training standards provided 
any prospective bidder can use them, the training standards are made 
known in the advertised specifications, and such standards are found 
acceptable by FHWA.

[40 FR 28053, July 3, 1975; 40 FR 57358, Dec. 9, 1975, as amended at 41 
FR 3080, Jan. 21, 1976]



Sec.  230.113  Implementation of supportive services.

    (a) The State highway agency shall establish procedures, subject to 
the availability of funds under 23 U.S.C. 140(b), for the provision of 
supportive services in support of training programs approved under this 
directive. Funds made available to implement this paragraph shall not be 
used to finance the training of State highway agency employees or to 
provide services in support of such training. State highway agencies are 
not required to match funds allocated to them under this section.
    (b) In determining the types of supportive services to be provided 
which will increase the effectiveness of approved training programs. 
State highway agencies shall give preference to the following types of 
services in the order listed:
    (1) Services related to recruiting, counseling, transportation, 
physical examinations, remedial training, with special emphasis upon 
increasing training opportunities for members of minority groups and 
women;
    (2) Services in connection with the administration of on-the-job 
training programs being sponsored by individual or groups of contractors 
and/or minority groups and women's groups;
    (3) Services designed to develop the capabilities of prospective 
trainees for undertaking on-the-job training;
    (4) Services in connection with providing a continuation of training 
during periods of seasonal shutdown;

[[Page 47]]

    (5) Followup services to ascertain outcome of training being 
provided.
    (c) State highway agencies which desire to provide or obtain 
supportive services other than those listed above shall submit their 
proposals to the Federal Highway Administration for approval. The 
proposal, together with recommendations of the division and regional 
offices shall be submitted to the Administrator for appropriate action.
    (d) When the State highway agency provides supportive services by 
contract, formal advertising is not required by the FHWA, however, the 
State highway agency shall solicit proposals from such qualified sources 
as will assure the competitive nature of the procurement. The evaluation 
of proposals by the State highway agency must include consideration of 
the proposer's ability to effect a productive relationship with 
contractors, unions (if appropriate), minority and women groups, 
minority and women trainees, and other persons or organizations whose 
cooperation and assistance will contribute to the successful performance 
of the contract work.
    (e) In the selection of contractors to provide supportive services, 
State highway agencies shall make conscientious efforts to search out 
and utilize the services of qualified minority or women organizations, 
or minority or women business enterprises.
    (f) As a minimum, State highway agency contracts to obtain 
supportive services shall include the following provisions:
    (1) A statement that a primary purpose of the supportive services is 
to increase the effectiveness of approved on-the-job training programs, 
particularly their effectiveness in providing meaningful training 
opportunities for minorities, women, and the disadvantaged on Federal-
aid highway projects;
    (2) A clear and complete statement of the services to be provided 
under the contract, such as services to construction contractors, 
subcontractors, and trainees, for recruiting, counseling, remedial 
educational training, assistance in the acquisition of tools, special 
equipment and transportation, followup procedures, etc.;
    (3) The nondiscrimination provisions required by Title VI of the 
Civil Rights Act of 1964 as set forth in FHWA Form PR-1273, and a 
statement of nondiscrimination in employment because of race, color, 
religion, national origin or sex;
    (4) The establishment of a definite perriod of contract performance 
together with, if appropriate, a schedule stating when specific 
supportive services are to be provided;
    (5) Reporting requirements pursuant to which the State highway 
agency will receive monthly or quarterly reports containing sufficient 
statistical data and narrative content to enable evaluation of both 
progress and problems;
    (6) A requirement that the contractor keep track of trainees 
receiving training on Federal-aid highway construction projects for up 
to 6 months during periods when their training is interrupted. Such 
contracts shall also require the contractor to conduct a 6 month 
followup review of the employment status of each graduate who completes 
an on-the-job training program on a Federal-aid highway construction 
project subsequent to the effective date of the contract for supportive 
services.
    (7) The basis of payment;
    (8) An estimated schedule for expenditures;
    (9) The right of access to contractor and subcontractor records and 
the right to audit shall be granted to authorize State highway agency 
and FHWA officials;
    (10) Noncollusion certification;
    (11) A requirement that the contractor provide all information 
necessary to support progress payments if such are provided for in the 
contract;
    (12) A termination clause.
    (g) The State highway agency is to furnish copies of the reports 
received under paragraph (b)(5) of this section, to the division office.

[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]



Sec.  230.115  Special contract requirements for ``Hometown'' 
or ``Imposed'' Plan areas.

    Direct Federal and Federal-aid contracts to be performed in 
``Hometown''

[[Page 48]]

or ``Imposed'' Plan areas will incorporate the special provision set 
forth in appendix G.



Sec.  230.117  Reimbursement procedures (Federal-aid highway 
construction projects only).

    (a) On-the-job special training provisions. State highway agencies 
will be reimbursed on the same pro-rata basis as the construction costs 
of the Federal-aid project.
    (b) Supportive services. (1) The State highway agency must keep a 
separate account of supportive services funds since they cannot be 
interchanged with regular Federal-aid funds. In addition, these funds 
may not be expended in a manner that would provide for duplicate payment 
of Federal or Federal-aid funds for the same service.
    (2) Where a State highway agency does not obligate all its funds 
within the time specified in the particular year's allocation directive, 
the funds shall revert to the FHWA Headquarters Office to be made 
available for use by other State highway agencies, taking into 
consideration each State's need for and ability to use such funds.



Sec.  230.119  Monitoring of supportive services.

    Supportive services procured by a State highway agency shall be 
monitored by both the State highway agency and the division office.



Sec.  230.121  Reports.

    (a) Employment reports on Federal-aid highway construction contracts 
not subject to ``Hometown'' or ``Imposed'' plan requirements.
    (1) Paragraph 10c of the special provisions (appendix A) sets forth 
specific reporting requirements. FHWA Form PR-1391, Federal-Aid Highway 
Construction Contractors Annual EEO Report, (appendix C) and FHWA Form 
PR 1392, Federal-Aid Highway Construction Summary of Employment Data 
(including minority breakdown) for all Federal-Aid Highway Projects for 
month ending July 31st, 19--, (appendix D) are to be used to fulfill 
these reporting requirements.
    (2) Form PR 1391 is to be completed by each contractor and each 
subcontractor subject to this part for every month of July during which 
work is performed, and submitted to the State highway agency. A separate 
report is to be completed for each covered contract or subcontract. The 
employment data entered should reflect the work force on board during 
all or any part of the last payroll period preceding the end of the 
month. The State highway agency is to forward a single copy of each 
report to the FHWA division office.
    (3) Form PR 1392 is to be completed by the State highway agencies, 
summarizing the reports on PR 1391 for the month of July received from 
all active contractors and subcontractors. Three (3) copies of completed 
Forms PR 1392 are to be forwarded to the division office.
    (b) Employment reports on direct Federal highway construction 
contracts not subject to ``Hometown'' or ``Imposed'' plan requirements. 
Forms PR 1391 (appendix C) and PR 1392 (appendix D) shall be used for 
reporting purposes as prescribed in Sec.  230.121(a).
    (c) Employment reports on direct Federal and Federal-aid highway 
construction contracts subject to ``Hometown'' or ``Imposed'' plan 
requirements.
    (1) Reporting requirements for direct Federal and Federal-aid 
highway construction projects located in areas where ``Hometown'' or 
``Imposed'' plans are in effect shall be in accordance with those issued 
by the U.S. Department of Labor, Office of Federal Contract Compliance.
    (2) In order that we may comply with the U.S. Senate Committee on 
Public Works' request that the Federal Highway Administration submit a 
report annually on the status of the equal employment opportunity 
program, Form PR 1391 is to be completed annually by each contractor and 
each subcontractor holding contracts or subcontracts exceeding $10,000 
except as otherwise provided for under 23 U.S.C. 117. The employment 
data entered should reflect the work force on board during all or any 
part of the last payroll period preceding the end of the month of July.
    (d) [Reserved]
    (e) Reports on supportive services contracts. The State highway 
agency is

[[Page 49]]

to furnish copies of the reports received from supportive services 
contractors to the FHWA division office which will furnish a copy to the 
regional office.

[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978; 61 
FR 14616, Apr. 3, 1996]



      Sec. Appendix A to Subpart A of Part 230--Special Provisions

         specific equal employment opportunity responsibilities

    1. General. a. Equal employment opportunity requirements not to 
discriminate and to take affirmative action to assure equal employment 
opportunity as required by Executive Order 11246 and Executive Order 
11375 are set forth in Required Contract, Provisions (Form PR-1273 or 
1316, as appropriate) and these Special Provisions which are imposed 
pursuant to section 140 of title 23 U.S.C., as established by section 22 
of the Federal-Aid Highway Act of 1968. The requirements set forth in 
these Special Provisions shall constitute the specific affirmative 
action requirements for project activities under this contract and 
supplement the equal employment opportunity requirements set forth in 
the Required Contract Provisions.
    b. The contractor will work with the State highway agencies and the 
Federal Government in carrying out equal employment opportunity 
obligations and in their review of his/her activities under the 
contract.
    c. The contractor and all his/her subcontractors holding 
subcontracts not including material suppliers, of $10,000 or more, will 
comply with the following minimum specific requirement activities of 
equal employment opportunity: (The equal employment opportunity 
requirements of Executive Order 11246, as set forth in volume 6, chapter 
4, section 1, subsection 1 of the Federal-Aid Highway Program Manual, 
are applicable to material suppliers as well as contractors and 
subcontractors.) The contractor will include these requirements in every 
subcontract of $10,000 or more with such modification of language as is 
necessary to make them binding on the subcontractor.
    2. Equal Employment Opportunity Policy. The contractor will accept 
as his operating policy the following statement which is designed to 
further the provision of equal employment opportunity to all persons 
without regard to their race, color, religion, sex, or national origin, 
and to promote the full realization of equal employment opportunity 
through a positive continuing program:
    It is the policy of this Company to assure that applicants are 
employed, and that employees are treated during employment, without 
regard to their race, religion, sex, color, or national origin. Such 
action shall include: employment, upgrading, demotion, or transfer; 
recruitment or recruitment advertising; layoff or termination; rates of 
pay or other forms of compensation; and selection for training, 
including apprenticeship, preapprenticeship, and/or on-the-job training.
    3. Equal Employment Opportunity Officer. The contractor will 
designate and make known to the State highway agency contracting 
officers and equal employment opportunity officer (hereinafter referred 
to as the EEO Officer) who will have the responsibility for and must be 
capable of effectively administering and promoting an active contractor 
program of equal employment opportunity and who must be assigned 
adequate authority and responsibility to do so.
    4. Dissemination of Policy. a. All members of the contractor's staff 
who are authorized to hire, supervise, promote, and discharge employees, 
or who recommend such action, or who are substantially involved in such 
action, will be made fully cognizant of, and will implement, the 
contractor's equal employment opportunity policy and contractual 
responsibilities to provide equal employment opportunity in each grade 
and classification of employment. To ensure that the above agreement 
will be met, the following actions will be taken as a minimum:
    (1) Periodic meetings of supervisory and personnel office employees 
will be conducted before the start of work and then not less often than 
once every six months, at which time the contractor's equal employment 
opportunity policy and its implementation will be reviewed and 
explained. The meetings will be conducted by the EEO Officer or other 
knowledgeable company official.
    (2) All new supervisory or personnel office employees will be given 
a thorough indoctrination by the EEO Officer or other knowledgeable 
company official, covering all major aspects of the contractor's equal 
employment opportunity obligations within thirty days following their 
reporting for duty with the contractor.
    (3) All personnel who are engaged in direct recruitment for the 
project will be instructed by the EEO Officer or appropriate company 
official in the contractor's procedures for locating and hiring minority 
group employees.
    b. In order to make the contractor's equal employment opportunity 
policy known to all employees, prospective employees and potential 
sources of employees, i.e., schools, employment agencies, labor unions 
(where appropriate), college placement officers, etc., the contractor 
will take the following actions:
    (1) Notices and posters setting forth the contractor's equal 
employment opportunity

[[Page 50]]

policy will be placed in areas readily accessible to employees, 
applicants for employment and potential employees.
    (2) The contractor's equal employment opportunity policy and the 
procedures to implement such policy will be brought to the attention of 
employees by means of meetings, employee handbooks, or other appropriate 
means.
    5. Recruitment. a. When advertising for employees, the contractor 
will include in all advertisements for employees the notation: ``An 
Equal Opportunity Employer.'' All such advertisements will be published 
in newspapers or other publications having a large circulation among 
minority groups in the area from which the project work force would 
normally be derived.
    b. The contractor will, unless precluded by a valid bargaining 
agreement, conduct systematic and direct recruitment through public and 
private employee referral sources likely to yield qualified minority 
group applicants, including, but not limited to, State employment 
agencies, schools, colleges and minority group organizations. To meet 
this requirement, the contractor will, through his EEO Officer, identify 
sources of potential minority group employees, and establish with such 
identified sources procedures whereby minority group applicants may be 
referred to the contractor for employment consideration.
    In the event the contractor has a valid bargaining agreement 
providing for exclusive hiring hall referrals, he is expected to observe 
the provisions of that agreement to the extent that the system permits 
the contractor's compliance with equal employment opportunity contract 
provisions. (The U.S. Department of Labor has held that where 
implementation of such agreements have the effect of discriminating 
against minorities or women, or obligates the contractor to do the same, 
such implementation violates Executive Order 11246, as amended.)
    c. The contractor will encourage his present employees to refer 
minority group applicants for employment by posting appropriate notices 
or bulletins in areas accessible to all such employees. In addition, 
information and procedures with regard to referring minority group 
applicants will be discussed with employees.
    6. Personnel Actions. Wages, working conditions, and employee 
benefits shall be established and administered, and personnel actions of 
every type, including hiring, upgrading, promotion, transfer, demotion, 
layoff, and termination, shall be taken without regard to race, color, 
religion, sex, or national origin. The following procedures shall be 
followed:
    a. The contractor will conduct periodic inspections of project sites 
to insure that working conditions and employee facilities do not 
indicate discriminatory treatment of project site personnel.
    b. The contractor will periodically evaluate the spread of wages 
paid within each classification to determine any evidence of 
discriminatory wage practices.
    c. The contractor will periodically review selected personnel 
actions in depth to determine whether there is evidence of 
discrimination. Where evidence is found, the contractor will promptly 
take corrective action. If the review indicates that the discrimination 
may extend beyond the actions reviewed, such corrective action shall 
include all affected persons.
    d. The contractor will promptly investigate all complaints of 
alleged discrimination made to the contractor in connection with his 
obligations under this contract, will attempt to resolve such 
complaints, and will take appropriate corrective action within a 
reasonable time. If the investigation indicates that the discrimination 
may affect persons other than the complainant, such corrective action 
shall include such other persons. Upon completion of each investigation, 
the contractor will inform every complainant of all of his avenues of 
appeal.
    7. Training and Promotion. a. The contractor will assist in 
locating, qualifying, and increasing the skills of minority group and 
women employees, and applicants for employment.
    b. Consistent with the contractor's work force requirements and as 
permissible under Federal and State regulations, the contractor shall 
make full use of training programs, i.e., apprenticeship, and on-the-job 
training programs for the geographical area of contract performance. 
Where feasible, 25 percent of apprentices or trainees in each occupation 
shall be in their first year of apprenticeship or training. In the event 
the Training Special Provision is provided under this contract, this 
subparagraph will be superseded as indicated in Attachment 2.
    c. The contractor will advise employees and applicants for 
employment of available training programs and entrance requirements for 
each.
    d. The contractor will periodically review the training and 
promotion potential of minority group and women employees and will 
encourage eligible employees to apply for such training and promotion.
    8. Unions. If the contractor relies in whole or in part upon unions 
as a source of employees, the contractor will use his/her best efforts 
to obtain the cooperation of such unions to increase opportunities for 
minority groups and women within the unions, and to effect referrals by 
such unions of minority and female employees. Actions by the contractor 
either directly or through a contractor's association acting as agent 
will include the procedures set forth below:

[[Page 51]]

    a. The contractor will use best efforts to develop, in cooperation 
with the unions, joint training programs aimed toward qualifying more 
minority group members and women for membership in the unions and 
increasing the skills of minority group employees and women so that they 
may qualify for higher paying employment.
    b. The contractor will use best efforts to incorporate an equal 
employment opportunity clause into each union agreement to the end that 
such union will be contractually bound to refer applicants without 
regard to their race, color, religion, sex, or national origin.
    c. The contractor is to obtain information as to the referral 
practices and policies of the labor union except that to the extent such 
information is within the exclusive possession of the labor union and 
such labor union refuses to furnish such information to the contractor, 
the contractor shall so certify to the State highway department and 
shall set forth what efforts have been made to obtain such information.
    d. In the event the union is unable to provide the contractor with a 
reasonable flow of minority and women referrals within the time limit 
set forth in the collective bargaining agreement, the contractor will, 
through independent recruitment efforts, fill the employment vacancies 
without regard to race, color, religion, sex, or national origin; making 
full efforts to obtain qualified and/or qualifiable minority group 
persons and women. (The U.S. Department of Labor has held that it shall 
be no excuse that the union with which the contractor has a collective 
bargaining agreement providing for exclusive referral failed to refer 
minority employees.) In the event the union referral practice prevents 
the contractor from meeting the obligations pursuant to Executive Order 
11246, as amended, and these special provisions, such contractor shall 
immediately notify the State highway agency.
    9. Subcontracting. a. The contractor will use his best efforts to 
solicit bids from and to utilize minority group subcontractors or 
subcontractors with meaningful minority group and female representation 
among their employees. Contractors shall obtain lists of minority-owned 
construction firms from State highway agency personnel.
    b. The contractor will use his best efforts to ensure subcontractor 
compliance with their equal employment opportunity obligations.
    10. Records and Reports. a. The contractor will keep such records as 
are necessary to determine compliance with the contractor's equal 
employment opportunity obligations. The records kept by the contractor 
will be designed to indicate:
    (1) The number of minority and nonminority group members and women 
employed in each work classification on the project.
    (2) The progress and efforts being made in cooperation with unions 
to increase employment opportunities for minorities and women 
(applicable only to contractors who rely in whole or in part on unions 
as a source of their work force),
    (3) The progress and efforts being made in locating, hiring, 
training, qualifying, and upgrading minority and female employees, and
    (4) The progress and efforts being made in securing the services of 
minority group subcontractors or subcontractors with meaningful minority 
and female representation among their employees.
    b. All such records must be retained for a period of three years 
following completion of the contract work and shall be available at 
reasonable times and places for inspection by authorized representatives 
of the State highway agency and the Federal Highway Administration.
    c. The contractors will submit an annual report to the State highway 
agency each July for the duration of the project, indicating the number 
of minority, women, and non-minority group employees currently engaged 
in each work classification required by the contract work. This 
information is to be reported on Form PR 1391. If on-the-job training is 
being required by ``Training Special Provision'', the contractor will be 
required to furnish Form FHWA 1409.

[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978. 
Correctly redesignated at 46 FR 21156, Apr. 9, 1981]



  Sec. Appendix B to Subpart A of Part 230--Training Special Provisions

    This Training Special Provision supersedes subparagraph 7b of the 
Special Provision entitled ``Specific Equal Employment Opportunity 
Responsibilities,'' (Attachment 1), and is in implementation of 23 
U.S.C. 140(a).
    As part of the contractor's equal employment opportunity affirmative 
action program training shall be provided as follows:
    The contractor shall provide on-the-job training aimed at developing 
full journeymen in the type of trade or job classification involved.
    The number of trainees to be trained under the special provisions 
will be ____ (amount to be filled in by State highway department).
    In the event that a contractor subcontracts a portion of the 
contract work, he shall determine how many, if any, of the trainees are 
to be trained by the subcontractor, provided, however, that the 
contractor shall retain the primary responsibility for meeting the 
training requirements imposed by this special provision. The contractor 
shall also insure that this training


[[Page 52]]

special provision is made applicable to such subcontract. Where 
feasible, 25 percent of apprentices or trainees in each occupation shall 
be in their first year of apprenticeship or training.
    The number of trainees shall be distributed among the work 
classifications on the basis of the contractor's needs and the 
availability of journeymen in the various classifications within a 
reasonable area of recruitment. Prior to commencing construction, the 
contractor shall submit to the State highway agency for approval the 
number of trainees to be trained in each selected classification and 
training program to be used. Furthermore, the contractor shall specify 
the starting time for training in each of the classifications. The 
contractor will be credited for each trainee employed by him on the 
contract work who is currently enrolled or becomes enrolled in an 
approved program and will be reimbursed for such trainees as provided 
hereinafter.
    Training and upgrading of minorities and women toward journeymen 
status is a primary objective of this Training Special Provision. 
Accordingly, the contractor shall make every effort to enroll minority 
trainees and women (e.g., by conducting systematic and direct 
recruitment through public and private sources likely to yield minority 
and women trainees) to the extent that such persons are available within 
a reasonable area of recruitment. The contractor will be responsible for 
demonstrating the steps that he has taken in pursuance thereof, prior to 
a determination as to whether the contractor is in compliance with this 
Training Special Provision. This training commitment is not intended, 
and shall not be used, to discriminate against any applicant for 
training, whether a member of a minority group or not.
    No employee shall be employed as a trainee in any classification in 
which he has successfully completed a training course leading to 
journeyman status or in which he has been employed as a journeyman. The 
contractor should satisfy this requirement by including appropriate 
questions in the employee application or by other suitable means. 
Regardless of the method used the contractor's records should document 
the findings in each case.
    The minimum length and type of training for each classification will 
be as established in the training program selected by the contractor and 
approved by the State highway agency and the Federal Highway 
Administration. The State highway agency and the Federal Highway 
Administration shall approve a program if it is reasonably calculated to 
meet the equal employment opportunity obligations of the contractor and 
to qualify the average trainee for journeyman status in the 
classification concerned by the end of the training period. Furthermore, 
apprenticeship programs registered with the U.S. Department of Labor, 
Bureau of Apprenticeship and Training, or with a State apprenticeship 
agency recognized by the Bureau and training programs approved but not 
necessarily sponsored by the U.S. Department of Labor, Manpower 
Administration, Bureau of Apprenticeship and Training shall also be 
considered acceptable provided it is being administered in a manner 
consistent with the equal employment obligations of Federal-aid highway 
construction contracts. Approval or acceptance of a training program 
shall be obtained from the State prior to commencing work on the 
classification covered by the program. It is the intention of these 
provisions that training is to be provided in the construction crafts 
rather than clerk-typists or secretarial-type positions. Training is 
permissible in lower level management positions such as office 
engineers, estimators, timekeepers, etc., where the training is oriented 
toward construction applications. Training in the laborer classification 
may be permitted provided that significant and meaningful training is 
provided and approved by the division office. Some offsite training is 
permissible as long as the training is an integral part of an approved 
training program and does not comprise a significant part of the overall 
training.
    Except as otherwise noted below, the contractor will be reimbursed 
80 cents per hour of training given an employee on this contract in 
accordance with an approved training program. As approved by the 
engineer, reimbursement will be made for training persons in excess of 
the number specified herein. This reimbursement will be made even though 
the contractor receives additional training program funds from other 
sources, provided such other does not specifically prohibit the 
contractor from receiving other reimbursement. Reimbursement for offsite 
training indicated above may only be made to the contractor where he 
does one or more of the following and the trainees are concurrently 
employed on a Federal-aid project; contributes to the cost of the 
training, provides the instruction to the trainee or pays the trainee's 
wages during the offsite training period.
    No payment shall be made to the contractor if either the failure to 
provide the required training, or the failure to hire the trainee as a 
journeyman, is caused by the contractor and evidences a lack of good 
faith on the part of the contractor in meeting the requirements of this 
Training Special Provision. It is normally expected that a trainee will 
begin his training on the project as soon as feasible after start of 
work utilizing the skill involved and remain on the project as long as 
training opportunities exist in his work classification or until he has 
completed his training program. It is not required that all trainees be 
on board for the entire length

[[Page 53]]

of the contract. A contractor will have fulfilled his responsibilities 
under this Training Special Provision if he has provided acceptable 
training to the number of trainees specified. The number trained shall 
be determined on the basis of the total number enrolled on the contract 
for a significant period.
    Trainees will be paid at least 60 percent of the appropriate minimum 
journeyman's rate specified in the contract for the first half of the 
training period, 75 percent for the third quarter of the training 
period, and 90 percent for the last quarter of the training period, 
unless apprentices or trainees in an approved existing program are 
enrolled as trainees on this project. In that case, the appropriate 
rates approved by the Departments of Labor or Transportation in 
connection with the existing program shall apply to all trainees being 
trained for the same classification who are covered by this Training 
Special Provision.
    The contractor shall furnish the trainee a copy of the program he 
will follow in providing the training. The contractor shall provide each 
trainee with a certification showing the type and length of training 
satisfactorily completed.
    The contractor will provide for the maintenance of records and 
furnish periodic reports documenting his performance under this Training 
Special Provision.

[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981]

[[Page 54]]



     Sec. Appendix C to Subpart A of Part 230--Federal-Aid Highway 
              Contractors Annual EEO Report (Form PR-1391)
[GRAPHIC] [TIFF OMITTED] TC14OC91.000


[[Page 55]]





     Sec. Appendix D to Subpart A of Part 230--Federal-Aid Highway 
         Construction Summary of Employment Data (Form PR-1392)
[GRAPHIC] [TIFF OMITTED] TC14OC91.001

                  General Information and Instructions

    This form is to be developed from the ``Contractor's Annual EEO 
Report.'' This data is to be compiled by the State and submitted 
annually. It should reflect the total employment on all Federal-Aid 
Highway Projects in the State as of July 31st. The

[[Page 56]]

staffing figures to be reported should represent the project work force 
on board in all or any part of the last payroll period preceding the end 
of July. The staffing figures to be reported in Table A should include 
journey-level men and women, apprentices, and on-the-job trainees. 
Staffing figures to be reported in Table B should include only 
apprentices and on-the-job trainees as indicated.
    Entries made for ``Job Categories'' are to be confined to the 
listing shown. Miscellaneous job classifications are to be incorporated 
in the most appropriate category listed on the form. All employees on 
projects should thus be accounted for.
    This information will be useful in complying with the U.S. Senate 
Committee on Public Works request that the Federal Highway 
Administration submit a report annually on the status of the Equal 
Employment Opportunity Program, its effectiveness, and progress made by 
the States and the Administration in carrying out section 22(A) of the 
Federal-Aid Highway Act of 1968. In addition, the form should be used as 
a valuable tool for States to evaluate their own programs for ensuring 
equal opportunity.
    It is requested that States submit this information annually to the 
FHWA Divisions no later than September 25.
    Line 01--State & Region Code. Enter the 4-digit code from the list 
below.

Alabama.....................     01-04  Montana...............     30-08
Alaska......................     02-10  Nebraska..............     31-07
Arizona.....................     04-09  Nevada................     32-09
Arkansas....................     05-06  New Hampshire.........     33-01
California..................     06-09  New Jersey............     34-01
Colorado....................     08-08  New Mexico............     35-06
Delaware....................     10-03  North Carolina........     37-04
District of Columbia........     11-03  North Dakota..........     38-08
Florida.....................     12-04  Ohio..................     39-05
Georgia.....................     13-04  Oklahoma..............     40-06
Hawaii......................     15-09  Oregon................     41-10
Idaho.......................     16-10  Pennsylvania..........     42-03
Illinois....................     17-05  Puerto Rico...........     43-01
Iowa........................     19-07  South Carolina........     45-04
Kansas......................     20-07  South Dakota..........     46-08
Kentucky....................     21-04  Tennessee.............     47-04
Louisiana...................     22-06  Texas.................     48-06
Maine.......................     23-01  Utah..................     49-08
Maryland....................     24-03  Vermont...............     50-01
Massachusetts...............     25-01  Virginia..............     51-03
Michigan....................     26-05  Washington............     53-10
Minnesota...................     27-05  West Virginia.........     54-03
Mississippi.................     28-04  Wisconsin.............     55-05
Missouri....................     29-07  Wyoming...............     56-08
 


(23 U.S.C. sec. 140(a), 315, 49 CFR 1.48(b))

[44 FR 46832, Aug. 8, 1979. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981, and amended at 56 FR 4721, Feb. 6, 1991]



         Sec. Appendixes E-F to Subpart A of Part 230 [Reserved]



Sec. Appendix G to Subpart A of Part 230--Special Reporting Requirements 
               for ``Hometown'' or ``Imposed'' Plan Areas

    In addition to the reporting requirements set forth elsewhere in 
this contract the contractor and the subcontractors holding 
subcontracts, not including material suppliers, of $10,000 or more, 
shall submit for every month of July during which work is performed, 
employment data as contained under Form PR-1391 (appendix C to 23 CFR 
part 230) and in accordance with the instructions included thereon.

[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981]



  Subpart B_Supportive Services for Minority, Disadvantaged, and Women 
                          Business Enterprises

    Source: 50 FR 51243, Dec. 16, 1985, unless otherwise noted.



Sec.  230.201  Purpose.

    To prescribe the policies, procedures, and guidance to develop, 
conduct, and administer supportive services assistance programs for 
minority, disadvantaged, and women business enterprises.



Sec.  230.202  Definitions.

    (a) Minority Business Enterprise, as used in this subpart, refers to 
all small

[[Page 57]]

businesses which participate in the Federal-aid highway program as a 
minority business enterprise (MBE), women business enterprise (WBE), or 
disadvantaged business enterprise (DBE), all defined under 49 CFR part 
23. This expanded definition is used only in this subpart as a 
simplified way of defining the firms eligible to benefit from this 
supportive services program.
    (b) Supportive Services means those services and activities provided 
in connection with minority business enterprise programs which are 
designed to increase the total number of minority businesses active in 
the highway program and contribute to the growth and eventual self-
sufficiency of individual minority businesses so that such businesses 
may achieve proficiency to compete, on an equal basis, for contracts and 
subcontracts.
    (c) State highway agency means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction. The term State is considered equivalent to State 
highway agency if the context so implies.



Sec.  230.203  Policy.

    Based on the provisions of Pub. L. 97-424, dated January 6, 1983, it 
is the policy of the Federal Highway Administration (FHWA) to promote 
increased participation of minority business enterprises in Federal-aid 
highway contracts in part through the development and implementation of 
cost effective supportive services programs through the State highway 
agencies.



Sec.  230.204  Implementation of supportive services.

    (a) Subject to the availability of funds under 23 U.S.C. 140(c), the 
State highway agency shall establish procedures to develop, conduct, and 
administer minority business enterprise training and assistance programs 
specifically for the benefit of women and minority businesses. 
Supportive services funds allocated to the States shall not be used to 
finance the training of State highway agency employees or to provide 
services in support of such training. State highway agencies are not 
required to match funds allocated to them under this section. Individual 
States are encouraged to be actively involved in the provision of 
supportive services. Such involvement can take the form of staff, 
funding, and/or direct assistance to augment the supportive services 
efforts financed by Federal-aid funds.
    (b) State highway agencies shall give preference to the following 
types of services:
    (1) Services relating to identification, prequalification, and 
certification assistance, with emphasis on increasing the total number 
of legitimate minority business enterprises participating in the 
Federal-aid highway program;
    (2) Services in connection with estimating, bidding, and technical 
assistance designed to develop and improve the capabilities of minority 
businesses and assist them in achieving proficiency in the technical 
skills involved in highway construction;
    (3) Services designed to develop and improve the immediate and long-
term business management, recordkeeping, and financial accounting 
capabilities;
    (4) Services to assist minority business enterprises to become 
eligible for and to obtain bonding and financial assistance;
    (5) Services relating to verification procedures to ensure that only 
bona fide minority business enterprises are certified as eligible for 
participation in the Federal-aid highway program;
    (6) Follow-up services to ascertain the outcome of training and 
assistance being provided; and
    (7) Other services which contribute to long-term development, 
increased opportunities, and eventual self-sufficiency of minority 
business enterprises.
    (c) A detailed work statement of the supportive services which the 
State highway agency considers to meet the guidance under this 
regulation and a program plan for meeting the requirements of paragraph 
(b) of this section and accomplishing other objectives shall be 
submitted to the FHWA for approval.
    (d) State highway agencies which desire to provide or obtain 
services other than those listed in paragraph (b) of this section shall 
submit their proposals to the FHWA for approval.

[[Page 58]]

    (e) When the State highway agency provides supportive services by 
contract, formal advertising is not required by FHWA; however, the State 
highway agency shall solicit proposals from such qualified sources as 
will assure the competitive nature of the procurement. The evaluation of 
proposals by the State highway agency must include consideration of the 
proposer's ability to effect a productive relationship with majority and 
minority contractors, contractors' associations, minority groups, and 
other persons or organizations whose cooperation and assistance will 
increase the opportunities for minority business enterprises to compete 
for and perform contracts and subcontracts.
    (f) In the selection of contractors to perform supportive services, 
State highway agencies shall make conscientious efforts to search out, 
and utilize the services of qualified minority or women organizations, 
or minority or women enterprises.
    (g) As a minimum, State highway agency contracts to obtain 
supportive services shall include the following provisions:
    (1) A statement that a primary purpose of the supportive services is 
to increase the total number of minority firms participating in the 
Federal-aid highway program and to contribute to the growth and eventual 
self-sufficiency of minority firms;
    (2) A statement that supportive services shall be provided only to 
those minority business enterprises determined to be eligible for 
participation in the Federal-aid highway program in accordance with 49 
CFR part 23 and have a work specialty related to the highway 
construction industry;
    (3) A clear and complete statement of the services to be provided 
under the contract, such as technical assistance, managerial assistance, 
counseling, certification assistance, and follow-up procedures as set 
forth in Sec.  230.204(b) of this part;
    (4) The nondiscrimination provisions required by Title VI of the 
Civil Rights Act of 1964 as set forth in Form FHWA-1273, Required 
Contract Provisions, Federal-Aid Construction Contracts, \1\ and a 
statement of nondiscrimination in employment because of race, color, 
religion, sex, or national origin;
---------------------------------------------------------------------------

    \1\ Form FHWA-1273 is available for inspection and copying at the 
locations given in 49 CFR part 7, appendix D, under Document Inspection 
Facilities, and at all State highway agencies.
---------------------------------------------------------------------------

    (5) The establishment of a definite period of contract performance 
together with, if appropriate, a schedule stating when specific 
supportive services are to be provided;
    (6) Monthly or quarterly reports to the State highway agency 
containing sufficient data and narrative content to enable evaluation of 
both progress and problems;
    (7) The basis of payment;
    (8) An estimated schedule for expenditures;
    (9) The right of access to records and the right to audit shall be 
granted to authorize State highway agency and FHWA officials;
    (10) Noncollusion certification;
    (11) A requirement that the contractor provide all information 
necessary to support progress payments if such are provided for in the 
contract; and
    (12) A termination clause.
    (h) The State highway agency is to furnish copies of the reports 
received under paragraph (g)(6) of this section to the FHWA division 
office.

[50 FR 51243, Dec. 16, 1985, as amended at 52 FR 36922, Oct. 2, 1987]



Sec.  230.205  Supportive services funds obligation.

    Supportive services funds shall be obligated in accordance with the 
procedures set forth in Sec.  230.117(b) of this part. The point of 
obligation is defined as that time when the FHWA has approved a detailed 
work statement for the supportive services.



Sec.  230.206  Monitoring supportive services.

    Supportive services programs shall be continually monitored and 
evaluated by the State highway agency so that needed improvements can be 
identified and instituted. This requires the documentation of valid 
effectiveness

[[Page 59]]

measures by which the results of program efforts may be accurately 
assessed.



Sec.  230.207  Sources of assistance.

    It is the policy of the FHWA that all potential sources of 
assistance to minority business enterprises be utilized. The State 
highway agency shall take actions to ensure that supportive services 
contracts reflect the availability of all sources of assistance in order 
to maximize resource utilization and avoid unnecessary duplication.



  Subpart C_State Highway Agency Equal Employment Opportunity Programs

    Source: 41 FR 28270, July 9, 1976, unless otherwise noted.



Sec.  230.301  Purpose.

    The purpose of the regulations in this subpart is to set forth 
Federal Highway Administration (FHWA) Federal-aid policy and FHWA and 
State responsibilities relative to a State highway agency's internal 
equal employment opportunity program and for assuring compliance with 
the equal employment opportunity requirements of federally-assisted 
highway construction contracts.



Sec.  230.303  Applicability.

    The provisions of this subpart are applicable to all States that 
receive Federal financial assistance in connection with the Federal-aid 
highway program.



Sec.  230.305  Definitions.

    As used in this subpart, the following definitions apply:
    (a) Affirmative Action Plan means:
    (1) With regard to State highway agency work forces, a written 
document detailing the positive action steps the State highway agency 
will take to assure internal equal employment opportunity (internal 
plan).
    (2) With regard to Federal-aid construction contract work forces, 
the Federal equal employment opportunity bid conditions, to be enforced 
by a State highway agency in the plan areas established by the Secretary 
of Labor and FHWA special provisions in nonplan areas (external plan).
    (b) Equal employment opportunity program means the total State 
highway agency program, including the affirmative action plans, for 
ensuring compliance with Federal requirements both in State highway 
agency internal employment and in employment on Federal-aid construction 
projects.
    (c) Minority groups. An employee may be included in the minority 
group to which he or she appears to belong, or is regarded in the 
community as belonging. As defined by U.S. Federal agencies for 
employment purposes, minority group persons in the U.S. are identified 
as Blacks (not of Hispanic origin), Hispanics, Asian or Pacific 
Islanders, and American Indians or Alaskan Natives.
    (d) Racial/ethnic identification. For the purpose of this regulation 
and any accompanying report requirements, an employee may be included in 
the group to which he or she appears to belong, identifies with, or is 
regarded in the community as belonging. However, no person should be 
counted in more than one racial/ethnic category. The following group 
categories will be used:
    (1) The category White (not of Hispanic origin): All persons having 
origins in any of the original peoples of Europe, North Africa, the 
Middle East, or the Indian Subcontinent.
    (2) The category Black (not of Hispanic origin): All persons having 
origins in any of the Black racial groups.
    (3) The category Hispanic: All persons of Mexican, Puerto Rican, 
Cuban, Central or South American, or other Spanish culture or origin, 
regardless of race.
    (4) The category Asian or Pacific Islanders: All persons having 
origins in any of the original peoples of the Far East, Southeast Asia, 
or the Pacific Islands. This area includes, for example, China, Japan, 
Korea, the Philippine Islands, and Samoa.
    (5) The category American Indian or Alaskan Native: All persons 
having origins in any of the original peoples of North America.
    (e) State means any of the 50 States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, American 
Samoa, and the Virgin Islands.

[[Page 60]]

    (f) State highway agency means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction. The term State should be considered equivalent to 
State highway agency if the context so implies.

[41 FR 28270, July 9, 1976, as amended at 41 FR 46293, Oct. 20, 1976]



Sec.  230.307  Policy.

    Every employee and representative of State highway agencies shall 
perform all official equal employment opportunity actions in an 
affirmative manner, and in full accord with applicable statutes, 
executive orders, regulations, and policies enunciated thereunder, to 
assure the equality of employment opportunity, without regard to race, 
color, religion, sex, or national origin both in its own work force and 
in the work forces of contractors, subcontractors, and material 
suppliers engaged in the performance of Federal-aid highway construction 
contracts.



Sec.  230.309  Program format.

    It is essential that a standardized Federal approach be taken in 
assisting the States in development and implementation of EEO programs. 
The format set forth in appendix A provides that standardized approach. 
State equal employment opportunity programs that meet or exceed the 
prescribed standards will comply with basic FHWA requirements.



Sec.  230.311  State responsibilities.

    (a) Each State highway agency shall prepare and submit an updated 
equal employment opportunity program, one year from the date of approval 
of the preceding program by the Federal Highway Administrator, over the 
signature of the head of the State highway agency, to the Federal 
Highway Administrator through the FHWA Division Administrator. The 
program shall consist of the following elements:
    (1) The collection and analysis of internal employment data for its 
entire work force in the manner prescribed in part II, paragraph III of 
appendix A; and
    (2) The equal employment opportunity program, including the internal 
affirmative action plan, in the format and manner set forth in appendix 
A.
    (b) In preparation of the program required by Sec.  230.311(a), the 
State highway agency shall consider and respond to written comments from 
FHWA regarding the preceding program.



Sec.  230.313  Approval procedure.

    After reviewing the State highway agency equal employment 
opportunity program and the summary analysis and recommendations from 
the FHWA regional office, the Washington Headquarters Office of Civil 
Rights staff will recommend approval or disapproval of the program to 
the Federal Highway Administrator. The State highway agency will be 
advised of the Administrator's decision. Each program approval is 
effective for a period of one year from date of approval.



  Sec. Appendix A to Subpart C of Part 230--State Highway Agency Equal 
                     Employment Opportunity Programs

    Each State highway agency's (SHA) equal employment opportunity (EEO) 
program shall be in the format set forth herein and shall address 
Contractor Compliance (part I) and SHA Internal Employment (part II), 
including the organizational structure of the SHA total EEO Program 
(internal and external).

                      part i--contractor compliance

    I. Organization and structure. A. Statehighway agency EEO 
Coordinator (External) and staff support. 1. Describe the organizational 
location and responsibilities of the State highway agency EEO 
Coordinator. (Provided organization charts of the State highway agency 
and of the EEO staff.)
    2. Indicate whether full or part-time; if part-time, indicate 
percentage of time devoted to EEO.
    3. Indicate length of time in position, civil rights experience and 
training, and supervision.
    4. Indicate whether compliance program is centralized or 
decentralized.
    5. Identify EEO Coordinator's staff support (full- and part-time) by 
job title and indicate areas of their responsibilities.
    6. Identify any other individuals in the central office having a 
responsibility for the implementation of this program and describe their 
respective roles and training received in program area.
    B. District or division personnel. 1. Describe the responsibilities 
and duties of any district

[[Page 61]]

EEO personnel. Identify to whom they report.
    2. Explain whether district EEO personnel are full-time or have 
other responsibilities such as labor compliance or engineering.
    3. Describe training provided for personnel having EEO compliance 
responsibility.
    C. Project personnel. Describe the EEO role of project personnel.
    II. Compliance procedures. A. Applicable directives. 1. FHWA 
Contract Compliance Procedures.
    2. EEO Special Provisions (FHWA Federal-Aid Highway Program Manual, 
vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 1) \1\
---------------------------------------------------------------------------

    \1\ The Federal-Aid Highway Program Manual is available for 
inspection and copying at the Federal Highway Administration (FHWA), 
1200 New Jersey Avenue, SE., Washington, DC 20590, or at FHWA offices 
listed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    3. Training Special Provisions (FHWA Federal-Aid Highway Program 
Manual, vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 2) \1\
    4. FHWA Federal-Aid Highway Program Manual, vol. 6, chap. 4, sec. 1, 
subsec. 6 (Contract Procedures), and subsec. 8 (Minority Business 
Enterprise). \1\
    B. Implementation. 1. Describe process (methods) of incorporating 
the above FHWA directives into the SHA compliance program.
    2. Describe the methods used by the State to familiarize State 
compliance personnel with all FHWA contract compliance directives. 
Indicate frequency of work shops, training sessions, etc.
    3. Describe the procedure for advising the contractor of the EEO 
contract requirements at any preconstruction conference held in 
connection with a Federal-aid contract.
    III. Accomplishments. Describe accomplishments in the construction 
EEO compliance program during the past fiscal year.
    A. Regular project compliance review program. This number should 
include at least all of the following items:
    1. Number of compliance reviews conducted.
    2. Number of contractors reviewed.
    3. Number of contractors found in compliance.
    4. Number of contractors found in noncompliance.
    5. Number of show cause notices issued.
    6. Number of show cause notices rescinded.
    7. Number of show cause actions still under conciliation and 
unresolved.
    8. Number of followup reviews conducted.

    (Note: In addition to information requested in items 4-8 above, 
include a brief summary of total show cause and followup activities--
findings and achievements.)

    B. Consolidated compliance reviews. 1. Identify the target areas 
that have been reviewed since the inception of the consolidated 
compliance program. Briefly summarize total findings.
    2. Identify any significant impact or effect of this program on 
contractor compliance.
    C. Home office reviews. If the State conducts home office reviews, 
describe briefly the procedures followed by State.
    D. Major problems encountered. Describe major problems encountered 
in connection with any review activities during the past fiscal year.
    E. Major breakthroughs. Comment briefly on any major breakthrough or 
other accomplishment significant to the compliance review program.
    IV. Areawide plans/Hometown and Imposed (if applicable). A. Provide 
overall analysis of the effectiveness of each areawide plan in the 
State.
    B. Indicate by job titles the number of State personnel involved in 
the collection, consolidation, preparation, copying, reviewing, 
analysis, and transmittal of area plan reports (Contracting Activity and 
Post Contract Implementation). Estimate the amount of time (number of 
hours) spent collectively on this activity each month. How does the 
State use the plan report data?
    C. Identify Office of Federal Contract Compliance Programs (OFCCP) 
area plan audits or compliance checks in which State personnel 
participated during the last fiscal year. On the average, how many hours 
have been spent on these audits and/or checks during the past fiscal 
year?
    D. Describe the working relationship of State EEO compliance 
personnel with representatives of plan administrative committee(s).
    E. Provide recommendations for improving the areawide plan program 
and the reporting system.
    V. Contract sanctions. A. Describe the procedures used by the State 
to impose contract sanctions or institute legal proceedings.
    B. Indicate the State or Federal laws which are applicable.
    C. Does the State withhold a contractor's progress payments for 
failure to comply with EEO requirements? If so, identify contractors 
involved in such actions during the past fiscal year. If not, identify 
other actions taken.
    VI. Complaints. A. Describe the State's procedures for handling 
discrimination complaints against contractors.
    B. If complaints are referred to a State fair employment agency or 
similar agency, describe the referral procedure.
    C. Identify the Federal-aid highway contractors that have had 
discrimination complaints filed against them during the past fiscal year 
and provide current status.
    VII. External training programs, including supportive services. A. 
Describe the State's process for reviewing the work classifications of 
trainees to determine that there is a

[[Page 62]]

proper and reasonable distribution among appropriate craft.
    B. Describe the State's procedures for identifying the number of 
minorities and women who have completed training programs.
    C. Describe the extent of participation by women in construction 
training programs.
    D. Describe the efforts made by the State to locate and use the 
services of qualified minority and female supportive service 
consultants. Indicate if the State's supportive service contractor is a 
minority or female owned enterprise.
    E. Describe the extent to which reports from the supportive service 
contractors provide sufficient data to evaluate the status of training 
programs, with particular reference to minorities and women.
    VIII. Minority business enterprise program. FHPM 6-4-1-8 sets forth 
the FHWA policy regarding the minority business enterprise program. The 
implementation of this program should be explained by responding to the 
following:
    A. Describe the method used for listing of minority contractors 
capable of, or interested in, highway construction contracting or 
subcontracting. Describe the process used to circulate names of 
appropriate minority firms and associations to contractors obtaining 
contract proposals.
    B. Describe the State's procedure for insuring that contractors take 
action to affirmatively solicit the interest, capability, and prices of 
potential minority subcontractors.
    C. Describe the State's procedure for insuring that contractors have 
designated liaison officers to administer the minority business 
enterprise program in an effective manner. Specify resource material, 
including contracts, which the State provides to liaison officers.
    D. Describe the action the State has taken to meet its goals for 
prequalification or licensing of minority business. Include dollar goals 
established for the year, and describe what criteria or formula the 
State has adopted for setting such goals. If it is different from the 
previous year, describe in detail.
    E. Outline the State's procedure for evaluating its 
prequalification/licensing requirements.
    F. Identify instances where the State has waived prequalification 
for subcontractors on Federal-aid construction work or for prime 
contractors on Federal-aid contracts with an estimated dollar value 
lower than $100,000.
    G. Describe the State's methods of monitoring the progress and 
results of its minority business enterprise efforts.
    IX. Liaison. Describe the liaison established by the State between 
public (State, county, and municpal) agencies and private organizations 
involved in EEO programs. How is the liaison maintained on a continuing 
basis?
    X. Innovative programs. Identify any innovative EEO programs or 
management procedures initiated by the State and not previously covered.

                part ii--state highway agency employment

    I. General. The State highway agency's (SHA) internal program is an 
integral part of the agency's total activities. It should include the 
involvement, commitment and support of executives, managers, supervisors 
and all other employees. For effective administration and implementation 
of the EEO Program, an affirmative action plan (AAP) is required. The 
scope of an EEO program and an AAP must be comprehensive, covering all 
elements of the agency's personnel management policies and practices. 
The major part of an AAP must be recognition and removal of any barriers 
to equal employment opportunity, identification of problem areas and of 
persons unfairly excluded or held back and action enabling them to 
compete for jobs on an equal basis. An effective AAP not only benefits 
those who have been denied equal employment opportunity but will also 
greatly benefit the organization which often has overlooked, screened 
out or underutilized the great reservoir of untapped human resources and 
skills, especially among women and minority groups.
    Set forth are general guidelines designed to assist the State 
highway agencies in implementing internal programs, including the 
development and implementation of AAP's to ensure fair and equal 
treatment for all persons, regardless of race, color, religion, sex or 
national origin in all employment practices.
    II. Administration and implementation. The head of each State 
highway agency is responsible for the overall administration of the 
internal EEO program, including the total integration of equal 
opportunity into all facets of personnel management. However, specific 
program responsibilities should be assigned for carrying out the program 
at all management levels.
    To ensure effectiveness in the implementation of the internal EEO 
program, a specific and realistic AAP should be developed. It should 
include both short and long-range objectives, with priorities and target 
dates for achieving goals and measuring progress, according to the 
agency's individual need to overcome existing problems.
    A. State Highway Agency Affirmative Action Officer (internal). 1. 
Appointment of Affirmative Action Officer. The head of the SHA should 
appoint a qualified Affirmative Action (AA) Officer (Internal EEO 
Officer) with responsibility and authority to implement the internal EEO 
program. In making the selection, the following factors should be 
considered:

[[Page 63]]

    a. The person appointed should have proven ability to accomplish 
major program goals.
    b. Managing the internal EEO program requires a major time 
commitment; it cannot be added on to an existing full-time job.
    c. Appointing qualified minority and/or female employees to head or 
staff the program may offer good role models for present and potential 
employees and add credibility to the programs involved. However, the 
most essential requirements for such position(s) are sensitivity to 
varied ways in which discrimination limits job opportunities, commitment 
to program goals and sufficient status and ability to work with others 
in the agency to achieve them.
    2. Responsibilities of the Affirmative Action Officer. The 
responsibilities of the AA Officer should include, but not necessarily 
be limited to:
    a. Developing the written AAP.
    b. Publicizing its content internally and externally.
    c. Assisting managers and supervisors in collecting and analyzing 
employment data, identifying problem areas, setting goals and timetables 
and developing programs to achieve goals. Programs should include 
specific remedies to eliminate any discriminatory practices discovered 
in the employment system.
    d. Handling and processing formal discrimination complaints.
    e. Designing, implementing and monitoring internal audit and 
reporting systems to measure program effectiveness and to determine 
where progress has been made and where further action is needed.
    f. Reporting, at least quarterly, to the head of the SHA on progress 
and deficiencies of each unit in relation to agency goals.
    g. In addition, consider the creation of:
    (1) An EEO Advisory Committee, whose membership would include top 
management officials,
    (2) An EEO Employee Committee, whose membership would include rank 
and file employees, with minority and female representatives from 
various job levels and departments to meet regularly with the AA 
officer, and
    (3) An EEO Counseling Program to attempt informal resolution of 
discrimination complaints.
    B. Contents of an affirmative action plan. The Affirmative Action 
Plan (AAP) is an integral part of the SHA's EEO program. Although the 
style and format of AAP's may vary from one SHA to another, the basic 
substance will generally be the same. The essence of the AAP should 
include, but not necessarily be limited to:
    1. Inclusion of a strong agency policy statement of commitment to 
EEO.
    2. Assignment of responsibility and authority for program to a 
qualified individual.
    3. A survey of the labor market area in terms of population makeup, 
skills, and availability for employment.
    4. Analyzing the present work force to identify jobs, departments 
and units where minorities and females are underutilized.
    5. Setting specific, measurable, attainable hiring and promotion 
goals, with target dates, in each area of underutilization.
    6. Making every manager and supervisor responsible and accountable 
for meeting these goals.
    7. Reevaluating job descriptions and hiring criteria to assure that 
they reflect actual job needs.
    8. Finding minorities and females who are qualified or qualifiable 
to fill jobs.
    9. Getting minorities and females into upward mobility and relevant 
training programs where they have not had previous access.
    10. Developing systems to monitor and measure progress regularly. If 
results are not satisfactory to meet goals, determine the reasons and 
make necessary changes.
    11. Developing a procedure whereby employees and applicants may 
process allegations of discrimination to an impartial body without fear 
of reprisal.
    C. Implementation of an affirmative action plan. The written AAP is 
the framework and management tool to be used at all organizational 
levels to actively implement, measure and evaluate program progress on 
the specific action items which represent EEO program problems or 
deficiencies. The presence of a written plan alone does not constitute 
an EEO program, nor is it, in itself, evidence of an ongoing program. As 
a minimum, the following specific actions should be taken.
    1. Issue written equal employment opportunity policy statement and 
affirmative action commitment. To be effective, EEO policy provisions 
must be enforced by top management, and all employees must be made aware 
that EEO is basic agency policy. The head of the SHA (1) should issue a 
firm statement of personal commitment, legal obligation and the 
importance of EEO as an agency goal, and (2) assign specific 
responsibility and accountability to each executive, manager and 
supervisor.
    The statement should include, but not necessarily be limited to, the 
following elements:
    a. EEO for all persons, regardless of race, color, religion, sex or 
national origin as a fundamental agency policy.
    b. Personal commitment to and support of EEO by the head of the SHA.
    c. The requirement that special affirmative action be taken 
throughout the agency to overcome the effects of past discrimination.
    d. The requirement that the EEO program be a goal setting program 
with measurement

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and evaluation factors similar to other major agency programs.
    e. Equal opportunity in all employment practices, including (but not 
limited to) recruiting, hiring, transfers, promotions, training, 
compensation, benefits, recognition (awards), layoffs, and other 
terminations.
    f. Responsibility for positive affirmative action in the discharge 
of EEO programs, including performance evaluations of managers and 
supervisors in such functions, will be expected of and shared by all 
management personnel.
    g. Accountability for action or inaction in the area of EEO by 
management personnel.
    2. Publicize the affirmative action plan. a. Internally: (1) 
Distribute written communications from the head of the SHA.
    (2) Include the AAP and the EEO policy statement in agency 
operations manual.
    (3) Hold individual meetings with managers and supervisors to 
discuss the program, their individual responsibilities and to review 
progress.
    (4) Place Federal and State EEO posters on bulletin boards, near 
time clocks and in personnel offices.
    (5) Publicize the AAP in the agency newsletters and other 
publications.
    (6) Present and discuss the AAP as a part of employee orientation 
and all training programs.
    (7) Invite employee organization representatives to cooperate and 
assist in developing and implementing the AAP.
    b. Externally: Distribute the AAP to minority groups and women's 
organizations, community action groups, appropriate State agencies, 
professional organizations, etc.
    3. Develop and implement specific programs to eliminate 
discriminatory barriers and achieve goals. a. Job structuring and upward 
mobility: The AAP should include specific provisions for:
    (1) Periodic classification plan reviews to correct inaccurate 
position descriptions and to ensure that positions are allocated to the 
appropriate classification.
    (2) Plans to ensure that all qualification requirements are closely 
job related.
    (3) Efforts to restructure jobs and establish entry level and 
trainee positions to facilitate progression within occupational areas.
    (4) Career counseling and guidance to employees.
    (5) Creating career development plans for lower grade employees who 
are underutilized or who demonstrate potential for advancement.
    (6) Widely publicizing upward mobility programs and opportunities 
within each work unit and within the total organizational structure.
    b. Recruitment and placement. The AAP should include specific 
provisions for, but not necessarily limited to:
    (1) Active recruitment efforts to support and supplement those of 
the central personnel agency or department, reaching all appropriate 
sources to obtain qualified employees on a nondiscriminatory basis.
    (2) Maintaining contracts with organizations representing minority 
groups, women, professional societies, and other sources of candidates 
for technical, professional and management level positions.
    (3) Ensuring that recruitment literature is relevant to all 
employees, including minority groups and women.
    (4) Reviewing and monitoring recruitment and placement procedures so 
as to assure that no discriminatory practices exist.
    (5) Cooperating with management and the central personnel agency on 
the review and validation of written tests and other selection devices.
    (6) Analyzing the flow of applicants through the selection and 
appointment process, including an analytical review of reasons for 
rejections.
    (7) Monitoring the placement of employees to ensure the assignment 
of work and workplace on a nondiscriminatory basis.
    c. Promotions. The AAP should include specific provisions for, but 
not necessarily limited to:
    1. Establishing an agency-wide merit promotion program, including a 
merit promotion plan, to provide equal opportunity for all persons based 
on merit and without regard to race, color, religion, sex or national 
origin.
    2. Monitoring the operation of the merit promotion program, 
including a review of promotion actions, to assure that requirements 
procedures and practices support EEO program objectives and do not have 
a discriminatory impact in actual operation.
    3. Establishing skills banks to match employee skills with available 
job advancement opportunities.
    4. Evaluating promotion criteria (supervisory evaluations, oral 
interviews, written tests, qualification standards, etc.) and their use 
by selecting officials to identify and eliminate factors which may lead 
to improper ``selection out'' of employees or applicants, particularly 
minorities and women, who traditionally have not had access to better 
jobs. It may be appropriate to require selecting officials to submit a 
written justification when well qualified persons are passed over for 
upgrading or promotion.
    5. Assuring that all job vacancies are posted conspicuously and that 
all employees are encouraged to bid on all jobs for which they feel they 
are qualified.
    6. Publicizing the agency merit promotion program by highlighting 
breakthrough promotions, i.e., advancement of minorities and women to 
key jobs, new career heights, etc.

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    d. Training. The AAP should include specific provisions for, but not 
necessarily limited to:
    (1) Requiring managers and supervisors to participate in EEO 
seminars covering the AAP, the overall EEO program and the 
administration of the policies and procedures incorporated therein, and 
on Federal, State and local laws relating to EEO.
    (2) Training in proper interviewing techniques of employees who 
conduct employment selection interviews.
    (3) Training and education programs designed to provide 
opportunities for employees to advance in relation to the present and 
projected manpower needs of the agency and the employees' career goals.
    (4) The review of profiles of training course participants to ensure 
that training opportunities are being offered to all eligible employees 
on an equal basis and to correct any inequities discovered.
    e. Layoffs, recalls, discharges, demotions, and disciplinary 
actions. The standards for deciding when a person shall be terminated, 
demoted, disciplined, laid off or recalled should be the same for all 
employees, including minorities and females. Seemingly neutral practices 
should be reexamined to see if they have a disparate effect on such 
groups. For example, if more minorities and females are being laid off 
because they were the last hired, then, adjustments should be made to 
assure that the minority and female ratios do not decrease because of 
these actions.
    (1) When employees, particularly minorities and females, are 
disciplined, laid off, discharged or downgraded, it is advisable that 
the actions be reviewed by the AA Officer before they become final.
    (2) Any punitive action (i.e., harassment, terminations, demotions), 
taken as a result of employees filing discrimination complaints, is 
illegal.
    (3) The following records should be kept to monitor this area of the 
internal EEO program:
    On all terminations, including layoffs and discharges: indicate 
total number, name, (home address and phone number), employment date, 
termination date, recall rights, sex, racial/ethnic identification (by 
job category), type of termination and reason for termination.
    On all demotions: indicate total number, name, (home address and 
phone number), demotion date, sex, racial/ethnic identification (by job 
category), and reason for demotion.
    On all recalls: indicate total number, name, (home address and phone 
number) recall date, sex, and racial/ethnic identification (by job 
category).
    Exit interviews should be conducted with employees who leave the 
employment of the SHA.
    f. Other personnel actions. The AAP should include specific 
provisions for, but not necessarily limited to:
    (1) Assuring that information on EEO counseling and grievance 
procedures is easily available to all employees.
    (2) A system for processing complaints alleging discrimination 
because of race, color, religion, sex or national origin to an impartial 
body.
    (3) A system for processing grievances and appeals (i.e., 
disciplinary actions, adverse actions, adverse action appeals, etc).
    (4) Including in the performance appraisal system a factor to rate 
manager's and supervisors' performance in discharging the EEO program 
responsibilities assigned to them.
    (5) Reviewing and monitoring the performance appraisal program 
periodically to determine its objectivity and effectiveness.
    (6) Ensuring the equal availability of employee benefits to all 
employees.
    4. Program evaluation. An internal reporting system to continually 
audit, monitor and evaluate programs is essential for a successful AAP. 
Therefore, a system providing for EEO goals, timetables, and periodic 
evaluations needs to be established and implemented. Consideration 
should be given to the following actions:
    a. Defining the major objectives of EEO program evaluation.
    b. The evaluation should be directed toward results accomplished, 
not only at efforts made.
    c. The evaluation should focus attention on assessing the adequacy 
of problem identification in the AAP and the extent to which the 
specific action steps in the plan provide solutions.
    d. The AAP should be reviewed and evaluated at least annually. The 
review and evaluation procedures should include, but not be limited to, 
the following:
    (1) Each bureau, division or other major component of the agency 
should make annual and such other periodic reports as are needed to 
provide an accurate review of the operations of the AAP in that 
component.
    (2) The AA Officer should make an annual report to the head of the 
SHA, containing the overall status of the program, results achieved 
toward established objectives, identity of any particular problems 
encountered and recommendations for corrective actions needed.
    e. Specific, numerical goals and objectives should be established 
for the ensuing year. Goals should be developed for the SHA as a whole, 
as well as for each unit and each job category.
    III. Employment statistical data. A. As a minimum, furnish the most 
recent data on the following:
    1. The total population in the State,

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    2. The total labor market in State, with a breakdown by racial/
ethnic identification and sex, and
    3. An analysis of (1) and (2) above, in connection with the 
availability of personnel and jobs within SHA's.
    B. State highway agencies shall use the EEO-4 Form in providing 
current work force data. This data shall reflect only State department 
of transportation/State highway department employment.

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[GRAPHIC] [TIFF OMITTED] TC14OC91.002


[[Page 68]]


[GRAPHIC] [TIFF OMITTED] TC14OC91.003


[41 FR 28270, July 9, 1976, as amended at 41 FR 46294, Oct. 20, 1976; 74 
FR 28442, June 16, 2009]

[[Page 69]]



 Subpart D_Construction Contract Equal Opportunity Compliance Procedures

    Source: 41 FR 34239, Aug. 13, 1976, unless otherwise noted.



Sec.  230.401  Purpose.

    The purpose of the regulations in this subpart is to prescribe 
policies and procedures to standardize the implementation of the equal 
opportunity contract compliance program, including compliance reviews, 
consolidated compliance reviews, and the administration of areawide 
plans.



Sec.  230.403  Applicability.

    The procedures set forth hereinafter apply to all nonexempt direct 
Federal and Federal-aid highway construction contracts and subcontracts, 
unless otherwise specified.



Sec.  230.405  Administrative responsibilities.

    (a) Federal Highway Administration (FHWA) responsibilities. (1) The 
FHWA has the responsibility to ensure that contractors meet contractural 
equal opportunity requirements under E.O. 11246, as amended, and title 
23 U.S.C., and to provide guidance and direction to States in the 
development and implementation of a program to assure compliance with 
equal opportunity requirements.
    (2) The Federal Highway Administrator or a designee may inquire into 
the status of any matter affecting the FHWA equal opportunity program 
and, when considered necessary, assume jurisdiction over the matter, 
proceeding in coordination with the State concerned. This is without 
derogation of the authority of the Secretary of Transportation, 
Department of Transportation (DOT), the Director, DOT Departmental 
Office of Civil Rights (OCR) or the Director, Office of Federal Contract 
Compliance Programs (OFCCP), Department of Labor.
    (3) Failure of the State highway agency (SHA) to discharge the 
responsibilities stated in Sec.  230.405(b)(1) may result in DOT's 
taking any or all of the following actions (see appendix A to 23 CFR 
part 630, subpart C ``Federal-aid project agreement''):
    (i) Cancel, terminate, or suspend the Federal-aid project agreement 
in whole or in part;
    (ii) Refrain from extending any further assistance to the SHA under 
the program with respect to which the failure or refusal occurred until 
satisfactory assurance of future compliance has been received from the 
SHA; and
    (iii) Refer the case to an appropriate Federal agency for legal 
proceedings.
    (4) Action by the DOT, with respect to noncompliant contractors, 
shall not relieve a SHA of its responsibilities in connection with these 
same matters; nor is such action by DOT a substitute for corrective 
action utilized by a State under applicable State laws or regulations.
    (b) State responsibilities. (1) The SHA's, as contracting agencies, 
have a responsibility to assure compliance by contractors with the 
requirements of Federal-aid construction contracts, including the equal 
opportunity requirements, and to assist in and cooperate with FHWA 
programs to assure equal opportunity.
    (2) The corrective action procedures outlined herein do not preclude 
normal contract administration procedures by the States to ensure the 
contractor's completion of specific contract equal opportunity 
requirements, as long as such procedures support, and sustain the 
objectives of E.O. 11246, as amended. The State shall inform FHWA of any 
actions taken against a contractor under normal State contract 
administration procedures, if that action is precipitated in whole or in 
part by noncompliance with equal opportunity contract requirements.



Sec.  230.407  Definitions.

    For the purpose of this subpart, the following definitions shall 
apply, unless the context requires otherwise:
    (a) Actions, identified by letter and number, shall refer to those 
items identified in the process flow chart. (Appendix D);
    (b) Affirmative Action Plan means a written positive management tool 
of a total equal opportunity program indicating the action steps for all 
organizational levels of a contractor to initiate

[[Page 70]]

and measure equal opportunity program progress and effectiveness. (The 
Special Provisions [23 CFR part 230 A, appendix A] and areawide plans 
are Affirmative Action Plans.);
    (c) Affirmative Actions means the efforts exerted towards achieving 
equal opportunity through positive, aggressive, and continuous result-
oriented measures to correct past and present discriminatory practices 
and their effects on the conditions and privileges of employment. These 
measures include, but are not limited to, recruitment, hiring, 
promotion, upgrading, demotion, transfer, termination, compensation, and 
training;
    (d) Areawide Plan means an Affirmative Action Plan approved by the 
Department of Labor to increase minority and female utilization in 
crafts of the construction industry in a specified geographical area 
pursuant to E.O. 11246, as amended, and taking the form of either a 
``Hometown'' or an ``Imposed'' Plan.
    (1) Hometown Plan means a voluntary areawide agreement usually 
developed by representatives of labor unions, minority organizations, 
and contractors, and approved by the OFCCP for the purpose of 
implementing the equal employment opportunity requirements pursuant to 
E.O. 11246, as amended;
    (2) Imposed Plan means mandatory affirmative action requirements for 
a specified geographical area issued by OFCCP and, in some areas, by the 
courts;
    (e) Compliance Specialist means a Federal or State employee 
regularly employed and experienced in civil rights policies, practices, 
procedures, and equal opportunity compliance review and evaluation 
functions;
    (f) Consolidated Compliance Review means a review and evaluation of 
all significant construction employment in a specific geographical 
(target) area;
    (g) Construction shall have the meanings set forth in 41 CFR 60-
1.3(e) and 23 U.S.C. 101(a). References in both definitions to expenses 
or functions incidental to construction shall include preliminary 
engineering work in project development or engineering services 
performed by or for a SHA;
    (h) Corrective Action Plan means a contractor's unequivocal written 
and signed commitment outlining actions taken or proposed, with time 
limits and goals, where appropriate to correct, compensate for, and 
remedy each violation of the equal opportunity requirements as specified 
in a list of deficiencies. (Sometimes called a conciliation agreement or 
a letter of commitment.);
    (i) Contractor means, any person, corporation, partnership, or 
unincorporated association that holds a FHWA direct or federally 
assisted construction contract or subcontract regardless of tier;
    (j) Days shall mean calendar days;
    (k) Discrimination means a distinction in treatment based on race, 
color, religion, sex, or national origin;
    (l) Equal Employment Opportunity means the absence of partiality or 
distinction in employment treatment, so that the right of all persons to 
work and advance on the basis of merit, ability, and potential is 
maintained;
    (m) Equal Opportunity Compliance Review means an evaluation and 
determination of a nonexempt direct Federal or Federal-aid contractor's 
or subcontractor's compliance with equal opportunity requirements based 
on:
    (1) Project work force--employees at the physical location of the 
construction activity;
    (2) Area work force--employees at all Federal-aid, Federal, and non-
Federal projects in a specific geographical area as determined under 
Sec.  230.409 (b)(9); or
    (3) Home office work force--employees at the physical location of 
the corporate, company, or other ownership headquarters or regional 
managerial, offices, including ``white collar'' personnel (managers, 
professionals, technicians, and clericals) and any maintenance or 
service personnel connected thereto;
    (n) Equal Opportunity Requirements is a general term used throughout 
this document to mean all contract provisions relative to equal 
employment opportunity (EEO), subcontracting, and training;
    (o) Good Faith Effort means affirmative action measures designed to 
implement the established objectives of an Affirmative Action Plan;
    (p) Show Cause Notice means a written notification to a contractor 
based

[[Page 71]]

on the determination of the reviewer (or in appropriate cases by higher 
level authority) to be in noncompliance with the equal opportunity 
requirements. The notice informs the contractor of the specific basis 
for the determination and provides the opportunity, within 30 days from 
receipt, to present an explanation why sanctions should not be imposed;
    (q) State highway agency (SHA) means that department, commission, 
board, or official of any State charged by its laws with the 
responsibility for highway construction. The term State should be 
considered equivalent to State highway agency. With regard to direct 
Federal contracts, references herein to SHA's shall be considered to 
refer to FHWA regional offices, as appropriate.



Sec.  230.409  Contract compliance review procedures.

    (a) General. A compliance review consists of the following elements:
    (1) Review Scheduling (Actions R-1 and R-2).
    (2) Contractor Notification (Action R-3).
    (3) Preliminary Analysis (Phase I) (Action R-4).
    (4) Onsite Verification and Interviews (Phase II) (Action R-5).
    (5) Exit Conference (Action R-6).
    (6) Compliance Determination and Formal Notification (Actions R-8, 
R-9, R-10, R-11, R-12).

The compliance review procedure, as described herein and in appendix D 
provides for continual monitoring of the employment process. Monitoring 
officials at all levels shall analyze submissions from field offices to 
ensure proper completion of procedural requirements and to ascertain the 
effectiveness of program implementation.
    (b) Review scheduling. (Actions R-1 and R-2). Because construction 
work forces are not constant, particular attention should be paid to the 
proper scheduling of equal opportunity compliance reviews. Priority in 
scheduling equal opportunity compliance reviews shall be given to 
reviewing those contractor's work forces:
    (1) Which hold the greatest potential for employment and promotion 
of minorities and women (particularly in higher skilled crafts or 
occupations);
    (2) Working in areas which have significant minority and female 
labor forces within a reasonable recruitment area;
    (3) Working on projects that include special training provisions; 
and
    (4) Where compliance with equal opportunity requirements is 
questionable. (Based on previous PR-1391's (23 CFR part 230, subpart A, 
appendix C) Review Reports and Hometown Plan Reports).

In addition, the following considerations shall apply:
    (5) Reviews specifically requested by the Washington Headquarters 
shall receive priority scheduling;
    (6) Compliance Reviews in geographical areas covered by areawide 
plans would normally be reviewed under the Consolidated Compliance 
Review Procedures set forth in Sec.  230.415.
    (7) Reviews shall be conducted prior to or during peak employment 
periods.
    (8) No compliance review shall be conducted that is based on a home 
office work force of less than 15 employees unless requested or approved 
by Washington Headquarters; and
    (9) For compliance reviews based on an area work force (outside of 
areawide plan coverage), the Compliance Specialist shall define the 
applicable geographical area by considering:
    (i) Union geographical boundaries;
    (ii) The geographical area from which the contractor recruits 
employees, i.e., reasonable recruitment area;
    (iii) Standard Metropolitan Statistical Area (SMSA) or census 
tracts; and
    (iv) The county in which the Federal or Federal-aid project(s) is 
located and adjacent counties.
    (c) Contractor notification (Action R-3). (1) The Compliance 
Specialist should usually provide written notification to the contractor 
of the pending compliance review at least 2 weeks prior to the onsite 
verification and interviews. This notification shall include the 
scheduled date(s), an outline of the mechanics and basis of the review, 
requisite interviews, and documents required.
    (2) The contractor shall be requested to provide a meeting place on 
the day

[[Page 72]]

of the visit either at the local office of the contractor or at the 
jobsite.
    (3) The contractor shall be requested to supply all of the following 
information to the Compliance Specialist prior to the onsite 
verification and interviews.
    (i) Current Form PR-1391 developed from the most recent payroll;
    (ii) Copies of all current bargaining agreements;
    (iii) Copies of purchase orders and subcontracts containing the EEO 
clause;
    (iv) A list of recruitment sources available and utilized;
    (v) A statement of the status of any action pertaining to employment 
practices taken by the Equal Employment Opportunity Commission (EEOC) or 
other Federal, State, or local agency regarding the contractor or any 
source of employees;
    (vi) A list of promotions made during the past 6 months, to include 
race, national origin, and sex of employee, previous job held, job 
promoted into; and corresponding wage rates;
    (vii) An annotated payroll to show job classification, race, 
national origin and sex;
    (viii) A list of minority- or female-owned companies contacted as 
possible subcontractors, vendors, material suppliers, etc.; and
    (ix) Any other necessary documents or statements requested by the 
Compliance Specialist for review prior to the actual onsite visit.
    (4) For a project review, the prime contractor shall be held 
responsible for ensuring that all active subcontractors are present at 
the meeting and have supplied the documentation listed in Sec.  
230.409(c)(3).
    (d) Preliminary analysis (Phase I) (Action R-4). Before the onsite 
verification and interviews, the Compliance Specialist shall analyze the 
employment patterns, policies, practices, and programs of the contractor 
to determine whether or not problems exist by reviewing information 
relative to:
    (1) The contractor's current work force;
    (2) The contractor's relationship with referral sources, e.g., 
unions, employment agencies, community action agencies, minority and 
female organizations, etc.;
    (3) The minority and female representation of sources;
    (4) The availability of minorities and females with requisite skills 
in a reasonable recruitment area;
    (5) Any pending EEOC or Department of Justice cases or local or 
State Fair Employment Agency cases which are relevant to the contractor 
and/or the referral sources; and
    (6) The related projects (and/or contractor) files of FHWA regional 
or division and State Coordinator's offices to obtain current 
information relating to the status of the contractor's project(s), 
value, scheduled duration, written corrective action plans, PR-1391 or 
Manpower Utilization Reports, training requirements, previous compliance 
reviews, and other pertinent correspondence and/or reports.
    (e) Onsite verification and interviews (Phase II) (Action R-5). (1) 
Phase II of the review consists of the construction or home office site 
visit(s). During the initial meeting with the contractor, the following 
topics shall be discussed:
    (i) Objectives of the visit;
    (ii) The material submitted by the contractor, including the actual 
implementation of the employee referral source system and any 
discrepancies found in the material; and
    (iii) Arrangements for the site tour(s) and employee interviews.
    (2) The Compliance Specialist shall make a physical tour of the 
employment site(s) to determine that:
    (i) EEO posters are displayed in conspicuous places in a legible 
fashion;
    (ii) Facilities are provided on a nonsegregated basis (e.g. work 
areas, washroom, timeclocks, locker rooms, storage areas, parking lots, 
and drinking fountains);
    (iii) Supervisory personnel have been oriented to the contractor's 
EEO commitments;
    (iv) The employee referral source system is being implemented;
    (v) Reported employment data is accurate;
    (vi) Meetings have been held with employees to discuss EEO policy, 
particularly new employees; and

[[Page 73]]

    (vii) Employees are aware of their right to file complaints of 
discrimination.
    (3) The Compliance Specialist should interview at least one 
minority, one nonminority, and one woman in each trade, classification, 
or occupation. The contractor's superintendent or home office manager 
should also be interviewed.
    (4) The Compliance Specialist shall, on a sample basis, determine 
the union membership status of union employees on the site (e.g. whether 
they have permits, membership cards, or books, and in what category they 
are classified [e.g., A, B, or C]).
    (5) The Compliance Specialist shall also determine the method 
utilized to place employees on the job and whether equal opportunity 
requirements have been followed.
    (6) The Compliance Specialist shall determine, and the report shall 
indicate the following:
    (i) Is there reasonable representation and utilization of minorities 
and women in each craft, classification or occupation? If not, what has 
the contractor done to increase recruitment, hiring, upgrading, and 
training of minorities and women?
    (ii) What action is the contractor taking to meet the contractual 
requirement to provide equal employment opportunity?
    (iii) Are the actions taken by the contractor acceptable? Could they 
reasonably be expected to result in increased utilization of minorities 
and women?
    (iv) Is there impartiality in treatment of minorities and women?
    (v) Are affirmative action measures of an isolated nature or are 
they continuing?
    (vi) Have the contractor's efforts produced results?
    (f) Exit conference (Action R-6). (1) During the exit conference 
with the contractor, the following topics shall be discussed:
    (i) Any preliminary findings that, if not corrected immediately or 
not corrected by the adoption of an acceptable voluntary corrective 
action plan, would necessitate a determination of noncompliance;
    (ii) The process and time in which the contractor shall be informed 
of the final determination (15 days following the onsite verification 
and interviews); and
    (iii) Any other matters that would best be resolved before 
concluding the onsite portion of the review.
    (2) Voluntary corrective action plans may be negotiated at the exit 
conference, so that within 15 days following the exit portion of the 
review, the Compliance Specialist shall prepare the review report and 
make a determination of either:
    (i) Compliance, and so notify the contractor; or
    (ii) Noncompliance, and issue a 30-day show cause notice.

The acceptance of a voluntary corrective action plan at the exit 
conference does not preclude a determination of noncompliance, 
particularly if deficiencies not addressed by the plan are uncovered 
during the final analysis and report writing. (Action R-7) A voluntary 
corrective action plan should be accepted with the understanding that it 
only address those problems uncovered prior to the exit conference.
    (g) Compliance determinations (Action R-8). (1) The evidence 
obtained at the compliance review shall constitute a sufficient basis 
for an objective determination by the Compliance Specialist conducting 
the review of the contractor's compliance or noncompliance with 
contractual provisions pursuant to E.O. 11246, as amended, and FHWA EEO 
Special Provisions implementing the Federal-Aid Highway Act of 1968, 
where applicable.
    (2) Compliance determinations on contractors working in a Hometown 
Plan Area shall reflect the status of those crafts covered by part II of 
the plan bid conditions. Findings regarding part I crafts shall be 
transmitted through channels to the Washington Headquarters, Office of 
Civil Rights.
    (3) The compliance status of the contractor will usually be 
reflected by positive efforts in the following areas:
    (i) The contractor's equal employment opportunity (EEO) policy;
    (ii) Dissemination of the policy and education of supervisory 
employees concerning their responsibilities in implementing the EEO 
policy;

[[Page 74]]

    (iii) The authority and responsibilities of the EEO officer;
    (iv) The contractor's recruitment activities, especially 
establishing minority and female recruitment and referral procedures;
    (v) The extent of participation and minority and female utilization 
in FHWA training programs;
    (vi) The contractor's review of personnel actions to ensure equal 
opportunities;
    (vii) The contractor's participation in apprenticeship or other 
training;
    (viii) The contractor's relationship (if any) with unions and 
minority and female union membership;
    (ix) Effective measures to assure nonsegregated facilities, as 
required by contract provisions;
    (x) The contractor's procedures for monitoring subcontractors and 
utilization of minority and female subcontractors and/or subcontractors 
with substantial minority and female employment; and
    (xi) The adequacy of the contractor's records and reports.
    (4) A contractor shall be considered to be in compliance (Action R-
9) when the equal opportunity requirements have been effectively 
implemented, or there is evidence that every good faith effort has been 
made toward achieving this end. Efforts to acheive this goal shall be 
result-oriented, initiated and maintained in good faith, and emphasized 
as any other vital management function.
    (5) A contractor shall be considered to be in noncompliance (Action 
R-10) when:
    (i) The contractor has discriminated against applicants or employees 
with respect to the conditions or privileges of employment; or
    (ii) The contractor fails to provide evidence of every good faith 
effort to provide equal opportunity.
    (h) Show cause procedures--(1) General. Once the onsite verification 
and exit conference (Action R-5) have been completed and a compliance 
determination made, (Action R-8), the contractor shall be notified in 
writing of the compliance determination. (Action R-11 or R-12) This 
written notification shall be sent to the contractor within 15 days 
following the completion of the onsite verification and exit conference. 
If a contractor is found in noncompliance (Action R-10), action efforts 
to bring the contractor into compliance shall be initiated through the 
issuance of a show cause notice (Action R-12). The notice shall advise 
the contractor to show cause within 30 days why sanctions should not be 
imposed.
    (2) When a show cause notice is required. A show cause notice shall 
be issued when a determination of noncompliance is made based upon:
    (i) The findings of a compliance review;
    (ii) The results of an investigation which verifies the existence of 
discrimination; or
    (iii) Areawide plan reports that show an underutilization of 
minorities (based on criteria of U.S. Department of Labor's Optional 
Form 66 ``Manpower Utilization Report'') throughout the contractor's 
work force covered by part II of the plan bid conditions.
    (3) Responsibility for issuance. (i) Show cause notices will 
normally be issued by SHA's to federally assisted contractors when the 
State has made a determination of noncompliance, or when FHWA has made 
such a determination and has requested the State to issue the notice.
    (ii) When circumstances warrant, the Regional Federal Highway 
Administrator or a designee may exercise primary compliance 
responsibility by issuing the notice directly to the contractor.
    (iii) The Regional Federal Highway Administrators in Regions 8, 10, 
and the Regional Engineer in Region 15, shall issue show cause notices 
to direct Federal contractors found in noncompliance.
    (4) Content of show cause notice. The show cause notice must: (See 
sample--appendix A of this subpart)
    (i) Notify the contractor of the determination of noncompliance;
    (ii) Provide the basis for the determination of noncompliance;
    (iii) Notify the contractor of the obligation to show cause within 
30 days why formal proceedings should not be instituted;

[[Page 75]]

    (iv) Schedule (date, time, and place) a compliance conference to be 
held approximately 15 days from the contractor's receipt of the notice;
    (v) Advise the contractor that the conference will be held to 
receive and discuss the acceptability of any proposed corrective action 
plan and/or correction of deficiencies; and
    (vi) Advise the contractor of the availability and willingness of 
the Compliance Specialist to conciliate within the time limits of the 
show cause notice.
    (5) Preparing and processing the show cause notice. (i) The State or 
FHWA official who conducted the investigation or review shall develop 
complete background data for the issuance of the show cause notice and 
submit the recommendation to the head of the SHA or the Regional Federal 
Highway Administrator, as appropriate.
    (ii) The recommendation, background data, and final draft notice 
shall be reviewed by appropriate State or FHWA legal counsel.
    (iii) Show cause notices issued by the SHA shall be issued by the 
head of that agency or a designee.
    (iv) The notice shall be personally served to the contractor or 
delivered by certified mail, return receipt requested, with a 
certificate of service or the return receipt filed with the case record.
    (v) The date of the contractor's receipt of the show cause notice 
shall begin the 30-day show cause period. (Action R-13).
    (vi) The 30-day show cause notice shall be issued directly to the 
noncompliant contractor or subcontractor with an informational copy sent 
to any concerned prime contractors.
    (6) Conciliation efforts during show cause period. (i) The 
Compliance Specialist is required to attempt conciliation with the 
contractor throughout the show cause time period. Conciliation and 
negotiation efforts shall be directed toward correcting contractor 
program deficiencies and initiating corrective action which will 
maintain and assure equal opportunity. Records shall be maintained in 
the State, FHWA division, or FHWA regional office's case files, as 
appropriate, indicating actions and reactions of the contractor, a brief 
synopsis of any meetings with the contractor, notes on verbal 
communication and written correspondence, requests for assistance or 
interpretations, and other relevant matters.
    (ii) In instances where a contractor is determined to be in 
compliance after a show cause notice has been issued, the show cause 
notice will be recinded and the contractor formally notified (Action R-
17). The FHWA Washington Headquarters, Office of Civil Rights, shall 
immediately be notified of any change in status.
    (7) Corrective action plans. (i) When a contractor is required to 
show cause and the deficiencies cannot be corrected within the 30-day 
show cause period, a written corrective action plan may be accepted. The 
written corrective action plan shall specify clear unequivocal action by 
the contractor with time limits for completion. Token actions to correct 
cited deficiencies will not be accepted. (See Sample Corrective Action 
Plan--appendix B of this subpart)
    (ii) When a contractor submits an acceptable written corrective 
action plan, the contractor shall be considered in compliance during the 
plan's effective implementation and submission of required progress 
reports. (Action R-15 and R-17).
    (iii) When an acceptable corrective action plan is not agreed upon 
and the contractor does not otherwise show cause as required, the formal 
hearing process shall be recommended through appropriate channels by the 
compliance specialist immediately upon expiration of the 30-day show 
cause period. (Action R-16, R-18, R-19)
    (iv) When a contractor, after having submitted an acceptable 
corrective action plan and being determined in compliance is 
subsequently determined to be in noncompliance based upon the 
contractor's failure to implement the corrective action plan, the formal 
hearing process must be recommended immediately. There are no provisions 
for reinstituting a show cause notice.
    (v) When, however, a contractor operating under an acceptable 
corrective action plan carries out the provisions of the corrective 
action plan but the actions do not result in the necessary

[[Page 76]]

changes, the corrective action plan shall be immediately amended through 
negotiations. If, at this point, the contractor refuses to appropriately 
amend the corrective action plan, the formal hearing process shall be 
recommended immediately.
    (vi) A contractor operating under an approved voluntary corrective 
action plan (i.e., plan entered into prior to the issuance of a show 
cause) must be issued a 30-day show cause notice in the situations 
referred to in paragraphs (h) (7) (iv) and (v) of this section, i.e., 
failure to implement an approved corrective action plan or failure of 
corrective actions to result in necessary changes.
    (i) Followup reviews. (1) A followup review is an extension of the 
initial review process to verify the contractors performance of 
corrective action and to validate progress report information. 
Therefore, followup reviews shall only be conducted of those contractors 
where the initial review resulted in a finding of noncompliance and a 
show cause notice was issued.
    (2) Followup reviews shall be reported as a narrative summary 
referencing the initial review report.
    (j) Hearing process. (1) When such procedures as show cause issuance 
and conciliation conferences have been unsuccessful in bringing 
contractors into compliance within the prescribed 30 days, the reviewer 
(or other appropriate level) shall immediately recommend, through 
channels, that the Department of Transportation obtain approval from the 
Office of Federal Contract Compliance Programs for a formal hearing 
(Action R-19). The Contractor should be notified of this action.
    (2) Recommendations to the Federal Highway Administrator for hearing 
approval shall be accompanied by full reports of findings and case files 
containing any related correspondence. The following items shall be 
included with the recommendation:
    (i) Copies of all Federal and Federal-aid contracts and/or 
subcontracts to which the contractor is party;
    (ii) Copies of any contractor or subcontractor certifications;
    (iii) Copy of show cause notice;
    (iv) Copies of any corrective action plans; and
    (v) Copies of all pertinent Manpower Utilization Reports, if 
applicable.
    (3) SHA's through FHWA regional and division offices, will be 
advised of decisions and directions affecting contractors by the FHWA 
Washington Headquarters, Office of Civil Rights, for the Department of 
Transportation.
    (k) Responsibility determinations. (1) In instances where requests 
for formal hearings are pending OFCCP approval, the contractor may be 
declared a nonresponsible contractor for inability to comply with the 
equal opportunity requirements.
    (2) SHA's shall refrain from entering into any contract or contract 
modification subject to E.O. 11246, as amended, with a contractor who 
has not demonstrated eligibility for Government contracts and federally 
assisted construction contracts pursuant to E.O. 11246, as amended.



Sec.  230.411  Guidance for conducting reviews.

    (a) Extensions of time. Reasonable extensions of time limits set 
forth in these instructions may be authorized by the SHA's or the FHWA 
regional office, as appropriate. However, all extensions are subject to 
Washington Headquarters approval and should only be granted with this 
understanding. The Federal Highway Administrator shall be notified of 
all time extensions granted and the justification therefor. In sensitive 
or special interest cases, simultaneous transmittal of reports and other 
pertinent documents is authorized.
    (b) Contract completion. Completion of a contract or seasonal 
shutdown shall not preclude completion of the administrative procedures 
outlined herein or the possible imposition of sanctions or debarment.
    (c) Home office reviews outside regions. When contractor's home 
offices are located outside the FHWA region in which the particular 
contract is being performed, and it is determined that the contractors' 
home offices should be reviewed, requests for such reviews with 
accompanying justification shall be forwarded through appropriate

[[Page 77]]

channels to the Washington Headquarters, Office of Civil Rights. After 
approval, the Washington Headquarters, Office of Civil Rights, (OCR) 
shall request the appropriate region to conduct the home office review.
    (d) Employment of women. Executive Order 11246, as amended, 
implementing rules and regulations regarding sex discrimination are 
outlined in 41 CFR part 60-20. It is the responsibility of the 
Compliance Specialist to ensure that contractors provide women full 
participation in their work forces.
    (e) Effect of exclusive referral agreements. (1) The OFCCP has 
established the following criteria for determining compliance when an 
exclusive referral agreement is involved;
    (i) It shall be no excuse that the union, with which the contractor 
has a collective bargaining agreement providing for exclusive referral, 
failed to refer minority or female employees.
    (ii) Discrimination in referral for employment, even if pursuant to 
provisions of a collective bargaining agreement, is prohibited by the 
National Labor Relations Act and Title VII of the Civil Rights Act of 
1964, as amended.
    (iii) Contractors and subcontractors have a responsibility to 
provide equal opportunity if they want to participate in federally 
involved contracts. To the extent they have delegated the responsibility 
for some of their employment practices to some other organization or 
agency which prevents them from meeting their obligations, these 
contractors must be found in noncompliance.
    (2) If the contractor indicates that union action or inaction is a 
proximate cause of the contractor's failure to provide equal 
opportunity, a finding of noncompliance will be made and a show cause 
notice issued, and:
    (i) The contractor will be formally directed to comply with the 
equal opportunity requirements.
    (ii) Reviews of other contractors with projects within the 
jurisdiction of the applicable union locals shall be scheduled.
    (iii) If the reviews indicate a pattern and/or practice of 
discrimination on the part of specific union locals, each contractor in 
the area shall be informed of the criteria outlined in Sec.  
230.411(e)(1) of this section. Furthermore, the FHWA Washington 
Headquarters, OCR, shall be provided with full documentary evidence to 
support the discriminatory pattern indicated.
    (iv) In the event the union referral practices prevent the 
contractor from meeting the equal opportunity requirements pursuant to 
the E.O. 11246, as amended, such contractor shall immediately notify the 
SHA.



Sec.  230.413  Review reports.

    (a) General. (1) The Compliance Specialist shall maintain detailed 
notes from the beginning of the review from which a comprehensive 
compliance review report can be developed.
    (2) The completed compliance review report shall contain documentary 
evidence to support the determination of a contractor's or 
subcontractor's compliance status.
    (3) Findings, conclusions, and recommendations shall be explicitly 
stated and, when necessary, supported by documentary evidence.
    (4) The compliance review report shall contain at least the 
following information. \1\ (Action R-20)
---------------------------------------------------------------------------

    \1\ The Federal Highway Administration will accept completed Form 
FHWA-86 for the purpose. The form is available at the offices listed in 
49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (i) Complete name and address of contractor.
    (ii) Project(s) identification.
    (iii) Basis for the review, i.e., area work force, project work 
force, home office work force, and target area work force.
    (iv) Identification of Federal or Federal-aid contract(s).
    (v) Date of review.
    (vi) Employment data by job craft, classification, or occupation by 
race and sex in accordance with (iii) above. This shall be the data 
verified during the onsite.
    (vii) Identification of local unions involved with contractor, when 
applicable.
    (viii) Determination of compliance status: compliance or 
noncompliance.
    (ix) Copy of show cause notice or compliance notification sent to 
contractor.

[[Page 78]]

    (x) Name of the Compliance Specialist who conducted the review and 
whether that person is a State, division or regional Compliance 
Specialist.
    (xi) Concurrences at appropriate levels.
    (5) Each contractor (joint venture is one contractor) will be 
reported separately. When a project review is conducted, the reports 
should be attached, with the initial report being that of the prime 
contractor followed by the reports of each subcontractor.
    (6) Each review level is responsible for ensuring that required 
information is contained in the report.
    (7) When a project review is conducted, the project work force shall 
be reported. When an areawide review is conducted (all Federal-aid, 
Federal, and non-Federal projects in an area), then areawide work force 
shall be reported. When a home office review is conducted, only home 
office work force shall be reported. Other information required by 
regional offices shall be detached before forwarding the reports to the 
Washington Headquarters, OCR.
    (8) The Washington Headquarters, OCR, shall be provided all of the 
following:
    (i) The compliance review report required by Sec.  230.413(a)(4).
    (ii) Corrective action plans.
    (iii) Show cause notices or compliance notifications.
    (iv) Show cause recissions.

While other data and information should be kept by regional offices 
(including progress reports, correspondence, and similar review backup 
material), it should not be routinely forwarded to the Washington 
Headquarters, OCR.
    (b) Administrative requirements--(1) State conducted reviews. (i) 
Within 15 days from the completion of the onsite verification and exit 
conference, the State Compliance Specialist will:
    (A) Prepare the compliance review report, based on information 
obtained;
    (B) Determine the contractor's compliance status;
    (C) Notify the contractor of the compliance determination, i.e., 
send the contractor either notification of compliance or show cause 
notice; and
    (D) Forward three copies of the compliance review report, and the 
compliance notification or show cause notice to the FHWA division EEO 
Specialist.
    (ii) Within 10 days of receipt, the FHWA division EEO Specialist 
shall:
    (A) Analyze the State's report, ensure that it is complete and 
accurate;
    (B) Resolve nonconcurrence, if any;
    (C) Indicate concurrence, and, where appropriate, prepare comments; 
and
    (D) Forward two copies of the compliance review report, and the 
compliance notification or show cause notice to the Regional Civil 
Rights Director.
    (iii) Within 15 days of receipt, the FHWA Regional Civil Rights 
Director shall:
    (A) Analyze the report, ensure that it is complete and accurate;
    (B) Resolve nonconcurrence, if any;
    (C) Indicate concurrence, and, where appropriate, prepare comments; 
and
    (D) Forward one copy of the compliance review report, and the 
compliance notification or show cause notice to the Washington 
Headquarters, OCR.
    (2) FHWA division conducted reviews. (i) Within 15 days from the 
completion of the onsite verification and exit conference, the division 
EEO Specialist shall:
    (A) Prepare compliance review report, based on information obtained;
    (B) Determine the contractor's compliance status;
    (C) Notify the State to send the contractor the compliance 
determination, i.e., either notification of compliance or show cause 
notice; and
    (D) Forward two copies of the compliance review report and the 
compliance notification or show cause notice to the Regional Civil 
Rights Director.
    (ii) Within 15 days of receipt, the FHWA Regional Civil Rights 
Director will take the steps outlined in Sec.  230.413(b)(1)(iii).
    (3) FHWA region conducted reviews. (i) Within 15 days from the 
completion of the onsite verification and exit conference the regional 
EEO Specialist shall:
    (A) Prepare the compliance review report, based on information 
obtained;
    (B) Determine the contractor's compliance status;
    (C) Inform the appropriate division to notify the State to send the 
contractor

[[Page 79]]

the compliance determination i.e., either notification of compliance or 
show cause notice; and
    (D) Forward one copy of the compliance review report, and the 
compliance notification or show cause notice to the Washington 
Headquarters, OCR.
    (4) Upon receipt of compliance review reports, the Washington 
Headquarters, OCR, shall review, resolve any nonconcurrences, and record 
them for the purpose of:
    (i) Providing ongoing technical assistance to FHWA regional and 
division offices and SHA's;
    (ii) Gathering a sufficient data base for program evaluation;
    (iii) Ensuring uniform standards are being applied in the compliance 
review process;
    (iv) Initiating appropriate changes in FHWA policy and implementing 
regulations; and
    (v) Responding to requests from the General Accounting Office, 
Office of Management and Budget, Senate Subcommittee on Public Roads, 
and other agencies and organizations.



Sec.  230.415  Consolidated compliance reviews.

    (a) General. Consolidated compliance reviews shall be implemented to 
determine employment opportunities on an areawide rather than an 
individual project basis. The consolidated compliance review approach 
shall be adopted and directed by either Headquarters, region, division, 
or SHA, however, consolidated reviews shall at all times remain a 
cooperative effort.
    (b) OFCCP policy requires contracting agencies to ensure compliance, 
in hometown an imposed plan areas, on an areawide rather than a project 
basis. The consolidated compliance review approach facilitates 
implementation of this policy.
    (c) Methodology--(1) Selection of a target area. In identifying the 
target area of a consolidated compliance review (e.g. SMSA, hometown or 
imposed plan area, a multicounty area, or an entire State), 
consideration shall at least be given to the following facts:
    (i) Minority and female work force concentrations;
    (ii) Suspected or alleged discrimination in union membership or 
referral practices by local unions involved in highway construction;
    (iii) Present or potential problem areas;
    (iv) The number of highway projects in the target area; and
    (v) Hometown or imposed plan reports that indicate underutilization 
of minorities or females.
    (2) Determine the review period. After the target area has been 
selected, the dates for the actual onsite reviews shall be established.
    (3) Obtain background information. EEO-3's Local Union Reports, 
should be obtained from regional offices of the EEOC. Target area 
civilian labor force statistics providing percent minorities and percent 
females in the target area shall be obtained from State employment 
security agencies or similar State agencies.
    (4) Identify contractors. Every nonexempt federally assisted or 
direct Federal contractor and subcontractor in the target area shall be 
identified. In order to establish areawide employment patterns in the 
target area, employment data is needed for all contractors and 
subcontractors in the area. However, only those contractors with 
significant work forces (working prior to peak and not recently 
reviewed) may need to be actually reviwed onsite. Accordingly, once all 
contractors are identified, those contractors which will actually be 
reviewed onsite shall be determined. Compliance determinations shall 
only reflect the status of crafts covered by part II of plan bid 
conditions. Employment data of crafts covered by part I of plan bid 
conditions shall be gathered and identified as such in the composite 
report, however, OFCCP has reserved the responsibility for compliance 
determinations on crafts covered by part I of the plan bid conditions.
    (5) Contractor notification. Those contractors selected for onsite 
review shall be sent a notification letter as outlined in Sec.  
230.409(c) along with a request for current workforce data \2\ for 
completion

[[Page 80]]

and submission at the onsite review. Those contractors in the target 
area not selected for onsite review shall also be requested to supply 
current workforce data as of the onsite review period, and shall return 
the data within 15 days following the onsite review period.
---------------------------------------------------------------------------

    \2\ The Consolidated Workforce Questionnaire is convenient for the 
purpose and appears as attachment 4 to volume 2, chapter 2, section 3 of 
the Federal-Aid Highway Program Manual, which is available at the 
offices listed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (6) Onsite reviews. Compliance reviews shall then be conducted in 
accordance with the requirements set forth in Sec.  230.409. Reviewers 
may use Form FHWA-86, Compliance Data Report, if appropriate. It is of 
particular importance during the onsite reviews that the review team 
provide for adequate coordination of activities at every stage of the 
review process.
    (7) Compliance determinations. Upon completion of the consolidated 
reviews, compliance determinations shall be made on each review by the 
reviewer. Individual show cause notices or compliance notifications 
shall be sent (as appropriate) to each reviewed contractor.

The compliance determination shall be based on the contractor's target 
area work force (Federal, Federal-aid and non-Federal), except when the 
target area is coincidental with hometown plan area, compliance 
determinations must not be based on that part of a contractor's work 
force covered by part I of the plan bid conditions, as previously set 
forth in this regulation. For example: ABC Contracting, Inc. employs 
carpenters, operating engineers, and cement masons. Carpenters and 
operating engineers are covered by part II of the plan bid conditions, 
however, cement masons are covered by part I of the plan bid conditions. 
The compliance determination must be based only on the contractor's 
utilization of carpenters and operating engineers.
    (d) Reporting--(1) Composite report. A final composite report shall 
be submitted as a complete package to the Washington Headquarters, OCR, 
within 45 days after the review period and shall consist of the 
following:
    (i) Compliance review report, for each contractor and subcontractor 
with accompanying show cause notice or compliance notification.
    (ii) Work force data to show the aggregate employment of all 
contractors in the target area.
    (iii) A narrative summary of findings and recommendations to include 
the following:
    (A) A summary of highway construction employment in the target area 
by craft, race, and sex. This summary should explore possible patterns 
of discrimination or underutilization and possible causes, and should 
compare the utilization of minorities and females on contractor's work 
forces to the civilian labor force percent for minorities and females in 
the target area.
    (B) If the target area is a plan area, a narrative summary of the 
plan's effectiveness with an identification of part I and part II 
crafts. This summary shall discuss possible differences in minority and 
female utilization between part I and part II crafts, documenting any 
inferences drawn from such comparisons.
    (C) If applicable, discuss local labor unions' membership and/or 
referral practices that impact on the utilization of minorities and 
females in the target area. Complete and current copies of all 
collective bargaining agreements and copies of EEO-3, Local Union 
Reports, for all appropriate unions shall accompany the composite 
report.
    (D) Any other appropriate data, analyses, or information deemed 
necessary for a complete picture of the areawide employment.
    (E) Considering the information compiled from the summaries listed 
above, make concrete recommendations on possible avenues for correcting 
problems uncovered by the analyses.
    (2) Annual planning report. The proper execution of consolidated 
compliance reviews necessitates scheduling, along with other fiscal 
program planning. The Washington Headquarters, OCR, shall be notified of 
all planned consolidated reviews by August 10 of each year and of any 
changes in the target area or review periods, as they become known. The 
annual consolidated planning report shall indicate:
    (i) Selected target areas:

[[Page 81]]

    (ii) The basis for selection of each area; and
    (iii) The anticipated review period (dates) for each target area.



   Sec. Appendix A to Subpart D of Part 230--Sample Show Cause Notice

Certified Mail, Return Receipt Requested
Date
Contractor's Name
Address
City, State, and Zip Code.

    Dear Contractor: As a result of the review of your (Project Number) 
project located at (Project Location) conducted on (Date) by (Reviewing 
Agency), it is our determination that you are not in compliance with 
your equal opportunity requirements and that good faith efforts have not 
been made to meet your equal opportunity requirements in the following 
areas:
    List of Deficiencies
    1.
    2.
    3.

    Your failure to take the contractually required affirmative action 
has contributed to the unacceptable level of minority and female 
employment in your operations, particularly in the semiskilled and 
skilled categories of employees.
    The Department of Labor regulations (41 CFR 60) implementing 
Executive Order 11246, as amended, are applicable to your Federal-aid 
highway construction contract and are controlling in this matter (see 
Required Contract Provisions, Form PR-1273, Clause II). Section 60-
1.20(b) of these regulations provides that when equal opportunity 
deficiencies exist, it is necessary that you make a commitment in 
writing to correct such deficiencies before you may be found in 
compliance. The commitment must include the specific action which you 
propose to take to correct each deficiency and the date of completion of 
such action. The time period allotted shall be no longer than the 
minimum period necessary to effect the necessary correction. In 
accordance with instructions issued by the Office of Federal Contract 
Compliance Programs (OFCCP), U.S. Department of Labor, your written 
commitment must also provide for the submission of monthly progress 
reports which shall include a head count of minority and female 
representation at each level of each trade and a list of minority 
employees.
    You are specifically advised that making the commitment discussed 
above will not preclude a further determination of noncompliance upon a 
finding that the commitment is not sufficient to achieve compliance.
    We will hold a compliance conference at ________(Address) at 
________ (Time) on ________(Date) for you to submit and discuss your 
written commitment. If your written commitment is acceptable and if the 
commitment is sufficient to achieve compliance, you will be found in 
compliance during the effective implementation of that commitment. You 
are cautioned, however, that our determination is subject to review by 
the Federal Highway Administration, the Department of Transportation, 
and OFCCP and may be disapproved if your written commitment is not 
considered sufficient to achieve compliance.
    If you indicate either directly or by inaction that you do not wish 
to participate in the scheduled conference and do not otherwise show 
cause within 30 days from receipt of this notice why enforcement 
proceedings should not be instituted, this agency will commence 
enforcement proceedings under Executive Order 11246, as amended.
    If your written commitment is accepted and it is subsequently found 
that you have failed to comply with its provisions, you will be advised 
of this determination and formal sanction proceedings will be instituted 
immediately.
    In the event formal sanction proceedings are instituted and the 
final determination is that a violation of your equal opportunity 
contract requirements has taken place, any Federal-aid highway 
construction contracts or subcontracts which you hold may be canceled, 
terminated, or suspended, and you may be debarred from further such 
contracts or subcontracts. Such other sanctions as are authorized by 
Executive Order 11246, as amended, may also be imposed.
    We encourage you to take whatever action is necessary to resolve 
this matter and are anxious to assist you in achieving compliance. Any 
questions concerning this notice should be addressed to (Name, Address, 
and Phone).
Sincerely yours,

[41 FR 34245, Aug. 13, 1976]



 Sec. Appendix B to Subpart D of Part 230--Sample Corrective Action Plan

    Deficiency 1: Sources likely to yield minority employees have not 
been contacted for recruitment purposes.
    Commitment: We have developed a system of written job applications 
at our home office which readily identifies minority applicants. In 
addition to this, as a minimum, we will contact the National Association 
for the Advancement of Colored People (NAACP), League of Latin American 
Citizens (LULAC), Urban League, and the Employment Security Office 
within 20 days to establish a referral system for minority group 
applicants and expand our recruitment base. We are in the process of 
identifying other community organizations and associations that may be 
able to provide minority applicants and will

[[Page 82]]

submit an updated listing of recruitment sources and evidence of contact 
by ________(Date).
    Deficiency 2: There have been inadequate efforts to locate, qualify, 
and increase skills of minority and female employees and applicants for 
employment.
    Commitment: We will set up an individual file for each apprentice or 
trainee by ______(Date) in order to carefully screen the progress, 
ensure that they are receiving the necessary training, and being 
promoted promptly upon completion of training requirements. We have 
established a goal of at least 50 percent of our apprentices and 
trainees will be minorities and 15 percent will be female. In addition 
to the commitment made to deficiency number 1, we will conduct a similar 
identification of organizations able to supply female applicants. Based 
on our projected personnel needs, we expect to have reached our 50 
percent goal for apprentices and trainees by _______(Date).
    Deficiency 3: Very little effort to assure subcontractors have 
meaningful minority group representation among their employees.
    Commitment: In cooperation with the Regional Office of Minority 
Business Enterprise, Department of Commerce, and the local NAACP, we 
have identified seven minority-owned contractors that may be able to 
work on future contracts we may receive. These contractors (identified 
in the attached list) will be contacted prior to our bidding on all 
future contracts. In addition, we have scheduled a meeting with all 
subcontractors currently working on our contracts. This meeting will be 
held to inform the subcontractors of our intention to monitor their 
reports and require meaningful minority representation. This meeting 
will be held on __________(Date) and we will summarize the discussions 
and current posture of each subcontractor for your review by 
__________(Date) Additionally, as requested, we will submit a PR-1391 on 
__________(Date), ____________________(Date), __________(Date). Finally, 
we have committed ourselves to maintaining at least 20 percent minority 
and female representation in each trade during the time we are carrying 
out the above commitments. We plan to have completely implemented all 
the provisions of these commitments by __________(Date).

[41 FR 34245, Aug. 13, 1976]



 Sec. Appendix C to Subpart D of Part 230--Sample Show Cause Rescission

Certified Mail, Return Receipt Requested
Date
Contractor
Address
City, State, and Zip Code

    Dear Contractor: On _______, (Date) you received a 30-day show cause 
notice from this office for failing to implement the required contract 
requirements pertaining to equal employment opportunity.
    Your corrective action plan, discussed and submitted at the 
compliance conference held on __________(Date), has been reviewed and 
determined to be acceptable. Your implementation of your corrective 
action plan shows that you are now taking the required affirmative 
action and can be considered in compliance with Executive Order 11246, 
as amended. If it should later be determined that your corrective action 
plan is not sufficient to achieve compliance, this Rescission shall not 
preclude a subsequent finding of noncompliance.
    In view of the above, this letter is to inform you that the 30-day 
show cause notice of __________(Date) is hereby rescinded. You are 
further advised that if it is found that you have failed to comply with 
the provisions of your corrective action plan, formal sanction 
proceedings will be instituted immediately.
Sincerely,

[[Page 83]]



 Sec. Appendix D to Subpart D of Part 230--Equal Opportunity Compliance 
                        Review Process Flow Chart
[GRAPHIC] [TIFF OMITTED] TC14OC91.004


[41 FR 34245, Aug. 13, 1976]

[[Page 84]]



                 SUBCHAPTER D_NATIONAL HIGHWAY INSTITUTE





PART 260_EDUCATION AND TRAINING PROGRAMS--Table of Contents



               Subpart A_Fellowship and Scholarship Grants

Sec.
260.101 Purpose.
260.103 Definitions.
260.105 Policy.
260.107 Eligibility.
260.109 Selection.
260.111 Responsibilities of educational institutions.
260.113 Responsibilities of employing agencies.
260.115 Equal opportunity.
260.117 Application procedures.

Subparts B-C [Reserved]

             Subpart D_State Education and Training Programs

260.401 Purpose.
260.403 Policy.
260.405 Application and approval procedures.
260.407 Implementation and reimbursement.

Appendix A to Part 260--Request for Use of Federal-Aid Highway Funds for 
          Education or Training (Form FHWA-1422)



               Subpart A_Fellowship and Scholarship Grants

    Authority: 23 U.S.C. 307(a), 315, 321 and 403; and 49 CFR 1.48(b).

    Source: 43 FR 3558, Jan. 26, 1978, unless otherwise noted.



Sec.  260.101  Purpose.

    To establish policy for the Federal Highway Administration (FHWA) 
Fellowship and Scholarship Programs as administered by the National 
Highway Institute (NHI).



Sec.  260.103  Definitions.

    As used in this regulation, the following definitions apply:
    (a) Candidate. One who meets the eligibility criteria set forth in 
Sec.  260.107, and who has completed and submitted the necessary forms 
and documents in order to be considered for selection for a fellowship 
or scholarship.
    (b) Direct educational expenses. Those expenses directly related to 
attending school including tuition, student fees, books, and expendable 
supplies but excluding travel expenses to and from the school.
    (c) Employing agency. The agency for which the candidate works. This 
may be either a State or local highway/transportation agency or the 
FHWA.
    (d) Fellowship. The grant presented to the recipient's school and 
administered by the school to assist the candidate financially during 
the period of graduate study.
    (e) Living stipend. The portion of the fellowship or scholarship 
grant remaining after the direct educational expenses have been 
deducted.
    (f) Local highway/transportation agency. The agency or metropolitan 
planning organization with the responsibility for initiating and 
carrying forward a highway program or public transportation program 
utilizing highways at the local level, usually the city or county level.
    (g) National Highway Institute (NHI). The organization located 
within the FHWA responsible for the administration of the FHWA 
fellowship and scholarship grant programs.
    (h) Recipient. The successful candidate receiving a fellowship or 
scholarship.
    (i) Scholarship. The grant presented to the recipient's school and 
administered by the school to assist the candidate financially during 
the period of post-secondary study.
    (j) State highway/transportation agency. The agency with the 
responsibility for initiating and carrying forward a highway program or 
public transportation program utilizing highways at the State level.



Sec.  260.105  Policy.

    It is the policy of the FHWA to administer, through the NHI, 
fellowship and scholarship grant programs to assist State and local 
agencies and the FHWA in developing the expertise needed for the 
implementation of their highway programs and to assist in the

[[Page 85]]

development of more effective transportation programs at all levels of 
government. These programs shall provide financial support for up to 24 
months of either full-time or part-time study in the field of highway 
transportation. The programs for each year shall be announced by FHWA 
notices. \1\ These notices shall contain an application form and shall 
announce the number of grants to be awarded and their value.
---------------------------------------------------------------------------

    \1\ The Federal Highway Administration notices are available for 
inspection and copying as prescribed in 49 CFR part 7, appendix D.

[43 FR 3558, Jan. 26, 1978, as amended at 45 FR 67091, Oct. 9, 1980]



Sec.  260.107  Eligibility.

    (a) Prior recipients of FHWA scholarships or fellowships are 
eligible if they will have completed all specific work commitments 
before beginining study under the programs for which applications are 
made.
    (b) Candidates for the fellowship program shall have earned 
bachelor's or comparable college-level degrees prior to beginining 
advanced studies under the program.
    (c) Candidates shall submit evidence of acceptance, or probable 
acceptance, for study in programs that will enhance their contributions 
to their employers. Evidence of probable acceptance may be a letter from 
the department chairman or other school official.
    (d) Candidates shall agree to pursue certain minimum study loads as 
determined by the FHWA and designated in the FHWA notices announcing the 
programs each year.
    (e) FHWA employees who receive awards will be required to execute 
continued service agreements, consistent with the Government Employees 
Training Act requirements, which obligate the employees to continue to 
work for the agency for three times the duration of the training 
received.
    (f) Candidates who are students or employees of State or local 
highway/transportation agencies shall agree in writing to work on a 
full-time basis in public service with State or local highway/
transportation agencies for a specified period of time after completing 
study under the program. The FHWA notices announcing the programs each 
year shall specify the time period of the work commitment.
    (g) Candidates shall agree to respond to brief questionnaires 
designed to assist the NHI in program evaluation both during and 
following the study period.
    (h) Recipients of awards for full-time shall agree to limit their 
part-time employment as stipulated in the FHWA notice announcing the 
programs.
    (i) Candidates shall not profit financially from FHWA grants. Where 
acceptance of the living stipend portion of the grant would result in a 
profit to the candidate, as determined by comparing the candidate's 
regular full-time salary with the candidate's part-time salary and 
employer salary support plus living stipend, the grant amount will be 
reduced accordingly. In cases where a candidate must relocate and 
maintain two households, exceptions to this condition will be 
considered.
    (j) Candidates shall be citizens, or shall declare their intent to 
become citizens of the United States.



Sec.  260.109  Selection.

    (a) Candidates shall be rated by a selection panel appointed by the 
Director of the NHI. Members of the panel shall represent the highway 
transportation interests of government, industry, and the academic 
community. The factors considered by the selection panel are weighed in 
accordance with specific program objectives.
    (b) The major factors to be considered by the panel are:
    (1) Candidate's potential to contribute to a public agency's highway 
transportation program,
    (2) Relevance of a candidate's study program to the objectives of 
the fellowship or scholarship program,
    (3) Relevant experience, and
    (4) Academic and professional achievements.
    (c) Using ratings given by the selection panel, the Director of the 
NHI shall select candidates for awards and designate alternates.
    (d) The FHWA may designate in the FHWA notices announcing the 
programs the maximum number of awards

[[Page 86]]

that will be made to employees of any one agency.



Sec.  260.111  Responsibilities of educational institutions.

    (a) The college or university chosen by the grant recipient shall 
enter into an appropriate agreement with the FHWA providing for the 
administration of the grant by the college or university.
    (b) The college or university chosen by the recipient shall 
designate a faculty advisor prior to the commitment of funds by the 
FHWA. The faculty advisor will be requested to submit reports of the 
recipient's study progress following completion of each study period. 
These reports are oriented toward total program evaluation. To assure 
the recipient's rights to privacy, the FHWA will obtain appropriate 
advance concurrences from the recipient.



Sec.  260.113  Responsibilities of employing agencies.

    (a) A candidate's employing agency is responsible for furnishing a 
statement of endorsement and information concerning the relevancy of the 
candidate's study to agency requirements. The agency is encouraged to 
identify educational and training priorities and to provide backup to 
support its priority candidates for these programs.
    (b) Employing agencies are encouraged to give favorable 
consideration to the requests of candidates for educational leave and 
salary support for the study period to facilitate the candidates' 
applications. Agency decisions involving salary support and educational 
leave that will affect the acceptance of awards by recipients should be 
made at the earliest possible date to provide adequate time for the FHWA 
to select alternates to replace candidates that decline their awards.
    (c) Agencies are responsible for negotiations with their candidates 
concerning conditions of reinstatement and the candidates' commitments 
to return to work.
    (d) Employing agencies are encouraged to publicize the availability 
of these grants throughout the agencies, to implement procedures for 
internal evaluation of applications, and to forward the applications to 
the FHWA division office in their State.
    (e) Employing agencies that choose to process their employees' 
applications are responsible for observing the cutoff date for the FHWA 
to receive applications. This date will be stipulated in the Notices 
announcing the program for each academic year.



Sec.  260.115  Equal opportunity.

    (a) Consistent with the provisions of the Civil Rights Act of 1964 
and Title VI, assurances executed by each State, 23 U.S.C. 324, and 29 
U.S.C. 794, no applicant, including otherwise qualified handicapped 
individuals, shall on the grounds of race, color, religion, sex, 
national origin, or handicap, be excluded from participation in, be 
denied benefits of, or be otherwise subjected to discrimination under 
this program.
    (b) In accordance with Executive Order 11141, no individual shall be 
denied benefits of this program because of age.
    (c) Agencies should make information on this program available to 
all eligible employees, including otherwise qualified handicapped 
individuals, so as to assure nondiscrimination on the grounds of race, 
color, religion, sex, national origin, age, or handicap.



Sec.  260.117  Application procedures.

    (a) The FHWA notices announcing each year's programs and containing 
the application form may be obtained from FHWA regional and division 
offices, State highway agencies, metropolitan planning organizations, 
Governors' highway safety representatives, Urban Mass Transportation 
Administration regional directors, major transit authorities and from 
colleges and universities. Forms may also be obtained from the NHI, HHI-
3, FHWA, Washington, DC 20590.
    (b) In order to become a candidate, the applicant shall complete and 
forward the application form according to the instructions in the FHWA 
notice announcing the programs. The cutoff date for submitting the 
application stipulated in the notices should be observed.

Subparts B-C [Reserved]

[[Page 87]]



             Subpart D_State Education and Training Programs

    Authority: 23 U.S.C. 315, 321 (b) and (c); 49 CFR 1.48(b).

    Source: 43 FR 35477, Aug. 10, 1978, unless otherwise noted.



Sec.  260.401  Purpose.

    To prescribe policy and implement procedures for the administration 
of Federal-aid funds for education and training of State and local 
highway department employees.



Sec.  260.403  Policy.

    It is the policy of the Federal Highway Administration (FHWA) to 
provide continuing education of State and local highway agency employees 
engaged or to be engaged in Federal-aid highway work. To carry out this 
policy, States are encouraged to fully utilize the authority contained 
in 23 U.S.C. 321(b) and 321(c).



Sec.  260.405  Application and approval procedures.

    The State may apply for education and training funds by submitting a 
signed agreement designating the desired Federal-aid funds, not to 
exceed the limits in 23 U.S.C. 321(b). The FHWA's approval of the 
agreement will constitute obligation of funds and authorization for work 
to proceed.



Sec.  260.407  Implementation and reimbursement.

    (a) After execution of the fiscal agreement, the State may make 
grants and contracts with public and private agencies, institutions, 
individuals, and the National Highway Institute to provide highway-
related training and education. The principal recipients of this 
training shall be employees who are engaged or likely to be engaged, in 
Federal-aid highway work.
    (b) Claims for Federal-aid reimbursement of costs incurred may be 
submitted following established procedures to cover 75 percent of the 
cost of tuition and direct educational expenses (including incidental 
training, equipment, and program materials) exclusive of travel, 
subsistence, or salary of trainees.
    (c) As provided in 23 U.S.C. 321(c), education and training for 
subject areas that are identified by the FHWA as Federal program 
responsibilities, shall be provided at no cost to State and local 
governments.

[43 FR 35477, Aug. 10, 1978, as amended at 45 FR 6378, Jan. 28, 1980; 53 
FR 3745, Feb. 9, 1988]



[[Page 88]]



  Sec. Appendix A to Part 260--Request for Use of Federal-Aid Highway 
            Funds for Education or Training (Form FHWA-1422)
[GRAPHIC] [TIFF OMITTED] TC14OC91.005


[[Page 89]]


[GRAPHIC] [TIFF OMITTED] TC14OC91.006


[[Page 90]]



                   SUBCHAPTER E_PLANNING AND RESEARCH





PART 420_PLANNING AND RESEARCH PROGRAM ADMINISTRATION--Table of Contents



      Subpart A_Administration of FHWA Planning and Research Funds

Sec.
420.101 What is the purpose of this part?
420.103 How does the FHWA define the terms used in this part?
420.105 What is the FHWA's policy on use of FHWA planning and research 
          funds?
420.107 What is the minimum required expenditure of State planning and 
          research funds for research development and technology 
          transfer?
420.109 What are the requirements for distribution of metropolitan 
          planning funds?
420.111 What are the documentation requirements for use of FHWA planning 
          and research funds?
420.113 What costs are eligible?
420.115 What are the FHWA approval and authorization requirements?
420.117 What are the program monitoring and reporting requirements?
420.119 What are the fiscal requirements?
420.121 What other requirements apply to the administration of FHWA 
          planning and research funds?

    Subpart B_Research, Development, and Technology Transfer Program 
                               Management

420.201 What is the purpose of this subpart?
420.203 How does the FHWA define the terms used in this subpart?
420.205 What is the FHWA's policy for research, development, and 
          technology transfer funding?
420.207 What are the requirements for research, development, and 
          technology transfer work programs?
420.209 What are the conditions for approval?

    Authority: 23 U.S.C. 103(b)(6), 104(f), 115, 120, 133(b), 134(n), 
303(g), 505, and 315; and 49 CFR 1.48(b).

    Source: 67 FR 47271, July 18, 2002, unless otherwise noted.



      Subpart A_Administration of FHWA Planning and Research Funds



Sec.  420.101  What is the purpose of this part?

    This part prescribes the Federal Highway Administration (FHWA) 
policies and procedures for the administration of activities undertaken 
by State departments of transportation (State DOTs) and their 
subrecipients, including metropolitan planning organizations (MPOs), 
with FHWA planning and research funds. Subpart A identifies the 
administrative requirements that apply to use of FHWA planning and 
research funds both for planning and for research, development, and 
technology transfer (RD&T) activities. Subpart B describes the policies 
and procedures that relate to the approval and authorization of RD&T 
work programs. The requirements in this part supplement those in 49 CFR 
part 18, Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments and 49 CFR part 19, Uniform 
Administrative Requirements for Grants and Cooperative Agreements with 
Institutions of Higher Education, Hospitals and Other Non-Profit 
Organizations.



Sec.  420.103  How does the FHWA define the terms used in this part?

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    FHWA planning and research funds include:
    (1) State planning and research (SPR) funds (the two percent set 
aside of funds apportioned or allocated to a State DOT for activities 
authorized under 23 U.S.C. 505);
    (2) Metropolitan planning (PL) funds (the one percent of funds 
authorized under 23 U.S.C. 104(f) to carry out the provisions of 23 
U.S.C. 134);
    (3) National highway system (NHS) funds authorized under 23 U.S.C. 
104(b)(1) used for transportation planning in accordance with 23 U.S.C. 
134

[[Page 91]]

and 135, highway research and planning in accordance with 23 U.S.C. 505, 
highway-related technology transfer activities, or development and 
establishment of management systems under 23 U.S.C. 303;
    (4) Surface transportation program (STP) funds authorized under 23 
U.S.C. 104(b)(3) used for highway and transit research and development 
and technology transfer programs, surface transportation planning 
programs, or development and establishment of management systems under 
23 U.S.C. 303; and
    (5) Minimum guarantee (MG) funds authorized under 23 U.S.C. 505 used 
for transportation planning and research, development and technology 
transfer activities that are eligible under title 23, U.S.C.
    Grant agreement means a legal instrument reflecting a relationship 
between an awarding agency and a recipient or subrecipient when the 
principal purpose of the relationship is to transfer a thing of value to 
the recipient or subrecipient to carry out a public purpose of support 
or stimulation authorized by a law instead of acquiring (by purchase, 
lease, or barter) property or services for the direct benefit or use of 
the awarding agency.
    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process required by 23 U.S.C. 134 
and 49 U.S.C. 5303-5305 must be carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for a metropolitan planning 
area.
    National Cooperative Highway Research Program (NCHRP) means the 
cooperative RD&T program directed toward solving problems of national or 
regional significance identified by State DOTs and the FHWA, and 
administered by the Transportation Research Board, National Academy of 
Sciences.
    Procurement contract means a legal instrument reflecting a 
relationship between an awarding agency and a recipient or subrecipient 
when the principal purpose of the instrument is to acquire (by purchase, 
lease, or barter) property or services for the direct benefit or use of 
the awarding agency.
    State Department of Transportation (State DOT) means that 
department, commission, board, or official of any State charged by its 
laws with the responsibility for highway construction.
    Transportation management area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
and designated by the Secretary of Transportation or other area when TMA 
designation is requested by the Governor and the MPO (or affected local 
officials), and officially designated by the Secretary of 
Transportation.
    Transportation pooled fund study means a planning, research, 
development, or technology transfer activity administered by the FHWA, a 
lead State DOT, or other organization that is supported by two or more 
participants and that addresses an issue of significant or widespread 
interest related to highway, public, or intermodal transportation. A 
transportation pooled fund study is intended to address a new area or 
provide information that will complement or advance previous 
investigations of the subject matter.
    Work program means a periodic statement of proposed work, covering 
no less than one year, and estimated costs that documents eligible 
activities to be undertaken by State DOTs and/or their subrecipients 
with FHWA planning and research funds.



Sec.  420.105  What is the FHWA's policy on use of FHWA planning 
and research funds?

    (a) If the FHWA determines that planning activities of national 
significance, identified in paragraph (b) of this section, and the 
requirements of 23 U.S.C. 134, 135, 303, and 505 are being adequately 
addressed, the FHWA will allow State DOTs and MPOs:
    (1) Maximum possible flexibility in the use of FHWA planning and 
research funds to meet highway and local public transportation planning 
and RD&T needs at the national, State, and local levels while ensuring 
legal use of such funds and avoiding unnecessary duplication of efforts; 
and
    (2) To determine which eligible planning and RD&T activities they 
desire

[[Page 92]]

to support with FHWA planning and research funds and at what funding 
level.
    (b) The State DOTs must provide data that support the FHWA's 
responsibilities to the Congress and to the public. These data include, 
but are not limited to, information required for: preparing proposed 
legislation and reports to the Congress; evaluating the extent, 
performance, condition, and use of the Nation's transportation systems; 
analyzing existing and proposed Federal-aid funding methods and levels 
and the assignment of user cost responsibility; maintaining a critical 
information base on fuel availability, use, and revenues generated; and 
calculating apportionment factors.
    (c) The policy in paragraph (a) of this section does not remove the 
FHWA's responsibility and authority to determine which activities are 
eligible for funding. Activities proposed to be funded with FHWA 
planning and research funds by the State DOTs and their subrecipients 
shall be documented and submitted for FHWA approval and authorization as 
prescribed in Sec. Sec.  420.111 and 420.113. (The information 
collection requirements in paragraph (b) of Sec.  420.105 have been 
approved by the Office of Management and Budget (OMB) under control 
numbers 2125-0028 and 2125-0032.)



Sec.  420.107  What is the minimum required expenditure of State planning 
and research funds for research development and technology transfer?

    (a) A State DOT must expend no less than 25 percent of its annual 
SPR funds on RD&T activities relating to highway, public transportation, 
and intermodal transportation systems in accordance with the provisions 
of 23 U.S.C. 505(b), unless a State DOT certifies, and the FHWA accepts 
the State DOT's certification, that total expenditures by the State DOT 
during the fiscal year for transportation planning under 23 U.S.C. 134 
and 135 will exceed 75 percent of the amount apportioned for the fiscal 
year.
    (b) Prior to submitting a request for an exception to the 25 percent 
requirement, the State DOT must ensure that:
    (1) The additional planning activities are essential, and there are 
no other reasonable options available for funding these planning 
activities (including the use of NHS, STP, MG, or FTA State planning and 
research funds (49 U.S.C. 5313(b)) or by deferment of lower priority 
planning activities);
    (2) The planning activities have a higher priority than RD&T 
activities in the overall needs of the State DOT for a given fiscal 
year; and
    (3) The total level of effort by the State DOT in RD&T (using both 
Federal and State funds) is adequate.
    (c) If the State DOT chooses to pursue an exception, it must send 
the request, along with supporting justification, to the FHWA Division 
Administrator for action by the FHWA Associate Administrator for 
Research, Development, and Technology. The Associate Administrator's 
decision will be based upon the following considerations:
    (1) Whether the State DOT has a process for identifying RD&T needs 
and for implementing a viable RD&T program.
    (2) Whether the State DOT is contributing to cooperative RD&T 
programs or activities, such as the National Cooperative Highway 
Research Program, the Transportation Research Board, and transportation 
pooled fund studies.
    (3) Whether the State DOT is using SPR funds for technology transfer 
and for transit or intermodal research and development to help meet the 
25 percent minimum requirement.
    (4) Whether the State DOT can demonstrate that it will meet the 
requirement or substantially increase its RD&T expenditures over a 
multi-year period, if an exception is granted for the fiscal year.
    (5) Whether Federal funds needed for planning exceed the 75 percent 
limit for the fiscal year and whether any unused planning funds are 
available from previous fiscal years.
    (d) If the FHWA Associate Administrator for Research, Development, 
and Technology approves the State DOT's request for an exception, the 
exception is valid only for that fiscal year's funds. A new request must 
be submitted and approved for subsequent fiscal year funds.

[[Page 93]]



Sec.  420.109  What are the requirements for distribution 
of metropolitan planning funds?

    (a) The State DOTs shall make all PL funds authorized by 23 U.S.C. 
104(f) available to the MPOs in accordance with a formula developed by 
the State DOT, in consultation with the MPOs, and approved by the FHWA 
Division Administrator. The formula may allow for a portion of the PL 
funds to be used by the State DOT, or other agency agreed to by the 
State DOT and the MPOs, for activities that benefit all MPOs in the 
State, but State DOTs shall not use any PL funds for grant or subgrant 
administration. The formula may also provide for a portion of the funds 
to be made available for discretionary grants to MPOs to supplement 
their annual amount received under the distribution formula.
    (b) In developing the formula for distributing PL funds, the State 
DOT shall consider population, status of planning, attainment of air 
quality standards, metropolitan area transportation needs, and other 
factors necessary to provide for an appropriate distribution of funds to 
carry out the requirements of 23 U.S.C. 134 and other applicable 
requirements of Federal law.
    (c) The State DOTs shall inform the MPOs and the FHWA Division 
Office of the amounts allocated to each MPO as soon as possible after PL 
funds have been apportioned by the FHWA to the State DOTs.
    (d) If the State DOT, in a State receiving the minimum apportionment 
of PL funds under the provisions of 23 U.S.C. 104(f)(2), determines that 
the share of funds to be allocated to any MPO results in the MPO 
receiving more funds than necessary to carry out the provisions of 23 
U.S.C. 134, the State DOT may, after considering the views of the 
affected MPO(s) and with the approval of the FHWA Division 
Administrator, use those funds for transportation planning outside of 
metropolitan planning areas.
    (e) In accordance with the provisions of 23 U.S.C. 134(n), any PL 
funds not needed for carrying out the metropolitan planning provisions 
of 23 U.S.C. 134 in any State may be made available by the MPO(s) to the 
State DOT for funding statewide planning activities under 23 U.S.C. 135, 
subject to approval by the FHWA Division Administrator.
    (f) Any State PL fund distribution formula that does not meet the 
requirements of paragraphs (a) and (b) of this section shall be brought 
into conformance with those requirements before distribution on any new 
apportionment of PL funds.



Sec.  420.111  What are the documentation requirements for use 
of FHWA planning and research funds?

    (a) Proposed use of FHWA planning and research funds must be 
documented by the State DOTs and subrecipients in a work program, or 
other document that describes the work to be accomplished, that is 
acceptable to the FHWA Division Administrator. Statewide, metropolitan, 
other transportation planning activities, and transportation RD&T 
activities may be documented in separate programs, paired in various 
combinations, or brought together as a single work program. The 
expenditure of PL funds for transportation planning outside of 
metropolitan planning areas under Sec.  420.109(d) may be included in 
the work program for statewide transportation planning activities or in 
a separate work program submitted by the State DOT.
    (b)(1) A work program(s) for transportation planning activities must 
include a description of work to be accomplished and cost estimates by 
activity or task. In addition, each work program must include a summary 
that shows:
    (i) Federal share by type of fund;
    (ii) Matching rate by type of fund;
    (iii) State and/or local matching share; and
    (iv) Other State or local funds.
    (2) Additional information on metropolitan planning area work 
programs is contained in 23 CFR part 450. Additional information on RD&T 
work program content and format is contained in subpart B of this part.
    (c) In areas not designated as TMAs, a simplified statement of work 
that describes who will perform the work and the work that will be 
accomplished using Federal funds may be used in lieu of a work program. 
If a simplified statement of work is used, it may be

[[Page 94]]

submitted separately or as part of the Statewide planning work program.
    (d) The State DOTs that use separate Federal-aid projects in 
accordance with paragraph (a) of this section must submit an overall 
summary that identifies the amounts and sources of FHWA planning and 
research funds available, matching funds, and the amounts budgeted for 
each activity (e.g., statewide planning, RD&T, each metropolitan area, 
contributions to NCHRP and transportation pooled fund studies, etc.).
    (e) The State DOTs and MPOs also are encouraged to include cost 
estimates for transportation planning, research, development, and 
technology transfer related activities funded with other Federal or 
State and/or local funds; particularly for producing the FHWA-required 
data specified in paragraph (b) of Sec.  420.105, for planning for other 
transportation modes, and for air quality planning activities in areas 
designated as non-attainment for transportation-related pollutants in 
their work programs. The MPOs in TMAs must include such information in 
their work programs. (The information collection requirements in 
Sec. Sec.  420.111 have been approved by the OMB and assigned control 
numbers 2125-0039 for States and 2132-0529 for MPOs.)



Sec.  420.113  What costs are eligible?

    (a) Costs will be eligible for FHWA participation provided that the 
costs:
    (1) Are for work performed for activities eligible under the section 
of title 23, U.S.C., applicable to the class of funds used for the 
activities;
    (2) Are verifiable from the State DOT's or the subrecipient's 
records;
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project objectives and meet the other criteria for 
allowable costs in the applicable cost principles cited in 49 CFR 18.22;
    (4) Are included in the approved budget, or amendment thereto; and
    (5) Were not incurred prior to FHWA authorization.
    (b) Indirect costs of State DOTs and their subrecipients are 
allowable if supported by a cost allocation plan and indirect cost 
proposal prepared, submitted (if required), and approved by the 
cognizant or oversight agency in accordance with the OMB requirements 
applicable to the State DOT or subrecipient specified in 49 CFR 
18.22(b).



Sec.  420.115  What are the FHWA approval and authorization requirements?

    (a) The State DOT and its subrecipients must obtain approval and 
authorization to proceed prior to beginning work on activities to be 
undertaken with FHWA planning and research funds. Such approvals and 
authorizations should be based on final work programs or other documents 
that describe the work to be performed. The State DOT and its 
subrecipients also must obtain prior approval for budget and 
programmatic changes as specified in 49 CFR 18.30 or 49 CFR 19.25 and 
for those items of allowable costs which require approval in accordance 
with the cost principles specified in 49 CFR 18.22(b) applicable to the 
entity expending the funds.
    (b) Authorization to proceed with the FHWA funded work in whole or 
in part is a contractual obligation of the Federal government pursuant 
to 23 U.S.C. 106 and requires that appropriate funds be available for 
the full Federal share of the cost of work authorized. Those State DOTs 
that do not have sufficient FHWA planning and research funds or 
obligation authority available to obligate the full Federal share of a 
work program or project may utilize the advance construction provisions 
of 23 U.S.C. 115(a) in accordance with the requirements of 23 CFR part 
630, subpart G. The State DOTs that do not meet the advance construction 
provisions, or do not wish to utilize them, may request authorization to 
proceed with that portion of the work for which FHWA planning and 
research funds are available. In the latter case, authorization to 
proceed may be given for either selected work activities or for a 
portion of the program period, but such authorization does not 
constitute a commitment by the FHWA to fund the remaining portion of the 
work if additional funds do become available.
    (c) A project agreement must be executed by the State DOT and the 
FHWA Division Office for each statewide transportation planning, 
metropolitan

[[Page 95]]

planning area, or RD&T work program, individual activity or study, or 
any combination administered as a single Federal-aid project. The 
project agreement may be executed concurrent with or after authorization 
has been given by the FHWA Division Administrator to proceed with the 
work in whole or in part. In the event that the project agreement is 
executed for only part of the work, the project agreement must be 
amended when authorization is given to proceed with additional work.

(The information collection requirements in Sec.  420.115(c) have been 
approved by the OMB and assigned control numbers 2125-0529)



Sec.  420.117  What are the program monitoring and reporting requirements?

    (a) In accordance with 49 CFR 18.40, the State DOT shall monitor all 
activities performed by its staff or by subrecipients with FHWA planning 
and research funds to assure that the work is being managed and 
performed satisfactorily and that time schedules are being met.
    (b)(1) The State DOT must submit performance and expenditure 
reports, including a report from each subrecipient, that contain as a 
minimum:
    (i) Comparison of actual performance with established goals;
    (ii) Progress in meeting schedules;
    (iii) Status of expenditures in a format compatible with the work 
program, including a comparison of budgeted (approved) amounts and 
actual costs incurred;
    (iv) Cost overruns or underruns;
    (v) Approved work program revisions; and
    (vi) Other pertinent supporting data.
    (2) Additional information on reporting requirements for individual 
RD&T studies is contained in subpart B of this part.
    (c) Reports required by paragraph (b) of this section shall be 
annual unless more frequent reporting is determined to be necessary by 
the FHWA Division Administrator. The FHWA may not require more frequent 
than quarterly reporting unless the criteria in 49 CFR 18.12 or 49 CFR 
19.14 are met. Reports are due 90 days after the end of the reporting 
period for annual and final reports and no later than 30 days after the 
end of the reporting period for other reports.
    (d) Events that have significant impact on the work must be reported 
as soon as they become known. The types of events or conditions that 
require reporting include: problems, delays, or adverse conditions that 
will materially affect the ability to attain program objectives. This 
disclosure must be accompanied by a statement of the action taken, or 
contemplated, and any Federal assistance needed to resolve the 
situation.
    (e) Suitable reports that document the results of activities 
performed with FHWA planning and research funds must be prepared by the 
State DOT or subrecipient and submitted for approval by the FHWA 
Division Administrator prior to publication. The FHWA Division 
Administrator may waive this requirement for prior approval. The FHWA's 
approval of reports constitutes acceptance of such reports as evidence 
of work performed but does not imply endorsement of a report's findings 
or recommendations. Reports prepared for FHWA-funded work must include 
appropriate credit references and disclaimer statements. (The 
information collection requirements in Sec.  420.117 have been approved 
by the OMB and assigned control numbers 2125-0039 for States and 2132-
0529 for MPOs.)



Sec.  420.119  What are the fiscal requirements?

    (a) The maximum rate of Federal participation for FHWA planning and 
research funds shall be as prescribed in title 23, U.S.C., for the 
specific class of funds used (i.e., SPR, PL, NHS, STP, or MG) except as 
specified in paragraph (d) of this section. The provisions of 49 CFR 
18.24 or 49 CFR 19.23 are applicable to any necessary matching of FHWA 
planning and research funds.
    (b) The value of third party in-kind contributions may be accepted 
as the match for FHWA planning and research funds, in accordance with 
the provisions of 49 CFR 18.24(a)(2) or 49 CFR 19.23(a) and may be on 
either a total planning work program basis or for specific line items or 
projects. The use of third party in-kind contributions must be 
identified in the original work program/scope of work and the grant/

[[Page 96]]

subgrant agreement, or amendments thereto. The use of third-party in-
kind contributions must be approved in advance by the FHWA Division 
Administrator and may not be made retroactive prior to approval of the 
work program/scope of work or an amendment thereto. The State DOT or 
subrecipient is responsible for ensuring that the following additional 
criteria are met:
    (1) The third party performing the work agrees to allow the value of 
the work to be used as the match;
    (2) The cost of the third party work is not paid for by other 
Federal funds or used as a match for other federally funded grants/
subgrants;
    (3) The work performed by the third party is an eligible 
transportation planning or RD&T related activity that benefits the 
federally funded work;
    (4) The third party costs (i.e., salaries, fringe benefits, etc.) 
are allowable under the applicable Office of Management and Budget (OMB) 
cost principles (i.e., OMB Circular A-21, A-87, or A-122);\1\
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    \1\ OMB Circulars are available on the Internet at http://
www.whitehouse.gov/omb/circulars/index.html.
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    (5) The third party work is performed during the period to which the 
matching requirement applies;
    (6) The third party in-kind contributions are verifiable from the 
records of the State DOT or subrecipient and these records show how the 
value placed on third party in-kind contributions was derived; and
    (7) If the total amount of third party expenditures at the end of 
the program period is not sufficient to match the total expenditure of 
Federal funds by the recipient/subrecipient, the recipient/subrecipient 
will need to make up any shortfall with its own funds.
    (c) In accordance with the provisions of 23 U.S.C. 120(j), toll 
revenues that are generated and used by public, quasi-public, and 
private agencies to build, improve, or maintain highways, bridges, or 
tunnels that serve the public purpose of interstate commerce may be used 
as a credit for the non-Federal share of an FHWA planning and research 
funded project.
    (d) In accordance with 23 U.S.C. 505(c) or 23 U.S.C. 104(f)(3), the 
requirement for matching SPR or PL funds may be waived if the FHWA 
determines the interests of the Federal-aid highway program would be 
best served. Waiver of the matching requirement is intended to encourage 
State DOTs and/or MPOs to pool SPR and/or PL funds to address national 
or regional high priority planning or RD&T problems that would benefit 
multiple States and/or MPOs. Requests for waiver of matching 
requirements must be submitted to the FHWA headquarters office for 
approval by the Associate Administrator for Planning and Environment 
(for planning activities) or the Associate Administrator for Research, 
Development, and Technology (for RD&T activities). The matching 
requirement may not be waived for NHS, STP, or MG funds.
    (e) NHS, STP, or MG funds used for eligible planning and RD&T 
purposes must be identified separately from SPR or PL funds in the work 
program(s) and must be administered and accounted for separately for 
fiscal purposes. In accordance with the statewide and metropolitan 
planning process requirements for fiscally constrained transportation 
improvement program (TIPs) planning or RD&T activities funded with NHS, 
STP, or MG funds must be included in the Statewide and/or metropolitan 
TIP(s) unless the State DOT and MPO (for a metropolitan area) agree that 
they may be excluded from the TIP.
    (f) Payment shall be made in accordance with the provisions of 49 
CFR 18.21 or 49 CFR 19.22.



Sec.  420.121  What other requirements apply to the administration 
of FHWA planning and research funds?

    (a) Audits. Audits of the State DOTs and their subrecipients shall 
be performed in accordance with OMB Circular A-133, Audits of States, 
Local Governments, and Non-Profit Organizations. \2\ Audits of for-
profit contractors are to be performed in accordance with State DOT or 
subrecipient contract administration procedures.
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    \2\ See footnote 1.

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[[Page 97]]

    (b) Copyrights. The State DOTs and their subrecipients may copyright 
any books, publications, or other copyrightable materials developed in 
the course of the FHWA planning and research funded project. The FHWA 
reserves a royalty-free, nonexclusive and irrevocable right to 
reproduce, publish, or otherwise use, and to authorize others to use, 
the work for Government purposes.
    (c) Disadvantaged business enterprises. The State DOTs must 
administer the transportation planning and RD&T program(s) consistent 
with their overall efforts to implement section 1001(b) of the 
Transportation Equity Act for the 21st Century (Pub. L. 105-178) and 49 
CFR part 26 regarding disadvantaged business enterprises.
    (d) Drug free workplace. In accordance with the provisions of 49 CFR 
part 29, subpart F, State DOTs must certify to the FHWA that they will 
provide a drug free workplace. This requirement may be satisfied through 
the annual certification for the Federal-aid highway program.
    (e) Equipment. Acquisition, use, and disposition of equipment 
purchased with FHWA planning and research funds by the State DOTs must 
be in accordance with 49 CFR 18.32(b). Local government subrecipients of 
State DOTs must follow the procedures specified by the State DOT. 
Universities, hospitals, and other non-profit organizations must follow 
the procedures in 49 CFR 19.34.
    (f) Financial management systems. The financial management systems 
of the State DOTs and their local government subrecipients must be in 
accordance with the provisions of 49 CFR 18.20(a). The financial 
management systems of universities, hospitals, and other non-profit 
organizations must be in accordance with 49 CFR 19.21.
    (g) Lobbying. The provisions of 49 CFR part 20 regarding 
restrictions on influencing certain Federal activities are applicable to 
all tiers of recipients of FHWA planning and research funds.
    (h) Nondiscrimination. The nondiscrimination provisions of 23 CFR 
parts 200 and 230 and 49 CFR part 21, with respect to Title VI of the 
Civil Rights Act of 1964 and the Civil Rights Restoration Act of 1987, 
apply to all programs and activities of recipients, subrecipients, and 
contractors receiving FHWA planning and research funds whether or not 
those programs or activities are federally funded.
    (i) Patents. The State DOTs and their subrecipients are subject to 
the provisions of 37 CFR part 401 governing patents and inventions and 
must include or cite the standard patent rights clause at 37 CFR 401.14, 
except for Sec.  401.14(g), in all subgrants or contracts. In addition, 
State DOTs and their subrecipients must include the following clause, 
suitably modified to identify the parties, in all subgrants or 
contracts, regardless of tier, for experimental, developmental or 
research work: ``The subgrantee or contractor will retain all rights 
provided for the State in this clause, and the State will not, as part 
of the consideration for awarding the subgrant or contract, obtain 
rights in the subgrantee's or contractor's subject inventions.''
    (j) Procurement. Procedures for the procurement of property and 
services with FHWA planning and research funds by the State DOTs must be 
in accordance with 49 CFR 18.36(a) and (i) and, if applicable, 18.36(t). 
Local government subrecipients of State DOTs must follow the procedures 
specified by the State DOT. Universities, hospitals, and other non-
profit organizations must follow the procedures in 49 CFR 19.40 through 
19.48. The State DOTs and their subrecipients must not use FHWA funds 
for procurements from persons (as defined in 49 CFR 29.105) who have 
been debarred or suspended in accordance with the provisions of 49 CFR 
part 29, subparts A through E.
    (k) Program income. Program income, as defined in 49 CFR 18.25(b) or 
49 CFR 19.24, must be shown and deducted from total expenditures to 
determine the Federal share to be reimbursed, unless the FHWA Division 
Administrator has given prior approval to use the program income to 
perform additional eligible work or as the non-Federal match.
    (l) Record retention. Recordkeeping and retention requirements must 
be in accordance with 49 CFR 18.42 or 49 CFR 19.53.
    (m) Subgrants to local governments. The State DOTs and subrecipients 
are

[[Page 98]]

responsible for administering FHWA planning and research funds passed 
through to MPOs and local governments, for ensuring that such funds are 
expended for eligible activities, and for ensuring that the funds are 
administered in accordance with this part, 49 CFR part 18, Uniform 
Administrative Requirements for Grants and Agreements to State and Local 
Governments, and applicable OMB cost principles. The State DOTs shall 
follow State laws and procedures when awarding and administering 
subgrants to MPOs and local governments and must ensure that the 
requirements of 49 CFR 18.37(a) have been satisfied.
    (n) Subgrants to universities, hospitals, and other non-profit 
organizations. The State DOTs and subrecipients are responsible for 
ensuring that FHWA planning and research funds passed through to 
universities, hospitals, and other non-profit organizations are expended 
for eligible activities and for ensuring that the funds are administered 
in accordance with this part, 49 CFR part 19, Uniform Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Non-Profit Organizations, and applicable 
OMB cost principles.
    (o) Suspension and debarment. (1) The State DOTs and their 
subrecipients shall not award grants or cooperative agreements to 
entities who are debarred or suspended, or otherwise excluded from or 
ineligible for participation in Federal assistance programs under 
Executive Order 12549 of February 18, 1986 (3 CFR, 1986 Comp., p. 189); 
and
    (2) The State DOTs and their subrecipients shall comply with the 
provisions of 49 CFR part 29, subparts A through E, for procurements 
from persons (as defined in 49 CFR 29.105) who have been debarred or 
suspended.
    (p) Supplies. Acquisition and disposition of supplies acquired by 
the State DOTs and their subrecipients with FHWA planning and research 
funds must be in accordance with 49 CFR 18.33 or 49 CFR 19.35.



    Subpart B_Research, Development and Technology Transfer Program 
                               Management



Sec.  420.201  What is the purpose of this subpart?

    The purpose of this subpart is to prescribe requirements for 
research, development, and technology transfer (RD&T) activities, 
programs, and studies undertaken by State DOTs and their subrecipients 
with FHWA planning and research funds.



Sec.  420.203  How does the FHWA define the terms used in this subpart?

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and subpart A of this part, are applicable to this 
subpart. As used in this subpart:
    Applied research means the study of phenomena to gain knowledge or 
understanding necessary for determining the means by which a recognized 
need may be met; the primary purpose of this kind of research is to 
answer a question or solve a problem.
    Basic research means the study of phenomena, and of observable 
facts, without specific applications towards processes or products in 
mind; the primary purpose of this kind of research is to increase 
knowledge.
    Development means the systematic use of the knowledge or 
understanding gained from research, directed toward the production of 
useful materials, devices, systems or methods, including design and 
development of prototypes and processes.
    Final report means a report documenting a completed RD&T study or 
activity.
    Intermodal RD&T means research, development, and technology transfer 
activities involving more than one mode of transportation, including 
transfer facilities between modes.
    Peer exchange means a periodic review of a State DOT's RD&T program, 
or portion thereof, by representatives of other State DOT's, for the 
purpose of exchange of information or best practices. The State DOT may 
also invite the participation of the FHWA, and other Federal, State, 
regional or local

[[Page 99]]

transportation agencies, the Transportation Research Board, academic 
institutions, foundations or private firms that support transportation 
research, development or technology transfer activities.
    RD&T activity means a basic or applied research project or study, 
development or technology transfer activity.
    Research means a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. Research can be basic 
or applied.
    Technology transfer means those activities that lead to the adoption 
of a new technique or product by users and involves dissemination, 
demonstration, training, and other activities that lead to eventual 
innovation.
    Transportation Research Information Services (TRIS) means the 
database produced and maintained by the Transportation Research Board 
and available online through the National Transportation Library. TRIS 
includes bibliographic records and abstracts of on-going and completed 
RD&T activities. TRIS Online also includes links to the full text of 
public-domain documents.



Sec.  420.205  What is the FHWA's policy for research, development, 
and technology transfer funding?

    (a) It is the FHWA's policy to administer the RD&T program 
activities utilizing FHWA planning and research funds consistent with 
the policy specified in Sec.  420.105 and the following general 
principles in paragraphs (b) through (g) of this section.
    (b) The State DOTs must provide information necessary for peer 
exchanges.
    (c) The State DOTs are encouraged to develop, establish, and 
implement an RD&T program, funded with Federal and State DOT resources 
that anticipates and addresses transportation concerns before they 
become critical problems. Further, the State DOTs are encouraged to 
include in this program development and technology transfer programs to 
share the results of their own research efforts and promote the use of 
new technology.
    (d) To promote effective use of available resources, the State DOTs 
are encouraged to cooperate with other State DOTs, the FHWA, and other 
appropriate agencies to achieve RD&T objectives established at the 
national level and to develop a technology transfer program to promote 
and use those results. This includes contributing to cooperative RD&T 
programs such as the NCHRP, the TRB, and transportation pooled fund 
studies as a means of addressing national and regional issues and as a 
means of leveraging funds.
    (e) The State DOTs will be allowed the authority and flexibility to 
manage and direct their RD&T activities as presented in their work 
programs, and to initiate RD&T activities supported by FHWA planning and 
research funds, subject to the limitation of Federal funds and to 
compliance with program conditions set forth in subpart A of this part 
and Sec.  420.207.
    (f) The State DOTs will have primary responsibility for managing 
RD&T activities supported with FHWA planning and research funds carried 
out by other State agencies and organizations and for ensuring that such 
funds are expended for purposes consistent with this subpart.
    (g) Each State DOT must develop, establish, and implement a 
management process that ensures effective use of available FHWA planning 
and research funds for RD&T activities on a statewide basis. Each State 
DOT is permitted to tailor its management process to meet State or local 
needs; however, the process must comply with the minimum requirements 
and conditions of this subpart.
    (h) The State DOTs are encouraged to make effective use of the FHWA 
Division, Resource Center, and Headquarters office expertise in 
developing and carrying out their RD&T activities. Participation of the 
FHWA on advisory panels and in program exchange meetings is encouraged.



Sec.  420.207  What are the requirements for research, development, 
and technology transfer work programs?

    (a) The State DOT's RD&T work program must, as a minimum, consist of 
a description of RD&T activities to be accomplished during the program 
period, estimated costs for each eligible

[[Page 100]]

activity, and a description of any cooperative activities including the 
State DOT's participation in any transportation pooled fund studies and 
the NCHRP. The State DOT's work program should include a list of the 
major items with a cost estimate for each item. The work program should 
also include any study funded under a previous work program until a 
final report has been completed for the study.
    (b) The State DOT's RD&T work program must include financial 
summaries showing the funding levels and share (Federal, State, and 
other sources) for RD&T activities for the program year. State DOTs are 
encouraged to include any activity funded 100 percent with State or 
other funds for information purposes.
    (c) Approval and authorization procedures in Sec.  420.115 are 
applicable to the State DOT's RD&T work program.



Sec.  420.209  What are the conditions for approval?

    (a) As a condition for approval of FHWA planning and research funds 
for RD&T activities, a State DOT must develop, establish, and implement 
a management process that identifies and results in implementation of 
RD&T activities expected to address high priority transportation issues. 
The management process must include:
    (1) An interactive process for identification and prioritization of 
RD&T activities for inclusion in an RD&T work program;
    (2) Use of all FHWA planning and research funds set aside for RD&T 
activities, either internally or for participation in transportation 
pooled fund studies or other cooperative RD&T programs, to the maximum 
extent possible;
    (3) Procedures for tracking program activities, schedules, 
accomplishments, and fiscal commitments;
    (4) Support and use of the TRIS database for program development, 
reporting of active RD&T activities, and input of the final report 
information;
    (5) Procedures to determine the effectiveness of the State DOT's 
management process in implementing the RD&T program, to determine the 
utilization of the State DOT's RD&T outputs, and to facilitate peer 
exchanges of its RD&T Program on a periodic basis;
    (6) Procedures for documenting RD&T activities through the 
preparation of final reports. As a minimum, the documentation must 
include the data collected, analyses performed, conclusions, and 
recommendations. The State DOT must actively implement appropriate 
research findings and should document benefits; and
    (7) Participation in peer exchanges of its RD&T management process 
and of other State DOTs' programs on a periodic basis. To assist peer 
exchange teams in conducting an effective exchange, the State DOT must 
provide to them the information and documentation required to be 
collected and maintained under this subpart. Travel and other costs 
associated with the State DOT's peer exchange may be identified as a 
line item in the State DOT's work program and will be eligible for 100 
percent Federal funding. The peer exchange team must prepare a written 
report of the exchange.
    (b) Documentation that describes the State DOT's management process 
and the procedures for selecting and implementing RD&T activities must 
be developed by the State DOT and submitted to the FHWA Division office 
for approval. Significant changes in the management process also must be 
submitted by the State DOT to the FHWA for approval. The State DOT must 
make the documentation available, as necessary, to facilitate peer 
exchanges.
    (c) The State DOT must include a certification that it is in full 
compliance with the requirements of this subpart in each RD&T work 
program. If the State DOT is unable to certify full compliance, the FHWA 
Division Administrator may grant conditional approval of the State DOT's 
work program. A conditional approval must cite those areas of the State 
DOT's management process that are deficient and require that the 
deficiencies be corrected within 6 months of conditional approval. The 
certification must consist of a statement signed by the Administrator, 
or an official designated by the Administrator, of the State DOT 
certifying as follows: ``I (name of certifying official), (position 
title), of the State (Commonwealth) of ____, do hereby

[[Page 101]]

certify that the State (Commonwealth) is in compliance with all 
requirements of 23 U.S.C. 505 and its implementing regulations with 
respect to the research, development, and technology transfer program, 
and contemplate no changes in statutes, regulations, or administrative 
procedures which would affect such compliance.''
    (d) The FHWA Division Administrator shall periodically review the 
State DOT's management process to determine if the State is in 
compliance with the requirements of this subpart. If the Division 
Administrator determines that a State DOT is not complying with the 
requirements of this subpart, or is not performing in accordance with 
its RD&T management process, the FHWA Division Administrator shall issue 
a written notice of proposed determination of noncompliance to the State 
DOT. The notice will set forth the reasons for the proposed 
determination and inform the State DOT that it may reply in writing 
within 30 calendar days from the date of the notice. The State DOT's 
reply should address the deficiencies cited in the notice and provide 
documentation as necessary. If the State DOT and the Division 
Administrator cannot resolve the differences set forth in the 
determination of nonconformity, the State DOT may appeal to the Federal 
Highway Administrator whose action shall constitute the final decision 
of the FHWA. An adverse decision shall result in immediate withdrawal of 
approval of FHWA planning and research funds for the State DOT's RD&T 
activities until the State DOT is in full compliance.

(The information collection requirements in Sec.  420.209 have been 
approved by the OMB and assigned control number 2125-0039)



PART 450_PLANNING ASSISTANCE AND STANDARDS--Table of Contents



      Subpart A_Transportation Planning and Programming Definitions

Sec.
450.100 Purpose.
450.102 Applicability.
450.104 Definitions.

  Subpart B_Statewide and Nonmetropolitan Transportation Planning and 
                               Programming

450.200 Purpose.
450.202 Applicability.
450.204 Definitions.
450.206 Scope of the statewide and nonmetropolitan transportation 
          planning process.
450.208 Coordination of planning process activities.
450.210 Interested parties, public involvement, and consultation.
450.212 Transportation planning studies and project development.
450.214 Development of programmatic mitigation plans.
450.216 Development and content of the long-range statewide 
          transportation plan.
450.218 Development and content of the statewide transportation 
          improvement program (STIP).
450.220 Self-certifications, Federal findings, and Federal approvals.
450.222 Project selection from the STIP.
450.224 Applicability of NEPA to statewide transportation plans and 
          programs.
450.226 Phase-in of new requirements.

     Subpart C_Metropolitan Transportation Planning and Programming

450.300 Purpose.
450.302 Applicability.
450.304 Definitions.
450.306 Scope of the metropolitan transportation planning process.
450.308 Funding for transportation planning and unified planning work 
          programs.
450.310 Metropolitan planning organization designation and 
          redesignation.
450.312 Metropolitan Planning Area boundaries.
450.314 Metropolitan planning agreements.
450.316 Interested parties, participation, and consultation.
450.318 Transportation planning studies and project development.
450.320 Development of programmatic mitigation plans.
450.322 Congestion management process in transportation management 
          areas.
450.324 Development and content of the metropolitan transportation plan.
450.326 Development and content of the transportation improvement 
          program (TIP).
450.328 TIP revisions and relationship to the STIP.
450.330 TIP action by the FHWA and the FTA.
450.332 Project selection from the TIP.
450.334 Annual listing of obligated projects.

[[Page 102]]

450.336 Self-certifications and Federal certifications.
450.338 Applicability of NEPA to metropolitan transportation plans and 
          programs.
450.340 Phase-in of new requirements.

Appendix A to Part 450--Linking the Transportation Planning and NEPA 
          Processes

    Authority: 23 U.S.C. 134 and 135; 42 U.S.C. 7410 et seq.; 49 U.S.C. 
5303 and 5304; 49 CFR 1.85 and 1.90.

    Source: 81 FR 34135, May 27, 2016, unless otherwise noted.



      Subpart A_Transportation Planning and Programming Definitions



Sec.  450.100  Purpose.

    The purpose of this subpart is to provide definitions for terms used 
in this part.



Sec.  450.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.



Sec.  450.104  Definitions.

    Unless otherwise specified, the definitions in 23 U.S.C. 101(a) and 
49 U.S.C. 5302 are applicable to this part.
    Administrative modification means a minor revision to a long-range 
statewide or metropolitan transportation plan, Transportation 
Improvement Program (TIP), or Statewide Transportation Improvement 
Program (STIP) that includes minor changes to project/project phase 
costs, minor changes to funding sources of previously included projects, 
and minor changes to project/project phase initiation dates. An 
administrative modification is a revision that does not require public 
review and comment, a redemonstration of fiscal constraint, or a 
conformity determination (in nonattainment and maintenance areas).
    Amendment means a revision to a long-range statewide or metropolitan 
transportation plan, TIP, or STIP that involves a major change to a 
project included in a metropolitan transportation plan, TIP, or STIP, 
including the addition or deletion of a project or a major change in 
project cost, project/project phase initiation dates, or a major change 
in design concept or design scope (e.g., changing project termini or the 
number of through traffic lanes or changing the number of stations in 
the case of fixed guideway transit projects). Changes to projects that 
are included only for illustrative purposes do not require an amendment. 
An amendment is a revision that requires public review and comment and a 
redemonstration of fiscal constraint. If an amendment involves ``non-
exempt'' projects in nonattainment and maintenance areas, a conformity 
determination is required.
    Asset management means a strategic and systematic process of 
operating, maintaining, and improving physical assets, with a focus on 
both engineering and economic analysis based upon quality information, 
to identify a structured sequence of maintenance, preservation, repair, 
rehabilitation, and replacement actions that will achieve and sustain a 
desired state of good repair over the lifecycle of the assets at minimum 
practicable cost.
    Attainment area means any geographic area in which levels of a given 
criteria air pollutant (e.g., ozone, carbon monoxide, PM10, 
PM2.5, and nitrogen dioxide) meet the health-based National 
Ambient Air Quality Standards (NAAQS) for that pollutant. An area may be 
an attainment area for one pollutant and a nonattainment area for 
others. A ``maintenance area'' (see definition in this section) is not 
considered an attainment area for transportation planning purposes.
    Available funds means funds derived from an existing source 
dedicated to or historically used for transportation purposes. For 
Federal funds, authorized and/or appropriated funds and the 
extrapolation of formula and discretionary funds at historic rates of 
increase are considered ``available.'' A similar approach may be used 
for State and local funds that are dedicated to or historically used for 
transportation purposes.
    Committed funds means funds that have been dedicated or obligated 
for transportation purposes. For State funds that are not dedicated to 
transportation purposes, only those funds over which the Governor has 
control

[[Page 103]]

may be considered ``committed.'' Approval of a TIP by the Governor is 
considered a commitment of those funds over which the Governor has 
control. For local or private sources of funds not dedicated to or 
historically used for transportation purposes (including donations of 
property), a commitment in writing (e.g., letter of intent) by the 
responsible official or body having control of the funds may be 
considered a commitment. For projects involving 49 U.S.C. 5309 funding, 
execution of a Full Funding Grant Agreement (or equivalent) or an 
Expedited Grant Agreement (or equivalent) with the DOT shall be 
considered a multiyear commitment of Federal funds.
    Conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement 
that ensures that Federal funding and approval are given to 
transportation plans, programs and projects that are consistent with the 
air quality goals established by a State Implementation Plan (SIP). 
Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the NAAQS or any required 
interim emission reductions or other milestones in any nonattainment or 
maintenance area. The transportation conformity regulations (40 CFR part 
93, subpart A) sets forth policy, criteria, and procedures for 
demonstrating and assuring conformity of transportation activities.
    Conformity lapse means, pursuant to section 176(c) of the Clean Air 
Act (42 U.S.C. 7506(c)), as amended, that the conformity determination 
for a metropolitan transportation plan or TIP has expired and thus there 
is no currently conforming metropolitan transportation plan or TIP.
    Congestion Management Process means a systematic approach required 
in transportation management areas (TMAs) that provides for effective 
management and operation, based on a cooperatively developed and 
implemented metropolitan-wide strategy, of new and existing 
transportation facilities eligible for funding under title 23 U.S.C., 
and title 49 U.S.C., through the use of travel demand reduction and 
operational management strategies.
    Consideration means that one or more parties takes into account the 
opinions, action, and relevant information from other parties in making 
a decision or determining a course of action.
    Consultation means that one or more parties confer with other 
identified parties in accordance with an established process and, prior 
to taking action(s), considers the views of the other parties and 
periodically informs them about action(s) taken. This definition does 
not apply to the ``consultation'' performed by the States and the 
Metropolitan Planning Organizations (MPOs) in comparing the long-range 
statewide transportation plan and the metropolitan transportation plan, 
respectively, to State and tribal conservation plans or maps or 
inventories of natural or historic resources (see section 450.216(j) and 
sections 450.324(g)(1) and (g)(2)).
    Cooperation means that the parties involved in carrying out the 
transportation planning and programming processes work together to 
achieve a common goal or objective.
    Coordinated public transit-human services transportation plan means 
a locally developed, coordinated transportation plan that identifies the 
transportation needs of individuals with disabilities, older adults, and 
people with low incomes, provides strategies for meeting those local 
needs, and prioritizes transportation services for funding and 
implementation.
    Coordination means the cooperative development of plans, programs, 
and schedules among agencies and entities with legal standing and 
adjustment of such plans, programs, and schedules to achieve general 
consistency, as appropriate.
    Design concept means the type of facility identified for a 
transportation improvement project (e.g., freeway, expressway, arterial 
highway, grade-separated highway, toll road, reserved right-of-way rail 
transit, mixed-traffic rail transit, or busway).
    Design scope means the aspects that will affect the proposed 
facility's impact on the region, usually as they relate to vehicle or 
person carrying capacity and control (e.g., number of lanes or tracks to 
be constructed or added, length of project, signalization,

[[Page 104]]

safety features, access control including approximate number and 
location of interchanges, or preferential treatment for high-occupancy 
vehicles).
    Designated recipient means an entity designated, in accordance with 
the planning process under 49 U.S.C. 5303 and 5304, by the Governor of a 
State, responsible local officials, and publicly owned operators of 
public transportation, to receive and apportion amounts under 49 U.S.C. 
5336 that are attributable to urbanized areas of 200,000 or more in 
population, or a State or regional authority if the authority is 
responsible under the laws of a State for a capital project and for 
financing and directly providing public transportation.
    Environmental mitigation activities means strategies, policies, 
programs, and actions that, over time, will serve to avoid, minimize, 
rectify, reduce or eliminate impacts to environmental resources 
associated with the implementation of a long-range statewide 
transportation plan or metropolitan transportation plan.
    Expedited Grant Agreement (EGA) means a contract that defines the 
scope of a Small Starts project, the Federal financial contribution, and 
other terms and conditions, in accordance with 49 U.S.C. 5309(h)(7).
    Federal land management agency means units of the Federal Government 
currently responsible for the administration of public lands (e.g., U.S. 
Forest Service, U.S. Fish and Wildlife Service, Bureau of Land 
Management, and the National Park Service).
    Federally funded non-emergency transportation services means 
transportation services provided to the general public, including those 
with special transport needs, by public transit, private non-profit 
service providers, and private third-party contractors to public 
agencies.
    Financial plan means documentation required to be included with a 
metropolitan transportation plan and TIP (and optional for the long-
range statewide transportation plan and STIP) that demonstrates the 
consistency between reasonably available and projected sources of 
Federal, State, local, and private revenues and the costs of 
implementing proposed transportation system improvements.
    Financially constrained or Fiscal constraint means that the 
metropolitan transportation plan, TIP, and STIP includes sufficient 
financial information for demonstrating that projects in the 
metropolitan transportation plan, TIP, and STIP can be implemented using 
committed, available, or reasonably available revenue sources, with 
reasonable assurance that the federally supported transportation system 
is being adequately operated and maintained. For the TIP and the STIP, 
financial constraint/fiscal constraint applies to each program year. 
Additionally, projects in air quality nonattainment and maintenance 
areas can be included in the first 2 years of the TIP and STIP only if 
funds are ``available'' or ``committed.''
    Freight shippers means any entity that routinely transport cargo 
from one location to another by providers of freight transportation 
services or by their own operations, involving one or more travel modes.
    Full Funding Grant Agreement (FFGA) means an instrument that defines 
the scope of a project, the Federal financial contribution, and other 
terms and conditions for funding New Starts projects as required by 49 
U.S.C. 5309(k)(2).
    Governor means the Governor of any of the 50 States or the 
Commonwealth of Puerto Rico or the Mayor of the District of Columbia.
    Highway Safety Improvement Program (HSIP) means a State safety 
program with the purpose to reduce fatalities and serious injuries on 
all public roads through the implementation of the provisions of 23 
U.S.C. 130, 148, and 150 including the development of a Strategic 
Highway Safety Plan (SHSP), Railway-Highway Crossings Program, and 
program of highway safety improvement projects.
    Illustrative project means an additional transportation project that 
may be included in a financial plan for a metropolitan transportation 
plan, TIP, or STIP if reasonable additional resources were to become 
available.

[[Page 105]]

    Indian Tribal government means a duly formed governing body for an 
Indian or Alaska Native tribe, band, nation, pueblo, village, or 
community that the Secretary of the Interior acknowledges to exist as an 
Indian Tribe pursuant to the Federally Recognized Indian Tribe List Act 
of 1994, Public Law 103-454.
    Intelligent Transportation System (ITS) means electronics, 
photonics, communications, or information processing used singly or in 
combination to improve the efficiency or safety of a surface 
transportation system.
    Interim metropolitan transportation plan means a transportation plan 
composed of projects eligible to proceed under a conformity lapse and 
otherwise meeting all other applicable provisions of this part, 
including approval by the MPO.
    Interim Transportation Improvement Program (TIP) means a TIP 
composed of projects eligible to proceed under a conformity lapse and 
otherwise meeting all other applicable provisions of this part, 
including approval by the MPO and the Governor.
    Long-range statewide transportation plan means the official, 
statewide, multimodal, transportation plan covering a period of no less 
than 20 years developed through the statewide transportation planning 
process.
    Maintenance area means any geographic region of the United States 
that the Environmental Protection Agency (EPA) previously designated as 
a nonattainment area for one or more pollutants pursuant to the Clean 
Air Act Amendments of 1990, and subsequently redesignated as an 
attainment area subject to the requirement to develop a maintenance plan 
under section 175A of the Clean Air Act, as amended (42 U.S.C. 7505a).
    Management system means a systematic process, designed to assist 
decision makers in selecting cost effective strategies/actions to 
improve the efficiency or safety of, and protect the investment in the 
nation's infrastructure. A management system can include: Identification 
of performance measures; data collection and analysis; determination of 
needs; evaluation and selection of appropriate strategies/actions to 
address the needs; and evaluation of the effectiveness of the 
implemented strategies/actions.
    Metropolitan planning agreement means a written agreement between 
the MPO, the State(s), and the providers of public transportation 
serving the metropolitan planning area that describes how they will work 
cooperatively to meet their mutual responsibilities in carrying out the 
metropolitan transportation planning process.
    Metropolitan planning area (MPA) means the geographic area 
determined by agreement between the MPO for the area and the Governor, 
in which the metropolitan transportation planning process is carried 
out.
    Metropolitan Planning Organization (MPO) means the policy board of 
an organization created and designated to carry out the metropolitan 
transportation planning process.
    Metropolitan transportation plan means the official multimodal 
transportation plan addressing no less than a 20-year planning horizon 
that the MPO develops, adopts, and updates through the metropolitan 
transportation planning process.
    National Ambient Air Quality Standard (NAAQS) means those standards 
established pursuant to section 109 of the Clean Air Act (42 U.S.C. 
7409).
    Nonattainment area means any geographic region of the United States 
that EPA designates as a nonattainment area under section 107 of the 
Clean Air Act (42 U.S.C. 7407) for any pollutants for which an NAAQS 
exists.
    Nonmetropolitan area means a geographic area outside a designated 
metropolitan planning area.
    Nonmetropolitan local officials means elected and appointed 
officials of general purpose local government in a nonmetropolitan area 
with responsibility for transportation.
    Obligated projects means strategies and projects funded under title 
23 U.S.C. and title 49 U.S.C. Chapter 53 for which the State or 
designated recipient authorized and committed the supporting Federal 
funds in preceding or current program years, and authorized by the FHWA 
or awarded as a grant by the FTA.
    Operational and management strategies means actions and strategies 
aimed at

[[Page 106]]

improving the performance of existing and planned transportation 
facilities to relieve congestion and maximize the safety and mobility of 
people and goods.
    Performance measure refers to ``Measure'' as defined in 23 CFR 
490.101.
    Performance metric refers to ``Metric'' as defined in 23 CFR 
490.101.
    Performance target refers to ``Target'' as defined in 23 CFR 
490.101.
    Project selection means the procedures followed by MPOs, States, and 
public transportation operators to advance projects from the first 4 
years of an approved TIP and/or STIP to implementation, in accordance 
with agreed upon procedures.
    Provider of freight transportation services means any entity that 
transports or otherwise facilitates the movement of cargo from one 
location to another for others or for itself.
    Public transportation agency safety plan means a comprehensive plan 
established by a State or recipient of funds under Title 49, Chapter 53 
and in accordance with 49 U.S.C. 5329(d).
    Public transportation operator means the public entity or 
government-approved authority that participates in the continuing, 
cooperative, and comprehensive transportation planning process in 
accordance with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, and 
is a recipient of Federal funds under title 49 U.S.C. Chapter 53 for 
transportation by a conveyance that provides regular and continuing 
general or special transportation to the public, but does not include 
sightseeing, school bus, charter, certain types of shuttle service, 
intercity bus transportation, or intercity passenger rail transportation 
provided by Amtrak.
    Regional ITS architecture means a regional framework for ensuring 
institutional agreement and technical integration for the implementation 
of ITS projects or groups of projects.
    Regionally significant project means a transportation project (other 
than projects that may be grouped in the TIP and/or STIP or exempt 
projects as defined in EPA's transportation conformity regulations (40 
CFR part 93, subpart A)) that is on a facility that serves regional 
transportation needs (such as access to and from the area outside the 
region; major activity centers in the region; major planned developments 
such as new retail malls, sports complexes, or employment centers; or 
transportation terminals) and would normally be included in the modeling 
of the metropolitan area's transportation network. At a minimum, this 
includes all principal arterial highways and all fixed guideway transit 
facilities that offer an alternative to regional highway travel.
    Regional Transportation Planning Organization (RTPO) means a policy 
board of nonmetropolitan local officials or their designees created to 
carry out the regional transportation planning process.
    Revision means a change to a long-range statewide or metropolitan 
transportation plan, TIP, or STIP that occurs between scheduled periodic 
updates. A major revision is an ``amendment'' while a minor revision is 
an ``administrative modification.''
    Scenario planning means a planning process that evaluates the 
effects of alternative policies, plans and/or programs on the future of 
a community or region. This activity should provide information to 
decision makers as they develop the transportation plan.
    State means any one of the 50 States, the District of Columbia, or 
Puerto Rico.
    State Implementation Plan (SIP) means, as defined in section 302(q) 
of the Clean Air Act (CAA) (42 U.S.C. 7602(q)), the portion (or 
portions) of the implementation plan, or most recent revision thereof, 
which has been approved under section 110 of the CAA (42 U.S.C. 7410), 
or promulgated under section 110(c) of the CAA (42 U.S.C. 7410(c)), or 
promulgated or approved pursuant to regulations promulgated under 
section 301(d) of the CAA (42 U.S.C. 7601(d)) and which implements the 
relevant requirements of the CAA.
    Statewide Transportation Improvement Program (STIP) means a 
statewide prioritized listing/program of transportation projects 
covering a period of 4 years that is consistent with the long-range 
statewide transportation plan, metropolitan transportation plans, and 
TIPs, and required for projects to be eligible for funding under title 
23 U.S.C. and title 49 U.S.C. Chapter 53.

[[Page 107]]

    Strategic Highway Safety Plan means a comprehensive, multiyear, 
data-driven plan, developed by a State DOT in accordance with the 23 
U.S.C. 148.
    Transit Asset Management Plan means a plan that includes an 
inventory of capital assets, a condition assessment of inventoried 
assets, a decision support tool, and a prioritization of investments.
    Transit Asset Management System means a strategic and systematic 
process of operating, maintaining, and improving public transportation 
capital assets effectively, throughout the life cycles of those assets.
    Transportation Control Measure (TCM) means any measure that is 
specifically identified and committed to in the applicable SIP, 
including a substitute or additional TCM that is incorporated into the 
applicable SIP through the process established in CAA section 176(c)(8), 
that is either one of the types listed in section 108 of the CAA (42 
U.S.C. 7408) or any other measure for the purpose of reducing emissions 
or concentrations of air pollutants from transportation sources by 
reducing vehicle use or changing traffic flow or congestion conditions. 
Notwithstanding the above, vehicle technology-based, fuel-based, and 
maintenance-based measures that control the emissions from vehicles 
under fixed traffic conditions are not TCMs.
    Transportation improvement program (TIP) means a prioritized 
listing/program of transportation projects covering a period of 4 years 
that is developed and formally adopted by an MPO as part of the 
metropolitan transportation planning process, consistent with the 
metropolitan transportation plan, and required for projects to be 
eligible for funding under title 23 U.S.C. and title 49 U.S.C. chapter 
53.
    Transportation Management Area (TMA) means an urbanized area with a 
population over 200,000, as defined by the Bureau of the Census and 
designated by the Secretary of Transportation, or any additional area 
where TMA designation is requested by the Governor and the MPO and 
designated by the Secretary of Transportation.
    Unified Planning Work Program (UPWP) means a statement of work 
identifying the planning priorities and activities to be carried out 
within a metropolitan planning area. At a minimum, a UPWP includes a 
description of the planning work and resulting products, who will 
perform the work, time frames for completing the work, the cost of the 
work, and the source(s) of funds.
    Update means making current a long-range statewide transportation 
plan, metropolitan transportation plan, TIP, or STIP through a 
comprehensive review. Updates require public review and comment, a 20-
year horizon for metropolitan transportation plans and long-range 
statewide transportation plans, a 4-year program period for TIPs and 
STIPs, demonstration of fiscal constraint (except for long-range 
statewide transportation plans), and a conformity determination (for 
metropolitan transportation plans and TIPs in nonattainment and 
maintenance areas).
    Urbanized area (UZA) means a geographic area with a population of 
50,000 or more, as designated by the Bureau of the Census.
    Users of public transportation means any person, or groups 
representing such persons, who use transportation open to the general 
public, other than taxis and other privately funded and operated 
vehicles.
    Visualization techniques means methods used by States and MPOs in 
the development of transportation plans and programs with the public, 
elected and appointed officials, and other stakeholders in a clear and 
easily accessible format such as GIS- or web-based surveys, inventories, 
maps, pictures, and/or displays identifying features such as roadway 
rights of way, transit, intermodal, and non-motorized transportation 
facilities, historic and cultural resources, natural resources, and 
environmentally sensitive areas, to promote improved understanding of 
existing or proposed transportation plans and programs.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93469, Dec. 20, 2016; 82 
FR 56542, Nov. 29, 2017]

[[Page 108]]



  Subpart B_Statewide and Nonmetropolitan Transportation Planning and 
                               Programming



Sec.  450.200  Purpose.

    The purpose of this subpart is to implement the provisions of 23 
U.S.C. 135, 23 U.S.C. 150, and 49 U.S.C. 5304, as amended, which require 
each State to carry out a continuing, cooperative, and comprehensive 
performance-based statewide multimodal transportation planning process, 
including the development of a long-range statewide transportation plan 
and STIP, that facilitates the safe and efficient management, operation, 
and development of surface transportation systems that will serve the 
mobility needs of people and freight (including accessible pedestrian 
walkways, bicycle transportation facilities, and intermodal facilities 
that support intercity transportation, including intercity bus 
facilities and commuter van pool providers) and that fosters economic 
growth and development within and between States and urbanized areas, 
and take into consideration resiliency needs while minimizing 
transportation-related fuel consumption and air pollution in all areas 
of the State, including those areas subject to the metropolitan 
transportation planning requirements of 23 U.S.C. 134 and 49 U.S.C. 
5303.



Sec.  450.202  Applicability.

    The provisions of this subpart are applicable to States and any 
other organizations or entities (e.g., MPOs, RTPOs and public 
transportation operators) that are responsible for satisfying the 
requirements for transportation plans and programs throughout the State 
pursuant to 23 U.S.C. 135 and 49 U.S.C. 5304.



Sec.  450.204  Definitions.

    Except as otherwise provided in subpart A of this part, terms 
defined in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are used in this subpart 
as so defined.



Sec.  450.206  Scope of the statewide and nonmetropolitan transportation 
planning process.

    (a) Each State shall carry out a continuing, cooperative, and 
comprehensive statewide transportation planning process that provides 
for consideration and implementation of projects, strategies, and 
services that will address the following factors:
    (1) Support the economic vitality of the United States, the States, 
metropolitan areas, and nonmetropolitan areas, especially by enabling 
global competitiveness, productivity, and efficiency;
    (2) Increase the safety of the transportation system for motorized 
and non-motorized users;
    (3) Increase the security of the transportation system for motorized 
and non-motorized users;
    (4) Increase accessibility and mobility of people and freight;
    (5) Protect and enhance the environment, promote energy 
conservation, improve the quality of life, and promote consistency 
between transportation improvements and State and local planned growth 
and economic development patterns;
    (6) Enhance the integration and connectivity of the transportation 
system, across and between modes throughout the State, for people and 
freight;
    (7) Promote efficient system management and operation;
    (8) Emphasize the preservation of the existing transportation 
system;
    (9) Improve the resiliency and reliability of the transportation 
system and reduce or mitigate stormwater impacts of surface 
transportation; and
    (10) Enhance travel and tourism.
    (b) Consideration of the planning factors in paragraph (a) of this 
section shall be reflected, as appropriate, in the statewide 
transportation planning process. The degree of consideration and 
analysis of the factors should be based on the scale and complexity of 
many issues, including transportation systems development, land use, 
employment, economic development, human and natural environment 
(including Section 4(f) properties as defined in 23 CFR 774.17), and 
housing and community development.
    (c) Performance-based approach. (1) The statewide transportation 
planning process shall provide for the establishment and use of a 
performance-based approach to transportation decisionmaking to support 
the national goals

[[Page 109]]

described in 23 U.S.C. 150(b) and the general purposes described in 49 
U.S.C. 5301.
    (2) Each State shall select and establish performance targets in 
coordination with the relevant MPOs to ensure consistency to the maximum 
extent practicable. The targets shall address the performance areas 
described in 23 U.S.C. 150(c), and the measures established under 23 CFR 
part 490, where applicable, to use in tracking progress toward 
attainment of critical outcomes for the State. States shall establish 
performance targets that reflect the measures identified in 23 U.S.C. 
150(c) not later than 1 year after the effective date of the DOT final 
rule on performance measures. Each State shall select and establish 
targets under this paragraph in accordance with the appropriate target 
setting framework established at 23 CFR part 490.
    (3) In areas not represented by an MPO, the selection of public 
transportation performance targets by a State shall be coordinated, to 
the maximum extent practicable, with providers of public transportation 
to ensure consistency with the performance targets that public 
transportation providers establish under 49 U.S.C. 5326(c) and 49 U.S.C. 
5329(d).
    (4) A State shall integrate into the statewide transportation 
planning process, directly or by reference, the goals, objectives, 
performance measures, and targets described in this section, in other 
State transportation plans and transportation processes, as well as any 
plans developed pursuant to chapter 53 of title 49 by providers of 
public transportation in areas not represented by an MPO required as 
part of a performance-based program. Examples of such plans and 
processes include the HSIP, SHSP, the State Asset Management Plan for 
the National Highway System (NHS), the State Freight Plan (if the State 
has one), the Transit Asset Management Plan, and the Public 
Transportation Agency Safety Plan.
    (5) A State shall consider the performance measures and targets 
established under this paragraph when developing policies, programs, and 
investment priorities reflected in the long-range statewide 
transportation plan and statewide transportation improvement program.
    (d) The failure to consider any factor specified in paragraph (a) or 
(c) of this section shall not be subject to review by any court under 
title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5 U.S.C. 
Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a long-
range statewide transportation plan, STIP, project or strategy, or the 
statewide transportation planning process findings.
    (e) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are 
available to the State to accomplish activities described in this 
subpart. At the State's option, funds provided under 23 U.S.C. 104(b)(2) 
and 49 U.S.C. 5307, 5310, and 5311 may also be used for statewide 
transportation planning. A State shall document statewide transportation 
planning activities performed with funds provided under title 23 U.S.C. 
and title 49 U.S.C. Chapter 53 in a statewide planning work program in 
accordance with the provisions of 23 CFR part 420. The work program 
should include a discussion of the transportation planning priorities 
facing the State.



Sec.  450.208  Coordination of planning process activities.

    (a) In carrying out the statewide transportation planning process, 
each State shall, at a minimum:
    (1) Coordinate planning carried out under this subpart with the 
metropolitan transportation planning activities carried out under 
subpart C of this part for metropolitan areas of the State. The State is 
encouraged to rely on information, studies, or analyses provided by MPOs 
for portions of the transportation system located in metropolitan 
planning areas;
    (2) Coordinate planning carried out under this subpart with 
statewide trade and economic development planning activities and related 
multistate planning efforts;
    (3) Consider the concerns of Federal land management agencies that 
have jurisdiction over land within the boundaries of the State;
    (4) Cooperate with affected local elected and appointed officials 
with responsibilities for transportation, or, if applicable, through 
RTPOs described in

[[Page 110]]

section 450.210(d) in nonmetropolitan areas;
    (5) Consider the concerns of Indian Tribal governments that have 
jurisdiction over land within the boundaries of the State;
    (6) Consider related planning activities being conducted outside of 
metropolitan planning areas and between States; and
    (7) Coordinate data collection and analyses with MPOs and public 
transportation operators to support statewide transportation planning 
and programming priorities and decisions.
    (b) The State air quality agency shall coordinate with the State 
department of transportation (State DOT) to develop the transportation 
portion of the State Implementation Plan (SIP) consistent with the Clean 
Air Act (42 U.S.C. 7401 et seq.).
    (c) Two or more States may enter into agreements or compacts, not in 
conflict with any law of the United States, for cooperative efforts and 
mutual assistance in support of activities under this subpart related to 
interstate areas and localities in the States and establishing 
authorities the States consider desirable for making the agreements and 
compacts effective. The right to alter, amend, or repeal interstate 
compacts entered into under this part is expressly reserved.
    (d) States may use any one or more of the management systems (in 
whole or in part) described in 23 CFR part 500.
    (e) In carrying out the statewide transportation planning process, 
States should apply asset management principles and techniques 
consistent with the State Asset Management Plan for the NHS and the 
Transit Asset Management Plan, and Public Transportation Agency Safety 
Plan in establishing planning goals, defining STIP priorities, and 
assessing transportation investment decisions, including transportation 
system safety, operations, preservation, and maintenance.
    (f) For non-NHS highways, States may apply principles and techniques 
consistent with other asset management plans to the transportation 
planning and programming processes, as appropriate.
    (g) The statewide transportation planning process shall (to the 
maximum extent practicable) be consistent with the development of 
applicable regional intelligent transportation systems (ITS) 
architectures, as defined in 23 CFR part 940.
    (h) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, should be 
coordinated and consistent with the statewide transportation planning 
process.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93469, Dec. 20, 2016; 82 
FR 56542, Nov. 29, 2017]



Sec.  450.210  Interested parties, public involvement, and consultation.

    (a) In carrying out the statewide transportation planning process, 
including development of the long-range statewide transportation plan 
and the STIP, the State shall develop and use a documented public 
involvement process that provides opportunities for public review and 
comment at key decision points.
    (1) The State's public involvement process at a minimum shall:
    (i) Establish early and continuous public involvement opportunities 
that provide timely information about transportation issues and 
decisionmaking processes to individuals, affected public agencies, 
representatives of public transportation employees, public ports, 
freight shippers, private providers of transportation (including 
intercity bus operators), representatives of users of public 
transportation, representatives of users of pedestrian walkways and 
bicycle transportation facilities, representatives of the disabled, 
providers of freight transportation services, and other interested 
parties;
    (ii) Provide reasonable public access to technical and policy 
information used in the development of the long-range statewide 
transportation plan and the STIP;
    (iii) Provide adequate public notice of public involvement 
activities and time for public review and comment at key decision 
points, including a reasonable opportunity to comment on the proposed 
long-range statewide transportation plan and STIP;
    (iv) To the maximum extent practicable, ensure that public meetings

[[Page 111]]

are held at convenient and accessible locations and times;
    (v) To the maximum extent practicable, use visualization techniques 
to describe the proposed long-range statewide transportation plan and 
supporting studies;
    (vi) To the maximum extent practicable, make public information 
available in electronically accessible format and means, such as the 
World Wide Web, as appropriate to afford reasonable opportunity for 
consideration of public information;
    (vii) Demonstrate explicit consideration and response to public 
input during the development of the long-range statewide transportation 
plan and STIP;
    (viii) Include a process for seeking out and considering the needs 
of those traditionally underserved by existing transportation systems, 
such as low-income and minority households, who may face challenges 
accessing employment and other services; and
    (ix) Provide for the periodic review of the effectiveness of the 
public involvement process to ensure that the process provides full and 
open access to all interested parties and revise the process, as 
appropriate.
    (2) The State shall provide for public comment on existing and 
proposed processes for public involvement in the development of the 
long-range statewide transportation plan and the STIP. At a minimum, the 
State shall allow 45 calendar days for public review and written comment 
before the procedures and any major revisions to existing procedures are 
adopted. The State shall provide copies of the approved public 
involvement process document(s) to the FHWA and the FTA for 
informational purposes.
    (3) With respect to the setting of targets, nothing in this part 
precludes a State from considering comments made as part of the State's 
public involvement process.
    (b) The State shall provide for nonmetropolitan local official 
participation in the development of the long-range statewide 
transportation plan and the STIP. The State shall have a documented 
process(es) for cooperating with nonmetropolitan local officials 
representing units of general purpose local government and/or local 
officials with responsibility for transportation that is separate and 
discrete from the public involvement process and provides an opportunity 
for their participation in the development of the long-range statewide 
transportation plan and the STIP. Although the FHWA and the FTA shall 
not review or approve this cooperative process(es), the State shall 
provide copies of the process document(s) to the FHWA and the FTA for 
informational purposes.
    (1) At least once every 5 years, the State shall review and solicit 
comments from nonmetropolitan local officials and other interested 
parties for a period of not less than 60 calendar days regarding the 
effectiveness of the cooperative process and any proposed changes. The 
State shall direct a specific request for comments to the State 
association of counties, State municipal league, regional planning 
agencies, or directly to nonmetropolitan local officials.
    (2) The State, at its discretion, is responsible for determining 
whether to adopt any proposed changes. If a proposed change is not 
adopted, the State shall make publicly available its reasons for not 
accepting the proposed change, including notification to nonmetropolitan 
local officials or their associations.
    (c) For each area of the State under the jurisdiction of an Indian 
Tribal government, the State shall develop the long-range statewide 
transportation plan and STIP in consultation with the Tribal government 
and the Secretary of the Interior. States shall, to the extent 
practicable, develop a documented process(es) that outlines roles, 
responsibilities, and key decision points for consulting with Indian 
Tribal governments and Department of the Interior in the development of 
the long-range statewide transportation plan and the STIP.
    (d) To carry out the transportation planning process required by 
this section, a Governor may establish and designate RTPOs to enhance 
the planning, coordination, and implementation of the long-range 
statewide transportation plan and STIP, with an emphasis on addressing 
the needs of nonmetropolitan areas of the State. In

[[Page 112]]

order to be treated as an RTPO for purposes of this Part, any existing 
regional planning organization must be established and designated as an 
RTPO under this section.
    (1) Where established, an RTPO shall be a multijurisdictional 
organization of nonmetropolitan local officials or their designees who 
volunteer for such organization and representatives of local 
transportation systems who volunteer for such organization.
    (2) An RTPO shall establish, at a minimum:
    (i) A policy committee, the majority of which shall consist of 
nonmetropolitan local officials, or their designees, and, as 
appropriate, additional representatives from the State, private 
business, transportation service providers, economic development 
practitioners, and the public in the region; and
    (ii) A fiscal and administrative agent, such as an existing regional 
planning and development organization, to provide professional planning, 
management, and administrative support.
    (3) The duties of an RTPO shall include:
    (i) Developing and maintaining, in cooperation with the State, 
regional long-range multimodal transportation plans;
    (ii) Developing a regional TIP for consideration by the State;
    (iii) Fostering the coordination of local planning, land use, and 
economic development plans with State, regional, and local 
transportation plans and programs;
    (iv) Providing technical assistance to local officials;
    (v) Participating in national, multistate, and State policy and 
planning development processes to ensure the regional and local input of 
nonmetropolitan areas;
    (vi) Providing a forum for public participation in the statewide and 
regional transportation planning processes;
    (vii) Considering and sharing plans and programs with neighboring 
RTPOs, MPOs, and, where appropriate, Indian Tribal Governments; and
    (viii) Conducting other duties, as necessary, to support and enhance 
the statewide planning process under Sec.  450.206.
    (4) If a State chooses not to establish or designate an RTPO, the 
State shall consult with affected nonmetropolitan local officials to 
determine projects that may be of regional significance.



Sec.  450.212  Transportation planning studies and project development.

    (a) Pursuant to section 1308 of the Transportation Equity Act for 
the 21st Century, TEA-21 (Pub. L. 105-178), a State(s), MPO(s), or 
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the statewide 
transportation planning process. To the extent practicable, development 
of these transportation planning studies shall involve consultation 
with, or joint efforts among, the State(s), MPO(s), and/or public 
transportation operator(s). The results or decisions of these 
transportation planning studies may be used as part of the overall 
project development process consistent with the National Environmental 
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated 
implementing regulations (23 CFR part 771 and 40 CFR parts 1500-1508). 
Specifically, these corridor or subarea studies may result in producing 
any of the following for a proposed transportation project:
    (1) Purpose and need or goals and objective statement(s);
    (2) General travel corridor and/or general mode(s) definition (e.g., 
highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Basic description of the environmental setting; and/or
    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents or other source material produced 
by, or in support of, the transportation planning process described in 
this subpart may be incorporated directly or by reference into 
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:

[[Page 113]]

    (1) The NEPA lead agencies agree that such incorporation will aid in 
establishing or evaluating the purpose and need for the Federal action, 
reasonable alternatives, cumulative or other impacts on the human and 
natural environment, or mitigation of these impacts; and
    (2) The systems-level, corridor, or subarea planning study is 
conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Reasonable opportunity to comment during the statewide 
transportation planning process and development of the corridor or 
subarea planning study;
    (iv) Documentation of relevant decisions in a form that is 
identifiable and available for review during the NEPA scoping process 
and can be appended to or referenced in the NEPA document; and
    (v) The review of the FHWA and the FTA, as appropriate.
    (c) By agreement of the NEPA lead agencies, the above integration 
may be accomplished through tiering (as described in 40 CFR 1502.20), 
incorporating the subarea or corridor planning study into the draft 
Environmental Impact Statement or Environmental Assessment, or other 
means that the NEPA lead agencies deem appropriate. Additional 
information to further explain the linkages between the transportation 
planning and project development/NEPA processes is contained in Appendix 
A to this part, including an explanation that is non-binding guidance 
material. The guidance in Appendix A applies only to paragraphs (a)-(c) 
in this section.
    (d) In addition to the process for incorporation directly or by 
reference outlined in paragraph (b) of this section, an additional 
authority for integrating planning products into the environmental 
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 168(f):
    (1) The statutory authority in 23 U.S.C. 168 shall not be construed 
to limit in any way the continued use of processes established under 
other parts of this section or under an authority established outside 
this part, and the use of one of the processes in this section does not 
preclude the subsequent use of another process in this section or an 
authority outside of this part.
    (2) The statute does not restrict the initiation of the 
environmental review process during planning.



Sec.  450.214  Development of programmatic mitigation plans.

    (a) A State may utilize the optional framework in this section to 
develop programmatic mitigation plans as part of the statewide 
transportation planning process to address the potential environmental 
impacts of future transportation projects. The State in consultation 
with FHWA and/or FTA and with the agency or agencies with jurisdiction 
and special expertise over the resources being addressed in the plan, 
will determine:
    (1) Scope. (i) A State may develop a programmatic mitigation plan on 
a local, regional, ecosystem, watershed, statewide or similar scale.
    (ii) The plan may encompass multiple environmental resources within 
a defined geographic area(s) or may focus on a specific type(s) of 
resource(s) such as aquatic resources, parkland, or wildlife habitat.
    (iii) The plan may address or consider impacts from all projects in 
a defined geographic area(s) or may focus on a specific type(s) of 
project(s).
    (2) Contents. The programmatic mitigation plan may include:
    (i) An assessment of the existing condition of natural and human 
environmental resources within the area covered by the plan, including 
an assessment of historic and recent trends and/or any potential threats 
to those resources.
    (ii) An identification of economic, social, and natural and human 
environmental resources within the geographic area that may be impacted 
and considered for mitigation. Examples of these resources include 
wetlands, streams, rivers, stormwater, parklands, cultural resources, 
historic resources, farmlands, archeological resources, threatened or 
endangered species, and critical habitat. This may include the 
identification of areas of high conservation concern or value, and thus 
worthy of avoidance.

[[Page 114]]

    (iii) An inventory of existing or planned environmental resource 
banks for the impacted resource categories such as wetland, stream, 
stormwater, habitat, species, and an inventory of federally, State, or 
locally approved in-lieu-of-fee programs.
    (iv) An assessment of potential opportunities to improve the overall 
quality of the identified environmental resources through strategic 
mitigation for impacts of transportation projects, which may include the 
prioritization of parcels or areas for acquisition and/or potential 
resource banking sites.
    (v) An adoption or development of standard measures or operating 
procedures for mitigating certain types of impacts; establishment of 
parameters for determining or calculating appropriate mitigation for 
certain types of impacts, such as mitigation ratios, or criteria for 
determining appropriate mitigation sites.
    (vi) Adaptive management procedures, such as protocols or procedures 
that involve monitoring actual impacts against predicted impacts over 
time and adjusting mitigation measures in response to information 
gathered through the monitoring.
    (vii) Acknowledgment of specific statutory or regulatory 
requirements that must be satisfied when determining appropriate 
mitigation for certain types of resources.
    (b) A State may adopt a programmatic mitigation plan developed 
pursuant to paragraph (a), or developed pursuant to an alternative 
process as provided for in paragraph (f) of this section through the 
following process:
    (1) Consult with each agency with jurisdiction over the 
environmental resources considered in the programmatic mitigation plan;
    (2) Make available a draft of the programmatic mitigation plan for 
review and comment by appropriate environmental resource agencies and 
the public;
    (3) Consider comments received from such agencies and the public on 
the draft plan; and
    (4) Address such comments in the final programmatic mitigation plan.
    (c) A State may integrate a programmatic mitigation plan with other 
plans, including, watershed plans, ecosystem plans, species recovery 
plans, growth management plans, State Wildlife Action Plans, and land 
use plans.
    (d) If a programmatic mitigation plan has been adopted pursuant to 
paragraph (b), any Federal agency responsible for environmental reviews, 
permits, or approvals for a transportation project shall give 
substantial weight to the recommendations in the programmatic mitigation 
plan when carrying out its responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) or 
other Federal environmental law.
    (e) Nothing in this section limits the use of programmatic 
approaches for reviews under NEPA.
    (f) Nothing in this section prohibits the development, as part of or 
separate from the transportation planning process, of a programmatic 
mitigation plan independent of the framework described in paragraph (a) 
of this section. Further, nothing in this section prohibits the adoption 
of a programmatic mitigation plan in the statewide and nonmetropolitan 
transportation planning process that was developed under another 
authority, independent of the framework described in paragraph (a).



Sec.  450.216  Development and content of the long-range 
statewide transportation plan.

    (a) The State shall develop a long-range statewide transportation 
plan, with a minimum 20-year forecast period at the time of adoption, 
that provides for the development and implementation of the multimodal 
transportation system for the State. The long-range statewide 
transportation plan shall consider and include, as applicable, elements 
and connections between public transportation, non-motorized modes, 
rail, commercial motor vehicle, waterway, and aviation facilities, 
particularly with respect to intercity travel.
    (b) The long-range statewide transportation plan should include 
capital, operations and management strategies, investments, procedures, 
and other measures to ensure the preservation and most efficient use of 
the existing transportation system including consideration of the role 
that intercity buses may play in reducing congestion,

[[Page 115]]

pollution, and energy consumption in a cost-effective manner and 
strategies and investments that preserve and enhance intercity bus 
systems, including systems that are privately owned and operated. The 
long-range statewide transportation plan may consider projects and 
strategies that address areas or corridors where current or projected 
congestion threatens the efficient functioning of key elements of the 
State's transportation system.
    (c) The long-range statewide transportation plan shall reference, 
summarize, or contain any applicable short-range planning studies; 
strategic planning and/or policy studies; transportation needs studies; 
management systems reports; emergency relief and disaster preparedness 
plans; and any statements of policies, goals, and objectives on issues 
(e.g., transportation, safety, economic development, social and 
environmental effects, or energy), as appropriate, that were relevant to 
the development of the long-range statewide transportation plan.
    (d) The long-range statewide transportation plan should integrate 
the priorities, goals, countermeasures, strategies, or projects 
contained in the HSIP, including the SHSP, required under 23 U.S.C. 148, 
the Public Transportation Agency Safety Plan required under 49 U.S.C. 
5329(d), or an Interim Agency Safety Plan in accordance with 49 CFR part 
659, as in effect until completion of the Public Transportation Agency 
Safety Plan.
    (e) The long-range statewide transportation plan should include a 
security element that incorporates or summarizes the priorities, goals, 
or projects set forth in other transit safety and security planning and 
review processes, plans, and programs, as appropriate.
    (f) The statewide transportation plan shall include:
    (1) A description of the performance measures and performance 
targets used in assessing the performance of the transportation system 
in accordance with Sec.  450.206(c); and
    (2) A system performance report and subsequent updates evaluating 
the condition and performance of the transportation system with respect 
to the performance targets described in Sec.  450.206(c), including 
progress achieved by the MPO(s) in meeting the performance targets in 
comparison with system performance recorded in previous reports.
    (g) Within each metropolitan area of the State, the State shall 
develop the long-range statewide transportation plan in cooperation with 
the affected MPOs.
    (h) For nonmetropolitan areas, the State shall develop the long-
range statewide transportation plan in cooperation with affected 
nonmetropolitan local officials with responsibility for transportation 
or, if applicable, through RTPOs described in Sec.  450.210(d) using the 
State's cooperative process(es) established under Sec.  450.210(b).
    (i) For each area of the State under the jurisdiction of an Indian 
Tribal government, the State shall develop the long-range statewide 
transportation plan in consultation with the Tribal government and the 
Secretary of the Interior consistent with Sec.  450.210(c).
    (j) The State shall develop the long-range statewide transportation 
plan, as appropriate, in consultation with State, Tribal, and local 
agencies responsible for land use management, natural resources, 
environmental protection, conservation, and historic preservation. This 
consultation shall involve comparison of transportation plans to State 
and Tribal conservation plans or maps, if available, and comparison of 
transportation plans to inventories of natural or historic resources, if 
available.
    (k) A long-range statewide transportation plan shall include a 
discussion of potential environmental mitigation activities and 
potential areas to carry out these activities, including activities that 
may have the greatest potential to restore and maintain the 
environmental functions affected by the long-range statewide 
transportation plan. The discussion may focus on policies, programs, or 
strategies, rather than at the project level. The State shall develop 
the discussion in consultation with applicable Federal, State, regional, 
local and Tribal land management, wildlife, and regulatory

[[Page 116]]

agencies. The State may establish reasonable timeframes for performing 
this consultation.
    (l) In developing and updating the long-range statewide 
transportation plan, the State shall provide:
    (1) To nonmetropolitan local elected officials, or, if applicable, 
through RTPOs described in Sec.  450.210(d), an opportunity to 
participate in accordance with Sec.  450.216(h); and
    (2) To individuals, affected public agencies, representatives of 
public transportation employees, public ports, freight shippers, private 
providers of transportation (including intercity bus operators, 
employer-based cash-out program, shuttle program, or telework program), 
representatives of users of public transportation, representatives of 
users of pedestrian walkways and bicycle transportation facilities, 
representatives of the disabled, providers of freight transportation 
services, and other interested parties with a reasonable opportunity to 
comment on the proposed long-range statewide transportation plan. In 
carrying out these requirements, the State shall use the public 
involvement process described under Sec.  450.210(a).
    (m) The long-range statewide transportation plan may include a 
financial plan that demonstrates how the adopted long-range statewide 
transportation plan can be implemented, indicates resources from public 
and private sources that are reasonably expected to be made available to 
carry out the plan, and recommends any additional financing strategies 
for needed projects and programs. In addition, for illustrative 
purposes, the financial plan may include additional projects that the 
State would include in the adopted long-range statewide transportation 
plan if additional resources beyond those identified in the financial 
plan were to become available. The financial plan may include an 
assessment of the appropriateness of innovative finance techniques (for 
example, tolling, pricing, bonding, public-private partnerships, or 
other strategies) as revenue sources.
    (n) The State is not required to select any project from the 
illustrative list of additional projects included in the financial plan 
described in paragraph (m) of this section.
    (o) The State shall publish or otherwise make available the long-
range statewide transportation plan for public review, including (to the 
maximum extent practicable) in electronically accessible formats and 
means, such as the World Wide Web, as described in Sec.  450.210(a).
    (p) The State shall continually evaluate, revise, and periodically 
update the long-range statewide transportation plan, as appropriate, 
using the procedures in this section for development and establishment 
of the long-range statewide transportation plan.
    (q) The State shall provide copies of any new or amended long-range 
statewide transportation plan documents to the FHWA and the FTA for 
informational purposes.



Sec.  450.218  Development and content of the statewide transportation 
improvement program (STIP).

    (a) The State shall develop a statewide transportation improvement 
program (STIP) for all areas of the State. The STIP shall cover a period 
of no less than 4 years and shall be updated at least every 4 years, or 
more frequently if the Governor of the State elects a more frequent 
update cycle. However, if the STIP covers more than 4 years, the FHWA 
and the FTA will consider the projects in the additional years as 
informational. In case of difficulties developing a portion of the STIP 
for a particular area (e.g., metropolitan planning area, nonattainment 
or maintenance area, or Indian Tribal lands), the State may develop a 
partial STIP covering the rest of the State.
    (b) For each metropolitan area in the State, the State shall develop 
the STIP in cooperation with the MPO designated for the metropolitan 
area. The State shall include each metropolitan TIP without change in 
the STIP, directly or by reference, after approval of the TIP by the MPO 
and the Governor. A metropolitan TIP in a nonattainment or maintenance 
area is subject to a FHWA/FTA conformity finding before inclusion in the 
STIP. In areas outside a metropolitan planning area but within an air 
quality nonattainment or maintenance area containing any part

[[Page 117]]

of a metropolitan area, projects must be included in the regional 
emissions analysis that supported the conformity determination of the 
associated metropolitan TIP before they are added to the STIP.
    (c) For each nonmetropolitan area in the State, the State shall 
develop the STIP in cooperation with affected nonmetropolitan local 
officials with responsibility for transportation or, if applicable, 
through RTPOs described in Sec.  450.210(d) using the State's 
consultation process(es) established under Sec.  450.210(b).
    (d) For each area of the State under the jurisdiction of an Indian 
Tribal government, the STIP shall be developed in consultation with the 
Tribal government and the Secretary of the Interior.
    (e) Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program TIPs shall be included without 
change in the STIP, directly or by reference, once approved by the FHWA 
pursuant to 23 U.S.C. 201(c)(4).
    (f) The Governor shall provide all interested parties with a 
reasonable opportunity to comment on the proposed STIP as required by 
Sec.  450.210(a).
    (g) The STIP shall include capital and non-capital surface 
transportation projects (or phases of projects) within the boundaries of 
the State proposed for funding under title 23 U.S.C. and title 49 U.S.C. 
Chapter 53 (including transportation alternatives and associated transit 
improvements; Tribal Transportation Program projects, Federal Lands 
Transportation Program projects, and Federal Lands Access Program 
projects; HSIP projects; trails projects; and accessible pedestrian 
walkways and bicycle facilities), except the following that may be 
included:
    (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(d) and 
49 U.S.C. 5305(d);
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) State planning and research projects funded with Surface 
Transportation Program funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) Research, development, demonstration, and deployment projects 
funded under 49 U.S.C. 5312, and technical assistance and standards 
development projects funded under 49 U.S.C. 5314;
    (7) Project management oversight projects funded under 49 U.S.C. 
5327; and
    (8) State safety oversight programs funded under 49 U.S.C. 5329.
    (h) The STIP shall contain all regionally significant projects 
requiring an action by the FHWA or the FTA whether or not the projects 
are to be funded with 23 U.S.C. Chapters 1 and 2 or title 49 U.S.C. 
Chapter 53 funds (e.g., addition of an interchange to the Interstate 
System with State, local, and/or private funds, and congressionally 
designated projects not funded under title 23 U.S.C. or title 49 U.S.C. 
Chapter 53). For informational and conformity purposes, the STIP shall 
include (if appropriate and included in any TIPs) all regionally 
significant projects proposed to be funded with Federal funds other than 
those administered by the FHWA or the FTA, as well as all regionally 
significant projects to be funded with non-Federal funds.
    (i) The STIP shall include for each project or phase (e.g., 
preliminary engineering, environment/NEPA, right-of-way, design, or 
construction) the following:
    (1) Sufficient descriptive material (i.e., type of work, termini, 
and length) to identify the project or phase;
    (2) Estimated total project cost or a project cost range, which may 
extend beyond the 4 years of the STIP;
    (3) The amount of Federal funds proposed to be obligated during each 
program year. For the first year, this includes the proposed category of 
Federal funds and source(s) of non-Federal funds. For the second, third, 
and fourth years, this includes the likely category or possible 
categories of Federal funds and sources of non-Federal funds; and
    (4) Identification of the agencies responsible for carrying out the 
project or phase.
    (j) Projects that are not considered to be of appropriate scale for 
individual

[[Page 118]]

identification in a given program year may be grouped by function, work 
type, and/or geographic area using the applicable classifications under 
23 CFR 771.117(c) and (d) and/or 40 CFR part 93. In nonattainment and 
maintenance areas, project classifications must be consistent with the 
``exempt project'' classifications contained in the EPA's transportation 
conformity regulations (40 CFR part 93, subpart A). In addition, 
projects proposed for funding under title 23 U.S.C. Chapter 2 that are 
not regionally significant may be grouped in one line item or identified 
individually in the STIP.
    (k) Each project or project phase included in the STIP shall be 
consistent with the long-range statewide transportation plan developed 
under Sec.  450.216 and, in metropolitan planning areas, consistent with 
an approved metropolitan transportation plan developed under Sec.  
450.324.
    (l) The STIP may include a financial plan that demonstrates how the 
approved STIP can be implemented, indicates resources from public and 
private sources that are reasonably expected to be available to carry 
out the STIP, and recommends any additional financing strategies for 
needed projects and programs. In addition, for illustrative purposes, 
the financial plan may include additional projects that would be 
included in the adopted STIP if reasonable additional resources beyond 
those identified in the financial plan were to become available. The 
State is not required to select any project from the illustrative list 
for implementation, and projects on the illustrative list cannot be 
advanced to implementation without an action by the FHWA and the FTA on 
the STIP. Revenue and cost estimates for the STIP must use an inflation 
rate to reflect ``year of expenditure dollars,'' based on reasonable 
financial principles and information, developed cooperatively by the 
State, MPOs, and public transportation operators.
    (m) In nonattainment and maintenance areas, projects included in the 
first 2 years of the STIP shall be limited to those for which funds are 
available or committed. Financial constraint of the STIP shall be 
demonstrated and maintained by year and shall include sufficient 
financial information to demonstrate which projects are to be 
implemented using current and/or reasonably available revenues, while 
federally supported facilities are being adequately operated and 
maintained. In the case of proposed funding sources, strategies for 
ensuring their availability shall be identified in the financial plan 
consistent with paragraph (l) of this section. For purposes of 
transportation operations and maintenance, the STIP shall include 
financial information containing system-level estimates of costs and 
revenue sources that are reasonably expected to be available to 
adequately operate and maintain Federal-aid highways (as defined by 23 
U.S.C. 101(a)(5)) and public transportation (as defined by title 49 
U.S.C. 5302).
    (n) Projects in any of the first 4 years of the STIP may be advanced 
in place of another project in the first 4 years of the STIP, subject to 
the project selection requirements of Sec.  450.222. In addition, 
subject to FHWA/FTA approval (see Sec.  450.220), the State may revise 
the STIP at any time under procedures agreed to by the State, MPO(s), 
and public transportation operators consistent with the STIP development 
procedures established in this section, as well as the procedures for 
participation by interested parties (see Sec.  450.210(a)). Changes that 
affect fiscal constraint must take place by amendment of the STIP.
    (o) The STIP shall include a project, or an identified phase of a 
project, only if full funding can reasonably be anticipated to be 
available for the project within the time period contemplated for 
completion of the project.
    (p) In cases where the FHWA and the FTA find a STIP to be fiscally 
constrained, and a revenue source is subsequently removed or 
substantially reduced (i.e., by legislative or administrative actions), 
the FHWA and the FTA will not withdraw the original determination of 
fiscal constraint. However, in such cases, the FHWA and the FTA will not 
act on an updated or amended STIP that does not reflect the changed 
revenue situation.
    (q) A STIP shall include, to the maximum extent practicable, a 
discussion of the anticipated effect of the STIP

[[Page 119]]

toward achieving the performance targets identified by the State in the 
statewide transportation plan or other State performance-based plan(s), 
linking investment priorities to those performance targets.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016; 82 
FR 56543, Nov. 29, 2017]



Sec.  450.220  Self-certifications, Federal findings, and Federal approvals.

    (a) At least every 4 years, the State shall submit an updated STIP 
concurrently to the FHWA and the FTA for joint approval. The State must 
also submit STIP amendments to the FHWA and the FTA for joint approval. 
At the time the entire proposed STIP or STIP amendments are submitted to 
the FHWA and the FTA for joint approval, the State shall certify that 
the transportation planning process is being carried out in accordance 
with all applicable requirements of:
    (1) 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 5304, and this part;
    (2) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000d-1) and 49 CFR part 21;
    (3) 49 U.S.C. 5332, prohibiting discrimination on the basis of race, 
color, creed, national origin, sex, or age in employment or business 
opportunity;
    (4) Section 1101(b) of the FAST Act (Pub. L. 114-357) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in DOT funded projects;
    (5) 23 CFR part 230, regarding implementation of an equal employment 
opportunity program on Federal and Federal-aid highway construction 
contracts;
    (6) The provisions of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
    (7) In States containing nonattainment and maintenance areas, 
sections 174 and 176(c) and (d) of the Clean Air Act, as amended (42 
U.S.C. 7504, 7506(c) and (d)) and 40 CFR part 93;
    (8) The Older Americans Act, as amended (42 U.S.C. 6101), 
prohibiting discrimination on the basis of age in programs or activities 
receiving Federal financial assistance;
    (9) 23 U.S.C. 324, regarding the prohibition of discrimination based 
on gender; and
    (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 27 regarding discrimination against individuals with 
disabilities.
    (b) The FHWA and the FTA shall review the STIP or the amended STIP, 
and make a joint finding on the extent to which the STIP is based on a 
statewide transportation planning process that meets or substantially 
meets the requirements of 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 
5304, and subparts A, B, and C of this part. Approval of the STIP by the 
FHWA and the FTA, in its entirety or in part, will be based upon the 
results of this joint finding.
    (1) If the FHWA and the FTA determine that the STIP or amended STIP 
is based on a statewide transportation planning process that meets or 
substantially meets the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, 
and this part, the FHWA and the FTA may jointly:
    (i) Approve the entire STIP;
    (ii) Approve the STIP subject to certain corrective actions by the 
State; or
    (iii) Under special circumstances, approve a partial STIP covering 
only a portion of the State.
    (2) If the FHWA and the FTA jointly determine and document in the 
planning finding that a submitted STIP or amended STIP does not 
substantially meet the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, 
and this part for any identified categories of projects, the FHWA and 
the FTA will not approve the STIP.
    (c) The approval period for a new or amended STIP shall not exceed 4 
years. If a State demonstrates, in writing, that extenuating 
circumstances will delay the submittal of a new or amended STIP past its 
update deadline, the FHWA and the FTA will consider and take appropriate 
action on a request to extend the approval beyond 4 years for all or 
part of the STIP for a period not to exceed 180 calendar days. In these 
cases, priority consideration will be given to projects and strategies 
involving the operation and management of the multimodal transportation 
system. Where the request involves projects in

[[Page 120]]

a metropolitan planning area(s), the affected MPO(s) must concur in the 
request. If the delay was due to the development and approval of a 
metropolitan TIP(s), the affected MPO(s) must provide supporting 
information, in writing, for the request.
    (d) Where necessary in order to maintain or establish highway and 
transit operations, the FHWA and the FTA may approve operating 
assistance for specific projects or programs, even though the projects 
or programs may not be included in an approved STIP.



Sec.  450.222  Project selection from the STIP.

    (a) Except as provided in Sec.  450.218(g) and Sec.  450.220(d), 
only projects in a FHWA/FTA approved STIP are eligible for funds 
administered by the FHWA or the FTA.
    (b) In metropolitan planning areas, transportation projects proposed 
for funds administered by the FHWA or the FTA shall be selected from the 
approved STIP in accordance with project selection procedures provided 
in Sec.  450.332.
    (c) In nonmetropolitan areas, with the exclusion of specific 
projects as described in this section, the State shall select projects 
from the approved STIP in cooperation with the affected nonmetropolitan 
local officials, or if applicable, through RTPOs described in Sec.  
450.210(e). The State shall select transportation projects undertaken on 
the NHS, under the Bridge and Interstate Maintenance programs in title 
23 U.S.C. and under sections 5310 and 5311 of title 49 U.S.C. Chapter 53 
from the approved STIP in consultation with the affected nonmetropolitan 
local officials with responsibility for transportation.
    (d) Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program projects shall be selected 
from the approved STIP in accordance with the procedures developed 
pursuant to 23 U.S.C. 201, 202, 203, and 204.
    (e) The projects in the first year of an approved STIP shall 
constitute an ``agreed to'' list of projects for subsequent scheduling 
and implementation. No further action under paragraphs (b) through (d) 
of this section is required for the implementing agency to proceed with 
these projects. If Federal funds available are significantly less than 
the authorized amounts, or where there is significant shifting of 
projects among years, Sec.  450.332(a) provides for a revised list of 
``agreed to'' projects to be developed upon the request of the State, 
MPO, or public transportation operator(s). If an implementing agency 
wishes to proceed with a project in the second, third, or fourth year of 
the STIP, the procedures in paragraphs (b) through (d) of this section 
or expedited procedures that provide for the advancement of projects 
from the second, third, or fourth years of the STIP may be used, if 
agreed to by all parties involved in the selection process.



Sec.  450.224  Applicability of NEPA to statewide transportation 
plans and programs.

    Any decision by the Secretary concerning a long-range statewide 
transportation plan or STIP developed through the processes provided for 
in 23 U.S.C. 135, 49 U.S.C. 5304, and this subpart shall not be 
considered to be a Federal action subject to review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).



Sec.  450.226  Phase-in of new requirements.

    (a) Prior to May 27, 2018, a State may adopt a long-range statewide 
transportation plan that has been developed using the SAFETEA-LU 
requirements or the provisions and requirements of this part. On or 
after May 27, 2018, a State may only adopt a long-range statewide 
transportation plan that it has developed according to the provisions 
and requirements of this part.
    (b) Prior to May 27, 2018 (2 years after the publication date of 
this rule), FHWA/FTA may approve a STIP update or amendment that has 
been developed using the SAFETEA-LU requirements or the provisions and 
requirements of this part. On or after May 27, 2018, FHWA/FTA may only 
approve a STIP update or amendment that a State has developed according 
to the provisions and requirements of this part, regardless of when the 
State developed the STIP.

[[Page 121]]

    (c) On and after May 27, 2018 (2 years after the publication date of 
this rule), the FHWA and the FTA will take action on an updated or 
amended STIP developed under the provisions of this part, even if the 
State has not yet adopted a new long-range statewide transportation plan 
under the provisions of this part, as long as the underlying 
transportation planning process is consistent with the requirements in 
the MAP-21.
    (d) On or after May 27, 2018, a State may make an administrative 
modification to a STIP that conforms to either the SAFETEA-LU 
requirements or to the provisions and requirements of this part.
    (e) Two years from the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 
U.S.C. 5329, FHWA/FTA will only approve an updated or amended STIP that 
is based on a statewide transportation planning process that meets the 
performance-based planning requirements in this part and in such a rule.
    (f) Prior to 2 years from the effective date of each rule 
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 
5326, or 49 U.S.C. 5329, a State may adopt a long-range statewide 
transportation plan that it has developed using the SAFETEA-LU 
requirements or the performance-based provisions and requirements of 
this part and in such a rule. Two years on or after the effective date 
of each rule establishing performance measures under 23 U.S.C. 150(c), 
49 U.S.C. 5326, or 49 U.S.C. 5329, a State may only adopt a long-range 
statewide transportation plan that it has developed according to the 
performance-based provisions and requirements of this part and in such a 
rule.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016; 82 
FR 56543, Nov. 29, 2017]



     Subpart C_Metropolitan Transportation Planning and Programming



Sec.  450.300  Purpose.

    The purposes of this subpart are to implement the provisions of 23 
U.S.C. 134, 23 U.S.C. 150, and 49 U.S.C. 5303, as amended, which:
    (a) Set forth the national policy that the MPO designated for each 
urbanized area is to carry out a continuing, cooperative, and 
comprehensive performance-based multimodal transportation planning 
process, including the development of a metropolitan transportation plan 
and a TIP, that encourages and promotes the safe and efficient 
development, management, and operation of surface transportation systems 
to serve the mobility needs of people and freight (including accessible 
pedestrian walkways, bicycle transportation facilities, and intermodal 
facilities that support intercity transportation, including intercity 
buses and intercity bus facilities and commuter vanpool providers) 
fosters economic growth and development, and takes into consideration 
resiliency needs, while minimizing transportation-related fuel 
consumption and air pollution; and
    (b) Encourages continued development and improvement of metropolitan 
transportation planning processes guided by the planning factors set 
forth in 23 U.S.C. 134(h) and 49 U.S.C. 5303(h).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016; 82 
FR 56543, Nov. 29, 2017]



Sec.  450.302  Applicability.

    The provisions of this subpart are applicable to organizations and 
entities responsible for the transportation planning and programming 
processes in metropolitan planning areas.



Sec.  450.304  Definitions.

    Except as otherwise provided in subpart A of this part, terms 
defined in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are used in this subpart 
as so defined.



Sec.  450.306  Scope of the metropolitan transportation planning process.

    (a) To accomplish the objectives in Sec.  450.300 and Sec.  
450.306(b), metropolitan planning organizations designated under Sec.  
450.310, in cooperation with the

[[Page 122]]

State and public transportation operators, shall develop long-range 
transportation plans and TIPs through a performance-driven, outcome-
based approach to planning for metropolitan areas of the State.
    (b) The metropolitan transportation planning process shall be 
continuous, cooperative, and comprehensive, and provide for 
consideration and implementation of projects, strategies, and services 
that will address the following factors:
    (1) Support the economic vitality of the metropolitan area, 
especially by enabling global competitiveness, productivity, and 
efficiency;
    (2) Increase the safety of the transportation system for motorized 
and non-motorized users;
    (3) Increase the security of the transportation system for motorized 
and non-motorized users;
    (4) Increase accessibility and mobility of people and freight;
    (5) Protect and enhance the environment, promote energy 
conservation, improve the quality of life, and promote consistency 
between transportation improvements and State and local planned growth 
and economic development patterns;
    (6) Enhance the integration and connectivity of the transportation 
system, across and between modes, for people and freight;
    (7) Promote efficient system management and operation;
    (8) Emphasize the preservation of the existing transportation 
system;
    (9) Improve the resiliency and reliability of the transportation 
system and reduce or mitigate stormwater impacts of surface 
transportation; and
    (10) Enhance travel and tourism.
    (c) Consideration of the planning factors in paragraph (b) of this 
section shall be reflected, as appropriate, in the metropolitan 
transportation planning process. The degree of consideration and 
analysis of the factors should be based on the scale and complexity of 
many issues, including transportation system development, land use, 
employment, economic development, human and natural environment 
(including Section 4(f) properties as defined in 23 CFR 774.17), and 
housing and community development.
    (d) Performance-based approach. (1) The metropolitan transportation 
planning process shall provide for the establishment and use of a 
performance-based approach to transportation decisionmaking to support 
the national goals described in 23 U.S.C. 150(b) and the general 
purposes described in 49 U.S.C. 5301(c).
    (2) Establishment of performance targets by metropolitan planning 
organizations. (i) Each metropolitan planning organization shall 
establish performance targets that address the performance measures or 
standards established under 23 CFR part 490 (where applicable), 49 
U.S.C. 5326(c), and 49 U.S.C. 5329(d) to use in tracking progress toward 
attainment of critical outcomes for the region of the metropolitan 
planning organization.
    (ii) The selection of targets that address performance measures 
described in 23 U.S.C. 150(c) shall be in accordance with the 
appropriate target setting framework established at 23 CFR part 490, and 
shall be coordinated with the relevant State(s) to ensure consistency, 
to the maximum extent practicable.
    (iii) The selection of performance targets that address performance 
measures described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) shall be 
coordinated, to the maximum extent practicable, with public 
transportation providers to ensure consistency with the performance 
targets that public transportation providers establish under 49 U.S.C. 
5326(c) and 49 U.S.C. 5329(d).
    (3) Each MPO shall establish the performance targets under paragraph 
(d)(2) of this section not later than 180 days after the date on which 
the relevant State or provider of public transportation establishes the 
performance targets.
    (4) An MPO shall integrate in the metropolitan transportation 
planning process, directly or by reference, the goals, objectives, 
performance measures, and targets described in other State 
transportation plans and transportation processes, as well as any plans 
developed under 49 U.S.C. chapter 53 by providers of public 
transportation, required as part of a performance-based program 
including:

[[Page 123]]

    (i) The State asset management plan for the NHS, as defined in 23 
U.S.C. 119(e) and the Transit Asset Management Plan, as discussed in 49 
U.S.C. 5326;
    (ii) Applicable portions of the HSIP, including the SHSP, as 
specified in 23 U.S.C. 148;
    (iii) The Public Transportation Agency Safety Plan in 49 U.S.C. 
5329(d);
    (iv) Other safety and security planning and review processes, plans, 
and programs, as appropriate;
    (v) The Congestion Mitigation and Air Quality Improvement Program 
performance plan in 23 U.S.C. 149(l), as applicable;
    (vi) Appropriate (metropolitan) portions of the State Freight Plan 
(MAP-21 section 1118);
    (vii) The congestion management process, as defined in 23 CFR 
450.322, if applicable; and
    (viii) Other State transportation plans and transportation processes 
required as part of a performance-based program.
    (e) The failure to consider any factor specified in paragraph (b) or 
(d) of this section shall not be reviewable by any court under title 23 
U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5, U.S.C. Chapter 
5, or title 5 U.S.C. Chapter 7 in any matter affecting a metropolitan 
transportation plan, TIP, a project or strategy, or the certification of 
a metropolitan transportation planning process.
    (f) An MPO shall carry out the metropolitan transportation planning 
process in coordination with the statewide transportation planning 
process required by 23 U.S.C. 135 and 49 U.S.C. 5304.
    (g) The metropolitan transportation planning process shall (to the 
maximum extent practicable) be consistent with the development of 
applicable regional intelligent transportation systems (ITS) 
architectures, as defined in 23 CFR part 940.
    (h) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, should be 
coordinated and consistent with the metropolitan transportation planning 
process.
    (i) In an urbanized area not designated as a TMA that is an air 
quality attainment area, the MPO(s) may propose and submit to the FHWA 
and the FTA for approval a procedure for developing an abbreviated 
metropolitan transportation plan and TIP. In developing proposed 
simplified planning procedures, consideration shall be given to whether 
the abbreviated metropolitan transportation plan and TIP will achieve 
the purposes of 23 U.S.C. 134, 49 U.S.C. 5303, and this part, taking 
into account the complexity of the transportation problems in the area. 
The MPO shall develop simplified procedures in cooperation with the 
State(s) and public transportation operator(s).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016; 82 
FR 56543, Nov. 29, 2017]



Sec.  450.308  Funding for transportation planning and unified planning 
work programs.

    (a) Funds provided under 23 U.S.C. 104(d), 49 U.S.C. 5305(d), and 49 
U.S.C. 5307, are available to MPOs to accomplish activities described in 
this subpart. At the State's option, funds provided under 23 U.S.C. 
104(b)(2) and 23 U.S.C. 505 may also be provided to MPOs for 
metropolitan transportation planning. At the option of the State and 
operators of public transportation, funds provided under 49 U.S.C. 
5305(e) may also be provided to MPOs for activities that support 
metropolitan transportation planning. In addition, an MPO serving an 
urbanized area with a population over 200,000, as designated by the 
Bureau of the Census, may at its discretion use funds sub-allocated 
under 23 U.S.C. 133(d)(4) for metropolitan transportation planning 
activities.
    (b) An MPO shall document metropolitan transportation planning 
activities performed with funds provided under title 23 U.S.C. and title 
49 U.S.C. Chapter 53 in a unified planning work program (UPWP) or 
simplified statement of work in accordance with the provisions of this 
section and 23 CFR part 420.
    (c) Except as provided in paragraph (d) of this section, each MPO, 
in cooperation with the State(s) and public transportation operator(s), 
shall develop a UPWP that includes a discussion of the planning 
priorities facing the MPA. The UPWP shall identify

[[Page 124]]

work proposed for the next 1- or 2-year period by major activity and 
task (including activities that address the planning factors in Sec.  
450.306(b)), in sufficient detail to indicate who (e.g., MPO, State, 
public transportation operator, local government, or consultant) will 
perform the work, the schedule for completing the work, the resulting 
products, the proposed funding by activity/task, and a summary of the 
total amounts and sources of Federal and matching funds.
    (d) With the prior approval of the State and the FHWA and the FTA, 
an MPO in an area not designated as a TMA may prepare a simplified 
statement of work, in cooperation with the State(s) and the public 
transportation operator(s), in lieu of a UPWP. A simplified statement of 
work shall include a description of the major activities to be performed 
during the next 1- or 2-year period, who (e.g., State, MPO, public 
transportation operator, local government, or consultant) will perform 
the work, the resulting products, and a summary of the total amounts and 
sources of Federal and matching funds. If a simplified statement of work 
is used, it may be submitted as part of the State's planning work 
program, in accordance with 23 CFR part 420.
    (e) Arrangements may be made with the FHWA and the FTA to combine 
the UPWP or simplified statement of work with the work program(s) for 
other Federal planning funds.
    (f) Administrative requirements for UPWPs and simplified statements 
of work are contained in 23 CFR part 420 and FTA Circular C8100, as 
amended (Program Guidance for Metropolitan Planning and State Planning 
and Research Program Grants).



Sec.  450.310  Metropolitan planning organization designation 
and redesignation.

    (a) To carry out the metropolitan transportation planning process 
under this subpart, an MPO shall be designated for each urbanized area 
with a population of more than 50,000 individuals (as determined by the 
Bureau of the Census).
    (b) MPO designation shall be made by agreement between the Governor 
and units of general purpose local government that together represent at 
least 75 percent of the affected population (including the largest 
incorporated city, based on population, as named by the Bureau of the 
Census) or in accordance with procedures established by applicable State 
or local law.
    (c) The FHWA and the FTA shall identify as a TMA each urbanized area 
with a population of over 200,000 individuals, as defined by the Bureau 
of the Census. The FHWA and the FTA shall also designate any urbanized 
area as a TMA on the request of the Governor and the MPO designated for 
that area.
    (d) TMA structure:
    (1) Not later than October 1, 2014, each metropolitan planning 
organization that serves a designated TMA shall consist of:
    (i) Local elected officials;
    (ii) Officials of public agencies that administer or operate major 
modes of transportation in the metropolitan area, including 
representation by providers of public transportation; and
    (iii) Appropriate State officials.
    (2) An MPO may be restructured to meet the requirements of this 
paragraph (d) without undertaking a redesignation.
    (3) Representation. (i) Designation or selection of officials or 
representatives under paragraph (d)(1) of this section shall be 
determined by the MPO according to the bylaws or enabling statute of the 
organization.
    (ii) Subject to the bylaws or enabling statute of the MPO, a 
representative of a provider of public transportation may also serve as 
a representative of a local municipality.
    (iii) An official described in paragraph (d)(1)(ii) shall have 
responsibilities, actions, duties, voting rights, and any other 
authority commensurate with other officials described in paragraph 
(d)(1) of this section.
    (4) Nothing in this section shall be construed to interfere with the 
authority, under any State law in effect on December 18, 1991, of a 
public agency with multimodal transportation responsibilities--
    (i) To develop the plans and TIPs for adoption by an MPO; and
    (ii) To develop long-range capital plans, coordinate transit 
services and

[[Page 125]]

projects, and carry out other activities pursuant to State law.
    (e) To the extent possible, only one MPO shall be designated for 
each urbanized area or group of contiguous urbanized areas. More than 
one MPO may be designated to serve an urbanized area only if the 
Governor(s) and the existing MPO, if applicable, determine that the size 
and complexity of the urbanized area-make designation of more than one 
MPO appropriate. In those cases where two or more MPOs serve the same 
urbanized area, the MPOs shall establish official, written agreements 
that clearly identify areas of coordination, and the division of 
transportation planning responsibilities among the MPOs.
    (f) Nothing in this subpart shall be deemed to prohibit an MPO from 
using the staff resources of other agencies, non-profit organizations, 
or contractors to carry out selected elements of the metropolitan 
transportation planning process.
    (g) An MPO designation shall remain in effect until an official 
redesignation has been made in accordance with this section.
    (h) An existing MPO may be redesignated only by agreement between 
the Governor and units of general purpose local government that together 
represent at least 75 percent of the existing metropolitan planning area 
population (including the largest incorporated city, based on 
population, as named by the Bureau of the Census).
    (i) For the purposes of redesignation, units of general purpose 
local government may be defined as elected officials from each unit of 
general purpose local government located within the metropolitan 
planning area served by the existing MPO.
    (j) Redesignation of an MPO (in accordance with the provisions of 
this section) is required whenever the existing MPO proposes to make:
    (1) A substantial change in the proportion of voting members on the 
existing MPO representing the largest incorporated city, other units of 
general purpose local government served by the MPO, and the State(s); or
    (2) A substantial change in the decisionmaking authority or 
responsibility of the MPO, or in decisionmaking procedures established 
under MPO by-laws.
    (k) Redesignation of an MPO serving a multistate metropolitan 
planning area requires agreement between the Governors of each State 
served by the existing MPO and units of general purpose local government 
that together represent at least 75 percent of the existing metropolitan 
planning area population (including the largest incorporated city, based 
on population, as named by the Bureau of the Census).
    (l) The following changes to an MPO do not require a redesignation 
(as long as they do not trigger a substantial change as described in 
paragraph (j) of this section):
    (1) The identification of a new urbanized area (as determined by the 
Bureau of the Census) within an existing metropolitan planning area;
    (2) Adding members to the MPO that represent new units of general 
purpose local government resulting from expansion of the metropolitan 
planning area;
    (3) Adding members to satisfy the specific membership requirements 
described in paragraph (d) of this section for an MPO that serves a TMA; 
or
    (4) Periodic rotation of members representing units of general-
purpose local government, as established under MPO by-laws.
    (m) Each Governor with responsibility for a portion of a multistate 
metropolitan area and the appropriate MPOs shall, to the extent 
practicable, provide coordinated transportation planning for the entire 
MPA. The consent of Congress is granted to any two or more States to:
    (1) Enter into agreements or compacts, not in conflict with any law 
of the United States, for cooperative efforts and mutual assistance in 
support of activities authorized under 23 U.S.C. 134 and 49 U.S.C. 5303 
as the activities pertain to interstate areas and localities within the 
States; and
    (2) Establish such agencies, joint or otherwise, as the States may 
determine desirable for making the agreements and compacts effective.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016; 82 
FR 56543, Nov. 29, 2017]

[[Page 126]]



Sec.  450.312  Metropolitan Planning Area boundaries.

    (a) The boundaries of a metropolitan planning area (MPA) shall be 
determined by agreement between the MPO and the Governor.
    (1) At a minimum, the MPA boundaries shall encompass the entire 
existing urbanized area (as defined by the Bureau of the Census) plus 
the contiguous area expected to become urbanized within a 20-year 
forecast period for the metropolitan transportation plan.
    (2) The MPA boundaries may be further expanded to encompass the 
entire metropolitan statistical area or combined statistical area, as 
defined by the Office of Management and Budget.
    (b) An MPO that serves an urbanized area designated as a 
nonattainment area for ozone or carbon monoxide under the Clean Air Act 
(42 U.S.C. 7401 et seq.) as of August 10, 2005, shall retain the MPA 
boundary that existed on August 10, 2005. The MPA boundaries for such 
MPOs may only be adjusted by agreement of the Governor and the affected 
MPO in accordance with the redesignation procedures described in Sec.  
450.310(h). The MPA boundary for an MPO that serves an urbanized area 
designated as a nonattainment area for ozone or carbon monoxide under 
the Clean Air Act (42 U.S.C. 7401 et seq.) after August 10, 2005, may be 
established to coincide with the designated boundaries of the ozone and/
or carbon monoxide nonattainment area, in accordance with the 
requirements in Sec.  450.310(b).
    (c) An MPA boundary may encompass more than one urbanized area.
    (d) MPA boundaries may be established to coincide with the geography 
of regional economic development and growth forecasting areas.
    (e) Identification of new urbanized areas within an existing 
metropolitan planning area by the Bureau of the Census shall not require 
redesignation of the existing MPO.
    (f) Where the boundaries of the urbanized area or MPA extend across 
two or more States, the Governors with responsibility for a portion of 
the multistate area, the appropriate MPO(s), and the public 
transportation operator(s) are strongly encouraged to coordinate 
transportation planning for the entire multistate area.
    (g) The MPA boundaries shall not overlap with each other.
    (h) Where part of an urbanized area served by one MPO extends into 
an adjacent MPA, the MPOs shall, at a minimum, establish written 
agreements that clearly identify areas of coordination and the division 
of transportation planning responsibilities among and between the MPOs. 
Alternatively, the MPOs may adjust their existing boundaries so that the 
entire urbanized area lies within only one MPA. Boundary adjustments 
that change the composition of the MPO may require redesignation of one 
or more such MPOs.
    (i) The MPO (in cooperation with the State and public transportation 
operator(s)) shall review the MPA boundaries after each Census to 
determine if existing MPA boundaries meet the minimum statutory 
requirements for new and updated urbanized area(s), and shall adjust 
them as necessary. As appropriate, additional adjustments should be made 
to reflect the most comprehensive boundary to foster an effective 
planning process that ensures connectivity between modes, improves 
access to modal systems, and promotes efficient overall transportation 
investment strategies.
    (j) Following MPA boundary approval by the MPO and the Governor, the 
MPA boundary descriptions shall be provided for informational purposes 
to the FHWA and the FTA. The MPA boundary descriptions shall be 
submitted either as a geo-spatial database or described in sufficient 
detail to enable the boundaries to be accurately delineated on a map.

[82 FR 56543, Nov. 29, 2017]



Sec.  450.314  Metropolitan planning agreements.

    (a) The MPO, the State(s), and the providers of public 
transportation shall cooperatively determine their mutual 
responsibilities in carrying out the metropolitan transportation 
planning process. These responsibilities shall be clearly identified in 
written agreements among the MPO, the State(s), and the providers of 
public transportation serving the MPA. To the extent possible, a single 
agreement between

[[Page 127]]

all responsible parties should be developed. The written agreement(s) 
shall include specific provisions for the development of financial plans 
that support the metropolitan transportation plan (see Sec.  450.324) 
and the metropolitan TIP (see Sec.  450.326), and development of the 
annual listing of obligated projects (see Sec.  450.334).
    (b) The MPO, the State(s), and the providers of public 
transportation should periodically review and update the agreement, as 
appropriate, to reflect effective changes.
    (c) If the MPA does not include the entire nonattainment or 
maintenance area, there shall be a written agreement among the State 
department of transportation, State air quality agency, affected local 
agencies, and the MPO describing the process for cooperative planning 
and analysis of all projects outside the MPA within the nonattainment or 
maintenance area. The agreement must also indicate how the total 
transportation-related emissions for the nonattainment or maintenance 
area, including areas outside the MPA, will be treated for the purposes 
of determining conformity in accordance with the EPA's transportation 
conformity regulations (40 CFR part 93, subpart A). The agreement shall 
address policy mechanisms for resolving conflicts concerning 
transportation-related emissions that may arise between the MPA and the 
portion of the nonattainment or maintenance area outside the MPA.
    (d) In nonattainment or maintenance areas, if the MPO is not the 
designated agency for air quality planning under section 174 of the 
Clean Air Act (42 U.S.C. 7504), there shall be a written agreement 
between the MPO and the designated air quality planning agency 
describing their respective roles and responsibilities for air quality 
related transportation planning.
    (e) If more than one MPO has been designated to serve an urbanized 
area there shall be a written agreement among the MPOs, the State(s), 
and the public transportation operator(s) describing how the 
metropolitan transportation planning processes will be coordinated to 
assure the development of consistent metropolitan transportation plans 
and TIPs across the MPA boundaries, particularly in cases in which a 
proposed transportation investment extends across the boundaries of more 
than one MPA. If any part of the urbanized area is a nonattainment or 
maintenance area, the agreement also shall include State and local air 
quality agencies. The metropolitan transportation planning processes for 
affected MPOs should, to the maximum extent possible, reflect 
coordinated data collection, analysis, and planning assumptions across 
the MPAs. Alternatively, a single metropolitan transportation plan and/
or TIP for the entire urbanized area may be developed jointly by the 
MPOs in cooperation with their respective planning partners. 
Coordination efforts and outcomes shall be documented in subsequent 
transmittals of the UPWP and other planning products, including the 
metropolitan transportation plan and TIP, to the State(s), the FHWA, and 
the FTA.
    (f) Where the boundaries of the urbanized area or MPA extend across 
two or more States, the Governors with responsibility for a portion of 
the multistate area, the appropriate MPO(s), and the public 
transportation operator(s) shall coordinate transportation planning for 
the entire multistate area. States involved in such multistate 
transportation planning may:
    (1) Enter into agreements or compacts, not in conflict with any law 
of the United States, for cooperative efforts and mutual assistance in 
support of activities authorized under this section as the activities 
pertain to interstate areas and localities within the States; and
    (2) Establish such agencies, joint or otherwise, as the States may 
determine desirable for making the agreements and compacts effective.
    (g) If part of an urbanized area that has been designated as a TMA 
overlaps into an adjacent MPA serving an urbanized area that is not 
designated as a TMA, the adjacent urbanized area shall not be treated as 
a TMA. However, a written agreement shall be established between the 
MPOs with MPA boundaries, including a portion of the TMA, which clearly 
identifies the roles and

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responsibilities of each MPO in meeting specific TMA requirements (e.g., 
congestion management process, Surface Transportation Program funds 
suballocated to the urbanized area over 200,000 population, and project 
selection).
    (h)(1) The MPO(s), State(s), and the providers of public 
transportation shall jointly agree upon and develop specific written 
provisions for cooperatively developing and sharing information related 
to transportation performance data, the selection of performance 
targets, the reporting of performance targets, the reporting of 
performance to be used in tracking progress toward attainment of 
critical outcomes for the region of the MPO (see Sec.  450.306(d)), and 
the collection of data for the State asset management plan for the NHS 
for each of the following circumstances:
    (i) When one MPO serves an urbanized area;
    (ii) When more than one MPO serves an urbanized area; and
    (iii) When an urbanized area that has been designated as a TMA 
overlaps into an adjacent MPA serving an urbanized area that is not a 
TMA.
    (2) These provisions shall be documented either:
    (i) As part of the metropolitan planning agreements required under 
paragraphs (a), (e), and (g) of this section; or
    (ii) Documented in some other means outside of the metropolitan 
planning agreements as determined cooperatively by the MPO(s), State(s), 
and providers of public transportation.

[82 FR 56544, Nov. 29, 2017]



Sec.  450.316  Interested parties, participation, and consultation.

    (a) The MPO shall develop and use a documented participation plan 
that defines a process for providing individuals, affected public 
agencies, representatives of public transportation employees, public 
ports, freight shippers, providers of freight transportation services, 
private providers of transportation (including intercity bus operators, 
employer-based commuting programs, such as carpool program, vanpool 
program, transit benefit program, parking cash-out program, shuttle 
program, or telework program), representatives of users of public 
transportation, representatives of users of pedestrian walkways and 
bicycle transportation facilities, representatives of the disabled, and 
other interested parties with reasonable opportunities to be involved in 
the metropolitan transportation planning process.
    (1) The MPO shall develop the participation plan in consultation 
with all interested parties and shall, at a minimum, describe explicit 
procedures, strategies, and desired outcomes for:
    (i) Providing adequate public notice of public participation 
activities and time for public review and comment at key decision 
points, including a reasonable opportunity to comment on the proposed 
metropolitan transportation plan and the TIP;
    (ii) Providing timely notice and reasonable access to information 
about transportation issues and processes;
    (iii) Employing visualization techniques to describe metropolitan 
transportation plans and TIPs;
    (iv) Making public information (technical information and meeting 
notices) available in electronically accessible formats and means, such 
as the World Wide Web;
    (v) Holding any public meetings at convenient and accessible 
locations and times;
    (vi) Demonstrating explicit consideration and response to public 
input received during the development of the metropolitan transportation 
plan and the TIP;
    (vii) Seeking out and considering the needs of those traditionally 
underserved by existing transportation systems, such as low-income and 
minority households, who may face challenges accessing employment and 
other services;
    (viii) Providing an additional opportunity for public comment, if 
the final metropolitan transportation plan or TIP differs significantly 
from the version that was made available for public comment by the MPO 
and raises new material issues that interested parties could not 
reasonably have foreseen from the public involvement efforts;

[[Page 129]]

    (ix) Coordinating with the statewide transportation planning public 
involvement and consultation processes under subpart B of this part; and
    (x) Periodically reviewing the effectiveness of the procedures and 
strategies contained in the participation plan to ensure a full and open 
participation process.
    (2) When significant written and oral comments are received on the 
draft metropolitan transportation plan and TIP (including the financial 
plans) as a result of the participation process in this section or the 
interagency consultation process required under the EPA transportation 
conformity regulations (40 CFR part 93, subpart A), a summary, analysis, 
and report on the disposition of comments shall be made as part of the 
final metropolitan transportation plan and TIP.
    (3) A minimum public comment period of 45 calendar days shall be 
provided before the initial or revised participation plan is adopted by 
the MPO. Copies of the approved participation plan shall be provided to 
the FHWA and the FTA for informational purposes and shall be posted on 
the World Wide Web, to the maximum extent practicable.
    (b) In developing metropolitan transportation plans and TIPs, the 
MPO should consult with agencies and officials responsible for other 
planning activities within the MPA that are affected by transportation 
(including State and local planned growth, economic development, 
tourism, natural disaster risk reduction, environmental protection, 
airport operations, or freight movements) or coordinate its planning 
process (to the maximum extent practicable) with such planning 
activities. In addition, the MPO shall develop the metropolitan 
transportation plans and TIPs with due consideration of other related 
planning activities within the metropolitan area, and the process shall 
provide for the design and delivery of transportation services within 
the area that are provided by:
    (1) Recipients of assistance under title 49 U.S.C. Chapter 53;
    (2) Governmental agencies and non-profit organizations (including 
representatives of the agencies and organizations) that receive Federal 
assistance from a source other than the U.S. Department of 
Transportation to provide non-emergency transportation services; and
    (3) Recipients of assistance under 23 U.S.C. 201-204.
    (c) When the MPA includes Indian Tribal lands, the MPO shall 
appropriately involve the Indian Tribal government(s) in the development 
of the metropolitan transportation plan and the TIP.
    (d) When the MPA includes Federal public lands, the MPO shall 
appropriately involve the Federal land management agencies in the 
development of the metropolitan transportation plan and the TIP.
    (e) MPOs shall, to the extent practicable, develop a documented 
process(es) that outlines roles, responsibilities, and key decision 
points for consulting with other governments and agencies, as defined in 
paragraphs (b), (c), and (d) of this section, which may be included in 
the agreement(s) developed under Sec.  450.314.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56544, Nov. 29, 2017]



Sec.  450.318  Transportation planning studies and project development.

    (a) Pursuant to section 1308 of the Transportation Equity Act for 
the 21st Century, TEA-21 (Pub. L. 105-178), an MPO(s), State(s), or 
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the metropolitan 
transportation planning process. To the extent practicable, development 
of these transportation planning studies shall involve consultation 
with, or joint efforts among, the MPO(s), State(s), and/or public 
transportation operator(s). The results or decisions of these 
transportation planning studies may be used as part of the overall 
project development process consistent with the National Environmental 
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated 
implementing regulations (23 CFR part 771 and 40 CFR parts 1500-1508). 
Specifically, these corridor or subarea studies

[[Page 130]]

may result in producing any of the following for a proposed 
transportation project:
    (1) Purpose and need or goals and objective statement(s);
    (2) General travel corridor and/or general mode(s) definition (e.g., 
highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Basic description of the environmental setting; and/or
    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents or other source material produced 
by, or in support of, the transportation planning process described in 
this subpart may be incorporated directly or by reference into 
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:
    (1) The NEPA lead agencies agree that such incorporation will aid in 
establishing or evaluating the purpose and need for the Federal action, 
reasonable alternatives, cumulative or other impacts on the human and 
natural environment, or mitigation of these impacts; and
    (2) The systems-level, corridor, or subarea planning study is 
conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Reasonable opportunity to comment during the metropolitan 
transportation planning process and development of the corridor or 
subarea planning study;
    (iv) Documentation of relevant decisions in a form that is 
identifiable and available for review during the NEPA scoping process 
and can be appended to or referenced in the NEPA document; and
    (v) The review of the FHWA and the FTA, as appropriate.
    (c) By agreement of the NEPA lead agencies, the above integration 
may be accomplished through tiering (as described in 40 CFR 1502.20), 
incorporating the subarea or corridor planning study into the draft 
Environmental Impact Statement (EIS) or Environmental Assessment, or 
other means that the NEPA lead agencies deem appropriate.
    (d) Additional information to further explain the linkages between 
the transportation planning and project development/NEPA processes is 
contained in Appendix A to this part, including an explanation that it 
is non-binding guidance material. The guidance in Appendix A applies 
only to paragraphs (a)-(c) in this section.
    (e) In addition to the process for incorporation directly or by 
reference outlined in paragraph (b) of this section, an additional 
authority for integrating planning products into the environmental 
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 168(f):
    (1) The statutory authority in 23 U.S.C. 168 shall not be construed 
to limit in any way the continued use of processes established under 
other parts of this section or under an authority established outside of 
this part, and the use of one of the processes in this section does not 
preclude the subsequent use of another process in this section or an 
authority outside of this part.
    (2) The statute does not restrict the initiation of the 
environmental review process during planning.



Sec.  450.320  Development of programmatic mitigation plans.

    (a) An MPO may utilize the optional framework in this section to 
develop programmatic mitigation plans as part of the metropolitan 
transportation planning process to address the potential environmental 
impacts of future transportation projects. The MPO, in consultation with 
the FHWA and/or the FTA and with the agency or agencies with 
jurisdiction and special expertise over the resources being addressed in 
the plan, will determine:
    (1) Scope. (i) An MPO may develop a programmatic mitigation plan on 
a local, regional, ecosystem, watershed, statewide or similar scale.
    (ii) The plan may encompass multiple environmental resources within 
a defined geographic area(s) or may focus on a specific type(s) of 
resource(s) such as aquatic resources, parkland, or wildlife habitat.

[[Page 131]]

    (iii) The plan may address or consider impacts from all projects in 
a defined geographic area(s) or may focus on a specific type(s) of 
project(s).
    (2) Contents. The programmatic mitigation plan may include:
    (i) An assessment of the existing condition of natural and human 
environmental resources within the area covered by the plan, including 
an assessment of historic and recent trends and/or any potential threats 
to those resources.
    (ii) An identification of economic, social, and natural and human 
environmental resources within the geographic area that may be impacted 
and considered for mitigation. Examples of these resources include 
wetlands, streams, rivers, stormwater, parklands, cultural resources, 
historic resources, farmlands, archeological resources, threatened or 
endangered species, and critical habitat. This may include the 
identification of areas of high conservation concern or value and thus 
worthy of avoidance.
    (iii) An inventory of existing or planned environmental resource 
banks for the impacted resource categories such as wetland, stream, 
stormwater, habitat, species, and an inventory of federally, State, or 
locally approved in-lieu-of-fee programs.
    (iv) An assessment of potential opportunities to improve the overall 
quality of the identified environmental resources through strategic 
mitigation for impacts of transportation projects which may include the 
prioritization of parcels or areas for acquisition and/or potential 
resource banking sites.
    (v) An adoption or development of standard measures or operating 
procedures for mitigating certain types of impacts; establishment of 
parameters for determining or calculating appropriate mitigation for 
certain types of impacts, such as mitigation ratios, or criteria for 
determining appropriate mitigation sites.
    (vi) Adaptive management procedures, such as protocols or procedures 
that involve monitoring actual impacts against predicted impacts over 
time and adjusting mitigation measures in response to information 
gathered through the monitoring.
    (vii) Acknowledgement of specific statutory or regulatory 
requirements that must be satisfied when determining appropriate 
mitigation for certain types of resources.
    (b) A MPO may adopt a programmatic mitigation plan developed 
pursuant to paragraph (a), or developed pursuant to an alternative 
process as provided for in paragraph (f) of this section through the 
following process:
    (1) Consult with each agency with jurisdiction over the 
environmental resources considered in the programmatic mitigation plan;
    (2) Make available a draft of the programmatic mitigation plan for 
review and comment by appropriate environmental resource agencies and 
the public;
    (3) Consider comments received from such agencies and the public on 
the draft plan; and
    (4) Address such comments in the final programmatic mitigation plan.
    (c) A programmatic mitigation plan may be integrated with other 
plans, including watershed plans, ecosystem plans, species recovery 
plans, growth management plans, State Wildlife Action Plans, and land 
use plans.
    (d) If a programmatic mitigation plan has been adopted pursuant to 
paragraph (b), any Federal agency responsible for environmental reviews, 
permits, or approvals for a transportation project shall give 
substantial weight to the recommendations in the programmatic mitigation 
plan when carrying out its responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) or 
other Federal environmental law.
    (e) Nothing in this section limits the use of programmatic 
approaches for reviews under NEPA.
    (f) Nothing in this section prohibits the development, as part of or 
separate from the transportation planning process, of a programmatic 
mitigation plan independent of the framework described in paragraph (a) 
of this section. Further, nothing in this section prohibits the adoption 
of a programmatic mitigation plan in the metropolitan planning process 
that was developed under another authority, independent of the framework 
described in paragraph (a).

[[Page 132]]



Sec.  450.322  Congestion management process in transportation 
management areas.

    (a) The transportation planning process in a TMA shall address 
congestion management through a process that provides for safe and 
effective integrated management and operation of the multimodal 
transportation system, based on a cooperatively developed and 
implemented metropolitan-wide strategy, of new and existing 
transportation facilities eligible for funding under title 23 U.S.C. and 
title 49 U.S.C. Chapter 53 through the use of travel demand reduction 
(including intercity bus operators, employer-based commuting programs 
such as a carpool program, vanpool program, transit benefit program, 
parking cash-out program, shuttle program, or telework program), job 
access projects, and operational management strategies.
    (b) The development of a congestion management process should result 
in multimodal system performance measures and strategies that can be 
reflected in the metropolitan transportation plan and the TIP.
    (c) The level of system performance deemed acceptable by State and 
local transportation officials may vary by type of transportation 
facility, geographic location (metropolitan area or subarea), and/or 
time of day. In addition, consideration should be given to strategies 
that manage demand, reduce single occupant vehicle (SOV) travel, improve 
transportation system management and operations, and improve efficient 
service integration within and across modes, including highway, transit, 
passenger and freight rail operations, and non-motorized transport. 
Where the addition of general purpose lanes is determined to be an 
appropriate congestion management strategy, explicit consideration is to 
be given to the incorporation of appropriate features into the SOV 
project to facilitate future demand management strategies and 
operational improvements that will maintain the functional integrity and 
safety of those lanes.
    (d) The congestion management process shall be developed, 
established, and implemented as part of the metropolitan transportation 
planning process that includes coordination with transportation system 
management and operations activities. The congestion management process 
shall include:
    (1) Methods to monitor and evaluate the performance of the 
multimodal transportation system, identify the underlying causes of 
recurring and non-recurring congestion, identify and evaluate 
alternative strategies, provide information supporting the 
implementation of actions, and evaluate the effectiveness of implemented 
actions;
    (2) Definition of congestion management objectives and appropriate 
performance measures to assess the extent of congestion and support the 
evaluation of the effectiveness of congestion reduction and mobility 
enhancement strategies for the movement of people and goods. Since 
levels of acceptable system performance may vary among local 
communities, performance measures should be tailored to the specific 
needs of the area and established cooperatively by the State(s), 
affected MPO(s), and local officials in consultation with the operators 
of major modes of transportation in the coverage area, including 
providers of public transportation;
    (3) Establishment of a coordinated program for data collection and 
system performance monitoring to define the extent and duration of 
congestion, to contribute in determining the causes of congestion, and 
evaluate the efficiency and effectiveness of implemented actions. To the 
extent possible, this data collection program should be coordinated with 
existing data sources (including archived operational/ITS data) and 
coordinated with operations managers in the metropolitan area;
    (4) Identification and evaluation of the anticipated performance and 
expected benefits of appropriate congestion management strategies that 
will contribute to the more effective use and improved safety of 
existing and future transportation systems based on the established 
performance measures. The following categories of strategies, or 
combinations of strategies, are some examples of what should be 
appropriately considered for each area:
    (i) Demand management measures, including growth management, and 
congestion pricing;

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    (ii) Traffic operational improvements;
    (iii) Public transportation improvements;
    (iv) ITS technologies as related to the regional ITS architecture; 
and
    (v) Where necessary, additional system capacity.
    (5) Identification of an implementation schedule, implementation 
responsibilities, and possible funding sources for each strategy (or 
combination of strategies) proposed for implementation; and
    (6) Implementation of a process for periodic assessment of the 
effectiveness of implemented strategies, in terms of the area's 
established performance measures. The results of this evaluation shall 
be provided to decision makers and the public to provide guidance on 
selection of effective strategies for future implementation.
    (e) In a TMA designated as nonattainment area for ozone or carbon 
monoxide pursuant to the Clean Air Act, Federal funds may not be 
programmed for any project that will result in a significant increase in 
the carrying capacity for SOVs (i.e., a new general purpose highway on a 
new location or adding general purpose lanes, with the exception of 
safety improvements or the elimination of bottlenecks), unless the 
project is addressed through a congestion management process meeting the 
requirements of this section.
    (f) In TMAs designated as nonattainment for ozone or carbon 
monoxide, the congestion management process shall provide an appropriate 
analysis of reasonable (including multimodal) travel demand reduction 
and operational management strategies for the corridor in which a 
project that will result in a significant increase in capacity for SOVs 
(as described in paragraph (d) of this section) is proposed to be 
advanced with Federal funds. If the analysis demonstrates that travel 
demand reduction and operational management strategies cannot fully 
satisfy the need for additional capacity in the corridor and additional 
SOV capacity is warranted, then the congestion management process shall 
identify all reasonable strategies to manage the SOV facility safely and 
effectively (or to facilitate its management in the future). Other 
travel demand reduction and operational management strategies 
appropriate for the corridor, but not appropriate for incorporation into 
the SOV facility itself, shall also be identified through the congestion 
management process. All identified reasonable travel demand reduction 
and operational management strategies shall be incorporated into the SOV 
project or committed to by the State and MPO for implementation.
    (g) State laws, rules, or regulations pertaining to congestion 
management systems or programs may constitute the congestion management 
process, if the FHWA and the FTA find that the State laws, rules, or 
regulations are consistent with, and fulfill the intent of, the purposes 
of 23 U.S.C. 134 and 49 U.S.C. 5303.
    (h) Congestion management plan. A MPO serving a TMA may develop a 
plan that includes projects and strategies that will be considered in 
the TIP of such MPO.
    (1) Such plan shall:
    (i) Develop regional goals to reduce vehicle miles traveled during 
peak commuting hours and improve transportation connections between 
areas with high job concentration and areas with high concentrations of 
low-income households;
    (ii) Identify existing public transportation services, employer 
based commuter programs, and other existing transportation services that 
support access to jobs in the region; and
    (iii) Identify proposed projects and programs to reduce congestion 
and increase job access opportunities.
    (2) In developing the congestion management plan, an MPO shall 
consult with employers, private and nonprofit providers of public 
transportation, transportation management organizations, and 
organizations that provide job access reverse commute projects or job-
related services to low-income individuals.

[[Page 134]]



Sec.  450.324  Development and content of the metropolitan transportation plan.

    (a) The metropolitan transportation planning process shall include 
the development of a transportation plan addressing no less than a 20-
year planning horizon as of the effective date. In formulating the 
transportation plan, the MPO shall consider factors described in Sec.  
450.306 as the factors relate to a minimum 20-year forecast period. In 
nonattainment and maintenance areas, the effective date of the 
transportation plan shall be the date of a conformity determination 
issued by the FHWA and the FTA. In attainment areas, the effective date 
of the transportation plan shall be its date of adoption by the MPO.
    (b) The transportation plan shall include both long-range and short-
range strategies/actions that provide for the development of an 
integrated multimodal transportation system (including accessible 
pedestrian walkways and bicycle transportation facilities) to facilitate 
the safe and efficient movement of people and goods in addressing 
current and future transportation demand.
    (c) The MPO shall review and update the transportation plan at least 
every 4 years in air quality nonattainment and maintenance areas and at 
least every 5 years in attainment areas to confirm the transportation 
plan's validity and consistency with current and forecasted 
transportation and land use conditions and trends and to extend the 
forecast period to at least a 20-year planning horizon. In addition, the 
MPO may revise the transportation plan at any time using the procedures 
in this section without a requirement to extend the horizon year. The 
MPO shall approve the transportation plan (and any revisions) and submit 
it for information purposes to the Governor. Copies of any updated or 
revised transportation plans must be provided to the FHWA and the FTA.
    (d) In metropolitan areas that are in nonattainment for ozone or 
carbon monoxide, the MPO shall coordinate the development of the 
metropolitan transportation plan with the process for developing 
transportation control measures (TCMs) in a State Implementation Plan 
(SIP).
    (e) The MPO, the State(s), and the public transportation operator(s) 
shall validate data used in preparing other existing modal plans for 
providing input to the transportation plan. In updating the 
transportation plan, the MPO shall base the update on the latest 
available estimates and assumptions for population, land use, travel, 
employment, congestion, and economic activity. The MPO shall approve 
transportation plan contents and supporting analyses produced by a 
transportation plan update.
    (f) The metropolitan transportation plan shall, at a minimum, 
include:
    (1) The current and projected transportation demand of persons and 
goods in the metropolitan planning area over the period of the 
transportation plan;
    (2) Existing and proposed transportation facilities (including major 
roadways, public transportation facilities, intercity bus facilities, 
multimodal and intermodal facilities, nonmotorized transportation 
facilities (e.g., pedestrian walkways and bicycle facilities), and 
intermodal connectors) that should function as an integrated 
metropolitan transportation system, giving emphasis to those facilities 
that serve important national and regional transportation functions over 
the period of the transportation plan.
    (3) A description of the performance measures and performance 
targets used in assessing the performance of the transportation system 
in accordance with Sec.  450.306(d).
    (4) A system performance report and subsequent updates evaluating 
the condition and performance of the transportation system with respect 
to the performance targets described in Sec.  450.306(d), including--
    (i) Progress achieved by the metropolitan planning organization in 
meeting the performance targets in comparison with system performance 
recorded in previous reports, including baseline data; and
    (ii) For metropolitan planning organizations that voluntarily elect 
to develop multiple scenarios, an analysis of how the preferred scenario 
has improved the conditions and performance of the transportation system 
and how

[[Page 135]]

changes in local policies and investments have impacted the costs 
necessary to achieve the identified performance targets.
    (5) Operational and management strategies to improve the performance 
of existing transportation facilities to relieve vehicular congestion 
and maximize the safety and mobility of people and goods;
    (6) Consideration of the results of the congestion management 
process in TMAs that meet the requirements of this subpart, including 
the identification of SOV projects that result from a congestion 
management process in TMAs that are nonattainment for ozone or carbon 
monoxide.
    (7) Assessment of capital investment and other strategies to 
preserve the existing and projected future metropolitan transportation 
infrastructure, provide for multimodal capacity increases based on 
regional priorities and needs, and reduce the vulnerability of the 
existing transportation infrastructure to natural disasters. The 
metropolitan transportation plan may consider projects and strategies 
that address areas or corridors where current or projected congestion 
threatens the efficient functioning of key elements of the metropolitan 
area's transportation system.
    (8) Transportation and transit enhancement activities, including 
consideration of the role that intercity buses may play in reducing 
congestion, pollution, and energy consumption in a cost-effective manner 
and strategies and investments that preserve and enhance intercity bus 
systems, including systems that are privately owned and operated, and 
including transportation alternatives, as defined in 23 U.S.C. 101(a), 
and associated transit improvements, as described in 49 U.S.C. 5302(a), 
as appropriate;
    (9) Design concept and design scope descriptions of all existing and 
proposed transportation facilities in sufficient detail, regardless of 
funding source, in nonattainment and maintenance areas for conformity 
determinations under the EPA's transportation conformity regulations (40 
CFR part 93, subpart A). In all areas (regardless of air quality 
designation), all proposed improvements shall be described in sufficient 
detail to develop cost estimates;
    (10) A discussion of types of potential environmental mitigation 
activities and potential areas to carry out these activities, including 
activities that may have the greatest potential to restore and maintain 
the environmental functions affected by the metropolitan transportation 
plan. The discussion may focus on policies, programs, or strategies, 
rather than at the project level. The MPO shall develop the discussion 
in consultation with applicable Federal, State, and Tribal land 
management, wildlife, and regulatory agencies. The MPO may establish 
reasonable timeframes for performing this consultation;
    (11) A financial plan that demonstrates how the adopted 
transportation plan can be implemented.
    (i) For purposes of transportation system operations and 
maintenance, the financial plan shall contain system-level estimates of 
costs and revenue sources that are reasonably expected to be available 
to adequately operate and maintain the Federal-aid highways (as defined 
by 23 U.S.C. 101(a)(5)) and public transportation (as defined by title 
49 U.S.C. Chapter 53).
    (ii) For the purpose of developing the metropolitan transportation 
plan, the MPO(s), public transportation operator(s), and State shall 
cooperatively develop estimates of funds that will be available to 
support metropolitan transportation plan implementation, as required 
under Sec.  450.314(a). All necessary financial resources from public 
and private sources that are reasonably expected to be made available to 
carry out the transportation plan shall be identified.
    (iii) The financial plan shall include recommendations on any 
additional financing strategies to fund projects and programs included 
in the metropolitan transportation plan. In the case of new funding 
sources, strategies for ensuring their availability shall be identified. 
The financial plan may include an assessment of the appropriateness of 
innovative finance techniques (for example, tolling, pricing, bonding, 
public private partnerships, or other strategies) as revenue sources for 
projects in the plan.

[[Page 136]]

    (iv) In developing the financial plan, the MPO shall take into 
account all projects and strategies proposed for funding under title 23 
U.S.C., title 49 U.S.C. Chapter 53 or with other Federal funds; State 
assistance; local sources; and private participation. Revenue and cost 
estimates that support the metropolitan transportation plan must use an 
inflation rate(s) to reflect ``year of expenditure dollars,'' based on 
reasonable financial principles and information, developed cooperatively 
by the MPO, State(s), and public transportation operator(s).
    (v) For the outer years of the metropolitan transportation plan 
(i.e., beyond the first 10 years), the financial plan may reflect 
aggregate cost ranges/cost bands, as long as the future funding 
source(s) is reasonably expected to be available to support the 
projected cost ranges/cost bands.
    (vi) For nonattainment and maintenance areas, the financial plan 
shall address the specific financial strategies required to ensure the 
implementation of TCMs in the applicable SIP.
    (vii) For illustrative purposes, the financial plan may include 
additional projects that would be included in the adopted transportation 
plan if additional resources beyond those identified in the financial 
plan were to become available.
    (viii) In cases that the FHWA and the FTA find a metropolitan 
transportation plan to be fiscally constrained and a revenue source is 
subsequently removed or substantially reduced (i.e., by legislative or 
administrative actions), the FHWA and the FTA will not withdraw the 
original determination of fiscal constraint; however, in such cases, the 
FHWA and the FTA will not act on an updated or amended metropolitan 
transportation plan that does not reflect the changed revenue situation.
    (12) Pedestrian walkway and bicycle transportation facilities in 
accordance with 23 U.S.C. 217(g).
    (g) The MPO shall consult, as appropriate, with State and local 
agencies responsible for land use management, natural resources, 
environmental protection, conservation, and historic preservation 
concerning the development of the transportation plan. The consultation 
shall involve, as appropriate:
    (1) Comparison of transportation plans with State conservation plans 
or maps, if available; or
    (2) Comparison of transportation plans to inventories of natural or 
historic resources, if available.
    (h) The metropolitan transportation plan should integrate the 
priorities, goals, countermeasures, strategies, or projects for the 
metropolitan planning area contained in the HSIP, including the SHSP 
required under 23 U.S.C. 148, the Public Transportation Agency Safety 
Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan 
in accordance with 49 CFR part 659, as in effect until completion of the 
Public Transportation Agency Safety Plan, and may incorporate or 
reference applicable emergency relief and disaster preparedness plans 
and strategies and policies that support homeland security, as 
appropriate, to safeguard the personal security of all motorized and 
non-motorized users.
    (i) An MPO may, while fitting the needs and complexity of its 
community, voluntarily elect to develop multiple scenarios for 
consideration as part of the development of the metropolitan 
transportation plan.
    (1) An MPO that chooses to develop multiple scenarios under this 
paragraph (i) is encouraged to consider:
    (i) Potential regional investment strategies for the planning 
horizon;
    (ii) Assumed distribution of population and employment;
    (iii) A scenario that, to the maximum extent practicable, maintains 
baseline conditions for the performance areas identified in Sec.  
450.306(d) and measures established under 23 CFR part 490;
    (iv) A scenario that improves the baseline conditions for as many of 
the performance measures identified in Sec.  450.306(d) as possible;
    (v) Revenue constrained scenarios based on the total revenues 
expected to be available over the forecast period of the plan; and
    (vi) Estimated costs and potential revenues available to support 
each scenario.
    (2) In addition to the performance areas identified in 23 U.S.C. 
150(c), 49 U.S.C. 5326(c), and 5329(d), and the

[[Page 137]]

measures established under 23 CFR part 490, MPOs may evaluate scenarios 
developed under this paragraph using locally developed measures.
    (j) The MPO shall provide individuals, affected public agencies, 
representatives of public transportation employees, public ports, 
freight shippers, providers of freight transportation services, private 
providers of transportation (including intercity bus operators, 
employer-based commuting programs, such as carpool program, vanpool 
program, transit benefit program, parking cashout program, shuttle 
program, or telework program), representatives of users of public 
transportation, representatives of users of pedestrian walkways and 
bicycle transportation facilities, representatives of the disabled, and 
other interested parties with a reasonable opportunity to comment on the 
transportation plan using the participation plan developed under Sec.  
450.316(a).
    (k) The MPO shall publish or otherwise make readily available the 
metropolitan transportation plan for public review, including (to the 
maximum extent practicable) in electronically accessible formats and 
means, such as the World Wide Web.
    (l) A State or MPO is not required to select any project from the 
illustrative list of additional projects included in the financial plan 
under paragraph (f)(11) of this section.
    (m) In nonattainment and maintenance areas for transportation-
related pollutants, the MPO, as well as the FHWA and the FTA, must make 
a conformity determination on any updated or amended transportation plan 
in accordance with the Clean Air Act and the EPA transportation 
conformity regulations (40 CFR part 93, subpart A). A 12-month 
conformity lapse grace period will be implemented when an area misses an 
applicable deadline, in accordance with the Clean Air Act and the 
transportation conformity regulations (40 CFR part 93, subpart A). At 
the end of this 12-month grace period, the existing conformity 
determination will lapse. During a conformity lapse, MPOs can prepare an 
interim metropolitan transportation plan as a basis for advancing 
projects that are eligible to proceed under a conformity lapse. An 
interim metropolitan transportation plan consisting of eligible projects 
from, or consistent with, the most recent conforming transportation plan 
and TIP may proceed immediately without revisiting the requirements of 
this section, subject to interagency consultation defined in 40 CFR part 
93, subpart A. An interim metropolitan transportation plan containing 
eligible projects that are not from, or consistent with, the most recent 
conforming transportation plan and TIP must meet all the requirements of 
this section.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56544, Nov. 29, 2017]



Sec.  450.326  Development and content of the transportation 
improvement program (TIP).

    (a) The MPO, in cooperation with the State(s) and any affected 
public transportation operator(s), shall develop a TIP for the 
metropolitan planning area. The TIP shall reflect the investment 
priorities established in the current metropolitan transportation plan 
and shall cover a period of no less than 4 years, be updated at least 
every 4 years, and be approved by the MPO and the Governor. However, if 
the TIP covers more than 4 years, the FHWA and the FTA will consider the 
projects in the additional years as informational. The MPO may update 
the TIP more frequently, but the cycle for updating the TIP must be 
compatible with the STIP development and approval process. The TIP 
expires when the FHWA/FTA approval of the STIP expires. Copies of any 
updated or revised TIPs must be provided to the FHWA and the FTA. In 
nonattainment and maintenance areas subject to transportation conformity 
requirements, the FHWA and the FTA, as well as the MPO, must make a 
conformity determination on any updated or amended TIP, in accordance 
with the Clean Air Act requirements and the EPA's transportation 
conformity regulations (40 CFR part 93, subpart A).
    (b) The MPO shall provide all interested parties with a reasonable 
opportunity to comment on the proposed TIP as required by Sec.  
450.316(a). In addition, in nonattainment area TMAs, the

[[Page 138]]

MPO shall provide at least one formal public meeting during the TIP 
development process, which should be addressed through the participation 
plan described in Sec.  450.316(a). In addition, the MPO shall publish 
or otherwise make readily available the TIP for public review, including 
(to the maximum extent practicable) in electronically accessible formats 
and means, such as the World Wide Web, as described in Sec.  450.316(a).
    (c) The TIP shall be designed such that once implemented, it makes 
progress toward achieving the performance targets established under 
Sec.  450.306(d).
    (d) The TIP shall include, to the maximum extent practicable, a 
description of the anticipated effect of the TIP toward achieving the 
performance targets identified in the metropolitan transportation plan, 
linking investment priorities to those performance targets.
    (e) The TIP shall include capital and non-capital surface 
transportation projects (or phases of projects) within the boundaries of 
the metropolitan planning area proposed for funding under 23 U.S.C. and 
49 U.S.C. Chapter 53 (including transportation alternatives; associated 
transit improvements; Tribal Transportation Program, Federal Lands 
Transportation Program, and Federal Lands Access Program projects; HSIP 
projects; trails projects; accessible pedestrian walkways; and bicycle 
facilities), except the following that may be included:
    (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(d), 
and 49 U.S.C. 5305(d);
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) At the discretion of the State and MPO, metropolitan planning 
projects funded with Surface Transportation Program funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) National planning and research projects funded under 49 U.S.C. 
5314; and
    (7) Project management oversight projects funded under 49 U.S.C. 
5327.
    (f) The TIP shall contain all regionally significant projects 
requiring an action by the FHWA or the FTA whether or not the projects 
are to be funded under title 23 U.S.C. Chapters 1 and 2 or title 49 
U.S.C. Chapter 53 (e.g., addition of an interchange to the Interstate 
System with State, local, and/or private funds and congressionally 
designated projects not funded under 23 U.S.C. or 49 U.S.C. Chapter 53). 
For public information and conformity purposes, the TIP shall include 
all regionally significant projects proposed to be funded with Federal 
funds other than those administered by the FHWA or the FTA, as well as 
all regionally significant projects to be funded with non-Federal funds.
    (g) The TIP shall include, for each project or phase (e.g., 
preliminary engineering, environment/NEPA, right-of-way, design, or 
construction), the following:
    (1) Sufficient descriptive material (i.e., type of work, termini, 
and length) to identify the project or phase;
    (2) Estimated total project cost, which may extend beyond the 4 
years of the TIP;
    (3) The amount of Federal funds proposed to be obligated during each 
program year for the project or phase (for the first year, this includes 
the proposed category of Federal funds and source(s) of non-Federal 
funds. For the second, third, and fourth years, this includes the likely 
category or possible categories of Federal funds and sources of non-
Federal funds);
    (4) Identification of the agencies responsible for carrying out the 
project or phase;
    (5) In nonattainment and maintenance areas, identification of those 
projects that are identified as TCMs in the applicable SIP;
    (6) In nonattainment and maintenance areas, included projects shall 
be specified in sufficient detail (design concept and scope) for air 
quality analysis in accordance with the EPA transportation conformity 
regulations (40 CFR part 93, subpart A); and
    (7) In areas with Americans with Disabilities Act required 
paratransit and key station plans, identification of

[[Page 139]]

those projects that will implement these plans.
    (h) Projects that are not considered to be of appropriate scale for 
individual identification in a given program year may be grouped by 
function, work type, and/or geographic area using the applicable 
classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93. 
In nonattainment and maintenance areas, project classifications must be 
consistent with the ``exempt project'' classifications contained in the 
EPA transportation conformity regulations (40 CFR part 93, subpart A). 
In addition, projects proposed for funding under title 23 U.S.C. Chapter 
2 that are not regionally significant may be grouped in one line item or 
identified individually in the TIP.
    (i) Each project or project phase included in the TIP shall be 
consistent with the approved metropolitan transportation plan.
    (j) The TIP shall include a financial plan that demonstrates how the 
approved TIP can be implemented, indicates resources from public and 
private sources that are reasonably expected to be made available to 
carry out the TIP, and recommends any additional financing strategies 
for needed projects and programs. In developing the TIP, the MPO, 
State(s), and public transportation operator(s) shall cooperatively 
develop estimates of funds that are reasonably expected to be available 
to support TIP implementation in accordance with Sec.  450.314(a). Only 
projects for which construction or operating funds can reasonably be 
expected to be available may be included. In the case of new funding 
sources, strategies for ensuring their availability shall be identified. 
In developing the financial plan, the MPO shall take into account all 
projects and strategies funded under title 23 U.S.C., title 49 U.S.C. 
Chapter 53, and other Federal funds; and regionally significant projects 
that are not federally funded. For purposes of transportation operations 
and maintenance, the financial plan shall contain system-level estimates 
of costs and revenue sources that are reasonably expected to be 
available to adequately operate and maintain Federal-aid highways (as 
defined by 23 U.S.C. 101(a)(6)) and public transportation (as defined by 
title 49 U.S.C. Chapter 53). In addition, for illustrative purposes, the 
financial plan may include additional projects that would be included in 
the TIP if reasonable additional resources beyond those identified in 
the financial plan were to become available. Revenue and cost estimates 
for the TIP must use an inflation rate(s) to reflect ``year of 
expenditure dollars,'' based on reasonable financial principles and 
information, developed cooperatively by the MPO, State(s), and public 
transportation operator(s).
    (k) The TIP shall include a project, or a phase of a project, only 
if full funding can reasonably be anticipated to be available for the 
project within the time period contemplated for completion of the 
project. In nonattainment and maintenance areas, projects included in 
the first 2 years of the TIP shall be limited to those for which funds 
are available or committed. For the TIP, financial constraint shall be 
demonstrated and maintained by year and shall include sufficient 
financial information to demonstrate which projects are to be 
implemented using current and/or reasonably available revenues, while 
federally supported facilities are being adequately operated and 
maintained. In the case of proposed funding sources, strategies for 
ensuring their availability shall be identified in the financial plan 
consistent with paragraph (h) of this section. In nonattainment and 
maintenance areas, the TIP shall give priority to eligible TCMs 
identified in the approved SIP in accordance with the EPA transportation 
conformity regulations (40 CFR part 93, subpart A) and shall provide for 
their timely implementation.
    (l) In cases that the FHWA and the FTA find a TIP to be fiscally 
constrained and a revenue source is subsequently removed or 
substantially reduced (i.e., by legislative or administrative actions), 
the FHWA and the FTA will not withdraw the original determination of 
fiscal constraint. However, in such cases, the FHWA and the FTA will not 
act on an updated or amended TIP that does not reflect the changed 
revenue situation.
    (m) Procedures or agreements that distribute suballocated Surface 
Transportation Program funds to individual

[[Page 140]]

jurisdictions or modes within the MPA by pre-determined percentages or 
formulas are inconsistent with the legislative provisions that require 
the MPO, in cooperation with the State and the public transportation 
operator, to develop a prioritized and financially constrained TIP and 
shall not be used unless they can be clearly shown to be based on 
considerations required to be addressed as part of the metropolitan 
transportation planning process.
    (n) As a management tool for monitoring progress in implementing the 
transportation plan, the TIP should:
    (1) Identify the criteria and process for prioritizing 
implementation of transportation plan elements (including multimodal 
trade-offs) for inclusion in the TIP and any changes in priorities from 
previous TIPs;
    (2) List major projects from the previous TIP that were implemented 
and identify any significant delays in the planned implementation of 
major projects; and
    (3) In nonattainment and maintenance areas, describe the progress in 
implementing any required TCMs, in accordance with 40 CFR part 93.
    (o) In metropolitan nonattainment and maintenance areas, a 12-month 
conformity lapse grace period will be implemented when an area misses an 
applicable deadline, according to the Clean Air Act and the 
transportation conformity regulations (40 CFR part 93, subpart A). At 
the end of this 12-month grace period, the existing conformity 
determination will lapse. During a conformity lapse, MPOs may prepare an 
interim TIP as a basis for advancing projects that are eligible to 
proceed under a conformity lapse. An interim TIP consisting of eligible 
projects from, or consistent with, the most recent conforming 
metropolitan transportation plan and TIP may proceed immediately without 
revisiting the requirements of this section, subject to interagency 
consultation defined in 40 CFR part 93. An interim TIP containing 
eligible projects that are not from, or consistent with, the most recent 
conforming transportation plan and TIP must meet all the requirements of 
this section.
    (p) Projects in any of the first 4 years of the TIP may be advanced 
in place of another project in the first 4 years of the TIP, subject to 
the project selection requirements of Sec.  450.332. In addition, the 
MPO may revise the TIP at any time under procedures agreed to by the 
State, MPO, and public transportation operator(s) consistent with the 
TIP development procedures established in this section, as well as the 
procedures for the MPO participation plan (see Sec.  450.316(a)) and 
FHWA/FTA actions on the TIP (see Sec.  450.330).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56545, Nov. 29, 2017]



Sec.  450.328  TIP revisions and relationship to the STIP.

    (a) An MPO may revise the TIP at any time under procedures agreed to 
by the cooperating parties consistent with the procedures established in 
this part for its development and approval. In nonattainment or 
maintenance areas for transportation-related pollutants, if a TIP 
amendment involves non-exempt projects (per 40 CFR part 93), or is 
replaced with an updated TIP, the MPO and the FHWA and the FTA must make 
a new conformity determination. In all areas, changes that affect fiscal 
constraint must take place by amendment of the TIP. The MPO shall use 
public participation procedures consistent with Sec.  450.316(a) in 
revising the TIP, except that these procedures are not required for 
administrative modifications.
    (b) After approval by the MPO and the Governor, the State shall 
include the TIP without change, directly or by reference, in the STIP 
required under 23 U.S.C. 135. In nonattainment and maintenance areas, 
the FHWA and the FTA must make a conformity finding on the TIP before it 
is included in the STIP. A copy of the approved TIP shall be provided to 
the FHWA and the FTA.
    (c) The State shall notify the MPO and Federal land management 
agencies when it has included a TIP including projects under the 
jurisdiction of these agencies in the STIP.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56545, Nov. 29, 2017]

[[Page 141]]



Sec.  450.330  TIP action by the FHWA and the FTA.

    (a) The FHWA and the FTA shall jointly find that each metropolitan 
TIP is consistent with the metropolitan transportation plan produced by 
the continuing and comprehensive transportation process carried on 
cooperatively by the MPO, the State(s), and the public transportation 
operator(s) in accordance with 23 U.S.C. 134 and 49 U.S.C. 5303. This 
finding shall be based on the self-certification statement submitted by 
the State and MPO under Sec.  450.336, a review of the metropolitan 
transportation plan by the FHWA and the FTA, and upon other reviews as 
deemed necessary by the FHWA and the FTA.
    (b) In nonattainment and maintenance areas, the MPO, as well as the 
FHWA and the FTA, shall determine conformity of any updated or amended 
TIP, in accordance with 40 CFR part 93. After the FHWA and the FTA issue 
a conformity determination on the TIP, the TIP shall be incorporated, 
without change, into the STIP, directly or by reference.
    (c) If an MPO has not updated the metropolitan transportation plan 
in accordance with the cycles defined in Sec.  450.324(c), projects may 
only be advanced from a TIP that was approved and found to conform (in 
nonattainment and maintenance areas) prior to expiration of the 
metropolitan transportation plan and meets the TIP update requirements 
of Sec.  450.326(a). Until the MPO approves (in attainment areas) or the 
FHWA and the FTA issue a conformity determination on (in nonattainment 
and maintenance areas) the updated metropolitan transportation plan, the 
MPO may not amend the TIP.
    (d) In the case of extenuating circumstances, the FHWA and the FTA 
will consider and take appropriate action on requests to extend the STIP 
approval period for all or part of the TIP in accordance with Sec.  
450.220(b).
    (e) If an illustrative project is included in the TIP, no Federal 
action may be taken on that project by the FHWA and the FTA until it is 
formally included in the financially constrained and conforming 
metropolitan transportation plan and TIP.
    (f) Where necessary in order to maintain or establish operations, 
the FHWA and the FTA may approve highway and transit operating 
assistance for specific projects or programs, even though the projects 
or programs may not be included in an approved TIP.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56545, Nov. 29, 2017]



Sec.  450.332  Project selection from the TIP.

    (a) Once a TIP that meets the requirements of 23 U.S.C. 134(j), 49 
U.S.C. 5303(j), and Sec.  450.326 has been developed and approved, the 
first year of the TIP will constitute an ``agreed to'' list of projects 
for project selection purposes and no further project selection action 
is required for the implementing agency to proceed with projects, except 
where the appropriated Federal funds available to the metropolitan 
planning area are significantly less than the authorized amounts or 
where there are significant shifting of projects between years. In this 
case, the MPO, the State, and the public transportation operator(s) if 
requested by the MPO, the State, or the public transportation 
operator(s) shall jointly develop a revised ``agreed to'' list of 
projects. If the State or public transportation operator(s) wishes to 
proceed with a project in the second, third, or fourth year of the TIP, 
the specific project selection procedures stated in paragraphs (b) and 
(c) of this section must be used unless the MPO, the State, and the 
public transportation operator(s) jointly develop expedited project 
selection procedures to provide for the advancement of projects from the 
second, third, or fourth years of the TIP.
    (b) In metropolitan areas not designated as TMAs, the State and/or 
the public transportation operator(s), in cooperation with the MPO shall 
select projects to be implemented using title 23 U.S.C. funds (other 
than Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program projects) or funds under title 
49 U.S.C. Chapter 53, from the approved metropolitan TIP. Tribal 
Transportation

[[Page 142]]

Program, Federal Lands Transportation Program, and Federal Lands Access 
Program projects shall be selected in accordance with procedures 
developed pursuant to 23 U.S.C. 201, 202, 203, and 204.
    (c) In areas designated as TMAs, the MPO shall select all 23 U.S.C. 
and 49 U.S.C. Chapter 53 funded projects (excluding projects on the NHS 
and Tribal Transportation Program, Federal Lands Transportation Program, 
and Federal Lands Access Program) in consultation with the State and 
public transportation operator(s) from the approved TIP and in 
accordance with the priorities in the approved TIP. The State shall 
select projects on the NHS in cooperation with the MPO, from the 
approved TIP. Tribal Transportation Program, Federal Lands 
Transportation Program, and Federal Lands Access Program projects shall 
be selected in accordance with procedures developed pursuant to 23 
U.S.C. 201, 202, 203, and 204.
    (d) Except as provided in Sec.  450.326(e) and Sec.  450.330(f), 
projects not included in the federally approved STIP are not eligible 
for funding with funds under title 23 U.S.C. or 49 U.S.C. Chapter 53.
    (e) In nonattainment and maintenance areas, priority shall be given 
to the timely implementation of TCMs contained in the applicable SIP in 
accordance with the EPA transportation conformity regulations (40 CFR 
part 93, subpart A).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56545, Nov. 29, 2017]



Sec.  450.334  Annual listing of obligated projects.

    (a) In metropolitan planning areas, on an annual basis, no later 
than 90 calendar days following the end of the program year, the State, 
public transportation operator(s), and the MPO shall cooperatively 
develop a listing of projects (including investments in pedestrian 
walkways and bicycle transportation facilities) for which funds under 23 
U.S.C. or 49 U.S.C. Chapter 53 were obligated in the preceding program 
year.
    (b) The listing shall be prepared in accordance with Sec.  
450.314(a) and shall include all federally funded projects authorized or 
revised to increase obligations in the preceding program year, and shall 
at a minimum include the TIP information under Sec.  450.326(g)(1) and 
(4) and identify, for each project, the amount of Federal funds 
requested in the TIP, the Federal funding that was obligated during the 
preceding year, and the Federal funding remaining and available for 
subsequent years.
    (c) The listing shall be published or otherwise made available in 
accordance with the MPO's public participation criteria for the TIP.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56545, Nov. 29, 2017]



Sec.  450.336  Self-certifications and Federal certifications.

    (a) For all MPAs, concurrent with the submittal of the entire 
proposed TIP to the FHWA and the FTA as part of the STIP approval, the 
State and the MPO shall certify at least every 4 years that the 
metropolitan transportation planning process is being carried out in 
accordance with all applicable requirements including:
    (1) 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart;
    (2) In nonattainment and maintenance areas, sections 174 and 176(c) 
and (d) of the Clean Air Act, as amended (42 U.S.C. 7504, 7506(c) and 
(d)) and 40 CFR part 93;
    (3) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000d-1) and 49 CFR part 21;
    (4) 49 U.S.C. 5332, prohibiting discrimination on the basis of race, 
color, creed, national origin, sex, or age in employment or business 
opportunity;
    (5) Section 1101(b) of the FAST Act (Pub. L. 114-357) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in DOT funded projects;
    (6) 23 CFR part 230, regarding the implementation of an equal 
employment opportunity program on Federal and Federal-aid highway 
construction contracts;
    (7) The provisions of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
    (8) The Older Americans Act, as amended (42 U.S.C. 6101), 
prohibiting

[[Page 143]]

discrimination on the basis of age in programs or activities receiving 
Federal financial assistance;
    (9) Section 324 of title 23 U.S.C. regarding the prohibition of 
discrimination based on gender; and
    (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 27 regarding discrimination against individuals with 
disabilities.
    (b) In TMAs, the FHWA and the FTA jointly shall review and evaluate 
the transportation planning process for each TMA no less than once every 
4 years to determine if the process meets the requirements of applicable 
provisions of Federal law and this subpart.
    (1) After review and evaluation of the TMA planning process, the 
FHWA and FTA shall take one of the following actions:
    (i) If the process meets the requirements of this part and the MPO 
and the Governor have approved a TIP, jointly certify the transportation 
planning process;
    (ii) If the process substantially meets the requirements of this 
part and the MPO and the Governor have approved a TIP, jointly certify 
the transportation planning process subject to certain specified 
corrective actions being taken; or
    (iii) If the process does not meet the requirements of this part, 
jointly certify the planning process as the basis for approval of only 
those categories of programs or projects that the FHWA and the FTA 
jointly determine, subject to certain specified corrective actions being 
taken.
    (2) If, upon the review and evaluation conducted under paragraph 
(b)(1)(iii) of this section, the FHWA and the FTA do not certify the 
transportation planning process in a TMA, the Secretary may withhold up 
to 20 percent of the funds attributable to the metropolitan planning 
area of the MPO for projects funded under title 23 U.S.C. and title 49 
U.S.C. Chapter 53 in addition to corrective actions and funding 
restrictions. The withheld funds shall be restored to the MPA when the 
metropolitan transportation planning process is certified by the FHWA 
and FTA, unless the funds have lapsed.
    (3) A certification of the TMA planning process will remain in 
effect for 4 years unless a new certification determination is made 
sooner by the FHWA and the FTA or a shorter term is specified in the 
certification report.
    (4) In conducting a certification review, the FHWA and the FTA shall 
provide opportunities for public involvement within the metropolitan 
planning area under review. The FHWA and the FTA shall consider the 
public input received in arriving at a decision on a certification 
action.
    (5) The FHWA and the FTA shall notify the MPO(s), the State(s), and 
public transportation operator(s) of the actions taken under paragraphs 
(b)(1) and (b)(2) of this section. The FHWA and the FTA will update the 
certification status of the TMA when evidence of satisfactory completion 
of a corrective action(s) is provided to the FHWA and the FTA.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56545, Nov. 29, 2017]



Sec.  450.338  Applicability of NEPA to metropolitan transportation 
plans and programs.

    Any decision by the Secretary concerning a metropolitan 
transportation plan or TIP developed through the processes provided for 
in 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart shall not be 
considered to be a Federal action subject to review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).



Sec.  450.340  Phase-in of new requirements.

    (a) Prior to May 27, 2018, an MPO may adopt a metropolitan 
transportation plan that has been developed using the SAFETEA-LU 
requirements or the provisions and requirements of this part. On or 
after May 27, 2018, an MPO may not adopt a metropolitan transportation 
plan that has not been developed according to the provisions and 
requirements of this part.
    (b) Prior to May 27, 2018 (2 years after the publication date of 
this rule), FHWA/FTA may determine the conformity of, or approve as part 
of a STIP, a TIP that has been developed using SAFETEA-LU requirements 
or the provisions and requirements of this part. On or after May 27, 
2018 (2 years

[[Page 144]]

after the publication date of this rule), FHWA/FTA may only determine 
the conformity of, or approve as part of a STIP, a TIP that has been 
developed according to the provisions and requirements of this part, 
regardless of when the MPO developed the TIP.
    (c) On and after May 27, 2018 (2 years after the issuance date of 
this rule), the FHWA and the FTA will take action (i.e., conformity 
determinations and STIP approvals) on an updated or amended TIP 
developed under the provisions of this part, even if the MPO has not yet 
adopted a new metropolitan transportation plan under the provisions of 
this part, as long as the underlying transportation planning process is 
consistent with the requirements in the MAP-21.
    (d) On or after May 27, 2018 (2 years after the publication date of 
this rule), an MPO may make an administrative modification to a TIP that 
conforms to either the SAFETEA-LU or to the provisions and requirements 
of this part.
    (e) Two years from the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, and 49 
U.S.C. 5329 FHWA/FTA will only determine the conformity of, or approve 
as part of a STIP, a TIP that is based on a metropolitan transportation 
planning process that meets the performance based planning requirements 
in this part and in such a rule.
    (f) Prior to 2 years from the effective date of each rule 
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 
5326, or 49 U.S.C. 5329, an MPO may adopt a metropolitan transportation 
plan that has been developed using the SAFETEA-LU requirements or the 
performance-based planning requirements of this part and in such a rule. 
Two years on or after the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 
U.S.C. 5329, an MPO may only adopt a metropolitan transportation plan 
that has been developed according to the performance-based provisions 
and requirements of this part and in such a rule.
    (g) A newly designated TMA shall implement the congestion management 
process described in Sec.  450.322 within 18 months of designation.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016; 82 
FR 56545, Nov. 29, 2017]





  Sec. Appendix A to Part 450--Linking the Transportation Planning and 
                             NEPA Processes

                         Background and Overview

    This Appendix provides additional information to explain the linkage 
between the transportation planning and project development/National 
Environmental Policy Act (NEPA) processes. It is intended to be non-
binding and should not be construed as a rule of general applicability.
    For 40 years, the Congress has directed that federally funded 
highway and transit projects must flow from metropolitan and statewide 
transportation planning processes (pursuant to 23 U.S.C. 134-135 and 49 
U.S.C. 5303-5306). Over the years, the Congress has refined and 
strengthened the transportation planning process as the foundation for 
project decisions, emphasizing public involvement, consideration of 
environmental and other factors, and a Federal role that oversees the 
transportation planning process but does not second-guess the content of 
transportation plans and programs.
    Despite this statutory emphasis on transportation planning, the 
environmental analyses produced to meet the requirements of the NEPA of 
1969 (42 U.S.C. 4231 et seq.) have often been conducted de novo, 
disconnected from the analyses used to develop long-range transportation 
plans, statewide and metropolitan Transportation Improvement Programs 
(STIPs/TIPs), or planning-level corridor/subarea/feasibility studies. 
When the NEPA and transportation planning processes are not well 
coordinated, the NEPA process may lead to the development of information 
that is more appropriately developed in the planning process, resulting 
in duplication of work and delays in transportation improvements.
    The purpose of this Appendix is to change this culture, by 
supporting congressional intent that statewide and metropolitan 
transportation planning should be the foundation for highway and transit 
project decisions. This Appendix was crafted to recognize that 
transportation planning processes vary across the country. This document 
provides details on how information, analysis, and products from 
transportation planning can be incorporated into and relied upon in NEPA 
documents under existing laws, regardless of when the Notice of Intent 
has

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been published. This Appendix presents environmental review as a 
continuum of sequential study, refinement, and expansion performed in 
transportation planning and during project development/NEPA, with 
information developed and conclusions drawn in early stages utilized in 
subsequent (and more detailed) review stages.
    The information below is intended for use by State departments of 
transportation (State DOTs), metropolitan planning organizations (MPOs), 
and public transportation operators to clarify the circumstances under 
which transportation planning level choices and analyses can be adopted 
or incorporated into the process required by NEPA. Additionally, the 
FHWA and the FTA will work with Federal environmental, regulatory, and 
resource agencies to incorporate the principles of this Appendix in 
their day-to-day NEPA policies and procedures related to their 
involvement in highway and transit projects.
    This Appendix does not extend NEPA requirements to transportation 
plans and programs. The Transportation Efficiency Act for the 21st 
Century (TEA-21) and the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) specifically 
exempted transportation plans and programs from NEPA review. Therefore, 
initiating the NEPA process as part of, or concurrently with, a 
transportation planning study does not subject transportation plans and 
programs to NEPA.
    Implementation of this Appendix by States, MPOs, and public 
transportation operators is voluntary. The degree to which studies, 
analyses, or conclusions from the transportation planning process can be 
incorporated into the project development/NEPA processes will depend 
upon how well they meet certain standards established by NEPA 
regulations and guidance. While some transportation planning processes 
already meet these standards, others will need some modification.
    The remainder of this Appendix document utilizes a ``Question and 
Answer'' format, organized into three primary categories (``Procedural 
Issues,'' ``Substantive Issues,'' and ``Administrative Issues'').

                          I. Procedural Issues

  1. In what format should the transportation planning information be 
                                included?

    To be included in the NEPA process, work from the transportation 
planning process must be documented in a form that can be appended to 
the NEPA document or incorporated by reference. Documents may be 
incorporated by reference if they are readily available so as to not 
impede agency or public review of the action. Any document incorporated 
by reference must be ``reasonably available for inspection by 
potentially interested persons within the time allowed for comment.'' 
Incorporated materials must be cited in the NEPA document and their 
contents briefly described, so that the reader understands why the 
document is cited and knows where to look for further information. To 
the extent possible, the documentation should be in a form such as 
official actions by the MPO, State DOT, or public transportation 
operator and/or correspondence within and among the organizations 
involved in the transportation planning process.

 2. What is a reasonable level of detail for a planning product that is 
 intended to be used in a NEPA document? How does this level of detail 
           compare to what is considered a full NEPA analysis?

    For purposes of transportation planning alone, a planning-level 
analysis does not need to rise to the level of detail required in the 
NEPA process. Rather, it needs to be accurate and up-to-date, and should 
adequately support recommended improvements in the statewide or 
metropolitan long-range transportation plan. The SAFETEA-LU requires 
transportation planning processes to focus on setting a context and 
following acceptable procedures. For example, the SAFETEA-LU requires a 
``discussion of the types of potential environmental mitigation 
activities'' and potential areas for their implementation, rather than 
details on specific strategies. The SAFETEA-LU also emphasizes 
consultation with Federal, State, and Tribal land management, wildlife, 
and regulatory agencies.
    However, the Environmental Assessment (EA) or Environmental Impact 
Statement (EIS) ultimately will be judged by the standards applicable 
under the NEPA regulations and guidance from the Council on 
Environmental Quality (CEQ). To the extent the information incorporated 
from the transportation planning process, standing alone, does not 
contain all of the information or analysis required by NEPA, then it 
will need to be supplemented by other information contained in the EIS 
or EA that would, in conjunction with the information from the plan, 
collectively meet the requirements of NEPA. The intent is not to require 
NEPA studies in the transportation planning process. As an option, the 
NEPA analyses prepared for project development can be integrated with 
transportation planning studies (see the response to Question 9 for 
additional information).

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3. What type and extent of involvement from Federal, Tribal, State, and 
local environmental, regulatory, and resource agencies is needed in the 
transportation planning process in order for planning-level decisions to 
              be more readily accepted in the NEPA process?

    Sections 3005, 3006, and 6001 of the SAFETEA-LU established formal 
consultation requirements for MPOs and State DOTs to employ with 
environmental, regulatory, and resource agencies in the development of 
long-range transportation plans. For example, metropolitan 
transportation plans now ``shall include a discussion of the types of 
potential environmental mitigation activities and potential areas to 
carry out these activities, including activities that may have the 
greatest potential to restore and maintain the environmental functions 
affected by the [transportation] plan,'' and that these planning-level 
discussions ``shall be developed in consultation with Federal, State, 
and Tribal land management, wildlife, and regulatory agencies.'' In 
addition, MPOs ``shall consult, as appropriate, with State and local 
agencies responsible for land use management, natural resources, 
environmental protection, conservation, and historic preservation 
concerning the development of a long-range transportation plan,'' and 
that this consultation ``shall involve, as appropriate, comparison of 
transportation plans with State conservation plans or maps, if 
available, or comparison of transportation plans to inventories of 
natural or historic resources, if available.'' Similar SAFETEA-LU 
language addresses the development of the long-range statewide 
transportation plan, with the addition of Tribal conservation plans or 
maps to this planning-level ``comparison.''
    In addition, section 6002 of the SAFETEA-LU established several 
mechanisms for increased efficiency in environmental reviews for project 
decision-making. For example, the term ``lead agency'' collectively 
means the U.S. Department of Transportation and a State or local 
governmental entity serving as a joint lead agency for the NEPA process. 
In addition, the lead agency is responsible for inviting and designating 
``participating agencies'' (i.e., other Federal or non-Federal agencies 
that may have an interest in the proposed project). Any Federal agency 
that is invited by the lead agency to participate in the environmental 
review process for a project shall be designated as a participating 
agency by the lead agency unless the invited agency informs the lead 
agency, in writing, by the deadline specified in the invitation that the 
invited agency:
    (a) Has no jurisdiction or authority with respect to the project; 
(b) has no expertise or information relevant to the project; and (c) 
does not intend to submit comments on the project.
    Past successful examples of using transportation planning products 
in NEPA analysis are based on early and continuous involvement of 
environmental, regulatory, and resource agencies. Without this early 
coordination, environmental, regulatory, and resource agencies are more 
likely to expect decisions made or analyses conducted in the 
transportation planning process to be revisited during the NEPA process. 
Early participation in transportation planning provides environmental, 
regulatory, and resource agencies better insight into the needs and 
objectives of the locality. Additionally, early participation provides 
an important opportunity for environmental, regulatory, and resource 
agency concerns to be identified and addressed early in the process, 
such as those related to permit applications. Moreover, Federal, Tribal, 
State, and local environmental, regulatory, and resource agencies are 
able to share data on particular resources, which can play a critical 
role in determining the feasibility of a transportation solution with 
respect to environmental impacts. The use of other agency planning 
outputs can result in a transportation project that could support 
multiple goals (transportation, environmental, and community). Further, 
planning decisions by these other agencies may have impacts on long-
range transportation plans and/or the STIP/TIP, thereby providing 
important input to the transportation planning process and advancing 
integrated decision-making.

   4. What is the procedure for using decisions or analyses from the 
                    transportation planning process?

    The lead agencies jointly decide, and must agree, on what processes 
and consultation techniques are used to determine the transportation 
planning products that will be incorporated into the NEPA process. At a 
minimum, a robust scoping/early coordination process (which explains to 
Federal and State environmental, regulatory, and resource agencies and 
the public the information and/or analyses utilized to develop the 
planning products, how the purpose and need was developed and refined, 
and how the design concept and scope were determined) should play a 
critical role in leading to informed decisions by the lead agencies on 
the suitability of the transportation planning information, analyses, 
documents, and decisions for use in the NEPA process. As part of a 
rigorous scoping/early coordination process, the FHWA and the FTA should 
ensure that the transportation planning results are appropriately 
documented, shared, and used.

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   5. To what extent can the FHWA/FTA provide up-front assurance that 
decisions and additional investments made in the transportation planning 
 process will allow planning-level decisions and analyses to be used in 
                            the NEPA process?

    There are no guarantees. However, the potential is greatly improved 
for transportation planning processes that address the ``3-C'' planning 
principles (comprehensive, cooperative, and continuous); incorporate the 
intent of NEPA through the consideration of natural, physical, and 
social effects; involve environmental, regulatory, and resource 
agencies; thoroughly document the transportation planning process 
information, analysis, and decision; and vet the planning results 
through the applicable public involvement processes.

  6. What considerations will the FHWA/FTA take into account in their 
  review of transportation planning products for acceptance in project 
                            development/NEPA?

    The FHWA and the FTA will give deference to decisions resulting from 
the transportation planning process if the FHWA and FTA determine that 
the planning process is consistent with the ``3-C'' planning principles 
and when the planning study process, alternatives considered, and 
resulting decisions have a rational basis that is thoroughly documented 
and vetted through the applicable public involvement processes. 
Moreover, any applicable program-specific requirements (e.g., those of 
the Congestion Mitigation and Air Quality Improvement Program or the 
FTA's Capital Investment Grant program) also must be met.
    The NEPA requires that the FHWA and the FTA be able to stand behind 
the overall soundness and credibility of analyses conducted and 
decisions made during the transportation planning process if they are 
incorporated into a NEPA document. For example, if systems-level or 
other broad objectives or choices from the transportation plan are 
incorporated into the purpose and need statement for a NEPA document, 
the FHWA and the FTA should not revisit whether these are the best 
objectives or choices among other options. Rather, the FHWA and the FTA 
review would include making sure that objectives or choices derived from 
the transportation plan were: Based on transportation planning factors 
established by Federal law; reflect a credible and articulated planning 
rationale; founded on reliable data; and developed through 
transportation planning processes meeting FHWA and FTA statutory and 
regulatory requirements. In addition, the basis for the goals and 
choices must be documented and included in the NEPA document. The FHWA/
FTA reviewers do not need to review whether assumptions or analytical 
methods used in the studies are the best available, but, instead, need 
to assure that such assumptions or analytical methods are reasonable, 
scientifically acceptable, and consistent with goals, objectives, and 
policies set forth in long-range transportation plans. This review would 
include determining whether: (a) Assumptions have a rational basis and 
are up-to-date and (b) data, analytical methods, and modeling techniques 
are reliable, defensible, reasonably current, and meet data quality 
requirements.

                         II. Substantive Issues

                     General Issues To Be Considered

   7. What should be considered in order to rely upon transportation 
                        planning studies in NEPA?

    The following questions should be answered prior to accepting 
studies conducted during the transportation planning process for use in 
NEPA. While not a ``checklist,'' these questions are intended to guide 
the practitioner's analysis of the planning products:
     How much time has passed since the planning 
studies and corresponding decisions were made?
     Were the future year policy assumptions used in 
the transportation planning process related to land use, economic 
development, transportation costs, and network expansion consistent with 
those to be used in the NEPA process?
     Is the information still relevant/valid?
     What changes have occurred in the area since the 
study was completed?
     Is the information in a format that can be 
appended to an environmental document or reformatted to do so?
     Are the analyses in a planning-level report or 
document based on data, analytical methods, and modeling techniques that 
are reliable, defensible, and consistent with those used in other 
regional transportation studies and project development activities?
     Were the FHWA and FTA, other agencies, and the 
public involved in the relevant planning analysis and the corresponding 
planning decisions?
     Were the planning products available to other 
agencies and the public during NEPA scoping?
     During NEPA scoping, was a clear connection 
between the decisions made in planning and those to be made during the 
project development stage explained to the public and others? What was 
the response?
     Are natural resource and land use plans being 
informed by transportation planning products, and vice versa?

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                            Purpose and Need

8. How can transportation planning be used to shape a project's purpose 
                      and need in the NEPA process?

    A sound transportation planning process is the primary source of the 
project purpose and need. Through transportation planning, State and 
local governments, with involvement of stakeholders and the public, 
establish a vision for the region's future transportation system, define 
transportation goals and objectives for realizing that vision, decide 
which needs to address, and determine the timeframe for addressing these 
issues. The transportation planning process also provides a potential 
forum to define a project's purpose and need by framing the scope of the 
problem to be addressed by a proposed project. This scope may be further 
refined during the transportation planning process as more information 
about the transportation need is collected and consultation with the 
public and other stakeholders clarifies other issues and goals for the 
region.
    23 U.S.C. 139(f), as amended by the SAFETEA-LU Section 6002, 
provides additional focus regarding the definition of the purpose and 
need and objectives. For example, the lead agency, as early as 
practicable during the environmental review process, shall provide an 
opportunity for involvement by participating agencies and the public in 
defining the purpose and need for a project. The statement of purpose 
and need shall include a clear statement of the objectives that the 
proposed action is intended to achieve, which may include: (a) Achieving 
a transportation objective identified in an applicable statewide or 
metropolitan transportation plan; (b) supporting land use, economic 
development, or growth objectives established in applicable Federal, 
State, local, or Tribal plans; and (c) serving national defense, 
national security, or other national objectives, as established in 
Federal laws, plans, or policies.
    The transportation planning process can be utilized to develop the 
purpose and need in the following ways:
    (a) Goals and objectives from the transportation planning process 
may be part of the project's purpose and need statement;
    (b) A general travel corridor or general mode or modes (e.g., 
highway, transit, or a highway/transit combination) resulting from 
planning analyses may be part of the project's purpose and need 
statement;
    (c) If the financial plan for a metropolitan transportation plan 
indicates that funding for a specific project will require special 
funding sources (e.g., tolls or public-private financing), such 
information may be included in the purpose and need statement; or
    (d) The results of analyses from management systems (e.g., 
congestion, pavement, bridge, and/or safety) may shape the purpose and 
need statement.
    The use of these planning-level goals and choices must be 
appropriately explained during NEPA scoping and in the NEPA document.
    Consistent with NEPA, the purpose and need statement should be a 
statement of a transportation problem, not a specific solution. However, 
the purpose and need statement should be specific enough to generate 
alternatives that may potentially yield real solutions to the problem 
at-hand. A purpose and need statement that yields only one alternative 
may indicate a purpose and need that is too narrowly defined.
    Short of a fully integrated transportation decision-making process, 
many State DOTs develop information for their purpose and need 
statements when implementing interagency NEPA/Section 404 process merger 
agreements. These agreements may need to be expanded to include 
commitments to share and utilize transportation planning products when 
developing a project's purpose and need.

     9. Under what conditions can the NEPA process be initiated in 
            conjunction with transportation planning studies?

    The NEPA process may be initiated in conjunction with transportation 
planning studies in a number of ways. A common method is the ``tiered 
EIS,'' in which the first-tier EIS evaluates general travel corridors, 
modes, and/or packages of projects at a planning level of detail, 
leading to the refinement of purpose and need and, ideally, selection of 
the design concept and scope for a project or series of projects. 
Subsequently, second-tier NEPA review(s) of the resulting projects would 
be performed in the usual way. The first-tier EIS uses the NEPA process 
as a tool to involve environmental, regulatory, and resource agencies 
and the public in the planning decisions, as well as to ensure the 
appropriate consideration of environmental factors in these planning 
decisions.
    Corridor or subarea analyses/studies are another option when the 
long-range transportation plan leaves open the possibility of multiple 
approaches to fulfill its goals and objectives. In such cases, the 
formal NEPA process could be initiated through publication of a NOI in 
conjunction with a corridor or subarea planning study.

                              Alternatives

  10. In the context of this Appendix, what is the meaning of the term 
                            ``alternatives''?

    This Appendix uses the term ``alternatives'' as specified in the 
NEPA regulations (40 CFR 1502.14), where it is defined in its broadest 
sense to include everything from

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major modal alternatives and location alternatives to minor design 
changes that would mitigate adverse impacts. This Appendix does not use 
the term as it is used in many other contexts (e.g., ``prudent and 
feasible alternatives'' under Section 4(f) of the Department of 
Transportation Act or the ``Least Environmentally Damaging Practicable 
Alternative'' under the Clean Water Act.

    11. Under what circumstances can alternatives be eliminated from 
detailed consideration during the NEPA process based on information and 
           analysis from the transportation planning process?

    There are two ways in which the transportation planning process can 
begin limiting the alternative solutions to be evaluated during the NEPA 
process: (a) Shaping the purpose and need for the project; or (b) 
evaluating alternatives during planning studies and eliminating some of 
the alternatives from detailed study in the NEPA process prior to its 
start. Each approach requires careful attention, and is summarized 
below.
    (a) Shaping the Purpose and Need for the Project: The transportation 
planning process should shape the purpose and need and, thereby, the 
range of reasonable alternatives. With proper documentation and public 
involvement, a purpose and need derived from the planning process can 
legitimately narrow the alternatives analyzed in the NEPA process. See 
the response to Question 8 for further discussion on how the planning 
process can shape the purpose and need used in the NEPA process.
    For example, the purpose and need may be shaped by the 
transportation planning process in a manner that consequently narrows 
the range of alternatives that must be considered in detail in the NEPA 
document when:
    (1) The transportation planning process has selected a general 
travel corridor as best addressing identified transportation problems 
and the rationale for the determination in the planning document is 
reflected in the purpose and need statement of the subsequent NEPA 
document;
    (2) The transportation planning process has selected a general mode 
(e.g., highway, transit, or a highway/transit combination) that 
accomplishes its goals and objectives, and these documented 
determinations are reflected in the purpose and need statement of the 
subsequent NEPA document; or
    (3) The transportation planning process determines that the project 
needs to be funded by tolls or other non-traditional funding sources in 
order for the long-range transportation plan to be fiscally constrained 
or identifies goals and objectives that can only be met by toll roads or 
other non-traditional funding sources, and that determination of those 
goals and objectives is reflected in the purpose and need statement of 
the subsequent NEPA document.
    (b) Evaluating and Eliminating Alternatives During the 
Transportation Planning Process: The evaluation and elimination of 
alternatives during the transportation planning process can be 
incorporated by reference into a NEPA document under certain 
circumstances. In these cases, the planning study becomes part of the 
NEPA process and provides a basis for screening out alternatives. As 
with any part of the NEPA process, the analysis of alternatives to be 
incorporated from the process must have a rational basis that has been 
thoroughly documented (including documentation of the necessary and 
appropriate vetting through the applicable public involvement 
processes). This record should be made available for public review 
during the NEPA scoping process.
    See responses to Questions 4, 5, 6, and 7 for additional elements to 
consider with respect to acceptance of planning products for NEPA 
documentation and the response to Question 12 on the information or 
analysis from the transportation planning process necessary for 
supporting the elimination of an alternative(s) from detailed 
consideration in the NEPA process.
    Development of planning Alternatives Analysis studies, required 
prior to MAP-21 for projects seeking funds through FTA's Capital 
Investment Grant program, are now optional, but may still be used to 
narrow the alternatives prior to the NEPA review, just as other planning 
studies may be used. In fact, through planning studies, FTA may be able 
to narrow the alternatives considered in detail in the NEPA document to 
the No-Build (No Action) alternative and the Locally Preferred 
Alternative. If the planning process has included the analysis and 
stakeholder involvement that would be undertaken in a first tier NEPA 
process, then the alternatives screening conducted in the transportation 
planning process may be incorporated by reference, described, and relied 
upon in the project-level NEPA document. At that point, the project-
level NEPA analysis can focus on the remaining alternatives.

   12. What information or analysis from the transportation planning 
   process is needed in an EA or EIS to support the elimination of an 
               alternative(s) from detailed consideration?

    The section of the EA or EIS that discusses alternatives considered 
but eliminated from detailed consideration should:
    (a) Identify any alternatives eliminated during the transportation 
planning process (this could include broad categories of alternatives, 
as when a long-range transportation plan selects a general travel 
corridor based on a corridor study, thereby eliminating all alternatives 
along other alignments);

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    (b) Briefly summarize the reasons for eliminating the alternative; 
and
    (c) Include a summary of the analysis process that supports the 
elimination of alternatives (the summary should reference the relevant 
sections or pages of the analysis or study) and incorporate it by 
reference or append it to the NEPA document.
    Any analyses or studies used to eliminate alternatives from detailed 
consideration should be made available to the public and participating 
agencies during the NEPA scoping process and should be reasonably 
available during comment periods.
    Alternatives passed over during the transportation planning process 
because they are infeasible or do not meet the NEPA ``purpose and need'' 
can be omitted from the detailed analysis of alternatives in the NEPA 
document, as long as the rationale for elimination is explained in the 
NEPA document. Alternatives that remain ``reasonable'' after the 
planning-level analysis must be addressed in the EIS, even when they are 
not the preferred alternative. When the proposed action evaluated in an 
EA involves unresolved conflicts concerning alternative uses of 
available resources, NEPA requires that appropriate alternatives be 
studied, developed, and described.

           Affected Environment and Environmental Consequences

  13. What types of planning products provide analysis of the affected 
environment and environmental consequences that are useful in a project-
                    level NEPA analysis and document?

    The following planning products are valuable inputs to the 
discussion of the affected environment and environmental consequences 
(both its current state and future state in the absence of the proposed 
action) in the project-level NEPA analysis and document:
     Regional development and growth analyses;
     Local land use, growth management, or development 
plans; and
     Population and employment projections.
    The following are types of information, analysis, and other products 
from the transportation planning process that can be used in the 
discussion of the affected environment and environmental consequences in 
an EA or EIS:
    (a) Geographic information system (GIS) overlays showing the past, 
current, or predicted future conditions of the natural and built 
environments;
    (b) Environmental scans that identify environmental resources and 
environmentally sensitive areas;
    (c) Descriptions of airsheds and watersheds;
    (d) Demographic trends and forecasts;
    (e) Projections of future land use, natural resource conservation 
areas, and development; and
    (f) The outputs of natural resource planning efforts, such as 
wildlife conservation plans, watershed plans, special area management 
plans, and multiple species habitat conservation plans.
    However, in most cases, the assessment of the affected environment 
and environmental consequences conducted during the transportation 
planning process will not be detailed or current enough to meet NEPA 
standards and, thus, the inventory and evaluation of affected resources 
and the analysis of consequences of the alternatives will need to be 
supplemented with more refined analysis and possibly site-specific 
details during the NEPA process.

14. What information from the transportation planning process is useful 
     in describing a baseline for the NEPA analysis of indirect and 
                           cumulative impacts?

    Because the nature of the transportation planning process is to look 
broadly at future land use, development, population increases, and other 
growth factors, the planning analysis can provide the basis for the 
assessment of indirect and cumulative impacts required under NEPA. The 
consideration in the transportation planning process of development, 
growth, and consistency with local land use, growth management, or 
development plans, as well as population and employment projections, 
provides an overview of the multitude of factors in an area that are 
creating pressures not only on the transportation system, but on the 
natural ecosystem and important environmental and community resources. 
An analysis of all reasonably foreseeable actions in the area also 
should be a part of the transportation planning process. This planning-
level information should be captured and utilized in the analysis of 
indirect and cumulative impacts during the NEPA process.
    To be used in the analysis of indirect and cumulative impacts, such 
information should:
    (a) Be sufficiently detailed that differences in consequences of 
alternatives can be readily identified;
    (b) Be based on current data (e.g., data from the most recent 
Census) or be updated by additional information;
    (c) Be based on reasonable assumptions that are clearly stated; and/
or
    (d) Rely on analytical methods and modeling techniques that are 
reliable, defensible, and reasonably current.

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                        Environmental Mitigation

  15. How can planning-level efforts best support advance mitigation, 
    mitigation banking, and priorities for environmental mitigation 
                              investments?

    A lesson learned from efforts to establish mitigation banks and 
advance mitigation agreements and alternative mitigation options is the 
importance of beginning interagency discussions during the 
transportation planning process. Development pressures, habitat 
alteration, complicated real estate transactions, and competition for 
potential mitigation sites by public and private project proponents can 
encumber the already difficult task of mitigating for ``like'' value and 
function and reinforce the need to examine mitigation strategies as 
early as possible.
    Robust use of remote sensing, GIS, and decision support systems for 
evaluating conservation strategies are all contributing to the 
advancement of natural resource and environmental planning. The outputs 
from environmental planning can now better inform transportation 
planning processes, including the development of mitigation strategies, 
so that transportation and conservation goals can be optimally met. For 
example, long-range transportation plans can be screened to assess the 
effect of general travel corridors or density, on the viability of 
sensitive plant and animal species or habitats. This type of screening 
provides a basis for early collaboration among transportation and 
environmental staffs, the public, and regulatory agencies to explore 
areas where impacts must be avoided and identify areas for mitigation 
investments. This can lead to mitigation strategies that are both more 
economical and more effective from an environmental stewardship 
perspective than traditional project-specific mitigation measures.

                       III. Administrative Issues

 16. Are Federal funds eligible to pay for these additional, or more in 
        depth, environmental studies in transportation planning?

    Yes. For example, the following FHWA and FTA funds may be utilized 
for conducting environmental studies and analyses within transportation 
planning:
     FHWA planning and research funds, as defined 
under 23 CFR part 420 (e.g., Metropolitan Planning (PL), Statewide 
Planning and Research (SPR), National Highway System (NHS), STP, and 
Equity Bonus); and
     FTA planning and research funds (49 U.S.C. 5303), 
urban formula funds (49 U.S.C. 5307), and (in limited circumstances) 
transit capital investment funds (49 U.S.C. 5309).
    The eligible transportation planning-related uses of these funds may 
include: (a) Conducting feasibility or subarea/corridor needs studies 
and (b) developing system-wide environmental information/inventories 
(e.g., wetland banking inventories or standards to identify historically 
significant sites). Particularly in the case of PL and SPR funds, the 
proposed expenditure must be closely related to the development of 
transportation plans and programs under 23 U.S.C. 134-135 and 49 U.S.C. 
5303-5306.
    For FHWA funding programs, once a general travel corridor or 
specific project has progressed to a point in the preliminary 
engineering/NEPA phase that clearly extends beyond transportation 
planning, additional in-depth environmental studies must be funded 
through the program category for which the ultimate project qualifies 
(e.g., NHS, STP, Interstate Maintenance, and/or Bridge), rather than PL 
or SPR funds.
    Another source of funding is FHWA's Transportation Enhancement 
program, which may be used for activities such as: conducting 
archeological planning and research; developing inventories such as 
those for historic bridges and highways, and other surface 
transportation-related structures; conducting studies to determine the 
extent of water pollution due to highway runoff; and conducting studies 
to reduce vehicle-caused wildlife mortality while maintaining habitat 
connectivity.
    The FHWA and the FTA encourage State DOTs, MPOs, and public 
transportation operators to seek partners for some of these studies from 
environmental, regulatory, and resource agencies, non-government 
organizations, and other government and private sector entities with 
similar data needs, or environmental interests. In some cases, these 
partners may contribute data and expertise to the studies, as well as 
funding.

   17. What staffing or organizational arrangements may be helpful in 
     allowing planning products to be accepted in the NEPA process?

    Certain organizational and staffing arrangements may support a more 
integrated approach to the planning/NEPA decision-making continuum. In 
many cases, planning organizations do not have environmental expertise 
on staff or readily accessible. Likewise, the review and regulatory 
responsibilities of many environmental, regulatory, and resource 
agencies make involvement in the transportation planning process a 
challenge for staff resources. These challenges may be partially met by 
improved use of the outputs of each agency's planning resources and by 
augmenting their capabilities through greater use of GIS and remote 
sensing technologies (see http://www.gis.fhwa.dot.gov/ for additional 
information on the use of GIS). Sharing databases and the planning 
products of local land use decision-makers and State and Federal 
environmental, regulatory, and resource agencies also provide 
efficiencies in

[[Page 152]]

acquiring and sharing the data and information needed for both 
transportation planning and NEPA work.
    Additional opportunities such as shared staff, training across 
disciplines, and (in some cases) reorganizing to eliminate structural 
divisions between planning and NEPA practitioners may also need to be 
considered in order to better integrate NEPA considerations into 
transportation planning studies. The answers to the following two 
questions also contain useful information on training and staffing 
opportunities.

  18. How have environmental, regulatory, and resource agency liaisons 
 (Federally and State DOT funded positions) and partnership agreements 
been used to provide the expertise and interagency participation needed 
 to enhance the consideration of environmental factors in the planning 
                                process?

    For several years, States have utilized Federal and State 
transportation funds to support focused and accelerated project review 
by a variety of local, State, Tribal, and Federal agencies. While 
Section 1309(e) of the TEA-21 and its successor in SAFETEA-LU section 
6002 speak specifically to transportation project streamlining, there 
are other authorities that have been used to fund positions, such as the 
Intergovernmental Cooperation Act (31 U.S.C. 6505). In addition, long-
term, on-call consultant contracts can provide backfill support for 
staff that are detailed to other parts of an agency for temporary 
assignments. At last count (as of 2015), over 200 positions were being 
funded. Additional information on interagency funding agreements is 
available at: http://environment.fhwa.dot.gov/strmlng/igdocs/index.htm.
    Moreover, every State has advanced a variety of stewardship and 
streamlining initiatives that necessitate early involvement of 
environmental, regulatory, and resource agencies in the project 
development process. Such process improvements have: addressed the 
exchange of data to support avoidance and impact analysis; established 
formal and informal consultation and review schedules; advanced 
mitigation strategies; and resulted in a variety of programmatic 
reviews. Interagency agreements and work plans have evolved to describe 
performance objectives, as well as specific roles and responsibilities 
related to new streamlining initiatives. Some States have improved 
collaboration and efficiency by co-locating environmental, regulatory, 
and resource and transportation agency staff.

   19. What training opportunities are available to MPOs, State DOTs, 
   public transportation operators and environmental, regulatory, and 
resource agencies to assist in their understanding of the transportation 
                      planning and NEPA processes?

    Both the FHWA and the FTA offer a variety of transportation 
planning, public involvement, and NEPA courses through the National 
Highway Institute and/or the National Transit Institute. Of particular 
note is the Linking Planning and NEPA Workshop, which provides a forum 
and facilitated group discussion among and between State DOT; MPO; 
Federal, Tribal, and State environmental, regulatory, and resource 
agencies; and FHWA/FTA representatives (at both the executive and 
program manager levels) to develop a State-specific action plan that 
will provide for strengthened linkages between the transportation 
planning and NEPA processes.
    Moreover, the U.S. Fish and Wildlife Service offers Green 
Infrastructure Workshops that are focused on integrating planning for 
natural resources (``green infrastructure'') with the development, 
economic, and other infrastructure needs of society (``gray 
infrastructure'').
    Robust planning and multi-issue environmental screening requires 
input from a wide variety of disciplines, including information 
technology; transportation planning; the NEPA process; and regulatory, 
permitting, and environmental specialty areas (e.g., noise, air quality, 
and biology). Senior managers at transportation and partner agencies can 
arrange a variety of individual training programs to support learning 
curves and skill development that contribute to a strengthened link of 
the transportation planning and NEPA processes. Formal and informal 
mentoring on an intra-agency basis can be arranged. Employee exchanges 
within and between agencies can be periodically scheduled, and persons 
involved with professional leadership programs can seek temporary 
assignments with partner agencies.

                IV. Additional Information on This Topic

    Valuable sources of information are FHWA's environment Web site 
(http://www.fhwa.dot.gov/environment/index.htm) and FTA's environmental 
streamlining Web site (http://www.environment.fta.dot.gov). Another 
source of information and case studies is NCHRP Report 8-38 
(Consideration of Environmental Factors in Transportation Systems 
Planning), which is available at http://www4.trb.org/trb/crp.nsf/
All??????38. In addition, AASHTO's Center for Environmental Excellence 
Web site is continuously updated with news and links to information of 
interest to transportation and environmental professionals 
(www.transportation.environment.org).

[[Page 153]]



PART 460_PUBLIC ROAD MILEAGE FOR APPORTIONMENT OF HIGHWAY SAFETY FUNDS--
Table of Contents



Sec.
460.1 Purpose.
460.2 Definitions.
460.3 Procedures.

    Authority: 23 U.S.C. 315, 402(c); 49 CFR 1.48.

    Source: 40 FR 44322, Sept. 26, 1975, unless otherwise noted.



Sec.  460.1  Purpose.

    The purpose of this part is to prescribe the policies and procedures 
followed in identifying and reporting public road mileage for 
utilization in the statutory formula for the apportionment of highway 
safety funds under 23 U.S.C. 402(c).



Sec.  460.2  Definitions.

    As used in this part:
    (a) Public road means any road under the jurisdiction of and 
maintained by a public authority and open to public travel.
    (b) Public authority means a Federal, State, county, town, or 
township, Indian tribe, municipal or other local government or 
instrumentality thereof, with authority to finance, build, operate or 
maintain toll or toll-free highway facilities.
    (c) Open to public travel means that the road section is available, 
except during scheduled periods, extreme weather or emergency 
conditions, passable by four-wheel standard passenger cars, and open to 
the general public for use without restrictive gates, prohibitive signs, 
or regulation other than restrictions based on size, weight, or class of 
registration. Toll plazas of public toll roads are not considered 
restrictive gates.
    (d) Maintenance means the preservation of the entire highway, 
including surfaces, shoulders, roadsides, structures, and such traffic 
control devices as are necessary for its safe and efficient utilization.
    (e) State means any one of the 50 States, the District of Columbia, 
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands. For the purpose of the 
application of 23 U.S.C. 402 on Indian reservations, State and Governor 
of a State include the Secretary of the Interior.

[40 FR 44322, Sept. 26, 1975, as amended at 76 FR 12849, Mar. 9, 2011]



Sec.  460.3  Procedures.

    (a) General requirements. 23 U.S.C. 402(c) provides that funds 
authorized to carry out section 402 shall be apportioned according to a 
formula based on population and public road mileage of each State. 
Public road mileage shall be determined as of the end of the calendar 
year preceding the year in which the funds are apportioned and shall be 
certified to by the Governor of the State or his designee and subject to 
the approval of the Federal Highway Administrator.
    (b) State public road mileage. Each State must annually submit a 
certification of public road mileage within the State to the Federal 
Highway Administration Division Administrator by the date specified by 
the Division Administrator. Public road mileage on Indian reservations 
within the State shall be identified and included in the State mileage 
and in computing the State's apportionment.
    (c) Indian reservation public road mileage. The Secretary of the 
Interior or his designee will submit a certification of public road 
mileage within Indian reservations to the Federal Highway Administrator 
by June 1 of each year.
    (d) Action by the Federal Highway Administrator. (1) The 
certification of Indian reservation public road mileage, and the State 
certifications of public road mileage together with comments thereon, 
will be reviewed by the Federal Highway Administrator. He will make a 
final determination of the public road mileage to be used as the basis 
for apportionment of funds under 23 U.S.C. 402(c). In any instance in 
which the Administrator's final determination differs from the public 
road mileage certified by a State or the Secretary of the Interior, the 
Administrator will advise the State or the Secretary of the Interior of 
his final determination and the reasons therefor.

[[Page 154]]

    (2) If a State fails to submit a certification of public road 
mileage as required by this part, the Federal Highway Administrator may 
make a determination of the State's public road mileage for the purpose 
of apportioning funds under 23 U.S.C. 402(c). The State's public road 
mileage determined by the Administrator under this subparagraph may not 
exceed 90 percent of the State's public road mileage utilized in 
determining the most recent apportionment of funds under 23 U.S.C. 
402(c).



PART 470_HIGHWAY SYSTEMS--Table of Contents



                  Subpart A_Federal-aid Highway Systems

Sec.
470.101 Purpose.
470.103 Definitions.
470.105 Urban area boundaries and highway functional classification.
470.107 Federal-aid highway systems.
470.109 System procedures--General.
470.111 Interstate System procedures.
470.113 National Highway System procedures.
470.115 Approval authority.

Appendix A to Subpart A of Part 470--Guidance Criteria for Evaluating 
          Requests for Interstate System Designations under 23 U.S.C. 
          103(c)(4)(A) and (B)
Appendix B to Subpart A of Part 470--Designation of Segments of Section 
          332(a)(2) Corridors as Parts of the Interstate System
Appendix C to Subpart A of Part 470--Policy for the Signing and 
          Numbering of Future Interstate Corridors Designated by Section 
          332 of the NHS Designation Act of 1995 or Designated Under 23 
          U.S.C. 103(c)(4)(B)
Appendix D to Subpart A of Part 470--Guidance Criteria for Evaluating 
          Requests for Modifications to the National Highway System

Subparts B-C [Reserved]

    Authority: 23 U.S.C. 103(b)(2), 103(c), 134, 135, and 315; and 49 
CFR 1.48(b).

    Source: 40 FR 42344, Sept. 12, 1975, unless otherwise noted. 
Redesignated at 41 FR 51396, Nov. 22, 1976.



                  Subpart A_Federal-aid Highway Systems

    Source: 62 FR 33355, June 19, 1997, unless otherwise noted.



Sec.  470.101  Purpose.

    This part sets forth policies and procedures relating to the 
identification of Federal-aid highways, the functional classification of 
roads and streets, the designation of urban area boundaries, and the 
designation of routes on the Federal-aid highway systems.



Sec.  470.103  Definitions.

    Except as otherwise provided in this part, terms defined in 23 
U.S.C. 101(a) are used in this part as so defined.
    Consultation means that one party confers with another identified 
party and, prior to taking action(s), considers that party's views.
    Cooperation means that the parties involved in carrying out the 
planning, programming and management systems processes work together to 
achieve a common goal or objective.
    Coordination means the comparison of the transportation plans, 
programs, and schedules of one agency with related plans, programs, and 
schedules of other agencies or entities with legal standing, and 
adjustment of plans, programs, and schedules to achieve general 
consistency.
    Federal-aid highway systems means the National Highway System and 
the Dwight D. Eisenhower National System of Interstate and Defense 
Highways (the ``Interstate System'').
    Federal-aid highways means highways on the Federal-aid highway 
systems and all other public roads not classified as local roads or 
rural minor collectors.
    Governor means the chief executive of the State and includes the 
Mayor of the District of Columbia.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for the metropolitan planning 
area in which the metropolitan transportation planning process required 
by 23 U.S.C. 134 and 49 U.S.C. 5303-5305 must be carried out.
    Responsible local officials means--
    (1) In urbanized areas, principal elected officials of general 
purpose local governments acting through the Metropolitan Planning 
Organization designated by the Governor, or
    (2) In rural areas and urban areas not within any urbanized area, 
principal

[[Page 155]]

elected officials of general purpose local governments.
    State means any one of the fifty States, the District of Columbia, 
Puerto Rico, or, for purposes of functional classification of highways, 
the Virgin Islands, American Samoa, Guam, or the Commonwealth of the 
Northern Marianas.



Sec.  470.105  Urban area boundaries and highway functional classification.

    (a) Urban area boundaries. Routes on the Federal-aid highway systems 
may be designated in both rural and urban areas. Guidance for 
determining the boundaries of urbanized and nonurbanized urban areas is 
provided in the FHWA's Functional Classification Guidelines. \1\
---------------------------------------------------------------------------

    \1\ The Functional Classification Guidelines can be viewed at http:/
/www.fhwa.dot.gov/planning/fctoc.htm.
---------------------------------------------------------------------------

    (b) Highway functional classification. (1) The State transportation 
agency shall have the primary responsibility for developing and updating 
a statewide highway functional classification in rural and urban areas 
to determine functional usage of the existing roads and streets. 
Guidance criteria and procedures are provided in the FHWA's Functional 
Classification Guidelines. The State shall cooperate with responsible 
local officials, or appropriate Federal agency in the case of areas 
under Federal jurisdiction, in developing and updating the functional 
classification.
    (2) The results of the functional classification shall be mapped and 
submitted to the Federal Highway Administration (FHWA) for approval and 
when approved shall serve as the official record for Federal-aid 
highways and the basis for designation of the National Highway System.

[62 FR 33355, June 19, 1997, as amended at 76 FR 6691, Feb. 8, 2011]



Sec.  470.107  Federal-aid highway systems.

    (a) Interstate System. (1) The Dwight D. Eisenhower National System 
of Interstate and Defense Highways (Interstate System) shall consist of 
routes of highest importance to the Nation, built to the uniform 
geometric and construction standards of 23 U.S.C. 109(h), which connect, 
as directly as practicable, the principal metropolitan areas, cities, 
and industrial centers, including important routes into, through, and 
around urban areas, serve the national defense and, to the greatest 
extent possible, connect at suitable border points with routes of 
continental importance in Canada and Mexico.
    (2) The portion of the Interstate System designated under 23 U.S.C. 
103(c)(1)(D)(2) shall not exceed 69,230 kilometers (43,000 miles). 
Additional Interstate System segments are permitted under the provisions 
of 23 U.S.C. 103(c)(4) and section 1105(e)(5)(A) of the Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 
105 Stat. 1914, as amended.
    (b) National Highway System. (1) The National Highway System shall 
consist of interconnected urban and rural principal arterials and 
highways (including toll facilities) which serve major population 
centers, international border crossings, ports, airports, public 
transportation facilities, other intermodal transportation facilities 
and other major travel destinations; meet national defense requirements; 
and serve interstate and interregional travel. All routes on the 
Interstate System are a part of the National Highway System.
    (2) The National Highway System shall not exceed 286,983 kilometers 
(178,250 miles).
    (3) The National Highway System shall include the Strategic Highway 
Corridor Network (STRAHNET) and its highway connectors to major military 
installations, as designated by the Administrator in consultation with 
appropriate Federal agencies and the States. The STRAHNET includes 
highways which are important to the United States strategic defense 
policy and which provide defense access, continuity, and emergency 
capabilities for the movement of personnel, materials, and equipment in 
both peace time and war time.
    (4) The National Highway System shall include all high priority 
corridors identified in section 1105(c) of the ISTEA.

[62 FR 33355, June 19, 1997, as amended at 76 FR 6691, Feb. 8, 2011]

[[Page 156]]



Sec.  470.109  System procedures--General.

    (a) The State transportation agency, in consultation with 
responsible local officials, shall have the responsibility for proposing 
to the Federal Highway Administration all official actions regarding the 
designation, or revision, of the Federal-aid highway systems.
    (b) The routes of the Federal-aid highway systems shall be proposed 
by coordinated action of the State transportation agencies where the 
routes involve State-line connections.
    (c) The designation of routes on the Federal-aid highway systems 
shall be in accordance with the planning process required, pursuant to 
the provisions at 23 U.S.C. 135, and, in urbanized areas, the provisions 
at 23 U.S.C. 134(a). The State shall cooperate with local and regional 
officials. In urbanized areas, the local officials shall act through the 
metropolitan planning organizations designated for such areas under 23 
U.S.C. 134.
    (d) In areas under Federal jurisdiction, the designation of routes 
on the Federal-aid highway systems shall be coordinated with the 
appropriate Federal agency.



Sec.  470.111  Interstate System procedures.

    (a) Proposals for system actions on the Interstate System shall 
include a route description and a statement of justification. Proposals 
shall also include statements regarding coordination with adjoining 
States on State-line connections, with responsible local officials, and 
with officials of areas under Federal jurisdiction.
    (b) Proposals for Interstate or future Interstate designation under 
23 U.S.C. 103(c)(4)(A) or (B), as logical additions or connections, 
shall consider the criteria contained in appendix A of this subpart. For 
designation as a part of the Interstate system, 23 U.S.C. 103(c)(4)(A) 
requires that a highway meet all the standards of a highway on the 
Interstate System, be a logical addition or connection to the Interstate 
System, and have the affirmative recommendation of the State or States 
involved. For designation as a future part of the Interstate System, 23 
U.S.C. 103(c)(4)(B) requires that a highway be a logical addition or 
connection to the Interstate System, have the affirmative recommendation 
of the State or States involved, and have the written agreement of the 
State or States involved that such highway will be constructed to meet 
all the standards of a highway on the Interstate System within twenty-
five years of the date of the agreement between the FHWA Administrator 
and the State or States involved. Such highways must also be on the 
National Highway System.
    (c) Routes proposed for Interstate designation under section 
332(a)(2) of the NHS Designation Act of 1995 (NHS Act) shall be 
constructed to Interstate standards and connect to the Interstate 
System. Proposals shall consider the criteria contained in appendix B of 
this subpart.
    (d) Proposals for Interstate route numbering shall be submitted by 
the State transportation agency to the Route Numbering Committee of the 
American Association of State Highway and Transportation Officials.
    (e) Signing of corridors federally designated as future Interstate 
routes can follow the criteria contained in appendix C of this subpart. 
No law, rule, regulation, map, document, or other record of the United 
States, or of any State or political subdivision thereof, shall refer to 
any highway under 23 U.S.C. 103(c), nor shall any such highway be signed 
or marked, as a highway on the Interstate System until such time as such 
highway is constructed to the geometric and construction standards for 
the Interstate System and has been designated as a part of the 
Interstate System.

[62 FR 33355, June 19, 1997, as amended at 76 FR 6691, Feb. 8, 2011]



Sec.  470.113  National Highway System procedures.

    (a) Proposals for system actions on the National Highway System 
shall include a route description, a statement of justification, and 
statements of coordination with adjoining States on State-line 
connections, with responsible local officials, and with officials of 
areas under Federal jurisdiction.
    (b) Proposed modifications to the National Highway System shall 
enhance the national transportation characteristics of the National 
Highway System

[[Page 157]]

and shall follow the criteria listed in Sec.  470.107. Proposals shall 
also consider the criteria contained in appendix D of this subpart.



Sec.  470.115  Approval authority.

    (a) The Federal Highway Administrator will approve Federal-aid 
highway system actions involving the designation, or revision, of routes 
on the Interstate System, including route numbers, future Interstate 
routes, and routes on the National Highway System.
    (b) The Federal Highway Administrator will approve functional 
classification actions.



    Sec. Appendix A to Subpart A of Part 470--Guidance Criteria for 
 Evaluating Requests for Interstate System Designations under 23 U.S.C. 
                          103(c)(4)(A) and (B)

    Section 103(c)(4)(A) and (B), of title 23, U.S.C., permits States to 
request the designation of National Highway System routes as parts or 
future parts of the Interstate System. The FHWA Administrator may 
approve such a request if the route is a logical addition or connection 
to the Interstate System and has been, or will be, constructed to meet 
Interstate standards. The following are the general criteria to be used 
to evaluate 23 U.S.C. 103(c) requests for Interstate System 
designations.
    1. The proposed route should be of sufficient length to serve long-
distance Interstate travel, such as connecting routes between principal 
metropolitan cities or industrial centers important to national defense 
and economic development.
    2. The proposed route should not duplicate other Interstate routes. 
It should serve Interstate traffic movement not provided by another 
Interstate route.
    3. The proposed route should directly serve major highway traffic 
generators. The term ``major highway traffic generator'' means either an 
urbanized area with a population over 100,000 or a similar major 
concentrated land use activity that produces and attracts long-distance 
Interstate and statewide travel of persons and goods. Typical examples 
of similar major concentrated land use activities would include a 
principal industrial complex, government center, military installation, 
or transportation terminal.
    4. The proposed route should connect to the Interstate System at 
each end, with the exception of Interstate routes that connect with 
continental routes at an international border, or terminate in a ``major 
highway traffic generator'' that is not served by another Interstate 
route. In the latter case, the terminus of the Interstate route should 
connect to routes of the National Highway System that will adequately 
handle the traffic. The proposed route also must be functionally 
classified as a principal arterial and be a part of the National Highway 
System system.
    5. The proposed route must meet all the current geometric and safety 
standards criteria as set forth in 23 CFR part 625 for highways on the 
Interstate System, or a formal agreement to construct the route to such 
standards within 25 years must be executed between the State(s) and the 
Federal Highway Administration. Any proposed exceptions to the standards 
shall be approved at the time of designation.
    6. A route being proposed for designation under 23 U.S.C. 
103(c)(4)(B) must have an approved final environmental document 
(including, if required, a 49 U.S.C. 303(c) [Section 4(f)] approval) 
covering the route and project action must be ready to proceed with 
design at the time of designation. Routes constructed to Interstate 
standards are not necessarily logical additions to the Interstate System 
unless they clearly meet all of the above criteria.

[40 FR 42344, Sept. 12, 1975. Redesignated at 41 FR 51396, Nov. 22, 
1976, as amended at 76 FR 6692, Feb. 8, 2011]



  Sec. Appendix B to Subpart A of Part 470--Designation of Segments of 
      Section 332(a)(2) Corridors as Parts of the Interstate System

    The following guidance is comparable to current procedures for 
Interstate System designation requests under 23 U.S.C. 103(c)(4)(A). All 
Interstate System additions must be approved by the Federal Highway 
Administrator. The provisions of section 332(a)(2) of the NHS Act have 
also been incorporated into the ISTEA as section 1105(e)(5)(A).
    1. The request must be submitted through the appropriate FHWA 
Division Office to the Associate Administrator for Program Development 
(HEP-10). Comments and recommendations by the division and regional 
offices are requested.
    2. The State DOT secretary (or equivalent) must request that the 
route segment be added to the Interstate System. The exact location and 
termini must be specified. If the route segment involves more than one 
State, each affected State must submit a separate request.
    3. The request must provide information to support findings that the 
segment (a) is built to Interstate design standards and (b) connects to 
the existing Interstate System. The segment should be of sufficient 
length to

[[Page 158]]

provide substantial service to the travelling public.
    4. The request must also identify and justify any design exceptions 
for which approval is requested.
    5. Proposed Interstate route numbering for the segment must be 
submitted to FHWA and the American Association of State Highway and 
Transportation Officials Route Numbering.

[40 FR 42344, Sept. 12, 1975. Redesignated at 41 FR 51396, Nov. 22, 
1976, as amended at 76 FR 6692, Feb. 8, 2011]



  Sec. Appendix C to Subpart A of Part 470--Policy for the Signing and 
 Numbering of Future Interstate Corridors Designated by Section 332 of 
     the NHS Designation Act of 1995 or Designated Under 23 U.S.C. 
                              103(c)(4)(B)

                                 Policy

    State transportation agencies are permitted to erect informational 
Interstate signs along a federally designated future Interstate corridor 
only after the specific route location has been established for the 
route to be constructed to Interstate design standards.

                               Conditions

    1. The corridor must have been designated a future part of the 
Interstate System under section 332(a)(2) of the NHS Designation Act of 
1995 or 23 U.S.C. 103(c)(4)(B).
    2. The specific route location to appropriate termini must have 
received Federal Highway (FHWA) environmental clearance. Where FHWA 
environmental clearance is not required or Interstate standards have 
been met, the route location must have been publicly announced by the 
State.
    3. Numbering of future Interstate route segments must be coordinated 
with affected States and be approved by the American Association of 
State Highway and Transportation Officials and the FHWA at Headquarters. 
Short portions of a multistate corridor may require use of an interim 3-
digit number.
    4. The State shall coordinate the location and content of signing 
near the State line with the adjacent State.
    5. Signing and other identification of a future Interstate route 
segment must not indicate, nor imply, that the route is on the 
Interstate System.
    6. The FHWA Division Office must confirm in advance that the above 
conditions have been met and approve the general locations of signs.

                              Sign Details

    1. Signs may not be used to give directions and should be away from 
directional signs, particularly at interchanges.
    2. An Interstate shield may be located on a green informational sign 
of a few words. For example: Future Interstate Corridor or Future I-00 
Corridor.
    3. The Interstate shield may not include the word ``Interstate.''
    4. The FHWA Division Office must approve the signs as to design, 
wording, and detailed location.

[40 FR 42344, Sept. 12, 1975. Redesignated at 41 FR 51396, Nov. 22, 
1976, as amended at 76 FR 6692, Feb. 8, 2011]



    Sec. Appendix D to Subpart A of Part 470--Guidance Criteria for 
  Evaluating Requests for Modifications to the National Highway System

    Section 103(b), of title 23, U.S.C., allows the States to propose 
modifications to the National Highway System (NHS) and authorizes the 
Secretary to approve such modifications provided that they meet the 
criteria established for the NHS and enhance the characteristics of the 
NHS. In proposing modifications under 23 U.S.C. 103(b), the States must 
cooperate with local and regional officials. In urbanized areas, the 
local officials must act through the metropolitan planning organization 
(MPO) designated for such areas under 23 U.S.C. 134. The following 
guidance criteria should be used by the States to develop proposed 
modifications to the NHS.
    1. Proposed additions to the NHS should be included in either an 
adopted State or metropolitan transportation plan or program.
    2. Proposed additions should connect at each end with other routes 
on the NHS or serve a major traffic generator.
    3. Proposals should be developed in consultation with local and 
regional officials.
    4. Proposals to add routes to the NHS should include information on 
the type of traffic served (i.e., percent of trucks, average trip 
length, local, commuter, interregional, interstate) by the route, the 
population centers or major traffic generators served by the route, and 
how this service compares with existing NHS routes.
    5. Proposals should include information on existing and anticipated 
needs and any planned improvements to the route.
    6. Proposals should include information concerning the possible 
effects of adding or deleting a route to or from the NHS might have on 
other existing NHS routes that are in close proximity.
    7. Proposals to add routes to the NHS should include an assessment 
of whether modifications (adjustments or deletions) to

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existing NHS routes, which provide similar service, may be appropriate.
    8. Proposed modifications that might affect adjoining States should 
be developed in cooperation with those States.
    9. Proposed modifications consisting of connections to major 
intermodal facilities should be developed using the criteria set forth 
below. These criteria were used for identifying initial NHS connections 
to major intermodal terminals. The primary criteria are based on annual 
passenger volumes, annual freight volumes, or daily vehicular traffic on 
one or more principal routes that serve the intermodal facility. The 
secondary criteria include factors which underscore the importance of an 
intermodal facility within a specific State.

                            Primary Criteria

                      Commercial Aviation Airports

    1. Passengers--scheduled commercial service with more than 250,000 
annual enplanements.
    2. Cargo--100 trucks per day in each direction on the principal 
connecting route, or 100,000 tons per year arriving or departing by 
highway mode.

                                  Ports

    1. Terminals that handle more than 50,000 TEUs (a volumetric measure 
of containerized cargo which stands for twenty-foot equivalent units) 
per year, or other units measured that would convert to more than 100 
trucks per day in each direction. (Trucks are defined as large single-
unit trucks or combination vehicles handling freight.)
    2. Bulk commodity terminals that handle more than 500,000 tons per 
year by highway or 100 trucks per day in each direction on the principal 
connecting route. (If no individual terminal handles this amount of 
freight, but a cluster of terminals in close proximity to each other 
does, then the cluster of terminals could be considered in meeting the 
criteria. In such cases, the connecting route might terminate at a point 
where the traffic to several terminals begins to separate.)
    3. Passengers--terminals that handle more than 250,000 passengers 
per year or 1,000 passengers per day for at least 90 days during the 
year.

                               Truck/Rail

    1. 50,000 TEUs per year, or 100 trucks per day, in each direction on 
the principal connecting route, or other units measured that would 
convert to more than 100 trucks per day in each direction. (Trucks are 
defined as large single-unit trucks or combination vehicles carrying 
freight.)

                                Pipelines

    1. 100 trucks per day in each direction on the principal connecting 
route.

                                 Amtrak

    1. 100,000 passengers per year (entrainments and detrainments). 
Joint Amtrak, intercity bus and public transit terminals should be 
considered based on the combined passenger volumes. Likewise, two or 
more separate facilities in close proximity should be considered based 
on combined passenger volumes.

                              Intercity Bus

    1. 100,000 passengers per year (boardings and deboardings).

                             Public Transit

    1. Stations with park and ride lots with more than 500 vehicle 
parking spaces, or 5,000 daily bus or rail passengers, with significant 
highway access (i.e., a high percentage of the passengers arrive by cars 
and buses using a route that connects to another NHS route), or a major 
hub terminal that provides for the transfer of passengers among several 
bus routes. (These hubs should have a significant number of buses using 
a principal route connecting with the NHS.)

                                 Ferries

    1. Interstate/international--1,000 passengers per day for at least 
90 days during the year. (A ferry which connects two terminals within 
the same metropolitan area should be considered as local, not 
interstate.)
    2. Local--see public transit criteria above.

                           Secondary Criteria

    Any of the following criteria could be used to justify an NHS 
connection to an intermodal terminal where there is a significant 
highway interface:
    1. Intermodal terminals that handle more than 20 percent of 
passenger or freight volumes by mode within a State;
    2. Intermodal terminals identified either in the Intermodal 
Management System or the State and metropolitan transportation plans as 
a major facility;
    3. Significant investment in, or expansion of, an intermodal 
terminal; or
    4. Connecting routes targeted by the State, MPO, or others for 
investment to address an existing, or anticipated, deficiency as a 
result of increased traffic.

                          Proximate Connections

    Intermodal terminals, identified under the secondary criteria noted 
above, may not have sufficient highway traffic volumes to justify an NHS 
connection to the terminal. States and MPOs should fully consider

[[Page 160]]

whether a direct connection should be identified for such terminals, or 
whether being in the proximity (2 to 3 miles) of an NHS route is 
sufficient.

Subparts B-C [Reserved]



PART 490_NATIONAL PERFORMANCE MANAGEMENT MEASURES--Table of Contents



                      Subpart A_General Information

Sec.
490.101 Definitions.
490.103 Data requirements.
490.105 Establishment of performance targets.
490.107 Reporting on performance targets.
490.109 Assessing significant progress toward achieving the performance 
          targets for the National Highway Performance Program and the 
          National Highway Freight Program.
490.111 Incorporation by reference.

   Subpart B_National Performance Management Measures for the Highway 
                       Safety Improvement Program

490.201 Purpose.
490.203 Applicability.
490.205 Definitions.
490.207 National performance management measures for the Highway Safety 
          Improvement Program.
490.209 Establishment of performance targets.
490.211 Determining whether a State department of transportation has met 
          or made significant progress toward meeting performance 
          targets.
490.213 Reporting of targets for the Highway Safety Improvement Program.

  Subpart C_National Performance Management Measures for the Assessing 
                           Pavement Condition

490.301 Purpose.
490.303 Applicability.
490.305 Definitions.
490.307 National performance management measures for assessing pavement 
          condition.
490.309 Data requirements.
490.311 Calculation of pavement metrics.
490.313 Calculation of performance management measures.
490.315 Establishment of minimum level for condition of pavements.
490.317 Penalties for not maintaining minimum Interstate System pavement 
          condition.
490.319 Other requirements.

Subpart D_National Performance Management Measures for Assessing Bridge 
                                Condition

490.401 Purpose.
490.403 Applicability.
490.405 Definitions.
490.407 National performance management measures for assessing bridge 
          condition.
490.409 Calculation of National performance management measures for 
          assessing bridge condition.
490.411 Establishment of minimum level for condition for bridges.
490.413 Penalties for not maintaining bridge condition.

Subpart E_National Performance Management Measures To Assess Performance 
                     of the National Highway System

490.501 Purpose.
490.503 Applicability.
490.505 Definitions.
490.507 National performance management measures for system performance.
490.509 Data requirements.
490.511 Calculation of National Highway System performance metrics.
490.513 Calculation of National Highway System performance measures.

  Subpart F_National Performance Management Measures To Assess Freight 
                    Movement on the Interstate System

490.601 Purpose.
490.603 Applicability.
490.605 Definitions.
490.607 National performance management measures to assess freight 
          movement on the Interstate System.
490.609 Data requirements.
490.611 Calculation of Truck Travel Time Reliability metrics.
490.613 Calculation of Freight Reliability measure.

  Subpart G_National Performance Management Measure for Assessing the 
   Congestion Mitigation and Air Quality Improvement Program_Traffic 
                               Congestion

490.701 Purpose.
490.703 Applicability.
490.705 Definitions.
490.707 National performance management measure for traffic congestion.
490.709 Data requirements.
490.711 Calculation of Peak Hour Excessive Delay metric.

[[Page 161]]

490.713 Calculation of Traffic Congestion measures.

    Subpart H_National Performance Management Measures to Assess the 
Congestion Mitigation and Air Quality Improvement Program_On-Road Mobile 
                            Source Emissions

490.801 Purpose.
490.803 Applicability.
490.805 Definitions.
490.807 National performance management measure for assessing on-road 
          mobile source emissions for the purposes of the Congestion 
          Mitigation and Air Quality Improvement Program.
490.809 Data requirements.
490.811 Calculation of Total Emissions Reduction measure.

    Authority: 23 U.S.C. 134, 135, 148(i) and 150; 49 CFR 1.85.

    Source: 81 FR 13913, Mar. 15, 2016, unless otherwise noted.



                      Subpart A_General Information

    Source: 82 FR 6031, Jan. 18, 2017, unless otherwise noted.



Sec.  490.101  Definitions.

    Unless otherwise specified, the following definitions apply to this 
part:
    American Community Survey (ACS) is a national level ongoing survey 
from the U.S. Census Bureau that includes data on jobs, occupations, 
educational attainment, transportations patterns, and other topics of 
the Nation's population.
    Attainment area as used in this part is defined in Sec.  450.104 of 
this chapter, Transportation Planning and Programming Definitions.
    Bridge as used in this part is defined in Sec.  650.305 of this 
chapter, the National Bridge Inspection Standards.
    Criteria pollutant is any pollutant for which there is established a 
NAAQS at 40 CFR part 50. The transportation related criteria pollutants 
per 40 CFR 93.102(b)(1) are carbon monoxide, nitrogen dioxide, ozone, 
and particulate matter (PM10 and PM2.5).
    Full extent means continuous collection and evaluation of pavement 
condition data over the entire length of the roadway.
    Highway Performance Monitoring System (HPMS) is a national level 
highway information system that includes data on the extent, condition, 
performance, use, and operating characteristics of the Nation's 
highways.
    Mainline highways means the through travel lanes of any highway. 
Mainline highways specifically exclude ramps, shoulders, turn lanes, 
crossovers, rest areas, and other pavement surfaces that are not part of 
the roadway normally traveled by through traffic.
    Maintenance area as used in this part is defined in Sec.  450.104 of 
this chapter, Transportation Planning and Programming Definitions. For 
the purposes of this part, areas that have reached the end of their 20-
year maintenance period \1\ are not considered as maintenance areas.
---------------------------------------------------------------------------

    \1\ The maintenance period in CAA Section 175A (42 U.S.C. 7505a) 
requires the submittal of two maintenance plans totaling 20 years, 
unless the applicable implementation plan specifics a longer maintenance 
period. The end of the maintenance period is 20-years from the effective 
date of the re-designation to attainment and approval of the first 10-
year maintenance plan.
---------------------------------------------------------------------------

    Measure means an expression based on a metric that is used to 
establish targets and to assess progress toward achieving the 
established targets (e.g., a measure for flight on-time performance is 
percent of flights that arrive on time, and a corresponding metric is an 
arithmetic difference between scheduled and actual arrival time for each 
flight).
    Metric means a quantifiable indicator of performance or condition.
    Metropolitan Planning Organization (MPO) as used in this part is 
defined in Sec.  450.104 of this chapter, Transportation Planning and 
Programming Definitions.
    Metropolitan Planning Area as used in this part is defined in Sec.  
450.104 of this chapter, Transportation Planning and Programming 
Definitions.
    National Ambient Air Quality Standards (NAAQS) as used in this part 
is defined in Sec.  450.104 of this chapter, Transportation Planning and 
Programming Definitions.
    National Bridge Inventory (NBI) is an FHWA database containing 
bridge information and inspection data for all highway bridges on public 
roads, on and off Federal-aid highways, including

[[Page 162]]

tribally owned and federally owned bridges, that are subject to the 
National Bridge Inspection Standards (NBIS).
    National Performance Management Research Data Set (NPMRDS) means a 
data set derived from vehicle/passenger probe data (sourced from Global 
Positioning Station (GPS), navigation units, cell phones) that includes 
average travel times representative of all traffic on each mainline 
highway segment of the National Highway System (NHS), and additional 
travel times representative of freight trucks for those segments that 
are on the Interstate System. The data set includes records that contain 
average travel times for every 15 minutes of every day (24 hours) of the 
year recorded and calculated for every travel time segment where probe 
data are available. The NPMRDS does not include any imputed travel time 
data.
    Nonattainment area as used in this part is defined in Sec.  450.104 
of this chapter, Transportation Planning and Programming Definitions.
    Non-SOV travel is defined as any travel mode other than driving 
alone in a motorized vehicle (i.e., single occupancy vehicle or SOV 
travel), including travel avoided by telecommuting.
    Non-urbanized area means a single geographic area that comprises all 
of the areas in the State that are not ``urbanized areas'' under 23 
U.S.C. 101(a)(34).
    Performance period means a determined time period during which 
condition/performance is measured and evaluated to: Assess condition/
performance with respect to baseline condition/performance; and track 
progress toward the achievement of the targets that represent the 
intended condition/performance level at the midpoint and at the end of 
that time period. The term ``performance period'' applies to all 
measures in this part, except the measures for the Highway Safety 
Improvement Program (HSIP) in subpart B of this part. Each performance 
period covers a 4-year duration beginning on a specified date (provided 
in Sec.  490.105).
    Reporting segment means the length of roadway that the State 
Department of Transportation (DOT) and MPOs define for metric 
calculation and reporting and is comprised of one or more travel time 
segments.
    Target means a quantifiable level of performance or condition, 
expressed as a value for the measure, to be achieved within a time 
period required by the Federal Highway Administration (FHWA).
    Transportation Management Area (TMA) as used in this part is defined 
in Sec.  450.104 of this chapter, Transportation Planning and 
Programming Definitions.
    Travel time data set means either the NPMRDS or an equivalent data 
set that is used by State DOTs and MPOs as approved by FHWA, to carry 
out the requirements in subparts E, F, and G of this part.
    Travel time reliability means the consistency or dependability of 
travel times from day to day or across different times of the day.
    Travel time segment means a contiguous stretch of the NHS for which 
average travel time data are summarized in the travel time data set.
    Truck freight bottleneck, as used in this part, is defined as a 
segment of roadway identified by the State DOT as having constraints 
that cause a significant impact on freight mobility and reliability. 
Bottlenecks may include highway sections that do not meet thresholds for 
freight reliability identified in Sec.  490.613 or other locations 
identified by the State DOT. Causes may include recurring congestion, 
causing delays in freight movement, or roadway features that impact 
truck movements, such as steep grades, substandard vertical or 
horizontal clearances, weight restrictions, delays at border crossings 
or terminals, or truck operating restrictions.



Sec.  490.103  Data requirements.

    (a) In general. Unless otherwise noted in paragraphs (b) through (g) 
of this section, the data requirements in this section apply to the 
measures identified in subparts C through H of this part. Additional 
data requirements for specific performance management measures are 
identified in 23 CFR sections--
    (1) 490.309 for the condition of pavements on the Interstate System;

[[Page 163]]

    (2) 490.309 for the condition of pavements on the non-Interstate 
NHS;
    (3) 490.409 for the condition of bridges on the NHS;
    (4) 490.509 for the performance of the Interstate System;
    (5) 490.509 for the performance of the non-Interstate NHS;
    (6) 490.609 for the freight movement on the Interstate System;
    (7) 490.709 for traffic congestion; and
    (8) 490.809 for on-road mobile source emissions.
    (b) Urbanized area data. The State DOTs shall submit urbanized area 
data, including boundaries of urbanized areas, in accordance with the 
HPMS Field Manual for the purpose of the additional targets for 
urbanized and non-urbanized areas in Sec.  490.105(e) and establishing 
and reporting on targets for the CMAQ Traffic Congestion measures in 
Sec.  490.707. The boundaries of urbanized areas shall be identified 
based on the most recent U.S. Decennial Census, unless FHWA approves 
adjustments to the urbanized area as provided by 23 U.S.C. 101(a)(34) 
and these adjustments are submitted to HPMS.
    (c) Nonattainment and maintenance areas data. The State DOTs shall 
use the nonattainment and maintenance areas boundaries based on the 
effective date of U.S. Environmental Protection Agency (EPA) 
designations in 40 CFR part 81.
    (d) National Highway System data. The State DOTs shall document and 
submit the extent of the NHS in accordance with the HPMS Field Manual.
    (e) Travel time data set. Travel time data needed to calculate the 
measures in subparts E, F, and G of this part will come from the NPMRDS, 
unless the State DOT requests, and FHWA approves, the use of an 
equivalent data source(s) that meets the requirements of this section. 
The State DOT shall establish, in coordination with applicable MPOs, a 
single travel time data set (i.e., NPMRDS or equivalent data set) that 
will be used to calculate the annual metrics in subparts E, F, and G of 
this part. The same data source shall be used for each calendar year. A 
State DOT and MPO(s) must use the same travel time data set for each 
reporting segment for the purposes of calculating the metrics and 
measures. The use of equivalent data source(s) shall comply with the 
following:
    (1) State DOTs and MPOs shall use the same equivalent data source(s) 
for a calendar year;
    (2) The State DOT shall request FHWA approval for the use of such 
equivalent data source(s) no later than October 1st before the beginning 
of the calendar year in which the data source would be used to calculate 
metrics and FHWA must approve the use of that data source prior to a 
State DOT and MPO(s)'s implementation and use of that data source;
    (3) The State DOT shall make the equivalent data source(s) available 
to FHWA, on request;
    (4) The State DOT shall maintain and use a documented data quality 
plan to routinely check the quality and accuracy of data contained 
within the equivalent data source(s); and
    (5) If approved by FHWA, the equivalent data source(s) shall:
    (i) Be used by both the State DOT and all MPOs within the State for 
all applicable travel time segments and be referenced by HPMS location 
referencing standards; and
    (ii) In combination with or in place of NPMRDS data, include:
    (A) Contiguous segments that cover the mainline highways full NHS, 
as defined in 23 U.S.C. 103, within the State and MPO boundary; and
    (B) Average travel times for at least the same number of 15 minute 
intervals and the same locations that would be available in the NPMRDS;
    (iii) Be populated with observed measured vehicle travel times and 
shall not be populated with travel times derived from imputed (historic 
travel times or other estimates) methods. Segment travel times may be 
derived from travel times reported over a longer time period of 
measurement (path processing or equivalent);
    (iv) Include, for each segment at 15 minute intervals throughout the 
time periods specified in paragraphs (e)(5)(iv)(A) and (B) of this 
section for each day of the year, the average travel time, recorded to 
the nearest second, representative of at least one of the following:

[[Page 164]]

    (A) All traffic on each segment of the NHS (24 hours on Interstate; 
6 a.m. to 8 p.m. for non-Interstate NHS); or
    (B) Freight vehicle traffic on each segment of the Interstate System 
(24 hours);
    (v) Include, for each segment, a recording of the time and date of 
each 15 minute travel time record;
    (vi) Include the location (route, functional class, direction, 
State), length and begin and end points of each segment; and
    (vii) Be available within 60 days of measurement.
    (f) Reporting segments. State DOTs, in coordination with MPOs, shall 
define a single set of reporting segments of the Interstate System and 
non-Interstate NHS for the purpose of calculating the travel time-based 
measures specified in Sec. Sec.  490.507, 490.607, and 490.707 in 
accordance with the following:
    (1) Reporting segments shall be comprised of one or more contiguous 
Travel Time Segments of same travel direction. State DOTs have the 
option to accept the Travel Time Segments in the NPMRDS as the reporting 
segments;
    (2) Reporting segments shall not exceed 1 mile in length in 
urbanized areas unless an individual Travel Time Segment is longer and 
10 miles in length in non-urbanized areas unless an individual Travel 
Time Segment is longer;
    (3) All reporting segments collectively shall be contiguous and 
cover the full extent of the directional mainline highways of the 
Interstate System and non-Interstate NHS required for reporting the 
measure; and
    (4) The State DOT and applicable MPOs shall document, in manner that 
mutually agreed upon by all relevant parties, the coordination and 
agreement on the travel time data set and the defined reporting 
segments.
    (g) Posted speed limit. State DOTs are encouraged to report the 
posted speed limits for the full extent of the NHS in their State via 
HPMS (HPMS Data Item ``Speed_Limit'').



Sec.  490.105  Establishment of performance targets.

    (a) In general. State DOTs shall establish performance targets for 
all measures specified in paragraph (c) of this section for the 
respective target scope identified in paragraph (d) of this section with 
the requirements specified in paragraph (e) of this section. The MPOs 
shall establish performance targets for all measures specified in 
paragraph (c) of this section for respective target scope identified in 
paragraph (d) of this section with the requirements specified in 
paragraph (f) of this section.
    (b) Highway Safety Improvement Program measures. State DOTs and MPOs 
shall establish performance targets for the Highway Safety Improvement 
Program (HSIP) measures in accordance with Sec.  490.209.
    (c) Applicable measures. State DOTs and MPOs that include, within 
their respective geographic boundaries, any portion of the applicable 
transportation network or area shall establish performance targets for 
the performance measures identified in 23 CFR sections--
    (1) 490.307(a)(1) and (2) for the condition of pavements on the 
Interstate System;
    (2) 490.307(a)(3) and (4) for the condition of pavements on the NHS 
(excluding the Interstate);
    (3) 490.407(c)(1) and (2) for the condition of bridges on the NHS;
    (4) 490.507(a)(1) and (2) for the NHS Travel Time Reliability;
    (5) [Reserved]
    (6) 490.607 for the freight movement on the Interstate System;
    (7) 490.707(a) and (b) for traffic congestion; and
    (8) 490.807 for on-road mobile source emissions.
    (d) Target scope. Targets established by State DOTs and MPOs shall, 
regardless of ownership, represent the transportation network or 
geographic area, including bridges that cross State borders, that are 
applicable to the measures as specified in paragraphs (d)(1) and (2) of 
this section.
    (1) State DOTs and MPOs shall establish statewide and metropolitan 
planning area wide targets, respectively, that represent the condition/
performance of the transportation network or geographic area that are 
applicable to the measures, as specified in 23 CFR sections--

[[Page 165]]

    (i) 490.303 for the condition of pavements on the Interstate System 
measures specified in Sec.  490.307(a)(1) and (2);
    (ii) 490.303 for the condition of pavements on the NHS (excluding 
the Interstate) measures specified in Sec.  490.307(a)(3) and (4);
    (iii) 490.403 for the condition of bridges on the NHS measures 
specified in Sec.  490.407(c)(1) and (2);
    (iv) 490.503(a)(1) for the Travel Time Reliability measures 
specified in Sec.  490.507(a)(1) and (2);
    (v) [Reserved]
    (vi) 490.603 for the Freight Reliability measure specified in Sec.  
490.607; and
    (vii) 490.803 for the Total Emissions Reduction measure identified 
in Sec.  490.807.
    (2) State DOTs and MPOs shall establish a single urbanized area 
target that represents the performance of the transportation network in 
each applicable area for the CMAQ Traffic Congestion measures, as 
specified in Sec.  490.703.
    (3) For the purpose of target establishment in this section and 
reporting targets and progress evaluation in Sec.  490.107, State DOTs 
shall describe the urbanized area boundaries within the State boundary 
in the Baseline Performance Period Report required by Sec.  
490.107(b)(1).
    (e) Establishment. State DOTs shall establish targets for each of 
the performance measures identified in paragraph (c) of this section for 
respective target scope identified in paragraph (d) of this section as 
follows:
    (1) Schedule. State DOTs shall establish targets not later than 
February 20, 2018, and for each performance period thereafter, in a 
manner that allows for the time needed to meet the requirements 
specified in this section and so that the final targets are submitted to 
FHWA by the due date provided in Sec.  490.107(b).
    (2) Coordination. State DOTs shall coordinate with relevant MPOs on 
the selection of targets in accordance with 23 U.S.C. 
135(d)(2)(B)(i)(II) to ensure consistency, to the maximum extent 
practicable.
    (3) Additional targets for urbanized and non-urbanized areas. In 
addition to statewide targets, described in paragraph (d)(1) of this 
section, State DOTs may, as appropriate, for each statewide target 
establish additional targets for portions of the State.
    (i) State DOTs shall describe in the Baseline Performance Period 
Report required by Sec.  490.107(b)(1) the boundaries used to establish 
each additional target.
    (ii) State DOTs may select any number and combination of urbanized 
area boundaries and may also select a non-urbanized area boundary for 
the establishment of additional targets.
    (iii) The boundaries used by the State DOT for additional targets 
shall be contained within the geographic boundary of the State.
    (iv) State DOTs shall evaluate separately the progress of each 
additional target and report that progress as required under Sec.  
490.107(b)(2)(ii)(B) and (b)(3)(ii)(B).
    (v) Additional targets for urbanized areas and the non-urbanized 
area are not applicable to the CMAQ Traffic Congestion measures and the 
Total Emissions Reduction measure in paragraphs (c)(7) and (8) of this 
section, respectively.
    (4) Time horizon for targets. State DOTs shall establish targets for 
a performance period as follows:
    (i) The performance period will begin on:
    (A) January 1st of the year in which the Baseline Performance Period 
Report is due to FHWA and will extend for a duration of 4 years for the 
measures in paragraphs (c)(1) through (7) of this section; and
    (B) October 1st of the year prior to which the Baseline Performance 
Report is due to FHWA and will extend for a duration of 4 years for the 
measure in paragraph (c)(8) of this section.
    (ii) The midpoint of a performance period will occur 2 years after 
the beginning of a performance period described in paragraph (e)(4)(i) 
of this section.
    (iii) Except as provided in paragraphs (e)(7) and (e)(8)(v) of this 
section, State DOTs shall establish 2-year targets that reflect the 
anticipated condition/performance level at the midpoint of each 
performance period for the measures in paragraphs (c)(1) through (7) of

[[Page 166]]

this section, and the anticipated cumulative emissions reduction to be 
reported for the first 2 years of a performance period by applicable 
criteria pollutant and precursor for the measure in paragraph (c)(8) of 
this section.
    (iv) State DOTs shall establish 4-year targets that reflect the 
anticipated condition/performance level at the end of each performance 
period for the measures in paragraphs (c)(1) through (7) of this 
section, and the anticipated cumulative emissions reduction to be 
reported for the entire performance period by applicable criteria 
pollutant and precursor for the measure in paragraph (c)(8) of this 
section.
    (5) Reporting. State DOTs shall report 2-year targets, 4-year 
targets, the basis for each established target, progress made toward the 
achievement of targets, and other requirements to FHWA in accordance 
with Sec.  490.107. State DOTs shall provide relevant MPO(s) targets to 
FHWA, upon request, each time the relevant MPOs establish or adjust MPO 
targets, as described in paragraph (f) of this section.
    (6) Target adjustment. State DOTs may adjust an established 4-year 
target in the Mid Performance Period Progress Report, as described in 
Sec.  490.107(b)(2). State DOTs shall coordinate with relevant MPOs when 
adjusting their 4-year target(s). Any adjustments made to 4-year targets 
established for the CMAQ Traffic Congestion measures in paragraph (c)(7) 
of this section shall be agreed upon and made collectively by all State 
DOTs and MPOs that include any portion of the NHS in the respective 
urbanized area applicable to the measures.
    (7) Phase-in of new requirements for Interstate System pavement 
condition measures and the non-Interstate NHS Travel Time Reliability 
measures. The following requirements apply only to the first performance 
period and to the measures in Sec. Sec.  490.307(a)(1) and (2) and 
490.507(a)(2):
    (i) State DOTs shall establish their 4-year targets, required under 
paragraph (e)(4)(iv) of this section, and report these targets in their 
Baseline Performance Period Report, required under Sec.  490.107(b)(1);
    (ii) State DOTs shall not report 2-year targets, described in 
paragraph (e)(4)(iii) of this section, and baseline condition/
performance in their Baseline Performance Period Report; and
    (iii) State DOTs shall use the 2-year condition/performance in their 
Mid Performance Period Progress Report, described in Sec.  
490.107(b)(2)(ii)(A) as the baseline condition/performance. State DOTs 
may also adjust their 4-year targets, as appropriate.
    (8) Urbanized area specific targets. The following requirements 
apply to establishing targets for the CMAQ Traffic Congestion measures 
in paragraph (c)(7) of this section, as their target scope provided in 
paragraph (d)(2) of this section:
    (i) For the performance period that begins on January 1, 2018, State 
DOTs, with mainline highways on the NHS that cross any part of an 
urbanized area with a population more than 1 million within its 
geographic State boundary and that urbanized area contains any part of a 
nonattainment or maintenance area for any one of the criteria 
pollutants, as specified in Sec.  490.703, shall establish targets for 
the CMAQ Traffic Congestion measures specified in Sec.  490.707(a) and 
(b).
    (ii) Beginning with the performance period that begins on January 1, 
2022, and all subsequent performance periods thereafter, State DOTs, 
with mainline highways on the NHS that cross any part of an urbanized 
area with a population more than 200,000 within its geographic State 
boundary and that urbanized area contains any part of a nonattainment or 
maintenance area for any one of the criteria pollutants, as specified in 
Sec.  490.703, shall establish targets for the CMAQ Traffic Congestion 
measures specified in Sec.  490.707(a) and (b).
    (iii) If required to establish targets for the CMAQ Traffic 
Congestion measures, as described in paragraphs (e)(8)(i) and/or (ii) of 
this section, State DOTs shall comply with the following:
    (A) For each urbanized area, only one 2-year target and one 4-year 
target for the entire urbanized area shall be established regardless of 
roadway ownership.
    (B) For each urbanized area, all State DOTs and MPOs that contain, 
within

[[Page 167]]

their respective boundaries, any portion of the NHS network in that 
urbanized area shall agree on one 2-year and one 4-year target for that 
urbanized area. In accordance with paragraphs (e)(5) and (f)(9) of this 
section, the targets reported by the State DOTs and MPOs for that 
urbanized area shall be identical.
    (C) Except as provided in paragraphs (e)(8)(iii)(F) and (e)(8)(v) of 
this section, State DOTs shall meet all reporting requirements in Sec.  
490.107 for the entire performance period even if there is a change of 
population, NHS designation, or nonattainment/maintenance area 
designation during that performance period.
    (D) The 1 million and 200,000 population thresholds, in paragraphs 
(e)(8)(i) and (ii) of this section, shall be determined based on the 
most recent annual population estimates published by the U.S. Census 
available 1 year before when the State DOT Baseline Performance Period 
Report is due to FHWA.
    (E) NHS designations and urbanized areas, in paragraphs (e)(8)(i) 
and (ii) of this section, shall be determined from the data, contained 
in HPMS, 1 year before when the State DOT Baseline Performance Period 
Report is due to FHWA.
    (F) The designation of nonattainment or maintenance areas, in 
paragraphs (e)(8)(i) and (ii) of this section, shall be determined based 
on the effective date of U.S. EPA's designation under the NAAQS in 40 
CFR part 81, as of the date 1 year before the State DOT Baseline 
Performance Period Report is due to FHWA. The nonattainment and 
maintenance areas shall be revised if, on the date 1 year before the 
State DOT Mid Performance Period Progress Report in Sec.  
490.107(b)(2)(ii) is due to FHWA, the area is no longer in nonattainment 
or maintenance for a criteria pollutant included in Sec.  490.703.
    (iv) If a State DOT does not meet the criteria specified in 
paragraph (e)(8)(i) or (ii) of this section 1 year before when the State 
DOT Baseline Performance Period Report is due to FHWA, then that State 
DOT is not required to establish targets for the CMAQ Traffic Congestion 
measures for that performance period.
    (v) If the urbanized area, in paragraph (e)(8)(i) or (ii) of this 
section, does not contain any part of a nonattainment or maintenance 
area for the applicable criteria pollutants, as specified in Sec.  
490.703, 1 year before the State DOT Mid Performance Period Progress 
Report is due to FHWA, as described in paragraph (e)(8)(iii)(F) of this 
section, then that State DOT is not required to meet the requirements in 
Sec.  490.107 for the CMAQ Traffic Congestion measures for that 
urbanized area for the remainder of that performance period.
    (vi) The following requirements apply only the Peak Hour Excessive 
Delay (PHED) measure in Sec.  490.707(a) to assess CMAQ Traffic 
Congestion in to the first performance period:
    (A) State DOTs shall establish their 4-year targets, required under 
paragraph (e)(4)(iv) of this section, and report these targets in their 
Baseline Performance Period Report, required under Sec.  490.107(b)(1).
    (B) State DOTs shall not report 2-year targets, described in 
paragraph (e)(4)(ii) of this section, and baseline condition/performance 
in their Baseline Performance Period Report.
    (C) State DOTs shall use the 2-year condition/performance in their 
Mid Performance Period Progress Report, described in Sec.  
490.107(b)(2)(ii)(A) as the baseline condition/performance. The 
established baseline condition/performance shall be collectively 
developed and agreed upon with relevant MPOs.
    (D) State DOTs may, as appropriate, adjust their 4-year target(s) in 
their Mid Performance Period Progress Report, described in Sec.  
490.107(b)(2)(ii)(A). Adjusted 4-year target(s) shall be developed and 
collectively agreed upon with relevant MPO(s), as described in paragraph 
(e)(6) of this section.
    (E) State DOTs shall annually report metrics for all mainline 
highways on the NHS for all applicable urbanized area(s) throughout the 
performance period, as required in Sec.  490.711(f).
    (9) Targets for Total Emissions Reduction measure. The following 
requirements apply to establishing targets for the measures specified in 
paragraph (c)(8) of this section:

[[Page 168]]

    (i) The State DOTs shall establish statewide targets for the Total 
Emissions Reduction measure for all nonattainment and maintenance areas 
for all applicable criteria pollutants and precursors specified in Sec.  
490.803.
    (ii) For all nonattainment and maintenance areas within the State 
geographic boundary, the State DOT shall establish separate statewide 
targets for each of the applicable criteria pollutants and precursors 
specified in Sec.  490.803.
    (iii) The established targets, as specified in paragraph (e)(4) of 
this section, shall reflect the anticipated cumulative emissions 
reduction to be reported in the CMAQ Public Access System required in 
Sec.  490.809(a).
    (iv) In addition to the statewide targets in paragraph (e)(9)(i) of 
this section, State DOTs may, as appropriate, establish additional 
targets for any number and combination of nonattainment and maintenance 
areas by applicable criteria pollutant within the geographic boundary of 
the State. If a State DOT establishes additional targets for 
nonattainment and maintenance areas, it shall report the targets in the 
Baseline Performance Period Report required by Sec.  490.107(b)(1). 
State DOTs shall evaluate separately the progress of each of these 
additional targets and report that progress as required under Sec.  
490.107(b)(2)(ii)(B) and (b)(3)(ii)(B).
    (v) The designation of nonattainment or maintenance areas shall be 
determined based on the effective date of U.S. EPA's designation under 
the NAAQS in 40 CFR part 81, as of the date 1 year before the State DOT 
Baseline Performance Period Report is due to FHWA. The nonattainment and 
maintenance areas shall be revised if, on the date 1 year before the 
State DOT Mid Performance Period Progress Report in Sec.  
490.107(b)(2)(ii) is due to FHWA, the area is no longer in nonattainment 
or maintenance for a criteria pollutant included in Sec.  490.803.
    (vi) Except as provided in paragraphs (e)(9)(vii) and (viii) of this 
section, the State DOT shall meet all reporting requirements in Sec.  
490.107 for the entire performance period even if there is a change of 
nonattainment or maintenance area during that performance period.
    (vii) If a State geographic boundary does not contain any part of 
nonattainment or maintenance areas for applicable criteria pollutants 
and precursors, as specified in Sec.  490.803, 1 year before the State 
DOT Baseline Performance Period Report is due to FHWA, then that State 
DOT is not required to establish targets for Total Emissions Reduction 
measures for that performance period.
    (viii) If the State geographic boundary, in paragraph (e)(9)(ii) of 
this section, does not contain any part of the nonattainment or 
maintenance area for an applicable criteria pollutant or precursor, as 
specified in Sec.  490.803, 1 year before the State DOT Mid Performance 
Period Progress Report is due to FHWA as described in paragraph 
(e)(9)(v) of this section, then that State DOT is not required to meet 
the requirements in Sec.  490.107 for the Total Emissions Reduction 
measure for that applicable criteria pollutant or precursor for the 
remainder of that performance period.
    (f) MPO establishment. The MPOs shall establish targets for each of 
the performance measures identified in paragraph (c) of this section for 
the respective target scope identified in paragraph (d) of this section 
as follows:
    (1) Schedule. The MPOs shall establish targets no later than 180 
days after the respective State DOT(s) establishes their targets, as 
provided in paragraph (e)(1) of this section.
    (i) The MPOs shall establish 4-year targets, described in paragraph 
(e)(4)(iv) of this section, for all applicable measures, described in 
paragraphs (c) and (d) of this section.
    (ii) Except as provided in paragraph (f)(5)(vi) of this section, the 
MPOs shall establish 2-year targets, described in paragraph (e)(4)(iii) 
of this section for the CMAQ Traffic Congestion and Total Emissions 
Reduction measures, described in paragraphs (c) and (d) of this section 
as their applicability criteria described in paragraphs (f)(5)(i) and 
(ii) and (f)(6)(iii) of this section, respectively.
    (iii) If an MPO does not meet the criteria described in paragraph 
(f)(5)(i), (f)(5)(ii), or (f)(6)(iii) of this section, the

[[Page 169]]

MPO is not required to establish 2-year target(s) for the corresponding 
measure(s).
    (2) Coordination. The MPOs shall coordinate with relevant State 
DOT(s) on the selection of targets in accordance with 23 U.S.C. 
134(h)(2)(B)(i)(II) to ensure consistency, to the maximum extent 
practicable.
    (3) Target establishment options. For each performance measure 
identified in paragraph (c) of this section, except the CMAQ Traffic 
Congestion measures in paragraph (f)(5) of this section, and MPOs 
meeting the criteria under paragraph (f)(6)(iii) of this section for 
Total Emissions Reduction measure, the MPOs shall establish targets by 
either:
    (i) Agreeing to plan and program projects so that they contribute 
toward the accomplishment of the relevant State DOT target for that 
performance measure; or
    (ii) Committing to a quantifiable target for that performance 
measure for their metropolitan planning area.
    (4) MPOs serving a multistate planning area. Except as provided in 
the CMAQ Traffic Congestion measures in paragraph (f)(5) of this 
section, and MPOs meeting the criteria under paragraph (f)(6)(iii) of 
this section, for Total Emissions Reduction measure, MPOs with planning 
areas extending across State boundaries shall follow these requirements 
for each performance measure identified in paragraph (c) of this 
section:
    (i) For each measure, MPOs may choose different target establishment 
options, provided in paragraph (f)(3) of this section, for the portion 
of the planning area within each State.
    (ii) If MPOs choose the option to agree to plan and program projects 
to contribute toward State DOT targets, in accordance with paragraph 
(f)(3)(i) of this section, for a measure, then they shall plan and 
program projects in support of State DOT targets for the portion of the 
planning area within each State.
    (5) Urbanized area specific targets. The following requirements 
apply to establishing targets for the CMAQ Traffic Congestion measures 
in paragraph (c)(7) of this section, as their target scope provided in 
paragraph (d)(2) of this section:
    (i) For the performance period that begins on January 1, 2018, MPOs 
shall establish targets for the CMAQ Traffic Congestion measures 
specified in Sec.  490.707(a) and (b) when mainline highways on the NHS 
within their metropolitan planning area boundary cross any part of an 
urbanized area with a population more than 1 million, and that portion 
of their metropolitan planning area boundary also contains any portion 
of a nonattainment or maintenance area for any one of the criteria 
pollutants, as specified in Sec.  490.703. If an MPO with mainline 
highways on the NHS within their metropolitan planning area boundary 
cross any part of an urbanized area with a population more than 1 
million and that urbanized area contains any part of a nonattainment or 
maintenance area, for any one of the criteria pollutant as specified in 
Sec.  490.703, outside of its metropolitan planning area boundary, then 
that MPO should coordinate with relevant State DOT(s) and MPO(s) in the 
target establishment process for the CMAQ Traffic Congestion measures 
specified in Sec.  490.707.
    (ii) Beginning with the performance period that begins on January 1, 
2022, and all subsequent performance periods thereafter, MPOs shall 
establish targets for the CMAQ Traffic Congestion measures specified in 
Sec.  490.707(a) and (b) when mainline highways on the NHS within their 
metropolitan planning area boundary cross any part of an urbanized area 
with a population more than 200,000, and that portion of their 
metropolitan planning area boundary also contains any portion of a 
nonattainment or maintenance area for any one of the criteria 
pollutants, as specified in Sec.  490.703. If an MPO with mainline 
highways on the NHS within their metropolitan planning area boundary 
cross any part of an urbanized area with a population more than 200,000 
and that urbanized area contains any part of a nonattainment or 
maintenance area, for any one of the criteria pollutant as specified in 
Sec.  490.703, outside of its metropolitan planning area boundary, then 
that MPO should coordinate with relevant State DOT(s) and MPO(s) in the 
target establishment process for the CMAQ

[[Page 170]]

Traffic Congestion measures specified in Sec.  490.707.
    (iii) If required to establish a target for the CMAQ Traffic 
Congestion measures, as described in paragraphs (f)(5)(i) and/or (ii) of 
this section, MPOs shall comply with the following:
    (A) For each urbanized area, only one 2-year target and one 4-year 
target for the entire urbanized area shall be established regardless of 
roadway ownership.
    (B) For each urbanized area, all State DOTs and MPOs that contain, 
within their respective boundaries, any portion of the NHS network in 
that urbanized area shall agree on one 2-year and one 4-year target for 
that urbanized area. The targets reported, in accordance with paragraphs 
(e)(5) and (f)(9) of this section, by the State DOTs and MPOs for that 
urbanized area shall be identical.
    (C) Except as provided in paragraphs (f)(5)(iii)(F) and (f)(5)(v) of 
this section, MPOs shall meet all reporting requirements in Sec.  
490.107(c) for the entire performance period even if there is a change 
of population, NHS designation, or nonattainment/maintenance area during 
that performance period.
    (D) The 1 million and 200,000 population thresholds, in paragraph 
(f)(5)(i) and (ii) of this section, shall be determined based on the 
most recent annual population estimates published by the U.S. Census 
available 1 year before the State DOT Baseline Performance Period Report 
is due to FHWA.
    (E) NHS designations and urbanized areas, in paragraphs (f)(5)(i) 
and (ii) of this section, shall be determined from the data, contained 
in HPMS, 1 year before State DOT Baseline Performance Period Report is 
due to FHWA.
    (F) The designation of nonattainment or maintenance areas, in 
paragraph (f)(5)(i) and (ii) of this section, shall be determined based 
on the effective date of U.S. EPA's designation under the NAAQS in 40 
CFR part 81, as of the date 1 year before the State DOT Baseline 
Performance Period Report is due to FHWA. The nonattainment and 
maintenance areas shall be revised if, on the date 1 year before the 
State DOT Mid Performance Period Progress Report in Sec.  
490.107(b)(2)(ii) is due to FHWA, the area is no longer in nonattainment 
or maintenance for a criteria pollutant included in Sec.  490.703.
    (iv) If an MPO does not meet the criteria specified in paragraph 
(f)(5)(i) or (ii) of this section at the time that is 1 year before when 
the State DOT Baseline Performance Period Report is due to FHWA, then 
that MPO is not required to establish targets for the CMAQ Traffic 
Congestion measure for that performance period.
    (v) If the portion of the metropolitan planning area boundary within 
the urbanized area, in paragraph (f)(5)(i) or (ii) of this section, does 
not contain any part of a nonattainment or maintenance area for the 
applicable criteria pollutants, as specified in Sec.  490.703, at the 
time that is 1 year before when the State DOT Mid Performance Period 
Progress Report is due to FHWA, as described in paragraph (f)(5)(iii)(F) 
of this section, then that MPO is not required to meet the requirements 
in Sec.  490.107 for the CMAQ Traffic Congestion measures for that 
urbanized area for the remainder of that performance period.
    (vi) The following requirements apply only to the first performance 
period and the PHED measure to assess traffic congestion in Sec.  
490.707(a):
    (A) The MPOs shall not report 2-year targets, described in paragraph 
(f)(5)(iii)(A) of this section;
    (B) The MPOs shall use the 2-year condition/performance in the State 
DOT Mid Performance Period Progress Report, described in Sec.  
490.107(b)(2)(ii)(A) as baseline condition/performance. The established 
baseline condition/performance shall be agreed upon and made 
collectively with relevant State DOTs; and
    (C) The MPOs may, as appropriate, adjust their 4-year target(s). 
Adjusted 4-year target(s) shall be collectively developed and agreed 
upon with all relevant State DOT(s), as described in paragraph (f)(8) of 
this section.
    (6) Targets for the Total Emissions Reduction measure. The following 
requirements apply to establishing targets for the measure in paragraph 
(c)(8) of this section:
    (i) The MPO shall establish targets for each of the applicable 
criteria pollutants and precursors, specified in

[[Page 171]]

Sec.  490.803, for which it is in nonattainment or maintenance, within 
its metropolitan planning area boundary.
    (ii) The established targets, as specified in paragraph (e)(4) of 
this section, shall reflect the anticipated cumulative emissions 
reduction to be reported in the CMAQ Public Access System required in 
Sec.  490.809(a).
    (iii) If any part of a designated nonattainment and maintenance area 
within the metropolitan planning area overlaps the boundary of an 
urbanized area with a population more than 1 million in population, as 
of 1 year before the State DOT Baseline Performance Period Report is due 
to FHWA, then that MPO shall establish both 2-year and 4-year targets 
for their metropolitan planning area. The population threshold shall be 
determined based on the most recent annual population estimates 
published by the U.S. Census available 1 year before the State DOT 
Baseline Performance Period Report is due to FHWA.
    (iv) For the nonattainment and maintenance areas within the 
metropolitan planning area that do not meet the criteria in paragraph 
(f)(6)(iii) of this section, MPOs shall establish 4-year targets for 
their metropolitan planning area, as described in paragraph (f)(3) of 
this section.
    (v) The designation of nonattainment or maintenance areas shall be 
determined based on the effective date of U.S. EPA's designation under 
the NAAQS in 40 CFR part 81, as of the date 1 year before the State DOT 
Baseline Performance Period Report is due to FHWA. The nonattainment and 
maintenance areas shall be revised if, on the date 1 year before the 
State DOT Mid Performance Period Progress Report in Sec.  
490.107(b)(2)(ii) is due to FHWA, the area is no longer in nonattainment 
or maintenance for a criteria pollutant included in Sec.  490.803.
    (vi) Except as provided in paragraphs (f)(6)(v) and (viii) of this 
section, MPOs shall meet all reporting requirements in Sec.  490.107(c) 
for the entire performance period even if there is a change of 
nonattainment or maintenance area or population during that performance 
period.
    (vii) If a metropolitan planning area boundary does not contain any 
part of nonattainment or maintenance areas for applicable criteria 
pollutants 1 year before when the State DOT Baseline Performance Period 
Report is due to FHWA, then that MPO is not required to establish 
targets for the Total Emissions Reduction measure for that performance 
period.
    (viii) If the metropolitan planning area boundary, in paragraph 
(f)(6)(i) of this section, does not contain any part of a nonattainment 
or maintenance area for the applicable criteria pollutants, as specified 
in Sec.  490.803, 1 year before the State DOT Mid Performance Period 
Progress Report is due to FHWA, as described in paragraph (f)(6)(v) of 
this section, then that MPO is not required to meet the requirements in 
Sec.  490.107 for the Total Emissions Reduction measure for that 
applicable criteria pollutant or precursor for the remainder of that 
performance period.
    (7) MPO response to State DOT target adjustment. For the established 
targets in paragraph (f)(3) of this section, if the State DOT adjusts a 
4-year target in the State DOT's Mid Performance Period Progress Report 
and if, for that respective target, the MPO established a target by 
supporting the State DOT target as allowed under paragraph (f)(3)(i) of 
this section, then the MPO shall, within 180 days, report to the State 
DOT whether it will either:
    (i) Agree to plan a program of projects so that they contribute to 
the adjusted State DOT target for that performance measure; or
    (ii) Commit to a new quantifiable target for that performance 
measure for its metropolitan planning area.
    (8) Target adjustment. If the MPO establishes its target by 
committing to a quantifiable target, described in paragraph (f)(3)(ii) 
of this section or establishes target(s) for the Total Emissions 
Reduction measure required in paragraph (f)(6)(iii) of this section, 
then the MPOs may adjust its target(s) in a manner that is collectively 
developed, documented, and mutually agreed upon by the State DOT and 
MPO. Any adjustments made to 4-year targets, established for CMAQ 
Traffic Congestion measures in paragraph (f)(5)(i) or (ii) of this 
section, shall be collectively developed and agreed upon by all State

[[Page 172]]

DOTs and MPOs that include any portion of the NHS in the respective 
urbanized area applicable to the measure.
    (9) Reporting. The MPOs shall report targets and progress toward the 
achievement of their targets as specified in Sec.  490.107(c). After the 
MPOs establish or adjust their targets, the relevant State DOT(s) must 
be able to provide these targets to FHWA upon request.

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.107  Reporting on performance targets.

    (a) In general. All State DOTs and MPOs shall report the information 
specified in this section for the targets required in Sec.  490.105.
    (1) All State DOTs and MPOs shall report in accordance with the 
schedule and content requirements under paragraphs (b) and (c) of this 
section, respectively.
    (2) For the measures identified in Sec.  490.207(a), all State DOTs 
and MPO shall report on performance in accordance with Sec.  490.213.
    (3) State DOTs shall report using an electronic template provided by 
FHWA.
    (b) State Biennial Performance Report. State DOTs shall report to 
FHWA baseline condition/performance at the beginning of a performance 
period and progress achievement at both the midpoint and end of a 
performance period. State DOTs shall report at an ongoing 2-year 
frequency as specified in paragraphs (b)(1) through (3) of this section.
    (1) Baseline Performance Period Report--(i) Schedule. State DOTs 
shall submit a Baseline Performance Period Report to FHWA by October 1st 
of the first year in a performance period. State DOTs shall submit their 
first Baseline Performance Period Report to FHWA by October 1, 2018, and 
subsequent Baseline Performance Period Reports to FHWA by October 1st 
every 4 years thereafter.
    (ii) Content. The State DOT shall report the following information 
in each Baseline Performance Period Report:
    (A) Targets. 2-year and 4-year targets for the performance period, 
as required in Sec.  490.105(e), and a discussion, to the maximum extent 
practicable, of the basis for each established target;
    (B) Baseline condition/performance. Baseline condition/performance 
derived from the latest data collected through the beginning date of the 
performance period specified in Sec.  490.105(e)(4)(i) for each target, 
required under paragraph (b)(1)(ii)(A) of this section;
    (C) Relationship with other performance expectations. A discussion, 
to the maximum extent practicable, on how the established targets in 
paragraph (b)(1)(ii)(A) of this section support expectations documented 
in longer range plans, such as the State asset management plan required 
by 23 U.S.C. 119(e) and the long-range statewide transportation plan 
provided in part 450 of this chapter;
    (D) Urbanized area boundaries and population data for targets. For 
the purpose of establishing additional targets for urbanized and non-
urbanized areas in Sec.  490.105(e)(3) and the urbanized area specific 
targets in Sec.  490.105(e)(8), State DOTs shall document the boundary 
extent for all applicable urbanized areas based on information in HPMS;
    (E) Congestion at truck freight bottlenecks. The State DOT shall 
document the location of truck freight bottlenecks within the State, 
including those identified in the National Freight Strategic Plan. If a 
State has prepared a State Freight Plan under 49 U.S.C. 70202, within 
the last 2 years, then the State Freight Plan may serve as the basis for 
identifying truck freight bottlenecks;
    (F) Nonattainment and maintenance area for targets. Where 
applicable, for the purpose of determining target scope in Sec.  
490.105(d) and any additional targets under Sec.  490.105(e)(9)(iv), 
State DOTs shall describe the boundaries of U.S. EPA's designated 
nonattainment and maintenance areas, as described in Sec. Sec.  
490.103(c) and 490.105(e)(9)(v);
    (G) MPO CMAQ Performance Plan. Where applicable, State DOTs shall 
include as an attachment the MPO CMAQ Performance Plan, described in 
paragraph (c)(3) of this section;
    (H) [Reserved]
    (I) Data collection method for the Percent of Non-SOV Travel 
measure. Where applicable, State DOTs shall report the data collection 
method that is used to

[[Page 173]]

determine the Percent of Non-SOV Travel measure, in Sec.  490.707(b), 
for each applicable urbanized area in the State, as provided in Sec.  
490.709(f)(2).
    (2) Mid Performance Period Progress Report--(i) Schedule. State DOTs 
shall submit a Mid Performance Period Progress Report to FHWA by October 
1st of the third year in a performance period. State DOTs shall submit 
their first Mid Performance Period Progress Report to FHWA by October 1, 
2020, and subsequent Mid Performance Period Progress Reports to FHWA by 
October 1st every 4 years thereafter.
    (ii) Content. The State DOT shall report the following information 
in each Mid Performance Period Progress Report:
    (A) 2-year condition/performance. The actual condition/performance 
derived from the latest data collected through the midpoint of the 
performance period, specified in Sec.  490.105(e)(4), for each State DOT 
reported target required in paragraph (b)(1)(ii)(A) of this section;
    (B) 2-year progress in achieving performance targets. A discussion 
of the State DOT's progress toward achieving each established 2-year 
target in paragraph (b)(1)(ii)(A) of this section. The State DOT shall 
compare the actual 2-year condition/performance in paragraph 
(b)(2)(ii)(A) of this section, within the boundaries and limits 
documented in paragraphs (b)(1)(ii)(D) and (E) of this section, with the 
respective 2-year target and document in the discussion any reasons for 
differences in the actual and target values;
    (C) Investment strategy discussion. A discussion on the 
effectiveness of the investment strategies developed and documented in 
the State asset management plan for the NHS required under 23 U.S.C. 
119(e);
    (D) Congestion at truck freight bottlenecks. Discussion on progress 
of the State DOT's efforts in addressing congestion at truck freight 
bottlenecks within the State, as described in paragraph (b)(1)(ii)(F) of 
this section, through comprehensive freight improvement efforts of State 
Freight Plan or MPO freight plans; the Statewide Transportation 
Improvement Program and Transportation Improvement Program; regional or 
corridor level efforts; other related planning efforts; and operational 
and capital activities targeted to improve freight movement on the 
Interstate System. If a State has prepared a State Freight Plan under 49 
U.S.C. 70202 within the previous 2 years, then the State Freight Plan 
may serve as the basis for addressing congestion at truck freight 
bottlenecks. If the State Freight Plan has not been updated since the 
previous State Biennial Performance Report, then an updated analysis of 
congestion at truck freight bottlenecks must be completed;
    (E) Target adjustment discussion. When applicable, a State DOT may 
submit an adjusted 4-year target to replace an established 4-year target 
in paragraph (b)(1)(ii)(A) of this section. If the State DOT adjusts its 
target, it shall include a discussion on the basis for the adjustment 
and how the adjusted target supports expectations documented in longer 
range plans, such as the State asset management plan and the long-range 
statewide transportation plan. The State DOT may only adjust a 4-year 
target at the midpoint and by reporting the change in the Mid 
Performance Period Progress Report;
    (F) 2-year significant progress discussion for the National Highway 
Performance Program (NHPP) targets and the National Highway Freight 
Program (NHFP) target. State DOTs shall discuss the progress they have 
made toward the achievement of all 2-year targets established for the 
NHPP measures in Sec.  490.105(c)(1) through (5) and the Freight 
Reliability measure in Sec.  490.105(c)(6). This discussion should 
document a summary of prior accomplishments and planned activities that 
will be conducted during the remainder of the performance period to make 
significant progress toward that achievement of 4-year targets for 
applicable measures;
    (G) Extenuating circumstances discussion on 2-year Targets. When 
applicable, for 2-year targets for the NHPP or NHFP, a State DOT may 
include a discussion on the extenuating circumstance(s), described in 
Sec.  490.109(e)(5), beyond the State DOT's control that prevented the 
State DOT from making 2-year significant progress toward achieving NHPP 
or

[[Page 174]]

NHFP target(s) in paragraph (b)(2)(ii)(F) of this section;
    (H) Applicable target achievement discussion. If FHWA determined 
that a State DOT has not made significant progress toward the 
achievement of any 4-year NHPP or NHFP targets in the FHWA determination 
made after the State DOT submits the Full Performance Period Progress 
Report for the immediate prior performance period, then the State DOT 
shall include a description of the actions they will undertake to better 
achieve those targets as required under Sec.  490.109(f). If FHWA 
determined under Sec.  490.109(e) that the State DOT has made 
significant progress for immediate prior performance period's 4-year 
NHPP or NHFP targets, then the State DOT does not need to include this 
description for those targets;
    (I) MPO CMAQ Performance Plan. Where applicable, State DOTs shall 
include as an attachment the MPO CMAQ Performance Plan, described in 
paragraph (c)(3) of this section; and
    (J) [Reserved]
    (3) Full Performance Period Progress Report--(i) Schedule. State 
DOTs shall submit a progress report on the full performance period to 
FHWA by October 1st of the first year following the reference 
performance period. State DOTs shall submit their first Full Performance 
Period Progress Report to FHWA by October 1, 2022, and subsequent Full 
Performance Period Progress Reports to FHWA by October 1st every 4 years 
thereafter.
    (ii) Content. The State DOT shall report the following information 
for each Full Performance Period Progress Report:
    (A) 4-year condition/performance. The actual condition/performance 
derived from the latest data collected through the end of the 
performance period, specified in Sec.  490.105(e)(4), for each State DOT 
reported target required in paragraph (b)(1)(ii)(A) of this section;
    (B) 4-year progress in achieving performance targets. A discussion 
of the State DOT's progress made toward achieving each established 4-
year target in paragraph (b)(1)(ii)(A) or (b)(2)(ii)(E) of this section, 
when applicable. The State DOT shall compare the actual 4-year 
condition/performance in paragraph (b)(3)(ii)(A) of this section, within 
the boundaries and limits documented in paragraphs (b)(1)(ii)(D) and (E) 
of this section, with the respective 4-year target and document in the 
discussion any reasons for differences in the actual and target values;
    (C) Investment strategy discussion. A discussion on the 
effectiveness of the investment strategies developed and documented in 
the State asset management plan for the NHS required under 23 U.S.C. 
119(e);
    (D) Congestion at truck freight bottlenecks. Discussion on progress 
of the State DOT's efforts in addressing congestion at truck freight 
bottlenecks within the State, as described in paragraphs (b)(1)(ii)(F) 
and (b)(2)(ii)(D) of this section;
    (E) 4-year significant progress evaluation for applicable targets. 
State DOTs shall discuss the progress they have made toward the 
achievement of all 4-year targets established for the NHPP measures in 
Sec.  490.105(c)(1) through (5) and the Freight Reliability measure in 
Sec.  490.105(c)(6). This discussion shall include a summary of 
accomplishments achieved during the performance period to demonstrate 
whether the State DOT has made significant progress toward achievement 
of 4-year targets for those measures;
    (F) Extenuating circumstances discussion on applicable targets. When 
applicable, a State DOT may include discussion on the extenuating 
circumstance(s), described in Sec.  490.109(e)(5), beyond the State 
DOT's control that prevented the State DOT from making a 4-year 
significant progress toward achieving NHPP or NHFP targets, described in 
paragraph (b)(3)(ii)(E) of this section;
    (G) Applicable target achievement discussion. If FHWA determined 
that a State DOT has not made significant progress toward the 
achievement of any 2-year NHPP or NHFP targets in the biennial FHWA 
determination made after the State DOT submits the Mid Performance 
Period Progress Report for the performance period, then the State DOT 
shall include a description of the actions they will undertake

[[Page 175]]

to better achieve those targets as required under Sec.  490.109(f). If 
FHWA determined in Sec.  490.109(e) that the State DOT has made 
significant progress for the 2-year NHPP or NHFP targets for the 
performance period, then the State DOT does not need to include this 
description for those targets;
    (H) MPO CMAQ Performance Plan. Where applicable, State DOTs shall 
include as an attachment the MPO CMAQ Performance Plan, described in 
paragraph (c)(3) of this section; and
    (I) [Reserved]
    (c) MPO Report. The MPOs shall establish targets in accordance with 
Sec.  490.105 and report targets and progress toward the achievement of 
their targets in a manner that is consistent with the following:
    (1) The MPOs shall report their established targets to their 
respective State DOT in a manner that is documented and mutually agreed 
upon by both parties.
    (2) The MPOs shall report baseline condition/performance and 
progress toward the achievement of their targets in the system 
performance report in the metropolitan transportation plan in accordance 
with part 450 of this chapter.
    (3) The MPOs serving a TMA and meeting criteria, specified in Sec.  
490.105(f)(6)(iii), shall develop a CMAQ performance plan as required by 
23 U.S.C. 149(l). The CMAQ performance plan is not required when the MPO 
meets the criteria specified in Sec.  490.105(f)(6)(vii) or (viii).
    (i) The CMAQ performance plan shall be submitted to FHWA by the 
State DOT, and be updated biennially on the same schedule as the State 
Biennial Performance Reports.
    (ii) For the CMAQ Traffic Congestion and Total Emissions Reduction 
measures in subparts G and H of this part, the CMAQ performance plan 
submitted with the State DOT's Baseline Performance Period Report to 
FHWA shall include:
    (A) The 2-year and 4-year targets for the CMAQ Traffic Congestion 
measures, identical to the relevant State DOT(s) reported target under 
paragraph (b)(1)(ii)(A) of this section, for each applicable urbanized 
area;
    (B) The 2-year and 4-year targets for the Total Emissions Reduction 
measure for the performance period;
    (C) Baseline condition/performance for each MPO reported CMAQ 
Traffic Congestion targets, identical to the relevant State DOT(s) 
reported baseline condition/performance under paragraph (b)(1)(ii)(B) of 
this section;
    (D) Baseline condition/performance derived from the latest estimated 
cumulative emissions reductions from CMAQ projects for each MPO reported 
Total Emissions Reduction target; and
    (E) A description of projects identified for CMAQ funding and how 
such projects will contribute to achieving the performance targets for 
these measures.
    (iii) For the CMAQ Traffic Congestion and Total Emissions Reduction 
measures in subparts G and H of this part, the CMAQ performance plan 
submitted with the State DOT's Mid Performance Period Progress Report to 
FHWA shall include:
    (A) 2-year condition/performance for the CMAQ Traffic Congestion 
measures, identical to the relevant State DOT(s) reported condition/
performance under paragraph (b)(2)(ii)(A) of this section, for each 
applicable urbanized area;
    (B) 2-year condition/performance derived from the latest estimated 
cumulative emissions reductions from CMAQ projects for each MPO reported 
Total Emissions Reduction target;
    (C) An assessment of the progress of the projects identified in the 
CMAQ performance plan submitted with the Baseline Performance Period 
Report toward achieving the 2-year targets for these measures;
    (D) When applicable, an adjusted 4-year target to replace an 
established 4-year target; and
    (E) An update to the description of projects identified for CMAQ 
funding and how those updates will contribute to achieving the 4-year 
performance targets for these measures.
    (iv) For the CMAQ Traffic Congestion and Total Emissions Reduction 
measures in subparts G and H of this part, the CMAQ performance plan 
submitted with the State DOT's Full Performance Period Progress Report 
to FHWA shall include:

[[Page 176]]

    (A) 4-year condition/performance for the CMAQ Traffic Congestion 
measures, identical to the relevant State DOT(s) reported condition/
performance reported under paragraph (b)(3)(ii)(A) of this section, for 
each applicable urbanized area;
    (B) 4-year condition/performance derived from the latest estimated 
cumulative emissions reductions from CMAQ projects for each MPO reported 
Total Emissions Reduction target; and
    (C) An assessment of the progress of the projects identified in both 
paragraphs (c)(3)(ii)(C) and (c)(3)(iii)(D) of this section toward 
achieving the 4-year targets for these measures.
    (4) [Reserved]

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.109  Assessing significant progress toward achieving 
the performance targets for the National Highway Performance Program 
and the National Highway Freight Program.

    (a) In general. The FHWA will assess each of the State DOT targets 
separately for the NHPP measures specified in Sec.  490.105(c)(1) 
through (5) and the Freight Reliability measure specified in Sec.  
490.105(c)(6) to determine the significant progress made toward the 
achievement of those targets.
    (b) Frequency. The FHWA will determine whether a State DOT has or 
has not made significant progress toward the achievement of applicable 
targets as described in paragraph (e) of this section at the midpoint 
and the end of each performance period.
    (c) Schedule. The FHWA will determine significant progress toward 
the achievement of a State DOT's NHPP and NHFP targets after the State 
DOT submits the Mid Performance Period Progress Report for progress 
toward the achievement of 2-year targets, and again after the State DOT 
submits the Full Performance Period Progress Report for progress toward 
the achievement of 4-year targets. The FHWA will notify State DOTs of 
the outcome of the determination of the State DOT's ability to make 
significant progress toward the achievement of its NHPP and NHFP 
targets.
    (d) Source of data/information. (1) The FHWA will use the following 
sources of information to assess NHPP target achievement and condition/
performance progress:
    (i) Data contained within the HPMS on June 15th of the year in which 
the significant progress determination is made that represents 
conditions from the prior year for targets established for Interstate 
System pavement condition measures, as specified in Sec.  490.105(c)(1);
    (ii) Data contained within the HPMS on August 15th of the year in 
which the significant progress determination is made that represents 
conditions from the prior year for targets established for non-
Interstate NHS pavement condition measures, as specified in Sec.  
490.105(c)(2);
    (iii) The most recently available data contained within the NBI as 
of June 15th of the year in which the significant progress determination 
is made for targets established for NHS bridge condition measures, as 
specified in Sec.  490.105(c)(3);
    (iv) Data contained within the HPMS on August 15th of the year in 
which the significant progress determination is made that represents 
performance from the prior year for targets established for the Travel 
Time Reliability measures, as specified in Sec.  490.105(c)(4);
    (v) [Reserved]
    (vi) Baseline condition/performance data contained in HPMS and NBI 
of the year in which the Baseline Period Performance Report is due to 
FHWA that represents baseline conditions/performances for the 
performance period for the measures in Sec.  490.105(c)(1) through (4).
    (2) The FHWA will use the following sources of information to assess 
NHFP target achievement and condition/performance progress:
    (i) Data contained within the HPMS on August 15th of the year in 
which the significant progress determination is made that represents 
performance from the prior year for targets established for the Freight 
Reliability measure, as specified in Sec.  490.105(c)(6); and
    (ii) Baseline condition/performance data contained in HPMS of the 
year in which the Baseline Period Performance Report is due to FHWA that 
represents

[[Page 177]]

baseline condition/performance for the performance period.
    (e) Significant progress determination for individual NHPP and NHFP 
targets--(1) In general. The FHWA will biennially assess whether the 
State DOT has achieved or made significant progress toward each target 
established by the State DOT for the NHPP measures described in Sec.  
490.105(c)(1) through (5) and the Freight Reliability measure described 
in Sec.  490.105(c)(6). The FHWA will assess the significant progress of 
each statewide target separately using the condition/performance data/
information sources described in paragraph (d) of this section. The FHWA 
will not assess the progress achieved for any additional targets a State 
DOT may establish under Sec.  490.105(e)(3).
    (2) Significant progress toward individual NHPP and NHFP targets. 
The FHWA will determine that a State DOT has made significant progress 
toward the achievement of each 2-year or 4-year applicable target if 
either:
    (i) The actual condition/performance level is better than the 
baseline condition/performance; or
    (ii) The actual condition/performance level is equal to or better 
than the established target.
    (3) Phase-in of new requirements. The following requirements shall 
only apply to the first performance period and only to the Interstate 
System pavement condition targets and non-Interstate NHS Travel Time 
Reliability targets, described in Sec.  490.105(e)(7):
    (i) At the midpoint of the first performance period, FHWA will not 
make a determination of significant progress toward the achievement of 
2-year targets for Interstate System pavement condition measures:
    (ii) The FHWA will classify the assessment of progress toward the 
achievement of targets in paragraph (e)(3)(i) of this section as 
``progress not determined'' so that they will be excluded from the 
requirement under paragraph (e)(2) of this section; and
    (iii) The FHWA will not make a determination of significant progress 
toward the achievement of 2-year targets for the Non-Interstate NHS 
Travel Time Reliability measure.
    (4) Insufficient data and/or information. The FHWA will determine 
that a State DOT has not made significant progress toward the 
achievement of an individual NHPP or NHFP target if:
    (i) A State DOT does not submit a required report, individual 
target, or other information as specified in Sec.  490.107 for the each 
of the measures in Sec.  490.105(c)(1) through (6);
    (ii) The data contained in HPMS do not meet the requirements under 
Sec.  490.313(b)(4)(i) by the data extraction date specified in 
paragraph (d)(1) of this section for the each of the Interstate System 
pavement condition measures in Sec.  490.105(c)(1);
    (iii) The data contained in HPMS do not meet the requirements under 
Sec.  490.313(b)(4)(i) by the data extraction date specified in 
paragraph (d)(2) of this section for the each of the non-Interstate NHS 
pavement condition measures in Sec.  490.105(c)(2);
    (iv) A State DOT reported data are not cleared in the NBI by the 
data extraction date specified in paragraph (d)(3) of this section for 
the each of the NHS bridge condition measures in Sec.  490.105(c)(3); or
    (v) The data were determined insufficient, as described in 
paragraphs (e)(4)(ii) through (iv) of this section, in the year in which 
the Baseline Period Performance Report is due to FHWA for the measures 
in Sec.  490.105(c)(1) through (3).
    (5) Extenuating circumstances. The FHWA will consider extenuating 
circumstances documented by the State DOT in the assessment of progress 
toward the achievement of NHPP and NHFP targets in the relevant State 
Biennial Performance Report, provided in Sec.  490.107.
    (i) The FHWA will classify the assessment of progress toward the 
achievement of an individual 2-year or 4-year target as ``progress not 
determined'' if the State DOT has provided an explanation of the 
extenuating circumstances beyond the control of the State DOT that 
prevented it from making significant progress toward the achievement of 
a 2-year or 4-year target and the State DOT has quantified the impacts 
on the condition/performance that resulted from the circumstances, which 
are:

[[Page 178]]

    (A) Natural or man-made disasters that caused delay in NHPP or NHFP 
project delivery, extenuating delay in data collection, and/or damage/
loss of data system;
    (B) Sudden discontinuation of Federal government furnished data due 
to natural and man-made disasters or sudden discontinuation of Federal 
government furnished data due to lack of funding; and/or
    (C) New law and/or regulation directing State DOTs to change metric 
and/or measure calculation.
    (ii) If the State DOT's explanation, described in paragraph 
(e)(5)(i) of this section, is accepted by FHWA, FHWA will classify the 
progress toward achieving the relevant target(s) as ``progress not 
determined,'' and those targets will be excluded from the requirement in 
paragraph (e)(2) of this section.
    (f) Performance achievement. (1) If FHWA determines that a State DOT 
has not made significant progress toward the achieving of NHPP targets, 
then the State DOT shall include as part of the next performance target 
report under 23 U.S.C. 150(e) [the Biennial Performance Report] a 
description of the actions the State DOT will undertake to achieve the 
targets related to the measure in which significant progress was not 
achieved as follows:
    (i) If significant progress is not made for either target 
established for the Interstate System pavement condition measures, Sec.  
490.307(a)(1) and (2), then the State DOT shall document the actions it 
will take to achieve Interstate Pavement condition targets;
    (ii) If significant progress is not made for either target 
established for the Non-Interstate System pavement condition measures, 
Sec.  490.307(a)(3) and (4), then the State DOT shall document the 
actions it will take to to achieve Non-Interstate Pavement condition 
target;
    (iii) If significant progress is not made for either target 
established for the NHS bridge condition measures, Sec.  490.407(c)(1) 
and (2), then the State DOT shall document the actions it will take to 
to achieve NHS bridge condition target;
    (iv) If significant progress is not made for either target 
established for the Travel Time Reliability measures, Sec.  
490.507(a)(1) and(2), then the State DOT shall document the actions it 
will take to achieve the NHS travel time targets; and
    (v) [Reserved]
    (2) If FHWA determines that a State DOT has not made significant 
progress toward achieving the target established for the Freight 
Reliability measure in Sec.  490.607, then the State DOT shall include 
as part of the next performance target report under 23 U.S.C. 150(e) 
[the Biennial Performance Report] the following:
    (i) An identification of significant freight system trends, needs, 
and issues within the State.
    (ii) A description of the freight policies and strategies that will 
guide the freight-related transportation investments of the State.
    (iii) An inventory of truck freight bottlenecks within the State and 
a description of the ways in which the State DOT is allocating funding 
under title 23 U.S.C. to improve those bottlenecks.
    (A) The inventory of truck freight bottlenecks shall include the 
route and milepost location for each identified bottleneck, roadway 
section inventory data reported in HPMS, Average Annual Daily Traffic 
(AADT), Average Annual Daily Truck Traffic (AADTT), Travel-time data and 
measure of delay, such as travel time reliability, or Average Truck 
Speeds, capacity feature causing the bottleneck or any other constraints 
applicable to trucks, such as geometric constrains, weight limits or 
steep grades.
    (B) For those facilities that are State-owned or operated, the 
description of the ways in which the State DOT is improving those 
bottlenecks shall include an identification of methods to address each 
bottleneck and improvement efforts planned or programed through the 
State Freight Plan or MPO freight plans; the Statewide Transportation 
Improvement Program and Transportation Improvement Program; regional or 
corridor level efforts; other related planning efforts; and operational 
and capital activities.
    (iv) A description of the actions the State DOT will undertake to 
achieve the target established for the Freight Reliability measure in 
Sec.  490.607.

[[Page 179]]

    (3) The State DOT should, within 6 months of the significant 
progress determination, amend its Biennial Performance Report to 
document the information specified in this paragraph to ensure actions 
are being taken to achieve targets.

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.111  Incorporation by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, FHWA must publish a notice of change in the 
Federal Register and the material must be available to the public. All 
approved material is available for inspection at the Federal Highway 
Administration, Office of Highway Policy Information (202-366-4631) 1200 
New Jersey Avenue SE., Washington, DC 20590, www.fhwa.dot.gov and is 
available from the sources listed below. It is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to http://www.archives.gov/federal_register/
code_of_federal_regulations/ibr_locations.html.
    (b) The Federal Highway Administration, 1200 New Jersey Avenue SE., 
Washington, DC 20590, www.fhwa.dot.gov.
    (1) Highway Performance Monitoring System (HPMS) Field Manual, IBR 
approved for Sec. Sec.  490.103, 490.309, 490.311, and 490.319.
    (2) Recording and Coding Guide for the Structure Inventory and 
Appraisal of the Nation's Bridges, includes: Errata Sheet for Coding 
Guide 06/2011, Report No. FHWA-PD-96-001, December 1995, IBR approved 
for Sec. Sec.  490.409 and 490.411.
    (c) The American Association of State Highway and Transportation 
Officials, 444 North Capitol Street NW., Suite 249, Washington, DC 
20001, (202) 624-5800, www.transportation.org.
    (1) AASHTO Standard M328-14, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Inertial 
Profiler, 2014, 34th/2014 Edition, IBR approved for Sec.  490.309.
    (2) AASHTO Standard R57-14, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Operating Inertial Profiling Systems, 2014, 34th/2014 
Edition, IBR approved for Sec.  490.309.
    (3) AASHTO Standard R48-10 (2013), Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Determining Rut Depth in Pavements, 2014, 34th/2014 
Edition, IBR approved for Sec.  490.309.
    (4) AASHTO Standard R36-13, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Evaluating Faulting of Concrete Pavements, 2014, 34th/2014 
Edition, IBR approved for Sec.  490.309.
    (5) AASHTO Standard R43-13, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Quantifying Roughness of Pavement, 2014, 34th/2014 Edition, 
IBR approved for Sec.  490.311.



   Subpart B_National Performance Management Measures for the Highway 
                       Safety Improvement Program



Sec.  490.201  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(4), which requires the Secretary of Transportation to 
establish performance measures for the purpose of carrying out the 
Highway Safety Improvement Program (HSIP) and for State departments of 
transportation (State DOTs) to use in assessing:
    (a) Serious injuries and fatalities per vehicle miles traveled 
(VMT); and
    (b) Number of serious injuries and fatalities.



Sec.  490.203  Applicability.

    The performance measures are applicable to all public roads covered 
by the HSIP carried out under 23 U.S.C. 130 and 148.

[[Page 180]]



Sec.  490.205  Definitions.

    Unless otherwise specified, the following definitions apply in this 
subpart:
    5-year rolling average means the average of 5 individual, 
consecutive annual points of data (e.g., the 5-year rolling average of 
the annual fatality rate).
    Annual Report File (ARF) means FARS data that are published 
annually, but prior to Final FARS data.
    Fatality Analysis Reporting System (FARS) means a nationwide census 
providing public yearly data regarding fatal injuries suffered in motor 
vehicle traffic crashes.
    Final FARS means the FARS data that replace the ARF file and contain 
additional cases or updates to cases that became available after the ARF 
was released, and which are no longer subject to future changes.
    KABCO means the coding convention system for injury classification 
established by the National Safety Council.
    Number of fatalities means the total number of persons suffering 
fatal injuries in a motor vehicle traffic crash during a calendar year, 
based on the data reported by the FARS database.
    Number of non-motorized fatalities means the total number of 
fatalities (as defined in this section) with the FARS person attribute 
codes: (5) Pedestrian, (6) Bicyclist, (7) Other Cyclist, and (8) Person 
on Personal Conveyance.
    Number of non-motorized serious injuries means the total number of 
serious injuries (as defined in this section) where the injured person 
is, or is equivalent to, a pedestrian (2.2.36) or a pedalcylcist 
(2.2.39) as defined in the ANSI D16.1-2007 (incorporated by reference, 
see Sec.  490.111).
    Number of serious injuries means the total number of persons 
suffering at least one serious injury for each separate motor vehicle 
traffic crash during a calendar year, as reported by the State, where 
the crash involves a motor vehicle traveling on a public road, and the 
injury status is ``suspected serious injury (A)'' as described in MMUCC, 
(incorporated by reference, see Sec.  490.111). For serious injury 
classifications that are not MMUCC compliant, the number of serious 
injuries means serious injuries that are converted to KABCO by use of 
conversion tables developed by the NHTSA.
    Public road is as defined in 23 CFR 924.3.
    Rate of fatalities means the ratio of the total number of fatalities 
(as defined in this section) to the number of vehicle miles traveled 
(VMT) (expressed in 100 million VMT) in a calendar year.
    Rate of serious injuries means the ratio of the total number of 
serious injuries (as defined in this section) to the number of VMT 
(expressed in 100 million vehicle miles of travel) in a calendar year.
    Serious injuries means:
    (1) From April 14, 2016 to April 15, 2019, injuries classified as 
``A'' on the KABCO scale through use of the conversion tables developed 
by NHTSA; and
    (2) After April 15, 2019, ``suspected serious injury (A)'' as 
defined in the MMUCC.



Sec.  490.207  National performance management measures for 
the Highway Safety Improvement Program.

    (a) There are five performance measures for the purpose of carrying 
out the HSIP. They are:
    (1) Number of fatalities;
    (2) Rate of fatalities;
    (3) Number of serious injuries;
    (4) Rate of serious injuries; and,
    (5) Number of non-motorized fatalities and non-motorized serious 
injuries.
    (b) Each performance measure is based on a 5-year rolling average. 
The performance measures are calculated as follows:
    (1) The performance measure for the number of fatalities is the 5-
year rolling average of the total number of fatalities for each State 
and shall be calculated by adding the number of fatalities for each of 
the most recent 5 consecutive years ending in the year for which the 
targets are established, dividing by 5, and rounding to the tenth 
decimal place. FARS ARF may be used if Final FARS is not available.
    (2) The performance measure for the rate of fatalities is the 5-year 
rolling average of the State's fatality rate per VMT and shall be 
calculated by first calculating the number of fatalities per 100 million 
VMT for each of the most

[[Page 181]]

recent 5 consecutive years ending in the year for which the targets are 
established, adding the results, dividing by 5, and rounding to the 
thousandth decimal place. The FARS ARF may be used if Final FARS is not 
available. State VMT data are derived from the HPMS. The Metropolitan 
Planning Organizations (MPO) VMT is estimated by the MPO. The sum of the 
fatality rates is divided by five and then rounded to the thousandth 
decimal place.
    (3) The performance measure for the number of serious injuries is 
the 5-year rolling average of the total number of serious injuries for 
each State and shall be calculated by adding the number of serious 
injuries for each of the most recent 5 consecutive years ending in the 
year for which the targets are established, dividing by five, and 
rounding to the tenth decimal place.
    (4) The performance measure for the rate of serious injuries is the 
5-year rolling average of the State's serious injuries rate per VMT and 
shall be calculated by first calculating the number of serious injuries 
per 100 million VMT for each of the most recent 5 consecutive years 
ending in the year for which the targets are established, adding the 
results, dividing by five, and rounding to the thousandth decimal place. 
State VMT data are derived from the HPMS. The MPO VMT is estimated by 
the MPO.
    (5) The performance measure for the number of Non-motorized 
Fatalities and Non-motorized Serious Injuries is the 5-year rolling 
average of the total number of non-motorized fatalities and non-
motorized serious injuries for each State and shall be calculated by 
adding the number of non-motorized fatalities to the number non-
motorized serious injuries for each of the most recent 5 consecutive 
years ending in the year for which the targets are established, dividing 
by five, and rounding to the tenth decimal place. FARS ARF may be used 
if Final FARS is not available.
    (c) For purposes of calculating serious injuries in paragraphs 
(b)(3), (4), and (5) of this section:
    (1) Before April 15, 2019, serious injuries may be determined by 
either of the following:
    (i) Serious injuries coded (A) in the KABCO injury classification 
scale through use of the NHTSA serious injuries conversion tables; or
    (ii) Using MMUCC (incorporated by reference, see Sec.  490.111).
    (2) By April 15, 2019, serious injuries shall be determined using 
MMUCC.



Sec.  490.209  Establishment of performance targets.

    (a) State DOTs shall establish targets annually for each performance 
measure identified in Sec.  490.207(a) in a manner that is consistent 
with the following:
    (1) State DOT targets shall be identical to the targets established 
by the State Highway Safety Office for common performance measures 
reported in the State's Highway Safety Plan, subject to the requirements 
of 23 U.S.C. 402(k)(4), and as coordinated through the State Strategic 
Highway Safety Plan.
    (2) State DOT targets shall represent performance outcomes 
anticipated for the calendar year following the HSIP annual report date, 
as provided in 23 CFR 924.15.
    (3) State DOT performance targets shall represent the anticipated 
performance outcome for all public roadways within the State regardless 
of ownership or functional class.
    (4) State DOT targets shall be reported in the HSIP annual report 
that is due after April 14, 2017, and in each subsequent HSIP annual 
report thereafter.
    (5) The State DOT shall include, in the HSIP Report (see 23 CFR part 
924), at a minimum, the most recent 5 years of serious injury data and 
non-motorized serious injury data. The serious injury data shall be 
either MMUCC compliant or converted to the KABCO system (A) for injury 
classification through use of the NHTSA conversion tables as required by 
Sec.  490.207(c).
    (6) Unless approved by FHWA and subject to Sec.  490.209(a)(1), a 
State DOT shall not change one or more of its targets for a given year 
once it is submitted in the HSIP annual report.
    (b) In addition to targets described in paragraph (a) of this 
section, State DOTs may, as appropriate, for each target in paragraph 
(a) establish additional targets for portions of the State.
    (1) A State DOT shall declare and describe in the State HSIP annual 
report

[[Page 182]]

required by Sec.  490.213 the boundaries used to establish each 
additional target.
    (2) State DOTs may select any number and combination of urbanized 
area boundaries and may also select a single non-urbanized area boundary 
for the establishment of additional targets.
    (3) The boundaries used by the State DOT for additional targets 
shall be contained within the geographic boundary of the State.
    (4) State DOTs shall evaluate separately the progress of each 
additional target and report that progress in the State HSIP annual 
report (see 23 CFR part 924).
    (c) The Metropolitan Planning Organizations (MPO) shall establish 
performance targets for each of the measures identified in Sec.  
490.207(a), where applicable, in a manner that is consistent with the 
following:
    (1) The MPOs shall establish targets not later than 180 days after 
the respective State DOT establishes and reports targets in the State 
HSIP annual report.
    (2) The MPO target shall represent performance outcomes anticipated 
for the same calendar year as the State target.
    (3) After the MPOs within each State establish the targets, the 
State DOT must be able to provide those targets to FHWA, upon request.
    (4) For each performance measure, the MPOs shall establish a target 
by either:
    (i) Agreeing to plan and program projects so that they contribute 
toward the accomplishment of the State DOT safety target for that 
performance measure; or
    (ii) Committing to a quantifiable target for that performance 
measure for their metropolitan planning area.
    (5) The MPOs that establish quantifiable fatality rate or serious 
injury rate targets shall report the VMT estimate used for such targets 
and the methodology used to develop the estimate. The methodology should 
be consistent with other Federal reporting requirements, if applicable.
    (6) The MPO targets established under paragraph (c)(4) of this 
section specific to the metropolitan planning area shall represent the 
anticipated performance outcome for all public roadways within the 
metropolitan planning boundary regardless of ownership or functional 
class.
    (d)(1) The State DOT and relevant MPOs shall coordinate on the 
establishment of targets in accordance with 23 CFR part 450 to ensure 
consistency, to the maximum extent practicable.
    (2) The MPOs with multi-State boundaries that agree to plan and 
program projects to contribute toward State targets in accordance with 
paragraph (c)(4)(i) of this section shall plan and program safety 
projects in support of the State DOT targets for each area within each 
State (e.g., MPOs that extend into two States shall agree to plan and 
program projects to contribute toward two separate sets of targets (one 
set for each State)).



Sec.  490.211  Determining whether a State department of transportation 
has met or made significant progress toward meeting performance targets.

    (a) The determination for having met or made significant progress 
toward meeting the performance targets under 23 U.S.C. 148(i) will be 
determined based on:
    (1) The most recent available Final FARS data for the fatality 
number. The FARS ARF may be used if Final FARS is not available;
    (2) The most recent available Final FARS and HPMS data for the 
fatality rate. The FARS ARF may be used if Final FARS is not available;
    (3) The most recent available Final FARS data for the non-motorized 
fatality number. The FARS ARF may be used if Final FARS is not 
available;
    (4) State reported data for the serious injuries number;
    (5) State reported data and HPMS data for the serious injuries rate; 
and
    (6) State reported data for the non-motorized serious injuries 
number.
    (b) The State-reported serious injury data and non-motorized serious 
injury data will be taken from the HSIP report in accordance with 23 CFR 
part 924.
    (c) The FHWA will evaluate whether a State DOT has met or made 
significant progress toward meeting performance targets.

[[Page 183]]

    (1) The FHWA will not evaluate any additional targets a State DOT 
may establish under Sec.  490.209(b).
    (2) A State DOT is determined to have met or made significant 
progress toward meeting its targets when at least four of the 
performance targets established under Sec.  490.207(a) are:
    (i) Met; or
    (ii) The outcome for a performance measure is less than the 5-year 
rolling average data for the performance measure for the year prior to 
the establishment of the State's target. For example, of the State DOT's 
five performance targets, the State DOT is determined to have met or 
made significant progress toward meeting its targets if it met two 
targets and the outcome is less than the measure for the year prior to 
the establishment of the target for two other targets.
    (d) If a State DOT has not met or made significant progress toward 
meeting performance targets in accordance with paragraph (c) of this 
section, the State DOT must comply with 23 U.S.C. 148(i) for the 
subsequent fiscal year.
    (e) The FHWA will first evaluate whether a State DOT has met or made 
significant progress toward meeting performance targets after the 
calendar year following the year for which the first targets are 
established, and then annually thereafter.



Sec.  490.213  Reporting of targets for the Highway Safety Improvement Program.

    (a) The targets established by the State DOT shall be reported to 
FHWA in the State's HSIP annual report in accordance with 23 CFR part 
924.
    (b) The MPOs shall annually report their established safety targets 
to their respective State DOT, in a manner that is documented and 
mutually agreed upon by both parties.
    (c) The MPOs shall report baseline safety performance, VMT estimate 
and methodology if a quantifiable rate target was established, and 
progress toward the achievement of their targets in the system 
performance report in the metropolitan transportation plan in accordance 
with 23 CFR part 450. Safety performance and progress shall be reported 
based on the following data sources:
    (1) The most recent available Final FARS data for the fatality 
number. The FARS ARF may be used if Final FARS is not available;
    (2) The most recent available Final FARS and MPO VMT estimate for 
the fatality rate. The FARS ARF may be used if Final FARS is not 
available;
    (3) The most recent available Final FARS data for the non-motorized 
fatality number. The FARS ARF may be used if Final FARS is not 
available;
    (4) State reported data for the serious injuries number;
    (5) State reported data and MPO VMT estimate for the serious 
injuries rate; and
    (6) State reported data for the non-motorized serious injuries 
number.



  Subpart C_National Performance Management Measures for the Assessing 
                           Pavement Condition

    Source: 82 FR 5962, Jan. 17, 2017, unless otherwise noted.



Sec.  490.301  Purpose.

    The purpose of this subpart is to implement the following statutory 
requirements of 23 U.S.C. 150(c)(3) to:
    (a) Establish measures for State DOTs and MPOs to assess the 
condition of pavements on the Interstate System;
    (b) Establish measures for State DOTs and MPOs to assess the 
condition of pavements on the NHS (excluding the Interstate);
    (c) Establish minimum levels for pavement condition on the 
Interstate System, only for purposes of carrying out 23 U.S.C. 
119(f)(1);
    (d) Establish data elements that are necessary to collect and 
maintain standardized data to carry out a performance-based approach; 
and
    (e) Consider regional differences in establishing the minimum levels 
for pavement conditions on the Interstate System.



Sec.  490.303  Applicability.

    The performance measures in this subpart are applicable to the 
mainline highways on the Interstate System and on the non-Interstate 
NHS.

[[Page 184]]



Sec.  490.305  Definitions.

    The following definitions are only applicable to this subpart, 
unless otherwise provided:
    Asphalt pavements means pavements where the top-most surface is 
constructed with asphalt materials. These pavements are coded in the 
HPMS as having any one of the following Surface Types:

------------------------------------------------------------------------
           Code                             Surface_type
------------------------------------------------------------------------
2........................  Bituminous.
6........................  Asphalt-Concrete (AC) Overlay over Existing
                            AC Pavement.
7........................  AC Overlay over Existing Jointed Concrete
                            Pavement.
8........................  AC (Bituminous Overlay over Existing CRCP).
------------------------------------------------------------------------

    Continuously Reinforced Concrete Pavements (CRCP) means pavements 
where the top-most surface is constructed of reinforced Portland cement 
concrete with no joints. These pavements are coded in the HPMS as having 
the following Surface Type:

------------------------------------------------------------------------
           Code                             Surface_type
------------------------------------------------------------------------
5........................  CRCP--Continuously Reinforced Concrete
                            Pavement.
------------------------------------------------------------------------

    Cracking means an unintentional break in the continuous surface of a 
pavement.
    Cracking Percent means the percentage of pavement surface exhibiting 
cracking as follows:
    (1) For asphalt pavements, Cracking Percent is the percentage of the 
area of the pavement section, exhibiting visible cracking.
    (2) For jointed concrete pavements, Cracking Percent is the 
percentage of concrete slabs exhibiting cracking.
    (3) For CRCP, the Cracking Percent is the percentage of pavement 
surface with longitudinal cracking and/or punchouts, spalling or other 
visible defects.
    Faulting means a vertical misalignment of pavement joints in 
Portland Cement Concrete Pavements.
    International Roughness Index (IRI) means a statistic used to 
estimate the amount of roughness in a measured longitudinal profile. The 
IRI is computed from a single longitudinal profile using a quarter-car 
simulation, as described in the report: ``On the Calculation of IRI from 
Longitudinal Road Profile'' (Sayers, M.W., Transportation Research Board 
1501, Transportation Research Board, Washington, DC 1995).
    Jointed concrete pavements means pavements where the top-most 
surface is constructed of Portland cement concrete with joints. It may 
be constructed of either reinforced or unreinforced (plain) concrete. It 
is coded in the HPMS as having any one of the following Surface Types:

------------------------------------------------------------------------
              Code                             Surface_type
------------------------------------------------------------------------
3...............................  Jointed Plain Concrete Pavement
                                   (includes whitetopping).
4...............................  Jointed Reinforced Concrete Pavement
                                   (includes whitetopping).
9...............................  Unbonded Jointed Concrete Overlay on
                                   PCC Pavement.
10..............................  Bonded PCC Overlay on PCC Pavement.
------------------------------------------------------------------------

    Pavement means any hard surfaced travel lanes of any highway.
    Pavement section means a nominally 0.1 mile-long reported segment 
that defines the limits of pavement condition metrics required by FHWA.
    Present Serviceability Rating (PSR) means an observation based 
system used to rate pavements.
    Punchout means a distress specific to CRCP described as the area 
between two closely spaced transverse cracks and between a short 
longitudinal crack and the edge of the pavement (or a longitudinal 
joint) that is breaking up, spalling, or faulting.
    Rutting means longitudinal surface depressions in the pavement 
derived from measurements of a profile transverse to the path of travel 
on a highway lane. It may have associated transverse displacement.

[[Page 185]]

    Sampling as applied to pavements, means measuring pavement 
conditions on a short section of pavement as a statistical 
representation for the entire section. Sampling is not to be used to 
measure or rate NHS pavement conditions.



Sec.  490.307  National performance management measures 
for assessing pavement condition.

    (a) To carry out the NHPP, the performance measures for State DOTs 
to assess pavement condition are:
    (1) Percentage of pavements of the Interstate System in Good 
condition;
    (2) Percentage of pavements of the Interstate System in Poor 
condition;
    (3) Percentage of pavements of the non-Interstate NHS in Good 
condition; and
    (4) Percentage of pavements of the non-Interstate NHS in Poor 
condition.
    (b) State DOTs will collect data using the methods described in 
Sec.  490.309 and will process this data to calculate individual 
pavement metrics for each section of pavement that will be reported to 
FHWA as described in Sec.  490.311. State DOTs and FHWA will use the 
reported pavement metrics to compute an overall performance of Good, 
Fair, or Poor, for each section of pavement as described in Sec.  
490.313.



Sec.  490.309  Data requirements.

    (a) The performance measures identified in Sec.  490.307 are to be 
computed using methods in Sec.  490.313 from the four condition metrics 
and three inventory data elements contained within the HPMS that shall 
be collected and reported following the HPMS Field Manual, which is 
incorporated by reference into this subpart (see Sec.  490.111). State 
DOTs shall report four condition metrics for each pavement section: IRI, 
rutting, faulting, and Cracking_Percent. State DOTs shall also report 
three inventory data elements as directed in the HPMS Field Manual: 
Through Lanes, Surface Type, and Structure Type. All pavement data 
collected after January 1, 2018 for Interstate highways and January 1, 
2020 for non-Interstate National Highway System routes shall meet the 
requirements of this section.
    (b) State DOTs shall collect data in accordance with the following 
relevant HPMS requirements to report IRI, rutting (asphalt pavements), 
faulting (jointed concrete pavements), and Cracking percent. State DOTs 
will be permitted to report present serviceability rating (PSR) for 
specific locations in accordance with the HPMS requirements as an 
alternative where posted speed limits are less than 40 miles per hour.
    (1) For the Interstate System the following shall apply for all the 
pavement condition metrics:
    (i) State DOTs shall collect data--
    (A) From the full extent of the mainline highway;
    (B) In the rightmost travel lane or one consistent lane for all data 
if the rightmost travel lane carries traffic that is not representative 
of the remainder of the lanes or is not readily accessible due to 
closure, excessive congestion, or other events impacting access;
    (C) Continuously collected in a manner that will allow for reporting 
in nominally uniform pavement section lengths of 0.10 mile (528 feet); 
shorter pavement sections are permitted only at the beginning of a 
route, end of a route, at bridges, at locations where surface type 
changes or other locations where a pavement section length of 0.10 mile 
is not achievable; the maximum length of pavement sections shall not 
exceed 0.11 mile (580.8 feet);
    (D) In at least one direction of travel; and
    (E) On an annual frequency.
    (ii) Estimating conditions from data samples of the full extent of 
the mainline highway is not permitted.
    (iii) State DOTs may collect and report pavement condition data 
separately for each direction of divided highways on the Interstate 
System. Averaging across directions is not permitted. When pavement 
condition data is collected in one direction only, the measured 
conditions shall apply to all lanes in both directions for that pavement 
section for purposes of this part.
    (iv) For the portions of the Interstate mainline highway pavements 
where posted speed limits are less than 40

[[Page 186]]

MPH (e.g., border crossings, toll plazas), State DOTs may collect and 
report the Present Serviceability Rating (PSR) as an alternative to the 
IRI, Cracking_Percent, rutting, and faulting in this pavement section 
and shall follow the following requirements:
    (A) The PSR shall be determined as a value from 0 to 5 per the 
procedures prescribed in the HPMS Field Manual;
    (B) Alternative pavement condition methods may be allowed to 
estimate a PSR with prior approval from FHWA of the method of 
correlation between their condition determination and PSR as required in 
the HPMS Field Manual;
    (C) The PSR data shall be continuously collected in a manner that 
will allow for reporting in uniform pavement section lengths of 0.10 
mile (528 feet); shorter pavement sections are permitted only at the 
beginning of a route, end of a route, at bridges, at locations where 
surface type changes or other locations where a pavement section length 
of 0.10 mile is not achievable; the maximum length of pavement sections 
shall not exceed 0.11 mile (580.8 feet);
    (D) The PSR data shall be collected in at least one direction of 
travel; and
    (E) The PSR data shall be collected on an annual frequency.
    (2) For the non-Interstate NHS the following shall apply:
    (i) For the IRI metric, State DOTs shall collect and report data:
    (A) From the full extent of the mainline highway;
    (B) In the rightmost travel lane or one consistent lane for all data 
if the rightmost travel lane is not accessible;
    (C) Continuously collected in a manner that will allow for reporting 
in uniform pavement section lengths of 0.10 mile (528 feet); shorter 
pavement sections are permitted only at the beginning of a route, end of 
a route, at bridges, at locations where surface type changes or other 
locations where a pavement section length of 0.10 mile is not 
achievable; the maximum length of pavement sections shall not exceed 
0.11 mile (580.8 feet)
    (D) In one direction of travel; and
    (E) On a biennial frequency.
    (F) Estimating IRI metrics from data samples of the full extent of 
the mainline will not be permitted.
    (ii) For the Cracking percent, rutting and faulting metrics, State 
DOTs shall collect data--
    (A) On the full extent (no sampling) of the mainline highway;
    (B) In the rightmost travel lane or one consistent lane for all data 
if the rightmost travel lane is not accessible;
    (C) Continuously collected in a manner that will allow for reporting 
in uniform pavement section lengths of 0.10 mile (528 feet); shorter 
pavement sections are permitted only at the beginning of a route, end of 
a route, at bridges, at locations where surface type changes or other 
locations where a pavement section length of 0.10 mile is not 
achievable; the maximum length of pavement sections shall not exceed 
0.11 mile (580.8 feet)
    (D) In one direction of travel; and
    (E) On at least a biennial frequency.
    (F) Estimating conditions from data samples of the full extent of 
the mainline highway will not be permitted.
    (iii) For the portions of mainline highways where posted speed 
limits of less than 40 MPH, State DOTs may collect the Present 
Serviceability Rating (PSR) as an alternative to the IRI, 
Cracking_Percent, rutting, and faulting pavement condition metrics, in 
paragraphs (b)(2)(i) and (ii) of this section, and shall follow the 
following requirements:
    (A) The PSR shall be determined as a 0 to 5 value per the procedures 
prescribed in the HPMS Field Manual;
    (B) Alternative pavement condition methods may be allowed to 
estimate a PSR with prior approval from FHWA of the method of 
correlation between their condition determination and PSR as required in 
the HPMS Field Manual;
    (C) The PSR data shall be continuously collected in a manner that 
will allow for reporting in uniform pavement section lengths of 0.10 
mile (528 feet); shorter pavement sections are permitted only at the 
beginning of a route, end of a route, at bridges, at locations where 
surface type changes or other locations where a pavement section length 
of 0.10 mile is not achievable; the maximum length of pavement sections 
shall not exceed 0.11 mile (580.8 feet);
    (D) The PSR data shall be collected in one direction of travel; and

[[Page 187]]

    (E) The PSR data shall be collected on at least a biennial 
frequency.
    (3) Data collection methods for each of the condition metrics shall 
conform to the following:
    (i) The device to collect data needed to calculate the IRI metric 
shall be in accordance with American Association of State Highway 
Transportation Officials (AASHTO) Standard M328-14, Standard 
Specification for Transportation Materials and Methods of Sampling and 
Testing, Standard Equipment Specification for Inertial Profiler 
(incorporated by reference, see Sec.  490.111).
    (ii) The method to collect data needed to calculate the IRI metric 
shall be in accordance with AASHTO Standard R57-14, Standard 
Specification for Transportation Materials and Methods of Sampling and 
Testing, Standard Practice for Operating Inertial Profiling Systems 
(incorporated by reference, see Sec.  490.111).
    (iii) For highways with a posted speed limit less than 40 miles per 
hour, an alternate method for estimation of IRI is permitted as 
described in Sec.  490.309(b)(1)(iv) or Sec.  490.309(b)(2)(iii) may be 
used in lieu of measuring IRI, cracking, rutting and faulting.
    (iv) The method to collect data needed to determine the 
Cracking_Percent metric for all pavement types except CRCP shall be 
manual, semi-automated, or fully automated in accordance with the HPMS 
Field Manual (incorporated by reference, see 490.111).
    (v) For CRCP the method to collect the data needed to determine the 
Cracking_Percent metric is described in the HPMS Field Manual 
(incorporated by reference, see Sec.  490.111) and includes longitudinal 
cracking and/or punchouts, spalling, or other visible defects.
    (vi) For asphalt pavements, the method to collect data needed to 
determine the rutting metric shall either be:
    (A) A 5-Point Collection of Rutting Data method in accordance with 
AASHTO Standard R48-10, Standard Specification for Transportation 
Materials and Methods of Sampling and Testing, Standard Practice for 
Determining Rut Depth in Pavements (incorporated by reference, see Sec.  
490.111); or
    (B) An Automated Transverse Profile Data method in accordance with 
the HPMS Field Manual (incorporated by reference, see Sec.  490.111).
    (vii) For jointed concrete pavements, the method to collect data 
needed to determine the faulting metric shall be in accordance with 
AASHTO Standard R36-13, Standard Specification for Transportation 
Materials and Methods of Sampling and Testing, Standard Practice for 
Evaluating Faulting of Concrete Pavements (incorporated by reference, 
see Sec.  490.111).
    (c) State DOTs shall collect data in accordance with the following 
relevant HPMS requirements to report Through Lanes, Surface Type, and 
Structure Type.
    (1) State DOTs shall collect data:
    (i) For the full extent of the mainline highway of the NHS;
    (ii) In at least one direction of travel for the Interstate System 
and in one direction of travel for the non-Interstate NHS; and
    (iii) On an annual frequency on the Interstate routes and on at 
least a biennial frequency on non-Interstate NHS routes.
    (2) Estimating data elements from samples of the full extent of the 
mainline highway is not permitted.



Sec.  490.311  Calculation of pavement metrics.

    (a) The condition metrics and inventory data elements needed to 
calculate the pavement performance measures shall be calculated in 
accordance with the HPMS Field Manual (incorporated by reference, see 
Sec.  490.111), except as noted below.
    (b) State DOTs shall calculate metrics in accordance with the 
following relevant HPMS requirements.
    (1) For all pavements, the IRI metric:
    (i) Shall be computed from pavement profile data in accordance with 
AASHTO Standard R43-13, Standard Specification for Transportation 
Materials and Methods of Sampling and Testing, Standard Practice for 
Quantifying Roughness of Pavement, 2014, 34th/2014 Edition, AASHTO, 1-
56051-606-4 (incorporated by reference, see Sec.  490.111);
    (ii) Shall be reported for all pavements as the average value in 
inches per mile for each section; and

[[Page 188]]

    (iii) Shall not be estimated from a PSR or other observation-based 
method except where permitted in Sec.  490.309(b)(3)(iii).
    (2) For asphalt pavements--
    (i) The Cracking_Percent metric shall be computed as the percentage 
of the total area containing visible cracks to the nearest whole percent 
in each section; and
    (ii) The rutting metric shall be computed as the average depth of 
rutting, in inches to the nearest 0.01 inches, for the section.
    (3) For CRCP, the Cracking_Percent metric shall be computed as the 
percentage of the area of the section to the nearest whole percent 
exhibiting longitudinal cracking, punchouts, spalling, or other visible 
defects. Transverse cracking shall not be considered in the 
Cracking_Percent metric.
    (4) For jointed concrete pavements--
    (i) The Cracking_Percent metric shall be computed as the percentage 
of slabs to the nearest whole percent within the section that exhibit 
cracking;
    (ii) Partial slabs shall contribute to the section that contains the 
majority of the slab length; and
    (iii) The faulting metric shall be computed as the average height, 
in inches to the nearest 0.01 inch, of faulting between pavement slabs 
for the section.
    (5) For the mainline highways on the non-Interstate NHS with posted 
speed limits of less than 40 MPH--
    (i) The present serviceability rating (PSR) may be used as an 
alternative to the IRI, Cracking_Percent, rutting, and faulting pavement 
condition metrics.
    (ii) The PSR shall be determined as a 0 to 5 value per the 
procedures prescribed in the HPMS Field Manual.
    (iii) Alternative pavement condition methods may be allowed to 
estimate a PSR with prior approval from FHWA of the method of 
correlation between their condition determination and PSR as required in 
the HPMS Field Manual.
    (c) State DOTs shall report the four pavement metrics listed in 
Sec.  490.309(a) as calculated following the requirements in paragraphs 
(a) and (b) of this section in accordance with the following relevant 
HPMS requirements:
    (1) Pavement condition metrics shall be reported to the HPMS in 
uniform section lengths of 0.1 mile (528 feet); shorter sections are 
permitted only at the beginning of a route, the end of a route, at 
bridges, or other locations where a section length of 0.1 mile is not 
achievable; and the maximum length of sections shall not exceed 0.11 
mile (580.8 feet)
    (2) Each measured section shall have a single value for each of the 
relevant condition metrics. Sections where condition is estimated from 
PSR will have one value for the overall condition.
    (3) The time and location reference shall be reported for each 
section as follows:
    (i) The State_Code, Route_ID, Begin_Point, and End_Point shall be 
reported as specified in the HPMS field manual (incorporated by 
reference, see Sec.  490.111) for each of the four condition metrics.
    (ii) The Year_Record shall be reported as the four digit year for 
which the data represents for each of the four condition metrics; and
    (iii) The Value_Date shall be reported as the month and year of data 
collection for each of the four condition metrics.
    (4) Sections for the four condition metrics shall be reported to the 
HPMS for the Interstate System by April 15 of each year for the data 
collected during the previous calendar year.
    (5) Sections for the four condition metrics shall be reported to the 
HPMS for the non-Interstate NHS by June 15 of each year for the data 
collected during the previous calendar year(s).
    (d) The three inventory data elements, Through_Lanes, Surface_Type, 
and Structure Type shall be reported to the HPMS as directed in Chapter 
4 of the HPMS Field Manual for the entire extent of the NHS.
    (1) Section Lengths for the three inventory data items are not 
required to meet the 0.1 mile nominal length but may be any logical 
length as defined in the HPMS Field Manual.
    (2) The three inventory data elements shall be reported to the HPMS

[[Page 189]]

for the Interstate System by April 15 of each year.
    (3) The three inventory data elements shall be reported to the HPMS 
for the non-Interstate NHS by June 15 of the each year that data 
reporting is required.



Sec.  490.313  Calculation of performance management measures.

    (a) The pavement measures in Sec.  490.307 shall be calculated in 
accordance with this section and used by State DOTs and MPOs to carry 
out the pavement condition related requirements of this part, and by 
FHWA to make the significant progress and minimum condition 
determinations specified in Sec. Sec.  490.109 and 490.317, 
respectively.
    (b) The performance measure for pavements shall be calculated based 
on the data collected in Sec.  490.309 and pavement condition metrics 
computed in Sec.  490.311. The performance measure for pavements shall 
be based on three condition ratings of Good, Fair, and Poor calculated 
for each pavement section. The ratings are determined as follows:
    (1) IRI rating shall be determined for all pavement types using the 
following criteria. If an IRI value of a pavement section is:--
    (i) Less than 95, the IRI rating for the pavement section is Good;
    (ii) Between 95 and 170, the IRI rating for the pavement section is 
Fair; and
    (iii) Greater than 170, the IRI rating for the pavement section is 
Poor.
    (2) Cracking condition shall be determined using the following 
criteria:
    (i) For asphalt pavement sections--
    (A) If the Cracking_Percent value of a section is less than 5 
percent, the cracking rating for the pavement section is Good;
    (B) If the Cracking_Percent value of a section is equal to or 
greater than 5 percent and less than or equal to 20 percent the cracking 
rating for the pavement section is Fair; and
    (C) If the Cracking_Percent value of a section is greater than 20 
percent the cracking rating for the pavement section is Poor.
    (ii) For jointed concrete pavement sections--
    (A) If the Cracking_Percent value of a section is less than 5 
percent, the cracking rating for the pavement section is Good;
    (B) If the Cracking_Percent value of a section is equal to or 
greater than 5 percent and less than or equal to 15 percent the cracking 
rating for the pavement section is Fair; and
    (C) If the Cracking_Percent value of a section is greater than 15 
percent the cracking rating for the pavement section is Poor.
    (iii) For CRCP sections:
    (A) If the Cracking_Percent value of a section is less than 5 
percent, the cracking rating for the pavement section is Good;
    (B) If the Cracking_Percent value of a section is equal to or 
greater than 5 percent and less than or equal to 10 percent, the 
cracking rating for the pavement section is Fair; and
    (C) If the Cracking_Percent value of a section is greater than 10 
percent, the cracking rating for the pavement section is Poor.
    (3) Rutting or faulting rating shall be determined using the 
following criteria.
    (i) For asphalt pavement:
    (A) If the rutting value of a section is less than 0.20 inches, the 
rutting rating for the pavement section is Good;
    (B) If the rutting value of a section is equal to or greater than 
0.20 inches and less than or equal to 0.40 inches, the rutting rating 
for the pavement section is Fair; and
    (C) If the rutting value of a section in is greater than 0.40 
inches, the rutting rating for the pavement section is Poor.
    (ii) For jointed concrete pavement:
    (A) If the faulting value of a section is less than 0.10 inches, the 
faulting rating for the pavement section is Good;
    (B) If the faulting value of a section is equal to or greater than 
0.10 inches and less than or equal to 0.15 inches, the faulting rating 
for the pavement section is Fair; and
    (C) If the faulting value of a section is greater than 0.15 inches, 
the faulting rating for the pavement section is Poor.
    (4) The FHWA will determine that a reported section in HPMS has a 
missing, invalid or unresolved data on the


[[Page 190]]

dates specified in Sec.  490.317(b) for Interstate System and Sec.  
490.109(d)(2) and (d)(4) for non-Interstate NHS, if a reported section 
does not meet any one of the data requirements specified in Sec. Sec.  
490.309 and 490.311(c) or that reported section does not provide 
sufficient data to determine its Overall Condition specified in 
paragraphs (c) through (f) of this section:
    (i) Total mainline lane-miles of missing, invalid, or unresolved 
sections for Interstate System and non-Interstate NHS shall be limited 
to no more than 5 percent of the total lane miles less the sections 
excluded in Sec.  490.313(f)(1). For each pavement section without 
collected its condition metrics and inventory data, State DOTs shall 
note in the HPMS submittal with a specific code identified in the HPMS 
Field Manual (incorporated by reference, see Sec.  490.111) noting the 
reason it was not collected.
    (ii) Calculation of overall pavement conditions in any State meeting 
the requirements of Sec.  490.309(b) shall be based only on sections 
containing data reported in the HPMS Submittal as of the submission 
dates required in Sec.  490.311(c)(4) and (5). State DOTs not meeting 
the requirements of Sec.  490.309(b) will be considered as not in 
compliance with Sec.  420.105(b) requiring State DOTs to submit data to 
the HPMS and not in compliance with Sec.  490.107 requiring reporting on 
performance targets. Failure to report data meeting the requirements of 
Sec.  490.309(b) by the submission dates for the Interstate System will 
be considered as not meeting the minimum requirements for pavement 
conditions on the Interstate System and that State DOT is subject to the 
penalties in Sec.  490.315.
    (c) The Overall condition for asphalt and jointed concrete pavement 
sections shall be determined based on the ratings for IRI, 
Cracking_Percent, rutting and faulting, as described in paragraphs 
(b)(1), (b)(2), (b)(3) and (b)(4) of this section, respectively, for 
each section as follows:
    (1) A pavement section shall be rated an overall condition of Good 
only if the section is exhibiting Good ratings for all three conditions 
(IRI, Cracking_Percent, and rutting or faulting);
    (2) A pavement section shall be rated an overall condition of Poor 
if two or more of the three conditions are exhibiting Poor ratings (at 
least two ratings of Poor for IRI, Cracking_Percent, and rutting or 
faulting).
    (3) A pavement section shall be rated an overall condition of Fair 
if it does not meet the criteria in paragraphs (c)(1) or (c)(2) of this 
section.
    (4) For sections on roadways where the posted speed limit is less 
than 40 MPH and where the State DOT has reported PSR in lieu of the IRI, 
Cracking_Percent, rutting, and faulting metrics the PSR condition level 
shall be determined using the following criteria:
    (i) If the PSR of a section is equal to or greater than 4.0 the PSR 
rating for the pavement section is Good;
    (ii) If the PSR of a section is less than 4.0 and greater than 2.0 
the PSR rating for the pavement section is Fair; and
    (iii) If the PSR of a section is less than or equal to 2.0 the PSR 
rating for the pavement section is Poor.
    (d) The Overall condition for CRCP sections shall be determined 
based on two ratings of IRI and Cracking_Percent, as described in 
paragraphs (b)(1) and (b)(2) of this section or based on PSR where 
appropriate as described in paragraph (c)(4) of this section, 
respectively, for each section as follows:
    (1) A pavement section shall be rated an overall condition of Good 
only if the section is exhibiting Good ratings for both conditions (IRI 
and Cracking_Percent);
    (2) A pavement section shall be rated an overall condition of Poor 
if it exhibits Poor ratings for both conditions (IRI and 
Cracking_Percent);
    (3) A pavement section shall be rated an overall condition of Fair 
if it does not meet the criteria in paragraphs (d)(1) or (d)(2) of this 
section.
    (4) For pavement sections that are on roadways with a posted speed 
limit of less than 40 MPH where the State DOT reported the PSR metric in 
lieu of the IRI, Cracking_Percent, faulting, and rutting metrics the 
pavement section shall be rated an overall condition equal to the PSR 
condition rating as described in section (c)(4) above

[[Page 191]]

    (e) State DOTs shall not be subject to paragraphs (c) and (d) of 
this section for Pavements on the until after the data collection cycle 
ending December 31, 2018, for Interstate highways and December 31, 2021, 
for the non-Interstate NHS. During this transition period, the Overall 
condition for all pavement types will be based on IRI rating, as 
described in paragraph (b)(1) of this section, or on PSR as described in 
paragraphs (c)(4) or (d)(4) of this section.
    (f) The pavement condition measures in Sec.  490.307 shall be 
computed as described below. The measures shall be used for establishing 
targets in accordance with Sec.  490.105 and reporting the conditions of 
the pavements in the biennial performance reporting required in Sec.  
490.107 as follows:
    (1) Bridges shall be excluded prior to computing all pavement 
condition measures by removing the sections where the Structure_Type 
data item in the HPMS is coded as 1. Sections that have an unpaved 
surface or an ``other'' surface type (such as cobblestone, planks, 
brick) shall be excluded prior to computing all pavement condition 
measures by removing the sections where the Surface Type data item in 
the HPMS is coded as 1 or as 11.
    (2) For Sec.  490.307(a)(1) the measure for percentage of lane-miles 
of the Interstate System in Good condition shall be computed to the one 
tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.019

Where:

Good = total number of mainline highway Interstate System sections where 
          the overall condition is Good;
g = a section's overall condition is determined Good per paragraphs (b) 
          or (c) of this section;
t = an Interstate System section;
Total = total number of mainline highway Interstate System sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section.
Begin_Point = Begin Milepost of each section g or t;
End Point = End Milepost of each section g or t; and
Through_lanes = the number of lanes designated for through-traffic 
          represented by a section g or t.

    (3) For Sec.  490.307(a)(2) the measure for percentage of lane-miles 
of the Interstate System in Poor condition shall be computed to the one 
tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.020

Where:

Poor = total number of mainline highway Interstate System sections where 
          the overall condition is Poor;
p = a section's overall condition is determined Poor per paragraphs (b) 
          or (c) of this section;
t = an Interstate System section;
Total = total number of mainline highway Interstate System sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section;
Begin_Point = Begin Milepost of each section p or t;
End Point = End Milepost of each section p or t; and
Through_lanes = the number of lanes designated for through-traffic 
          represented by a section p or t.

    (4) For Sec.  490.307(a)(3) the measure for percentage of lane-miles 
of the non-

[[Page 192]]

Interstate NHS in Good condition in Sec.  490.307(a)(3) shall be 
computed to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.021

Where:

Good = total number of mainline highway non-Interstate NHS sections 
          where the overall condition is Good;
g = a section's overall condition is determined Good per paragraphs (b), 
          (c) or (d) of this section;
t = a non-Interstate NHS section;
Total = total number of mainline highway non-Interstate NHS sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section;
Begin_Point = Begin Milepost of each section g or t;
End Point = End Milepost of each section g or t; and
Through_lanes = the number of lanes designated for through-traffic 
          represented by a section g or t.
    (5) For Sec.  490.307(a)(4) the measure for percentage of lane-miles 
of the non-Interstate NHS in Poor condition in Sec.  490.307(a)(4) shall 
be computed to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.022

Where:

Poor = total number of mainline highway non-Interstate NHS sections 
          where the overall condition is Poor;
p = a section's overall condition is determined Poor per paragraphs (b), 
          (c) or (d) of this section;
t = a non-Interstate NHS section;
Total = total number of mainline highway non-Interstate NHS sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section;
Begin_Point = Begin Milepost of each section p or t;
End Point = End Milepost of each section p or t; and
Through_lanes = the number of lanes designated for through-traffic 
          represented by a section p or t.



Sec.  490.315  Establishment of minimum level for condition of pavements.

    (a) For the purposes of carrying out the requirements of 23 U.S.C. 
119(f)(1), the percentage of lane-miles of Interstate System in Poor 
condition, as computed per Sec.  490.313(e)(3), shall not exceed 5.0 
percent except as noted in paragraph (b) of this section.
    (b) For the purposes of carrying out the requirements of 23 U.S.C. 
119(f)(1), the percentage of lane-miles of Interstate System in Poor 
condition within the State of Alaska, as computed per Sec.  
490.313(e)(3), shall not exceed 10.0 percent.



Sec.  490.317  Penalties for not maintaining minimum 
Interstate System pavement condition.

    (a) The FHWA shall compute the Percentage of lane-miles of the 
Interstate System, excluding sections on bridges, in Poor Condition, in 
accordance with Sec.  490.313(e)(3), for each State annually.
    (b) Each year, FHWA shall extract data contained within the HPMS on 
June 15 that represents conditions from the prior calendar year for 
Interstate System pavement conditions to carry out paragraph (a) of this 
section, beginning with data collected during the 2018 calendar year.

[[Page 193]]

    (c) The FHWA shall determine if a State DOT is in compliance with 
Sec.  490.315(a) or Sec.  490.315(b) and 23 U.S.C. 119(f)(1) after the 
first full year of data collection for the Interstate System and each 
year thereafter.
    (d) The FHWA will notify State DOTs of their compliance with 23 
U.S.C. 119(f)(1) prior to October 1 of the year in which the 
determination was made.
    (e) If FHWA determines through conduct of paragraph (d) of this 
section a State DOT to be out of compliance with 23 U.S.C. 119(f)(1) 
then the State DOT shall, during the following fiscal year:
    (1) Obligate, from the amounts apportioned to the State DOT under 23 
U.S.C. 104(b)(1) (for the NHPP), an amount that is not less than the 
amount of funds apportioned to the State for Federal fiscal year 2009 
under the Interstate Maintenance program for the purposes described in 
23 U.S.C. 119 (as in effect on the day before the date of enactment of 
the MAP-21), except that for each year after Federal fiscal year 2013, 
the amount required to be obligated under this clause shall be increased 
by 2 percent over the amount required to be obligated in the previous 
fiscal year; and
    (2) Transfer, from the amounts apportioned to the State DOT under 23 
U.S.C. 104(b)(2) (for the Surface Transportation Program) (other than 
amounts sub-allocated to metropolitan areas and other areas of the State 
under 23 U.S.C. 133(d)) to the apportionment of the State under 23 
U.S.C. 104(b)(1), an amount equal to 10 percent of the amount of funds 
apportioned to the State for fiscal year 2009 under the Interstate 
Maintenance program for the purposes described in 23 U.S.C. 119 (as in 
effect on the day before the date of enactment of the MAP-21).



Sec.  490.319  Other requirements.

    (a) In accordance with the HPMS Field Manual (incorporated by 
reference, see Sec.  490.111), each State DOT shall report the following 
to the HPMS no later than April 15 each year:
    (1) The pavement condition metrics specified in Sec.  490.311 that 
are necessary to calculate the Interstate System condition measures 
identified in Sec. Sec.  490.307(a)(1) and (a)(2) and;
    (2) The data elements specified in Sec.  490.309(c) for the 
Interstate System
    (b) In accordance with the HPMS Field Manual (incorporated by 
reference, see Sec.  490.111), each State DOT shall report to the HPMS 
no later than June 15 each year the pavement condition metrics specified 
in Sec.  490.311 that are necessary to calculate the non-Interstate NHS 
condition measures in Sec. Sec.  490.307(a)(3) and (a)(4).
    (c) Each State DOT shall develop and utilize a Data Quality 
Management Program, approved by FHWA that addresses the quality of all 
data collected, regardless of the method of acquisition, to report the 
pavement condition metrics, discussed in Sec.  490.311, and data 
elements discussed in Sec.  490.309(c).
    (1) In a Data Quality Management Programs, State DOTs shall include, 
at a minimum, methods and processes for:
    (i) Data collection equipment calibration and certification;
    (ii) Certification process for persons performing manual data 
collection;
    (iii) Data quality control measures to be conducted before data 
collection begins and periodically during the data collection program;
    (iv) Data sampling, review and checking processes; and
    (v) Error resolution procedures and data acceptance criteria.
    (2) Not later than 1 year after the effective date of this 
regulation, State DOTs shall submit their Data Quality Management 
Program to FHWA for approval. Once FHWA approves a State DOT's Data 
Quality Management Program, the State DOT shall use that Program to 
collect and report data required by Sec. Sec.  490.309 to 490.311. State 
DOTs also shall submit any proposed significant change to the Data 
Quality Management Program to FHWA for approval prior to implementing 
the change.



Subpart D_National Performance Management Measures for Assessing Bridge 
                                Condition

    Source: 82 FR 5968, Jan. 18, 2017, unless otherwise noted.

[[Page 194]]



Sec.  490.401  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(3)(A)(ii)(III), which requires the Secretary of 
Transportation to establish performance measures for the purpose of 
carrying out the NHPP and for State DOTs and MPOs to use in assessing 
the condition of bridges carrying the NHS which includes on- and off-
ramps connected to the NHS.



Sec.  490.403  Applicability.

    The section is only applicable to bridges carrying the NHS, which 
includes on- and off-ramps connected to the NHS.



Sec.  490.405  Definitions.

    The following definitions are only applicable to this subpart, 
unless otherwise provided:
    Structurally deficient as used in Sec. Sec.  490.411 and 490.413 is 
a classification given to a bridge which has any component in Poor or 
worse condition or the adequacy of the waterway opening provided by the 
bridge is determined to be insufficient to the point of causing 
overtopping with intolerable traffic interruptions. Beginning with 
calendar year 2018 and thereafter, structurally deficient as used in 
Sec. Sec.  490.411 and 490.413 is a classification given to a bridge 
which has any component in Poor or worse condition.



Sec.  490.407  National performance management measures 
for assessing bridge condition.

    (a) There are three classifications for the purpose of assessing 
bridge condition. They are:
    (1) Percentage of NHS bridges classified as in Good condition;
    (2) Percentage of NHS bridges classified as in Fair condition; and
    (3) Percentage of NHS bridges classified as in Poor condition.
    (b) [Reserved]
    (c) To carry out the NHPP, two of the three classifications are 
performance measures for State DOTs to use to assess bridge condition on 
the NHS. They are:
    (1) Percentage of NHS bridges classified as in Good condition; and
    (2) Percentage of NHS bridges classified as in Poor condition.
    (d) Determination of Good and Poor conditions are described in Sec.  
490.409.



Sec.  490.409  Calculation of National performance management measures 
for assessing bridge condition.

    (a) The bridge measures in Sec.  490.407 shall be calculated in 
accordance with this section and used by State DOTs and MPOs to carry 
out the bridge condition related requirements of this part and by FHWA 
to make the significant progress determination specified in Sec.  
490.109.
    (b) The condition of bridges carrying the NHS, which includes on- 
and off-ramps connected to the NHS, shall be classified as Good, Fair, 
or Poor following the criteria specified in this paragraph. The 
assignment of a classification of Good, Fair, or Poor shall be based on 
the bridge's condition ratings for NBI Items 58--Deck, 59--
Superstructure, 60--Substructure, and 62--Culverts. For the purposes of 
national performance measures under the NHPP, the method of assessment 
to determine the classification of a bridge will be the minimum of 
condition rating method (i.e., the condition ratings for lowest rating 
of a bridge's 3 NBI Items, 58--Deck, 59--Superstructure, and 60--
Substructure). For culverts, the rating of its NBI Item, 62--Culverts, 
will determine its classification. The bridges carrying the NHS which 
includes on- and off-ramps connected to the NHS will be classified as 
Good, Fair, or Poor based on the following criteria:
    (1) Good: When the lowest rating of the 3 NBI items for a bridge 
(Items 58--Deck, 59--Superstructure, 60--Substructure) is 7, 8, or 9, 
the bridge will be classified as Good. When the rating of NBI item for a 
culvert (Item 62--Culverts) is 7, 8, or 9, the culvert will be 
classified as Good.
    (2) Fair: When the lowest rating of the 3 NBI items for a bridge is 
5 or 6, the bridge will be classified as Fair. When the rating of NBI 
item for a culvert is 5 or 6, the culvert will be classified as Fair.
    (3) Poor: When the lowest rating of the 3 NBI items for a bridge is 
4, 3, 2, 1, or 0, the bridge will be classified as Poor. When the rating 
of NBI item for

[[Page 195]]

a culvert is 4, 3, 2, 1, or 0, the culvert will be classified as Poor.
    (c) The bridge measures specified in Sec.  490.407(c) shall be 
calculated for the applicable bridges per paragraph (a) that pertain to 
each target established by the State DOT or MPO in Sec. Sec.  490.105(e) 
and 490.105(f), respectively, as follows:
    (1) For Sec.  490.407(c)(1), the measure for the percentage of 
bridges classified as in Good condition shall be computed and reported 
to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.023

Where:

GOOD = total number of the applicable bridges, where their condition is 
          Good per paragraph (b)(1) of this section;
g = a bridge determined to be in Good condition per paragraph (b)(1) of 
          this section;
Length = corresponding value of NBI Item 49--Structure Length for every 
          applicable bridge;
Width = corresponding value of NBI Item 52--Deck Width or value of Item 
          32 Approach Roadway Width for culverts where the roadway is on 
          a fill [i.e., traffic does not directly run on the top slab 
          (or wearing surface) of the culvert] and the headwalls do not 
          affect the flow of traffic for every applicable bridge.
s = an applicable bridge per paragraph (b) of this section; and
TOTAL = total number of the applicable bridges specified in paragraph 
          (b) of this section.

    (2) For Sec.  490.407(c)(2), the measure for the percentage of 
bridges classified as in Poor condition shall be computed and reported 
to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.024

Where:

POOR = total number of the applicable bridges, where their condition is 
          Poor per paragraph (b)(3) of this section;
p = a bridge determined to be in Poor condition per paragraph (b)(3) of 
          this section;
Length = corresponding value of NBI Item 49--Structure Length for every 
          applicable bridge;
Width = corresponding value of NBI Item 52--Deck Width or value of Item 
          32 Approach Roadway Width for culverts where the roadway is on 
          a fill [i.e., traffic does not directly run on the top slab 
          (or wearing surface) of the culvert] and the headwalls do not 
          affect the flow of traffic for every applicable bridge.
s = an applicable bridge per paragraph (b) of this section; and
    TOTAL = total number of the applicable bridges specified in 
paragraph (b) of this section.

    (d) The measures identified in Sec.  490.407(c) shall be used to 
establish targets in accordance with Sec.  490.105 and report targets 
and conditions described in Sec.  490.107.
    (e) The NBI Items included in this section are found in the 
Recording and Coding Guide for the Structure Inventory and Appraisal of 
the Nation's Bridges, which is incorporated by reference (see Sec.  
490.111).



Sec.  490.411  Establishment of minimum level for condition for bridges.

    (a) State DOTs will maintain bridges so that the percentage of the 
deck area of bridges classified as Structurally Deficient does not 
exceed 10.0 percent. This minimum condition level is applicable to 
bridges carrying the NHS, which includes on- and off-ramps connected to 
the NHS within a State, and bridges carrying the NHS that cross a State 
border.

[[Page 196]]

    (b) For the purposes of carrying out this section and Sec.  490.413, 
a bridge will be classified as Structurally Deficient when one of its 
NBI Items, 58--Deck, 59--Superstructure, 60--Substructure, or 62--
Culverts, is 4 or less, or when one of its NBI Items, 67--Structural 
Evaluation or 71--Waterway Adequacy, is 2 or less. Beginning with 
calendar year 2018 and thereafter, a bridge will be classified as 
Structurally Deficient when one of its NBI Items, 58--Deck, 59--
Superstructure, 60--Substructure, or 62--Culverts, is 4 or less.
    (c) For all bridges carrying the NHS, which includes on- and off-
ramps connected to the NHS and bridges carrying the NHS that cross a 
State border, FHWA shall calculate a ratio of the total deck area of all 
bridges classified as Structurally Deficient to the total deck area of 
all applicable bridges for each State. The percentage of deck area of 
bridges classified as Structurally Deficient shall be computed by FHWA 
to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.025

Where:

Structurally Deficient = total number of the applicable bridges, where 
          their classification is Structurally Deficient per this 
          section and Sec.  490.413;
SD = a bridge classified as Structurally Deficient per this section and 
          Sec.  490.413;
Length = corresponding value of NBI Item 49--Structure Length for every 
          applicable bridge;
Width = corresponding value of NBI Item 52--Deck Width
Beginning with calendar year 2018 and thereafter, Width = corresponding 
          value of NBI Item 52--Deck Width or value of Item 32 Approach 
          Roadway Width for culverts where the roadway is on a fill 
          [i.e., traffic does not directly run on the top slab (or 
          wearing surface) of the culvert] and the headwalls do not 
          affect the flow of traffic for every applicable bridge.
s = an applicable bridge per this section and Sec.  490.413; and
TOTAL = total number of the applicable bridges specified in this section 
          and Sec.  490.413.

    (d) The FHWA will annually determine the percentage of the deck area 
of NHS bridges classified as Structurally Deficient for each State DOT 
and identify State DOTs that do not meet the minimum level of condition 
for NHS bridges based on data cleared in the NBI as of June 15 of each 
year. The FHWA will notify State DOTs of their compliance with 23 U.S.C. 
119(f)(2) prior to October 1 of the year in which the determination was 
made.
    (e) For the purposes of carrying out this section, State DOTs will 
annually submit their most current NBI data on highway bridges to FHWA 
no later than March 15 of each year.
    (f) The NBI Items included in this section are found in the 
Recording and Coding Guide for the Structure Inventory and Appraisal of 
the Nation's Bridges, which is incorporated by reference (see Sec.  
490.111).



Sec.  490.413  Penalties for not maintaining bridge condition.

    (a) If FHWA determines for the 3-year period preceding the date of 
the determination, that more than 10.0 percent of the total deck area of 
bridges in the State on the NHS is located on bridges that have been 
classified as Structurally Deficient, the following requirements will 
apply.
    (1) During the fiscal year following the determination, the State 
DOT shall obligate and set aside in an amount equal to 50 percent of 
funds apportioned to such State for fiscal year 2009 to carry out 23 
U.S.C. 144 (as in effect the day before enactment of MAP-21) from 
amounts apportioned to a State for a fiscal year under 23 U.S.C. 
104(b)(1) only for eligible projects on bridges on the NHS.
    (2) The set-aside and obligation requirement for bridges on the NHS 
in a State in paragraph (a) of this section for a fiscal year shall 
remain in effect

[[Page 197]]

for each subsequent fiscal year until such time as less than 10 percent 
of the total deck area of bridges in the State on the NHS is located on 
bridges that have been classified as Structurally Deficient as 
determined by FHWA.
    (b) The FHWA will make the first determination by October 1, 2016, 
and each fiscal year thereafter.



Subpart E_National Performance Management Measures To Assess Performance 
                     of the National Highway System

    Source: 82 FR 6042, Jan. 18, 2017, unless otherwise noted.



Sec.  490.501  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(3)(A)(ii)(IV) and (V) to establish performance measures 
for State Departments of Transportation (State DOTs) and Metropolitan 
Planning Organizations (MPOs) to use to assess:
    (a) Performance of the Interstate System; and
    (b) Performance of the non-Interstate National Highway System (NHS).



Sec.  490.503  Applicability.

    (a) The performance measures are applicable to those portions of the 
mainline highways on the NHS as provided in paragraphs (a)(1) and (2) of 
this section (and in more detail in Sec.  490.507):
    (1) The Travel Time Reliability measures in Sec.  490.507(a) are 
applicable to all directional mainline highways on the Interstate System 
and non-Interstate NHS.
    (2) [Reserved]
    (b) [Reserved]

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.505  Definitions.

    All definitions in Sec.  490.101 apply to this subpart. Unless 
otherwise specified in this subpart, the following definitions apply to 
this subpart:
    Level of Travel Time Reliability is a comparison, expressed as a 
ratio, of the 80th percentile travel time of a reporting segment to the 
``normal'' (50th percentile) travel time of a reporting segment 
occurring throughout a full calendar year.
    Normal Travel Time (or 50th percentile travel time) is the time of 
travel to traverse the full extent of a reporting segment which is 
greater than the time for 50 percent of the travel in a calendar year to 
traverse the same reporting segment.
    Travel time cumulative probability distribution means a 
representation of all the travel times for a road segment during a 
defined reporting period (such as annually) presented in a percentile 
ranked order as provided in the travel time data set. The normal (50th 
percentile) and 80th percentile travel times used to compute the Travel 
Time Reliability measures may be identified by the travel time 
cumulative probability distribution.

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.507  National performance management measures for system performance.

    There are two performance measures to assess the performance of the 
Interstate System and the performance of the non-Interstate NHS for the 
purpose of carrying out the National Highway Performance Program 
(referred to collectively as the NHS Performance measures).
    (a) Two measures are used to assess reliability (referred to 
collectively as the Travel Time Reliability measures). They are:
    (1) Percent of the person-miles traveled on the Interstate that are 
reliable (referred to as the Interstate Travel Time Reliability 
measure); and
    (2) Percent of person-miles traveled on the non-Interstate NHS that 
are reliable (referred to as the Non-Interstate Travel Time Reliability 
measure).
    (b) [Reserved]

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.509  Data requirements.

    (a) Travel time data needed to calculate the Travel Time Reliability 
measures in Sec.  490.507(a) shall come from the travel time data set, 
as specified in Sec.  490.103(e).

[[Page 198]]

    (1) State DOTs, in coordination with MPOs, shall define reporting 
segments in accordance with Sec.  490.103(f). Reporting segments must be 
contiguous so that they cover the full extent of the mainline highways 
of the NHS in the State.
    (2) [Reserved]
    (b) State DOTs shall not replace missing travel times when data are 
not available in the travel time data set (data not reported, or 
reported as ``0'' or null) as specified in Sec.  490.511(b)(1)(v).
    (c) AADT needed to calculate the Travel Time Reliability measures 
will be used, as reported to HPMS in June of the reporting year, to 
assign an annual volume to each reporting segment. Annual volume will be 
calculated as:

Annual Volume = AADT x 365 days

    (d) The average occupancy factors for the State and/or metropolitan 
area (as applicable) needed to calculate Travel Time Reliability 
measures shall come from the most recently available data tables 
published by FHWA unless using other allowed data source(s).
    (e) If an NHS roadway is closed, the State DOT is not required to 
include those time periods for those segments of road in the 
calculations required for the Level of Travel Time Reliability (LOTTR) 
metric (see Sec.  490.511(a)(1)).

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.511  Calculation of National Highway System performance metrics.

    (a) Two performance metrics are required for the NHS Performance 
measures specified in Sec.  490.507. These are:
    (1) Level of Travel Time Reliability (LOTTR) for the Travel Time 
Reliability measures in Sec.  490.507(a) (referred to as the LOTTR 
metric).
    (2) [Reserved]
    (b) The State DOT shall calculate the LOTTR metrics for each NHS 
reporting segment in accordance with the following:
    (1) Data sets shall be created from the travel time data set to be 
used to calculate the LOTTR metrics. This data set shall include, for 
each reporting segment, a ranked list of average travel times for all 
traffic (``all vehicles'' in NPMRDS nomenclature), to the nearest 
second, for 15 minute periods of a population that:
    (i) Includes travel times occurring between the hours of 6 a.m. and 
10 a.m. for every weekday (Monday-Friday) from January 1st through 
December 31st of the same year;
    (ii) Includes travel times occurring between the hours of 10 a.m. 
and 4 p.m. for every weekday (Monday-Friday) from January 1st through 
December 31st of the same year;
    (iii) Includes travel times occurring between the hours of 4 p.m. 
and 8 p.m. for every weekday (Monday-Friday) from January 1st through 
December 31st of the same year; and
    (iv) Includes travel times occurring between the hours of 6: a.m. 
and 8: p.m. for every weekend day (Saturday-Sunday) from January 1st 
through December 31st of the same year.
    (2) The Normal Travel Time (50th percentile) shall be determined 
from each data set defined under paragraph (b)(1) of this section as the 
time in which 50 percent of the times in the data set are shorter in 
duration and 50 percent are longer in duration. The 80th percentile 
travel time shall be determined for each data set defined under 
paragraph (b)(1) of this section as the time in which 80 percent of the 
times in the data set are shorter in duration and 20 percent are longer 
in duration. Both the Normal and 80th percentile travel times can be 
determined by plotting the data on a travel time cumulative probability 
distribution graph or using the percentile functions available in 
spreadsheet and other analytical tools.
    (3) Four LOTTR metrics shall be calculated for each reporting 
segment; one for each data set defined under paragraph (b)(1) of this 
section as the 80th percentile travel time divided by the 50th 
percentile travel time and rounded to the nearest hundredth.
    (c)-(d) [Reserved]
    (e) Starting in 2018 and annually thereafter, State DOTs shall 
report the LOTTR metrics, defined in paragraph (b) of this section, in 
accordance with HPMS Field Manual by June 15th of each year for the 
previous year's measures.

[[Page 199]]

    (1) Metrics are reported to HPMS by reporting segment. All reporting 
segments where the NPMRDS is used shall be referenced by NPMRDS TMC(s) 
or HPMS section(s). If a State DOT elects to use, in part or in whole, 
the equivalent data set, all reporting segment shall be referenced by 
HPMS section(s); and
    (2) The LOTTR metric (to the nearest hundredths) for each of the 
four time periods identified in paragraphs (b)(1)(i) through (iv) of 
this section: the corresponding 80th percentile travel times (to the 
nearest second), the corresponding Normal (50th percentile) Travel Times 
(to the nearest second), and directional AADTs. If a State DOT does not 
elect to use FHWA supplied occupancy factor, as provided in Sec.  
490.507(d), that State DOT shall report vehicle occupancy factor (to the 
nearest tenth) to HPMS.
    (f) [Reserved]

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



Sec.  490.513  Calculation of National Highway System performance measures.

    (a) The NHS Performance measures in Sec.  490.507 shall be 
calculated in accordance with this section by State DOTs and MPOs to 
carry out the Interstate System and non-Interstate NHS performance-
related requirements of this part, and by FHWA to make the significant 
progress determinations specified in Sec.  490.109 and to report on 
system performance.
    (b) The Interstate Travel Time Reliability measure specified in 
Sec.  490.507(a)(1) shall be computed to the nearest tenth of a percent 
as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.027

Where:

R = total number of Interstate System reporting segments that are 
          exhibiting an LOTTR below 1.50 during all of the time periods 
          identified in Sec.  490.511(b)(1)(i) through (iv);
I = Interstate System reporting segment ``i'';
SLi = length, to the nearest thousandth of a mile, of 
          Interstate System reporting segment ``i'';
AVi = total annual traffic volume to the nearest single 
          vehicle, of the Interstate System reporting segment ``i'';
J = geographic area in which the reporting segment ``i'' is located 
          where a unique occupancy factor has been determined;
OFi = occupancy factor for vehicles on the NHS within a 
          specified geographic area within the State/Metropolitan 
          planning area; and
T = total number of Interstate System reporting segments.
(c) The Non-Interstate Travel Time Reliability measure specified in 
Sec.  490.507(a)(2) shall be computed to the nearest tenth of a percent 
as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.028

Where:

R = total number of non-Interstate NHS reporting segments that are 
          exhibiting an LOTTR below 1.50 during all of the time periods 
          identified in Sec.  490.511(b)(1)(i) through (iv);
i = non-Interstate NHS reporting segment ``i'';
SLi = length, to the nearest thousandth of a mile, of non-
          Interstate NHS reporting segment ``i'';
AVi = total annual traffic volume to the nearest 1 vehicle, 
          of the Interstate System reporting segment ``i'';

[[Page 200]]

j = geographic area in which the reporting segment ``i'' is located 
          where a unique occupancy factor has been determined;
OFj = occupancy factor for vehicles on the NHS within a 
          specified geographic area within the State/Metropolitan 
          planning area; and
T = total number of non-Interstate NHS reporting segments.

[82 FR 6031, Jan. 18, 2017, as amended at 83 FR 24936, May 31, 2018]



  Subpart F_National Performance Management Measures To Assess Freight 
                    Movement on the Interstate System

    Source: 82 FR 6044, Jan. 18, 2017, unless otherwise noted.



Sec.  490.601  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(6) to establish performance measures for State Departments 
of Transportation (State DOTs) and the Metropolitan Planning 
Organizations (MPOs) to use to assess the national freight movement on 
the Interstate System.



Sec.  490.603  Applicability.

    The performance measures to assess the national freight movement are 
applicable to the Interstate System.



Sec.  490.605  Definitions.

    The definitions in Sec.  490.101 apply to this subpart.



Sec.  490.607  National performance management measures to assess 
freight movement on the Interstate System.

    The performance measure to assess freight movement on the Interstate 
System is the: Truck Travel Time Reliability (TTTR) Index (referred to 
as the Freight Reliability measure).



Sec.  490.609  Data requirements.

    (a) Travel time data needed to calculate the Freight Reliability 
measure in Sec.  490.607 shall come from the travel time data set, as 
specified in Sec.  490.103(e).
    (b) State DOTs, in coordination with MPOs, shall define reporting 
segments in accordance with Sec.  490.103(f). Reporting segments must be 
contiguous so that they cover the full extent of the directional 
mainline highways of the Interstate in the State.
    (c) When truck travel times are not available in the travel time 
data set (data not reported, or reported as ``0'' or null) as specified 
in Sec.  490.611(a)(1)(ii) for a given 15 minute interval, State DOTs 
shall replace the missing travel time with an observed travel time that 
represents all traffic on the roadway during the same 15 minute interval 
(``all vehicles'' in NPMRDS nomenclature).
    (d) If an NHS roadway is closed, the State DOT is not required to 
include those time periods for those segments of road in the 
calculations required for the Freight Reliability metric/measure.



Sec.  490.611  Calculation of Truck Travel Time Reliability metrics.

    (a) The State DOT shall calculate the TTTR Index metric (referred to 
as the TTTR metric) for each Interstate System reporting segment in 
accordance with the following:
    (1) A truck travel time data set shall be created from the travel 
time data set to be used to calculate the TTTR metric. This data set 
shall include, for each reporting segment, a ranked list of average 
truck travel times, to the nearest second, for 15 minute periods of a 
24-hour period for an entire calendar year that:
    (i) Includes ``AM Peak'' travel times occurring between the hours of 
6 a.m. and 10 a.m. for every weekday (Monday -Friday) from January 1st 
through December 31st of the same year;
    (ii) Includes ``Mid Day'' travel times occurring between the hours 
of 10 a.m. and 4 p.m. for every weekday (Monday-Friday) from January 1st 
through December 31st of the same year;
    (iii) Includes ``PM Peak'' travel times occurring between the hours 
of 4 p.m. and 8 p.m. for every weekday (Monday-Friday) from January 1st 
through December 31st of the same year;
    (iv) Includes ``Overnight'' travel times occurring between the hours 
of 8 p.m. and 6 a.m. for every day (Sunday-Saturday) from January 1st 
through December 31st of the same year; and

[[Page 201]]

    (v) Includes ``Weekend'' travel times occurring between the hours of 
6 a.m. and 8 p.m. for every weekend day (Saturday-Sunday) from January 
1st through December 31st of the same year.
    (2) The Normal Truck Travel Time (50th percentile) shall be 
determined from each of the truck travel time data sets defined under 
paragraph (a)(1) of this section as the time in which 50 percent of the 
times in the data set are shorter in duration and 50 percent are longer 
in duration. The 95th percentile truck travel time shall be determined 
from each of the truck travel time data sets defined under paragraph 
(a)(1) of this section as the time in which 95 percent of the times in 
the data set are shorter in duration. Both the Normal and 95th 
percentile truck travel times can be determined by plotting the data on 
a travel time cumulative probability distribution graph or using the 
percentile functions available in spreadsheet and other analytical 
tools.
    (3) Five TTTR metrics shall be calculated for each reporting 
segment; one for each data set defined under paragraph (a)(1) of this 
section as the 95th percentile travel time divided by the Normal Truck 
Travel Time and rounded to the nearest hundredth.
    (b) Starting in 2018 and annually thereafter, State DOTs shall 
report the TTTR metrics, as defined in this section, in accordance with 
the HPMS Field Manual by June 15th of each year for the previous year's 
Freight Reliability measures.
    (1) All metrics shall be reported to HPMS by reporting segments. 
When the NPMRDS is used metrics shall be referenced by NPMRDS TMC(s) or 
HPMS section(s). If a State DOT elects to use, in part or in whole, the 
equivalent data set, all reporting segment shall be referenced by HPMS 
section(s).
    (2) The TTTR metric shall be reported to HPMS for each reporting 
segment (to the nearest hundredths) for each of the five time periods 
identified in paragraphs (a)(1)(i) through (v) of this section; the 
corresponding 95th percentile travel times (to the nearest second) and 
the corresponding normal (50th percentile) travel times (to the nearest 
second).



Sec.  490.613  Calculation of Freight Reliability measure.

    (a) The performance for freight movement on the Interstate in Sec.  
490.607 (the Freight Reliability measure) shall be calculated in 
accordance with this section by State DOTs and MPOs to carry out the 
freight movement on the Interstate System related requirements of this 
part, and by FHWA to make the significant progress determinations 
specified in Sec.  490.109 and to report on freight performance of the 
Interstate System.
    (b) The Freight Reliability measure shall be computed to the nearest 
hundredth as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.030

Where:

i = An Interstate System reporting segment;
maxTTTRi = The maximum TTTR of the five time periods in 
          paragraphs (a)(1)(i) through (v) of Sec.  490.611, to the 
          nearest hundredth, of Interstate System reporting segment 
          ``i'';
SLi = Segment length, to the nearest thousandth of a mile, of Interstate 
          System reporting segment ``i''; and
T= A total number of Interstate System reporting segments.



  Subpart G_National Performance Management Measure for Assessing the 
   Congestion Mitigation and Air Quality Improvement Program_Traffic 
                               Congestion

    Source: 82 FR 6045, Jan. 18, 2017, unless otherwise noted.

[[Page 202]]



Sec.  490.701  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(5)(A) to establish performance measures for State DOTs and 
the MPOs to use in assessing CMAQ Traffic Congestion for the purpose of 
carrying out the CMAQ program.



Sec.  490.703  Applicability.

    The CMAQ Traffic Congestion performance measures are applicable to 
all urbanized areas that include NHS mileage and with a population over 
1 million for the first performance period and in urbanized areas with a 
population over 200,000 for the second and all other performance 
periods, that are, in all or part, designated as nonattainment or 
maintenance areas for ozone (O3), carbon monoxide (CO), or 
particulate matter (PM10 and PM2.5) National 
Ambient Air Quality Standards (NAAQS).



Sec.  490.705  Definitions.

    All definitions in Sec.  490.101 apply to this subpart. Unless 
otherwise specified, the following definitions apply in this subpart:
    Excessive delay means the extra amount of time spent in congested 
conditions defined by speed thresholds that are lower than a normal 
delay threshold. For the purposes of this rule, the speed threshold is 
20 miles per hour (mph) or 60 percent of the posted speed limit, 
whichever is greater.
    Peak Period is defined as weekdays from 6 a.m. to 10 a.m. and either 
3 p.m. to 7 p.m. or 4 p.m. to 8 p.m. State DOTs and MPOs may choose 
whether to use 3 p.m. to 7 p.m. or 4 p.m. to 8 p.m.



Sec.  490.707  National performance management measures for traffic congestion.

    There are two performance measures to assess traffic congestion for 
the purpose of carrying out the CMAQ program (referred to collectively 
as the CMAQ Traffic Congestion measures. They are:
    (a) Annual Hours of Peak Hour Excessive Delay (PHED) Per Capita 
(referred to as the PHED measure); and
    (b) Percent of Non-SOV Travel.



Sec.  490.709  Data requirements.

    (a) Travel time data needed to calculate the PHED measure in Sec.  
490.707(a) shall come from the travel time data set, as specified in 
Sec.  490.103(e).
    (b) State DOTs, in coordination with MPOs, shall define reporting 
segments in accordance with Sec.  490.103(f). Reporting segments must be 
contiguous so that they cover the full extent of the directional 
mainline highways of the NHS in the urbanized area(s).
    (c) State DOTs shall develop hourly traffic volume data for each 
reporting segment as follows:
    (1) State DOTs shall measure or estimate hourly traffic volumes for 
Peak Periods on each weekday of the reporting year by using either 
paragraph (c)(1)(i) or (ii) of this section.
    (i) State DOTs may use hourly traffic volume counts collected by 
continuous count stations and apply them to multiple reporting segments; 
or
    (ii) State DOTs may use Annual Average Daily Traffic (AADT) reported 
to the HPMS to estimate hourly traffic volumes when no hourly volume 
counts exist. In these cases the AADT data used should be the most 
recently available, but not more than 2 years older than the reporting 
period (e.g., if reporting for calendar year 2018, AADT should be from 
2016 or 2017) and should be split to represent the appropriate direction 
of travel of the reporting segment.
    (2) State DOTs shall assign hourly traffic volumes to each reporting 
segment by hour (e.g., between 8 a.m. and 8:59 a.m.).
    (3) State DOTs shall report the methodology they use to develop 
hourly traffic volume estimates to FHWA no later than 60 days before the 
submittal of the first Baseline Performance Period Report.
    (4) If a State DOT elects to change the methodology it reported 
under paragraph (c)(3) of this section, then the State DOT shall submit 
the changed methodology no later than 60 days before the submittal of 
next State Biennial Performance Report required in Sec.  490.107(b).
    (5) If an NHS roadway is closed, the State DOT is not required to 
include those time periods for the segment of

[[Page 203]]

road in the calculation required for this metric and measure.
    (d) State DOTs shall develop annual vehicle classification data for 
each reporting segment using data as follows:
    (1) State DOTs shall measure or estimate the percentage of cars, 
buses, and trucks, relative to total AADT for each segment using either 
paragraph (d)(1)(i) or (ii) of this section.
    (i) State DOTs may use annual traffic volume counts collected by 
continuous count stations to estimate the annual percent share of 
traffic volumes for cars, buses, and trucks for each segment; or
    (ii) State DOTs may use AADT reported to the HPMS to estimate the 
annual percent share of traffic volumes for cars, buses, and trucks, 
where:
    (A) Buses = value in HPMS Data Item ``AADT_Single_Unit'';
    (B) Trucks = value in HPMS Data Item ``AADT_Combination''; and
    (C) Cars = subtract values for Buses and Trucks from the value in 
HPMS Data Item ``AADT''.
    (iii) If a State DOT uses the data reported to the HPMS in paragraph 
(d)(1)(ii) of this section, then the data values should be split to 
represent the appropriate direction of travel of the reporting segment.
    (2) State DOTs shall report the methodology they use to develop 
annual percent share of traffic volume by vehicle class to FHWA no later 
than 60 days before the submittal of the first Baseline Performance 
Period Report.
    (3) If a State DOT elects to change the methodology it reported 
under paragraph (d)(2) of this section, then the State DOT shall submit 
the changed methodology no later than 60 days before the submittal of 
next State Biennial Performance Report required in Sec.  490.107(b).
    (e) State DOTs shall develop annual average vehicle occupancy (AVO) 
factors for cars, buses, and trucks in applicable urbanized areas using 
either method under paragraph (e)(1)(i) or (ii) of this section.
    (1) State DOTs shall measure or estimate annual vehicle occupancy 
factors for cars, buses, and trucks in applicable urbanized areas.
    (i) State DOTs shall use estimated annual vehicle occupancy factors 
for cars, buses, and trucks in urbanized areas provided by FHWA; and/or
    (ii) State DOTs may use an alternative estimate of annual vehicle 
occupancy factors for a specific reporting segment(s) for cars, buses, 
and trucks in urbanized areas, provided that it is more specific than 
the data provided by FHWA.
    (f) All State DOTs and MPOs contributing to the unified target for 
the applicable area as specified in Sec.  490.105(d)(2) shall agree to 
using one of the methods specified in paragraph (f)(1)(i), (ii), or 
(iii) of this section to identify the data that will be used to 
determine the Percent of Non-SOV Travel for the applicable urbanized 
area.
    (1) The data to determine the Percent of Non-SOV Travel measure 
shall be developed using any one of the following methods.
    (i) Method A--American Community Survey. Populations by predominant 
travel to commute to work may be identified from Table DP03 of the 
American Community Survey using the totals by transportation mode listed 
within the ``Commuting to Work'' subject heading under the ``Estimate'' 
column of the table. The ``5 Year Estimate'' DP03 table using a 
geographic filter that represents the applicable ``Urban Area'' shall be 
used to identify these populations. The Percent of Non-SOV Travel 
measure shall be developed from the most recent data as of August 15th 
of the year in which the State Biennial Performance Report is due to 
FHWA.
    (ii) Method B--local survey. The Percent of Non-SOV Travel may be 
estimated from a local survey focused on either work travel or household 
travel for the area and conducted as recently as 2 years before the 
beginning of the performance period. The survey method shall estimate 
travel mode choice for the full urbanized area using industry accepted 
methodologies and approaches resulting in a margin of error that is 
acceptable to industry standards, allow for updates on at least a 
biennial frequency, and distinguish non-SOV travel occurring in the area 
as a percent of all work or household travel.

[[Page 204]]

    (iii) Method C--system use measurement. The volume of travel using 
surface modes of transportation may be estimated from measurements of 
actual use of each transportation mode. Sample or continuous 
measurements may be used to count the number of travelers using 
different surface modes of transportation. The method used to count 
travelers shall estimate the total volume of annual travel for the full 
urbanized area within a margin of error that is acceptable to industry 
standards and allows for updates on at least a biennial frequency. The 
method shall include sufficient information to calculate the amount of 
non-SOV travel occurring in the area as a percentage of all surface 
transportation travel. State DOTs are encouraged to report use counts to 
FHWA that are not included in currently available national data sources.
    (2) State DOTs shall report the data collection method that is used 
to determine the Percent of Non-SOV Travel measure for each applicable 
urbanized area in the State to FHWA in their first Baseline Performance 
Period Report required in Sec.  490.107(b)(1). The State DOT shall 
include sufficient detail to understand how the data are collected if 
either Method B or Method C are used for the urbanized area. This method 
shall be used for the full performance period for each applicable 
urbanized area.
    (3) If State DOTs and MPOs that contribute to an applicable 
urbanized area elect to change the data collection method reported under 
paragraph (f)(2) of this section, then each respective State DOT shall 
report this change in their next Baseline Performance Report required in 
Sec.  490.107(b)(1). The new method reported as a requirement of this 
paragraph shall not be used until the beginning of the next performance 
period for the Baseline Performance Report in which the method was 
reported to be changed.
    (g) Populations of urbanized areas shall be as identified based on 
the most recent annual estimates published by the U.S. Census available 
1 year before the State DOT Baseline Performance Period Report is due to 
FHWA to identify applicability of the CMAQ Traffic Congestion measures 
in Sec.  490.707(a) and (b) for each performance period, as described in 
Sec.  490.105(e)(8)(iii)(D) and (f)(5)(iii)(D). For computing the PHED 
measure in Sec.  490.713(b), the most recent annual population estimate 
published by the U.S. Census, at the time when the State DOT Biennial 
Performance Period Report is due to FHWA shall be used.
    (h) Nonattainment and maintenance area determinations for the CMAQ 
Traffic Congestion measures:
    (1) The CMAQ Traffic Congestion measures apply to nonattainment and 
maintenance areas. Such areas shall be identified based on the effective 
date of U.S. EPA's designations under the NAAQS in 40 CFR part 81, as of 
the date 1 year before the State DOT Baseline Performance Period Report 
is due to FHWA.
    (2) The nonattainment and maintenance areas to which the CMAQ 
Traffic Congestion measures applies shall be revised if, on the date 1 
year before the State DOT Mid Performance Period Progress Report is due 
to FHWA, the area is no longer in nonattainment or maintenance for a 
criteria pollutant included in Sec.  490.703.



Sec.  490.711  Calculation of Peak Hour Excessive Delay metric.

    (a) The performance metric required to calculate the measure 
specified in Sec.  490.707(a) is Total Peak Hour Excessive Delay 
(person-hours)(referred to as the PHED metric). The following paragraphs 
explain how to calculate this PHED metric.
    (b) State DOTs shall use the following data to calculate the PHED 
metric:
    (1) Travel times of all traffic (``all vehicles'' in NPMRDS 
nomenclature) during each 15 minute interval for all applicable 
reporting segments in the travel time data set occurring for peak 
periods from January 1st through December 31st of the same year;
    (2) The length of each applicable reporting segment, reported as 
required under Sec.  490.709(b);
    (3) Hourly volume estimation for all days and for all reporting 
segments where excessive delay is measured, as specified in Sec.  
490.709(c);

[[Page 205]]

    (4) Annual vehicle classification data for all days and for all 
reporting segments where excessive delay is measured, as specified in 
Sec.  490.709(d); and
    (5) Annual vehicle occupancy factors for cars, buses, and trucks for 
all days and for all reporting segments where excessive delay is 
measured, as specified in Sec.  490.709(e).
    (c) The State DOT shall calculate the ``excessive delay threshold 
travel time'' for all applicable travel time segments as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.031

Where:

Excessive Delay Threshold Travel Times = the time of travel, 
          to the nearest whole second, to traverse the Travel Time 
          Segment at which any longer measured travel times would result 
          in excessive delay for the travel time segment ``'';
Travel Time Segment Lengths = total length of travel time 
          segment to the nearest thousandth of a mile for travel time 
          reporting segment ``''; and
Threshold Speeds = the speed of travel at which any slower 
          measured speeds would result in excessive delay for travel 
          time reporting segment ``.'' As defined in Sec.  490.705, the 
          speed threshold is 20 miles per hour (mph) or 60 percent of 
          the posted speed limit travel time reporting segment ``s,'' 
          whichever is greater.

    (d) State DOTs shall determine the ``excessive delay'' for each 15 
minute bin of each reporting segment for every hour and every day in a 
calendar year as follows:
    (1) The travel time segment delay (RSD) shall be calculated to the 
nearest whole second as follow:

RSDs,b - Excessive Delay Threshold Travel Times and RSDs,b <= 900 
seconds
Where:

RSDs,b = travel time segment delay, calculated to the nearest 
          whole second, for a 15-minute bin ``b'' of travel time 
          reporting segment ``s'' for in a day in a calendar year. 
          RSD(s)b not to exceed 900 seconds;
Travel times,b = a measured travel time, to the nearest 
          second, for 15-minute time bin ``b'' recorded for travel time 
          reporting segment ``s'';
Excessive Delay Threshold Travel Times = The maximum amount of time, to 
          the nearest second, for a vehicle to traverse through travel 
          time segment ``s'' before excessive delay would occur, as 
          specified in paragraph (c) of this section;
b = a 15-minute bin of a travel time reporting segment ``s''; and
s = a travel time reporting segment.

    (2) Excessive delay, the additional amount of time to traverse a 
travel time segment in a 15-minute bin as compared to the time needed to 
traverse the travel time segment when traveling at the excessive delay 
travel speed threshold, shall be calculated to the nearest thousandths 
of an hour as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.032

Where:

Excessive Delays,b = excessive delay, calculated to the 
          nearest thousandths of an hour, for 15-minute bin ``b'' of 
          travel time reporting segment ``s'';

[[Page 206]]

RSDs,b = the calculated travel time reporting segment delay 
          for fifteen minute bin ``b'' of a travel time reporting 
          segment ``s,'' as described in paragraph (d)(1) of this 
          section;
b = a fifteen minute bin of a travel time reporting segment ``s''; and
s = a travel time reporting segment.

    (e) State DOTs shall use the hourly traffic volumes as described in 
Sec.  490.709(c) to calculate the PHED metric for each reporting segment 
as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.033

Where:

Total Excessive Delays (in person-hours) = the sum of the 
          excessive delay, to the nearest thousandths, for all traffic 
          traveling through single travel time reporting segment ``s'' 
          on NHS within an urbanized area, specified in Sec.  490.703, 
          accumulated over the full reporting year;
AVO = Average Vehicle Occupancy;
s = a travel time reporting segment;
d = a day of the reporting year;
TD = total number of days in the reporting year;
h = single hour interval of the day where the first hour interval is 12 
a.m. to 12:59 a.m.;
TH = total number of hour intervals in day ``h'';
b = 15-minute bin for hour interval ``h'';
TB = total number of 15-minute bins where travel times are recorded in 
the travel time data set for hour interval ``h'';
Excessive Delays,b,h,d = calculated excessive travel time, in 
hundredths of an hour, for 15 minute bin (), hour interval (h), day (d), 
and travel time segment (s), as described in paragraph (d)(2) of this 
section; and
[GRAPHIC] [TIFF OMITTED] TR18JA17.034

Where the equation equals hourly traffic volume, to the nearest tenth, 
for hour interval ``h'' and day ``d'' that corresponds to 15-minute bin 
``b'' and travel time reporting segment ``s'' divided by 4. For example, 
the 9 a.m. to 9:15 a.m. minute bin would be assigned one fourth of the 
hourly traffic volume for the 9 a.m. to 9:59 a.m. hour on the roadway in 
which travel time segment is included;
    AVO = (PC x AVOC) + (PB x 
AVOB) + (PT x AVOT)

Where:

PC = the percent of cars as a share of total AADT on the 
          segment as specified in Sec.  490.709(d);

[[Page 207]]

PB = the percent of buses as a share of total AADT on the 
          segment as specified in Sec.  490.709(d);
PT = the percent of trucks as a share of total AADT on the 
          segment as specified in Sec.  490.709(d);
AVOC = the average vehicle occupancy of cars as specified in 
          Sec.  490.709(e);
AVOB = the average vehicle occupancy of buses as specified in 
          Sec.  490.709(e); and
AVOT = the average vehicle occupancy of trucks as specified 
          in Sec.  490.709(e).

    (f) Starting in 2018 and annually thereafter, State DOTs shall 
report the PHED metric (to the nearest one hundredth hour) in accordance 
with HPMS Field Manual by June 15th of each year for the previous year's 
PHED measures. The PHED metric shall be reported for each reporting 
segment. All reporting segments of the NPMRDS shall be referenced by 
NPMRDS TMC or HPMS section(s). If a State DOT elects to use, in part or 
in whole, the equivalent data set, all reporting segments shall be 
referenced by HPMS sections.



Sec.  490.713  Calculation of Traffic Congestion measures.

    (a) The performance measures in Sec.  490.707 shall be computed in 
accordance with this section by State DOTs and MPOs to carry out CMAQ 
traffic congestion performance-related requirements of this part and by 
FHWA to report on traffic congestion performance.
    (b) The performance measure for CMAQ traffic congestion specified in 
Sec.  490.707, Annual Hours of Peak Hour Excessive Delay Per Capita (the 
PHED measure), shall be computed to the nearest tenth, and by summing 
the PHED metrics of all reporting segments in each of the urbanized 
area, specified in Sec.  490.703, and dividing it by the population of 
the urbanized area to produce the PHED measure. The equation for 
calculating the PHED measure is as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.035

Where:

Annual Hours of Peak Hour Excessive Delay per Capita = the cumulative 
          hours of excessive delay, to the nearest tenth, experienced by 
          all people traveling through all reporting segments during 
          peak hours in the applicable urbanized area for the full 
          reporting calendar year;
s = travel time reporting segment within an urbanized area, specified in 
          Sec.  490.703;
T = total number of travel time reporting segments in the applicable 
          urbanized area;
Total Population = total hours of excessive delay in Sec.  490.711(e) 
          for all people traveling through travel time reporting segment 
          ``s'' during a calendar year (as defined in Sec.  490.711(f)); 
          and
Total Population = the total population in the applicable urbanized area 
          from the most recent annual population published by the U.S. 
          Census at the time that the State Biennial Performance Period 
          Report is due to FHWA.

    (c) Calculation for the PHED measure, described in paragraph (b) of 
this section, and target establishment for the measure shall be phased-
in under the requirements in Sec.  490.105(e)(8)(vi) and (f)(5)(vi).
    (d) The performance measure for CMAQ traffic congestion specified in 
Sec.  490.707(b), Percent of Non-SOV Travel, shall be computed as 
specified in paragraphs (d)(1) through (3) of this section corresponding 
to the method reported by the State DOT to collect travel data for the 
applicable area under Sec.  490.709(f)(2).
    (1) Method A--American Community Survey. The Percent of Non-SOV 
Travel shall be calculated to the nearest tenth of a percent using the 
following formula:

    Percent of Non-SOV Travel = 100% - % SOV


[[Page 208]]


Where:

Percent of Non-SOV Travel = percent of commuting working population, to 
          the nearest tenth of a percent, that predominantly do not 
          commute by driving alone in a car, van, or truck, including 
          travel avoided by telecommuting; and
% SOV = percent estimate for ``Car, truck, or van--drive alone''.
    (2) Method B--local survey. The Percent of Non-SOV Travel shall be 
calculated using the data derived from local survey results as specified 
in Sec.  490.709(f)(1)(ii). The Percent of Non-SOV Travel measure shall 
be calculated to represent travel that is not occurring by driving alone 
in a motorized vehicle, including travel avoided by telecommuting, as a 
percentage of all surface transportation occurring in the applicable 
area. The Percent of Non-SOV Travel measure shall be calculated to the 
nearest tenth of a percent.
    (3) Method C--system use measurement. The Percent of Non-SOV Travel 
shall be calculated to the nearest tenth of a percent from the data 
collected from system use measurements as specified in Sec.  
490.709(f)(1)(iii) using the general form of the following formula:
[GRAPHIC] [TIFF OMITTED] TR18JA17.036


Where:
Percent of Non-SOV Travel = percentage of travel, to the nearest tenth 
          of a percent, that is not occurring by driving alone in a 
          motorized vehicle, including travel avoided by telecommuting
Volumenon-SOVVolume = Annual volume of person travel 
          occurring while driving alone in a motorized vehicle; and
VolumeSOV = Annual volume of person travel occurring on modes 
          other than driving alone in a motorized vehicle, calculated 
          as:
          [GRAPHIC] [TIFF OMITTED] TR18JA17.037
          

Where:
m = travel mode (modes other than driving alone in a motorized vehicle, 
          including travel avoided by telecommuting);
Volume m = annual volume of person travel for each mode, 
          ``m''; and
t = total number of modes that are not driving alone in a motorized 
          vehicle.



    Subpart H_National Performance Management Measures to Assess the 
Congestion Mitigation and Air Quality Improvement Program_On-Road Mobile 
                            Source Emissions

    Source: 82 FR 6049, Jan. 18, 2017, unless otherwise noted.



Sec.  490.801  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(5)(B) to establish performance measures for State DOTs and 
the MPOs to use in assessing on-road mobile source emissions.



Sec.  490.803  Applicability.

    (a) The on-road mobile source emissions performance measure (called 
the Total Emissions Reduction- see Sec.  490.807) is applicable to all 
States and MPOs with projects financed with funds from the 23 U.S.C. 149 
CMAQ program apportioned to State DOTs for areas designated as 
nonattainment or maintenance for ozone (O3), carbon monoxide 
(CO), or particulate matter (PM10 and PM2.5) 
National Ambient Air Quality Standards (NAAQS).
    (b) This performance measure does not apply to States and MPOs that 
do not contain any portions of nonattainment or maintenance areas for 
the criteria pollutants identified in paragraph (a) of this section.



Sec.  490.805  Definitions.

    All definitions in Sec.  490.101 apply to this subpart. Unless 
otherwise specified in this subpart, the following definitions apply in 
this subpart:
    On-road mobile source means, within this part, emissions created by 
all projects and sources financed with

[[Page 209]]

funds from the 23 U.S.C. 149 CMAQ program.



Sec.  490.807  National performance management measure for assessing 
on-road mobile source emissions for the purposes of the Congestion Mitigation 
and Air Quality Improvement Program.

    The performance measure for the purpose of carrying out the CMAQ 
Program and for State DOTs to use to assess on-road mobile source 
emissions is ``Total Emissions Reduction,'' which is the 2-year and 4-
year cumulative reported emission reductions, for all projects funded by 
CMAQ funds, of each criteria pollutant and applicable precursors 
(PM2.5, PM10, CO, VOC, and NOx) under the CMAQ 
program for which the area is designated nonattainment or maintenance.



Sec.  490.809  Data requirements.

    (a) The data needed to calculate the Total Emission Reduction 
measure shall come from the CMAQ Public Access System and includes:
    (1) The applicable nonattainment or maintenance area;
    (2) The applicable MPO; and
    (3) The emissions reduction estimated for each CMAQ funded project 
for each of the applicable criteria pollutants and their precursors for 
which the area is nonattainment or maintenance.
    (b) The State DOT shall:
    (1) Enter project information into the CMAQ project tracking system 
for each CMAQ project funded in the previous fiscal year by March 1st of 
the following fiscal year; and
    (2) Extract the data necessary to calculate the Total Emissions 
Reduction measures as it appears in the CMAQ Public Access System on 
July 1st for projects obligated in the prior fiscal year.
    (c) Nonattainment and maintenance area determinations for the CMAQ 
Total Emissions Reduction measure:
    (1) The CMAQ Total Emissions Reduction measure applies to 
nonattainment and maintenance areas. Such areas shall be identified 
based on the effective date of U.S. EPA's designations under the NAAQS 
in 40 CFR part 81, as of the date 1 year before the State DOT Baseline 
Performance Period Report is due to FHWA.
    (2) The nonattainment and maintenance areas to which the Total 
Emissions Reduction measure applies shall be revised if, on the date 1 
year before the State DOT Mid Performance Period Progress Report is due 
to FHWA, the area is no longer in nonattainment or maintenance for a 
pollutant included in Sec.  490.803.



Sec.  490.811  Calculation of Total Emissions Reduction measure.

    (a) The Total Emission Reductions performance measure specified in 
Sec.  490.807 shall be calculated in accordance with this section by 
State DOTs and MPOs to carry out CMAQ on-road mobile source emissions 
performance-related requirements of this part.
    (b) The Total Emission Reductions measure for each of the criteria 
pollutant or applicable precursor for all projects reported to the CMAQ 
Public Access System shall be calculated to the nearest one thousandths, 
as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.038


Where:
i = applicable projects reported in the CMAQ Public Access System for 
          the first 2 Federal fiscal years of a performance period and 
          for the entire performance period, as described in in Sec.  
          490.105(e)(4)(i)(B);
p = criteria pollutant or applicable precursor: PM2.5, 
          PM10, CO, VOC, or NOx;

[[Page 210]]

Daily Kilograms of Emission Reductionsp,i = total daily 
          kilograms, to the nearest one thousandths, of reduced 
          emissions for a criteria pollutant or an applicable precursor 
          ``p'' in the in the first year the project is obligated;
T = total number of applicable projects reported to the CMAQ Public 
          Access System for the first 2 Federal fiscal years of a 
          performance period and for the entire performance period, as 
          described in Sec.  490.105(e)(4)(i)(B); and
Total Emission Reductionp = cumulative reductions in 
          emissions over 2 and 4 Federal fiscal years, total daily 
          kilograms, to the nearest one thousandths, of reduced 
          emissions for criteria pollutant or precursor ``p.''

[[Page 211]]



          SUBCHAPTER F_TRANSPORTATION INFRASTRUCTURE MANAGEMENT





PART 500_MANAGEMENT AND MONITORING SYSTEMS--Table of Contents



                      Subpart A_Management systems

Sec.
500.101 Purpose.
500.102 Policy.
500.103 Definitions.
500.104 State option.
500.105 Requirements.
500.106 PMS.
500.107 BMS.
500.108 SMS.
500.109 CMS.
500.110 PTMS.
500.111 IMS.

                   Subpart B_Traffic Monitoring System

500.201 Purpose.
500.202 TMS definitions.
500.203 TMS general requirements.
500.204 TMS components for highway traffic data.

    Authority: 23 U.S.C. 134, 135, 303, and 315; 49 U.S.C. 5303-5305; 23 
CFR 1.32; and 49 CFR 1.48 and 1.51.

    Source: 61 FR 67170, Dec. 19, 1996, unless otherwise noted.



                      Subpart A_Management Systems



Sec.  500.101  Purpose.

    The purpose of this part is to implement the requirements of 23 
U.S.C. 303(a) which directs the Secretary of Transportation (the 
Secretary) to issue regulations for State development, establishment, 
and implementation of systems for managing highway pavement of Federal-
aid highways (PMS), bridges on and off Federal-aid highways (BMS), 
highway safety (SMS), traffic congestion (CMS), public transportation 
facilities and equipment (PTMS), and intermodal transportation 
facilities and systems (IMS). This regulation also implements 23 U.S.C. 
303(b) which directs the Secretary to issue guidelines and requirements 
for State development, establishment, and implementation of a traffic 
monitoring system for highways and public transportation facilities and 
equipment (TMS).



Sec.  500.102  Policy.

    (a) Federal, State, and local governments are under increasing 
pressure to balance their budgets and, at the same time, respond to 
public demands for quality services. Along with the need to invest in 
America's future, this leaves transportation agencies with the task of 
trying to manage current transportation systems as cost-effectively as 
possible to meet evolving, as well as backlog needs. The use of existing 
or new transportation management systems provides a framework for cost-
effective decision making that emphasizes enhanced service at reduced 
public and private life-cycle cost. The primary outcome of 
transportation management systems is improved system performance and 
safety. The Federal Highway Administration (FHWA) and the Federal 
Transit Administration (FTA) strongly encourage implementation of 
transportation management systems consistent with State, metropolitan 
planning organization, transit operator, or local government needs.
    (b) Whether the systems are developed under the provisions of this 
part or under a State's own procedures, the following categories of FHWA 
administered funds may be used for development, establishment, and 
implementation of any of the management systems and the traffic 
monitoring system: National highway system; surface transportation 
program; State planning and research and metropolitan planning funds 
(including the optional use of minimum allocation funds authorized under 
23 U.S.C. 157(c) and restoration funds authorized under Sec.  202(f) of 
the National Highway System Designation Act of 1995 (Pub.L. 104-59) for 
carrying out the provisions of 23 U.S.C. 307(c)(1) and 23 U.S.C. 
134(a)); congestion mitigation and air quality improvement program funds 
for those management systems that can be shown to contribute to the 
attainment of a national ambient air quality standard; and apportioned 
bridge funds for development

[[Page 212]]

and establishment of the bridge management system. The following 
categories of FTA administered funds may be used for development, 
establishment, and implementation of the CMS, PTMS, IMS, and TMS: 
Metropolitan planning; State planning and research, and formula transit 
funds.



Sec.  500.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Federal-aid highways means those highways eligible for assistance 
under title 23, U.S.C., except those functionally classified as local or 
rural minor collectors.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decision making for a metropolitan planning 
area.
    National Highway System (NHS) means the system of highways 
designated and approved in accordance with the provisions of 23 U.S.C. 
103(b).
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation management area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials), and officially designated by the 
Administrators of the FHWA and the FTA. The TMA designation applies to 
the entire metropolitan planning area(s).



Sec.  500.104  State option.

    Except as specified in Sec.  500.105 (a) and (b), a State may elect 
at any time not to implement any one or more of the management systems 
required under 23 U.S.C. 303, in whole or in part.



Sec.  500.105  Requirements.

    (a) The metropolitan transportation planning process (23 U.S.C. 134 
and 49 U.S.C. 5303-5005) in TMAs shall include a CMS that meets the 
requirements of Sec.  500.109 of this regulation.
    (b) States shall develop, establish, and implement a TMS that meets 
the requirements of subpart B of this regulation.
    (c) Any of the management systems that the State chooses to 
implement under 23 U.S.C. 303 and this regulation shall be developed in 
cooperation with MPOs in metropolitan areas, affected agencies receiving 
assistance under the Federal Transit Act (49 U.S.C., Chapter 53), and 
other agencies (including private owners and operators) that have 
responsibility for operation of the affected transportation systems or 
facilities.
    (d) The results (e.g., policies, programs, projects, etc.) of any of 
the management systems that a State chooses to develop under 23 U.S.C. 
303 and this regulation shall be considered in the development of 
metropolitan and statewide transportation plans and improvement programs 
and in making project selection decisions under title 23, U.S.C., and 
under the Federal Transit Act. Plans and programs adopted after 
September 30, 1997, shall demonstrate compliance with this requirement.



Sec.  500.106  PMS.

    An effective PMS for Federal-aid highways is a systematic process 
that provides information for use in implementing cost-effective 
pavement reconstruction, rehabilitation, and preventative maintenance 
programs and that results in pavements designed to accommodate current 
and forecasted traffic in a safe, durable, and cost-effective manner. 
The PMS should be based on the ``AASHTO Guidelines for Pavement 
Management Systems.'' \1\
---------------------------------------------------------------------------

    \1\ AASHTO Guidelines for Pavement Management Systems, July 1990, 
can be purchased from the American Association of State Highway and 
Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------



Sec.  500.107  BMS.

    An effective BMS for bridges on and off Federal-aid highways that 
should be based on the ``AASHTO Guidelines for Bridge Management 
Systems'' \2\ and

[[Page 213]]

that supplies analyses and summaries of data, uses mathematical models 
to make forecasts and recommendations, and provides the means by which 
alternative policies and programs may be efficiently considered. An 
effective BMS should include, as a minimum, formal procedures for:
---------------------------------------------------------------------------

    \2\ AASHTO Guidelines for Bridge Management Systems, 1992, can be 
purchased from the American Association of State Highway and 
Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------

    (a) Collecting, processing, and updating data;
    (b) Predicting deterioration;
    (c) Identifying alternative actions;
    (d) Predicting costs;
    (e) Determining optimal policies;
    (f) Performing short- and long-term budget forecasting; and
    (g) Recommending programs and schedules for implementation within 
policy and budget constraints.



Sec.  500.108  SMS.

    An SMS is a systematic process with the goal of reducing the number 
and severity of traffic crashes by ensuring that all opportunities to 
improve highway safety are identified, considered, implemented as 
appropriate, and evaluated in all phases of highway planning, design, 
construction, maintenance, and operation and by providing information 
for selecting and implementing effective highway safety strategies and 
projects. The development of the SMS may be based on the guidance in 
``Safety Management Systems: Good Practices for Development and 
Implementation.'' \3\ An effective SMS should include, at a minimum:
---------------------------------------------------------------------------

    \3\ Safety Management Systems: Good Practices for Development and 
Implementation, FHWA and NHTSA, May 1996. Available for inspection and 
copying as prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (a) Communication, coordination, and cooperation among the 
organizations responsible for the roadway, human, and vehicle safety 
elements;
    (b) A focal point for coordination of the development, 
establishment, and implementation of the SMS among the agencies 
responsible for these major safety elements;
    (c) Establishment of short- and long-term highway safety goals to 
address identified safety problems;
    (d) Collection, analysis, and linkage of highway safety data;
    (e) Identification of the safety responsibilities of units and 
positions;
    (f) Public information and education activities; and
    (g) Identification of skills, resources, and training needs to 
implement highway safety programs.



Sec.  500.109  CMS.

    (a) For purposes of this part, congestion means the level at which 
transportation system performance is unacceptable due to excessive 
travel times and delays. Congestion management means the application of 
strategies to improve system performance and reliability by reducing the 
adverse impacts of congestion on the movement of people and goods in a 
region. A congestion management system or process is a systematic and 
regionally accepted approach for managing congestion that provides 
accurate, up-to-date information on transportation system operations and 
performance and assesses alternative strategies for congestion 
management that meet State and local needs.
    (b) The development of a congestion management system or process 
should result in performance measures and strategies that can be 
integrated into transportation plans and programs. The level of system 
performance deemed acceptable by State and local officials may vary by 
type of transportation facility, geographic location (metropolitan area 
or subarea and/or non-metropolitan area), and/or time of day. In both 
metropolitan and non-metropolitan areas, consideration needs to be given 
to strategies that manage demand, reduce single occupant vehicle (SOV) 
travel, and improve transportation system management and operations. 
Where the addition of general purpose lanes is determined to be an 
appropriate congestion management strategy, explicit consideration is to 
be given to the incorporation of appropriate features into the SOV 
project to facilitate future demand management strategies and 
operational improvements that will maintain the functional integrity of 
those lanes.

[72 FR 7285, Feb. 14, 2007]

[[Page 214]]



Sec.  500.110  PTMS.

    An effective PTMS for public transportation facilities (e.g., 
maintenance facilities, stations, terminals, transit related 
structures), equipment, and rolling stock is a systematic process that 
collects and analyzes information on the condition and cost of transit 
assets on a continual basis, identifies needs, and enables decision 
makers to select cost-effective strategies for providing and maintaining 
transit assets in serviceable condition. The PTMS should cover public 
transportation systems operated by the State, local jurisdictions, 
public transportation agencies and authorities, and private (for profit 
and non-profit) transit operators receiving funds under the Federal 
Transit Act and include, at a minimum:
    (a) Development of transit asset condition measures and standards;
    (b) An inventory of the transit assets including age, condition, 
remaining useful life, and replacement cost; and
    (c) Identification, evaluation, and implementation of appropriate 
strategies and projects.



Sec.  500.111  IMS.

    An effective IMS for intermodal facilities and systems provides 
efficient, safe, and convenient movement of people and goods through 
integration of transportation facilities and systems and improvement in 
the coordination in planning, and implementation of air, water, and the 
various land-based transportation facilities and systems. An IMS should 
include, at a minimum:
    (a) Establishment of performance measures;
    (b) Identification of key linkages between one or more modes of 
transportation, where the performance or use of one mode will affect 
another;
    (c) Definition of strategies for improving the effectiveness of 
these modal interactions; and
    (d) Evaluation and implementation of these strategies to enhance the 
overall performance of the transportation system.



                   Subpart B_Traffic Monitoring System



Sec.  500.201  Purpose.

    The purpose of this subpart is to set forth requirements for 
development, establishment, implementation, and continued operation of a 
traffic monitoring system for highways and public transportation 
facilities and equipment (TMS) in each State in accordance with the 
provisions of 23 U.S.C. 303 and subpart A of this part.



Sec.  500.202  TMS definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and Sec.  500.103 are applicable to this subpart. As used 
in this part:
    Highway traffic data means data used to develop estimates of the 
amount of person or vehicular travel, vehicle usage, or vehicle 
characteristics associated with a system of highways or with a 
particular location on a highway. These types of data support the 
estimation of the number of vehicles traversing a section of highway or 
system of highways during a prescribed time period (traffic volume), the 
portion of such vehicles that may be of a particular type (vehicle 
classification), the weights of such vehicles including the weight of 
each axle and associated distances between axles on a vehicle (vehicle 
weight), or the average number of persons being transported in a vehicle 
(vehicle occupancy).
    Traffic monitoring system means a systematic process for the 
collection, analysis, summary, and retention of highway and transit 
related person and vehicular traffic data.
    Transit traffic data means person and vehicular data for public 
transportation on public highways and streets and the number of vehicles 
and ridership for dedicated transit rights-of-way (e.g., rail and 
busways), at the maximum load points for the peak period in the peak 
direction and for the daily time period.



Sec.  500.203  TMS general requirements.

    (a) Each State shall develop, establish, and implement, on a 
continuing basis, a TMS to be used for obtaining highway traffic data 
when:

[[Page 215]]

    (1) The data are supplied to the U.S. Department of Transportation 
(U.S. DOT);
    (2) The data are used in support of transportation management 
systems;
    (3) The data are used in support of studies or systems which are the 
responsibility of the U.S. DOT;
    (4) The collection of the data is supported by the use of Federal 
funds provided from programs of the U.S. DOT;
    (5) The data are used in the apportionment or allocation of Federal 
funds by the U.S. DOT;
    (6) The data are used in the design or construction of an FHWA 
funded project; or
    (7) The data are required as part of a federally mandated program of 
the U.S. DOT.
    (b) The TMS for highway traffic data should be based on the concepts 
described in the American Association of State Highway and 
Transportation Officials (AASHTO) ``AASHTO Guidelines for Traffic Data 
Programs'' \4\ and the FHWA ``Traffic Monitoring Guide (TMG),'' \5\ and 
shall be consistent with the FHWA ``Highway Performance Monitoring 
System Field Manual.'' \6\
---------------------------------------------------------------------------

    \4\ AASHTO Guidelines for Traffic Data Programs, 1992, ISBN 1-56051-
054-4, can be purchased from the American Association of State Highway 
and Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
    \5\ Traffic Monitoring Guide, DOT/FHWA, publication No. FHWA-PL-95-
031, February 1995. Available for inspection and copying as prescribed 
in 49 CFR part 7, appendix D.
    \6\ Highway Performance Monitoring System (HPMS) Field Manual for 
the Continuing Analytical and Statistical Data Base, DOT/FHWA, August 
30, 1993 (FHWA Order M5600.1B). Available for inspection and copying as 
prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (c) The TMS shall cover all public roads except those functionally 
classified as local or rural minor collector or those that are federally 
owned. Coverage of federally owned public roads shall be determined 
cooperatively by the State, the FHWA, and the agencies that own the 
roads.
    (d) The State's TMS shall apply to the activities of local 
governments and other public or private non-State government entities 
collecting highway traffic data within the State if the collected data 
are to be used for any of the purposes enumerated in Sec.  500.203(a) of 
this subpart.
    (e) Procedures other than those referenced in this subpart may be 
used if the alternative procedures are documented by the State to 
furnish the precision levels as defined for the various purposes 
enumerated in Sec.  500.203(a) of this subpart and are found acceptable 
by the FHWA.
    (f) Nothing in this subpart shall prohibit the collection of 
additional highway traffic data if such data are needed in the 
administration or management of a highway activity or are needed in the 
design of a highway project.
    (g) Transit traffic data shall be collected in cooperation with MPOs 
and transit operators.
    (h) The TMS for highways and public transportation facilities and 
equipment shall be fully operational and in use by October 1, 1997.



Sec.  500.204  TMS components for highway traffic data.

    (a) General. Each State's TMS, including those using alternative 
procedures, shall address the components in paragraphs (b) through (h) 
of this section.
    (b) Precision of reported data. Traffic data supplied for the 
purposes identified in Sec.  500.203(a) of this subpart shall be to the 
statistical precision applicable at the time of the data's collection as 
specified by the data users at various levels of government. A State's 
TMS shall meet the statistical precisions established by FHWA for the 
HPMS.
    (c) Continuous counter operations. Within each State, there shall be 
sufficient continuous counters of traffic volumes, vehicle 
classification, and vehicle weight to provide estimates of changes in 
highway travel patterns and to provide for the development of day-of-
week, seasonal, axle correction, growth factors, or other comparable 
factors approved by the FHWA that support the development of traffic 
estimates to meet the statistical precision requirements of the data 
uses identified in Sec.  500.203(a) of this subpart. As appropriate, 
sufficient continuous

[[Page 216]]

counts of vehicle classification and vehicle weight should be available 
to address traffic data program needs.
    (d) Short term traffic monitoring. (1) Count data for traffic 
volumes collected in the field shall be adjusted to reflect annual 
average conditions. The estimation of annual average daily traffic will 
be through the appropriate application of only the following: Seasonal 
factors, day-of-week factors, and, when necessary, axle correction and 
growth factors or other comparable factors approved by the FHWA. Count 
data that have not been adjusted to represent annual average conditions 
will be noted as being unadjusted when they are reported. The duration 
and frequency of such monitoring shall comply to the data needs 
identified in Sec.  500.203(a) of this subpart.
    (2) Vehicle classification activities on the National Highway System 
(NHS), shall be sufficient to assure that, on a cycle of no greater than 
three years, every major system segment (i.e., segments between 
interchanges or intersections of principal arterials of the NHS with 
other principal arterials of the NHS) will be monitored to provide 
information on the numbers of single-trailer combination trucks, 
multiple-trailer combination trucks, two-axle four-tire vehicles, buses 
and the total number of vehicles operating on an average day. If it is 
determined that two or more continuous major system segments have both 
similar traffic volumes and distributions of the vehicle types 
identified above, a single monitoring session will be sufficient to 
monitor these segments.
    (e) Vehicle occupancy monitoring. As deemed appropriate to support 
the data uses identified in Sec.  500.203(a) of this subpart, data will 
be collected on the average number of persons per automobile, light two-
axle truck, and bus. The duration, geographic extent, and level of 
detail shall be consistent with the intended use of the data, as 
cooperatively agreed to by the organizations that will use the data and 
the organizations that will collect the data. Such vehicle occupancy 
data shall be reviewed at least every three years and updated as 
necessary. Acceptable data collection methods include roadside 
monitoring, traveler surveys, the use of administrative records (e.g., 
accident reports or reports developed in support of public 
transportation programs), or any other method mutually acceptable to the 
responsible organizations and the FHWA.
    (f) Field operations. (1) Each State's TMS for highway traffic data 
shall include the testing of equipment used in the collection of the 
data. This testing shall be based on documented procedures developed by 
the State. This documentation will describe the test procedure as well 
as the frequency of testing. Standards of the American Society for 
Testing and Materials or guidance from the AASHTO may be used. Only 
equipment passing the test procedures will be used for the collection of 
data for the purposes identified in Sec.  500.203(a) of this subpart.
    (2) Documentation of field operations shall include the number of 
counts, the period of monitoring, the cycle of monitoring, and the 
spatial and temporal distribution of count sites. Copies of the State's 
documentation shall be provided to the FHWA Division Administrator when 
it is initially developed and after each revision.
    (g) Source data retention. For estimates of traffic or travel, the 
value or values collected during a monitoring session, as well as 
information on the date(s) and hour(s) of monitoring, will remain 
available until the traffic or travel estimates based on the count 
session are updated. Data shall be available in formats that conform to 
those in the version of the TMG current at the time of data collection 
or as then amended by the FHWA.
    (h) Office factoring procedures. (1) Factors to adjust data from 
short term monitoring sessions to estimates of average daily conditions 
shall be used to adjust for month, day of week, axle correction, and 
growth or other comparable factors approved by the FHWA. These factors 
will be reviewed annually and updated at least every three years.
    (2) The procedures used by a State to edit and adjust highway 
traffic data collected from short term counts at field locations to 
estimates of average traffic volume shall be documented. The 
documentation shall include the factors discussed in paragraph (d)(1) of 
this section. The documentation shall remain available as long as the 
traffic

[[Page 217]]

or travel estimates discussed in paragraph (g) of this section remain 
current. Copies of the State's documentation shall be provided to the 
FHWA Division Administrator when it is initially developed and after 
each revision.



PART 505_PROJECTS OF NATIONAL AND REGIONAL SIGNIFICANCE 
EVALUATION AND RATING--Table of Contents



Sec.
505.1 Purpose.
505.3 Policy.
505.5 Definitions.
505.7 Eligibility.
505.9 Criteria for grants.
505.11 Project evaluation and rating.
505.13 Federal Government's share of project cost.
505.15 Full funding grant agreement.
505.17 Applicability of Title 23, U.S. Code.

    Authority: Section 1301 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59; 
119 Stat. 1144); 23 U.S.C. 315; 49 CFR 1.48.

    Source: 73 FR 63370, Oct. 24, 2008, unless otherwise noted.



Sec.  505.1  Purpose.

    The purpose of this part is to establish evaluation, rating, and 
selection guidelines for funding proposed Projects of National and 
Regional Significance (PNRS).



Sec.  505.3  Policy.

    A Project of National and Regional Significance should 
quantitatively improve the throughput or provide long term congestion 
relief for passenger or freight movement for a part of the 
transportation network and clearly connect this improvement to 
sustainable economic productivity for the nation or the region in which 
it is located.



Sec.  505.5  Definitions.

    Unless otherwise specified in this part, the definitions contained 
in 23 U.S.C. 101(a) are applicable to this part. In addition, the 
following definitions apply:
    Applicant means either:
    (1) A State Transportation Department, or
    (2) A group of State Transportation Departments, with one State 
acting as the project lead.
    Eligible project means any surface transportation project or set of 
integrated surface transportation projects closely related in the 
function they perform eligible for Federal assistance under title 23, 
United States Code, including public or private rail facilities 
providing benefits to highway users, surface transportation 
infrastructure modifications to facilitate intermodal interchange, 
transfer, and access into and out of ports and other activities eligible 
under such title.
    Eligible project costs means the costs pertaining to an eligible 
project for:
    (1) Development phase activities, including planning, feasibility 
analysis, revenue forecasting, environmental review, preliminary 
engineering and design work, and other preconstruction activities;
    (2) Construction, reconstruction, rehabilitation, and acquisition of 
real property (including land related to the project and improvements to 
land), environmental mitigation, construction contingencies, acquisition 
of equipment, and operational improvements; and
    (3) all debt financing costs authorized by 23 U.S.C. 122.
    Full Funding Grant Agreement (FFGA) means the agreement used to 
provide Federal financial assistance under title 23, United States Code, 
for Projects of National and Regional Significance. An FFGA defines the 
scope of the project, establishes the maximum amount of Government 
financial assistance for the project, covers the period of time for 
completion of the project, facilitates the efficient management of the 
project in accordance with applicable Federal statutes, regulations, and 
policy, including oversight roles and responsibilities, and other terms 
and conditions.



Sec.  505.7  Eligibility.

    To be eligible for assistance under this program:
    (a) A project meeting the definition of an eligible project under 
505.5 of this section located fully within one State shall have eligible 
project costs that

[[Page 218]]

are quantified in the project proposal as equal to or exceeding the 
lesser of:
    (1) $500,000,000; or
    (2) 75 percent of the amount of Federal highway assistance funds 
apportioned for the most recently completed fiscal year to the State in 
which the project is located.
    (b) A multi-State project meeting the definition of an eligible 
project under 505.5 of this section shall have eligible project costs 
that are quantified in the project proposal as equal to or exceeding the 
lesser of:
    (1) $500,000,000; or
    (2) 75 percent of the amount of Federal highway assistance funds 
apportioned for the most recently completed fiscal year to the State in 
which the project is located that has the largest apportionment.



Sec.  505.9  Criteria for grants.

    (a) The Secretary will approve a grant for a Project of National and 
Regional Significance project only if the Secretary determines, based 
upon information submitted by the applicant, that the project:
    (1) Is based on the results of preliminary engineering;
    (2) Is supported by an acceptable degree of non-Federal financial 
commitments, including evidence of stable and dependable financing 
sources to construct, maintain, and operate the infrastructure facility. 
In evaluating a non-Federal financial commitment, the Secretary shall 
require that:
    (i) The proposed project plan provides for the availability of 
contingency amounts that the Secretary determines to be reasonable to 
cover unanticipated cost increases; and
    (ii) Each proposed non-Federal source of capital and operating 
financing is stable, reliable, and available within the proposed project 
timetable. In assessing the stability, reliability, and availability of 
proposed sources of non-Federal financing, the Secretary will consider:
    (A) Existing financial commitments;
    (B) The degree to which financing sources are dedicated to the 
purposes proposed;
    (C) Any debt obligation that exists or is proposed by the recipient 
for the proposed project; and
    (D) The extent to which the project has a non-Federal financial 
commitment that exceeds the required non-Federal share of the cost of 
the project.
    (3) Emerges from the metropolitan and Statewide planning process, 
consistent with 23 CFR Part 450;
    (4) Is justified based on the ability of the project:
    (i) To generate national and/or regional economic benefits, as 
evidenced by, but not limited to:
    (A) The creation of jobs, expansion of business opportunities, and 
impacts to the gross domestic product due to quantitatively increased 
throughput;
    (B) The amount and importance of freight and passenger travel 
served; and
    (C) The demographic and economic characteristics of the area served.
    (ii) To allocate public and private costs commensurate with the 
share of public and private benefits and risks;
    (iii) To generate long-term congestion relief that impacts the 
State, the region, and the Nation, as evidenced by, but not limited to:
    (A) Congestion levels, delay and consequences of delay;
    (B) Efficiency and effectiveness of congestion mitigation; and
    (C) Travel time reliability.
    (iv) To improve transportation safety, including reducing 
transportation accidents, injuries, and fatalities, as evidenced by, but 
not limited to, number, rate and consequences of crashes, injuries and 
fatalities in the affected region and corridor;
    (v) To otherwise enhance the national transportation system by 
improving throughput; and
    (vi) To garner support for non-Federal financial commitments and 
provide evidence of stable and dependable financing sources to 
construct, maintain, and operate the infrastructure facility.
    (b) In selecting projects under this section, the Secretary will 
consider the extent to which the project:
    (1) Leverages Federal investment by encouraging non-Federal 
contributions to the project, including contributions from public-
private partnerships;
    (2) Uses new technologies, including intelligent transportation 
systems,

[[Page 219]]

that enhance the efficiency of the project;
    (3) Helps maintain or protect the environment; and
    (4) Demonstrates that the proposed project cannot be readily and 
efficiently realized without Federal support and participation.
    (c) All information submitted as part of or in support of an 
application shall use publicly available data or data that can be made 
public and methodologies that are accepted by industry practice and 
standards.
    (d) Measures for the selection criteria shall include projections 
for both the build and no-build scenarios.
    (e) PNRS solicitations or guidance documents will contain, as 
needed, additional specific information regarding measures, weighting, 
and use of these criteria.
    (f) All proposed PNRS projects are required to comply with the 
requirements of 23 U.S.C. 106(h) regardless of whether the project meets 
project cost threshold for classification as a major project.



Sec.  505.11  Project evaluation and rating.

    (a) The Secretary shall evaluate and rate each proposed project as 
``highly recommended,'' ``recommended,'' or ``not recommended'' based on 
the criteria in section 505.9 of this part. Individual ratings of 
``highly recommended,'' ``recommended,'' or ``not recommended'' will be 
conducted for each of the selection criteria.
    (b) In response to a PNRS project solicitation a State may submit a 
project for a non-binding preliminary rating and evaluation at any point 
in the project development after the project's concept plan is 
developed.
    (c) Non-binding preliminary rating and evaluation will be reported 
in the appendix of the Secretary's Annual Report on PNRS.
    (d) A rating and evaluation will be considered complete and listed 
in the Secretary's Annual Report on PNRS only after preliminary 
engineering is completed.
    (e) The rating and evaluation for a proposed project will remain 
valid until the closing date of the next PNRS solicitation.



Sec.  505.13  Federal Government's share of project cost.

    (a) Based on engineering studies, studies of economic feasibility, 
and information on the expected use of equipment or facilities, the 
Secretary shall estimate the project's eligible costs.
    (b) A FFGA for the project shall not exceed 80 percent of the 
eligible project cost. A refund or reduction of the remainder may only 
be made if a refund of a proportional amount of the grant of the Federal 
Government is made at the same time.



Sec.  505.15  Full funding grant agreement.

    (a) A proposed project may not be funded under this program unless 
the Secretary finds that the project meets the requirements of this part 
and there is a reasonable likelihood that the project will continue to 
meet such requirements.
    (b) A project financed under this section shall be carried out 
through a FFGA. The Secretary shall enter into a FFGA based on the 
evaluations and ratings required herein, and in accordance with the 
terms specified in section 1301(g)(2) of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users, (Pub. 
L. 109-59; 119 Stat. 1144).
    (c) A FFGA will be entered into only after the project has 
commitments for non-Federal funding in place and all other requirements 
are met.
    (d) A State may request the use of Advanced Construction for the 
project and subsequently convert those funds to an eligible Federal-aid 
funding category or to PNRS funding as part of the FFGA.



Sec.  505.17  Applicability of Title 23, U.S. Code.

    Funds made available to carry out this section shall be available 
for obligation in the same manner as if such funds were apportioned 
under chapter 1 of title 23, United States Code; except that such funds 
shall not be transferable to other agencies and shall remain available 
until expended and the Federal share of the cost of a Project of 
National and Regional Significance shall be as provided in section 
505.13.

[[Page 220]]



PART 511_REAL-TIME SYSTEM MANAGEMENT INFORMATION PROGRAM--Table of Contents



Subparts A-B [Reserved]

        Subpart C_Real-Time System Management Information Program

Sec.
511.301 Purpose.
511.303 Definitions.
511.305 Policy.
511.307 Eligibility for Federal funding.
511.309 Provisions for traffic and travel conditions reporting.
511.311 Real-time information program establishment.
511.313 Metropolitan Area real-time information program supplement.
511.315 Program administration.

    Authority: Section 1201, Pub. L. 109-59; 23 U.S.C. 315; 23 U.S.C. 
120; 49 CFR 1.48.

    Source: 75 FR 68427, Nov. 8, 2010, unless otherwise noted.

Subparts A-B [Reserved]



        Subpart C_Real-Time System Management Information Program



Sec.  511.301  Purpose.

    The purpose of this part is to establish the provisions and 
parameters for the Real-Time System Management Information Program. 
These provisions implement Subsections 1201(a)(1), (a)(2), and (c)(1) of 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; 119 Stat. 1144), 
pertaining to Congestion Relief.



Sec.  511.303  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this subpart. As used in this part:
    Accuracy means the measure or degree of agreement between a data 
value or set of values and a source assumed to be correct.
    Availability means the degree to which data values are present in 
the attributes (e.g., speed and travel time are attributes of traffic) 
that require them. Availability is typically described in terms of 
percentages or number of data values.
    Congestion means the level at which transportation system 
performance is unacceptable due to excessive travel times and delays.
    Data quality means the fitness of data for all purposes that require 
such data.
    Full construction activities mean roadway construction or 
maintenance activities that affect travel conditions by closing and 
reopening roadways or lanes.
    Metropolitan areas means the geographic areas designated as 
Metropolitan Statistical Areas by the Office of Management and Budget in 
the Executive Office of the President with a population exceeding 
1,000,000 inhabitants.
    Real-time information program means the program by which States 
gather and make available the data for traffic and travel conditions. 
Such means may involve State-only activity (including cooperative 
activities engaging multiple State agencies), State partnership with 
commercial providers of value-added information products, or other 
effective means that enable the State to satisfy the provisions for 
traffic and travel time conditions reporting stated in this section.
    Routes of significance are non-Interstate roadways in metropolitan 
areas that are designated by States as meriting the collection and 
provision of information related to traffic and travel conditions. 
Factors to be considered in designating routes of significance include 
roadway safety (e.g., crash rate, routes affected by environmental 
events), public safety (e.g., routes used for evacuations), economic 
productivity, severity and frequency of congestion, and utility of the 
highway to serve as a diversion route for congestion locations. All 
public roadways including arterial highways, toll facilities and other 
facilities that apply end user pricing mechanisms shall be considered 
when designating routes of significance. In identifying these routes, 
States shall apply the collaborative practices and procedures that are 
used for compliance with 23 CFR part 940 and 23 CFR part 420.

[[Page 221]]

    Statewide incident reporting system means a statewide system for 
facilitating the real-time electronic reporting of surface 
transportation incidents to a central location for use in monitoring the 
event, providing accurate traveler information, and responding to the 
incident as appropriate. This definition is consistent with Public Law 
109-59; 119 Stat. 1144, Section 1201(f).
    Timeliness means the degree to which data values or a set of values 
are provided at the time required or specified.
    Traffic and travel conditions means the characteristics that the 
traveling public experiences. Traffic and travel conditions include, but 
are not limited to, the following characteristics:
    (1) Road or lane closures because of construction, traffic 
incidents, or other events;
    (2) Roadway weather or other environmental conditions restricting or 
adversely affecting travel; and
    (3) Travel times or speeds on limited access roadways in 
metropolitan areas that experience recurring congestion.
    Validity means the degree to which data values fall within the 
respective domain of acceptable values.
    Value-added information products means crafted products intended for 
commercial use, for sale to a customer base, or for other commercial 
enterprise purposes. These products may be derived from information 
gathered by States and may be created from other party or proprietary 
sources. These products may be created using the unique means of the 
value-added information provider.



Sec.  511.305  Policy.

    This part establishes the provisions and parameters for the Real-
Time System Management Information Program for State DOTs, other 
responsible agencies, and partnerships with other commercial entities in 
establishing real-time information programs that provide accessibility 
to traffic and travel conditions information by other public agencies, 
the traveling public, and by other parties who may deliver value-added 
information products.



Sec.  511.307  Eligibility for Federal funding.

    (a) Subject to project approval by the Secretary, a State may 
obligate funds apportioned to the State under Title 23 U.S.C. sections 
104(b)(1), also known as National Highway System funds, 104(b)(2), also 
known as CMAQ Improvement funds, and 104(b)(3), also known as STP funds, 
for activities relating to the planning, deployment and operation, 
including preventative maintenance, of real-time monitoring elements 
that advance the goals and purposes of the Real-Time System Management 
Information Program. The SPC funds, apportioned according to 23 U.S.C. 
505(a), may be applied to the development and implementation of a real-
time information program.
    (b) Those project applications to establish a real-time information 
program solely for Interstate System highways are entitled to a Federal 
share of 90 percent of the total project cost, pursuant to 23 U.S.C. 
120(a). Those project applications to establish a real-time information 
program for non-Interstate highways are entitled to a Federal share of 
80 percent of the total project cost, as per 23 U.S.C. 120(b).



Sec.  511.309  Provisions for traffic and travel conditions reporting.

    (a) Minimum requirements for traffic and travel conditions made 
available by real-time information programs are:
    (1) Construction activities. The timeliness for the availability of 
information about full construction activities that close or reopen 
roadways or lanes will be 20 minutes or less from the time of the 
closure for highways outside of Metropolitan Areas. For roadways within 
Metropolitan Areas, the timeliness for the availability of information 
about full construction activities that close or reopen roadways or 
lanes will be 10 minutes or less from the time of the closure or 
reopening. Short-term or intermittent lane closures of limited duration 
that are less than the required reporting times are not included as a 
minimum requirement under this section.
    (2) Roadway or lane blocking incidents. The timeliness for the 
availability of information related to roadway or lane blocking traffic 
incidents will be 20

[[Page 222]]

minutes or less from the time that the incident is verified for highways 
outside of Metropolitan Areas. For roadways within Metropolitan Areas, 
the timeliness for the availability of information related to roadway or 
lane blocking traffic incidents will be 10 minutes or less from the time 
that the incident is verified.
    (3) Roadway weather observations. The timeliness for the 
availability of information about hazardous driving conditions and 
roadway or lane closures or blockages because of adverse weather 
conditions will be 20 minutes or less from the time the hazardous 
conditions, blockage, or closure is observed.
    (4) Travel time information. The timeliness for the availability of 
travel time information along limited access roadway segments within 
Metropolitan Areas, as defined under this subpart, will be 10 minutes or 
less from the time that the travel time calculation is completed.
    (5) Information accuracy. The designed accuracy for a real-time 
information program shall be 85 percent accurate at a minimum, or have a 
maximum error rate of 15 percent.
    (6) Information availability. The designed availability for a real-
time information program shall be 90 percent available at a minimum.
    (b) Real-time information programs may be established using legacy 
monitoring mechanisms applied to the highways, using a statewide 
incident reporting system, using new monitoring mechanisms applied to 
the highways, using value-added information products, or using a 
combination of monitoring mechanisms and value-added information 
products.



Sec.  511.311  Real-time information program establishment.

    (a) Requirement. States shall establish real-time information 
programs that are consistent with the parameters defined under Sec.  
511.309. The real-time information program shall be established to take 
advantage of the existing traffic and travel condition monitoring 
capabilities, and build upon them where applicable. The real-time 
information program shall include traffic and travel condition 
information for, as a minimum, all the Interstate highways operated by 
the State. In addition, the real-time information program shall 
complement current transportation performance reporting systems by 
making it easier to gather or enhance required information.
    (b) Data quality. States shall develop the methods by which data 
quality can be ensured to the data consumers. The criteria for defining 
the validity of traffic and travel conditions made available from real-
time information programs shall be established by the States in 
collaboration with their partners for establishing the programs. States 
shall receive FHWA's concurrence that the selected methods provide 
reasonable checks of the quality of the information made available by 
the real-time information program. In requesting FHWA's concurrence, the 
State shall demonstrate to FHWA how the selected methods gauge the 
accuracy and availability of the real-time information and the remedial 
actions if the information quality falls below the levels described in 
Sec.  511.309(a)(5) and Sec.  511.309(a)(6).
    (c) Participation. The establishment, or the enhancement, of a real-
time information program should include participation from the following 
agencies: Highway agencies; public safety agencies (e.g., police, fire, 
emergency/medical); transit operators; and other operating agencies 
necessary to sustain mobility through the region and/or the metropolitan 
area. Nothing in this subpart is intended to alter the existing 
relationships among State, regional, and local agencies.
    (d) Update of Regional ITS Architecture. All States and regions that 
have created a Regional ITS Architecture in accordance with Section 940 
in Title 23 CFR shall evaluate their Regional ITS Architectures to 
determine whether the Regional ITS Architectures explicitly address 
real-time highway and transit information needs and the methods needed 
to meet such needs. Traffic and travel conditions monitoring needs for 
all Interstate system highways shall be considered. If necessary, the 
Regional ITS Architectures shall be updated to address coverage, 
monitoring systems, data fusion and archiving, and accessibility to 
highway and transit information for other

[[Page 223]]

States and for value added information product providers. The Regional 
ITS Architecture shall feature the components and functionality of the 
real-time information program.
    (e) Effective date. Establishment of the real-time information 
program for traffic and travel conditions on the Interstate system 
highways shall be completed no later than November 8, 2014.



Sec.  511.313  Metropolitan Area real-time information program supplement.

    (a) Applicability. Metropolitan Areas as defined under this subpart.
    (b) Requirement. Metropolitan Areas shall establish a real-time 
information program for traffic and travel conditions reporting with the 
same provisions described in Sec.  511.311.
    (c) Routes of significance. States shall designate metropolitan 
areas, non-Interstate highways that are routes of significance as 
defined under this subpart. In identifying the metropolitan routes of 
significance, States shall collaborate with local or regional agencies 
using existing coordination methods. Nothing in this subpart is intended 
to alter the existing relationships among State, regional, and local 
agencies.
    (d) Effective date. Establishment of the real-time information 
program for traffic and travel conditions reporting along the 
Metropolitan Area Interstate system highways shall be completed no later 
than November 8, 2014. Establishment of the real-time information 
program for traffic and travel conditions reporting along the State-
designated metropolitan area routes of significance shall be completed 
no later than November 8, 2016.



Sec.  511.315  Program administration.

    Compliance with this subpart will be monitored under Federal-aid 
oversight procedures as provided under 23 U.S.C. 106 and 133, 23 CFR 
1.36, and 23 CFR 940.13.



PART 515_ASSET MANAGEMENT PLANS--Table of Contents



Sec.
515.1 Purpose.
515.3 Applicability and effective date.
515.5 Definitions.
515.7 Process for establishing the asset management plan.
515.9 Asset management plan requirements.
515.11 Deadlines and phase-in of asset management plan development.
515.13 Process certification and recertification, and annual plan 
          consistency review.
515.15 Penalties.
515.17 Minimum standards for developing and operating bridge and 
          pavement management systems.
515.19 Organizational integration of asset management.

    Authority: Sec. 1106 and 1203 of Pub. L. 112-141, 126 Stat. 405; 23 
U.S.C. 109, 119(e), 144, 150(c), and 315; 49 CFR 1.85(a).

    Source: 81 FR 73263, Oct. 24, 2016, unless otherwise noted.



Sec.  515.1  Purpose.

    The purpose of this part is to:
    (a) Establish the processes that a State transportation department 
(State DOT) must use to develop its asset management plan, as required 
under 23 U.S.C. 119(e)(8);
    (b) Establish the minimum requirements that apply to the development 
of an asset management plan;
    (c) Describe the penalties for a State DOT's failure to develop and 
implement an asset management plan in accordance with 23 U.S.C. 119 and 
this part;
    (d) Set forth the minimum standards for a State DOT to use in 
developing and operating highway bridge and pavement management systems 
under 23 U.S.C. 150(c)(3)(A)(i).



Sec.  515.3  Applicability and effective date.

    This part applies to all State DOTs. The effective date for the 
requirements in this part is October 2, 2017.



Sec.  515.5  Definitions.

    As used in this part:

    Asset means all physical highway infrastructure located within the 
right-of-way corridor of a highway. The term asset includes all 
components necessary for the operation of a highway including pavements, 
highway bridges, tunnels, signs, ancillary structures, and other 
physical components of a highway.
    Asset class means assets with the same characteristics and function 
(e.g., bridges, culverts, tunnels, pavements, or guardrail) that are a 
subset of a group or collection of

[[Page 224]]

assets that serve a common function (e.g., roadway system, safety, 
Intelligent Transportation (IT), signs, or lighting).
    Asset condition means the actual physical condition of an asset.
    Asset management means a strategic and systematic process of 
operating, maintaining, and improving physical assets, with a focus on 
both engineering and economic analysis based upon quality information, 
to identify a structured sequence of maintenance, preservation, repair, 
rehabilitation, and replacement actions that will achieve and sustain a 
desired state of good repair over the life cycle of the assets at 
minimum practicable cost.
    Asset management plan means a document that describes how a State 
DOT will carry out asset management as defined in this section. This 
includes how the State DOT will make risk-based decisions from a long-
term assessment of the National Highway System (NHS), and other public 
roads included in the plan at the option of the State DOT, as it relates 
to managing its physical assets and laying out a set of investment 
strategies to address the condition and system performance gaps. This 
document describes how the highway network system will be managed to 
achieve State DOT targets for asset condition and system performance 
effectiveness while managing the risks, in a financially responsible 
manner, at a minimum practicable cost over the life cycle of its assets. 
The term asset management plan under this part is the risk-based asset 
management plan that is required under 23 U.S.C. 119(e) and is intended 
to carry out asset management as defined in 23 U.S.C. 101(a)(2).
    Asset sub-group means a specialized group of assets within an asset 
class with the same characteristics and function (e.g., concrete 
pavements or asphalt pavements.)
    Bridge as used in this part, is defined in 23 CFR 650.305, the 
National Bridge Inspection Standards.
    Critical infrastructure means those facilities the incapacity or 
failure of which would have a debilitating impact on national or 
regional economic security, national or regional energy security, 
national or regional public health or safety, or any combination of 
those matters.
    Financial plan means a long-term plan spanning 10 years or longer, 
presenting a State DOT's estimates of projected available financial 
resources and predicted expenditures in major asset categories that can 
be used to achieve State DOT targets for asset condition during the plan 
period, and highlighting how resources are expected to be allocated 
based on asset strategies, needs, shortfalls, and agency policies.
    Investment strategy means a set of strategies that result from 
evaluating various levels of funding to achieve State DOT targets for 
asset condition and system performance effectiveness at a minimum 
practicable cost while managing risks.
    Life-cycle cost means the cost of managing an asset class or asset 
sub-group for its whole life, from initial construction to its 
replacement.
    Life-cycle planning means a process to estimate the cost of managing 
an asset class, or asset sub-group over its whole life with 
consideration for minimizing cost while preserving or improving the 
condition.
    Minimum practicable cost means lowest feasible cost to achieve the 
objective.
    NHS pavements and bridges and NHS pavement and bridge assets mean 
Interstate System pavements (inclusion of ramps that are not part of the 
roadway normally traveled by through traffic is optional); NHS pavements 
(excluding the Interstate System) (inclusion of ramps that are not part 
of the roadway normally traveled by through traffic is optional); and 
NHS bridges carrying the NHS (including bridges that are part of the 
ramps connecting to the NHS).
    Performance of the NHS refers to the effectiveness of the NHS in 
providing for the safe and efficient movement of people and goods where 
that performance can be affected by physical assets. This term does not 
include the performance measures established for performance of the 
Interstate System and performance of the NHS (excluding the Interstate 
System) under 23 U.S.C. 150(c)(3)(ii)(A)(IV)-(V).
    Performance gap means the gaps between the current asset condition 
and State DOT targets for asset condition, and the gaps in system 
performance effectiveness that are best addressed by improving the 
physical assets.
    Risk means the positive or negative effects of uncertainty or 
variability upon agency objectives.
    Risk management means the processes and framework for managing 
potential risks, including identifying, analyzing, evaluating, and 
addressing the risks to assets and system performance.
    Statewide Transportation Improvement Program (STIP) has the same 
meaning as defined in Sec.  450.104 of this title.
    Work type means initial construction, maintenance, preservation, 
rehabilitation, and reconstruction.



Sec.  515.7  Process for establishing the asset management plan.

    A State shall develop a risk-based asset management plan that 
describes how the NHS will be managed to achieve system performance 
effectiveness and State DOT targets for asset condition, while managing 
the risks, in a financially responsible manner, at a minimum practicable 
cost over the life

[[Page 225]]

cycle of its assets. The State DOT shall develop and use, at a minimum 
the following processes to prepare its asset management plan:
    (a) A State DOT shall establish a process for conducting performance 
gap analysis to identify deficiencies hindering progress toward 
improving or preserving the NHS and achieving and sustaining the desired 
state of good repair. At a minimum, the State DOT's process shall 
address the following in the gap analysis:
    (1) The State DOT targets for asset condition of NHS pavements and 
bridges as established by the State DOT under 23 U.S.C. 150(d) once 
promulgated.
    (2) The gaps, if any, in the performance-of the NHS that affect NHS 
pavements and bridges regardless of their physical condition; and
    (3) Alternative strategies to close or address the identified gaps.
    (b) A State DOT shall establish a process for conducting life-cycle 
planning for an asset class or asset sub-group at the network level 
(network to be defined by the State DOT). As a State DOT develops its 
life-cycle planning process, the State DOT should include future changes 
in demand; information on current and future environmental conditions 
including extreme weather events, climate change, and seismic activity; 
and other factors that could impact whole of life costs of assets. The 
State DOT may propose excluding one or more asset sub-groups from its 
life-cycle planning if the State DOT can demonstrate to FHWA the 
exclusion of the asset sub-group would have no material adverse effect 
on the development of sound investment strategies due to the limited 
number of assets in the asset sub-group, the low level of cost 
associated with managing the assets in that asset sub-group, or other 
justifiable reasons. A life-cycle planning process shall, at a minimum, 
include the following:
    (1) The State DOT targets for asset condition for each asset class 
or asset sub-group;
    (2) Identification of deterioration models for each asset class or 
asset sub-group, provided that identification of deterioration models 
for assets other than NHS pavements and bridges is optional;
    (3) Potential work types across the whole life of each asset class 
or asset sub-group with their relative unit cost; and
    (4) A strategy for managing each asset class or asset sub-group by 
minimizing its life-cycle costs, while achieving the State DOT targets 
for asset condition for NHS pavements and bridges under 23 U.S.C. 
150(d).
    (c) A State DOT shall establish a process for developing a risk 
management plan. This process shall, at a minimum, produce the following 
information:
    (1) Identification of risks that can affect condition of NHS 
pavements and bridges and the performance of the NHS, including risks 
associated with current and future environmental conditions, such as 
extreme weather events, climate change, seismic activity, and risks 
related to recurring damage and costs as identified through the 
evaluation of facilities repeated damaged by emergency events carried 
out under part 667 of this title. Examples of other risk categories 
include financial risks such as budget uncertainty; operational risks 
such as asset failure; and strategic risks such as environmental 
compliance.
    (2) An assessment of the identified risks in terms of the likelihood 
of their occurrence and their impact and consequence if they do occur;
    (3) An evaluation and prioritization of the identified risks;
    (4) A mitigation plan for addressing the top priority risks;
    (5) An approach for monitoring the top priority risks; and
    (6) A summary of the evaluations of facilities repeatedly damaged by 
emergency events carried out under part 667 of this title that 
discusses, at a minimum, the results relating to the State's NHS 
pavements and bridges.
    (d) A State DOT shall establish a process for the development of a 
financial plan that identifies annual costs over a minimum period of 10 
years. The financial plan process shall, at a minimum, produce:
    (1) The estimated cost of expected future work to implement 
investment

[[Page 226]]

strategies contained in the asset management plan, by State fiscal year 
and work type;
    (2) The estimated funding levels that are expected to be reasonably 
available, by fiscal year, to address the costs of future work types. 
State DOTs may estimate the amount of available future funding using 
historical values where the future funding amount is uncertain;
    (3) Identification of anticipated funding sources; and
    (4) An estimate of the value of the agency's NHS pavement and bridge 
assets and the needed investment on an annual basis to maintain the 
value of these assets.
    (e) A State DOT shall establish a process for developing investment 
strategies meeting the requirements in Sec.  515.9(f). This process must 
result in a description of how the investment strategies are influenced, 
at a minimum, by the following:
    (1) Performance gap analysis required under paragraph (a) of this 
section;
    (2) Life-cycle planning for asset classes or asset sub-groups 
resulting from the process required under paragraph (b) of this section;
    (3) Risk management analysis resulting from the process required 
under paragraph (c) of this section; and
    (4) Anticipated available funding and estimated cost of expected 
future work types associated with various candidate strategies based on 
the financial plan required by paragraph (d) of this section.
    (f) The processes established by State DOTs shall include a 
provision for the State DOT to obtain necessary data from other NHS 
owners in a collaborative and coordinated effort.
    (g) States DOTs shall use the best available data to develop their 
asset management plans. Pursuant to 23 U.S.C. 150(c)(3)(A)(i), each 
State DOT shall use bridge and pavement management systems meeting the 
requirements of Sec.  515.17 to analyze the condition of NHS pavements 
and bridges for the purpose of developing and implementing the asset 
management plan required under this part. The use of these or other 
management systems for other assets that the State DOT elects to include 
in the asset management plan is optional (e.g., Sign Management Systems, 
etc.).



Sec.  515.9  Asset management plan requirements.

    (a) A State DOT shall develop and implement an asset management plan 
to improve or preserve the condition of the assets and improve the 
performance of the NHS in accordance with the requirements of this part. 
Asset management plans must describe how the State DOT will carry out 
asset management as defined in Sec.  515.5.
    (b) An asset management plan shall include, at a minimum, a summary 
listing of NHS pavement and bridge assets, regardless of ownership.
    (c) In addition to the assets specified in paragraph (b) of this 
section, State DOTs are encouraged, but not required, to include all 
other NHS infrastructure assets within the right-of-way corridor and 
assets on other public roads. Examples of other NHS infrastructure 
assets include tunnels, ancillary structures, and signs. Examples of 
other public roads include non-NHS Federal-aid highways. If a State DOT 
decides to include other NHS assets in its asset management plan, or to 
include assets on other public roads, the State DOT, at a minimum, shall 
evaluate and manage those assets consistent with paragraph (l) of this 
section.
    (d) The minimum content for an asset management plan under this part 
includes a discussion of each element in this paragraph (d).
    (1) Asset management objectives. The objectives should align with 
the State DOT's mission. The objectives must be consistent with the 
purpose of asset management, which is to achieve and sustain the desired 
state of good repair over the life cycle of the assets at a minimum 
practicable cost.
    (2) Asset management measures and State DOT targets for asset 
condition, including those established pursuant to 23 U.S.C. 150, for 
NHS pavements and bridges. The plan must include measures and associated 
targets the State DOT can use in assessing the condition of the assets 
and performance of the highway system as it relates to those assets. The 
measures and targets must be consistent with the State DOT's asset 
management objectives. The

[[Page 227]]

State DOT must include the measures established under 23 U.S.C. 
150(c)(3)(A)(ii)(I)-(III), once promulgated in 23 CFR part 490, for the 
condition of NHS pavements and bridges. The State DOT also must include 
the targets the State DOT has established for the measures required by 
23 U.S.C. 150(c)(3)(A)(ii)(I)-(III), once promulgated, and report on 
such targets in accordance with 23 CFR part 490. The State DOT may 
include measures and targets for NHS pavements and bridges that the 
State DOT established through pre-existing management efforts or 
develops through new efforts if the State DOT wishes to use such 
additional measures and targets to supplement information derived from 
the pavement and bridge measures and targets required under 23 U.S.C. 
150.
    (3) A summary description of the condition of NHS pavements and 
bridges, regardless of ownership. The summary must include a description 
of the condition of those assets based on the performance measures 
established under 23 U.S.C. 150(c)(3)(A)(ii) for condition, once 
promulgated. The description of condition should be informed by 
evaluations required under part 667 of this title of facilities repeated 
damaged by emergency events.
    (4) Performance gap identification.
    (5) Life-cycle planning.
    (6) Risk management analysis, including the results for NHS 
pavements and bridges, of the periodic evaluations under part 667 of 
this title of facilities repeated damaged by emergency event.
    (7) Financial plan.
    (8) Investment strategies.
    (e) An asset management plan shall cover, at a minimum, a 10-year 
period.
    (f) An asset management plan shall discuss how the plan's investment 
strategies collectively would make or support progress toward:
    (1) Achieving and sustaining a desired state of good repair over the 
life cycle of the assets,
    (2) Improving or preserving the condition of the assets and the 
performance of the NHS relating to physical assets,
    (3) Achieving the State DOT targets for asset condition and 
performance of the NHS in accordance with 23 U.S.C. 150(d), and
    (4) Achieving the national goals identified in 23 U.S.C. 150(b).
    (g) A State DOT must include in its plan a description of how the 
analyses required by State processes developed in accordance with Sec.  
515.7 (such as analyses pertaining to life cycle planning, risk 
management, and performance gaps) support the State DOT's asset 
management plan investment strategies.
    (h) A State DOT shall integrate its asset management plan into its 
transportation planning processes that lead to the STIP, to support its 
efforts to achieve the goals in paragraphs (f)(1) through (4) of this 
section.
    (i) A State DOT is required to make its asset management plan 
available to the public, and is encouraged to do so in a format that is 
easily accessible.
    (j) Inclusion of performance measures and State DOT targets for NHS 
pavements and bridges established pursuant to 23 U.S.C. 150 in the asset 
management plan does not relieve the State DOT of any performance 
management requirements, including 23 U.S.C. 150(e) reporting, 
established in other parts of this title.
    (k) The head of the State DOT shall approve the asset management 
plan.
    (l) If the State DOT elects to include other NHS infrastructure 
assets or other public roads assets in its asset management plan, the 
State at a minimum shall address the following, using a level of effort 
consistent with the State DOT's needs and resources:
    (1) Summary listing of assets, including a description of asset 
condition;
    (2) Asset management measures and State DOT targets for asset 
condition;
    (3) Performance gap analysis;
    (4) Life-cycle planning;
    (5) Risk analysis, including summaries of evaluations carried out 
under part 667 of this title for the assets, if available, and 
consideration of those evaluations;
    (6) Financial plan; and
    (7) Investment strategies.
    (m) The asset management plan of a State may include consideration 
of critical infrastructure from among those facilities in the State that 
are eligible under 23 U.S.C. 119(c).

[[Page 228]]



Sec.  515.11  Deadlines and phase-in of asset management plan development.

    (a) Deadlines. (1) Not later than April 30, 2018, the State DOT 
shall submit to FHWA a State-approved initial asset management plan 
meeting the requirements in paragraph (b) of this section. The FHWA will 
review the processes described in the initial plan and make a process 
certification decision as provided in Sec.  515.13(a).
    (2) Not later than June 30, 2019, the State DOT shall submit a 
State-approved asset management plan meeting all the requirements of 23 
U.S.C. 119 and this part, including paragraph (c) of this section, 
together with documentation demonstrating implementation of the asset 
management plan. The FWHA will determine whether the State DOT's plan 
and implementation meet the requirements of 23 U.S.C. 119 and this part 
as provided in Sec.  515.13(b).
    (b) The initial plan shall describe the State DOT's processes for 
developing its risk-based asset management plan, including the policies, 
procedures, documentation, and implementation approach that satisfy the 
requirements of this part. The plan also must contain measures and 
targets for assets covered by the plan. The investment strategies 
required by Sec.  515.7(e) and 515.9((d)(8) must support progress toward 
the achievement of the national goals identified in 23 U.S.C. 150(b). 
The initial plan must include and address the State DOT's 23 U.S.C. 
150(d) targets for NHS pavements and bridges only if the first target-
setting deadline established in 23 CFR part 490 for NHS pavements and 
bridges is a date more than 6 months before the initial plan submission 
deadline in paragraph (a)(1). The initial asset management plan may 
exclude one or more of the necessary analyses with respect to the 
following required asset management processes:
    (1) Life-cycle planning required under Sec.  515.7(a)(2);
    (2) The risk management analysis required under Sec.  515.7(a)(3); 
and
    (3) Financial plan under Sec.  515.7(a)(4).
    (c) The State-approved asset management plan submitted not later 
than June 30, 2019, shall include all required analyses, performed using 
FHWA-certified processes, and the section 150 measures and State DOT 
targets for the NHS pavements and bridges. The plan must meet all 
requirements in Sec. Sec.  515.7 and 515.9. This includes investment 
strategies that are developed based on the analyses from all processes 
required under Sec.  515.7, and meet the requirements in 23 U.S.C. 
119(e)(2).



Sec.  515.13  Process certification and recertification, 
and annual plan consistency review.

    (a) Process certification and recertification under 23 U.S.C. 
119(e)(6). Not later than 90 days after the date on which the FHWA 
receives a State DOT's processes and request for certification or 
recertification, the FHWA shall decide whether the State DOT's processes 
for developing its asset management plan meet the requirements of this 
part. The FHWA will treat the State DOT's submission of an initial 
State-approved asset management plan under Sec.  515.11(b) as the State 
DOT's request for the first certification of the State's DOT's plan 
development processes under 23 U.S.C. 119(e)(6). As provided in 
paragraph (c) of this section, State DOT shall update and resubmit its 
asset management plan development processes to the FHWA for a new 
process certification at least every 4 years.
    (1) If FHWA determines that the processes used by a State DOT to 
develop and maintain the asset management plan do not meet the 
requirements established under this part, FHWA will send the State DOT a 
written notice of the denial of certification or recertification, 
including a listing of the specific requirement deficiencies.
    (2) Upon receiving a notice of denial of certification or 
recertification, the State DOT shall have 90 days from receipt of the 
notice to address the deficiencies identified in the notice and resubmit 
the State DOT's processes to FHWA for review and certification. The FHWA 
may extend the State DOT's 90-day period to cure deficiencies upon 
request. During the cure period established, all penalties and other 
legal impacts of a denial of certification shall be stayed as provided 
in 23 U.S.C. 119(e)(6)(C)(i).

[[Page 229]]

    (3) If FHWA finds that a State DOT's asset management processes 
substantially meet the requirements of this part except for minor 
deficiencies, FHWA may certify or recertify the State DOT's processes as 
being in compliance, but the State DOT must take actions to correct the 
minor deficiencies within 90 days of receipt of the notification of 
certification. The State shall notify FHWA, in writing, when corrective 
actions are completed.
    (b) Annual determination of consistency under 23 U.S.C. 119(e)(5). 
Not later than August 31, 2019, and not later than July 31 in each year 
thereafter, FHWA will notify the State DOT whether the State DOT has 
developed and implemented an asset management plan consistent with 23 
U.S.C. 119. The notice will be in writing and, in the case of a negative 
determination, will specify the deficiencies the State DOT needs to 
address. In making the annual consistency determination, the FHWA will 
consider the most recent asset management plan submitted by the State 
DOT, as well as any documentation submitted by the State DOT to 
demonstrate implementation of the plan. The FHWA determination is only 
as to the consistency of the State DOT asset management plan and State 
DOT implementation of that plan with applicable requirements, and is not 
an approval or disapproval of strategies or other decisions contained in 
the plan. With respect to any assets the State DOT may elect to include 
in its plan in addition to NHS pavement and bridge assets, the FHWA 
consistency determination will consider only whether the State DOT has 
complied with Sec.  515.9(l) with respect to such discretionary assets.
    (1) Plan development. The FHWA will review the State DOT's asset 
management plan to ensure that it was developed with certified 
processes, includes the required content, and is consistent with other 
applicable requirements in this part.
    (2) Plan implementation. The State DOT must demonstrate 
implementation of an asset management plan that meets the requirements 
of 23 U.S.C. 119 and this part. Each State DOT may determine the most 
suitable approach for demonstrating implementation of its asset 
management plan, so long as the information is current, documented, and 
verifiable. The submission must show the State DOT is using the 
investment strategies in its plan to make progress toward achievement of 
its targets for asset condition and performance of the NHS and to 
support progress toward the national goals identified in 23 U.S.C. 
150(b). The State DOT must submit its implementation documentation not 
less than 30 days prior to the deadline for the FHWA consistency 
determination.
    (i) FHWA considers the best evidence of plan implementation to be 
that, for the 12 months preceding the consistency determination, the 
State DOT funding allocations are reasonably consistent with the 
investment strategies in the State DOT's asset management plan. This 
demonstration takes into account the alignment between the actual and 
planned levels of investment for various work types (i.e., initial 
construction, maintenance, preservation, rehabilitation and 
reconstruction).
    (ii) FHWA may find a State DOT has implemented its asset management 
plan even if the State has deviated from the investment strategies 
included in the asset management plan, if the State DOT shows the 
deviation was necessary due to extenuating circumstances beyond the 
State DOT's reasonable control.
    (3) Opportunity to cure deficiencies. In the event FHWA notifies a 
State DOT of a negative consistency determination, the State DOT has 30 
days to address the deficiencies. The State DOT may submit additional 
information showing the FHWA negative determination was in error, or to 
demonstrate the State DOT has taken corrective action that resolves the 
deficiencies specified in FHWA's negative determination.
    (c) Updates and other amendments to plans and development processes. 
A State DOT must update its asset management plan and asset management 
plan development processes at least every 4 years, beginning on the date 
of the initial FHWA certification of the State DOT's processes under 
paragraph (a) of this section. Whenever the State DOT updates or 
otherwise amends its asset

[[Page 230]]

management plan or its asset management plan development processes, the 
State DOT must submit the amended plan or processes to the FHWA for a 
new process certification and consistency determination at least 30 days 
prior to the deadline for the next FHWA consistency determination under 
paragraph (b) of this section. Minor technical corrections and revisions 
with no foreseeable material impact on the accuracy and validity of the 
processes, analyses, or investment strategies in the plan do not 
constitute amendments and do not require submission to FHWA.



Sec.  515.15  Penalties

    (a) Beginning on October 1, 2019, and in each fiscal year 
thereafter, if a State DOT has not developed and implemented an asset 
management plan consistent with the requirements of 23 U.S.C. 119 and 
this part, the maximum Federal share for National Highway Performance 
Program projects and activities carried out by the State in that fiscal 
year shall be reduced to 65 percent for that fiscal year.
    (b)(1) Except as provided in paragraph (b)(2) of this section, if 
the State DOT has not developed and implemented an asset management plan 
that is consistent with the requirements of 23 U.S.C. 119 and this part 
and established the performance targets for NHS pavements and bridges 
required under 23 U.S.C. 150(d) by the date that is 18 months after the 
effective date of the 23 U.S.C. 150(c) final rule for NHS pavements and 
bridges, the FHWA will not approve any further projects using National 
Highway Performance Program funds. Such suspension of funding approvals 
will terminate once the State DOT has developed and implemented an asset 
management plan that is consistent with the requirements of 23 U.S.C. 
119 and this part and established its performance targets for NHS 
pavements and bridges required under 23 U.S.C. 150(d).
    (2) The FHWA may extend this deadline if FHWA determines that the 
State DOT has made a good faith effort to develop and implement an asset 
management plan and establish the performance targets for NHS pavements 
and bridges required under 23 U.S.C. 150(d).



Sec.  515.17  Minimum standards for developing and operating bridge 
and pavement management systems

    Pursuant to 23 U.S.C.150(c)(3)(A)(i), this section establishes the 
minimum standards States must use for developing and operating bridge 
and pavement management systems. State DOT bridge and pavement 
management systems are not subject to FHWA certification under Sec.  
515.13. Bridge and pavement management systems shall include, at a 
minimum, documented procedures for:
    (a) Collecting, processing, storing, and updating inventory and 
condition data for all NHS pavement and bridge assets.
    (b) Forecasting deterioration for all NHS pavement and bridge 
assets;
    (c) Determining the benefit-cost over the life cycle of assets to 
evaluate alternative actions (including no action decisions), for 
managing the condition of NHS pavement and bridge assets;
    (d) Identifying short- and long-term budget needs for managing the 
condition of all NHS pavement and bridge assets;
    (e) Determining the strategies for identifying potential NHS 
pavement and bridge projects that maximize overall program benefits 
within the financial constraints.; and
    (f) Recommending programs and implementation schedules to manage the 
condition of NHS pavement and bridge assets within policy and budget 
constraints.



Sec.  515.19  Organizational integration of asset management.

    (a) The purpose of this section is to describe how a State DOT may 
integrate asset management into its organizational mission, culture and 
capabilities at all levels. The activities described in paragraphs (b) 
through (d) of this section are not requirements.
    (b) A State DOT should establish organizational strategic goals and 
include the goals in its organizational strategic implementation plans 
with an explanation as to how asset management will help it to achieve 
those goals.

[[Page 231]]

    (c) A State DOT should conduct a periodic self-assessment of the 
agency's capabilities to conduct asset management, as well as its 
current efforts in implementing an asset management plan. The self-
assessment should consider, at a minimum, the adequacy of the State 
DOT's strategic goals and policies with respect to asset management, 
whether asset management is considered in the agency's planning and 
programming of resources, including development of the STIP; whether the 
agency is implementing appropriate program delivery processes, such as 
consideration of alternative project delivery mechanisms, effective 
program management, and cost tracking and estimating; and whether the 
agency is implementing adequate data collection and analysis policies to 
support an effective asset management program.
    (d) Based on the results of the self-assessment, the State DOT 
should conduct a gap analysis to determine which areas of its asset 
management process require improvement. In conducting a gap analysis, 
the State DOT should:
    (1) Determine the level of organizational performance effort needed 
to achieve the objectives of asset management;
    (2) Determine the performance gaps between the existing level of 
performance effort and the needed level of performance effort; and
    (3) Develop strategies to close the identified organizational 
performance gaps and define the period of time over which the gap is to 
be closed.

[[Page 232]]



             SUBCHAPTER G_ENGINEERING AND TRAFFIC OPERATIONS





PART 620_ENGINEERING--Table of Contents



       Subpart A_Highway Improvements in the Vicinity of Airports

Sec.
620.101 Purpose.
620.102 Applicability.
620.103 Policy.
620.104 Standards.

             Subpart B_Relinquishment of Highway Facilities

620.201 Purpose.
620.202 Applicability.
620.203 Procedures.

    Authority: 23 U.S.C. 315 and 318; 49 CFR 1.48, 23 CFR 1.32.

    Source: 39 FR 33311, Sept. 17, 1974, unless otherwise noted.



       Subpart A_Highway Improvements in the Vicinity of Airports

    Source: 39 FR 35145, Sept. 30, 1974, unless otherwise noted.



Sec.  620.101  Purpose.

    The purpose of this section is to implement title 23 U.S.C., section 
318 which requires coordination of airport and highway developments to 
insure (a) that airway-highway clearances are adequate for the safe 
movement of air and highway traffic, and (b) that the expenditure of 
public funds for airport and highway improvements is in the public 
interest.



Sec.  620.102  Applicability.

    The requirements of this section apply to all projects on which 
Federal-aid highway funds are to be expended and to both civil and 
military airports.



Sec.  620.103  Policy.

    (a) Federal-aid highway funds shall not participate in the costs of 
reconstruction or relocation of any highway to which this section 
applies unless the Federal Highway Administration (FHWA) and State 
officials, in cooperation with the Federal Aviation Administration (FAA) 
or appropriate military authority, or in the case of privately owned 
airports, the owner of that airport, determine that the location or 
extension of the airport in question and the consequent relocation or 
reconstruction of the highway is in the public interest.
    (b) In addition to complying with 23 U.S.C. 318 and insuring the 
prudent use of public funds, it is the policy of FHWA to provide a high 
degree of safety in the location, design, construction and operation of 
highways and airports.
    (c) Federal-aid funds shall not participate in projects where 
substandard clearances are created or will continue to exist.



Sec.  620.104  Standards.

    A finding of public interest by FHWA will be based on compliance 
with airway-highway clearances which conform to FAA standards for 
aeronautical safety.



             Subpart B_Relinquishment of Highway Facilities

    Source: 39 FR 33311, Sept. 17, 1974, unless otherwise noted.



Sec.  620.201  Purpose.

    To prescribe Federal Highway Administration (FHWA) procedures 
relating to relinquishment of highway facilities.



Sec.  620.202  Applicability.

    The provisions of this subpart apply to highway facilities where 
Federal-aid funds have participated in either right-of-way or physical 
construction costs of a project. The provisions of this subpart apply 
only to relinquishment of facilities for continued highway purposes. 
Other real property disposals and modifications or disposal of access 
rights are governed by the requirements of 23 CFR part 710.

[64 FR 71289, Dec. 21, 1999]



Sec.  620.203  Procedures.

    (a) After final acceptance of a project on the Federal-aid primary, 
urban, or

[[Page 233]]

secondary system or after the date that the plans, specifications and 
estimates (PS&E) for the physical construction on the right-of-way for a 
Federal-aid Interstate project have been approved by the FHWA, 
relinquishment of the right-of-way or any change made in control of 
access shall be in accordance with the provisions of this section. For 
the purposes of this section, final acceptance for a project involving 
physical construction is the date of the acceptance of the physical 
construction by the FHWA and for right-of-way projects, the date the 
division engineer determines to be the date of the completion of the 
acquisition of the right-of-way shown on the final plans.
    (b) Other than a conveyance made as part of a concession agreement 
as defined in section 710.703, for purposes of this section, 
relinquishment is defined as the conveyance of a portion of a highway 
right-of-way or facility by a State highway agency (SHA) to another 
Government agency for highway use.
    (c) The following facilities may be relinquished in accordance with 
paragraph 203(f):
    (1) Sections of a State highway which have been superseded by 
construction on new location and removed from the Federal-aid system and 
the replaced section thereof is approved by the FHWA as the new location 
of the Federal-aid route. Federal-aid funds may not participate in 
rehabilitation work performed for the purpose of placing the superseded 
section of the highway in a condition acceptable to the local authority. 
The relinquishment of any Interstate mileage shall be submitted to the 
Federal Highway Administrator as a special case for prior approval.
    (2) Sections of reconstructed local facilities that are located 
outside the control of access lines, such as turn-arounds of severed 
local roads or streets adjacent to the Federal-aid project's right-of-
way, and local roads and streets crossing over or under said project 
that have been adjusted in grade and/or alignment, including new right-
of-way required for adjustments. Eligibility for Federal-aid 
participation in the costs of the foregoing adjustments is as determined 
at the time of PS&E approval under policies of the FHWA.
    (3) Frontage roads or portions thereof that are constructed 
generally parallel to and outside the control of access lines of a 
Federal-aid project for the purpose of permitting access to private 
properties rather than to serve as extensions of ramps to connect said 
Federal-aid project with the nearest crossroad or street.
    (d) The following facilities may be relinquished only with the 
approval of the Federal Highway Administrator in accordance with 
paragraph 203(g).
    (1) Frontage roads or portions thereof located outside the access 
control lines of a Federal-aid project that are constructed to service 
(in lieu of or in addition to the purposes outlined under paragraph 
(c)(3) of this section) as connections between ramps to or from the 
Federal-aid project and existing public roads or streets.
    (2) Ramps constructed to serve as connections for interchange of 
traffic between the Federal-aid project and local roads or streets.
    (e) Where a frontage road is not on an approved Federal-aid system 
title to the right-of-way may be acquired initially in the name of the 
political subdivision which is to assume control thus eliminating the 
necessity of a formal transfer later. Such procedure would be subject to 
prior FHWA approval and would be limited to those facilities which meet 
the criteria set forth in paragraphs (c) (2) and (3) of this section.
    (f) Upon presentation by a State that it intends to relinquish 
facilities such as described in paragraph (c) (1), (2) or (3) of this 
section to local authorities, the division engineer of the FHWA shall 
have appropriate field and office examination made thereof to assure 
that such relinquishments are in accordance with the provisions of the 
cited paragraphs. Relinquishments of the types described in paragraph 
(c) (1), (2) or (3) of this section may be made on an individual basis 
or on a project or route basis subject to the following conditions and 
understandings:
    (1) Immediately following action by the State in approving a 
relinquishment, it shall furnish to the Division Administrator for 
record purposes a

[[Page 234]]

copy of a suitable map or maps identified by the Federal-aid project 
number, with the facilities to be relinquished and the date of such 
relinquishment action clearly delineated thereon.
    (2) If it is found at any time after relinquishment that a 
relinquished facility is in fact required for the safe and proper 
operation of the Federal-aid highway, the State shall take immediate 
action to restore such facility to its jurisdiction without cost to 
Federal-aid highway funds.
    (3) If it is found at any time that a relinquished frontage road or 
portion thereof or any part of the right-of-way therefor has been 
abandoned by local governmental authority and a showing cannot be made 
that such abandoned facility is no longer required as a public road, it 
is to be understood that the Federal Highway Administrator may cause to 
be withheld from Federal-aid highway funds due to the State an amount 
equal to the Federal-aid participation in the abandoned facility.
    (4) In no case shall any relinquishment include any portion of the 
right-of-way within the access control lines as shown on the plans for a 
Federal-aid project approved by the FHWA, without the prior approval of 
the Federal Highway Administrator.
    (5) There cannot be additional Federal-aid participation in future 
construction or reconstruction on any relinquished ``off the Federal-aid 
system'' facility unless the underlying reason for such future work is 
caused by future improvement of the associated Federal-aid highway.
    (g) In the event that a State desires to apply for approval by the 
Federal Highway Administrator for the relinquishment of a facility such 
as described in paragraph (d) (1) and (2) of this section, the facts 
pertinent to such proposal are to be presented to the division engineer 
of the FHWA. The division engineer shall have appropriate review made of 
such presentation and forward the material presented by the State 
together with his findings thereon through the Regional Federal Highway 
Administrator for consideration by the Federal Highway Administrator and 
determination of action to be taken.
    (h) No change may be made in control of access, without the joint 
determination and approval of the SHA and FHWA. This would not prevent 
the relinquishment of title, without prior approval of the FHWA, of a 
segment of the right-of-way provided there is an abandonment of a 
section of highway inclusive of such segment.
    (i) Relinquishments must be justified by the State's finding 
concurred in by the FHWA, that:
    (1) The subject land will not be needed for Federal-aid highway 
purposes in the foreseeable future;
    (2) That the right-of-way being retained is adequate under present 
day standards for the facility involved;
    (3) That the release will not adversely affect the Federal-aid 
highway facility or the traffic thereon;
    (4) That the lands to be relinquished are not suitable for retention 
in order to restore, preserve, or improve the scenic beauty adjacent to 
the highway consonant with the intent of 23 U.S.C. 319 and Pub. L. 89-
285, Title III, sections 302-305 (Highway Beautification Act of 1965).
    (j) If a relinquishment is to a Federal, State, or local government 
agency for highway purposes, there need not be a charge to the said 
agency, nor in such event any credit to Federal funds. If for any reason 
there is a charge, the STD may retain the Federal share of the proceeds 
if used for projects eligible under title 23 of the United States Code.

[39 FR 33311, Sept. 17, 1974, as amended at 64 FR 71289, Dec. 21, 1999; 
73 FR 77502, Dec. 19, 2008]



PART 625_DESIGN STANDARDS FOR HIGHWAYS--Table of Contents



Sec.
625.1 Purpose.
625.2 Policy.
625.3 Application.
625.4 Standards, policies, and standard specifications.

    Authority: 23 U.S.C. 103, 109, 315, and 402; Sec. 1073 of Pub. L. 
102-240, 105 Stat. 1914, 2012; Sec. 1404 of Pub. L. 114-94, 129 Stat. 
1312; 49 CFR 1.85.

    Source: 62 FR 15397, Apr. 1, 1997, unless otherwise noted.

[[Page 235]]



Sec.  625.1  Purpose.

    To designate those standards, policies, and standard specifications 
that are acceptable to the Federal Highway Administration (FHWA) for 
application in the geometric and structural design of highways.



Sec.  625.2  Policy.

    (a) Plans and specifications for proposed National Highway System 
(NHS) projects shall provide for a facility that will--
    (1) Adequately serve the existing and planned future traffic of the 
highway in a manner that is conducive to safety, durability, and economy 
of maintenance; and
    (2) Be designed and constructed in accordance with criteria best 
suited to accomplish the objectives described in paragraph (a)(1) of 
this section and to conform to the particular needs of each locality.
    (b) Resurfacing, restoration, and rehabilitation (RRR) projects 
shall be constructed in accordance with standards that preserve and 
extend the service life of highways and enhance highway safety. 
Resurfacing, restoration, and rehabilitation work includes placement of 
additional surface material and/or other work necessary to return an 
existing roadway, including shoulders, bridges, the roadside, and 
appurtenances to a condition of structural or functional adequacy.
    (c) An important goal of the FHWA is to provide the highest 
practical and feasible level of safety for people and property 
associated with the Nation's highway transportation systems and to 
reduce highway hazards and the resulting number and severity of 
accidents on all the Nation's highways.

[62 FR 15397, Apr. 1, 1997, as amended at 87 FR 40, Jan. 3, 2022]



Sec.  625.3  Application.

    (a) Applicable standards. (1) Design and construction standards for 
new construction, reconstruction, resurfacing (except for maintenance 
resurfacing), restoration, or rehabilitation of a highway on the NHS 
shall be those approved by the Secretary in cooperation with the State 
DOTs. These standards must consider, in addition to the criteria 
described in Sec.  625.2(a), the following:
    (i) The constructed and natural environment of the area;
    (ii) The environmental, scenic, aesthetic, historic, community, and 
preservation impacts of the activity;
    (iii) Cost savings by utilizing flexibility that exists in current 
design guidance and regulations; and
    (iv) Access for other modes of transportation.
    (2) Federal-aid projects not on the NHS are to be designed, 
constructed, operated, and maintained in accordance with State laws, 
regulations, directives, safety standards, design standards, and 
construction standards.
    (3) Interstate highways located in Alaska and Puerto Rico shall be 
designed in accordance with such geometric and construction standards as 
are adequate for current and probable future traffic demands and the 
needs of the locality of the highway.
    (4) A State may allow a local jurisdiction to design a project using 
a roadway design publication that is different from the roadway design 
publication used by the State in which the local jurisdiction resides 
if--
    (i) The local jurisdiction is a direct recipient of Federal funds 
for the project;
    (ii) The roadway design publication is adopted by the local 
jurisdiction and recognized by FHWA;
    (iii) The design complies with all applicable Federal laws and 
regulations; and
    (iv) The project is located on a roadway that is owned by the local 
jurisdiction and is not part of the Interstate System.
    (b) Deviations from specific minimum values on the NHS. The 
standards, policies, and standard specifications cited in Sec.  625.4 of 
this part contain specific criteria and controls for the design of NHS 
projects. Deviations from specific minimum values therein are to be 
handled in accordance with procedures in paragraph (f) of this section. 
If there is a conflict between criteria in the documents enumerated in 
Sec.  625.4 of this part, the latest listed standard, policy, or 
standard specification will govern.

[[Page 236]]

    (c) Application of other FHWA regulations. Application of FHWA 
regulations, although cited in Sec.  625.4 of this part as standards, 
policies, and standard specifications, shall be as set forth therein.
    (d) Funding source. This regulation establishes Federal standards 
for work on the NHS regardless of funding source.
    (e) Very minor or no roadway work. The Division Administrator shall 
determine the applicability of the roadway geometric design standards to 
traffic engineering, safety, and preventive maintenance projects which 
include very minor or no roadway work. Formal findings of applicability 
are expected only as needed to resolve controversies.
    (f) Exceptions--(1) Project exception. (i) Approval within the 
delegated authority provided by FHWA Order M1100.1A may be given on a 
project basis to designs on the NHS which do not conform to the minimum 
criteria as set forth in the standards, policies, and standard 
specifications for:
    (A) Experimental features on projects; and
    (B) Projects where conditions warrant that exceptions be made.
    (ii) The determination to approve a project design that does not 
conform to the minimum criteria is to be made only after due 
consideration is given to all project conditions such as maximum service 
and safety benefits for the dollar invested, compatibility with adjacent 
sections of roadway and the probable time before reconstruction of the 
section due to increased traffic demands or changed conditions.
    (2) Programmatic exception. Approval within the delegated authority 
provided by FHWA Order M1100.1A may be given, on a programmatic basis, 
to use a more recent edition of any standard or specification 
incorporated by reference under Sec.  625.4(d).

[62 FR 15397, Apr. 1, 1997, as amended at 87 FR 41, Jan. 3, 2022]



Sec.  625.4  Standards, policies, and standard specifications.

    (a) Roadway and appurtenances. (1) A Policy on Geometric Design of 
Highways and Streets, AASHTO (incorporated by reference; see paragraph 
(d) of this section).
    (2) A Policy on Design Standards--Interstate System, AASHTO 
(paragraph (d) of this section).
    (3) The geometric design standards for resurfacing, restoration, and 
rehabilitation (RRR) projects on NHS highways shall be the procedures or 
the design criteria established for individual projects, groups of 
projects, or all RRR projects in a State, and as approved by FHWA. The 
RRR design standards shall reflect the consideration of the traffic, 
safety, economic, physical, community, and environmental needs of the 
projects. If a State does not adopt design procedures or criteria for 
RRR projects as approved by FHWA, the standards listed in paragraphs 
(a)(1) and (2) shall apply.
    (4) Location and Hydraulic Design of Encroachments on Flood Plains, 
refer to 23 CFR part 650, subpart A.
    (5) Procedures for Abatement of Highway Traffic Noise and 
Construction Noise, refer to 23 CFR part 772.
    (6) Accommodation of Utilities, refer to 23 CFR part 645, subpart B.
    (7) Pavement Design, refer to 23 CFR part 626.
    (b) Bridges and structures. (1) For existing bridges originally 
designed to any edition of the AASHTO Standard Specifications for 
Highway Bridges, modifications may be designed to the Standard 
Specifications for Highway Bridges, 17th Edition, AASHTO, 2002 
(incorporated by reference; see Sec.  625.4(d)), or to the standards and 
specifications that are listed in Sec.  625.4(b).
    (2) AASHTO LRFD Bridge Construction Specifications (paragraph (d) of 
this section).
    (3) AASHTO LRFD Bridge Design Specifications (paragraph (d) of this 
section).
    (4) AASHTO LRFD Movable Highway Bridge Design Specifications 
(paragraph (d) of this section).
    (5) AASHTO/AWS D1.5M/D1.5 Bridge Welding Code (paragraph (d) of this 
section).
    (6) AWS D1.4/D1.4M Structural Welding Code--Reinforcing Steel 
(paragraph (d) of this section).
    (7) AASHTO Standard Specifications for Structural Supports for 
Highway Signs, Luminaires, and Traffic Signals,

[[Page 237]]

(paragraph (d) of this section); or AASHTO LRFD Specifications for 
Structural Supports for Highway Signs, Luminaires, and Traffic Signals 
(paragraph (d) of this section).
    (8) Navigational Clearances for Bridges, refer to 23 CFR part 650, 
subpart H.
    (9) AWS D1.1/D1.1M Structural Welding Code--Steel (paragraph (d) of 
this section).
    (c) Materials. (1) General Materials Requirements, refer to 23 CFR 
part 635, subpart D.
    (2) Quality Assurance Procedures for Construction, refer to 23 CFR 
part 637, subpart B.
    (d) Documents incorporated by reference. The standards required in 
this section are incorporated by reference into this section with the 
approval of the Director of the Federal Register under 5 U.S.C. 552(a) 
and 1 CFR part 51. All approved material is available for inspection at 
U.S. Department of Transportation's National Transportation Library at 
1200 New Jersey Avenue SE, Washington, DC 20590; (800) 853-1351 and is 
available from the sources indicated below. It is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, email 
[email protected] or go to www.archives.gov/federal-register/cfr/
ibr-locations.html.
    (1) American Association of State Highway and Transportation 
Officials (AASHTO), 555 12th Street NW, Suite 1000, Washington, DC 
20004, 1-800-231-3475, https://store.transportation.org.
    (i) AASHTO GDHS-7, A Policy on Geometric Design of Highways and 
Streets, 7th Edition, 2018.
    (ii) A Policy on Design Standards--Interstate System, May 2016.
    (iii) Standard Specifications for Highway Bridges, 17th Edition, 
2002
    (iv) AASHTO-LRFD Bridge Construction Specifications, 4th Edition, 
copyright 2017.
    (v) AASHTO LRFD-8, LRFD Bridge Design Specifications, 8th Edition, 
2017.
    (vi) AASHTO LRFD Movable Highway Bridge Design Specifications, 2nd 
Edition, 2007, with:
    (A) Interim Revisions, 2008,
    (B) Interim Revisions, 2010,
    (C) Interim Revisions, 2011,
    (D) Interim Revisions, 2012,
    (E) Interim Revisions, 2014,
    (F) Interim Revisions, 2015, and
    (G) Interim Revisions, 2018.
    (vii) [Reserved]
    (viii) AASHTO LTS-6, Standard Specifications for Structural Supports 
for Highway Signs, Luminaires, and Traffic Signals, 6th Edition, 
copyright 2013, with:
    (A) AASHTO LTS-6-I1, 2015 Interim Revisions to Standard 
Specifications for Structural Supports for Highway Signs, Luminaires, 
and Traffic Signals, copyright 2014,
    (B) AASHTO LTS-6-I2-OL, 2019 Interim Revisions to Standard 
Specifications for Structural Supports for Highway Signs, Luminaires, 
and Traffic Signals, copyright 2018, and
    (C) AASHTO LTS-6-I3, 2020 Interim Revisions to Standard 
Specifications for Structural Supports for Highway Signs, Luminaires, 
and Traffic Signals, copyright 2019.
    (ix) AASHTO LRFDLTS-1, LRFD Specifications for Structural Supports 
for Highway Signs, Luminaires, and Traffic Signals, 1st Edition, 
copyright 2015, with:
    (A) AASHTO LRFDLTS-1-I1-OL, 2017 Interim Revisions to LRFD 
Specifications for Structural Supports for Highway Signs, Luminaires, 
and Traffic Signals, copyright 2016,
    (B) AASHTO LRFDLTS-1-I2-OL, 2018 Interim Revisions to LRFD 
Specifications for Structural Supports for Highway Signs, Luminaires, 
and Traffic Signals, copyright 2017,
    (C) AASHTO LRFDLTS-1-I3-OL, 2019 Interim Revisions to LRFD 
Specifications for Structural Supports for Highway Signs, Luminaires, 
and Traffic Signals, copyright 2018, and
    (D) AASHTO LRFDLTS-1-I4, 2020 Interim Revisions to LRFD 
Specifications for Structural Supports for Highway Signs, Luminaires, 
and Traffic Signals, copyright 2019.
    (2) American Welding Society (AWS), 8669 NW 36 Street, 130 Miami, 
FL 33166-6672; www.aws.org; or (800) 443-9353 or (305) 443-9353.
    (i) AWS D1.1/D1.1M:2015 Structural Welding Code--Steel, 23rd 
Edition,

[[Page 238]]

copyright 2015, including Errata March 2016 (second printing).
    (ii) AWS D1.4/D1.4M:2011 Structural Welding Code -Reinforcing Steel, 
2011.
    (iii) AASHTO/AWS D1.5M/D1.5: 2015-AMD1, Bridge Welding Code, 7th 
Edition, Amendment: December 12, 2016.
    (e) Additional design resources. The FHWA supports using, as design 
resources to achieve context sensitive designs, guides that national 
organizations develop from peer-reviewed research, or equivalent guides 
that are developed in cooperation with State or local officials, when 
such guides are not in conflict with Federal laws and regulations.

[62 FR 15397, Apr. 1, 1997, as amended at 67 FR 6395, Feb. 12, 2002; 69 
FR 18803, Apr. 9, 2004; 71 FR 26414, May 5, 2006; 74 FR 28442, June 16, 
2009; 80 FR 61307, Oct. 13, 2015; 83 FR 54880, Nov. 1, 2018; 87 FR 41, 
Jan. 3, 2022]



PART 626_PAVEMENT POLICY--Table of Contents



Sec.
626.1 Purpose.
626.2 Definitions.
626.3 Policy.

    Authority: 23 U.S.C. 101(e), 109, and 315; 49 CFR 1.48(b)

    Source: 61 FR 67174, Dec. 19, 1996, unless otherwise noted.



Sec.  626.1  Purpose.

    To set forth pavement design policy for Federal-aid highway 
projects.



Sec.  626.2  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Pavement design means a project level activity where detailed 
engineering and economic considerations are given to alternative 
combinations of subbase, base, and surface materials which will provide 
adequate load carrying capacity. Factors which are considered include: 
Materials, traffic, climate, maintenance, drainage, and life-cycle 
costs.



Sec.  626.3  Policy.

    Pavement shall be designed to accommodate current and predicted 
traffic needs in a safe, durable, and cost effective manner.



PART 627_VALUE ENGINEERING--Table of Contents



Sec.
627.1 Purpose and applicability.
627.3 Definitions.
627.5 Applicable projects.
627.7 VE programs.
627.9 Conducting a VE analysis.

    Authority: 23 U.S.C. 106(e), 106(g), 106(h), 112(a) and (b), 302, 
315; and 49 CFR part 18.

    Source: 79 FR 52975, Sept. 5, 2014, unless otherwise noted.



Sec.  627.1  Purpose and applicability.

    (a) The purpose of this part is to prescribe the programs, policies 
and procedures for the integration of value engineering (VE) into the 
planning and development of all applicable Federal-aid highway projects.
    (b) Each State transportation agency (STA) shall establish and 
sustain a VE program. This program shall establish the policies and 
procedures under which VE analyses are identified, conducted and 
approved VE recommendations implemented on applicable projects (as 
defined in Sec.  627.5 of this part). These policies and procedures 
should also identify when a VE analysis is encouraged on all other 
projects where there is a high potential to realize the benefits of a VE 
analysis.
    (c) The STAs shall establish the policies, procedures, functions, 
and capacity to monitor, assess, and report on the performance of the VE 
program, along with the VE analyses that are conducted and Value 
Engineering Change Proposals (VECP) that are accepted. The STAs shall 
ensure that its sub-recipients conduct VE analyses in compliance with 
this part.



Sec.  627.3  Definitions.

    The following terms used in this part are defined as follows:
    (a) Bridge project. A bridge project shall include any project where 
the primary purpose is to construct, reconstruct, rehabilitate, 
resurface, or restore a bridge.
    (b) Final design. Any design activities following preliminary design 
and expressly includes the preparation of final construction plans and 
detailed specifications for the performance of construction work.

[[Page 239]]

    (c) Project. The term ``project'' means any undertaking eligible for 
assistance under title 23 of the United States Code. The limits of a 
project are defined as the logical termini in the environmental document 
and may consist of several contracts, or phases of a project or 
contract, which may be implemented over several years.
    (d) Total project costs. The estimated costs of all work to be 
conducted on a project including the environment, design, right-of-way, 
utilities and construction phases.
    (e) Value Engineering (VE) analysis. The systematic process of 
reviewing and assessing a project by a multidisciplinary team not 
directly involved in the planning and development phases of a specific 
project that follows the VE Job Plan and is conducted to provide 
recommendations for:
    (1) Providing the needed functions, considering community and 
environmental commitments, safety, reliability, efficiency, and overall 
life-cycle cost (as defined in 23 U.S.C. 106(f)(2));
    (2) Optimizing the value and quality of the project; and
    (3) Reducing the time to develop and deliver the project.
    (f) Value Engineering (VE) Job Plan. A systematic and structured 
action plan for conducting and documenting the results of the VE 
analysis. While each VE analysis shall address each phase in the VE Job 
Plan, the level of analysis conducted and effort expended for each phase 
may be scaled to meet the needs of each individual project. The VE Job 
Plan shall include and document the following seven phases:
    (1) Information Phase: Gather project information including project 
commitments and constraints.
    (2) Function Analysis Phase: Analyze the project to understand the 
required functions.
    (3) Creative Phase: Generate ideas on ways to accomplish the 
required functions which improve the project's performance, enhance its 
quality, and lower project costs.
    (4) Evaluation Phase: Evaluate and select feasible ideas for 
development.
    (5) Development Phase: Develop the selected alternatives into fully 
supported recommendations.
    (6) Presentation Phase: Present the VE recommendation to the project 
stakeholders.
    (7) Resolution Phase: Evaluate, resolve, document and implement all 
approved recommendations.
    (g) Value Engineering Change Proposal (VECP). A construction 
contract change proposal submitted by the construction contractor based 
on a VECP provision in the contract. These proposals may improve the 
project's performance, value and/or quality, lower construction costs, 
or shorten the delivery time, while considering their impacts on the 
project's overall life-cycle cost and other applicable factors.



Sec.  627.5  Applicable projects.

    (a) A VE analysis shall be conducted prior to the completion of 
final design on each applicable project that utilizes Federal-aid 
highway funding, and all approved recommendations shall be included in 
the project's plans, specifications and estimates prior to authorizing 
the project for construction (as specified in 23 CFR 630.205).
    (b) Applicable projects requiring a VE analysis shall include the 
following:
    (1) Each project located on the National Highway System (NHS) (as 
specified in 23 U.S.C. 103) with an estimated total project cost of $50 
million or more that utilizes Federal-aid highway funding;
    (2) Each bridge project located on the NHS with an estimated total 
project cost of $40 million or more that utilizes Federal-aid highway 
funding;
    (3) Any major project (as defined in 23 U.S.C. 106(h)), located on 
or off of the NHS, that utilizes Federal-aid highway funding in any 
contract or phase comprising the major project;
    (4) Any project where a VE analysis has not been conducted and a 
change is made to the project's scope or design between the final design 
and the construction letting which results in an increase in the 
project's total cost exceeding the thresholds identified in paragraphs 
(b)(1), (2) or (3) of this section; and
    (5) Any other project FHWA determines to be appropriate that 
utilizes Federal-aid highway program funding.

[[Page 240]]

    (c) An additional VE analysis is not required if, after conducting a 
VE analysis required under this part, the project is subsequently split 
into smaller projects in the design phase or the project is programmed 
to be completed by the letting of multiple construction projects. 
However, the STA may not avoid the requirement to conduct a VE analysis 
on an applicable project by splitting the project into smaller projects, 
or programming multiple design or construction projects.
    (d) The STA's VE Program's policies and procedures should identify 
when VE analyses are to be considered or conducted for projects falling 
below the required thresholds identified in paragraph (b) of this 
section in the planning and development of transportation projects where 
there is a high potential for the project to benefit from a VE analysis. 
While not required, FHWA encourages STAs to consider the following 
projects that may benefit from a VE analysis:
    (1) Complex projects on or off the NHS that have a total project 
cost of $25 million or more;
    (2) Complex Bridge Projects on or off the NHS with an estimated 
total project cost of $20 million or more;
    (3) Design-build projects on or off the NHS with an estimated cost 
of $25 million or more; and
    (4) Any other complex, difficult or high cost project as determined 
by the STA.
    (e) A VE analysis is not required for projects delivered using the 
design-build method of construction. While not required, FHWA encourages 
STAs and local public authorities to conduct a VE analysis on design-
build projects that meet the requirements identified in paragraph (b) of 
this section.
    (f) A VE analysis is required on projects delivered using the 
Construction Manager/General Contractor (CM/GC) method of contracting, 
if the project meets the requirements identified in paragraph (b) of 
this section.



Sec.  627.7  VE programs.

    (a) The STA shall establish and sustain a VE program under which VE 
analyses are identified, conducted and approved VE recommendations 
implemented on all applicable projects (as defined in Sec.  627.5). The 
STA's VE program shall:
    (1) Establish and document VE program policies and procedures that 
ensure the required VE analysis is conducted on all applicable projects, 
and encourage conducting VE analyses on other projects that have the 
potential to benefit from this analysis;
    (2) Ensure the VE analysis is conducted and all approved 
recommendations are implemented and documented in a final VE report 
prior to the project being authorized to proceed to a construction 
letting;
    (3) Monitor and assess the VE Program, and disseminate an annual 
report to the FHWA consisting of a summary of all approved 
recommendations implemented on applicable projects requiring a VE 
analysis, the accepted VECPs, and VE program functions and activities;
    (4) Establish and document policies, procedures, and contract 
provisions that identify when VECP's may be used; identify the analysis, 
documentation, basis, and process for evaluating and accepting a VECP; 
and determine how the net savings of each VECP may be shared between the 
agency and contractor;
    (5) Establish and document policies, procedures, and controls to 
ensure a VE analysis is conducted and all approved recommendations are 
implemented for all applicable projects administered by local public 
agencies; and ensure the results of these analyses are included in the 
VE program monitoring and reporting; and
    (6) Provide for the review of any project where a delay occurs 
between when the final plans are completed and the project advances to a 
letting for construction to determine if a change has occurred to the 
project's scope or design where a VE analysis would be required to be 
conducted (as specified in Sec.  625.5(b)).
    (b) STAs shall ensure the required VE analysis has been performed on 
each applicable project including those administered by subrecipients, 
and shall ensure approved recommendations are implemented into the

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project's plans, specifications, and estimates prior to the project 
being authorized for construction (as specified in 23 CFR 630.205).
    (c) STAs shall designate a VE Program Coordinator to promote and 
advance VE program activities and functions. The VE Coordinator's 
responsibilities should include establishing and maintaining the STA's 
VE policies and procedures; facilitating VE training; ensuring VE 
analyses are conducted on applicable projects; monitoring, assessing, 
and reporting on the VE analyses conducted and VE program; participating 
in periodic VE program and project reviews; submitting the required 
annual VE report to the FHWA; and supporting the other elements of the 
VE program.



Sec.  627.9  Conducting a VE analysis.

    (a) A VE analysis should be conducted as early as practicable in the 
planning or development of a project, preferably before the completion 
of the project's preliminary design. At a minimum, the VE analysis shall 
be conducted prior to completing the project's final design.
    (b) The VE analysis should be closely coordinated with other project 
development activities to minimize the impact approved recommendations 
might have on previous agency, community, or environmental commitments; 
the project's scope or schedule; and the use of innovative technologies, 
materials, methods, plans or construction provisions.
    (c) When the STA or local public agency chooses to conduct a VE 
analysis for a project utilizing the design-build project delivery 
method, the VE analysis should be performed prior to the release of the 
final Request for Proposals or other applicable solicitation documents.
    (d) For projects delivered using the CM/GC contracting method, a VE 
analysis is not required prior to the preparation and release of the RFP 
for the CM/GC contract. The VE analysis is required to be completed and 
approved recommendations incorporated into the project plans prior to 
requesting a construction price proposal from the CM/GC contractor.
    (e) STAs shall ensure the VE analysis meets the following 
requirements:
    (1) Uses a multidisciplinary team not directly involved in the 
planning or design of the project, with at least one individual who has 
training and experience with leading VE analyses;
    (2) Develops and implements the VE Job Plan;
    (3) Produces a formal written report outlining, at a minimum:
    (i) Project information;
    (ii) Identification of the VE analysis team;
    (iii) Background and supporting documentation, such as information 
obtained from other analyses conducted on the project (e.g., 
environmental, safety, traffic operations, constructability);
    (iv) Documentation of the stages of the VE Job Plan which would 
include documentation of the life-cycle costs that were analyzed;
    (v) Summarization of the analysis conducted;
    (vi) Documentation of the proposed recommendations and approvals 
received at the time the report is finalized; and
    (vii) The formal written report shall be retained for at least 3 
years after the completion of the project.
    (f) For bridge projects, in addition to the requirements in 
subsection (e), the VE analyses shall:
    (1) Include bridge substructure and superstructure requirements that 
consider alternative construction materials; and
    (2) Be conducted based on:
    (i) An engineering and economic assessment, taking into 
consideration acceptable designs for bridges; and
    (ii) An analysis of life-cycle costs and duration of project 
construction.
    (g) STAs and local public agencies may employ qualified consultants 
(as defined in 23 CFR 172.3) to conduct a VE analysis. The consultant 
shall possess training and experience with leading VE analyses. A 
consulting firm or individual shall not be used to conduct or support a 
VE analysis if they have a conflict of interest (as specified in 23 CFR 
1.33).
    (h) STAs, and local public agencies are encouraged to use a VECP 
clause (or other such clauses under a different

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name) in an applicable project's contract, allowing the construction 
contractor to propose changes to the project's plans, specifications, or 
other contract documents. Whenever such clauses are used, the STA and 
local authority will consider changes that could improve the project's 
performance, value and quality, shorten the delivery time, or lower 
construction costs, while considering impacts on the project's overall 
life-cycle cost and other applicable factors. The basis for a STA or 
local authority to consider a VECP is the analysis and documentation 
supporting the proposed benefits that would result from implementing the 
proposed change in the project's contract or project plans.
    (i) Proposals to accelerate construction after the award of the 
contract will not be considered a VECP and will not be eligible for 
Federal-aid highway program funding participation. Where it is necessary 
to accelerate construction, STAs and local public agencies are 
encouraged to use the appropriate incentive or disincentive clauses so 
that all proposers will take this into account when preparing their bids 
or price proposals.



PART 630_PRECONSTRUCTION PROCEDURES--Table of Contents



             Subpart A_Project Authorization and Agreements

Sec.
630.102 Purpose.
630.104 Applicability.
630.106 Authorization to proceed.
630.108 Preparation of agreement.
630.110 Modification of original agreement.
630.112 Agreement provisions.

             Subpart B_Plans, Specifications, and Estimates

630.201 Purpose.
630.203 Applicability.
630.205 Preparation, submission, and approval.

Subpart C [Reserved]

                       Subpart D_Geodetic Markers

630.401 Purpose.
630.402 Policy.
630.403 Initiation of projects.
630.404 Standards.

Subparts E-F [Reserved]

         Subpart G_Advance Construction of Federal-Aid Projects

630.701 Purpose.
630.703 Eligibility.
630.705 Procedures.
630.707 [Reserved]
630.709 Conversion to a regular Federal-aid project.

                    Subpart H_Bridges on Federal Dams

630.801 Purpose.
630.802 Applicability.
630.803 Procedures.

Subpart I [Reserved]

                 Subpart J_Work Zone Safety and Mobility

630.1002 Purpose.
630.1004 Definitions and explanation of terms.
630.1006 Work zone safety and mobility policy.
630.1008 State-level processes and procedures.
630.1010 Significant projects.
630.1012 Project-level procedures.
630.1014 Implementation.
630.1016 Compliance date.

               Subpart K_Temporary Traffic Control Devices

630.1102 Purpose.
630.1104 Definitions.
630.1106 Policy and procedures for work zone safety management.
630.1108 Work zone safety management measures and strategies.
630.1110 Maintenance of temporary traffic control devices.

    Authority: 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a); Sec. 
1303 of Pub. L. 112-141, 126 Stat. 405; Sec. 1501 and 1503 of Pub. L. 
109-59, 119 Stat. 1144; Pub. L. 105-178, 112 Stat. 193; Pub. L. 104-59, 
109 Stat. 582; Pub. L. 97-424, 96 Stat. 2106; Pub. L. 90-495, 82 Stat. 
828; Pub. L. 85-767, 72 Stat. 896; Pub. L. 84-627, 70 Stat. 380; 23 CFR 
1.32 and 49 CFR 1.85.



             Subpart A_Project Authorization and Agreements

    Source: 66 FR 23847, May 10, 2001, unless otherwise noted.



Sec.  630.102  Purpose.

    The purpose of this subpart is to prescribe policies for authorizing 
Federal-aid projects through execution of the

[[Page 243]]

project agreement required by 23 U.S.C. 106(a)(2).



Sec.  630.104  Applicability.

    (a) This subpart is applicable to all Federal-aid projects unless 
specifically exempted.
    (b) Other projects which involve special procedures are to be 
approved, or authorized as set out in the implementing instructions or 
regulations for those projects.



Sec.  630.106  Authorization to proceed.

    (a)(1) The State Department of Transportation (State DOT) must 
obtain an authorization to proceed from the FHWA before beginning work 
on any Federal-aid project. The State DOT may request an authorization 
to proceed in writing or by electronic mail for a project or a group of 
projects.
    (2) The FHWA will issue the authorization to proceed either through 
or after the execution of a formal project agreement with the State. The 
agreement can be executed only after applicable prerequisite 
requirements of Federal laws and implementing regulations and directives 
are satisfied. Except as provided in paragraphs (c)(1) through (c)(4) of 
this section, the FHWA will obligate Federal funds in the project or 
group of projects upon execution of the project agreement.
    (3) The State's request that Federal funds be obligated shall be 
supported by a documented cost estimate that is based on the State's 
best estimate of costs.
    (4) The State shall maintain a process to adjust project cost 
estimates. For example, the process would require a review of the 
project cost estimate when the bid is approved, a project phase is 
completed, a design change is approved, etc. Specifically, the State 
shall revise the Federal funds obligated within 90 days after it has 
determined that the estimated Federal share of project costs has 
decreased by $250,000 or more.
    (5) The State shall review, on a quarterly basis, inactive projects 
(for the purposes of this subpart an ``inactive project'' means a 
project for which no expenditures have been charged against Federal 
funds for the past 12 months) with unexpended Federal obligations and 
shall revise the Federal funds obligated for a project within 90 days to 
reflect the current cost estimate, based on the following criteria:
    (i) Projects inactive for the past 12 months with unexpended 
balances more than $500,000,
    (ii) Projects inactive for the past 24 months with unexpended 
balances of $50,000 to $500,000, and
    (iii) Projects inactive for the past 36 months with unexpended 
balances less than $50,000.
    (6) If the State fails to comply with the requirements of paragraphs 
(a)(3), (4), or (5) of this section, then the FHWA shall revise the 
obligations or take such other action as authorized by 23 CFR 1.36. The 
FHWA shall advise the State of its proposed actions and provide the 
State with the opportunity to respond before actions are taken. The FHWA 
shall not adjust obligations without a State's consent during the August 
redistribution process, August 1 to September 30.
    (7) For design-build projects, the execution or modification of the 
project agreement for final design and physical construction, and 
authorization to proceed, shall not occur until after the completion of 
the NEPA process. However, preliminary design (as defined in 23 CFR 
636.103) and preliminary engineering may be authorized in accordance 
with this section.
    (8) For Construction Manager/General Contractor projects, the 
execution or modification of the project agreement for preconstruction 
services associated with final design and for construction services, and 
authorization to proceed with such services, shall not occur until after 
the completion of the NEPA process. However, preconstruction services 
associated with preliminary design may be authorized in accordance with 
this section.
    (9) For Indefinite Delivery/Indefinite Quantity projects, the 
execution or modification of the project agreement for final design or 
physical construction, and authorization to proceed, shall not occur 
until after the completion of the NEPA process.
    (b) Federal funds shall not participate in costs incurred prior to 
the date

[[Page 244]]

of a project agreement except as provided by 23 CFR 1.9(b).
    (c) The execution of the project agreement shall be deemed a 
contractual obligation of the Federal government under 23 U.S.C. 106 and 
shall require that appropriate funds be available at the time of 
authorization for the agreed Federal share, either pro rata or lump sum, 
of the cost of eligible work to be incurred by the State except as 
follows:
    (1) Advance construction projects authorized under 23 U.S.C. 115.
    (2) Projects for preliminary studies for the portion of the 
preliminary engineering and right-of-way (ROW) phase(s) through the 
selection of a location.
    (3) Projects for ROW acquisition in hardship and protective buying 
situations through the selection of a particular location. This includes 
ROW acquisition within a potential highway corridor under consideration 
where necessary to preserve the corridor for future highway purposes. 
Authorization of work under this paragraph shall be in accord with the 
provisions of 23 CFR part 710.
    (4) In special cases where the Federal Highway Administrator 
determines it to be in the best interest of the Federal-aid highway 
program.
    (d) For projects authorized to proceed under paragraphs (c)(1) 
through (c)(4) of this section, the executed project agreement shall 
contain the following statement: ``Authorization to proceed is not a 
commitment or obligation to provide Federal funds for that portion of 
the undertaking not fully funded herein.''
    (e) For projects authorized under paragraphs (c)(2) and (c)(3) of 
this section, subsequent authorizations beyond the location stage shall 
not be given until appropriate available funds have been obligated to 
cover eligible costs of the work covered by the previous authorization.
    (f)(1) The Federal-aid share of eligible project costs shall be 
established at the time the project agreement is executed in one of the 
following manners:
    (i) Pro rata, with the agreement stating the Federal share as a 
specified percentage; or
    (ii) Lump sum, with the agreement stating that Federal funds are 
limited to a specified dollar amount not to exceed the legal pro rata.
    (2) The pro-rata or lump sum share may be adjusted before or shortly 
after contract award to reflect any substantive change in the bids 
received as compared to the State DOT's estimated cost of the project at 
the time of FHWA authorization, provided that Federal funds are 
available.
    (3) Federal participation is limited to the agreed Federal share of 
eligible costs actually incurred by the State, not to exceed the maximum 
permitted by enabling legislation.
    (g) The State may contribute more than the normal non-Federal share 
of title 23, U.S.C. projects. In general, financing proposals that 
result in only minimal amounts of Federal funds in projects should be 
avoided unless they are based on sound project management decisions.
    (h)(1) Donations of cash, land, material or services may be credited 
to the State's non-Federal share of the participating project work in 
accordance with title 23, U.S.C., and implementing regulations.
    (2) Contributions may not exceed the total costs incurred by the 
State on the project. Cash contributions from all sources plus the 
Federal funds may not exceed the total cost of the project.

[66 FR 23847, May 10, 2001, as amended at 71 FR 4995, Jan. 31, 2006; 72 
FR 45336, Aug. 14, 2007; 81 FR 86942, Dec. 2, 2016; 85 FR 72931, Nov. 
16, 2020]



Sec.  630.108  Preparation of agreement.

    (a) The State DOT shall prepare a project agreement for each 
Federal-aid project.
    (b) The State DOT may develop the project agreement in a format 
acceptable to both the State DOT and the FHWA provided the following are 
included:
    (1) A description of each project location including State and 
project termini;
    (2) The Federal-aid project number;
    (3) The work covered by the agreement;
    (4) The total project cost and amount of Federal funds under 
agreement;

[[Page 245]]

    (5) The Federal-aid share of eligible project costs expressed as 
either a pro rata percentage or a lump sum as set forth in Sec.  
630.106(f)(1);
    (6) A statement that the State accepts and will comply with the 
agreement provisions set forth in Sec.  630.112;
    (7) A statement that the State stipulates that its signature on the 
project agreement constitutes the making of the certifications set for 
in Sec.  630.112; and
    (8) Signatures of officials from both the State and the FHWA, and 
the date executed.
    (c) The project agreement should also document, by comment, 
instances where:
    (1) The State is applying amounts of credits from special accounts 
(such as the 23 U.S.C. 120(j) toll credits, 23 U.S.C. 144(n) off-system 
bridge credits and 23 U.S.C. 323 land value credits) to cover all or a 
portion of the normal percent non-Federal share of the project;
    (2) The project involves other arrangements affecting Federal 
funding or non-Federal matching provisions, including tapered match, 
donations, or use of other Federal agency funds, if known at the time 
the project agreement is executed; and
    (3) The State is claiming finance related costs for bond and other 
debt instrument financing (such as payments to States under 23 U.S.C. 
122).
    (d) The State DOT may use an electronic version of the agreement as 
provided by the FHWA.

(Approved by the Office of Management and Budget under control number 
2125-0529)



Sec.  630.110  Modification of original agreement.

    (a) When changes are needed to the original project agreement, a 
modification of agreement shall be prepared. Agreements should not be 
modified to replace one Federal fund category with another unless 
specifically authorized by statute.
    (b) The State DOT may develop the modification of project agreement 
in a format acceptable to both the State DOT and the FHWA provided the 
following are included:
    (1) The Federal-aid project number and State;
    (2) A sequential number identifying the modification;
    (3) A reference to the date of the original project agreement to be 
modified;
    (4) The original total project cost and the original amount of 
Federal funds under agreement;
    (5) The revised total project cost and the revised amount of Federal 
funds under agreement;
    (6) The reason for the modifications; and,
    (7) Signatures of officials from both the State and the FHWA and 
date executed.
    (c) The State DOT may use an electronic version of the modification 
of project agreement as provided by the FHWA.



Sec.  630.112  Agreement provisions.

    (a) The State, through its transportation department, accepts and 
agrees to comply with the applicable terms and conditions set forth in 
title 23, U.S.C., the regulations issued pursuant thereto, the policies 
and procedures promulgated by the FHWA relative to the designated 
project covered by the agreement, and all other applicable Federal laws 
and regulations.
    (b) Federal funds obligated for the project must not exceed the 
amount agreed to on the project agreement, the balance of the estimated 
total cost being an obligation of the State. Such obligation of Federal 
funds extends only to project costs incurred by the State after the 
execution of a formal project agreement with the FHWA.
    (c) The State must stipulate that as a condition to payment of the 
Federal funds obligated, it accepts and will comply with the following 
applicable provisions:
    (1) Project for acquisition of rights-of-way. In the event that 
actual construction of a road on this right-of-way is not undertaken by 
the close of the twentieth fiscal year following the fiscal year in 
which the project is authorized, the State DOT will repay to the FHWA 
the sum or sums of Federal funds paid to the transportation department 
under the terms of the agreement. The State may request a time extension 
beyond the 20-year limit with no repayment of Federal funds,

[[Page 246]]

and the FHWA may approve this request if it is considered reasonable.
    (2) Preliminary engineering project. In the event that right-of-way 
acquisition for, or actual construction of, the road for which this 
preliminary engineering is undertaken is not started by the close of the 
tenth fiscal year following the fiscal year in which the project is 
authorized, the State DOT will repay to the FHWA the sum or sums of 
Federal funds paid to the transportation department under the terms of 
the agreement. The State may request a time extension for any 
preliminary engineering project beyond the 10-year limit with no 
repayment of Federal funds, and the FHWA may approve this request if it 
is considered reasonable.
    (3) Drug-free workplace. By signing the project agreement, the State 
DOT agrees to maintain a drug-free workplace, identify all known 
workplaces under Federal awards, and fulfill other responsibilities 
required by 49 CFR part 32.
    (4) Suspension and debarment verification. By signing the project 
agreement, the State DOT agrees to verify that contractors are not 
excluded through suspension or debarment, as required by 2 CFR parts 
180, subpart C, and 1200.
    (5) Lobbying certification. By signing the project agreement, the 
State DOT agrees to abide by the lobbying restrictions set forth in 49 
CFR part 20. In signing the project agreement, the State is providing 
the certification required in appendix A to 49 CFR part 20.

[66 FR 23847, May 10, 2001, as amended at 85 FR 72931, Nov. 16, 2020]



             Subpart B_Plans, Specifications, and Estimates

    Source: 43 FR 58564, Dec. 15, 1978, unless otherwise noted.



Sec.  630.201  Purpose.

    The purpose of this subpart is to prescribe Federal Highway 
Administration (FHWA) procedures relating to the preparation, 
submission, and approval of plans, specifications and estimates (PS&E), 
and supporting documents for Federal-aid projects.



Sec.  630.203  Applicability.

    The provisions of this regulation apply to all highway construction 
projects financed in whole or in part with Federal-aid highway funds and 
to be undertaken by a State or political subdivision.

[69 FR 7118, Feb. 13, 2004]



Sec.  630.205  Preparation, submission, and approval.

    (a) The contents and number of copies of the PS&E assembly shall be 
determined by the FHWA.
    (b) Plans and specifications shall describe the location and design 
features and the construction requirements in sufficient detail to 
facilitate the construction, the contract control and the estimation of 
construction costs of the project. The estimate shall reflect the 
anticipated cost of the project in sufficient detail to provide an 
initial prediction of the financial obligations to be incurred by the 
State and FHWA and to permit an effectice review and comparison of the 
bids received.
    (c) PS&E assemblies for Federal-aid highway projects shall be 
submitted to the FHWA for approval.
    (d) The State DOT shall be advised of approval of the PS&E by the 
FHWA.
    (e) No project or part thereof for actual construction shall be 
advertised for contract nor work commenced by force account until the 
PS&E has been approved by the FHWA and the State DOT has been so 
notified, except in the case of an Indefinite Delivery/Indefinite 
Quantity project conforming to the requirements of 23 CFR part 635 
subpart F.

[43 FR 58564, Dec. 15, 1978, as amended at 85 FR 72931, Nov. 16, 2020]

Subpart C [Reserved]



                       Subpart D_Geodetic Markers

    Source: 39 FR 26414, July 19, 1974, unless otherwise noted.



Sec.  630.401  Purpose.

    The purpose of this subpart is to prescribe procedures for 
conducting geodetic control surveys when participation with Federal-aid 
highway funds in

[[Page 247]]

the cost thereof is proposed and to encourage inter-agency cooperation 
in setting station markers, surveying to measure their position, and 
preserving the control so established.



Sec.  630.402  Policy.

    (a) Geodetic surveys along Federal-aid highway routes may be 
programmed as Federal-aid highway projects.
    (b) All geodetic survey work performed as a Federal-aid highway 
project will conform to National Ocean Survey (NOS) specifications. NOS 
will, as the representative of FHWA, be responsible for the inspection 
and verification of the work to ascertain that the specifications for 
the work have been met. Final project acceptance by FHWA will be 
predicated on a finding of acceptability by NOS.



Sec.  630.403  Initiation of projects.

    All projects shall be coordinated by the FHWA Division 
Administrator, the State highway department and the National Ocean 
Survey.



Sec.  630.404  Standards.

    (a) Highway purposes may best be served by the establishment of 
station markings for horizontal control along Federal-aid highway routes 
at spacings of three to eight kilometers (about 2 to 5 miles) and 
station markers for vertical control of spacings no closer than one 
kilometer. These requirements may be waived only with the approval of 
the Administrator.
    (b) Projects should be of sufficient scope to permit efficient use 
of field parties. Projects should extend at least 30 kilometers. 
Projects may be coordinated with adjoining States to attain greater 
efficiency.
    (c) Where geodetic station markers cannot be established inititally 
at points readily accessible from the Federal-aid route, or where 
unavoidable circumstances result in their being established within 
construction limits, supplemental projects may later be approved to set 
and survey markers at satisfactory permanent points, preferably within 
the right-of-way but at points where their use does not introduce 
traffic hazards.

Subparts E-F [Reserved]



         Subpart G_Advance Construction of Federal-Aid Projects

    Source: 60 FR 36993, July 19, 1995, unless otherwise noted.



Sec.  630.701  Purpose.

    The purpose of this subpart is to prescribe procedures for advancing 
the construction of Federal-aid highway projects without obligating 
Federal funds apportioned or allocated to the State.



Sec.  630.703  Eligibility.

    (a) The State Department of Transportation (DOT) may proceed with a 
project authorized in accordance with title 23, United States Code:
    (1) Without the use of Federal funds; and
    (2) In accordance with all procedures and requirements applicable to 
the project other than those procedures and requirements that limit the 
State to implementation of a project--
    (i) With the aid of Federal funds previously apportioned or 
allocated to the State; or
    (ii) With obligation authority previously allocated to the State.
    (b) The FHWA, on the request of a State and execution of a project 
agreement, may obligate all or a portion of the Federal share of a 
project authorized to proceed under this section from any category of 
funds for which the project is eligible.

[73 FR 50196, Aug. 26, 2008]



Sec.  630.705  Procedures.

    (a) An advance construction project shall meet the same requirements 
and be processed in the same manner as a regular Federal-aid project, 
except,
    (1) The FHWA authorization does not constitute any commitment of 
Federal funds on the project, and
    (2) The FHWA shall not reimburse the State until the project is 
converted under Sec.  630.709.
    (b) Project numbers shall be identified by the letters ``AC'' 
preceding the regular project number prefix.

[60 FR 36993, July 19, 1995, as amended at 68 FR 60033, Oct. 21, 2003]

[[Page 248]]



Sec.  630.707  [Reserved]



Sec.  630.709  Conversion to a regular Federal-aid project.

    (a) The State Department of Transportation may submit a written 
request to the FHWA that a project be converted to a regular Federal-aid 
project at any time provided that sufficient Federal-aid funds and 
obligation authority are available.
    (b) Subsequent to FHWA approval the State Department of 
Transportation may claim reimbursement for the Federal share of project 
costs incurred, provided the project agreement has been executed. If the 
State Department of Transportation has previously submitted a final 
voucher, the FHWA will process the voucher for payment.

[60 FR 36993, July 19, 1995, as amended at 73 FR 50196, Aug. 26, 2008]



                    Subpart H_Bridges on Federal Dams

    Source: 39 FR 36474, Oct. 10, 1974, unless otherwise noted.



Sec.  630.801  Purpose.

    The purpose of this subpart is to prescribe procedures for the 
construction and financing, by an agency of the Federal Government, of 
public highway bridges over dams constructed and owned by or for the 
United States.



Sec.  630.802  Applicability.

    A proposed bridge over a dam, together with the approach roads to 
connect the bridge with existing public highways, must be eligible for 
inclusion in the Federal-aid highway system, if not already a part 
thereof.



Sec.  630.803  Procedures.

    A State's application to qualify a project under this subpart will 
include:
    (a) A certification that the bridge is economically desirable and 
needed as a link in the Federal-aid highway system.
    (b) A statement showing the source and availability of funds to be 
used in construction of the roadway approaches.
    (c) A statement of any obligation on the part of the agency 
constructing the dam to provide such bridge or approach roads to satisfy 
a legal liability incurred independently of this subpart.

Subpart I [Reserved]



                 Subpart J_Work Zone Safety and Mobility

    Source: 69 FR 54569, Sept. 9, 2004, unless otherwise noted.



Sec.  630.1002  Purpose.

    Work zones directly impact the safety and mobility of road users and 
highway workers. These safety and mobility impacts are exacerbated by an 
aging highway infrastructure and growing congestion in many locations. 
Addressing these safety and mobility issues requires considerations that 
start early in project development and continue through project 
completion. Part 6 of the Manual On Uniform Traffic Control Devices 
(MUTCD) \1\ sets forth basic principles and prescribes standards for the 
design, application, installation, and maintenance of traffic control 
devices for highway and street construction, maintenance operation, and 
utility work. In addition to the provisions in the MUTCD, there are 
other actions that could be taken to further help mitigate the safety 
and mobility impacts of work zones. This subpart establishes 
requirements and provides guidance for systematically addressing the 
safety and mobility impacts of work zones, and developing strategies to 
help manage these impacts on all Federal-aid highway projects.
---------------------------------------------------------------------------

    \1\ The MUTCD is approved by the FHWA and recognized as the national 
standard for traffic control on all public roads. It is incorporated by 
reference into the Code of Federal Regulations at 23 CFR part 655. It is 
available on the FHWA's Web site at http://mutcd.fhwa.dot.gov and is 
available for inspection and copying at the FHWA Washington, DC 
Headquarters and all FHWA Division Offices as prescribed at 49 CFR part 
7.
---------------------------------------------------------------------------



Sec.  630.1004  Definitions and explanation of terms.

    As used in this subpart:
    Highway workers include, but are not limited to, personnel of the 
contractor,

[[Page 249]]

subcontractor, DOT, utilities, and law enforcement, performing work 
within the right-of-way of a transportation facility.
    Mobility is the ability to move from place to place and is 
significantly dependent on the availability of transportation facilities 
and on system operating conditions. With specific reference to work 
zones, mobility pertains to moving road users efficiently through or 
around a work zone area with a minimum delay compared to baseline travel 
when no work zone is present, while not compromising the safety of 
highway workers or road users. The commonly used performance measures 
for the assessment of mobility include delay, speed, travel time and 
queue lengths.
    Safety is a representation of the level of exposure to potential 
hazards for users of transportation facilities and highway workers. With 
specific reference to work zones, safety refers to minimizing potential 
hazards to road users in the vicinity of a work zone and highway workers 
at the work zone interface with traffic. The commonly used measures for 
highway safety are the number of crashes or the consequences of crashes 
(fatalities and injuries) at a given location or along a section of 
highway during a period of time. Highway worker safety in work zones 
refers to the safety of workers at the work zone interface with traffic 
and the impacts of the work zone design on worker safety. The number of 
worker fatalities and injuries at a given location or along a section of 
highway, during a period of time are commonly used measures for highway 
worker safety.
    Work zone \2\ is an area of a highway with construction, 
maintenance, or utility work activities. A work zone is typically marked 
by signs, channelizing devices, barriers, pavement markings, and/or work 
vehicles. It extends from the first warning sign or high-intensity 
rotating, flashing, oscillating, or strobe lights on a vehicle to the 
END ROAD WORK sign or the last temporary traffic control (TTC) device.
---------------------------------------------------------------------------

    \2\ MUTCD, Part 6, ``Temporary Traffic Control,'' Section 6C.02, 
``Temporary Traffic Control Zones.''
---------------------------------------------------------------------------

    Work zone crash \3\ means a traffic crash in which the first harmful 
event occurs within the boundaries of a work zone or on an approach to 
or exit from a work zone, resulting from an activity, behavior, or 
control related to the movement of the traffic units through the work 
zone. This includes crashes occurring on approach to, exiting from or 
adjacent to work zones that are related to the work zone.
---------------------------------------------------------------------------

    \3\ ``Model Minimum Uniform Crash Criteria Guideline'' (MMUCC), 2d 
Ed. (Electronic), 2003, produced by National Center for Statistics and 
Analysis, National Highway Traffic Safety Administration (NHTSA). 
Telephone 1-(800)-934-8517. Available at the URL: http://www-
nrd.nhtsa.dot.gov. The NHTSA, the FHWA, the Federal Motor Carrier Safety 
Administration (FMCSA), and the Governors Highway Safety Association 
(GHSA) sponsored the development of the MMUCC Guideline which recommends 
voluntary implementation of the 111 MMUCC data elements and serves as a 
reporting threshold that includes all persons (injured and uninjured) in 
crashes statewide involving death, personal injury, or property damage 
of $1,000 or more. The Guideline is a tool to strengthen existing State 
crash data systems.
---------------------------------------------------------------------------

    Work zone impacts refer to work zone-induced deviations from the 
normal range of transportation system safety and mobility. The extent of 
the work zone impacts may vary based on factors such as, road 
classification, area type (urban, suburban, and rural), traffic and 
travel characteristics, type of work being performed, time of day/night, 
and complexity of the project. These impacts may extend beyond the 
physical location of the work zone itself, and may occur on the roadway 
on which the work is being performed, as well as other highway 
corridors, other modes of transportation, and/or the regional 
transportation network.



Sec.  630.1006  Work zone safety and mobility policy.

    Each State shall implement a policy for the systematic consideration 
and management of work zone impacts on all Federal-aid highway projects. 
This policy shall address work zone impacts throughout the various 
stages of the project development and implementation process. This 
policy may take the form of processes, procedures, and/or guidance, and 
may vary based on the

[[Page 250]]

characteristics and expected work zone impacts of individual projects or 
classes of projects. The States should institute this policy using a 
multi-disciplinary team and in partnership with the FHWA. The States are 
encouraged to implement this policy for non-Federal-aid projects as 
well.



Sec.  630.1008  State-level processes and procedures.

    (a) This section consists of State-level processes and procedures 
for States to implement and sustain their respective work zone safety 
and mobility policies. State-level processes and procedures, data and 
information resources, training, and periodic evaluation enable a 
systematic approach for addressing and managing the safety and mobility 
impacts of work zones.
    (b) Work zone assessment and management procedures. States should 
develop and implement systematic procedures to assess work zone impacts 
in project development, and to manage safety and mobility during project 
implementation. The scope of these procedures shall be based on the 
project characteristics.
    (c) Work zone data. States shall use field observations, available 
work zone crash data, and operational information to manage work zone 
impacts for specific projects during implementation. States shall 
continually pursue improvement of work zone safety and mobility by 
analyzing work zone crash and operational data from multiple projects to 
improve State processes and procedures. States should maintain elements 
of the data and information resources that are necessary to support 
these activities.
    (d) Training. States shall require that personnel involved in the 
development, design, implementation, operation, inspection, and 
enforcement of work zone related transportation management and traffic 
control be trained, appropriate to the job decisions each individual is 
required to make. States shall require periodic training updates that 
reflect changing industry practices and State processes and procedures.
    (e) Process review. In order to assess the effectiveness of work 
zone safety and mobility procedures, the States shall perform a process 
review at least every two years. This review may include the evaluation 
of work zone data at the State level, and/or review of randomly selected 
projects throughout their jurisdictions. Appropriate personnel who 
represent the project development stages and the different offices 
within the State, and the FHWA should participate in this review. Other 
non-State stakeholders may also be included in this review, as 
appropriate. The results of the review are intended to lead to 
improvements in work zone processes and procedures, data and information 
resources, and training programs so as to enhance efforts to address 
safety and mobility on current and future projects.



Sec.  630.1010  Significant projects.

    (a) A significant project is one that, alone or in combination with 
other concurrent projects nearby is anticipated to cause sustained work 
zone impacts (as defined in Sec.  630.1004) that are greater than what 
is considered tolerable based on State policy and/or engineering 
judgment.
    (b) The applicability of the provisions in Sec. Sec.  630.1012(b)(2) 
and 630.1012(b)(3) is dependent upon whether a project is determined to 
be significant. The State shall identify upcoming projects that are 
expected to be significant. This identification of significant projects 
should be done as early as possible in the project delivery and 
development process, and in cooperation with the FHWA. The State's work 
zone policy provisions, the project's characteristics, and the magnitude 
and extent of the anticipated work zone impacts should be considered 
when determining if a project is significant or not.
    (c) All Interstate system projects within the boundaries of a 
designated Transportation Management Area (TMA) that occupy a location 
for more than three days with either intermittent or continuous lane 
closures shall be considered as significant projects.
    (d) For an Interstate system project or categories of Interstate 
system projects that are classified as significant through the 
application of the provisions in Sec.  630.1010(c), but in the judgment 
of the State they do not cause sustained work zone impacts, the State 
may request from the FHWA, an

[[Page 251]]

exception to Sec. Sec.  630.1012(b)(2) and 630.1012(b)(3). Exceptions to 
these provisions may be granted by the FHWA based on the State's ability 
to show that the specific Interstate system project or categories of 
Interstate system projects do not have sustained work zone impacts.



Sec.  630.1012  Project-level procedures.

    (a) This section provides guidance and establishes procedures for 
States to manage the work zone impacts of individual projects.
    (b) Transportation Management Plan (TMP). A TMP consists of 
strategies to manage the work zone impacts of a project. Its scope, 
content, and degree of detail may vary based upon the State's work zone 
policy, and the State's understanding of the expected work zone impacts 
of the project. For significant projects (as defined in Sec.  630.1010), 
the State shall develop a TMP that consists of a Temporary Traffic 
Control (TTC) plan and addresses both Transportation Operations (TO) and 
Public Information (PI) components. For individual projects or classes 
of projects that the State determines to have less than significant work 
zone impacts, the TMP may consist only of a TTC plan. States are 
encouraged to consider TO and PI issues for all projects.
    (1) A TTC plan describes TTC measures to be used for facilitating 
road users through a work zone or an incident area. The TTC plan plays a 
vital role in providing continuity of reasonably safe and efficient road 
user flow and highway worker safety when a work zone, incident, or other 
event temporarily disrupts normal road user flow. The TTC plan shall be 
consistent with the provisions under Part 6 of the MUTCD and with the 
work zone hardware recommendations in Chapter 9 of the American 
Association of State Highway and Transportation Officials (AASHTO) 
Roadside Design Guide. Chapter 9 of the AASHTO Roadside Design Guide: 
``Traffic Barriers, Traffic Control Devices, and Other Safety Features 
for Work Zones'' 2002, is incorporated by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51 and is on file at the National Archives 
and Record Administration (NARA). For information on the availability of 
this material at NARA call (202) 741-6030, or go to http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html. The entire document is available for purchase from 
the American Association of State Highway and Transportation Officials 
(AASHTO), 444 North Capitol Street, NW., Suite 249, Washington, DC 20001 
or at the URL: http://www.aashto.org/bookstore. It is available for 
inspection from the FHWA Washington Headquarters and all Division 
Offices as listed in 49 CFR part 7. In developing and implementing the 
TTC plan, pre-existing roadside safety hardware shall be maintained at 
an equivalent or better level than existed prior to project 
implementation. The scope of the TTC plan is determined by the project 
characteristics, and the traffic safety and control requirements 
identified by the State for that project. The TTC plan shall either be a 
reference to specific TTC elements in the MUTCD, approved standard TTC 
plans, State transportation department TTC manual, or be designed 
specifically for the project.
    (2) The TO component of the TMP shall include the identification of 
strategies that will be used to mitigate impacts of the work zone on the 
operation and management of the transportation system within the work 
zone impact area. Typical TO strategies may include, but are not limited 
to, demand management, corridor/network management, safety management 
and enforcement, and work zone traffic management. The scope of the TO 
component should be determined by the project characteristics, and the 
transportation operations and safety strategies identified by the State.
    (3) The PI component of the TMP shall include communications 
strategies that seek to inform affected road users, the general public, 
area residences and businesses, and appropriate public entities about 
the project, the expected work zone impacts, and the changing conditions 
on the project. This may include traveler information strategies. The 
scope of the PI component should be determined by the project 
characteristics and the public information and outreach strategies

[[Page 252]]

identified by the State. Public information should be provided through 
methods best suited for the project, and may include, but not be limited 
to, information on the project characteristics, expected impacts, 
closure details, and commuter alternatives.
    (4) States should develop and implement the TMP in sustained 
consultation with stakeholders (e.g., other transportation agencies, 
railroad agencies/operators, transit providers, freight movers, utility 
suppliers, police, fire, emergency medical services, schools, business 
communities, and regional transportation management centers).
    (c) The Plans, Specifications, and Estimates (PS&Es) shall include 
either a TMP or provisions for contractors to develop a TMP at the most 
appropriate project phase as applicable to the State's chosen 
contracting methodology for the project. A contractor developed TMP 
shall be subject to the approval of the State, and shall not be 
implemented before it is approved by the State.
    (d) The PS&Es shall include appropriate pay item provisions for 
implementing the TMP, either through method or performance based 
specifications.
    (1) For method-based specifications individual pay items, lump sum 
payment, or a combination thereof may be used.
    (2) For performance based specifications, applicable performance 
criteria and standards may be used (e.g., safety performance criteria 
such as number of crashes within the work zone; mobility performance 
criteria such as travel time through the work zone, delay, queue length, 
traffic volume; incident response and clearance criteria; work duration 
criteria).
    (e) Responsible persons. The State and the contractor shall each 
designate a trained person, as specified in Sec.  630.1008(d), at the 
project level who has the primary responsibility and sufficient 
authority for implementing the TMP and other safety and mobility aspects 
of the project.



Sec.  630.1014  Implementation.

    Each State shall work in partnership with the FHWA in the 
implementation of its policies and procedures to improve work zone 
safety and mobility. At a minimum, this shall involve an FHWA review of 
conformance of the State's policies and procedures with this regulation 
and reassessment of the State's implementation of its procedures at 
appropriate intervals. Each State is encouraged to address 
implementation of this regulation in its stewardship agreement with the 
FHWA.



Sec.  630.1016  Compliance date.

    States shall comply with all the provisions of this rule no later 
than October 12, 2007. For projects that are in the later stages of 
development at or about the compliance date, and if it is determined 
that the delivery of those projects would be significantly impacted as a 
result of this rule's provisions, States may request variances for those 
projects from the FHWA, on a project-by-project basis.



               Subpart K_Temporary Traffic Control Devices

    Authority: 23 U.S.C. 109(c) and 112; Sec. 1110 of Pub. L. 109-59; 23 
CFR 1.32; and 49 CFR 1.48(b).

    Source: 72 FR 68489, Dec. 5, 2007, unless otherwise noted.



Sec.  630.1102  Purpose.

    To decrease the likelihood of highway work zone fatalities and 
injuries to workers and road users by establishing minimum requirements 
and providing guidance for the use of positive protection devices 
between the work space and motorized traffic, installation and 
maintenance of temporary traffic control devices, and use of uniformed 
law enforcement officers during construction, utility, and maintenance 
operations, and by requiring contract pay items to ensure the 
availability of funds for these provisions. This subpart is applicable 
to all Federal-aid highway projects, and its application is encouraged 
on other highway projects as well.



Sec.  630.1104  Definitions.

    For the purposes of this subpart, the following definitions apply:

[[Page 253]]

    Agency means a State or local highway agency or authority that 
receives Federal-aid highway funding.
    Exposure Control Measures means traffic management strategies to 
avoid work zone crashes involving workers and motorized traffic by 
eliminating or reducing traffic through the work zone, or diverting 
traffic away from the work space.
    Federal-aid Highway Project means highway construction, maintenance, 
and utility projects funded in whole or in part with Federal-aid funds.
    Motorized Traffic means the motorized traveling public. This term 
does not include motorized construction or maintenance vehicles and 
equipment within the work space.
    Other Traffic Control Measures means all strategies and temporary 
traffic controls other than Positive Protection Devices and Exposure 
Control Measures, but including uniformed law enforcement officers, used 
to reduce the risk of work zone crashes involving motorized traffic.
    Positive Protection Devices means devices that contain and/or 
redirect vehicles and meet the crashworthiness evaluation criteria 
contained in National Cooperative Highway Research Program (NCHRP) 
Report 350, Recommended Procedures for the Safety Performance Evaluation 
of Highway Features, 1993, Transportation Research Board, National 
Research Council. The Director of the Federal Register approves this 
incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. This document is available for inspection and copying at FHWA, 
1200 New Jersey Avenue, SE., Washington, DC 20590, as provided in 49 CFR 
part 7. You may also inspect a copy at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call (202) 741 6030, or go to: http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.
    Work Zone Safety Management means the entire range of traffic 
management and control and highway safety strategies and devices used to 
avoid crashes in work zones that can lead to worker and road user 
injuries and fatalities, including Positive Protection Devices, Exposure 
Control Measures, and Other Traffic Control Measures.



Sec.  630.1106  Policy and procedures for work zone safety management.

    (a) Each agency's policy and processes, procedures, and/or guidance 
for the systematic consideration and management of work zone impacts, to 
be established in accordance with 23 CFR 630.1006, shall include the 
consideration and management of road user and worker safety on Federal-
aid highway projects. These processes, procedures, and/or guidance, to 
be developed in partnership with the FHWA, shall address the use of 
Positive Protection Devices to prevent the intrusion of motorized 
traffic into the work space and other potentially hazardous areas in the 
work zone; Exposure Control Measures to avoid or minimize worker 
exposure to motorized traffic and road user exposure to work activities; 
Other Traffic Control Measures including uniformed law enforcement 
officers to minimize work zone crashes; and the safe entry/exit of work 
vehicles onto/from the travel lanes. Each of these strategies should be 
used to the extent that they are possible, practical, and adequate to 
manage work zone exposure and reduce the risks of crashes resulting in 
fatalities or injuries to workers and road users.
    (b) Agency processes, procedures, and/or guidance should be based on 
consideration of standards and/or guidance contained in the Manual on 
Uniform Traffic Control Devices (MUTCD) and the AASHTO Roadside Design 
Guide, as well as project characteristics and factors. The strategies 
and devices to be used may be determined by a project-specific 
engineering study, or determined from agency guidelines that define 
strategies and approaches to be used based on project and highway 
characteristics and factors. The types of measures and strategies to be 
used are not mutually exclusive, and should be considered in combination 
as appropriate based on characteristics and factors such as those listed 
below:
    (1) Project scope and duration;
    (2) Anticipated traffic speeds through the work zone;
    (3) Anticipated traffic volume;

[[Page 254]]

    (4) Vehicle mix;
    (5) Type of work (as related to worker exposure and crash risks);
    (6) Distance between traffic and workers, and extent of worker 
exposure;
    (7) Escape paths available for workers to avoid a vehicle intrusion 
into the work space;
    (8) Time of day (e.g., night work);
    (9) Work area restrictions (including impact on worker exposure);
    (10) Consequences from/to road users resulting from roadway 
departure;
    (11) Potential hazard to workers and road users presented by device 
itself and during device placement and removal;
    (12) Geometrics that may increase crash risks (e.g., poor sight 
distance, sharp curves);
    (13) Access to/from work space;
    (14) Roadway classification; and
    (15) Impacts on project cost and duration.
    (c) Uniformed Law Enforcement Policy. Each agency, in partnership 
with the FHWA, shall develop a policy addressing the use of uniformed 
law enforcement on Federal-aid highway projects. The policy may consist 
of processes, procedures, and/or guidance. The processes, procedures, 
and/or guidance should address the following:
    (1) Basic interagency agreements between the highway agency and 
appropriate law enforcement agencies to address work zone enforcement 
needs;
    (2) Interaction between highway and law-enforcement agency during 
project planning and development;
    (3) Conditions where law enforcement involvement in work zone 
traffic control may be needed or beneficial, and criteria to determine 
the project-specific need for law enforcement;
    (4) General nature of law enforcement services to be provided, and 
procedures to determine project-specific services;
    (5) Appropriate work zone safety and mobility training for the 
officers, consistent with the training requirements in 23 CFR 
630.1008(d);
    (6) Procedures for interagency and project-level communications 
between highway agency and law enforcement personnel; and
    (7) Reimbursement agreements for law enforcement service.



Sec.  630.1108  Work zone safety management measures and strategies.

    (a) Positive Protection Devices. The need for longitudinal traffic 
barrier and other positive protection devices shall be based on an 
engineering study. The engineering study may be used to develop positive 
protection guidelines for the agency, or to determine the measures to be 
applied on an individual project. The engineering study should be based 
on consideration of the factors and characteristics described in section 
630.1106(b). At a minimum, positive protection devices shall be 
considered in work zone situations that place workers at increased risk 
from motorized traffic, and where positive protection devices offer the 
highest potential for increased safety for workers and road users, such 
as:
    (1) Work zones that provide workers no means of escape from 
motorized traffic (e.g., tunnels, bridges, etc.);
    (2) Long duration work zones (e.g., two weeks or more) resulting in 
substantial worker exposure to motorized traffic;
    (3) Projects with high anticipated operating speeds (e.g., 45 mph or 
greater), especially when combined with high traffic volumes;
    (4) Work operations that place workers close to travel lanes open to 
traffic; and
    (5) Roadside hazards, such as drop-offs or unfinished bridge decks, 
that will remain in place overnight or longer.
    (b) Exposure Control Measures. Exposure Control Measures should be 
considered where appropriate to avoid or minimize worker exposure to 
motorized traffic and exposure of road users to work activities, while 
also providing adequate consideration to the potential impacts on 
mobility. A wide range of measures may be appropriate for use on 
individual projects, such as:
    (1) Full road closures;
    (2) Ramp closures;
    (3) Median crossovers;
    (4) Full or partial detours or diversions;

[[Page 255]]

    (5) Protection of work zone setup and removal operations using 
rolling road blocks;
    (6) Performing work at night or during off-peak periods when traffic 
volumes are lower; and
    (7) Accelerated construction techniques.
    (c) Other Traffic Control Measures. Other Traffic Control Measures 
should be given appropriate consideration for use in work zones to 
reduce work zone crashes and risks and consequences of motorized traffic 
intrusion into the work space. These measures, which are not mutually 
exclusive and should be considered in combination as appropriate, 
include a wide range of other traffic control measures such as:
    (1) Effective, credible signing;
    (2) Changeable message signs;
    (3) Arrow panels;
    (4) Warning flags and lights on signs;
    (5) Longitudinal and lateral buffer space;
    (6) Trained flaggers and spotters;
    (7) Enhanced flagger station setups;
    (8) Intrusion alarms;
    (9) Rumble strips;
    (10) Pace or pilot vehicle;
    (11) High quality work zone pavement markings and removal of 
misleading markings;
    (12) Channelizing device spacing reduction;
    (13) Longitudinal channelizing barricades;
    (14) Work zone speed management (including changes to the regulatory 
speed and/or variable speed limits);
    (15) Law enforcement;
    (16) Automated speed enforcement (where permitted by State/local 
laws);
    (17) Drone radar;
    (18) Worker and work vehicle/equipment visibility;
    (19) Worker training;
    (20) Public information and traveler information; and
    (21) Temporary traffic signals.
    (d) Uniformed Law Enforcement Officers. (1) A number of conditions 
may indicate the need for or benefit of uniformed law enforcement in 
work zones. The presence of a uniformed law enforcement officer and 
marked law enforcement vehicle in view of motorized traffic on a highway 
project can affect driver behavior, helping to maintain appropriate 
speeds and improve driver alertness through the work zone. However, such 
law enforcement presence is not a substitute for the temporary traffic 
control devices required by Part 6 of the MUTCD. In general, the need 
for law enforcement is greatest on projects with high traffic speeds and 
volumes, and where the work zone is expected to result in substantial 
disruption to or changes in normal traffic flow patterns. Specific 
project conditions should be examined to determine the need for or 
potential benefit of law enforcement, such as the following:
    (i) Frequent worker presence adjacent to high-speed traffic without 
positive protection devices;
    (ii) Traffic control setup or removal that presents significant 
risks to workers and road users;
    (iii) Complex or very short term changes in traffic patterns with 
significant potential for road user confusion or worker risk from 
traffic exposure;
    (iv) Night work operations that create substantial traffic safety 
risks for workers and road users;
    (v) Existing traffic conditions and crash histories that indicate a 
potential for substantial safety and congestion impacts related to the 
work zone activity, and that may be mitigated by improved driver 
behavior and awareness of the work zone;
    (vi) Work zone operations that require brief stoppage of all traffic 
in one or both directions;
    (vii) High-speed roadways where unexpected or sudden traffic queuing 
is anticipated, especially if the queue forms a considerable distance in 
advance of the work zone or immediately adjacent to the work space; and
    (viii) Other work site conditions where traffic presents a high risk 
for workers and road users, such that the risk may be reduced by 
improving road user behavior and awareness.
    (2) Costs associated with the provision of uniformed law enforcement 
to help protect workers and road users, and to maintain safe and 
efficient travel through highway work zones, are eligible for Federal-
aid participation. Federal-aid eligibility excludes law enforcement 
activities that would normally be expected in and around highway problem 
areas requiring routine or

[[Page 256]]

ongoing law enforcement traffic control and enforcement activities. 
Payment for the services of uniformed law enforcement in work zones may 
be included in the construction contract, or be provided by direct 
reimbursement from the highway agency to the law enforcement agency. 
When payment is included through the construction contract, the 
contractor will be responsible for reimbursing the law enforcement 
agency, and in turn will recover those costs through contract pay items. 
Direct interagency reimbursement may be made on a project-specific 
basis, or on a program-wide basis that considers the overall level of 
services to be provided by the law enforcement agency. Contract pay 
items for law enforcement service may be either unit price or lump sum 
items. Unit price items should be utilized when the highway agency can 
estimate and control the quantity of law enforcement services required 
on the project. The use of lump sum payment should be limited to 
situations where the quantity of services is directly affected by the 
contractor's choice of project scheduling and chosen manner of staging 
and performing the work. Innovative payment items may also be considered 
when they offer an advantage to both the highway agency and the 
contractor. When reimbursement to the law enforcement agency is made by 
interagency transfer of funds, the highway agency should establish a 
program-level or project-level budget that is adequate to meet 
anticipated program or project needs, and include provisions to address 
unplanned needs and other contingencies.
    (e) Work Vehicles and Equipment. In addition to addressing risks to 
workers and road users from motorized traffic, the agency processes, 
procedures, and/or guidance established in accordance with 23 CFR 
630.1006 should also address safe means for work vehicles and equipment 
to enter and exit traffic lanes and for delivery of construction 
materials to the work space, based on individual project characteristics 
and factors.
    (f) Payment for Traffic Control. Consistent with the requirements of 
23 CFR 630.1012, Project-level Procedures, project plans, specifications 
and estimates (PS&Es) shall include appropriate pay item provisions for 
implementing the project Transportation Management Plan (TMP), which 
includes a Temporary Traffic Control (TTC) plan, either through method 
or performance based specifications. Pay item provisions include, but 
are not limited to, the following:
    (1) Payment for work zone traffic control features and operations 
shall not be incidental to the contract, or included in payment for 
other items of work not related to traffic control and safety;
    (2) As a minimum, separate pay items shall be provided for major 
categories of traffic control devices, safety features, and work zone 
safety activities, including but not limited to positive protection 
devices, and uniformed law enforcement activities when funded through 
the project;
    (3) For method based specifications, the specifications and other 
PS&E documents should provide sufficient details such that the quantity 
and types of devices and the overall effort required to implement and 
maintain the TMP can be determined;
    (4) For method-based specifications, unit price pay items, lump sum 
pay items, or a combination thereof may be used;
    (5) Lump sum payment should be limited to items for which an 
estimate of the actual quantity required is provided in the PS&E or for 
items where the actual quantity required is dependent upon the 
contractor's choice of work scheduling and methodology;
    (6) For Lump Sum items, a contingency provision should be included 
such that additional payment is provided if the quantity or nature of 
the required work changes, either an increase or decrease, due to 
circumstances beyond the control of the contractor;
    (7) Unit price payment should be provided for those items over which 
the contractor has little or no control over the quantity, and no firm 
estimate of quantities is provided in the PS&Es, but over which the 
highway agency has control of the actual quantity to be required during 
the project;

[[Page 257]]

    (8) Specifications should clearly indicate how placement, movement/
relocation, and maintenance of traffic control devices and safety 
features will be compensated; and
    (9) The specifications should include provisions to require and 
enforce contractor compliance with the contract provisions relative to 
implementation and maintenance of the project TMP and related traffic 
control items. Enforcement provisions may include remedies such as 
liquidated damages, work suspensions, or withholding payment for 
noncompliance.



Sec.  630.1110  Maintenance of temporary traffic control devices.

    To provide for the continued effectiveness of temporary traffic 
control devices, each agency shall develop and implement quality 
guidelines to help maintain the quality and adequacy of the temporary 
traffic control devices for the duration of the project. Agencies may 
choose to adopt existing quality guidelines such as those developed by 
the American Traffic Safety Services Association (ATSSA) or other state 
highway agencies. \1\ A level of inspection necessary to provide ongoing 
compliance with the quality guidelines shall be provided.
---------------------------------------------------------------------------

    \1\ The American Traffic Safety Services Association's (ATSSA) 
Quality Guidelines for Work Zone Traffic Control Devices uses photos and 
written descriptions to help judge when a traffic control device has 
outlived its usefulness. These guidelines are available for purchase 
from ATSSA through the following URL: http://www.atssa.com/store/
bc_item_detail.jsp?productId=1. Similar guidelines are available from 
various State highway agencies. The Illinois Department of 
Transportation ``Quality Standards for Work Zone Traffic Control 
Devices'' is available online at http://dot.state.il.us/workzone/
wztcd2004r.pdf. The Minnesota Department of Transportation ``Quality 
Standards--Methods to determine whether the various traffic control 
devices are Acceptable, Marginal, or Unacceptable'' is available online 
at http://www.dot.state.mn.us/trafficeng/otepubl/fieldmanual2007/FM-
2007-QualityStandards.pdf.
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PART 633_REQUIRED CONTRACT PROVISIONS--Table of Contents



  Subpart A_Federal-Aid Construction Contracts (Other Than Appalachian 
                               Contracts)

Sec.
633.101 Purpose.
633.102 Applicability.
633.103 Regulatory authority.
633.104 Availability.

         Subpart B_Federal-Aid Contracts (Appalachian Contracts)

633.201 Purpose.
633.202 Definitions.
633.203 Applicability of existing laws, regulations, and directives.
633.204 Fiscal allocation and obligations.
633.205 Prefinancing.
633.206 Project agreements.
633.207 Construction labor and materials.
633.208 Maintenance.
633.209 Notices to prospective Federal-aid construction contractors.
633.210 Termination of contract.
633.211 Implementation of the Clean Air Act and the Federal Water 
          Pollution Control Act.

Appendix A to Subpart B of Part 633--Types of Contracts to Which the 
          Civil Rights Act of 1964 Is Applicable
Appendix B to Subpart B of Part 633--Required Contract Provisions, 
          Appalachian Development Highway System and Local Access Roads 
          Construction Contracts
Appendix C to Subpart B of Part 633--Additional Required Contract 
          Provisions, Appalachian Development Highway System and Local 
          Access Roads Contracts Other Than Construction Contracts
Appendix D to Subpart B of Part 633--Federal-Aid Proposal Notices



  Subpart A_Federal-Aid Construction Contracts (Other Than Appalachian 
                               Contracts)

    Authority: 23 U.S.C. 114 and 315; 49 CFR 1.48.

    Source: 52 FR 36920, Oct. 2, 1987, unless otherwise noted.



Sec.  633.101  Purpose.

    To prescribe for Federal-aid highway proposals and construction 
contracts the method for inclusion of required

[[Page 258]]

contract provisions of existing regulations which cover employment, 
nonsegregated facilities, record of materials and supplies, subletting 
or assigning the contract, safety, false statements concerning highway 
projects, termination of a contract, and implementation of the Clean Air 
Act and the Federal Water Pollution Control Act, and other provisions as 
shall from time-to-time be required by law and regulation as conditions 
of Federal assistance.



Sec.  633.102  Applicability.

    (a) The required contract provisions and the required proposal 
notices apply to all Federal-aid construction contracts other than 
Appalachian construction contracts.
    (b) Form FHWA-1273, ``Required Contract Provisions, Federal-aid 
Construction Contracts,'' contains required contract provisions and 
required proposal notices that are required by regulations promulgated 
by the FHWA or other Federal agencies. The required contract provisions 
of Form FHWA-1273 shall be physically incorporated in each Federal-aid 
highway construction contract other than Appalachian construction 
contracts (see Sec.  633.104 for availability of form).
    (c) [Reserved]
    (d) The required contract provisions contained in Form FHWA-1273 
shall apply to all work performed on the contract by the contractor's 
own organization and to all work performed on the contract by piecework, 
station work, or by subcontract.
    (e) The contractor shall insert in each subcontract, except as 
excluded by law or regulation, the required contract provisions 
contained in Form FHWA-1273 and further require their inclusion in any 
lower tier subcontract that may in turn be made. The required contract 
provisions of Form FHWA-1273 shall not be incorporated by reference in 
any case. The prime contractor shall be responsible for compliance by 
any subcontractor or lower tier subcontractor with the requirements 
contained in the provisions of Form FHWA-1273.
    (f) The State highway agency (SHA) shall include the notices 
concerning certification of nonsegregated facilities and implementation 
of the Clean Air Act and Federal Water Pollution Control Act, pursuant 
to 40 CFR part 15, in all bidding proposals for Federal-aid highway 
construction projects. As the notices are reproduced in Form FHWA-1273, 
the SHA may include Form FHWA-1273 in its entirety to meet this 
requirement.

[52 FR 36920, Oct. 2, 1987, as amended at 69 FR 7118, Feb. 13, 2004]



Sec.  633.103  Regulatory authority.

    All required contract provisions contained in Form FHWA-1273 are 
requirements of regulations promulgated by the FHWA or other Federal 
agencies. The authority for each provision will be cited in the text of 
Form FHWA-1273.



Sec.  633.104  Availability.

    (a) Form FHWA-1273 will be maintained by the FHWA and as regulatory 
revisions occur, the form will be updated.
    (b) Current copies of Form FHWA-1273, Required Contract Provisions, 
will be made available to the SHAs by the FHWA.



         Subpart B_Federal-Aid Contracts (Appalachian Contracts)

    Authority: 40 U.S.C. App. 201, 402; 23 U.S.C. 315; 49 CFR 
1.48(b)(35).

    Source: 39 FR 35146, Sept. 30, 1974, unless otherwise noted.



Sec.  633.201  Purpose.

    The purpose of the regulations in this subpart is to establish 
policies and outline procedures for administering projects and funds for 
the Appalachian Development Highway System and Appalachian local access 
roads.



Sec.  633.202  Definitions.

    (a) The word Commission means the Appalachian Regional Commission 
(ARC) established by the Appalachian Regional Development Act of 1965, 
as amended (Act).
    (b) The term division administrator'' means the chief Federal 
Highway Administration (FHWA) official assigned

[[Page 259]]

to conduct FHWA business in a particular State.

[39 FR 35156, Sept. 30, 1974, as amended at 40 FR 49084, Oct. 21, 1975; 
41 FR 8769, Mar. 1, 1976]



Sec.  633.203  Applicability of existing laws, regulations, and directives.

    The provisions of title 23 U.S.C., that are applicable to the 
construction and maintenance of Federal-aid primary and secondary 
highways, and which the Secretary of Transportation determines are not 
inconsistent with the Act, shall apply, respectively, to the development 
highway system and the local access roads. In addition, the Regulations 
for the Administration of Federal-aid for Highways (title 23, Code of 
Federal Regulations) and directives implementing applicable provisions 
of title 23 U.S.C., where not inconsistent with the Act, shall be 
applicable to such projects.



Sec.  633.204  Fiscal allocation and obligations.

    (a) Federal assistance to any project under the Act shall be as 
determined by the Commission, but in no event shall such Federal 
assistance exceed 70 per centum of the cost of such a project.
    (b) The division administrator's authorization to proceed with the 
proposed work shall establish obligation of Federal funds with regard to 
a particular project.

[39 FR 35156, Sept. 30, 1974, as amended at 40 FR 49084, Oct. 21, 1975; 
41 FR 8769, Mar. 1, 1976]



Sec.  633.205  Prefinancing.

    (a) Under the provisions of subsection 201(h) of the Act, projects 
located on the Appalachian Development Highway System including 
preliminary engineering, right-of-way, and/or construction may be 
programed and advanced with interim State financing.
    (b) Program approvals, plans, specifications, and estimates (PS&E) 
approval, authorizations to proceed, concurrence in award of contracts, 
and all other notifications to the State of advancement of a project 
shall include the statement, ``There is no commitment or obligation on 
the part of the United States to provide funds for this highway 
improvement. However, this project is eligible for Federal reimbursement 
when sufficient funds are available from the amounts allocated by the 
Appalachian Regional Commission.''



Sec.  633.206  Project agreements.

    (a) Project agreements executed for projects under the Appalachian 
program shall contain the following paragraphs:
    (1) ``For projects constructed under section 201 of the Appalachian 
Regional Development Act of 1965, as amended, the State highway 
department agrees to comply with all applicable provisions of said Act, 
regulations issued thereunder, and policies and procedures promulgated 
by the Appalachian Regional Commission, and the Federal Highway 
Administration. Inasmuch as a primary objective of the Appalachian 
Regional Development Act of 1965 is to provide employment, the State 
highway department further agrees that in addition to the other 
applicable provisions of title 49, Code of Federal Regulations, part 21, 
Sec.  21.5(c)(1), and paragraphs (2)(iii) and (2)(v) of appendix C 
thereof, shall be applicable to all employment practices in connection 
with this project, and to the State's employment practices with respect 
to those employees connected with the Appalachian Highway Program.''
    (2) ``For projects constructed on a section of an Appalachian 
development route not already on the Federal-aid Primary System, the 
State highway department agrees to add the section to the Federal-aid 
Primary System prior to, or upon completion of, construction 
accomplished with Appalachian funds.''
    (b) For prefinanced projects, the following additional provision 
shall be incorporated into the project agreement: ``Project for 
Construction on the Appalachian Development Highway System in Advance of 
the Appropriation of Funds. This project, to be constructed pursuant to 
subsection 201(h) of the Appalachian Regional Development Act Amendments 
of 1967, will be constructed in accordance with all procedures and 
requirements and standards applicable to projects on the Appalachian 
Development Highway System

[[Page 260]]

financed with the aid of Appalachian funds. No obligation of Appalachian 
funds is created by this agreement, its purpose and intent being to 
provide that, upon application by the State highway department, and 
approval thereof by the Federal Highway Administration, any Appalachian 
development highway funds made available to the State by the Appalachian 
Regional Commission subsequent to the date of this agreement may be used 
to reimburse the State for the Federal share of the cost of work done on 
the project.''



Sec.  633.207  Construction labor and materials.

    (a) Construction and materials shall be in accordance with the State 
highway department standard construction specifications approved for use 
on Federal-aid primary projects and special provisions and supplemental 
specifications amendatory thereto approved for use on the specific 
projects.
    (b) The provisions of 23 U.S.C. 324 and of title VI of the Civil 
Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d-2000d-4) and the 
implementing regulations in 49 CFR part 21, including the provisions of 
Sec.  21.5(c)(1), and paragraphs (2)(iii) and (2)(v) of appendix C 
thereof relative to employment practices, shall be applicable to all 
types of contracts listed in appendix A.
    (c) The ``Required Contract Provisions, Appalachian Development 
Highway System and Local Access Roads Construction Contracts,'' Form PR-
1316 (appendix B), shall be included in all construction contracts 
awarded under the Act.
    (d) The required contract provisions set forth in Form PR-1317 
(appendix C) shall be included in all types of contracts described in 
appendix A, other than construction contracts.
    (e) In the design and construction of highways and roads under the 
Act, the State may give special preference to the use of mineral 
resource materials native to the Appalachian region. The provisions of 
Sec.  635.409 of this chapter shall not apply to projects under the Act 
to the extent such provisions are inconsistent with sections 201(d) and 
(e) of the Act.

[39 FR 35146, Sept. 30, 1974, as amended at 40 FR 49084, Oct. 21, 1975; 
41 FR 36204, Aug. 27, 1976]



Sec.  633.208  Maintenance.

    Maintenance of all highway projects constructed under the Act, 
whether on the development system or local access roads, shall be the 
responsibility of the State. The State may arrange for maintenance of 
such roads or portions thereof, by agreement with a local governmental 
unit.



Sec.  633.209  Notices to prospective Federal-aid construction contractors.

    The State highway department shall include the notices set forth in 
appendix D in all future bidding proposals for Appalachian Development 
System and Appalachian local access roads construction contracts.



Sec.  633.210  Termination of contract.

    All contracts exceeding $2,500 shall contain suitable provisions for 
termination by the State, including the manner in which the termination 
will be effected and the basis for settlement. In addition, such 
contracts shall describe conditions under which the contract may be 
terminated for default as well as conditions where the contract may be 
terminated because of circumstances beyond the control of the 
contractor.



Sec.  633.211  Implementation of the Clean Air Act and the Federal 
Water Pollution Control Act.

    Pursuant to regulations of the Environmental Protection Agency (40 
CFR part 15) implementing requirements with respect to the Clean Air Act 
and the Federal Water Pollution Control Act are included in appendix B 
to this part.

[40 FR 49084, Oct. 21, 1975]



 Sec. Appendix A to Subpart B of Part 633--Types of Contracts to Which 
               the Civil Rights Act of 1964 Is Applicable

    Section 324 of title 23 U.S.C., the Civil Rights Act of 1964, and 
the implementing

[[Page 261]]

regulations of the Department of Transportation (49 CFR part 21), 
including the provisions of paragraphs (2)(iii) and (2)(v) of appendix C 
thereof relative to employment practices, are applicable to the 
following types of contracts awarded by State highway departments, 
contractors, and first tier subcontractors, including those who supply 
materials and lease equipment:
    1. Construction.
    2. Planning.
    3. Research.
    4. Highway Safety.
    5. Engineering.
    6. Property Management.
    7. Fee contracts and other commitments with persons for services 
incidental to the acquisition of right-of-way including, but not limited 
to:
    a. Advertising contracts.
    b. Agreements for economic studies.
    c. Contracts for surveys and plats.
    d. Contracts for abstracts of title certificates and title 
insurance.
    e. Contracts for appraisal services and expert witness fees.
    f. Contracts to negotiate for the acquisition of right-of-way.
    g. Contracts for disposal of improvements and property management 
services.
    h. Contracts for employment of fee attorneys for right-of-way 
procurement, or preparation and trial of condemnation cases.
    i. Contracts for escrow and closing services.

[40 FR 49084, Oct. 21, 1975]



Sec. Appendix B to Subpart B of Part 633--Required Contract Provisions, 
     Appalachian Development Highway System and Local Access Roads 
                         Construction Contracts

     I.  Application.
    II.  Employment Preference.
   III.  Equal Opportunity: Employment Practices.
    IV.  Equal Opportunity: Selection of Subcontractors, Procurement of
          Materials, and Leasing of Equipment.
     V.  Nonsegregated Facilities.
    VI.  Payment of Predetermined Minimum Wages.
   VII.  Statements and Payrolls.
  VIII.  Record of Materials, Supplies and Labor.
    IX.  Subletting or Assigning the Contract.
     X.  Safety: Accident Prevention.
    XI.  False Statements Concerning Highway Projects.
   XII.  Implementation of Clean Air Act and Federal Water Pollution
          Control Act.
 

I. Application.
    1. These contract provisions shall apply to all work performed on 
the contract by the contractor with his own organization and with the 
assistance of workmen under his immediate superintendence and to all 
work performed on the contract by piecework, station work, or by 
subcontract.
    2. Except as otherwise provided in sections II, III, and IV hereof, 
the contractor shall insert in each of his subcontracts all of the 
stipulations contained in these Required Contract Provisions and also a 
clause requiring his subcontractors to include these Required Contract 
Provisions in any lower tier subcontracts which they may enter into, 
together with a clause requiring the inclusion of these provisions in 
any further subcontracts that may in turn be made. The Required Contract 
Provisions shall in no instance be incorporated by reference.
    3. A breach of any of the stipulations contained in these Required 
Contract Provisions may be grounds for termination of the contract.
    4. A breach of the following clauses may also be grounds for 
debarment as provided in 29 CFR 5.6(b):
    Section 1, paragraph 2.
    Section VI, paragraphs 1, 2, 3, 5 and 8a.
    Section VII, paragraphs 1, 5a, 5b and 5d.

II. Employment preference.
    1. During the performance of this contract, the contractor 
undertaking to do work which is, or reasonably may be, done as on-site 
work, shall give preference to qualified persons who regularly reside in 
the labor area as designated by the United States Department of Labor 
wherein the contract work is situated, or the subregion, or the 
Appalachian counties of the State wherein the contract work is situated, 
except:
    a. To the extent that qualified persons regularly residing in the 
area are not available.
    b. For the reasonable needs of the contractor to employ supervisory 
or specially experienced personnel necessary to assure an efficient 
execution of the contract work.
    c. For the obligation of the contractor to offer employment to 
present or former employees as the result of a lawful collective 
bargaining contract, provided that the number of nonresident persons 
employed under this subparagraph 1c shall not exceed 20 percent of the 
total number of employees employed by the contractor on the contract 
work, except as provided in subparagraph 4 below.
    2. The contractor shall place a job order with the State Employment 
Service indicating (a) the classifications of laborers, mechanics and 
other employees he anticipates will be required to perform the contract 
work, (b) the number of employees required in each classification, (c) 
the date on which he estimates such employees will be required, and (d) 
any other pertinent information required by the State Employment Service 
to complete the job order form. The job order may be placed with the 
State Employment Service in writing or by telephone. If during the 
course of the contract work, the information submitted by the contractor 
in the original job order is substantially modified, he shall promptly 
notify the State Employment Service.

[[Page 262]]

    3. The contractor shall give full consideration to all qualified job 
applicants referred to him by the State Employment Service. The 
contractor is not required to grant employment to any job applicants 
who, in his opinion, are not qualified to perform the classification of 
work required.
    4. If, within one week following the placing of a job order by the 
contractor with the State Employment Service, the State Employment 
Service is unable to refer any qualified job applicants to the 
contractor, or less than the number requested, the State Employment 
Service will forward a certificate to the contractor indicating the 
unavailability of applicants. Such certificate shall be made a part of 
the contractor's permanent project records. Upon receipt of this 
certificate, the contractor may employ persons who do not normally 
reside in the labor area to fill the positions covered by the 
certificate, notwithstanding the provisions of subparagraph 1c above.
    5. The contractor shall include the provisions of section II-1 
through II-4 in every subcontract for work which is, or reasonably may 
be, done as on-site work.

III. Equal opportunity: employment practices.

    During the performance of this contract, the contractor agrees as 
follows:
    a. The contractor will not discriminate against any employee or 
applicant for employment because of race, color, religion, sex, or 
national origin. The contractor will take affirmative action to ensure 
that applicants are employed, and that employees are treated during 
employment without regard to their race, color, religion, sex, or 
national origin. Such action shall include, but not be limited to the 
following: Employment, upgrading, demotion or transfer; recruitment or 
recruitment advertising; layoffs or termination; rates of pay or other 
forms of compensation; and selection of training, including 
apprenticeship. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices to be 
provided by the State highway department setting forth the provisions of 
this nondiscrimination clause.
    b. The contractor will, in all solicitations or advertisements for 
employees placed by or on behalf of the contractor, state that all 
qualified applicants will receive consideration for employment without 
regard to race, color, religion, sex, or national origin.
    c. The contractor will send to each labor union or representative of 
workers with which he has a collective bargaining agreement or other 
contract or understanding, a notice to be provided by the State highway 
department advising the said labor union or workers' representative of 
the contractor's commitments under this section III and shall post 
copies of the notice in conspicuous places available to employees and 
applicants for employment.
    d. The contractor will comply with all provisions of Executive Order 
11246 of September 24, 1965, and of the rules, regulations and relevant 
orders of the Secretary of Labor.
    e. The contractor will furnish all information and reports required 
by Executive Order 11246 of September 24, 1965, and by rules, 
regulations and orders of the Secretary of Labor or pursuant thereto, 
and will permit access to his books, records and accounts by the Federal 
Highway Administration and the Secretary of Labor for purposes of 
investigation to ascertain compliance with such rules, regulations and 
orders.
    f. In the event of the contractor's noncompliance with the 
nondiscrimination clauses of this contract or with any of the said 
rules, regulations or orders, this contract may be canceled, terminated 
or suspended in whole or in part and the contractor may be declared 
ineligible for further Government contracts or federally-assisted 
construction contracts in accordance with procedures authorized in 
Executive Order 11246 of September 24, 1965, and such other sanctions 
may be imposed and remedies invoked as provided in Executive Order 11246 
of September 24, 1965, or by rule, regulation or order of the Secretary 
of Labor, or as otherwise provided by law.
    g. The contractor will include the provisions of this section III in 
every subcontract or purchase order unless exempted by rules, 
regulations or orders of the Secretary of Labor issued pursuant to 
section 204 of Executive Order 11246 of September 24, 1965, so that such 
provisions will be binding upon each subcontractor or vendor. The 
contractor will take such action with respect to any subcontract or 
purchase order as the State Highway Department or the Federal Highway 
Administration may direct as a means of enforcing such provisions 
including sanctions for noncompliance: Provided, however, That in the 
event a contractor becomes involved in, or is threatened with litigation 
with a subcontractor or vendor as a result of such direction by the 
Federal Highway Administration, the contractor may request the United 
States to enter into such litigation to protect the interests of the 
United States.

IV. Equal opportunity selection of subcontractors, procurement of 
          materials, and leasing of equipment.

    During the performance of this contract, the contractor, for itself, 
its assignees and successors in interest (hereinafter referred to as the 
contractor), agrees as follows:
    1. Compliance with regulations. The contractor shall comply with the 
provisions of

[[Page 263]]

23 U.S.C. 324 and with the regulations relative to nondiscrimination in 
Federally-assisted programs of the Department of Transportation 
(hereinafter, ``DOT'') title 49, Code of Federal Regulations, part 21, 
as they may be amended from time to time (hereinafter referred to as the 
Regulations), which are herein incorporated by reference and made a part 
of this contract.
    2. Nondiscrimination. The contractor, with regard to the work 
performed by it during the contract, shall not discriminate on the 
grounds of race, color, sex, or national origin in the selection and 
retention of subcontractors, including procurements of materials and 
leases of equipments. The contractor shall not participate either 
directly or indirectly in the discrimination prohibited by section 21.5 
of the Regulations, including employment practices.
    3. Solicitations for subcontracts including procurement of materials 
and equipment. In all solicitations either by competitive bidding or 
negotiation made by the contractor for work to be performed under a 
subcontract, including procurements of materials or leases of equipment, 
each potential subcontractor or supplier, shall be notified by the 
contractor of the contractor's obligations under this contract and the 
Regulations relative to nondiscrimination on the grounds of race, color, 
sex, or national origin.
    4. Information and reports. The contractor shall provide all 
information and reports required by the Regulations, or directives 
issued pursuant thereto, and shall permit access to its books, records, 
accounts, other sources of information, and its facilities as may be 
determined by the State highway department or the Federal Highway 
Administration to be pertinent to ascertain compliance with such 
Regulations, orders and instructions. Where any information required of 
a contractor is in the exclusive possession of another who fails or 
refuses to furnish this information, the contractor shall so certify to 
the State highway department, or the Federal Highway Administration, as 
appropriate, and shall set forth what efforts it has made to obtain the 
information.
    5. Sanctions for noncompliance. In the event of the contractor's 
noncompliance with the nondiscrimination provisions of this contract, 
the State highway department shall impose such contract sanctions as it 
or the Federal Highway Administration may determine to be appropriate, 
including, but not limited to:
    a. Withholding of payments to the contractor under the contract 
until the contractor complies, and/or
    b. Cancellation, termination or suspension of the contract, in whole 
or in part.
    6. Incorporation of provisions. The contractor will include the 
provisions of paragraphs (1) through (6) in every subcontract, including 
procurements of materials and leases of equipment, unless exempt by the 
Regulations, or directives issued pursuant thereto. The contractor shall 
take such action with respect to any subcontract or procurement, as the 
State highway department or the Federal Highway Administration may 
direct as a means of enforcing such provisions including sanctions for 
noncompliance: Provided, however, That, in the event a contractor 
becomes involved in, or is threatened with, litigation with a 
subcontractor or supplier, as a result of such direction, the contractor 
may request the State to enter into such litigation to protect the 
interests of the State, and, in addition, the contractor may request the 
United States to enter into such litigation to protect the interests of 
the United States.

V. Nonsegregated facilities.

    (Applicable to Federal-aid construction contracts and related 
subcontracts exceeding $10,000 which are not exempt from the Equal 
Opportunity clause.)
    By submission of this bid, the execution of this contract or 
subcontract, or the consummation of this material supply agreement, as 
appropriate, the bidder, Federal-aid construction contractor, 
subcontractor, or material supplier, as appropriate, certifies that he 
does not maintain or provide for his employees any segregated facilities 
at any of his establishments, and that he does not permit his employees 
to perform their services at any location, under his control, where 
segregated facilities are maintained. He certifies further that he will 
not maintain or provide for his employees any segregated facilities at 
any of his establishments, and that he will not permit his employees to 
perform their services at any location, under his control, where 
segregated facilities are maintained. He agrees that a breach of this 
certification is a violation of the Equal Opportunity clause in this 
contract. As used in this certification, the term segregated facilities 
means any waiting rooms, work areas, restrooms and washrooms, 
restaurants and other eating areas, timeclocks, locker rooms and other 
storage or dressing areas, parking lots, drinking fountains, recreation 
or entertainment areas, transportation, and housing facilities provided 
for employees which are segregated by explicit directive or are in fact 
segregated on the basis of race, creed, color, or national origin, 
because of habit, local custom, or otherwise. He agrees that (except 
where he has obtained identical certifications from proposed 
subcontractors and material suppliers for specific time periods), he 
will obtain identical certifications from proposed subcontractors or 
material suppliers prior to the award of subcontracts or

[[Page 264]]

the consummation of material supply agreements, exceeding $10,000 which 
are not exempt from the provisions of the Equal Opportunity clause, and 
that he will retain such certification in his files.

VI. Payment of predetermined minimum wages.

    1. General. All mechanics and laborers employed or working upon the 
site of the work will be paid unconditionally and not less than once a 
week, and without subsequent deduction or rebate on any account, except 
such payroll deductions as are permitted by regulations issued by the 
Secretary of Labor under the Copeland Act (29 CFR part 3), the full 
amounts due at time of payment computed at wage rates not less than 
those contained in the wage determination decision of the Secretary of 
Labor which is attached hereto and made a part thereof, regardless of 
any contractual relationship which may be alleged to exist between the 
contractor and such laborers and mechanics; and the wage determination 
decision shall be posted by the contractor at the site of the work in a 
prominent place where it can be easily seen by the workers. For the 
purpose of this clause, contributions made or costs reasonably 
anticipated under section 1(b)(2) of the Davis-Bacon Act on behalf of 
laborers or mechanics are considered wages paid to such laborers or 
mechanics, subject to the provisions of section VI, paragraph 3b, 
hereof. Also for the purpose of this clause, regular contributions made 
or costs incurred for more than a weekly period under plans, funds, or 
programs, but covering the particular weekly period, are deemed to be 
constructively made or incurred during such weekly period.
    2. Classifications--a. The State highway department contracting 
officer shall require that any class of laborers or mechanics which is 
not listed in the wage determination and which is to be employed under 
the contract, shall be classified or reclassified conformably to the 
wage determination, and a report of the action taken shall be sent by 
the State highway department contracting officer to the Secretary of 
Labor.
    b. In the event the interested parties cannot agree on the proper 
classification or reclassification of a particular class of laborers and 
mechanics to be used, the question accompanied by the recommendation of 
the State highway department contracting officer shall be referred to 
the Secretary for final determination.
    3. Payment of fringe benefits--a. The State highway department 
contracting officer shall require, whenever the minimum wage rate 
prescribed in the contract for a class of laborers or mechanics includes 
a fringe benefit which is not expressed as an hourly wage rate and the 
contractor is obligated to pay a cash equivalent of such a fringe 
benefit, an hourly cash equivalent thereof to be established. In the 
event the interested parties cannot agree upon a cash equivalent of the 
fringe benefits, the question, accompanied by the recommendation of the 
contracting officer, shall be referred to the Secretary of Labor for 
determination.
    b. If the contractor does not make payments to a trustee or other 
third person, he may consider as part of the wage of any laborer or 
mechanic the amount of any costs reasonably anticipated in providing 
benefits under a plan or program of a type expressly listed in the wage 
determination decision of the Secretary of Labor which is part of this 
contract: Provided, however, The Secretary of Labor has found, upon the 
written request of the contractor, that the applicable standards of the 
Davis-Bacon Act have been met. The Secretary of Labor may require the 
contractor to set aside in a separate account assets for the meeting of 
obligations under the plan or program.
    4. Payment of excess wages. While the wage rates shown are the 
minimum rates required by the contract to be paid during its life, this 
is not a representation that labor can be obtained at these rates. No 
increase in the contract price shall be allowed or authorized on account 
of the payment of wage rates in excess of those listed herein.
    5. Apprentices and trainees (Programs of Department of Labor). a. 
Apprentices will be permitted to work at less than the predetermined 
rate for the work they performed when they are employed and individually 
registered in a bona fide apprenticeship program registered with the 
U.S. Department of Labor, Manpower Administration, Bureau of 
Apprenticeship and Training, or with a State Apprenticeship Agency 
recognized by the Bureau, or if a person is employed in his first 90 
days of probationary employment as an apprentice in such an 
apprenticeship program, who is not individually registered in the 
program, but who has been certified by the Bureau of Apprenticeship and 
Training or a State Apprenticeship Agency (where appropriate) to be 
eligible for probationary employment as an apprentice. The allowable 
ratio of apprentices to journeymen in any craft classification shall not 
be greater than the ratio permitted to the contractor as to his entire 
work force under the registered program. Any employee listed on a 
payroll at an apprentice wage rate, who is not a trainee as defined in 
29 CFR 5.2(c)(2) or is not registered or otherwise employed as stated 
above, shall be paid the wage rate determined by the Secretary of Labor 
for the classification of work he actually performed. The contractor or 
subcontractor will be required to furnish to the State highway 
department or to a representative of the Wage-Hour Division of the U.S. 
Department of Labor written evidence of the registration of his program 
and apprentices as well as the appropriate ratios and wage rates 
(expressed

[[Page 265]]

in percentages of the journeyman hourly rates), for the area of 
construction prior to using any apprentices on the contract work. The 
wage rate paid apprentices shall be not less than the appropriate 
percentage of the journeyman's rate contained in the applicable wage 
determination.
    b. Trainees, except as provided in 29 CFR 5.15, will not be 
permitted to work at less than the predetermined rate for the work 
performed unless they are employed pursuant to and individually 
registered in a program which has received prior approval, evidenced by 
formal certification, by the U.S. Department of Labor, Manpower 
Administration, Bureau of Apprenticeship and Training. The ratio of 
trainees to journeymen shall not be greater than permitted under the 
plan approved by the Bureau of Apprenticeship and Training. Every 
trainee must be paid at not less than the rate specified in the approved 
program for his level of progress. Any employee listed on the payroll at 
a trainee rate who is not registered and participating in a training 
plan approved by the Bureau of Apprenticeship and Training shall be paid 
not less than the wage rate determined by the Secretary of Labor for the 
classification of work he actually performed. The contractor or 
subcontractor will be required to furnish the State highway department 
or a representative of the Wage-Hour Division of the U.S. Department of 
Labor written evidence of the certification of his program, the 
registration of the trainees, and the ratios and wage rates prescribed 
in that program. In the event the Bureau of Apprenticeship and Training 
withdraws approval of a training program, the contractor will no longer 
be permitted to utilize trainees at less than the applicable 
predetermined rate for the work performed until an acceptable program is 
approved.
    c. The utilization of apprentices, trainees and journeymen shall be 
in conformity with the equal employment opportunity requirements of 
Executive Order 11246, as amended, and 29 CFR part 30.
    6. Apprentices and trainees (Programs of Department of 
Transportation). Apprentices and trainees working under apprenticeship 
and skill training programs which have been certified by the Secretary 
of Transportation as promoting equal opportunity in connection with 
Federal-aid highway construction programs are not subject to the 
requirements of section VI, paragraph 5 above. The straight time hourly 
wage rates for apprentices and trainees under such programs will be 
established by the particular programs.
    7. Withholding for unpaid wages. The State highway department 
contracting officer may withhold or cause to be withheld from the 
contractor so much of the accrued payments or advances as may be 
considered necessary to pay laborers, mechanics, (including apprentices 
and trainees) watchmen, or guards employed by the contractor or any 
subcontractor on the work the full amount of wages required by the 
contract. In the event of failure to pay any laborer, mechanic, 
(including apprentices and trainees) watchman or guard employed or 
working on the site of the work, all or part of the wages required by 
the contract, the State highway department contracting officer may, 
after written notice to the contractor, take such action as may be 
necessary to cause the suspension of any further payment, advance, or 
guarantee of funds until such violations have ceased.
    8. Overtime requirements. a. No contractor or subcontractor 
contracting for any part of the contract work which may require or 
involve the employment of laborers, mechanics, watchmen or guards 
(including apprentices and trainees described in paragraphs 5 and 6 
above) shall require or permit any laborer, mechanic, watchman or guard 
in any workweek in which he is employed on such work, to work in excess 
of eight hours in any calendar day or in excess of forty hours in such 
workweek unless such laborer, mechanic, watchman or guard receives 
compensation at a rate not less than one and one-half times his basic 
rate of pay for all hours worked in excess of eight hours in any 
calendar day or in excess of forty hours in such workweek, as the case 
may be.
    b. In the event of any violation of paragraph 8a, the contractor and 
any subcontractor responsible therefor shall be liable to any affected 
employee for his unpaid wages. In addition, such contractor and 
subcontractor shall be liable to the United States for liquidated 
damages. Such liquidated damages shall be computed with respect to each 
individual laborer, mechanic, watchman or guard employed in violation of 
paragraph 8a, in the sum of $10 for each calendar day on which such 
employee was required or permitted to work in excess of eight hours or 
in excess of the standard workweek of forty hours without payment of the 
overtime wages required by paragraph 8a.
    c. The State highway department contracting officer may withhold or 
cause to be withheld, from any moneys payable on account of work 
performed by the contractor or subcontractor, such sums as may 
administratively be determined to be necessary to satisfy any 
liabilities of such contractor or subcontractor for liquidated damages 
as provided in paragraph 8b.

VII. Statements and payrolls.

    1. Compliance with Copeland Regulations (29 CFR part 3). The 
contractor shall comply with the Copeland Regulations (29 CFR part 3) of 
the Secretary of Labor which are herein incorporated by reference.
    2. Weekly statement. Each contractor or subcontractor shall furnish 
each week a statement to the State highway department resident engineer 
with respect to the wages

[[Page 266]]

paid each of its employees, including apprentices and trainees described 
in section VI, paragraphs 5 and 6, and watchmen and guards on work 
covered by the Copeland Regulations during the preceding weekly payroll 
period. The statement shall be executed by the contractor or 
subcontractor or by an authorized officer or employee of the contractor 
or subcontractor who supervises the payment of wages. Contractors and 
subcontractors must use the certification set forth on U.S. Department 
of Labor Form WH-348, or the same certification appearing on the reverse 
of Optional U.S. Department of Labor Form WH-347, or on any form with 
identical wording.
    3. Final labor summary. The contractor and each subcontractor shall 
furnish, upon the completion of the contract, a summary of all 
employment, indicating for the completed project the total hours worked 
and the total amount earned. This data shall be submitted to the State 
highway department resident engineer on Form PR-47 together with the 
data required in section VIII, hereof, relative to materials and 
supplies.
    4. Final certificate. Upon completion of the contract, the 
contractor shall submit to the State highway department contracting 
officer, for transmission to the Federal Highway Administration with the 
voucher for final payment for any work performed under the contract, a 
certificate concerning wages and classifications for laborers, 
mechanics, watchmen and guards employed on the project, in the following 
form:

                                * * * * *

    The undersigned, contractor on

                              (Project No.)

hereby certifies that all laborers, mechanics, apprentices, trainees, 
watchmen and guards employed by him or by any subcontractor performing 
work under the contract on the project have been paid wages at rates not 
less than those required by the contract provisions, and that the work 
performed by each such laborer, mechanic, apprentice or trainee 
conformed to the classifications set forth in the contract or training 
program provisions applicable to the wage rate paid.

Signature and title_____________________________________________________

                                * * * * *

    5. Payrolls and payroll records--a. Payrolls and basic records 
relating thereto will be maintained during the course of the work and 
preserved for a period of three years thereafter for all laborers, 
mechanics, apprentices, trainees, watchmen and guards working at the 
site of the work.
    b. The payroll records shall contain the name, social security 
number and address of each such employee, his correct classification, 
rates of pay (including rates of contributions or costs anticipated of 
the types described in section 1(b)(2) of the Davis-Bacon Act), daily 
and weekly number of hours worked, deductions made and actual wages 
paid. Whenever the Secretary of Labor, pursuant to section VI, paragraph 
3.b., has found that the wages of any laborer or mechanic include the 
amount of any costs reasonably anticipated in providing benefits under a 
plan or program described in section I(b)(2)(B) of the Davis-Bacon Act, 
the contractor shall maintain records which show that the commitment to 
provide such benefits is enforceable, that the plan or program is 
financially responsible, and that the plan or program has been 
communicated in writing to the laborers or mechanics affected, and 
records which show the costs anticipated or the actual cost incurred in 
providing such benefits.
    c. The payrolls shall contain the following information:
    1. The employee's full name, address and social security number and 
a notation indicating whether the employee does, or does not, normally 
reside in the labor area as defined in section II, paragraph 1.a. (The 
employee's full name and social security number need only appear on the 
first payroll on which his name appears. The employee's address need 
only be shown on the first submitted payroll on which the employee's 
name appears, unless a change of address necessitates a submittal to 
reflect the new address.)
    2. The employee's classification.
    3. Entries indicating the employee's basic hourly wage rate and, 
where applicable, the overtime hourly wage rate. The payroll should 
indicate separately the amounts of employee and employer contributions 
to fringe benefits funds and/or programs. Any fringe benefits paid to 
the employee in cash must be indicated. There is no prescribed or 
mandatory form for showing the above information on payrolls.
    4. The employee's daily and weekly hours worked in each 
classification, including actual overtime hours worked (not adjusted).
    5. The itemized deductions made and
    6. The net wages paid.
    d. The contractor will submit weekly a copy of all payrolls to the 
State highway department resident engineer. The copy shall be 
accompanied by a statement signed by the employer or his agent 
indicating that the payrolls are correct and complete, that the wage 
rates contained therein are not less than those determined by the 
Secretary of Labor and the classifications set forth for each laborer or 
mechanic conform with the work he performed. Submission of a weekly 
statement which is required under this contract by section VII, 
paragraph 2, and the Copeland Regulations of the Secretary of

[[Page 267]]

Labor (29 CFR part 3) and the filing with the initial payroll or any 
subsequent payroll of a copy of any findings by the Secretary of Labor 
pursuant to section VI, paragraph 3b, shall satisfy this requirement. 
The prime contractor shall be responsible for the submission of copies 
of payrolls of all subcontractors. The contractor will make the records 
required under the labor standards clauses of the contract available for 
inspection by authorized representatives of the State highway 
department, the Federal Highway Administration and the Department of 
Labor, and will permit such representatives to interview employees 
during working hours on the job.
    e. The wages of labor shall be paid in legal tender of the United 
States, except that this condition will be considered satisfied if 
payment is made by negotiable check, on a solvent bank, which may be 
cashed readily by the employee in the local community for the full 
amount, without discount or collection charges of any kind. Where checks 
are used for payment, the contractor shall make all necessary 
arrangements for them to be cashed and shall given information regarding 
such arrangements.
    f. No fee of any kind shall be asked or accepted by the contractor 
or any of his agents from any person as a condition of employment on the 
project.
    g. No laborers shall be charged for any tools used in performing 
their respective duties except for reasonably avoidable loss or damage 
thereto.
    h. Every employee on the work covered by this contract shall be 
permitted to lodge, board and trade where and with whom he elects and 
neither the contractor nor his agents, nor his employees shall, directly 
or indirectly, require as a condition of employment that an employee 
shall lodge, board or trade at a particular place or with a particular 
person.
    i. No charge shall be made for any transportation furnished by the 
contractor, or his agents, to any person employed on the work.
    j. No individual shall be employed as a laborer or mechanic on this 
contract except on a wage basis, but this shall not be construed to 
prohibit the rental of teams, trucks, or other equipment from 
individuals.

VIII. Record of materials, supplies and labor.

    1. The contractor shall maintain a record of the total cost of all 
materials and supplies purchased for and incorporated in the work, and 
also of the quantities of those specific materials and supplies listed 
on Form PR-47 and in the units shown. Upon completion of the contract, 
this record, together with the final labor summary required in section 
VII, paragraph 3, hereof, shall be transmitted to the State highway 
department resident engineer for the project on Form PR-47 in accordance 
with instructions attached thereto, which will be furnished for this 
purpose upon request. The quantities for the listed items shall be 
reported separately for roadway and for structures over 20 feet long as 
measured along the centerline of the roadway.
    2. The contractor shall become familiar with the list of specific 
materials and supplies contained in Form PR-47 prior to the commencement 
of work under this contract. Any additional materials information 
required will be solicited through revisions of Form PR-47 with 
attendant explanations.
    3. Where subcontracts are involved the contractor shall submit 
either a single report covering work both by himself and all his 
subcontractors, or he may submit separate reports for himself and for 
each of his subcontractors.

IX. Subletting or assigning the contract.

    1. The contractor shall perform with his own organization contract 
work amounting to not less than 50 percent of the original total 
contract price, except that any items designated by the State as 
Specialty Items may be performed by subcontract and the amount of any 
such Specialty Items so performed may be deducted from the original 
total contract price before computing the amount of work required to be 
performed by the contractor with his own organization.
    a. His own organization shall be construed to include only workmen 
employed and paid directly by the prime contractor and equipment owned 
or rented by him, with or without operators.
    b. Specialty items shall be construed to be limited to work that 
requires highly specialized knowledge, craftsmanship or equipment not 
ordinarily available in contracting organizations qualified to bid on 
the contract as a whole and in general are to be limited to minor 
components of the overall contract.
    2. In addition to the 50 percent requirements set forth in paragraph 
1 above, the contractor shall furnish (a) a competent superintendent or 
foreman who is employed by him, who has full authority to direct 
performance of the work in accordance with the contract requirements, 
and who is in charge of all construction operations (regardless of who 
performs the work), and (b) such other of his own organizational 
capability and responsibility (supervision, management, and engineering 
services) as the State highway department contracting officer determines 
is necessary to assure the performance of the contract.
    3. The contract amount upon which the 50 percent requirement set 
forth in paragraph 1 is computed includes the cost of materials and 
manufactured products which are to be purchased or produced by the 
contractor under the contract provisions.
    4. Any items that have been selected as Specialty Items for the 
contract are listed as

[[Page 268]]

such in the Special Provisions, bid schedule, or elsewhere in the 
contract documents.
    5. No portion of the contract shall be sublet, assigned or otherwise 
disposed of except with the written consent of the State highway 
department contracting officer, or his authorized representative, and 
such consent when given shall not be construed to relieve the contractor 
of any responsibility for the fulfillment of the contract. Request for 
permission to sublet, assign or otherwise dispose of any portion of the 
contract shall be in writing and accompanied by (a) a showing that the 
organization which will perform the work is particularly experienced and 
equipped for such work, and (b) an assurance by the contractor that the 
labor standards provisions set forth in thiscontract shall apply to 
labor performed on all work encompassed by the request.

X. Safety: Accident prevention.

    In the performance of this contract, the contractor shall comply 
with all applicable Federal, State and local laws governing safety, 
health and sanitation. The contractor shall provide all safeguards, 
safety devices and protective equipment and take any other needed 
actions, on his own responsibility, or as the State highway department 
contracting officer may determine, reasonably necessary to protect the 
life and health of employees on the job and the safety of the public and 
to protect property in connection with the performance of the work 
covered by the contract.
    It is a condition of this contract, and shall be made a condition of 
each subcontract entered into pursuant to this contract, that the 
contractor and any subcontractor shall not require any laborer or 
mechanic employed in performance of the contract to work in surroundings 
or under working conditions which are unsanitary, hazardous, or 
dangerous to his health or safety, as determined under construction 
safety and health standards (title 29, Code of Federal Regulations, part 
1926, formerly part 1518, as revised from time to time), promulgated by 
the United States Secretary of Labor, in accordance with section 107 of 
the Contract Work Hours and Safety Standards Act (83 Stat. 96).

XI. False statements concerning highway projects.

    In order to assure high quality and durable construction in 
conformity with approved plans and specifications and a high degree of 
reliability on statements and representations made by engineers, 
contractors, suppliers, and workers on Federal-aid highway projects, it 
is essential that all persons concerned with the project perform their 
functions as carefully, thoroughly and honestly as possible. Willfull 
falsification, distortion, or misrepresentation with respect to any 
facts related to the project is a violation of Federal law. To prevent 
any misunderstanding regarding the seriousness of these and similar 
acts, the following notice shall be posted on each Federal-aid highway 
project in one or more places where it is readily available to all 
personnel concerned with the project:

                                * * * * *

     Notice to All Personnel Engaged on Federal-Aid Highway Projects

    Title 18 U.S.C., section 1020, reads as follows:
    ``Whoever, being an officer, agent, or employee of the United 
States, or of any State or Territory, or whoever, whether a person, 
association, firm, or corporation, knowingly makes any false statement, 
false representation, or false report as to the character, quality, 
quantity, or cost of the material used or to be used, or the quantity or 
quality of the work performed or to be performed or the costs thereof in 
connection with the submission of plans, maps, specifications, 
contracts, or costs of construction of any highway or related project 
submitted for approval to the Secretary of Transportation; or
    ``Whoever knowingly makes any false statement, false representation, 
false report, or false claim with respect to the character, quality, 
quantity, or cost of any work performed or to be performed, or materials 
furnished or to be furnished, in connection with the construction of any 
highway or related project approved by the Secretary of Transportation; 
or
    ``Whoever knowingly makes any false statement or false 
representation as to a material fact in any statement, certificate, or 
report submitted pursuant to provisions of the Federal-Aid Road Act 
approved July 1, 1916 (39 Stat. 355), as amended and supplemented;
    ``Shall be fined not more than $10,000 or imprisoned not more than 
five years, or both.''

XII. Implementation of Clean Air Act and Federal Water Pollution Control 
          Act (applicable to contracts and subcontracts which exceed 
          $100,000).

    1. The contractor stipulates that any facility to be utilized in the 
performance of this contract, unless such contract is exempt under the 
Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L. 
91-604), and under the Federal Water Pollution Control Act, as amended 
(33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500), Executive Order 
11738, and regulations in implementation thereof (40 CFR part 15), is 
listed not on the date of contract award, on the U.S. Environmental 
Protection Agency (EPA) List of Violating Facilities Pursuant to 40 CFR 
part 15.20.
    2. The contractor agrees to comply with all the requirements of 
section 114 of the Clean

[[Page 269]]

Air Act and section 308 of the Federal Water Pollution Control Act and 
all regulations and guidelines listed thereunder.
    3. The contractor shall promptly notify the State highway department 
of the receipt of any communication from the Director, Office of Federal 
Activities, EPA, indicating that a facility to be utilized for the 
contract is under consideration to be listed on the EPA List of 
Violating Facilities.
    4. The contractor agrees to include or cause to be included the 
requirements of subparagraphs 1 through 4 of this paragraph XII in every 
subcontract which exceeds $100,000, and further agrees to take such 
action as Government may direct as a means of enforcing such 
requirements.

[40 FR 49084, Oct. 21, 1975]



 Sec. Appendix C to Subpart B of Part 633--Additional Required Contract 
  Provisions, Appalachian Development Highway System and Local Access 
            Roads Contracts Other Than Construction Contracts

Equal Opportunity: Employment Practices and Selection of Subcontractors, 
            Suppliers of Materials, and Lessors of Equipment

    During the performance of this contract, the contractor agrees as 
follows:

1. Compliance with regulations.
    The contractor will comply with the provisions of 23 U.S.C. 324 and 
with the Regulations of the Department of Transportation relative to 
nondiscrimination in Federally-assisted programs of the Department of 
Transportation (Title 49, Code of Federal Regulations, part 21, 
hereinafter referred to as the regulations), which are herein 
incorporated by reference and made a part of this contract.

2. Employment practices
    a. The contractor will not discriminate against any employee or 
applicant for employment because of race, color, sex, or national 
origin. The contractor will take affirmative action to ensure that 
applicants are employed, and that employees are treated during 
employment without regard to their race, color, sex, or national origin. 
Such action shall include, but not be limited to the following: 
recruitment or recruitment advertising, hiring, firing, upgrading, 
promotion, demotion, transfer, layoff, termination, rates of pay or 
other forms of compensation or benefits, selection for training or 
apprenticeship, use of facilities and treatment of employees. The 
contractor agrees to post in conspicuous places, available to employees 
and applicants for employment, notices setting forth the provisions of 
this employment practices clause.
    b. The contractor will, in all solicitations or advertisements for 
employees placed by or on behalf of the contractor, state that all 
qualified applicants will receive consideration for employment without 
regard to race, color, sex, or national origin.
    c. The contractor will send to each labor union or representative of 
workers with which he has a collective bargaining agreement or other 
contract or understanding, a notice advising the said labor union or 
workers representative of the contractor's commitments under the 
employment practices provision, and shall post copies of the notice in 
conspicuous places available to employees and applicants for employment.

3. Selection of subcontractors, procurement of materials and leasing of 
          equipment.
    a. The contractor, with regard to the work performed by him after 
award and prior to completion of the contract work, will not 
discriminate on the ground of race, color, sex, or national origin in 
the selection and retention of subcontractors, including procurements of 
materials and leases of equipment. The contractor will not participate 
either directly or indirectly in the discrimination prohibited by 
Section 21.5 of the Regulations.
    b. In all solicitations either by competitive bidding or negotiation 
made by the contractor for work to be performed under a subcontract, 
including procurements of materials or leases of equipment, each 
potential subcontractor, supplier, or lessor shall be notified by the 
contractor of the contractor's obligations under this contract and the 
Regulations relative to nondiscrimination on the ground of race, color, 
sex, or national origin.

4. Information and reports.
    The contractor will provide all information and reports required by 
the Regulations, or orders and instructions issued pursuant thereto, and 
will permit access to its books, records, accounts, other sources of 
information, and its facilities as may be determined by the State 
highway department or the Federal Highway Administration to be pertinent 
to ascertain compliance with such Regulations, orders and instructions. 
Where any information required of a contractor is in the exclusive 
possession of another who fails or refuses to furnish this information, 
the contractor shall so certify to the State highway department, or the 
Federal Highway Administration as appropriate, and shall set forth what 
efforts it has made to obtain the information.

5. Incorporation of provisions.
    The contractor will include these additional required contract 
provisions in every

[[Page 270]]

subcontract, including procurements of materials and leases of 
equipment, unless exempt by the Regulations or orders, or instructions 
issued pursuant thereto. The contractor will take such action with 
respect to any subcontract, procurement, or lease as the State highway 
department or the Federal Highway Administration may direct as a means 
of enforcing such provisions including sanctions for non-compliance: 
Provided, however, That, in the event a contractor becomes involved in, 
or is threatened with, litigation with a subcontractor, supplier, or 
lessor as a result of such directed action, the contractor may request 
the State to enter into such litigation to protect the interest of the 
State, and, in addition, the contractor may request the United States to 
enter into such litigation to protect the interest of the United States.

6. Sanctions for noncompliance.
    In the event of the contractor's noncompliance with sections 1 
through 5 above, the State highway department shall impose such contract 
sanctions as it or the Federal Highway Administration may determine to 
be appropriate, including but not limited to.
    a. Withholding of payments to the contractor under the contract 
until the contractor complies, and/or
    b. Cancellation, termination or suspension of the contract in whole 
or in part.

[40 FR 49088, Oct. 21, 1975]



 Sec. Appendix D to Subpart B of Part 633--Federal-Aid Proposal Notices

       Notices to Prospective Federal-Aid Construction Contractors

I. Certification of nonsegregated facilities.
    (a) A Certification of Nonsegregated Facilities, as required by the 
May 9, 1967, Order of the Secretary of Labor (32 FR 7439, May 19, 1967) 
on Elimination of Segregated Facilities (is included in the proposal and 
must be submitted prior to the award of a Federal-aid highway 
construction contract exceeding $10,000 which is not exempt from the 
provisions of the Equal Opportunity clause).
    (b) Bidders are cautioned as follows: By signing this bid, the 
bidder will be deemed to have signed and agreed to the provisions of the 
``Certification of Nonsegregated Facilities'' in this proposal. This 
certification provides that the bidder does not maintain or provide for 
his employees facilities which are segregated on a basis of race, creed, 
color, or national origin, whether such facilities are segregated by 
directive or on a de facto basis. The certification also provides that 
the bidder will not maintain such segregated facilities.
    (c) Bidders receiving Federal-aid highway construction contract 
awards exceeding $10,000 which are not exempt from the provisions of the 
Equal Opportunity clause, will be required to provide for the forwarding 
of the following notice to prospective subcontractors for construction 
contracts and material suppliers where the subcontracts or material 
supply agreements exceed $10,000 and are not exempt from the provisions 
of the Equal Opportunity clause.

     Notice to Prospective Subcontractors and Material Suppliers of 
        Requirement for Certification of Nonsegregated Facilities

    (a) A Certification of Nonsegregated Facilities is required by the 
May 9, 1967, Order of the Secretary of Labor (32 FR 7431, May 19, 1967) 
on Elimination of Segregated Facilities, which is included in the 
proposal, or attached hereto, must be submitted by each subcontractor 
and material supplier prior to the award of the subcontract or 
consummation of a material supply agreement if such subcontract or 
agreement exceeds $10,000 and is not exempt from the provisions of the 
Equal Opportunity clause.
    (b) Subcontractors and material suppliers are cautioned as follows: 
By signing the subcontract or entering into a material supply agreement, 
the subcontractor or material supplier will be deemed to have signed and 
agreed to the provisions of the ``Certification of Nonsegregated 
Facilities'' in the subcontract or material supply agreement. This 
certification provides that the subcontractor or material supplier does 
not maintain or provide for his employees facilities which are 
segregated on the basis of race, creed, color, or national origin, 
whether such facilities are segregated by directive or on a de facto 
basis. The certification also provides that the subcontractor or 
material supplier will not maintain such segregated facilities.
    (c) Subcontractors or material suppliers receiving subcontract 
awards or material supply agreements exceeding $10,000 which are not 
exempt from the provisions of the Equal Opportunity clause will be 
required to provide for the forwarding of this notice to prospective 
subcontractors for construction contracts and material suppliers where 
the subcontracts or material supply agreements exceed $10,000 and are 
not exempt from the provisions of the Equal Opportunity clause.

II. Implementation of Clean Air Act.
    (a) By signing this bid, the bidder will be deemed to have 
stipulated as follows:
    (1) That any facility to be utilized in the performance of this 
contract, unless such contract is exempt under the Clean Air Act, as 
amended (42 U.S.C. 1857 et seq., as by Pub. L. 91-604), Executive order 
11738, and regulations in implementation thereof (40 CFR part 15, is not 
listed on the U.S. Environmental Protection Agency (EPA) List of 
Violating Facilities pursuant to 40 CFR 15.20.
    (2) That the State highway department shall be promptly notified 
prior to contract

[[Page 271]]

award of the receipt by the bidder of any communication from the 
Director, Office of Federal Activities, EPA, indicating that a facility 
to be utilized for the contract is under consideration to be listed on 
the EPA List of Violating Facilities.



PART 635_CONSTRUCTION AND MAINTENANCE--Table of Contents



                      Subpart A_Contract Procedures

Sec.
635.101 Purpose.
635.102 Definitions.
635.103 Applicability.
635.104 Method of construction.
635.105 Supervising agency.
635.106 Use of publicly owned equipment.
635.107 Participation by disadvantaged business enterprises.
635.108 Health and safety.
635.109 Standardized changed condition clauses.
635.110 Licensing and qualification of contractors.
635.111 Tied bids.
635.112 Advertising for bids and proposals.
635.113 Bid opening and bid tabulations.
635.114 Award of contract and concurrence in award.
635.115 Agreement estimate.
635.116 Subcontracting and contractor responsibilities.
635.117 Labor and employment.
635.118 Payroll and weekly statements.
635.119 False statements.
635.120 Changes and extra work.
635.121 Contract time and contract time extensions.
635.122 Participation in progress payments.
635.123 Determination and documentation of pay quantities.
635.124 Participation in contract claim awards and settlements.
635.125 Termination of contract.
635.126 [Reserved]
635.127 Agreement provisions regarding overruns in contract time.

                  Subpart B_Force Account Construction

635.201 Purpose.
635.202 Applicability.
635.203 Definitions.
635.204 Determination of more cost effective method or an emergency.
635.205 Finding of cost effectiveness.

              Subpart C_Physical Construction Authorization

635.301 Purpose.
635.303 Applicability.
635.305 Physical construction.
635.307 Coordination.
635.309 Authorization.

                 Subpart D_General Material Requirements

635.401 Purpose.
635.403 Definitions.
635.405 Applicability.
635.407 Use of materials made available by a public agency.
635.409 Restrictions upon materials.
635.410 Buy America requirements.
635.411 Culvert and storm sewer material types.
635.413 Guaranty and warranty clauses.
635.417 Convict produced materials.

  Subpart E_Construction Manager/General Contractor (CM/GC) Contracting

635.501 Purpose.
635.502 Definitions.
635.503 Applicability.
635.504 CM/GC requirements.
635.505 Relationship to the NEPA process.
635.506 Project approvals and authorizations.
635.507 Cost eligibility.

  Subpart F_Indefinite Delivery/Indefinite Quantity (ID/IQ) Contracting

635.601 Purpose.
635.602 Definitions.
635.603 Applicability.
635.604 ID/IQ Requirements.
635.605 Approvals and authorizations.
635.606 ID/IQ procedures.

    Authority: Sections 1525 and 1303 of Pub. L. 112-141, Sec. 1503 of 
Pub. L. 109-59, 119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112, 113, 
114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 et 
seq.; Sec. 1041(a), Pub. L. 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 
1.85(a)(1).

    Editorial Note: Nomenclature changes to part 635 appear at 67 FR 
75924, Dec. 10, 2002.



                      Subpart A_Contract Procedures

    Source: 56 FR 37004, Aug. 2, 1991, unless otherwise noted.



Sec.  635.101  Purpose.

    To prescribe policies, requirements, and procedures relating to 
Federal-aid highway projects, from the time of authorization to proceed 
to the construction stage, to the time of final acceptance by the 
Federal Highway Administration (FHWA).



Sec.  635.102  Definitions.

    As used in this subpart:

[[Page 272]]

    Administrator means the Federal Highway Administrator.
    Calendar day means each day shown on the calendar but, if another 
definition is set forth in the State contract specifications, that 
definition will apply.
    Construction Manager/General Contractor (CM/GC) project means a 
project to be delivered using a two-phase contract with a construction 
manager or general contractor for services during both the 
preconstruction and construction phases of a project.
    Contract time means the number of workdays or calendar days 
specified in a contract for completion of the contract work. The term 
includes authorized time extensions.
    Design-build project means a project to be developed using one or 
more design-build contracts.
    Division Administrator means the chief FHWA official assigned to 
conduct business in a particular State. A State is as defined in 23 
U.S.C. 101.
    Force account means a basis of payment for the direct performance of 
highway construction work with payment based on the actual cost of 
labor, equipment, and materials furnished and consideration for overhead 
and profit.
    Formal approval means approval in writing or the electronic 
transmission of such approval.
    Incentive/disincentive for early completion as used in this subpart, 
describes a contract provision which compensates the contractor a 
certain amount of money for each day identified critical work is 
completed ahead of schedule and assesses a deduction for each day the 
contractor overruns the incentive/disincentive time. Its use is 
primarily intended for those critical projects where traffic 
inconvenience and delays are to be held to a minimum. The amounts are 
based upon estimates of such items as traffic safety, traffic 
maintenance, and road user delay costs.
    Indefinite Delivery/Indefinite Quantity (ID/IQ) Project means a 
project to be developed using one or more ID/IQ contracts.
    Liquidated damages means the daily amount set forth in the contract 
to be deducted from the contract price to cover additional costs 
incurred by a State transportation department because of the 
contractor's failure to complete the contract work within the number of 
calendar days or workdays specified. The term may also mean the total of 
all daily amounts deducted under the terms of a particular contract.
    Local public agency means any city, county, township, municipality, 
or other political subdivision that may be empowered to cooperate with 
the State transportation department in highway matters.
    Major change or major extra work means a change which will 
significantly affect the cost of the project to the Federal Government 
or alter the termini, character or scope of the work.
    Materially unbalanced bid means a bid which generates a reasonable 
doubt that award to the bidder submitting a mathematically unbalanced 
bid will result in the lowest ultimate cost to the Federal Government.
    Mathematically unbalanced bid means a bid containing lump sum or 
unit bid items which do not reflect reasonable actual costs plus a 
reasonable proportionate share of the bidder's anticipated profit, 
overhead costs, and other indirect costs.
    Public agency means any organization with administrative or 
functional responsibilities which are directly or indirectly affiliated 
with a governmental body of any nation, State, or local jurisdiction.
    Publicly owned equipment means equipment previously purchased or 
otherwise acquired by the public agency involved primarily for use in 
its own operations.
    Specialty items means work items identified in the contract which 
are not normally associated with highway construction and require highly 
specialized knowledge, abilities or equipment not ordinarily available 
in the type of contracting organizations qualified and expected to bid 
on the contract; in general, these items are to be limited to minor 
components of the overall contract.
    State department of transportation (State DOT) means that 
department, commission, board, or official of any

[[Page 273]]

State charged by its laws with the responsibility for highway 
construction. The term ``State'' should be considered equivalent to 
State DOT if the context so implies. In addition, State Highway Agency 
(SHA), State Transportation Agency (STA), State Transportation 
Department, or other similar terms should be considered equivalent to 
State DOT if the context so implies.
    Workday means a calendar day during which construction operations 
could proceed for a major part of a shift, normally excluding Saturdays, 
Sundays, and State-recognized legal holidays.

[62 FR 6873, Feb. 14, 1997, as amended at 67 FR 75924, Dec. 10, 2002; 81 
FR 86942, Dec. 2, 2016; 85 FR 72931, Nov. 16, 2020]



Sec.  635.103  Applicability.

    The policies, requirements, and procedures prescribed in this 
subpart shall apply to all Federal-aid highway projects.

[69 FR 7118, Feb. 13, 2004]



Sec.  635.104  Method of construction.

    (a) Actual construction work shall be performed by contract awarded 
by competitive bidding; unless, as provided in Sec.  635.104(b), the 
State DOT demonstrates to the satisfaction of the Division Administrator 
that some other method is more cost effective or that an emergency 
exists. The State DOT shall assure opportunity for free, open, and 
competitive bidding, including adequate publicity of the advertisements 
or calls for bids. The advertising or calling for bids and the award of 
contracts shall comply with the procedures and requirements set forth in 
Sec. Sec.  635.112 and 635.114.
    (b) Approval by the Division Administrator for construction by a 
method other than competitive bidding shall be requested by the State in 
accordance with subpart B of part 635 of this chapter. Before such 
finding is made, the State DOT shall determine that the organization to 
undertake the work is so staffed and equipped as to perform such work 
satisfactorily and cost effectively.
    (c) In the case of a design-build project, the requirements of 23 
CFR part 636 and the appropriate provisions pertaining to design-build 
contracting in this part will apply. However, no justification of cost 
effectiveness is necessary in selecting projects for the design-build 
delivery method.
    (d) In the case of a CM/GC project, the requirements of subpart E 
and the appropriate provisions pertaining to the CM/GC method of 
contracting in this part will apply. However, no justification of cost 
effectiveness is necessary in selecting projects for the CM/GC delivery 
method.
    (e) In the case of an ID/IQ project, the requirements of subpart F 
of this part and the appropriate provisions pertaining to the ID/IQ 
method of contracting in this part will apply. However, no justification 
of cost effectiveness is necessary in selecting projects for the ID/IQ 
delivery method.

[56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002; 81 
FR 86942, Dec. 2, 2016; 85 FR 72931, Nov. 16, 2020]



Sec.  635.105  Supervising agency.

    (a) The State DOT has responsibility for the construction of all 
Federal-aid projects, and is not relieved of such responsibility by 
authorizing performance of the work by a local public agency or other 
Federal agency. The State DOT shall be responsible for insuring that 
such projects receive adequate supervision and inspection to insure that 
projects are completed in conformance with approved plans and 
specifications.
    (b) Although the State DOT may employ a consultant to provide 
construction engineering services, such as inspection or survey work on 
a project, the State DOT shall provide a full-time employed State 
engineer to be in responsible charge of the project.
    (c) When a project is located on a street or highway over which the 
State DOT does not have legal jurisdiction, or when special conditions 
warrant, the State DOT, while not relieved of overall project 
responsibility, may arrange for the local public agency having 
jurisdiction over such street or highway to perform the work with its 
own forces or by contract; provided the following conditions are met and 
the Division Administrator approves the arrangements in advance.

[[Page 274]]

    (1) In the case of force account work, there is full compliance with 
subpart B of this part.
    (2) When the work is to be performed under a contract awarded by a 
local public agency, all Federal requirements including those prescribed 
in this subpart shall be met.
    (3) The local public agency is adequately staffed and suitably 
equipped to undertake and satisfactorily complete the work; and
    (4) In those instances where a local public agency elects to use 
consultants for construction engineering services, the local public 
agency shall provide a full-time employee of the agency to be in 
responsible charge of the project.



Sec.  635.106  Use of publicly owned equipment.

    (a) Publicly owned equipment should not normally compete with 
privately owned equipment on a project to be let to contract. There may 
be exceptional cases, however, in which the use of equipment of the 
State or local public agency for highway construction purposes may be 
warranted or justified. A proposal by any State DOT for the use of 
publicly owned equipment on such a project must be supported by a 
showing that it would clearly be cost effective to do so under the 
conditions peculiar to the individual project or locality.
    (b) Where publicly owned equipment is to be made available in 
connection with construction work to be let to contract, Federal funds 
may participate in the cost of such work provided the following 
conditions are met:
    (1) The proposed use of such equipment is clearly set forth in the 
Plans, Specifications and Estimate (PS&E) submitted to the Division 
Administrator for approval.
    (2) The advertised specifications specify the items of publicly 
owned equipment available for use by the successful bidder, the rates to 
be charged, and the points of availability or delivery of the equipment; 
and
    (3) The advertised specifications include a notification that the 
successful bidder has the option either of renting part or all of such 
equipment from the State or local public agency or otherwise providing 
the equipment necessary for the performance of the contract work.
    (c) In the rental of publicly owned equipment to contractors, the 
State or local public agency shall not profit at the expense of Federal 
funds.
    (d) Unforeseeable conditions may make it necessary to provide 
publicly owned equipment to the contractor at rental rates agreed to 
between the contractor and the State or local public agency after the 
work has started. Any such arrangement shall not form the basis for any 
increase in the cost of the project on which Federal funds are to 
participate.
    (e) When publicly owned equipment is used on projects constructed on 
a force account basis, costs may be determined by agreed unit prices or 
on an actual cost basis. When agreed unit prices are applied the 
equipment need not be itemized nor rental rates shown in the estimate. 
However, if such work is to be performed on an actual cost basis, the 
State DOT shall submit to the Division Administrator for approval the 
scheduie of rates proposed to be charged, exclusive of profit, for the 
publicly owned equipment made available for use.



Sec.  635.107  Participation by disadvantaged business enterprises.

    (a) The State DOT shall schedule contract lettings in a balanced 
program providing contracts of such size and character as to assure an 
opportunity for all sizes of contracting organizations to compete. In 
accordance with Title VI of the Civil Rights Act of 1964, subsequent 
Federal-aid Highway Acts, and 49 CFR part 26, the State DOT shall ensure 
equal opportunity for disadvantaged business enterprises (DBEs) 
participating in the Federal-aid highway program.
    (b) In the case of a design-build, a CM/GC, or an ID/IQ project 
funded with title 23 funds, the requirements of 49 CFR part 26 and the 
State's approved DBE plan apply.

[67 FR 75925, Dec. 10, 2002, as amended at 81 FR 86942, Dec. 2, 2016; 85 
FR 72931, Nov. 16, 2020]



Sec.  635.108  Health and safety.

    Contracts for projects shall include provisions designed:

[[Page 275]]

    (a) To insure full compliance with all applicable Federal, State, 
and local laws governing safety, health and sanitation; and
    (b) To require that the contractor shall provide all safeguards, 
safety devices, and protective equipment and shall take any other 
actions reasonably necessary to protect the life and health of persons 
working at the site of the project and the safety of the public and to 
protect property in connection with the performance of the work covered 
by the contract.



Sec.  635.109  Standardized changed condition clauses.

    (a) Except as provided in paragraph (b) of this section, the 
following changed conditions contract clauses shall be made part of, and 
incorporated in, each highway construction project, including 
construction services contracts of CM/GC projects, approved under 23 
U.S.C. 106:
    (1) Differing site conditions. (i) During the progress of the work, 
if subsurface or latent physical conditions are encountered at the site 
differing materially from those indicated in the contract or if unknown 
physical conditions of an unusual nature, differing materially from 
those ordinarily encountered and generally recognized as inherent in the 
work provided for in the contract, are encountered at the site, the 
party discovering such conditions shall promptly notify the other party 
in writing of the specific differing conditions before the site is 
disturbed and before the affected work is performed.
    (ii) Upon written notification, the engineer will investigate the 
conditions, and if it is determined that the conditions materially 
differ and cause an increase or decrease in the cost or time required 
for the performance of any work under the contract, an adjustment, 
excluding anticipated profits, will be made and the contract modified in 
writing accordingly. The engineer will notify the contractor of the 
determination whether or not an adjustment of the contract is warranted.
    (iii) No contract adjustment which results in a benefit to the 
contractor will be allowed unless the contractor has provided the 
required written notice.
    (iv) No contract adjustment will be allowed under this clause for 
any effects caused on unchanged work. (This provision may be omitted by 
the State DOT's at their option.)
    (2) Suspensions of work ordered by the engineer. (i) If the 
performance of all or any portion of the work is suspended or delayed by 
the engineer in writing for an unreasonable period of time (not 
originally anticipated, customary, or inherent to the construction 
industry) and the contractor believes that additional compensation and/
or contract time is due as a result of such suspension or delay, the 
contractor shall submit to the engineer in writing a request for 
adjustment within 7 calendar days of receipt of the notice to resume 
work. The request shall set forth the reasons and support for such 
adjustment.
    (ii) Upon receipt, the engineer will evaluate the contractor's 
request. If the engineer agrees that the cost and/or time required for 
the performance of the contract has increased as a result of such 
suspension and the suspension was caused by conditions beyond the 
control of and not the fault of the contractor, its suppliers, or 
subcontractors at any approved tier, and not caused by weather, the 
engineer will make an adjustment (excluding profit) and modify the 
contract in writing accordingly. The contractor will be notified of the 
engineer's determination whether or not an adjustment of the contract is 
warranted.
    (iii) No contract adjustment will be allowed unless the contractor 
has submitted the request for adjustment within the time prescribed.
    (iv) No contract adjustment will be allowed under this clause to the 
extent that performance would have been suspended or delayed by any 
other cause, or for which an adjustment is provided or excluded under 
any other term or condition of this contract.
    (3) Significant changes in the character of work. (i) The engineer 
reserves the right to make, in writing, at any time during the work, 
such changes in quantities and such alterations in the work as are 
necessary to satisfactorily complete the project. Such changes in

[[Page 276]]

quantities and alterations shall not invalidate the contract nor release 
the surety, and the contractor agrees to perform the work as altered.
    (ii) If the alterations or changes in quantities significantly 
change the character of the work under the contract, whether such 
alterations or changes are in themselves significant changes to the 
character of the work or by affecting other work cause such other work 
to become significantly different in character, an adjustment, excluding 
anticipated profit, will be made to the contract. The basis for the 
adjustment shall be agreed upon prior to the performance of the work. If 
a basis cannot be agreed upon, then an adjustment will be made either 
for or against the contractor in such amount as the engineer may 
determine to be fair and equitable.
    (iii) If the alterations or changes in quantities do not 
significantly change the character of the work to be performed under the 
contract, the altered work will be paid for as provided elsewhere in the 
contract.
    (iv) The term ``significant change'' shall be construed to apply 
only to the following circumstances:
    (A) When the character of the work as altered differs materially in 
kind or nature from that involved or included in the original proposed 
construction; or
    (B) When a major item of work, as defined elsewhere in the contract, 
is increased in excess of 125 percent or decreased below 75 percent of 
the original contract quantity. Any allowance for an increase in 
quantity shall apply only to that portion in excess of 125 percent of 
original contract item quantity, or in case of a decrease below 75 
percent, to the actual amount of work performed.
    (b) The provisions of this section shall be governed by the 
following:
    (1) Where State statute does not permit one or more of the contract 
clauses included in paragraph (a) of this section, the State statute 
shall prevail and such clause or clauses need not be made applicable to 
Federal-aid highway contracts.
    (2) Where the State transportation department has developed and 
implemented one or more of the contract clauses included in paragraph 
(a) of this section, such clause or clauses, as developed by the State 
transportation department may be included in Federal-aid highway 
contracts in lieu of the corresponding clause or clauses in paragraph 
(a) of this section. The State's action must be pursuant to a specific 
State statute requiring differing contract conditions clauses. Such 
State developed clause or clauses, however, must be in conformance with 
23 U.S.C., 23 CFR and other applicable Federal statutes and regulations 
as appropriate and shall be subject to the Division Administrator's 
approval as part of the PS&E.
    (c) In the case of a design-build project, State DOTs are strongly 
encouraged to use ``suspensions of work ordered by the engineer'' 
clauses, and may consider ``differing site condition'' clauses and 
``significant changes in the character of work'' clauses which are 
appropriate for the risk and responsibilities that are shared with the 
design-builder.
    (d) For ID/IQ projects, State DOTs are strongly encouraged to use 
``suspensions of work ordered by the engineer'' clauses, and may 
consider ``differing site condition'' clauses and ``significant changes 
in the character of work'' clauses, as appropriate.

[56 FR 37004, Aug. 2, 1991; 57 FR 10062, Mar. 23, 1992, as amended at 67 
FR 75925, Dec. 10, 2002; 81 FR 86943, Dec. 2, 2016; 85 FR 72931, Nov. 
16, 2020]



Sec.  635.110  Licensing and qualification of contractors.

    (a) The procedures and requirements a State DOT proposes to use for 
qualifying and licensing contractors, who may bid for, be awarded, or 
perform Federal-aid highway contracts, shall be submitted to the 
Division Administrator for advance approval. Only those procedures and 
requirements so approved shall be effective with respect to Federal-aid 
highway projects. Any changes in approved procedures and requirements 
shall likewise be subject to approval by the Division Administrator.
    (b) No procedure or requirement for bonding, insurance, 
prequalification, qualification, or licensing of contractors shall be 
approved which, in the

[[Page 277]]

judgment of the Division Administrator, may operate to restrict 
competition, to prevent submission of a bid by, or to prohibit the 
consideration of a bid submitted by, any responsible contractor, whether 
resident or nonresident of the State wherein the work is to be 
performed.
    (c) No contractor shall be required by law, regulation, or practice 
to obtain a license before submission of a bid or before the bid may be 
considered for award of a contract. This, however, is not intended to 
preclude requirements for the licensing of a contractor upon or 
subsequent to the award of the contract if such requirements are 
consistent with competitive bidding. Prequalification of contractors may 
be required as a condition for submission of a bid or award of contract 
only if the period between the date of issuing a call for bids and the 
date of opening of bids affords sufficient time to enable a bidder to 
obtain the required prequalification rating.
    (d) Requirements for the prequalification, qualification or 
licensing of contractors, that operate to govern the amount of work that 
may be bid upon by, or may be awarded to, a contractor, shall be 
approved only if based upon a full and appropriate evaluation of the 
contractor's capability to perform the work.
    (e) Contractors who are currently suspended, debarred or voluntarily 
excluded under 2 CFR parts 180 and 1200, or otherwise determined to be 
ineligible, shall be prohibited from participating in the Federal-aid 
highway program.
    (f) In the case of design-build, CM/GC, and ID/IQ projects, the 
State DOTs may use their own bonding, insurance, licensing, 
qualification or prequalification procedure for any phase of 
procurement.
    (1) The State DOTs may not impose statutory or administrative 
requirements which provide an in-State or local geographical preference 
in the solicitation, licensing, qualification, pre-qualification, short 
listing or selection process. The geographic location of a firm's office 
may not be one of the selection criteria. However, the State DOTs may 
require the successful design-builder to establish a local office after 
the award of contract.
    (2) If required by State statute, local statute, or administrative 
policy, the State DOTs may require prequalification for construction 
contractors. The State DOTs may require offerors to demonstrate the 
ability of their engineering staff to become licensed in that State as a 
condition of responsiveness; however, licensing procedures may not serve 
as a barrier for the consideration of otherwise responsive proposals. 
The State DOTs may require compliance with appropriate State or local 
licensing practices as a condition of contract award.

[56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002; 81 
FR 86943, Dec. 2, 2016; 85 FR 72931, Nov. 16, 2020]



Sec.  635.111  Tied bids.

    (a) The State DOT may tie or permit the tying of Federal-aid highway 
projects or Federal-aid and State-financed highway projects for bidding 
purposes where it appears that by so doing more favorable bids may be 
received. To avoid discrimination against contractors desiring to bid 
upon a lesser amount of work than that included in the tied 
combinations, provisions should be made to permit bidding separately on 
the individual projects whenever they are of such character as to be 
suitable for bidding independently.
    (b) When Federal-aid and State-financed highway projects are tied or 
permitted to be tied together for bidding purposes, the bid schedule 
shall set forth the quantities separately for the Federal-aid work and 
the State-financed work. All proposals submitted for the tied projects 
must contain separate bid prices for each project individually. Federal 
participation in the cost of the work shall be on the basis of the 
lowest overall responsive bid proposal unless the analysis of bids 
reveals that mathematical unbalancing has caused an unsupported shift of 
cost liability to the Federal-aid work. If such a finding is made, 
Federal participation shall be based on the unit prices represented in 
the proposal by the individual contractor who would be the lowest 
responsive and responsible bidder if only the Federal-aid project were 
considered.

[[Page 278]]

    (c) Federal-aid highway projects and State-financed highway projects 
may be combined in one contract if the conditions of the projects are so 
similar that the unit costs on the Federal-aid projects should not be 
increased by such combinations of projects. In such cases, like 
quantities should be combined in the proposal to avoid the possibility 
of unbalancing of bids in favor of either of the projects in the 
combination.



Sec.  635.112  Advertising for bids and proposals.

    (a) No work shall be undertaken on any Federal-aid project, nor 
shall any project be advertised for bids, prior to authorization by the 
Division Administrator.
    (b) The advertisement and approved plans and specifications shall be 
available to bidders a minimum of 3 weeks prior to opening of bids 
except that shorter periods may be approved by the Division 
Administrator in special cases when justified.
    (c) The State DOT shall obtain the approval of the Division 
Administrator prior to issuing any addenda which contain a major change 
to the approved plans or specifications during the advertising period. 
Minor addenda need not receive prior approval but should be identified 
by the State DOT at the time of or prior to requesting FHWA concurrence 
in award. The State DOT shall provide assurance that all bidders have 
received all issued addenda.
    (d) Nondiscriminatory bidding procedures shall be afforded to all 
qualified bidders regardless of National, State or local boundaries and 
without regard to race, color, religion, sex, national origin, age, or 
handicap. If any provisions of State laws, specifications, regulations, 
or policies may operate in any manner contrary to Federal requirements, 
including title VI of the Civil Rights Act of 1964, to prevent 
submission of a bid, or prohibit consideration of a bid submitted by any 
responsible bidder appropriately qualified in accordance with Sec.  
635.110, such provisions shall not be applicable to Federal-aid 
projects. Where such nonapplicable provisions exist, notices of 
advertising, specifications, special provisions or other governing 
documents shall include a positive statement to advise prospective 
bidders of those provisions that are not applicable.
    (e) Except in the case of a concession agreement, as defined in 
section 710.703 of this title, no public agency shall be permitted to 
bid in competition or to enter into subcontracts with private 
contractors.
    (f) The State DOT shall include a noncollusion provision 
substantially as follows in the bidding documents:

    Each bidder shall file a statement executed by, or on behalf of the 
person, firm, association, or corporation submitting the bid certifying 
that such person, firm, association, or corporation has not, either 
directly or indirectly, entered into any agreement, participated in any 
collusion, or otherwise taken any action, in restraint of free 
competitive bidding in connection with the submitted bid. Failure to 
submit the executed statement as part of the bidding documents will make 
the bid nonresponsive and not eligible for award consideration.

    (1) The required form for the statement will be provided by the 
State to each prospective bidder.
    (2) The statement shall either be in the form of an affidavit 
executed and sworn to by the bidder before a person who is authorized by 
the laws of the State to administer oaths or in the form of an unsworn 
declaration executed under penalty of perjury of the laws of the United 
States.
    (g) The State DOT shall include the lobbying certification 
requirement pursuant to 49 CFR part 20 and the requirements of 2 CFR 
parts 180 and 1200 regarding suspension and debarment certification in 
the bidding documents.
    (h) The State DOT shall clearly identify in the bidding documents 
those requirements which the bidder must assure are complied with to 
make the bid responsive. Failure to comply with these identified bidding 
requirements shall make the bid nonresponsive and not eligible for award 
consideration.
    (i) In the case of a design-build project, the following 
requirements apply:
    (1) When a Request for Proposals document is issued after the NEPA 
process is complete, the FHWA Division Administrator's approval of the 
Request for Proposals document will constitute the FHWA's project 
authorization and

[[Page 279]]

the FHWA's approval of the State DOT's request to release the document. 
This approval will carry the same significance as plan, specification 
and estimate approval on a design-bid-build Federal-aid project.
    (2) Where a Request for Proposals document is issued prior to the 
completion of the NEPA process, the FHWA's approval of the document will 
only constitute the FHWA's approval of the State DOT's request to 
release the document.
    (3) The State DOT may decide the appropriate solicitation schedule 
for all design-build requests. This includes all project advertising, 
the release of the Request for Qualifications document, the release of 
the Request for Proposals document and all deadlines for the receipt of 
qualification statements and proposals. Typical advertising periods 
range from six to ten weeks and can be longer for large, complicated 
projects.
    (4) The State DOT must obtain the approval of the Division 
Administrator prior to issuing addenda which result in major changes to 
the Request for Proposals document. Minor addenda need not receive prior 
approval but may be identified by the State DOT at the time of or prior 
to requesting the FHWA's concurrence in award. The State DOT must 
provide assurance that all offerors have received all issued addenda.
    (j) In the case of a CM/GC project, the FHWA Division 
Administrator's approval of the solicitation document will constitute 
the FHWA's approval to use the CM/GC contracting method and approval to 
release the solicitation document. The State DOT must obtain the 
approval of the FHWA Division Administrator before issuing addenda which 
result in major changes to the solicitation document.
    (k) In the case of an ID/IQ project, the FHWA Division 
Administrator's approval of the solicitation document will constitute 
FHWA's approval to use the ID/IQ contracting method and approval to 
release the solicitation document. The State DOT must obtain the 
approval of the FHWA Division Administrator before issuing addenda which 
result in major changes to the solicitation document.

[56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002; 72 
FR 45336, Aug. 14, 2007; 73 FR 77502, Dec. 19, 2008; 81 FR 86943, Dec. 
2, 2016; 85 FR 72931, Nov. 16, 2020]



Sec.  635.113  Bid opening and bid tabulations.

    (a) All bids received in accordance with the terms of the 
advertisement shall be publicly opened and announced either item by item 
or by total amount. If any bid received is not read aloud, the name of 
the bidder and the reason for not reading the bid aloud shall be 
publicly announced at the letting. Negotiation with contractors, during 
the period following the opening of bids and before the award of the 
contract shall not be permitted.
    (b) The State DOT shall prepare and forward tabulations of bids to 
the Division Administrator. These tabulations shall be certified by a 
responsible State DOT official and shall show:
    (1) Bid item details for at least the low three acceptable bids and
    (2) The total amounts of all other acceptable bids.
    (c) In the case of a design-build project, the following 
requirements apply:
    (1) All proposals received must be opened and reviewed in accordance 
with the terms of the solicitation. The State DOT must use its own 
procedures for the following:
    (i) The process of handling proposals and information;
    (ii) The review and evaluation of proposals;
    (iii) The submission, modification, revision and withdrawal of 
proposals; and
    (iv) The announcement of the successful offeror.
    (2) The State DOT must submit a post-award tabulation of proposal 
prices to the FHWA Division Administrator. The tabulation of price 
proposal information may include detailed pricing information when 
available or lump sum price information if itemized prices are not used.
    (d) In the case of a CM/GC project, the requirements of this section 
do not

[[Page 280]]

apply. See subpart E of this part for approval procedures.

[56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002; 81 
FR 86943, Dec. 2, 2016]



Sec.  635.114  Award of contract and concurrence in award.

    (a) Federal-aid contracts shall be awarded only on the basis of the 
lowest responsive bid submitted by a bidder meeting the criteria of 
responsibility as may have been established by the State DOT in 
accordance with Sec.  635.110. Award shall be within the time 
established by the State DOT and subject to the prior concurrence of the 
Division Administrator.
    (b) The State DOT shall formally request concurrence by the Division 
Administrator in the award of all Federal-aid contracts. Concurrence in 
award by the Division Administrator is a prerequisite to Federal 
participation in construction costs and is considered as authority to 
proceed with construction, unless specifically stated otherwise. 
Concurrence in award shall be formally approved and shall only be given 
after receipt and review of the tabulation of bids.
    (c) Following the opening of bids, the State DOT shall examine the 
unit bid prices of the apparent low bid for reasonable conformance with 
the engineer's estimated prices. A bid with extreme variations from the 
engineer's estimate, or where obvious unbalancing of unit prices has 
occurred, shall be thoroughly evaluated.
    (d) Where obvious unbalanced bid items exist, the State DOT's 
decision to award or reject a bid shall be supported by written 
justification. A bid found to be mathematically unbalanced, but not 
found to be materially unbalanced, may be awarded.
    (e) When a low bid is determined to be both mathematically and 
materially unbalanced, the Division Administrator will take appropriate 
steps to protect the Federal interest. This action may be concurrence in 
a State DOT decision not to award the contract. If, however, the State 
DOT decides to proceed with the award and requests FHWA concurrence, the 
Division Administrator's action may range from nonconcurrence to 
concurrence with contingency conditions limiting Federal participation.
    (f) If the State DOT determines that the lowest bid is not 
responsive or the bidder is not responsible, it shall so notify and 
obtain the Division Administrator's concurrence before making an award 
to the next lowest bidder.
    (g) If the State DOT rejects or declines to read or consider a low 
bid on the grounds that it is not responsive because of noncompliance 
with a requirement which was not clearly identified in the bidding 
documents, it shall submit justification for its action. If such 
justification is not considered by the Division Administrator to be 
sufficient, concurrence will not be given to award to another bidder on 
the contract at the same letting.
    (h) Any proposal by the State DOT to reject all bids received for a 
Federal-aid contract shall be submitted to the Division Administrator 
for concurrence, accompanied by adequate justification.
    (i) In the event the low bidder selected by the State DOT for 
contract award forfeits the bid guarantee, the State DOT may dispose of 
the amounts of such forfeited guarantees in accordance with its normal 
practices.
    (j) A copy of the executed contract between the State DOT and the 
construction contractor should be furnished to the Division 
Administrator as soon as practicable after execution.
    (k) In the case of a design-build project, the following 
requirements apply: Design-build contracts shall be awarded in 
accordance with the Request for Proposals document. See 23 CFR Part 636, 
Design-build Contracting, for details.
    (l) In the case of a CM/GC project, the CM/GC contract shall be 
awarded in accordance with the solicitation document. See subpart E for 
CM/GC project approval procedures.
    (m) In the case of an ID/IQ project, the ID/IQ contract shall be 
awarded in accordance with the solicitation document. See subpart F of 
this part for ID/IQ project approval procedures.

[56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002; 81 
FR 86943, Dec. 2, 2016; 85 FR 72931, Nov. 16, 2020]

[[Page 281]]



Sec.  635.115  Agreement estimate.

    (a) Following the award of contract, an agreement estimate based on 
the contract unit prices and estimated quantities shall be prepared by 
the State DOT and submitted to the Division Administrator as soon as 
practicable for use in the preparation of the project agreement. The 
agreement estimate shall also include the actual or best estimated costs 
of any other items to be included in the project agreement.
    (b) An agreement estimate shall be submitted by the State DOT for 
each force account project (see 23 CFR part 635, subpart B) when the 
plans and specifications are submitted to the Division Administrator for 
approval. It shall normally be based on the estimated quantities and the 
unit prices agreed upon in advance between the State DOT and the 
Division Administrator, whether the work is to be done by the State DOT 
or by a local public agency. Such agreed unit prices shall constitute a 
commitment as the basis for Federal participation in the cost of the 
project. The unit prices shall be based upon the estimated actual cost 
of performing the work but shall in no case exceed unit prices currently 
being obtained by competitive bidding on comparable highway construction 
work in the same general locality. In special cases involving unusual 
circumstances, the estimate may be based upon the estimated costs for 
labor, materials, equipment rentals, and supervision to complete the 
work rather than upon agreed unit prices. This paragraph shall not be 
applicable to agreement estimates for railroad and utility force account 
work.



Sec.  635.116  Subcontracting and contractor responsibilities.

    (a) Contracts for projects shall specify the minimum percentage of 
work that a contractor must perform with its own organization. This 
percentage shall be not less than 30 percent of the total original 
contract price excluding any identified specialty items. Specialty items 
may be performed by subcontract and the amount of any such specialty 
items so performed may be deducted from the total original contract 
before computing the amount of work required to be performed by the 
contractor's own organization. The contract amount upon which the above 
requirement is computed includes the cost of materials and manufactured 
products which are to be purchased or produced by the contractor under 
the contract provisions.
    (b) The State DOT shall not permit any of the contract work to be 
performed under a subcontract, unless such arrangement has been 
authorized by the State DOT in writing. Prior to authorizing a 
subcontract, the State DOT shall assure that each subcontract is 
evidenced in writing and that it contains all pertinent provisions and 
requirements of the prime contract. The Division Administrator may 
permit the State DOT to satisfy the subcontract assurance requirements 
by concurrence in a State DOT process which requires the contractor to 
certify that each subcontract arrangement will be in the form of a 
written agreement containing all the requirements and pertinent 
provisions of the prime contract. Prior to the Division Administrator's 
concurrence, the State DOT must demonstrate that it has an acceptable 
plan for monitoring such certifications.
    (c) To assure that all work (including subcontract work) is 
performed in accordance with the contract requirements, the contractor 
shall be required to furnish:
    (1) A competent superintendent or supervisor who is employed by the 
firm, has full authority to direct performance of the work in accordance 
with the contract requirements, and is in charge of all construction 
operations (regardless of who performs the work), and;
    (2) Such other of its own organizational resources (supervision, 
management, and engineering services) as the State DOT contracting 
officer determines are necessary to assure the performance of the 
contract.
    (d) In the case of a design-build project, the following 
requirements apply:
    (1) The provisions of paragraph (a) of this section are not 
applicable to design-build contracts;
    (2) At their discretion, the State DOT's may establish a minimum 
percentage of work that must be done by

[[Page 282]]

the design-builder. For the purpose of this section, the term design-
builder may include any firms that are equity participants in the 
design-builder, their sister and parent companies, and their wholly 
owned subsidiaries;
    (3) No procedure, requirement or preference shall be imposed which 
prescribes minimum subcontracting requirements or goals (other than 
those necessary to meet the Disadvantaged Business Enterprise program 
requirements of 49 CFR part 26).

[56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002]



Sec.  635.117  Labor and employment.

    (a) No construction work shall be performed by convict labor at the 
work site or within the limits of any Federal-aid highway construction 
project from the time of award of the contract or the start of work on 
force account until final acceptance of the work by the State DOT unless 
it is labor performed by convicts who are on parole, supervised release, 
or probation.
    (b) No procedures or requirement shall be imposed by any State which 
will operate to discriminate against the employment of labor from any 
other State, possession or territory of the United States, in the 
construction of a Federal-aid project.
    (c) The selection of labor to be employed by the contractor on any 
Federal-aid project shall be by the contractor without regard to race, 
color, religion, sex, national origin, age, or handicap and in 
accordance with 23 CFR part 230, 41 CFR part 60 and Exec. Order No. 
11246 (Sept. 24, 1965), 3 CFR 339 (1964-1965), as amended.
    (d) Pursuant to 23 U.S.C. 140(d), it is permissible for State DOT's 
to implement procedures or requirements which will extend preferential 
employment to Indians living on or near a reservation on eligible 
projects as defined in paragraph (e) of this section. Indian preference 
shall be applied without regard to tribal affiliation or place of 
enrollment. In no instance should a contractor be compelled to layoff or 
terminate a permanent core-crew employee to meet a preference goal.
    (e) Projects eligible for Indian employment preference consideration 
are projects located on roads within or providing access to an Indian 
reservation or other Indian lands as defined under the term ``Indian 
Reservation Roads'' in 23 U.S.C. 101 and regulations issued thereunder. 
The terminus of a road ``providing access to'' is that point at which it 
intersects with a road functionally classified as a collector or higher 
classification (outside the reservation boundary) in both urban and 
rural areas. In the case of an Interstate highway, the terminus is the 
first interchange outside the reservation.
    (f) The advertisement or call for bids on any contract for the 
construction of a project located on the Federal-aid system either shall 
include the minimum wage rates determined by the Secretary of Labor to 
be prevailing on the same type of work on similar construction in the 
immediate locality or shall provide that such rates are set out in the 
bidding documents and shall further specify that such rates are a part 
of the contract covering the project.



Sec.  635.118  Payroll and weekly statements.

    For all projects, copies of payrolls and statements of wages paid, 
filed with the State as set forth in the required contract provisions 
for the project, are to be retained by the State DOT for the time period 
pursuant to 2 CFR 200.333 for review as needed by the Federal Highway 
Administration, the Department of Labor, the General Accounting Office, 
or other agencies.

[56 FR 37004, Aug. 2, 1991, as amended at 85 FR 7293, Nov. 16, 2020]



Sec.  635.119  False statements.

    The following notice shall be posted on each Federal-aid highway 
project in one or more places where it is readily available to and 
viewable by all personnel concerned with the project:

     Notice to All Personnel Engaged on Federal-Aid Highway Projects

    United States Code, title 18, section 1020, reads as follows:
    Whoever, being an officer, agent, or employee of the United States, 
or of any State or Territory, or whoever, whether a person, association, 
firm, or corporation, knowingly makes any false statement, false 
representation, or false report as to the character, quality, quantity, 
or cost of the material

[[Page 283]]

used or to be used, or the quantity or quality of the work performed or 
to be performed, or the costs thereof in connection with the submission 
of plans, maps, specifications, contracts, or costs of construction of 
any highway or related project submitted for approval to the Secretary 
of Transportation; or
    Whoever, knowingly makes any false statement, false representation, 
false report, or false claim with respect to the character, quality, 
quantity, or cost of any work performed or to be performed, or materials 
furnished or to be furnished, in connection with the construction of any 
highway or related project approved by the Secretary of Transportation; 
or
    Whoever, knowingly makes any false statement or false representation 
as to a material fact in any statement, certificate, or report submitted 
pursuant to the provisions of the Federal-aid Road Act approved July 11, 
1916 (39 Stat. 355), as amended and supplemented,
    Shall be fined not more than $10,000 or imprisoned not more than 
five years, or both.



Sec.  635.120  Changes and extra work.

    (a) Following authorization to proceed with a project, all major 
changes in the plans and contract provisions and all major extra work 
shall have formal approval by the Division Administrator in advance of 
their effective dates. However, when emergency or unusual conditions 
justify, the Division Administrator may give tentative advance approval 
orally to such changes or extra work and ratify such approval with 
formal approval as soon thereafter as practicable.
    (b) For non-major changes and non-major extra work, formal approval 
is necessary but such approval may be given retroactively at the 
discretion of the Division Administrator. The State DOT should establish 
and document with the Division Administrator's concurrence specific 
parameters as to what constitutes a non-major change and non-major extra 
work.
    (c) Changes in contract time, as related to contract changes or 
extra work, should be submitted at the same time as the respective work 
change for approval by the Division Administrator.
    (d) In establishing the method of payment for contract changes or 
extra work orders, force account procedures shall only be used when 
strictly necessary, such as when agreement cannot be reached with the 
contractor on the price of a new work item, or when the extent of work 
is unknown or is of such character that a price cannot be determined to 
a reasonable degree of accuracy. The reason or reasons for using force 
account procedures shall be documented.
    (e) The State DOT shall perform and adequately document a cost 
analysis of each negotiated contract change or negotiated extra work 
order. The method and degree of the cost analysis shall be subject to 
the approval of the Division Administrator.
    (f) Proposed changes and extra work involved in nonparticipating 
operations that may affect the design or participating construction 
features of a project, shall be subject to review and concurrence by the 
Division Administrator.



Sec.  635.121  Contract time and contract time extensions.

    (a) The State DOT should have adequate written procedures for the 
determination of contract time. These procedures should be submitted for 
approval to the Division Administrator within 6 months of the effective 
date of this Final Rule.
    (b) Contract time extensions granted by a State DOT shall be subject 
to the concurrence of the Division Administrator and will be considered 
in determining the amount of Federal participation. Contract time 
extensions submitted for approval to the Division Administrator, shall 
be fully justified and adequately documented.



Sec.  635.122  Participation in progress payments.

    (a) Federal funds will participate in the costs to the State DOT of 
construction accomplished as the work progresses, based on a request for 
reimbursement submitted by State transportation departments. When the 
contract provisions provide for payment for stockpiled materials, the 
amount of the reimbursement request upon which participation is based 
may include the appropriate value of approved specification materials 
delivered by the contractor at the project site or at another designated 
location in the vicinity of such construction, provided that:

[[Page 284]]

    (1) The material conforms with the requirements of the plans and 
specifications.
    (2) The material is supported by a paid invoice or a receipt for 
delivery of materials. If supported by a receipt of delivery of 
materials, the contractor must furnish the paid invoice within a 
reasonable time after receiving payment from the State DOT; and
    (3) The quantity of a stockpiled material eligible for Federal 
participation in any case shall not exceed the total estimated quantity 
required to complete the project. The value of the stockpiled material 
shall not exceed the appropriate portion of the value of the contract 
item or items in which such materials are to be incorporated.
    (b) The materials may be stockpiled by the contractor at a location 
not in the vicinity of the project, if the State DOT determines that 
because of required fabrication at an off-site location, it is not 
feasible or practicable to stockpile the materials in the vicinity of 
the project.
    (c) In the case of a design-build project, the State DOT must define 
its procedures for making progress payments on lump sum contracts in the 
Request for Proposal document.
    (d) In the case of a CM/GC project, the State DOT must define its 
procedures for making construction phase progress payments in either the 
solicitation or the construction services contract documents.

[56 FR 37004, Aug. 2, 1991, as amended at 67 FR 75925, Dec. 10, 2002; 81 
FR 86943, Dec. 2, 2016]



Sec.  635.123  Determination and documentation of pay quantities.

    (a) The State DOT shall have procedures in effect which will provide 
adequate assurance that the quantities of completed work are determined 
accurately and on a uniform basis throughout the State. All such 
determinations and all related source documents upon which payment is 
based shall be made a matter of record.
    (b) Initial source documents pertaining to the determination of pay 
quantities are among those records and documents which must be retained 
pursuant to 2 CFR 200.333.

[56 FR 37004, Aug. 2, 1991, as amended at 85 FR 7293, Nov. 16, 2020]



Sec.  635.124  Participation in contract claim awards and settlements.

    (a) The eligibility for and extent of Federal-aid participation up 
to the Federal statutory share in a contract claim award made by a State 
to a Federal-aid contractor on the basis of an arbitration or mediation 
proceeding, administrative board determination, court judgment, 
negotiated settlement, or other contract claim settlement shall be 
determined on a case-by-case basis. Federal funds will participate to 
the extent that any contract adjustments made are supported, and have a 
basis in terms of the contract and applicable State law, as fairly 
construed. Further, the basis for the adjustment and contractor 
compensation shall be in accord with prevailing principles of public 
contract law.
    (b) The FHWA shall be made aware by the State DOT of the details of 
the claim at an early stage so that coordination of efforts can be 
satisfactorily accomplished. It is expected that State DOTs will 
diligently pursue the satisfactory resolution of claims within a 
reasonable period of time. Claims arising on exempt non-NHS projects 
should be processed in accordance with the State's approved Stewardship 
Plan.
    (c) When requesting Federal participation, the State DOT shall set 
forth in writing the legal and contractual basis for the claim, together 
with the cost data and other facts supporting the award or settlement. 
Federal-aid participation in such instances shall be supported by a 
State DOT audit of the actual costs incurred by the contractor unless 
waived by the FHWA as unwarranted. Where difficult, complex, or novel 
legal issues appear in the claim, such that evaluation of legal 
controversies is critical to consideration of the award or settlement, 
the State DOT shall include in its submission a legal opinion from its 
counsel setting forth the basis for determining the extent of the 
liability under local law, with a level of detail commensurate with the 
magnitude and complexity of the issues involved.

[[Page 285]]

    (d) In those cases where the State DOT receives an adverse decision 
in an amount more than the State DOT was able to support prior to the 
decision or settles a claim in an amount more than the State DOT can 
support, the FHWA will participate up to the appropriate Federal 
matching share, to the extent that it involves a Federal-aid 
participating portion of the contract, provided that:
    (1) The FHWA was consulted and concurred in the proposed course of 
action;
    (2) All appropriate courses of action had been considered; and
    (3) The State DOT pursued the case diligently and in a professional 
manner.
    (e) Federal funds will not participate:
    (1) If it has been determined that State DOT employees, officers, or 
agents acted with gross negligence, or participated in intentional acts 
or omissions, fraud, or other acts not consistent with usual State 
practices in project design, plan preparation, contract administration, 
or other activities which gave rise to the claim;
    (2) In such cost items as consequential or punitive damages, 
anticipated profit, or any award or payment of attorney's fees paid by a 
State to an opposing party in litigation; and
    (3) In tort, inverse condemnation, or other claims erroneously 
styled as claims ``under a contract.''
    (f) Payment of interest associated with a claim will be eligible for 
participation provided that the payment to the contractor for interest 
is allowable by State statute or specification and the costs are not a 
result of delays caused by dilatory action of the State or the 
contractor. The interest rates must not exceed the rate provided for by 
the State statute or specification.
    (g) In cases where State DOT's affirmatively recover compensatory 
damages through contract claims, cross-claims, or counter claims from 
contractors, subcontractors, or their agents on projects on which there 
was Federal-aid participation, the Federal share of such recovery shall 
be equivalent to the Federal share of the project or projects involved. 
Such recovery shall be credited to the project or projects from which 
the claim or claims arose.

[56 FR 37004, Aug. 2, 1991, as amended at 62 FR 6873, Feb. 14, 1997; 69 
FR 7118, Feb. 13, 2004]



Sec.  635.125  Termination of contract.

    (a) All contracts exceeding $10,000 shall contain suitable 
provisions for termination by the State, including the manner by which 
the termination will be effected and the basis for settlement. In 
addition, such contracts shall describe conditions under which the 
contract may be terminated for default as well as conditions where the 
contract may be terminated because of circumstances beyond the control 
of the contractor.
    (b) The State DOT prior to termination of a Federal-aid contract 
shall consult with and receive the concurrence of the Division 
Administrator. The extent of Federal-aid participation in contract 
termination costs, including final settlement, will depend upon the 
merits of the individual case. However, under no circumstances shall 
Federal funds participate in anticipated profit on work not performed.
    (c) Except as provided for in paragraph (e) of this section, normal 
Federal-aid plans, specifications, and estimates, advertising, and award 
procedures are to be followed when a State DOT awards the contract for 
completion of a terminated Federal-aid contract.
    (d) When a State DOT awards the contract for completion of a 
Federal-aid contract previously terminated for default, the construction 
amount eligible for Federal participation on the project should not 
exceed whichever amount is the lesser, either:
    (1) The amount representing the payments made under the original 
contract plus payments made under the new contract; or
    (2) The amount representing what the cost would have been if the 
construction had been completed as contemplated by the plans and 
specifications under the original contract.
    (e) If the surety awards a contract for completion of a defaulted 
Federal-aid contract or completes it by some other acceptable means, the 
FHWA will consider the terms of the original contract

[[Page 286]]

to be in effect and that the work will be completed in accordance with 
the approved plans and specifications included therein. No further FHWA 
approval or concurrence action will therefore be needed in connection 
with any defaulted Federal-aid contract awarded by a surety. Under this 
procedure, the construction amount eligible for Federal participation on 
the project should not exceed the amount representing what the cost 
would have been if the construction had been completed as contemplated 
by the plans and specifications under the original contract.



Sec.  635.126  [Reserved]



Sec.  635.127  Agreement provisions regarding overruns in contract time.

    (a) Each State transportation department (State DOT) shall establish 
specific liquidated damages rates applicable to projects in that State. 
The rates may be project-specific or may be in the form of a table or 
schedule developed for a range of project costs and/or project types. 
These rates shall, as a minimum, be established to cover the estimated 
average daily construction engineering (CE) costs associated with the 
type of work encountered on the project. The amounts shall be assessed 
by means of deductions, for each calendar day or workday overrun in 
contract time, from payments otherwise due to the contractor for 
performance in accordance with the contract terms.
    (b) The rates established shall be subject to FHWA approval either 
on a project-by-project basis, in the case of project-specific rates, or 
on a periodic basis after initial approval where a rate table or 
schedule is used. In the latter case, the State DOT shall periodically 
review its cost data to ascertain if the rate table/schedule closely 
approximates, at a minimum, the actual average daily CE costs associated 
with the type and size of the projects in the State. Where rate 
schedules or other means are already included in the State DOT 
specifications or standard special provisions, verification by the State 
DOT that the amounts are adequate shall be submitted to the FHWA for 
review and approval. After initial approval by the FHWA of the rates, 
the State DOT shall review the rates at least every 2 years and provide 
updated rates, when necessary, for FHWA approval. If updated rates are 
not warranted, justification of this fact is to be sent to the FHWA for 
review and acceptance.
    (c) The State DOT may, with FHWA concurrence, include additional 
amounts as liquidated damages in each contract to cover other 
anticipated costs of project related delays or inconveniences to the 
State DOT or the public. Costs resulting from winter shutdowns, 
retaining detours for an extended time, additional demurrage, or similar 
costs as well as road user delay costs may be included.
    (d) In addition to the liquidated damages provisions, the State DOT 
may also include incentive/disincentive for early completion provisions 
in the contract. The incentive/disincentive amounts shall be shown 
separately from the liquidated damages amounts.
    (e) Where there has been an overrun in contract time, the following 
principles shall apply in determining the cost of a project that is 
eligible for Federal-aid reimbursement:
    (1) A proportional share, as used in this section, is the ratio of 
the final contract construction costs eligible for Federal participation 
to the final total contract construction costs of the project.
    (2) Where CE costs are claimed as a participating item based upon 
actual expenses incurred or where CE costs are not claimed as a 
participating item, and where the liquidated damages rates cover only CE 
expenses, the total CE costs for the project shall be reduced by the 
assessed liquidated damages amounts prior to figuring any Federal pro 
rata share payable. If the amount of liquidated damages assessed is more 
than the actual CE totals for the project, a proportional share of the 
excess shall be deducted from the federally participating contract 
construction cost before determining the final Federal share.
    (3) Where the State DOT is being reimbursed for CE costs on the 
basis of an approved percentage of the participating construction cost, 
the total contract construction amount that would be eligible for 
Federal participation

[[Page 287]]

shall be reduced by a proportional share of the total liquidated damages 
amounts assessed on the project.
    (4) Where liquidated damages include extra anticipated non-CE costs 
due to contractor caused delays, the amount assessed shall be used to 
pay for the actual non-CE expenses incurred by the State DOT, and, if a 
Federal participating item(s) is involved, to reduce the Federal share 
payable for that item(s). If the amount assessed is more than the actual 
expenses incurred by the State DOT, a proportional share of the excess 
shall be deducted from the federally participating contract construction 
cost of the project before the Federal share is figured.
    (f) When provisions for incentive/disincentive for early completion 
are used in the contract, a proportion of the increased project costs 
due to any incentive payments to the contractor shall be added to the 
federally participating contract construction cost before calculating 
the Federal share. When the disincentive provision is applicable, a 
proportion of the amount assessed the contractor shall be deducted from 
the federally participating contract construction cost before the 
Federal share calculation. Proportions are to be calculated in the same 
manner as set forth in paragraph (e)(1) of this section.

[52 FR 31390, Aug. 20, 1987. Redesignated at 62 FR 6872, Feb. 14, 1997]



                  Subpart B_Force Account Construction



Sec.  635.201  Purpose.

    The purpose of this subpart is to prescribe procedures in accordance 
with 23 U.S.C. 112(b) for a State transportation department to request 
approval that highway construction work be performed by some method 
other than contract awarded by competitive bidding.

[48 FR 22912, May 23, 1983]



Sec.  635.202  Applicability.

    This subpart applies to all Federal-aid and other highway 
construction projects financed in whole or in part with Federal funds 
and to be constructed by a State transportation department or a 
subdivision thereof in pursuant of agreements between any other State 
transportation department and the Federal Highway Administration (FHWA).

[69 FR 7119, Feb. 13, 2004]



Sec.  635.203  Definitions.

    The following definitions shall apply for the purpose of this 
subpart:
    (a) A State transportation department is that department, 
commission, board, or official of any State charged by its laws with the 
responsibility for highway construction. The term State should be 
considered equivalent to State transportation department if the context 
so implies.
    (b) Except as provided for as emergency repair work in Sec.  
668.105(i) and in Sec.  635.204(b), the term some other method of 
construction as used in 23 U.S.C. 112(b) shall mean the force account 
method of construction as defined herein. In the unlikely event that 
circumstances are considered to justify a negotiated contract or another 
unusual method of construction, the policies and procedures prescribed 
herein for force account work will apply.
    (c) The term force account shall mean the direct performance of 
highway construction work by a State transportation department, a 
county, a railroad, or a public utility company by use of labor, 
equipment, materials, and supplies furnished by them and used under 
their direct control.
    (d) The term county shall mean any county, township, municipality or 
other political subdivision that may be empowered to cooperate with the 
State transportation department in highway matters.
    (e) The term cost effective shall mean the efficient use of labor, 
equipment, materials and supplies to assure the lowest overall cost.
    (f) For the purpose of this part, an emergency shall be deemed to 
exist when emergency repair work as provided for in Sec.  668.105(i) is 
necessary or when a major element or segment of the highway system has 
failed and the situation is such that competitive bidding is not 
possible or is impractical because immediate action is necessary to:
    (1) Minimize the extent of the damage,

[[Page 288]]

    (2) Protect remaining facilities, or
    (3) Restore essential travel.

This definition of emergency has no applicability to the Emergency 
Relief Program of 23 CFR part 668.

[39 FR 35158, Sept. 30, 1974, as amended at 48 FR 22912, May 23, 1983; 
52 FR 45172, Nov. 25, 1987]



Sec.  635.204  Determination of more cost effective method or an emergency.

    (a) Congress has expressly provided that the contract method based 
on competitive bidding shall be used by a State transportation 
department or county for performance of highway work financed with the 
aid of Federal funds unless the State transportation department 
demonstrates, to the satisfaction of the Secretary, that some other 
method is more cost effective or that an emergency exists.
    (b) When a State transportation department determines it necessary 
due to an emergency to undertake a federally financed highway 
construction project by force account or negotiated contract method, it 
shall submit a request to the Division Administrator identifying and 
describing the project, the kinds of work to be performed, the method to 
be used, the estimated costs, the estimated Federal Funds to be 
provided, and the reason or reasons that an emergency exists.
    (c) Except as provided in paragraph (b) of this section, when a 
State transportation department desires that highway construction work 
financed with the aid of Federal funds, other than the kinds of work 
designated under Sec.  635.205(b), be undertaken by force account, it 
shall submit a request to the Division Administrator identifying and 
describing the project and the kind of work to be performed, the 
estimated costs, the estimated Federal funds to be provided, and the 
reason or reasons that force account for such project is considered cost 
effective.
    (d) The Division Administrator shall notify the State transportation 
department in writing of his/her determination.

[52 FR 45172, Nov. 25, 1987]



Sec.  635.205  Finding of cost effectiveness.

    (a) It may be found cost effective for a State transportation 
department or county to undertake a federally financed highway 
construction project by force account when a situation exists in which 
the rights or resposibilities of the community at large are so affected 
as to require some special course of action, including situations where 
there is a lack of bids or the bids received are unreasonable.
    (b) Pursuant to authority in 23 U.S.C. 112(b), it is hereby 
determined that by reason of the inherent nature of the operations 
involved, it is cost effective to perform by force account the 
adjustment of railroad or utility facilities and similar types of 
facilities owned or operated by a public agency, a railroad, or a 
utility company provided that the organization is qualified to perform 
the work in a satisfactory manner. The installation of new facilities 
shall be undertaken by competitive bidding except as provided in Sec.  
635.204(c). Adjustment of railroad facilities shall include minor work 
on the railroad's operating facilities routinely performed by the 
railroad with its own forces such as the installation of grade crossing 
warning devices, crossing surfaces, and minor track and signal work. 
Adjustment of utility facilities shall include minor work on the 
utility's existing facilities routinely performed by the utility with 
its own forces and includes minor installations of new facilities to 
provide power, minor lighting, telephone, water and similar utility 
service to a rest area, weigh-station, movable bridge, or other highway 
appurtenance, provided such installation cannot feasibly be done as 
incidental to a major installation project such as an extensive highway 
lighting system.

[52 FR 45173, Nov. 25, 1987]



              Subpart C_Physical Construction Authorization

    Source: 40 FR 17251, Apr. 18, 1975, unless otherwise noted.



Sec.  635.301  Purpose.

    To prescribe the policies and procedures under which a State 
transportation department may be authorized

[[Page 289]]

to advance a Federal-aid highway project to the physical construction 
stage.



Sec.  635.303  Applicability.

    The provisions of this subpart are applicable to all Federal-aid 
highway construction projects.

[69 FR 7119, Feb. 13, 2004]



Sec.  635.305  Physical construction.

    For purposes of this subpart the physical construction of a project 
is considered to consist of the actual construction of the highway 
itself with its appurtenant facilities. It includes any removal, 
adjustment or demolition of buildings or major obstructions, and utility 
or railroad work that is a part of the contract for the physical 
construction.



Sec.  635.307  Coordination.

    (a) The right-of-way clearance, utility, and railroad work are to be 
so coordinated with the physical construction that no unnecessary delay 
or cost for the physical construction will occur.
    (b) All right-of-way clearance, utility, and railroad work performed 
separately from the contract for the physical construction of the 
project are to be accomplished in accordance with provisions of the 
following:
    (1) 23 CFR part 140, subpart I;
    (2) 23 CFR part 646, subpart B;
    (3) 23 CFR 710.403; and
    (4) 23 CFR part 645, subpart A.

[40 FR 17251, Apr. 18, 1975, as amended at 40 FR 25585, June 17, 1975; 
64 FR 71289, Dec. 21, 1999]



Sec.  635.309  Authorization.

    Authorization to advertise the physical construction for bids or to 
proceed with force account construction thereof shall normally be issued 
as soon as, but not until, all of the following conditions have been 
met:
    (a) The plans, specifications, and estimates (PS&E) have been 
approved.
    (b) A statement is received from the State, either separately or 
combined with the information required by paragraph (c) of this section, 
that either all right-of-way (ROW) clearance, utility, and railroad work 
has been completed or that all necessary arrangements have been made for 
it to be undertaken and completed as required for proper coordination 
with the physical construction schedules. Where it is determined that 
the completion of such work in advance of the highway construction is 
not feasible or practical due to economy, special operational problems 
or the like, there shall be appropriate notification provided in the bid 
proposals identifying the ROW clearance, utility, and railroad work 
which is to be underway concurrently with the highway construction.
    (c) Except as otherwise provided for design-build projects in Sec.  
710.309 of this chapter and paragraph (p) of this section, a statement 
is received from the State certifying that all individuals and families 
have been relocated to decent, safe, and sanitary housing or that the 
State has made available to relocatees adequate replacement housing in 
accordance with the provisions of the 49 CFR part 24 and that one of the 
following has application:
    (1) All necessary ROW, including control of access rights when 
pertinent, have been acquired including legal and physical possession. 
Trial or appeal of cases may be pending in court but legal possession 
has been obtained. There may be some improvements remaining on the ROW 
but all occupants have vacated the lands and improvements and the State 
has physical possession and the right to remove, salvage, or demolish 
these improvements and enter on all land.
    (2) Although all necessary ROW have not been fully acquired, the 
right to occupy and to use all ROW required for the proper execution of 
the project has been acquired. Trial or appeal of some parcels may be 
pending in court and on other parcels full legal possession has not been 
obtained but right of entry has been obtained, the occupants of all 
lands and improvements have vacated and the State has physical 
possession and right to remove, salvage, or demolish these improvements.
    (3) The acquisition or right of occupancy and use of a few remaining 
parcels is not complete, but all occupants of the residences on such 
parcels have had replacement housing made available to them in 
accordance with 49

[[Page 290]]

CFR 24.204. Under these circumstances, the State may request the Federal 
Highway Administration (FHWA) to authorize actions based on a 
conditional certification as provided in this paragraph.
    (i) The State may request approval for the advertisement for bids 
based on a conditional certification. The FHWA will approve the request 
unless it finds that it will not be in the public interest to proceed 
with the bidding before acquisition activities are complete.
    (ii) The State may request approval for physical construction under 
a contract or through force account work based on a conditional 
certification. The FHWA will approve the request only if FHWA finds 
there are exceptional circumstances that make it in the public interest 
to proceed with construction before acquisition activities are complete.
    (iii) Whenever a conditional certification is used, the State shall 
ensure that occupants of residences, businesses, farms, or non-profit 
organizations who have not yet moved from the ROW are protected against 
unnecessary inconvenience and disproportionate injury or any action 
coercive in nature.
    (iv) When the State requests authorization under a conditional 
certification to advertise for bids or to proceed with physical 
construction where acquisition or right of occupancy and use of a few 
parcels has not been obtained, full explanation and reasons therefor, 
including identification of each such parcel, will be set forth in the 
State's request along with a realistic date when physical occupancy and 
use is anticipated as well as substantiation that such date is 
realistic. Appropriate notification must be provided in the request for 
bids, identifying all locations where right of occupancy and use has not 
been obtained. Prior to the State issuing a notice to proceed with 
construction to the contractor, the State shall provide an updated 
notification to FHWA identifying all locations where right of occupancy 
and use has not been obtained along with a realistic date when physical 
occupancy and use is anticipated.
    (v) Participation of title 23 funds in construction delay claims 
resulting from unavailable parcels shall be determined in accordance 
with Sec.  635.124. The FHWA will determine the extent of title 23 
participation in costs related to construction delay claims resulting 
from unavailable parcels where FHWA determines the State did not follow 
approved processes and procedures.
    (d) The State transportation department (SDOT), in accordance with 
23 CFR 771.111(h), has submitted public hearing transcripts, 
certifications and reports pursuant to 23 U.S.C. 128.
    (e) An affirmative finding of cost effectiveness or that an 
emergency exists has been made as required by 23 U.S.C. 112, when 
construction by some method other than contract based on competitive 
bidding is contemplated.
    (f) Minimum wage rates determined by the Department of Labor in 
accordance with the provisions of 23 U.S.C. 113, are in effect and will 
not expire before the end of the period within which it can reasonably 
be expected that the contract will be awarded.
    (g) A statement has been received that ROW has been acquired or will 
be acquired in accordance with 49 CFR part 24 and part 710 of this 
chapter, or that acquisition of ROW is not required.
    (h) A statement has been received that the steps relative to 
relocation advisory assistance and payments as required by 49 CFR part 
24 have been taken, or that they are not required.
    (i) The FHWA has determined that appropriate measures have been 
included in the PS&E in keeping with approved guidelines, for minimizing 
possible soil erosion and water pollution as a result of highway 
construction operations.
    (j) The FHWA has determined that requirements of 23 CFR part 771 
have been fulfilled and appropriate measures have been included in the 
PS&E to ensure that conditions and commitments made in the development 
of the project to mitigate environmental harm will be met.
    (k) Where utility facilities are to use and occupy the right-of-way, 
the State has demonstrated to the satisfaction of the FHWA that the 
provisions of Sec.  645.119(b) of this chapter have been fulfilled.

[[Page 291]]

    (l) The FHWA has verified the fact that adequate replacement housing 
is in place and has been made available to all affected persons.
    (m) Where applicable, area wide agency review has been accomplished 
as required by 42 U.S.C. 3334 and 4231 through 4233.
    (n) The FHWA has determined that the PS&E provide for the erection 
of only those information signs and traffic control devices that conform 
to the standards developed by the Secretary of Transportation or 
mandates of Federal law and do not include promotional or other 
informational signs regarding such matters as identification of public 
officials, contractors, organizational affiliations, and related logos 
and symbols.
    (o) The FHWA has determined that, where applicable, provisions are 
included in the PS&E that require the erection of funding source signs, 
for the life of the construction project, in accordance with section 154 
of the Surface Transportation and Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, as amended (Pub. L. 91-646, 
84 Stat. 1894; primarily codified in 42 U.S.C. 4601 et seq.;) (Uniform 
Act).
    (p) In the case of a design-build or CM/GC project, the following 
certification requirements apply
    (1) The FHWA's project authorization for final design and physical 
construction will not be issued until the following conditions have been 
met:
    (i) All projects must conform with the statewide and metropolitan 
transportation planning requirements (23 CFR part 450).
    (ii) All projects in air quality nonattainment and maintenance areas 
must meet all transportation conformity requirements (40 CFR parts 51 
and 93).
    (iii) The NEPA review process has been concluded. (See Sec.  636.109 
of this chapter).
    (iv) The Request for Proposals document has been approved.
    (v) A statement is received from the SDOT that either all ROW, 
utility, and railroad work has been completed or that all necessary 
arrangements will be made for the completion of ROW, utility, and 
railroad work.
    (vi) If the State DOT elects to include right-of-way, utility, and/
or railroad services as part of the design-builder's or CM/GC 
contractor's scope of work, then the applicable design-build Request for 
Proposals document, or the CM/GC solicitation document must include:
    (2) During a conformity lapse, an Early Acquisition Project carried 
out in accordance with Sec.  710.501 of this chapter or a design-build 
project (including ROW acquisition activities) may continue if, prior to 
the conformity lapse, the National Environmental Policy Act (NEPA) (42 
U.S.C. 4321, et seq.) process was completed and the project has not 
changed significantly in design scope, FHWA authorized the early 
acquisition or design-build project, and the project met transportation 
conformity requirements (40 CFR parts 51 and 93).
    (3) Changes to the design-build or CM/GC project concept and scope 
may require a modification of the transportation plan and transportation 
improvement program. The project sponsor must comply with the 
metropolitan and statewide transportation planning requirements in 23 
CFR part 450 and the transportation conformity requirements (40 CFR 
parts 51 and 93) in air quality nonattainment and maintenance areas, and 
provide appropriate approval notification to the design builder or the 
CM/GC contractor for such changes.
    (q) In the case of an ID/IQ project, FHWA may authorize 
advertisement of the solicitation document prior to approving the PS&E. 
However, FHWA's project authorization for final design and physical 
construction will not be issued until the following conditions have been 
met:
    (1) All projects must conform with the statewide and metropolitan 
transportation planning requirements (23 CFR part 450).
    (2) All projects in air quality nonattainment and maintenance areas 
must meet all transportation conformity requirements (40 CFR parts 51 
and 93).
    (3) The NEPA process has been concluded as described in Sec.  
635.605.
    (4) A statement is received from the State that either all ROW, 
utility, and

[[Page 292]]

railroad work has been completed or that all necessary arrangements will 
be made for the completion of ROW, utility, and railroad work.

[81 FR 57728, Aug. 23, 2016, as amended at 81 FR 86943, Dec. 2, 2016; 85 
FR 72931, Nov. 16, 2020]



                 Subpart D_General Material Requirements

    Source: 41 FR 36204, Aug. 27, 1976, unless otherwise noted.



Sec.  635.401  Purpose.

    The purpose of this subpart is to prescribe requirements and 
procedures relating to product and material selection and use on 
Federal-aid highway projects.



Sec.  635.403  Definitions.

    As used in this subpart, the following terms have the meanings 
indicated:
    (a) FHWA Division Administrator means the chief Federal Highway 
Administration (FHWA) official assigned to conduct business in a 
particular State;
    (b) Material means any tangible substance incorporated into a 
Federal-aid highway project;
    (c) PS&E means plans, specifications, and estimates;
    (d) Special provisions means additions and revisions to the standard 
and supplemental specifications applicable to an individual project;
    (e) Standard specifications means a compilation in book form of 
specifications approved for general application and repetitive use;
    (f) State has the meaning set forth in 23 U.S.C. 101;
    (g) State transportation department means that department, 
commission, board, or official of any State charged by its laws with the 
responsibility for highway construction;
    (h) Supplemental specifications means approved additions and 
revisions to the standard specifications.



Sec.  635.405  Applicability.

    The requirements and procedures prescribed in this subpart apply to 
all contracts relating to Federal-aid highway projects.

[69 FR 7119, Feb. 13, 2004]



Sec.  635.407  Use of materials made available by a public agency.

    (a) Contracts for highway projects shall require the contractor to 
furnish all materials to be incorporated in the work and shall permit 
the contractor to select the sources from which the materials are to be 
obtained. Exception to this requirement may be made when there is a 
definite finding by the State transportation department and concurred in 
by the FHWA Division Administrator, that it is in the public interest to 
require the contractor to use material furnished by the State 
transportation department or from sources designated by the State 
transportation department. In cases such as this, the FHWA does not 
expect mutual sharing of costs unless the State transportation 
department receives a related credit from another agency or political 
subdivision of the State. Where such a credit does accrue to the State 
transportation department, it shall be applied to the Federal-aid 
project involved. The designation of a mandatory material source may be 
permitted based on environmental considerations, provided the 
environment would be substantially enhanced without excessive cost. 
Otherwise, if a State transportation department proposal to designate a 
material source for mandatory use would result in higher project costs, 
Federal-aid funds shall not participate in the increase even if the 
designation would conserve other public funds.
    (b) The provisions of paragraph (a) of this section will not 
preclude the designation in the plans and specifications of sources of 
local natural materials, such as borrow aggregates, that have been 
investigated by the State transportation department and found to contain 
materials meeting specification requirements. The use of materials from 
such designated sources shall not be mandatory unless there is a finding 
of public interest as stated in paragraph (a) of this section.
    (c) Federal funds may participate in the cost of specifications 
materials made available by a public agency

[[Page 293]]

when they have been actually incorporated in accepted items of work, or 
in the cost of such materials meeting the criteria and stockpiled at the 
locations specified in Sec.  635.114 of this chapter.
    (d) To be eligible for Federal participation in its cost, any 
material, other than local natural materials, to be purchased by the 
State transportation department and furnished to the contractor for 
mandatory use in the project, must have been acquired on the basis of 
competitive bidding, except when there is a finding of public interest 
justifying the use of another method of acquisition. The location and 
unit price at which such material will be available to the contractor 
must be stated in the special provisions for the benefit of all 
prospective bidders. The unit cost eligible for Federation participation 
will be limited to the unit cost of such material to the State 
transportation department.
    (e) When the State transportation department or another public 
agency owns or has control over the source of a local natural material 
the unit price at which such material will be made available to the 
contractor must be stated in the plans or special provisions. Federal 
participation will be limited to (1) the cost of the material to the 
State transportation department or other public agency; or (2) the fair 
and reasonable value of the material, whichever is less. Special cases 
may arise that will justify Federal participation on a basis other than 
that set forth above. Such cases should be fully documented and receive 
advance approval by the FHWA Division Administrator.
    (f) Costs incurred by the State transportation department or other 
public agency for acquiring a designated source or the right to take 
materials from it will not be eligible for Federal participation if the 
source is not used by the contractor.
    (g) The contract provisions for one or a combination of Federal-aid 
projects shall not specify a mandatory site for the disposal of surplus 
excavated materials unless there is a finding by the State 
transportation department with the concurrence of the FHWA Division 
Administrator that such placement is the most economical except that the 
designation of a mandatory site may be permitted based on environmental 
considerations, provided the environment would be substantially enhanced 
without excessive cost.



Sec.  635.409  Restrictions upon materials.

    No requirement shall be imposed and no procedure shall be enforced 
by any State transportation department in connection with a project 
which may operate:
    (a) To require the use of or provide a price differential in favor 
of articles or materials produced within the State, or otherwise to 
prohibit, restrict or discriminate against the use of articles or 
materials shipped from or prepared, made or produced in any State, 
territory or possession of the United States; or
    (b) To prohibit, restrict or otherwise discriminate against the use 
of articles or materials of foreign origin to any greater extent than is 
permissible under policies of the Department of Transportation as 
evidenced by requirements and procedures prescribed by the FHWA 
Administrator to carry out such policies.



Sec.  635.410  Buy America requirements.

    (a) The provisions of this section shall prevail and be given 
precedence over any requirements of this subpart which are contrary to 
this section. However, nothing in this section shall be construed to be 
contrary to the requirements of Sec.  635.409(a) of this subpart.
    (b) No Federal-aid highway construction project is to be authorized 
for advertisement or otherwise authorized to proceed unless at least one 
of the following requirements is met:
    (1) The project either: (i) Includes no permanently incorporated 
steel or iron materials, or (ii) if steel or iron materials are to be 
used, all manufacturing processes, including application of a coating, 
for these materials must occur in the United States. Coating includes 
all processes which protect or enhance the value of the material to 
which the coating is applied.

[[Page 294]]

    (2) The State has standard contract provisions that require the use 
of domestic materials and products, including steel and iron materials, 
to the same or greater extent as the provisions set forth in this 
section.
    (3) The State elects to include alternate bid provisions for foreign 
and domestic steel and iron materials which comply with the following 
requirements. Any procedure for obtaining alternate bids based on 
furnishing foreign steel and iron materials which is acceptable to the 
Division Administrator may be used. The contract provisions must (i) 
require all bidders to submit a bid based on furnishing domestic steel 
and iron materials, and (ii) clearly state that the contract will be 
awarded to the bidder who submits the lowest total bid based on 
furnishing domestic steel and iron materials unless such total bid 
exceeds the lowest total bid based on furnishing foreign steel and iron 
materials by more than 25 percent.
    (4) When steel and iron materials are used in a project, the 
requirements of this section do not prevent a minimal use of foreign 
steel and iron materials, if the cost of such materials used does not 
exceed one-tenth of one percent (0.1 percent) of the total contract cost 
or $2,500, whichever is greater. For purposes of this paragraph, the 
cost is that shown to be the value of the steel and iron products as 
they are delivered to the project.
    (c)(1) A State may request a waiver of the provisions of this 
section if;
    (i) The application of those provisions would be inconsistent with 
the public interest; or
    (ii) Steel and iron materials/products are not produced in the 
United States in sufficient and reasonably available quantities which 
are of a satisfactory quality.
    (2) A request for waiver, accompanied by supporting information, 
must be submitted in writing to the Regional Federal Highway 
Administrator (RFHWA) through the FHWA Division Administrator. A request 
must be submitted sufficiently in advance of the need for the waiver in 
order to allow time for proper review and action on the request. The 
RFHWA will have approval authority on the request.
    (3) Requests for waivers may be made for specific projects, or for 
certain materials or products in specific geographic areas, or for 
combinations of both, depending on the circumstances.
    (4) The denial of the request by the RFHWA may be appealed by the 
State to the Federal Highway Administrator (Administrator), whose action 
on the request shall be considered administratively final.
    (5) A request for a waiver which involves nationwide public interest 
or availability issues or more than one FHWA region may be submitted by 
the RFHWA to the Administrator for action.
    (6) A request for waiver and an appeal from a denial of a request 
must include facts and justification to support the granting of the 
waiver. The FHWA response to a request or appeal will be in writing and 
made available to the public upon request. Any request for a nationwide 
waiver and FHWA's action on such a request may be published in the 
Federal Register for public comment.
    (7) In determining whether the waivers described in paragraph (c)(1) 
of this section will be granted, the FHWA will consider all appropriate 
factors including, but not limited to, cost, administrative burden, and 
delay that would be imposed if the provision were not waived.
    (d) Standard State and Federal-aid contract procedures may be used 
to assure compliance with the requirements of this section.

[48 FR 53104, Nov. 25, 1983, as amended at 49 FR 18821, May 3, 1984; 58 
FR 38975, July 21, 1993]



Sec.  635.411  Culvert and storm sewer material types.

    State Departments of Transportation (State DOTs) shall have the 
autonomy to determine culvert and storm sewer material types to be 
included in the construction of a project on a Federal-aid highway.

[84 FR 51028, Sept. 27, 2019]



Sec.  635.413  Guaranty and warranty clauses.

    The State DOT may include warranty provisions in National Highway 
System (NHS) construction contracts in accordance with the following:

[[Page 295]]

    (a) Warranty provisions shall be for a specific construction product 
or feature. Items of maintenance not eligible for Federal participation 
shall not be covered.
    (b) All warranty requirements and subsequent revisions shall be 
submitted to the Division Administrator for advance approval.
    (c) No warranty requirement shall be approved which, in the judgment 
of the Division Administrator, may place an undue obligation on the 
contractor for items over which the contractor has no control.
    (d) A State DOT may follow its own procedures regarding the 
inclusion of warranty provisions in non-NHS Federal-aid contracts.
    (e) In the case of a design-build project, the following 
requirements will apply instead of paragraphs (a) through (d) of this 
section.
    (1) General project warranties may be used on NHS projects, 
provided:
    (i) The term of the warranty is short (generally one to two years); 
however, projects developed under a public-private agreement may include 
warranties that are appropriate for the term of the contract or 
agreement.
    (ii) The warranty is not the sole means of acceptance;
    (iii) The warranty must not include items of routine maintenance 
which are not eligible for Federal participation; and,
    (iv) The warranty may include the quality of workmanship, materials 
and other specific tasks identified in the contract.
    (2) Performance warranties for specific products on NHS projects may 
be used at the State DOT's discretion. If performance warranties are 
used, detailed performance criteria must be provided in the Request for 
Proposal document.
    (3) The State DOT may follow its own procedures regarding the 
inclusion of warranty provisions on non-NHS Federal-aid design-build 
contracts.
    (4) For best value selections, the State DOT may allow proposers to 
submit alternate warranty proposals that improve upon the warranty terms 
in the RFP document. Such alternate warranty proposals must be in 
addition to the base proposal that responds to the RFP requirements.

[60 FR 44274, Aug. 25, 1995, as amended at 67 FR 75926, Dec. 10, 2002; 
72 FR 45336, Aug. 14, 2007]



Sec.  635.417  Convict produced materials.

    (a) Materials produced after July 1, 1991, by convict labor may only 
be incorporated in a Federal-aid highway construction project if such 
materials have been:
    (1) Produced by convicts who are on parole, supervised release, or 
probation from a prison or
    (2) Produced in a qualified prison facility and the cumulative 
annual production amount of such materials for use in Federal-aid 
highway construction does not exceed the amount of such materials 
produced in such facility for use in Federal-aid highway construction 
during the 12-month period ending July 1, 1987.
    (b) Qualified prison facility means any prison facility in which 
convicts, during the 12-month period ending July 1, 1987, produced 
materials for use in Federal-aid highway construction projects.

[53 FR 1923, Jan. 25, 1988, as amended at 58 FR 38975, July 21, 1993]



  Subpart E_Construction Manager/General Contractor (CM/GC) Contracting

    Source: 81 FR 86943, Dec. 2, 2016, unless otherwise noted.



Sec.  635.501  Purpose.

    The regulations in this subpart prescribe policies, requirements, 
and procedures relating to the use of the CM/GC method of contracting on 
Federal-aid projects.



Sec.  635.502  Definitions.

    As used in this subpart:
    Agreed price means the price agreed to by the Construction Manager/
General Contractor (CM/GC) contractor and the contracting agency to 
provide construction services for a specific scope and schedule.
    CM/GC contractor means the entity that has been awarded a two-phase 
contract for a CM/GC project and is responsible for providing 
preconstruction

[[Page 296]]

services under the first phase and, if a price agreement is reached, 
construction services under the second phase of such contract.
    CM/GC project means a project to be delivered using a two-phase 
contract with a CM/GC contractor for services during the preconstruction 
and, if there is an agreed price, construction phases of a project.
    Construction services means the physical construction work 
undertaken by a CM/GC contractor to construct a project or a portion of 
the project (including early work packages). Construction services 
include all costs to perform, supervise, and administer physical 
construction work. Construction services may be authorized as a single 
contract for the project, or through a combination of contracts covering 
portions of the CM/GC project.
    Contracting agency means the State Transportation Agency (STA), and 
any State or local government agency, public-private partnership, or 
Indian tribe (as defined in 2 CFR 200.54) that is the acting under the 
supervision of the STA and is awarding and administering a CM/GC 
contract.
    Division Administrator means the chief FHWA official assigned to 
conduct business in a particular State.
    Early work package means a portion or phase of physical construction 
work (including but not limited to site preparation, structure 
demolition, hazardous material abatement/treatment/removal, early 
material acquisition/fabrication contracts, or any action that 
materially affects the objective consideration of alternatives in the 
NEPA review process) that is procured after NEPA is complete but before 
all design work for the project is complete. Contracting agencies may 
procure an early work package when construction risks have been 
addressed (both agency and CM/GC contractor risks) and the scope of work 
is defined sufficiently for the contracting agency and the CM/GC 
contractor to reasonably determine price. The requirements in Sec.  
635.506 (including Sec.  635.506(d)(2)) and Sec.  635.507 apply to 
procuring an early work package and FHWA authorization for an early work 
package.
    Final design has the same meaning as defined in Sec.  636.103 of 
this chapter.
    NEPA process means the environmental review required under the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.), applicable portions of the NEPA implementing regulations at 40 
CFR parts 1500-1508, and part 771 of this chapter.
    Preconstruction services means consulting to provide a contracting 
agency and its designer with information regarding the impacts of design 
on the physical construction of the project, including but not limited 
to: Scheduling, work sequencing, cost engineering, constructability, 
cost estimating, and risk identification. Under a preconstruction 
services contract, the CM/GC contractor may provide consulting services 
during both preliminary and, subject to provisions in this subpart, 
final design. Such services may include on-site material sampling and 
data collection to assist the contacting agency's design team in its 
preliminary design work, but do not include design and engineering-
related services as defined in Sec.  172.3 of this chapter. The services 
may include the preparation of plans typically developed by a 
construction contractor during the construction phase (such as 
preliminary staging or preliminary falsework plans) when needed for the 
NEPA process. However, services involving plans or submittals that are 
considered elements of final design and not needed for the NEPA process 
(such as shop drawings or fabrication plans) is not allowed, even on an 
at-risk basis, prior to the completion of the NEPA review process.
    Preliminary design has the same meaning as defined in section 
636.103 of this title.
    Solicitation document means the document used by the contracting 
agency to advertise the CM/GC project and request expressions of 
interest, statements of qualifications, proposals, or offers.
    State transportation agency (STA) has the same meaning as the term 
State transportation department (State DOT) under Sec.  635.102 of this 
chapter.

[[Page 297]]



Sec.  635.503  Applicability.

    The provisions of this subpart apply to all Federal-aid projects 
within the right-of-way of a public highway, those projects required by 
law to be treated as if located on a Federal-aid highway, and other 
projects which are linked to such projects (i.e., the project would not 
exist without another Federal-aid highway project) that are to be 
delivered using the CM/GC contractor method.



Sec.  635.504  CM/GC Requirements.

    (a) In general. A contracting agency may award a two-phase contract 
to a CM/GC contractor for preconstruction and construction services. The 
first phase of this contract is the preconstruction services phase. The 
second phase is the construction services phase. The construction 
services phase may occur under one contract or under multiple contracts 
covering portions of the project, including early work packages.
    (b) Procurement requirements. (1) The contracting agency may procure 
the CM/GC contract using applicable State or local competitive selection 
procurement procedures as long as those procedures do not serve as a 
barrier to free and open competition or conflict with applicable Federal 
laws and regulations.
    (2) Contracting agency procedures may use any of the following 
solicitation options in procuring a CM/GC contract: Letters of interest, 
requests for qualifications, interviews, request for proposals or other 
solicitation procedures provided by applicable State law, regulation or 
policy. Single-phase or multiple-phase selection procedures may also be 
used.
    (3) Contracting agency procedures shall require, at a minimum, that 
a CM/GC contract be advertised through solicitation documents that:
    (i) Clearly define the scope of services being requested;
    (ii) List evaluation factors and significant subfactors and their 
relative importance in evaluating proposals;
    (iii) List all required deliverables;
    (iv) Identify whether interviews will be conducted before 
establishing the final rank (however, the contracting agency may reserve 
the right to make a final determination whether interviews are needed 
based on responses to the solicitation); and
    (v) Include or reference sample contract form(s).
    (4) If interviews are used in the selection process, the contracting 
agency must offer the opportunity for an interview to all short listed 
firms (or firms that submitted responsive proposals, if a short list is 
not used). Also, if interviews are used, then the contracting agency 
must not engage in conduct that favors one firm over another and must 
not disclose a firm's offer to another firm.
    (5) A contracting agency may award a CM/GC contract based on 
qualifications, experience, best value, or any other combination of 
factors considered appropriate by the contracting agency and the 
Division Administrator and which are clearly specified in the 
solicitation documents.
    (6) In the event that the contracting agency is unwilling or unable 
to enter into a contract with the CM/GC contractor for the construction 
services phase of the project (including any early work package), after 
the concurrence of the Division Administrator, the contracting agency 
may initiate a new procurement process meeting the requirements of 
subpart A of this part, or of another approved method for the affected 
portion of the construction work. If Federal-aid participation is being 
requested in the cost of construction, the contracting agency must 
request FHWA's approval before advertising for bids or proposals in 
accordance with Sec.  635.112 and part 636 of this chapter. When the 
contracting agency makes a decision to initiate a new procurement, the 
contracting agency may determine that the CM/GC contractor is likely to 
have a competitive advantage that could adversely affect fair and open 
competition and not allow the CM/GC contractor to submit competitive 
bids.
    (c) FHWA approval of CM/GC procedures. (1) The STA must submit its 
proposed CM/GC procurement procedures to the FHWA Division Administrator 
for review and approval. Any changes in approved procedures and 
requirements shall also be subject to approval by the Division 
Administrator. Other

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contracting agencies may follow STA approved procedures, or their own 
procedures if approved by both the STA and FHWA.
    (2) The Division Administrator may approve procedures that conform 
to the requirements of this subpart and which do not, in the opinion of 
the Division Administrator, operate to restrict competition. The 
Division Administrator's approval of CM/GC procurement procedures may 
not be delegated or assigned to the STA.
    (d) Subcontracting. Consistent with Sec.  635.116(a), contracts for 
construction services must specify a minimum percentage of work (no less 
than 30 percent of the total cost of all construction services performed 
under the CM/GC contract, excluding specialty work) that a contractor 
must perform with its own forces. If required by State law, regulation, 
or administrative policy, the contracting agency may require the CM/GC 
contractor to competitively let and award subcontracts for construction 
services to the lowest responsive bidder.
    (e) Payment methods. (1) The method of payment to the CM/GC 
contractor shall be set forth in the original solicitation documents, 
contract, and any contract modification or change order thereto. A 
single contract may contain different payment methods as appropriate for 
compensation of different elements of work.
    (2) The methods of payment for preconstruction services shall be: 
Lump sum, cost plus fixed fee, cost per unit of work, specific rates of 
compensation, or other comparable payment method permitted in State law 
and regulation. When compensation is based on actual costs, an approved 
indirect cost rate must be used. The cost plus a percentage of cost and 
percentage of construction cost methods of payment shall not be used.
    (3) The method of payment for construction services may include any 
method of payment authorized by State law (including, but not limited 
to, lump sum, unit price, and target price). The cost plus a percentage 
of cost and percentage of construction cost methods of payment shall not 
be used.



Sec.  635.505  Relationship to the NEPA process.

    (a) In procuring a CM/GC contract before the completion of the NEPA 
process, the contracting agency may:
    (1) Issue solicitation documents;
    (2) Proceed with the award of a CM/GC contract providing for 
preconstruction services and an option to enter into a future contract 
for construction services once the NEPA review process is complete;
    (3) Issue notices to proceed to the CM/GC contractor for 
preconstruction services, excluding final design-related activities; and
    (4) Issue a notice-to-proceed to a consultant design firm for the 
preliminary design and any work related to preliminary design of the 
project to the extent that those actions do not limit any reasonable 
range of alternatives.
    (b) The contracting agency shall not initiate construction 
activities (even on an at-risk basis) or allow such activities to 
proceed prior to the completion of the NEPA process. The contracting 
agency shall not perform or contract for construction services 
(including early work packages of any kind) prior to the completion of 
the NEPA process.
    (c) A contracting agency may proceed, solely at the risk and expense 
of the contracting agency, with design activities at any level of 
detail, including final design and preconstruction services associated 
with final design, for a CM/GC project before completion of the NEPA 
process without affecting subsequent approvals required for the project. 
However, FHWA shall not authorize final design activities and 
preconstruction services associated with final design, and such 
activities shall not be eligible for Federal funding as provided in 
Sec.  635.506(c), until after the completion the NEPA process. A 
contracting agency may use a CM/GC contractor for preconstruction 
services associated with at-risk final design only if the contracting 
agency has a procedure for segregating the costs of the CM/GC 
contractor's at-risk work from preconstruction services eligible for 
reimbursement during the NEPA process. If a contracting agency decides 
to perform at-risk final design, it must notify FHWA of its decision to

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do so before undertaking such activities.
    (d) The CM/GC contract must include termination provisions in the 
event the environmental review process does not result in the selection 
of a build alternative. This termination provision is in addition to the 
termination for cause or convenience clause required by Appendix II to 2 
CFR part 200.
    (e) If the contracting agency expects to use information from the 
CM/GC contractor in the NEPA review for the project, then the 
contracting agency is responsible for ensuring its CM/GC contract gives 
the contracting agency the right to obtain, as needed, technical 
information on all alternatives analyzed in the NEPA review.
    (f) The CM/GC contract must include appropriate provisions ensuring 
no commitments are made to any alternative during the NEPA process, and 
that the comparative merits of all alternatives identified and 
considered during the NEPA process, including the no-build alternative, 
will be evaluated and fairly considered.
    (g) The CM/GC contractor must not prepare NEPA documentation or have 
any decisionmaking responsibility with respect to the NEPA process. 
However, the CM/GC contractor may be requested to provide information 
about the project and possible mitigation actions, including 
constructability information, and its work product may be considered in 
the NEPA analysis and included in the record.
    (h) Any contract for construction services under a CM/GC contract 
must include appropriate provisions ensuring that all environmental and 
mitigation measures identified in the NEPA documentation and committed 
to in the NEPA determination for the selected alternative will be 
implemented, excepting only measures the contracting agency expressly 
describes in the CM/GC contract as excluded because they are the 
responsibility of others.



Sec.  635.506  Project approvals and authorizations.

    (a) In general. (1) Under 23 U.S.C. 106(c), the States may assume 
certain FHWA responsibilities for project design, plans, specifications, 
estimates, contract awards, and inspections. Any individual State's 
assumption of FHWA responsibilities for approvals and determinations for 
CM/GC projects, as described in this subpart, will be addressed in the 
State's FHWA/STA Stewardship and Oversight Agreement. The State may not 
further delegate or assign those responsibilities. If an STA assumes 
responsibility for an FHWA approval or determination contained in this 
subpart, the STA will include documentation in the project file 
sufficient to substantiate its actions and to support any request for 
authorization of funds. The STA will provide FHWA with the documentation 
upon request.
    (2) States cannot assume FHWA review or approval responsibilities 
for Sec. Sec.  635.504(c) (review and approval of CM/GC procurement 
procedures) or 635.506(c) (FHWA post-NEPA review of at-risk final design 
costs for eligibility).
    (3) In accordance with 23 U.S.C. 106(c), States may assume FHWA 
review or approval responsibilities for Sec. Sec.  635.504(b)(6) 
(approval of bidding), 635.504(e)(3) (approval of indirect cost rate), 
635.506(b) (approval of preconstruction price and cost/price analysis), 
635.506(d)(2) (approval of price estimate for entire project), 
635.506(d)(4) (approval of construction price analysis for each 
construction services contract), and 635.506(e) (approval of 
preconstruction services and construction services contract awards) for 
CM/GC projects on the National Highway System, including projects on the 
Interstate System, and must assume such responsibilities for projects 
off the National Highway System unless the State determines such 
assumption is not appropriate.
    (b) Preconstruction services approvals and authorization. (1) If the 
contracting agency wishes Federal participation in the cost of the CM/GC 
contractor's preconstruction services, it must request FHWA's 
authorization of preliminary engineering before incurring such costs, 
except as provided by section 1440 of the Fixing America's Surface 
Transportation Act, Pub. L. 114-357 (December 1, 2015).
    (2) Before authorizing pre-construction services by the CM/GC 
contractor,

[[Page 300]]

the Division Administrator must review and approve the contracting 
agency's cost or price analysis for the preconstruction services 
procurement (including contract modifications). A cost or price analysis 
is encouraged but not required for procurements less than the simplified 
acquisition threshold in 2 CFR 200.88. The requirements of this 
paragraph apply when the contracting agency is requesting Federal 
assistance in the cost of preconstruction services.
    (c) Final design during NEPA process. (1) If the contracting agency 
proceeds with final design activities, including CM/GC preconstruction 
services associated with final design activities, at its own expense 
before the completion of the NEPA process, then those activities for the 
selected alternative may be eligible for Federal reimbursement after the 
completion of the NEPA process so long as the Division Administrator 
finds that the contracting agency's final design-related activities:
    (i) Did not limit the identification and fair evaluation of a 
reasonable range of alternatives for the proposed project;
    (ii) Did not result in an irrevocable commitment by the contracting 
agency to the selection of a particular alternative;
    (iii) Did not have an adverse environmental impact; and
    (iv) Are necessary and reasonable and adequately documented.
    (2) If, during the NEPA process, the Division Administrator finds 
the final design work limits the fair evaluation of alternatives, 
irrevocably commits the contracting agency to the selection of any 
alternative, or causes an adverse environmental impact, then the 
Division Administrator shall require the contracting agency to take any 
necessary action to ensure the integrity of the NEPA process regardless 
of whether or not the contracting agency wishes to receive Federal 
reimbursement for such activities.
    (d) Construction services approvals and authorizations. (1) Subject 
to the requirements in Sec.  635.505, the contracting agency may request 
Federal participation in the construction services costs associated with 
a CM/GC construction project, or portion of a project (including an 
early work package). In such cases, FHWA's construction contracting 
requirements will apply to all of the CM/GC project's construction 
contracts if any portion (including an early work package) of the CM/GC 
project construction is funded with title 23 funds. Any expenses 
incurred for construction services before FHWA authorization shall not 
be eligible for reimbursement except as may be determined in accordance 
with Sec.  1.9 of this chapter.
    (2) The Division Administrator must approve the price estimate for 
construction costs for the entire project before authorization of 
construction services (including authorization of an early work 
package).
    (3) The contracting agency must perform a price analysis for any 
contract (or contract modification) that establishes or revises the 
scope, schedule or price for the construction of the CM/GC project or a 
portion of the project (including an early work package). The price 
analysis must compare the agreed price with the contracting agency's 
engineer's estimate or an independent cost estimate (if required by the 
contracting agency). A price analysis is encouraged but not required for 
procurements less than the simplified acquisition threshold in 2 CFR 
200.88.
    (4) The Division Administrator must review and approve the 
contracting agency's price analysis and agreed price for the 
construction services of a CM/GC project or a portion of the project 
(including an early work package) before authorization of construction 
services.
    (5) Where the contracting agency and the CM/GC contractor agree on a 
price for construction services that is approved under paragraph (d)(4) 
of this section, FHWA's authorization of construction services will be 
based on the approved agreed price for the project or portion of the 
project. The authorization may include authorization of an early work 
package, including the advanced acquisition of materials consistent with 
Sec.  635.122 and this subpart. In the event that construction materials 
are acquired for a CM/GC project but not installed in the CM/GC project, 
the cost of such material will not be eligible for Federal-aid 
participation. In

[[Page 301]]

accordance with Sec.  635.507 and 2 CFR part 200, FHWA may deny 
eligibility for part or all of an early work package if such work is not 
needed for, or used for, the project.
    (e) Contract award. The award of a Federal-aid CM/GC contract for 
preconstruction services and the award of contract(s) for construction 
services require prior concurrence from the Division Administrator. The 
concurrence is a prerequisite to authorization of preconstruction and 
construction services (including authorization for an early work 
package). Concurrence in the CM/GC contract award for construction 
services constitutes approval of the agreed price, scope, and schedule 
for the work under that contract. Where the contracting agency has 
established a Disadvantaged Business Enterprise (DBE) contract goal for 
the CM/GC construction services contract, the initial proposal for CM/GC 
construction services must include the DBE documentation required by 49 
CFR 26.53(b)(2), or it must include a contractually binding commitment 
to meet the DBE contract goal, with the information required by 49 CFR 
26.53(b)(2) provided before the contracting agency awards the contract 
for construction services. A copy of the executed contract between the 
contracting agency and the CM/GC contractor, including any contract for 
construction services, shall be furnished to the Division Administrator 
as soon as practical after execution. If the contracting agency decides 
not to proceed with the award of a CM/GC construction services contract, 
then it must notify the FHWA Division Administrator as provided in Sec.  
635.504(b)(6).



Sec.  635.507  Cost eligibility.

    (a) Costs, or prices based on estimated costs, under a CM/GC 
contract shall be eligible for Federal-aid reimbursement only to the 
extent that costs incurred, or cost estimates included in negotiated 
prices, are allowable in accordance with the Federal cost principles (as 
specified in 2 CFR part 200, subpart E). Contracting agencies must 
perform a cost or price analysis in connection with procurement actions, 
including contract modifications, in accordance with 2 CFR 200.323(a) 
and this subpart.
    (1) For preconstruction services, to the extent that actual costs or 
cost estimates are included in negotiated prices that will be used for 
cost reimbursement, the costs must comply with the Federal cost 
principles to be eligible for participation.
    (2) For construction services, the price analysis must confirm the 
agreed price is reasonable in order to satisfy cost eligibility 
requirements (see Sec.  635.506(d)(3)). The FHWA will rely on an 
approved price analysis when authorizing funds for construction.
    (b) Indirect cost rates. Where preconstruction service payments are 
based on actual costs the CM/GC contractor must provide an indirect cost 
rate established in accordance with the Federal cost principles (as 
specified in 2 CFR part 200 subpart E).
    (c) Cost certification. (1) If the CM/GC contractor presents an 
indirect cost rate established in accordance with the Federal cost 
principles (as specified in 2 CFR part 200 subpart E), it shall include 
a certification by an official of the CM/GC contractor that all costs 
are allowable in accordance with the Federal cost principles.
    (2) An official of the CM/GC contractor shall be an individual 
executive or financial officer of the CM/GC contractor's organization, 
at a level no lower than a Vice President or Chief Financial Officer, or 
equivalent, who has the authority to make representations about the 
financial information utilized to establish the indirect cost rate 
proposal submitted.
    (3) The certification of final indirect costs shall read as follows:

Certificate of Final Indirect Costs

    This is to certify that I have reviewed this proposal to establish 
final indirect cost rates and to the best of my knowledge and belief:
    1. All costs included in this proposal (identify proposal and date) 
to establish final indirect cost rates for (identify period covered by 
rate) are allowable in accordance with the cost principles in 2 CFR part 
200 subpart E; and
    2. This proposal does not include any costs which are expressly 
unallowable under applicable cost principles of 2 CFR part 200 subpart 
E.

[[Page 302]]



  Subpart F_Indefinite Delivery/Indefinite Quantity (ID/IQ) Contracting

    Source: 85 FR 72932, Nov. 16, 2020, unless otherwise noted.



Sec.  635.601  Purpose.

    The regulations in this subpart prescribe policies, requirements, 
and procedures relating to the use of the ID/IQ method of contracting on 
Federal-aid construction projects.



Sec.  635.602  Definitions.

    As used in this subpart:
    Best value selection means any selection process in which proposals 
contain both price and qualitative components and award of the contract 
is based upon a combination of price and qualitative considerations. 
Qualitative considerations may include past performance, timeliness, 
reliability, experience, work quality, safety, or other considerations.
    Contracting agency means the State department of transportation 
(State DOT), and any State or local government agency, public-private 
partnership, or Indian tribe (as defined in 2 CFR part 200) that is the 
acting under the supervision of the State DOT and is awarding and 
administering an Indefinite Delivery/Indefinite Quantity (ID/IQ) 
contract.
    ID/IQ means a method of contracting that allows an indefinite 
quantity of services for a fixed time. This method is used when a 
contracting agency anticipates a recurring need but has not determined, 
above a specified minimum, the precise quantities of services that it 
will require during the contract period. Contractors bid unit prices for 
estimated quantities of standard work items, and work orders are used to 
define the location and quantities for specific work.
    ID/IQ contract means the principal contract between the contracting 
agency and the contractor. Contracting agencies may use other names for 
ID/IQ contracts including job order contracting (JOC) contracts, master 
contracts, on-call contracts, push-button contracts, design-build ID/IQ 
contracts, design-build push button contracts, stand-by contracts, or 
task order contracts.
    JOC, or Job order contracting, means a form of ID/IQ contracting 
that uses a unit price book in the solicitation and the bidder's 
adjustment factors or multipliers to establish contract prices.
    JOC contract means a type of ID/IQ contract delivered using the JOC 
method. Requirements for ID/IQ contracts apply to JOC contracts unless 
otherwise specified in this subpart.
    NEPA process has the same meaning as defined in Sec.  635.502 of 
this part.
    Unit price book means a book, guide, list, or similar document which 
includes defined construction tasks, and for each task, includes a unit 
of measure and a preset unit price.
    Work order means the contract document issued for a definite scope 
of work under an ID/IQ contract. It defines the location, time, and 
scope of work required by the contracting agency. It also defines 
required pay items, quantities, and unit prices, as applicable. 
Contracting agencies may use other names for work orders including job 
orders, service orders, task orders, or task work orders.



Sec.  635.603  Applicability.

    (a) Except as provided in paragraph (b) of this section, the 
provisions of this subpart apply to all Federal-aid construction 
projects.
    (b) This subpart does not apply to engineering and design service 
contracts, to which 23 CFR part 172 applies, or Federal Lands Highway 
contracts, to which 48 CFR subpart 16.5 applies.



Sec.  635.604  ID/IQ Requirements.

    (a) Procurement requirements.
    (1) The contracting agency may procure the ID/IQ contract using 
applicable State or local competitive selection procurement procedures 
if those procedures:
    (i) Comply with this section;
    (ii) Are effective in securing competition; and
    (iii) Do not conflict with applicable Federal laws and regulations.
    (2) The solicitation for an ID/IQ contract shall state the 
procedures and criteria the contracting agency will use to award the ID/
IQ contract.

[[Page 303]]

    (3) In addition to the requirements set forth under (a)(2), the ID/
IQ contract, and any solicitation for an ID/IQ contract, must:
    (i) Specify the period of the contract, including the number of 
optional contract extensions and the period for which the contracting 
agency may extend the contract under each optional extension.
    (ii) Specify the basis, such as a published index, and procedure to 
be used for adjusting prices for optional contract extensions when 
optional contract extensions are included. Negotiated contract price 
adjustments for optional contract extensions are not eligible for 
Federal-aid participation.
    (iii) Specify the estimated minimum and maximum quantity of services 
the contracting agency will acquire under the contract. The ID/IQ 
contract may also specify estimated minimum or maximum quantities that 
the contracting agency may order under each work order.
    (iv) Include appropriate statements of work, specifications, or 
other descriptions that reasonably and accurately describe the general 
scope, nature, complexity, and purpose of the services the contracting 
agency will acquire under the contract.
    (v) State the procedures that the contracting agency will use in 
issuing work orders, and, if multiple awards may be made, state the 
procedures and selection criteria that the contracting agency will use 
to provide awardees a fair opportunity to be considered for each work 
order.
    (vi) Include the contracting agency's dispute resolution procedures 
available to awardees if multiple awards may be made.
    (4) In addition to the requirements set forth under (a)(3), a JOC 
contract shall:
    (i) Use a unit price book to contain or reference the information 
described under (a)(3)(iv).
    (ii) Include the unit price book both in the contract and the 
solicitation.
    (iii) Include prices adjusted by the contractor's adjustment factors 
or multipliers for each item in the unit price book.
    (5) The contracting agency's procurement procedures may include 
selection of one or multiple contractors based on competitive low bid or 
best value selection under a single solicitation. For contracts awarded 
to multiple contractors under a single solicitation, the issuance of 
work orders must be based on lowest cost or lowest cost plus time to the 
government for the specified work. Work orders shall not be issued to 
contractors on a rotating basis or other non-competitive method.
    (6) The sum of the duration of the initial ID/IQ contract and any 
optional contract extensions shall not exceed five years. The 
contracting agency may include a provision in the ID/IQ contract to 
exercise an option or options to extend the contract for a term or terms 
such that the duration of each optional contract extension does not 
exceed the initial duration of the ID/IQ contract.
    (i) Prior to granting a contract extension, the contracting agency 
must receive concurrence from the Division Administrator.
    (ii) For ID/IQ contracts where prevailing wages apply under 23 
U.S.C. 113, the current prevailing wage rate determination as determined 
by the U.S. Department of Labor in effect on the date of the execution 
of the contract extension shall apply to work covered under the contract 
extension.
    (iii) For ID/IQ contracts exceeding one year in duration, the 
contracting agency may use price escalation methods, such as referring 
to a published index, to adjust the payment for items of work in the 
issuance of work orders. Such price escalation methods, however, shall 
not be applied to items of work when those items are separately covered 
under commodity price escalation clauses in the ID/IQ contract.
    (7) Contracting agency payment to a contractor to satisfy a minimum 
award provision that is not supported by eligible work is not eligible 
for Federal-aid participation.
    (b) Participation by disadvantaged business enterprises. The 
requirements of 49 CFR part 26 and the State's approved Disadvantaged 
Business Enterprise (DBE) plan apply to ID/IQ contracts. At the option 
of the State DOT, DBE contract or project goal setting and goal 
attainment may apply to ID/

[[Page 304]]

IQ contracts in their entirety, or to individual work orders for ID/IQ 
contracts with single or multiple awards, or both. The solicitation for 
ID/IQ contracts shall specify the applicable requirements.
    (c) Subcontracting. At the option of the State DOT, the minimum 
prime contractor participation requirement set forth at Sec.  635.116 
may be applied over the entirety of the ID/IQ contract or applied to 
each individual work order. The solicitation shall specify the 
applicable requirements.
    (d) Liquidated damages. When a contracting agency's processes or 
procedures use project cost to establish the assessed rate of liquidated 
damages under Sec.  635.127, the work order cost shall be used to 
determine the rate when liquidated damages are assessed.
    (e) Applicable State procedures. Nothing in this subpart shall be 
construed as prohibiting a State DOT from adopting more restrictive 
policies and procedures than contained herein regarding ID/IQ contracts.



Sec.  635.605  Approvals and authorizations.

    (a) Advertisement, award, and the relationship to NEPA.
    (1) The solicitation for an ID/IQ contract may identify all, some, 
or none of the specific locations where construction is to be required 
under the ID/IQ contract.
    (2) With prior concurrence of the Division Administrator, the 
contracting agency may advertise the solicitation for an ID/IQ contract 
prior to the completion of the NEPA process.
    (3) With prior concurrence of the Division Administrator, the 
contracting agency may award an ID/IQ contract prior to the completion 
of the NEPA process.
    (4) An authorization to proceed, or formal project agreement under 
Sec.  630.106 of this chapter for an ID/IQ contract, shall not be issued 
or executed for final design or physical construction for work until the 
NEPA process has been completed for said work. An authorization or 
agreement under this paragraph may apply to work in multiple locations.
    (5) With the approval of the Division Administrator, the formal 
project agreement under Sec.  630.106 of this chapter for final design 
or physical construction under an ID/IQ contract may be amended as 
necessary as additional work locations are identified and the NEPA 
process is completed for the additional work locations.
    (6) The agreement estimate for final design or physical construction 
required for an ID/IQ contract under Sec.  635.115 shall not exceed the 
actual or best estimated costs of items necessary to complete the scope 
of work considered in applicable work orders and in the completed NEPA 
processes as described in paragraphs (4) and (5) of this subsection. The 
estimate shall be adjusted as necessary as set forth under Sec.  
630.106(a)(4) of this chapter.
    (b) Federal participation.
    (1) Subject to the requirements in this subpart, the contracting 
agency may request Federal participation in the costs associated with an 
ID/IQ contract, or portion of a contract. In such cases, FHWA's 
construction contracting requirements will apply to all ID/IQ contract 
work orders if any ID/IQ contract work orders are funded with Title 23, 
U.S.C. funds. Any expenses incurred before FHWA authorization shall not 
be eligible for reimbursement except as may be determined in accordance 
with Sec.  1.9 of this chapter.
    (2) The applicable Federal share for each work order shall be 
specified in the relevant project agreement.



Sec.  635.606  ID/IQ procedures.

    (a) FHWA approval. The State DOT shall submit its proposed ID/IQ 
procurement procedures to the Division Administrator for review and 
approval. Following approval by the Division Administrator, any 
subsequent changes in procedures and requirements shall also be subject 
to approval by the Division Administrator before they are implemented. 
Other contracting agencies may follow approved State DOT procedures in 
their State or their own procedures if approved by both the State DOT 
and FHWA. The Division Administrator's approval of ID/IQ procurement 
procedures may not be delegated or assigned to the State DOT.
    (b) Competition. ID/IQ procurement procedures shall effectively 
secure

[[Page 305]]

competition in the judgment of the Division Administrator.
    (c) Procurement requirements. ID/IQ procurement procedures shall 
include the following procedures and responsibilities:
    (1) Review and approval of ID/IQ solicitations;
    (2) Review and approval of work item descriptions and 
specifications;
    (3) Approval to advertise solicitations;
    (4) Concurrence with ID/IQ contract awards to single or multiple 
contractors;
    (5) Approval of and amendments to formal project agreements and 
authorizations to proceed pursuant to Sec.  630.106 of this chapter;
    (6) Issuance of work orders;
    (7) Approval of and amendments to agreement estimates pursuant to 
Sec.  635.115;
    (8) Changed conditions clauses;
    (9) Approval of contract changes and extra work pursuant to Sec.  
635.120; and
    (10) Other procedures as needed to ensure compliance with other 
requirements in this subpart and under Title 23, U.S.C. and its 
implementing regulations and 49 CFR part 26.
    (d) Design-build and ID/IQ. Subject to the approval of the Division 
Administrator, as described in Sec.  635.606(a), contracting agencies 
may incorporate the design-build contracting method with ID/IQ 
contracts. In addition to the requirements of this section, the 
contracting agency shall include procedures as needed to ensure 
compliance with part 636 of this chapter and related requirements.



PART 636_DESIGN-BUILD CONTRACTING--Table of Contents



                            Subpart A_General

Sec.
636.101 What does this part do?
636.102 Does this part apply to me?
636.103 What are the definitions of terms used in this part?
636.104 Does this part apply to all Federal-aid design-build projects?
636.105 Is the FHWA requiring the use of design-build?
636.106 [Reserved]
636.107 May contracting agencies use geographic preference in Federal-
          aid design-build or public-private partnership projects?
636.108 [Reserved]
636.109 How does the NEPA process relate to the design-build procurement 
          process?
636.110 What procedures may be used for solicitations and receipt of 
          proposals?
636.111 Can oral presentations be used during the procurement process?
636.112 May stipends be used?
636.113 Is the stipend amount eligible for Federal participation?
636.114 What factors should be considered in risk allocation?
636.115 May I meet with industry to gather information concerning the 
          appropriate risk allocation strategies?
636.116 What organizational conflict of interest requirements apply to 
          design-build projects?
636.117 What conflict of interest standards apply to individuals who 
          serve as selection team members for the owner?
636.118 Is team switching allowed after contract award?
636.119 How does this part apply to a project developed under a public-
          private partnership?

             Subpart B_Selection Procedures, Award Criteria

636.201 What selection procedures and award criteria may be used?
636.202 When are two-phase design-build selection procedures 
          appropriate?
636.203 What are the elements of two-phase selection procedures for 
          competitive proposals?
636.204 What items may be included in a phase-one solicitation?
636.205 Can past performance be used as an evaluation criteria?
636.206 How do I evaluate offerors who do not have a record of relevant 
          past performance?
636.207 Is there a limit on short listed firms?
636.208 May I use my existing prequalification procedures with design-
          build contracts?
636.209 What items must be included in a phase-two solicitation?
636.210 What requirements apply to projects which use the modified 
          design-build procedure?
636.211 When and how should tradeoffs be used?
636.212 To what extent must tradeoff decisions be documented?

                  Subpart C_Proposal Evaluation Factors

636.301 How should proposal evaluation factors be selected?

[[Page 306]]

636.302 Are there any limitations on the selection and use of proposal 
          evaluation factors?
636.303 May pre-qualification standards be used as proposal evaluation 
          criteria in the RFP?
636.304 What process may be used to rate and score proposals?
636.305 Can price information be provided to analysts who are reviewing 
          technical proposals?

                           Subpart D_Exchanges

636.401 What types of information exchange may take place prior to the 
          release of the RFP document?
636.402 What types of information exchange may take place after the 
          release of the RFP document?
636.403 What information may be exchanged with a clarification?
636.404 Can a competitive range be used to limit competition?
636.405 After developing a short list, can I still establish a 
          competitive range?
636.406 Are communications allowed prior to establishing the competitive 
          range?
636.407 Am I limited in holding communications with certain firms?
636.408 Can communications be used to cure proposal deficiencies?
636.409 Can offerors revise their proposals during communications?

     Subpart E_Discussions, Proposal Revisions and Source Selection

636.501 What issues may be addressed in discussions?
636.502 Why should I use discussions?
636.503 Must I notify offerors of my intent to use/not use discussions?
636.504 If the solicitation indicated my intent was to award contract 
          without discussions, but circumstances change, may I still 
          hold discussions?
636.505 Must a contracting agency establish a competitive range if it 
          intends to have discussions with offerors?
636.506 What issues must be covered in discussions?
636.507 What subjects are prohibited in discussions, communications and 
          clarifications with offerors?
636.508 Can price or cost be an issue in discussions?
636.509 Can offerors revise their proposals as a result of discussions?
636.510 Can the competitive range be further defined once discussions 
          have begun?
636.511 Can there be more than one round of discussions?
636.512 What is the basis for the source selection decision?
636.513 Are limited negotiations allowed prior to contract execution?
636.514 How may I provide notifications and debriefings?

    Authority: Sec. 1503 of Pub. L. 109-59, 119 Stat. 1144; Sec. 1307 of 
Pub. L. 105-178, 112 Stat. 107; 23 U.S.C. 101, 109, 112, 113, 114, 115, 
119, 128, and 315; 49 CFR 1.48(b).

    Source: 67 FR 75926, Dec. 10, 2002, unless otherwise noted.



                            Subpart A_General



Sec.  636.101  What does this part do?

    This part describes the FHWA's policies and procedures for approving 
design-build projects financed under title 23, United States Code 
(U.S.C.). This part satisfies the requirement of section 1307(c) of the 
Transportation Equity Act for the 21st Century (TEA-21), enacted on June 
9, 1998. The contracting procedures of this part apply to all design-
build project funded under title 23, U.S.C.



Sec.  636.102  Does this part apply to me?

    (a) This part uses a plain language format to make the rule easier 
for the general public and business community to use. The section 
headings and text, often in the form of questions and answers, must be 
read together.
    (b) Unless otherwise noted, the pronoun ``you'' means the primary 
recipient of Federal-aid highway funds, the State Transportation 
Department (STD). Where the STD has an agreement with a local public 
agency (or other governmental agency) to administer a Federal-aid 
design-build project, the term ``you'' will also apply to that 
contracting agency.



Sec.  636.103  What are the definitions of terms used in this part?

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. Also, the following 
definitions are used:
    Adjusted low bid means a form of best value selection in which 
qualitative aspects are scored on a 0 to 100 scale expressed as a 
decimal; price is then divided by qualitative score to yield an 
``adjusted bid'' or ``price per quality point.'' Award is made to 
offeror with the lowest adjusted bid.
    Best value selection means any selection process in which proposals 
contain both price and qualitative components

[[Page 307]]

and award is based upon a combination of price and qualitative 
considerations.
    Clarifications means a written or oral exchange of information which 
takes place after the receipt of proposals when award without 
discussions is contemplated. The purpose of clarifications is to address 
minor or clerical revisions in a proposal.
    Communications are exchanges, between the contracting agency and 
offerors, after receipt of proposals, which lead to the establishment of 
the competitive range.
    Competitive acquisition means an acquisition process which is 
designed to foster an impartial and comprehensive evaluation of 
offerors' proposals, leading to the selection of the proposal 
representing the best value to the contracting agency.
    Competitive range means a list of the most highly rated proposals 
based on the initial proposal rankings. It is based on the rating of 
each proposal against all evaluation criteria.
    Contracting agency means the public agency awarding and 
administering a design-build contract. The contracting agency may be the 
STD or another State or local public agency.
    Deficiency means a material failure of a proposal to meet a 
contracting agency requirement or a combination of significant 
weaknesses in a proposal that increases the risk of unsuccessful 
contract performance to an unacceptable level.
    Design-bid-build means the traditional project delivery method where 
design and construction are sequential steps in the project development 
process.
    Design-build contract means an agreement that provides for design 
and construction of improvements by a contractor or private developer. 
The term encompasses design-build-maintain, design-build-operate, 
design-build-finance and other contracts that include services in 
addition to design and construction. Franchise and concession agreements 
are included in the term if they provide for the franchisee or 
concessionaire to develop the project which is the subject of the 
agreement.
    Design-builder means the entity contractually responsible for 
delivering the project design and construction.
    Discussions mean written or oral exchanges that take place after the 
establishment of the competitive range with the intent of allowing the 
offerors to revise their proposals.
    Final design means any design activities following preliminary 
design and expressly includes the preparation of final construction 
plans and detailed specifications for the performance of construction 
work.
    Fixed price/best design means a form of best value selection in 
which contract price is established by the owner and stated in the 
Request for Proposals document. Design solutions and other qualitative 
factors are evaluated and rated, with award going to the firm offering 
the best qualitative proposal for the established price.
    Intelligent Transportation System (ITS) services means services 
which provide for the acquisition of technologies or systems of 
technologies (e.g., computer hardware or software, traffic control 
devices, communications link, fare payment system, automatic vehicle 
location system, etc.) that provide or contribute to the provision of 
one or more ITS user services as defined in the National ITS 
Architecture.
    Modified design-build means a variation of design-build in which the 
contracting agency furnishes offerors with partially complete plans. The 
design-builders role is generally limited to the completion of the 
design and construction of the project.
    Organizational conflict of interest means that because of other 
activities or relationships with other persons, a person is unable or 
potentially unable to render impartial assistance or advice to the 
owner, or the person's objectivity in performing the contract work is or 
might be otherwise impaired, or a person has an unfair competitive 
advantage.
    Preliminary design defines the general project location and design 
concepts. It includes, but is not limited to, preliminary engineering 
and other activities and analyses, such as environmental assessments, 
topographic surveys, metes and bounds surveys, geotechnical 
investigations, hydrologic analysis, hydraulic analysis, utility 
engineering, traffic studies, financial plans, revenue estimates, 
hazardous

[[Page 308]]

materials assessments, general estimates of the types and quantities of 
materials, and other work needed to establish parameters for the final 
design. Prior to completion of the NEPA review process, any such 
preliminary engineering and other activities and analyses must not 
materially affect the objective consideration of alternatives in the 
NEPA review process.
    Prequalification means the contracting agency's process for 
determining whether a firm is fundamentally qualified to compete for a 
certain project or class of projects. The prequalification process may 
be based on financial, management and other types of qualitative data. 
Prequalification should be distinguished from short listing.
    Price proposal means the price submitted by the offeror to provide 
the required design and construction services.
    Price reasonableness means the determination that the price of the 
work for any project or series of projects is not excessive and is a 
fair and reasonable price for the services to be performed.
    Proposal modification means a change made to a proposal before the 
solicitation closing date and time, or made in response to an amendment, 
or made to correct a mistake at any time before award.
    Proposal revision means a change to a proposal made after the 
solicitation closing date, at the request of or as allowed by a 
contracting officer, as the result of negotiations.
    Public-private agreement means an agreement between a public agency 
and a private party involving design and construction of transportation 
improvements by the private party to be paid for in whole or in part by 
Federal-aid highway funds. The agreement may also provide for project 
financing, at-risk equity investment, operations, or maintenance of the 
project.
    Qualified project means any design-build project (including 
intermodal projects) funded under Title 23, United States Code, which 
meets the requirements of this part and for which the contracting agency 
deems to be appropriate on the basis of project delivery time, cost, 
construction schedule, or quality.
    Request for Proposals (RFP) means the document that describes the 
procurement process, forms the basis for the final proposals and may 
potentially become an element in the contract.
    Request for Qualification (RFQ) means the document issued by the 
owner in Phase I of the two-phased selection process. It typically 
describes the project in enough detail to let potential offerors 
determine if they wish to compete and forms the basis for requesting 
qualifications submissions from which the most highly qualified offerors 
can be identified.
    Short listing means the narrowing of the field of offerors through 
the selection of the most qualified offerors who have responded to an 
RFQ.
    Single-phase selection process means a procurement process where 
price and/or technical proposals are submitted in response to an RFP. 
Short listing is not used.
    Solicitation means a public notification of an owner's need for 
information, qualifications, or proposals related to identified 
services.
    Stipend means a monetary amount sometimes paid to unsuccessful 
offerors.
    Technical proposal means that portion of a design-build proposal 
which contains design solutions and other qualitative factors that are 
provided in response to the RFP document.
    Tradeoff means an analysis technique involving a comparison of price 
and non-price factors to determine the best value when considering the 
selection of other than the lowest priced proposal.
    Two-phase selection process means a procurement process in which the 
first phase consists of short listing (based on qualifications submitted 
in response to an RFQ) and the second phase consists of the submission 
of price and technical proposals in response to an RFP.
    Weakness means a flaw in the proposal that increases the risk of 
unsuccessful contract performance. A significant weakness in the 
proposal is a flaw that appreciably increases the risk of unsuccessful 
contract performance.
    Weighted criteria process means a form of best value selection in 
which maximum point values are pre-established for qualitative and price 
components,

[[Page 309]]

and award is based upon high total points earned by the offerors.

[67 FR 75926, Dec. 10, 2002, as amended at 72 FR 45336, Aug. 14, 2007]



Sec.  636.104  Does this part apply to all Federal-aid design-build projects?

    The provisions of this part apply to all Federal-aid design-build 
projects within the highway right-of-way or linked to a Federal-aid 
highway project (i.e., the project would not exist without another 
Federal-aid highway project). Projects that are not located within the 
highway right-of-way, and not linked to a Federal-aid highway project 
may utilize State-approved procedures.



Sec.  636.105  Is the FHWA requiring the use of design-build?

    No, the FHWA is neither requiring nor promoting the use of the 
design-build contracting method. The design-build contracting technique 
is optional.



Sec.  636.106  [Reserved]



Sec.  636.107  May contracting agencies use geographic preference 
in Federal-aid design-build or public-private partnership projects?

    No. Contracting agencies must not use geographic preferences 
(including contractual provisions, preferences or incentives for hiring, 
contracting, proposing, or bidding) on Federal-aid highway projects, 
even though the contracting agency may be subject to statutorily or 
administratively imposed in-State or local geographical preferences in 
the evaluation and award of such projects.

[72 FR 45336, Aug. 14, 2007]



Sec.  636.108  [Reserved]



Sec.  636.109  How does the NEPA process relate to the design-build 
procurement process?

    The purpose of this section is to ensure that there is an objective 
NEPA process, that public officials and citizens have the necessary 
environmental impact information for federally funded actions before 
actions are taken, and that design-build proposers do not assume an 
unnecessary amount of risk in the event the NEPA process results in a 
significant change in the proposal, and that the amount payable by the 
contracting agency to the design-builder does not include significant 
contingency as the result of risk placed on the design-builder 
associated with significant changes in the project definition arising 
out of the NEPA process. Therefore, with respect to the design-build 
procurement process:
    (a) The contracting agency may:
    (1) Issue an RFQ prior to the conclusion of the NEPA process as long 
as the RFQ informs proposers of the general status of NEPA review;
    (2) Issue an RFP after the conclusion of the NEPA process;
    (3) Issue an RFP prior to the conclusion of the NEPA process as long 
as the RFP informs proposers of the general status of the NEPA process 
and that no commitment will be made as to any alternative under 
evaluation in the NEPA process, including the no-build alternative;
    (4) Proceed with the award of a design-build contract prior to the 
conclusion of the NEPA process;
    (5) Issue notice to proceed with preliminary design pursuant to a 
design-build contract that has been awarded prior to the completion of 
the NEPA process; and
    (6) Allow a design-builder to proceed with final design and 
construction for any projects, or portions thereof, for which the NEPA 
process has been completed.
    (b) If the contracting agency proceeds to award a design-build 
contract prior to the conclusion of the NEPA process, then:
    (1) The contracting agency may permit the design-builder to proceed 
with preliminary design;
    (2) The contracting agency may permit any design and engineering 
activities to be undertaken for the purposes of defining the project 
alternatives and completing the NEPA alternatives analysis and review 
process; complying with other related environmental laws and 
regulations; supporting agency coordination, public involvement, permit 
applications, or development of mitigation plans; or developing the 
design of the preferred alternative to a higher level of detail when the 
lead agencies

[[Page 310]]

agree that it is warranted in accordance with 23 U.S.C. 139(f)(4)(D);
    (3) The design-build contract must include appropriate provisions 
preventing the design-builder from proceeding with final design 
activities and physical construction prior to the completion of the NEPA 
process (contract hold points or another method of issuing multi-step 
approvals must be used);
    (4) The design-build contract must include appropriate provisions 
ensuring that no commitments are made to any alternative being evaluated 
in the NEPA process and that the comparative merits of all alternatives 
presented in the NEPA document, including the no-build alternative, will 
be evaluated and fairly considered;
    (5) The design-build contract must include appropriate provisions 
ensuring that all environmental and mitigation measures identified in 
the NEPA document will be implemented;
    (6) The design-builder must not prepare the NEPA document or have 
any decisionmaking responsibility with respect to the NEPA process;
    (7) Any consultants who prepare the NEPA document must be selected 
by and subject to the exclusive direction and control of the contracting 
agency;
    (8) The design-builder may be requested to provide information about 
the project and possible mitigation actions, and its work product may be 
considered in the NEPA analysis and included in the record; and
    (9) The design-build contract must include termination provisions in 
the event that the no-build alternative is selected.
    (c) The contracting agency must receive prior FHWA concurrence 
before issuing the RFP, awarding a design-build contract and proceeding 
with preliminary design work under the design-build contract. Should the 
contracting agency proceed with any of the activities specified in this 
section before the completion of the NEPA process (with the exception of 
preliminary design, as provided in paragraph (d) of this section), the 
FHWA's concurrence merely constitutes the FHWA approval that any such 
activities complies with Federal requirements and does not constitute 
project authorization or obligate Federal funds.
    (d) The FHWA's authorization and obligation of preliminary 
engineering and other preconstruction funds prior to the completion of 
the NEPA process is limited to preliminary design and such additional 
activities as may be necessary to complete the NEPA process. After the 
completion of the NEPA process, the FHWA may issue an authorization to 
proceed with final design and construction and obligate Federal funds 
for such purposes.

[72 FR 45337, Aug. 14, 2007]



Sec.  636.110  What procedures may be used for solicitations 
and receipt of proposals?

    You may use your own procedures for the solicitation and receipt of 
proposals and information including the following:
    (a) Exchanges with industry before receipt of proposals;
    (b) RFQ, RFP and contract format;
    (c) Solicitation schedules;
    (d) Lists of forms, documents, exhibits, and other attachments;
    (e) Representations and instructions;
    (f) Advertisement and amendments;
    (g) Handling proposals and information; and
    (h) Submission, modification, revisions and withdrawal of proposals.



Sec.  636.111  Can oral presentations be used during the procurement process?

    (a) Yes, the use of oral presentations as a substitute for portions 
of a written proposal can be effective in streamlining the source 
selection process. Oral presentations may occur at any time in the 
acquisition process, however, you must comply with the appropriate State 
procurement integrity standards.
    (b) Oral presentations may substitute for, or augment, written 
information. You must maintain a record of oral presentations to 
document what information you relied upon in making the source selection 
decision. You may decide the appropriate method and level of detail for 
the record (e.g., videotaping, audio tape recording, written record, 
contracting agency notes, copies of offeror briefing slides

[[Page 311]]

or presentation notes). A copy of the record should be placed in the 
contract file and may be provided to offerors upon request.



Sec.  636.112  May stipends be used?

    At your discretion, you may elect to pay a stipend to unsuccessful 
offerors who have submitted responsive proposals. The decision to do so 
should be based on your analysis of the estimated proposal development 
costs and the anticipated degree of competition during the procurement 
process.



Sec.  636.113  Is the stipend amount eligible for Federal participation?

    (a) Yes, stipends are eligible for Federal-aid participation. 
Stipends are recommended on large projects where there is substantial 
opportunity for innovation and the cost of submitting a proposal is 
significant. On such projects, stipends are used to:
    (1) Encourage competition;
    (2) Compensate unsuccessful offerors for a portion of their costs 
(usually one-third to one-half of the estimated proposal development 
cost); and
    (3) Ensure that smaller companies are not put at a competitive 
disadvantage.
    (b) Unless prohibited by State law, you may retain the right to use 
ideas from unsuccessful offerors if they accept stipends. If stipends 
are used, the RFP should describe the process for distributing the 
stipend to qualifying offerors. The acceptance of any stipend must be 
optional on the part of the unsuccessful offeror to the design-build 
proposal.
    (c) If you intend to incorporate the ideas from unsuccessful 
offerors into the same contract on which they unsuccessfully submitted a 
proposal, you must clearly provide notice of your intent to do so in the 
RFP.

[67 FR 75926, Dec. 10, 2002, as amended at 73 FR 77502, Dec. 19, 2008]



Sec.  636.114  What factors should be considered in risk allocation?

    (a) You may consider, identify, and allocate the risks in the RFP 
document and define these risks in the contract. Risk should be 
allocated with consideration given to the party who is in the best 
position to manage and control a given risk or the impact of a given 
risk.
    (b) Risk allocation will vary according to the type of project and 
location, however, the following factors should be considered:
    (1) Governmental risks, including the potential for delays, 
modifications, withdrawal, scope changes, or additions that result from 
multi-level Federal, State, and local participation and sponsorship;
    (2) Regulatory compliance risks, including environmental and third-
party issues, such as permitting, railroad, and utility company risks;
    (3) Construction phase risks, including differing site conditions, 
traffic control, interim drainage, public access, weather issues, and 
schedule;
    (4) Post-construction risks, including public liability and meeting 
stipulated performance standards; and
    (5) Right-of-way risks including acquisition costs, appraisals, 
relocation delays, condemnation proceedings, including court costs and 
others.



Sec.  636.115  May I meet with industry to gather information 
concerning the appropriate risk allocation strategies?

    (a) Yes, information exchange at an early project stage is 
encouraged if it facilitates your understanding of the capabilities of 
potential offerors. However, any exchange of information must be 
consistent with State procurement integrity requirements. Interested 
parties include potential offerors, end users, acquisition and 
supporting personnel, and others involved in the conduct or outcome of 
the acquisition.
    (b) The purpose of exchanging information is to improve the 
understanding of your requirements and industry capabilities, thereby 
allowing potential offerors to judge whether or how they can satisfy 
your requirements, and enhancing your ability to obtain quality supplies 
and services, including construction, at reasonable prices, and increase 
efficiency in proposal preparation, proposal evaluation, negotiation, 
and contract award.
    (c) An early exchange of information can identify and resolve 
concerns regarding the acquisition strategy, including proposed contract 
type, terms

[[Page 312]]

and conditions, and acquisition planning schedules. This also includes 
the feasibility of the requirement, including performance requirements, 
statements of work, and data requirements; the suitability of the 
proposal instructions and evaluation criteria, including the approach 
for assessing past performance information; the availability of 
reference documents; and any other industry concerns or questions. Some 
techniques to promote early exchanges of information are as follows:
    (1) Industry or small business conferences;
    (2) Public hearings;
    (3) Market research;
    (4) One-on-one meetings with potential offerors (any meetings that 
are substantially involved with potential contract terms and conditions 
should include the contracting officer; also see paragraph (e) of this 
section regarding restrictions on disclosure of information);
    (5) Presolicitation notices;
    (6) Draft RFPs;
    (7) Request for Information (RFI) ;
    (8) Presolicitation or preproposal conferences; and
    (9) Site visits.
    (d) RFIs may be used when you do not intend to award a contract, but 
want to obtain price, delivery, other market information, or 
capabilities for planning purposes. Responses to these notices are not 
offers and cannot be accepted to form a binding contract. There is no 
required format for an RFI.
    (e) When specific information about a proposed acquisition that 
would be necessary for the preparation of proposals is disclosed to one 
or more potential offerors, that information shall be made available to 
all potential offerors as soon as practicable, but no later than the 
next general release of information, in order to avoid creating an 
unfair competitive advantage. Information provided to a particular 
offeror in response to that offeror's request must not be disclosed if 
doing so would reveal the potential offeror's confidential business 
strategy. When a presolicitation or preproposal conference is conducted, 
materials distributed at the conference should be made available to all 
potential offerors, upon request.



Sec.  636.116  What organizational conflict of interest requirements 
apply to design-build projects?

    (a) State statutes or policies concerning organizational conflict of 
interest should be specified or referenced in the design-build RFQ or 
RFP document as well as any contract for engineering services, 
inspection or technical support in the administration of the design-
build contract. All design-build solicitations should address the 
following situations as appropriate:
    (1) Consultants and/or sub-consultants who assist the owner in the 
preparation of a RFP document will not be allowed to participate as an 
offeror or join a team submitting a proposal in response to the RFP. 
However, a contracting agency may determine there is not an 
organizational conflict of interest for a consultant or sub-consultant 
where:
    (i) The role of the consultant or sub-consultant was limited to 
provision of preliminary design, reports, or similar ``low-level'' 
documents that will be incorporated into the RFP, and did not include 
assistance in development of instructions to offerors or evaluation 
criteria, or
    (ii) Where all documents and reports delivered to the agency by the 
consultant or sub-consultant are made available to all offerors.
    (2) All solicitations for design-build contracts, including related 
contracts for inspection, administration or auditing services, must 
include a provision which:
    (i) Directs offerors attention to this subpart;
    (ii) States the nature of the potential conflict as seen by the 
owner;
    (iii) States the nature of the proposed restraint or restrictions 
(and duration) upon future contracting activities, if appropriate;
    (iv) Depending on the nature of the acquisition, states whether or 
not the terms of any proposed clause and the application of this subpart 
to the contract are subject to negotiation; and
    (v) Requires offerors to provide information concerning potential 
organizational conflicts of interest in their proposals. The apparent 
successful offerors must disclose all relevant facts concerning any 
past, present or currently

[[Page 313]]

planned interests which may present an organizational conflict of 
interest. Such firms must state how their interests, or those of their 
chief executives, directors, key project personnel, or any proposed 
consultant, contractor or subcontractor may result, or could be viewed 
as, an organizational conflict of interest. The information may be in 
the form of a disclosure statement or a certification.
    (3) Based upon a review of the information submitted, the owner 
should make a written determination of whether the offeror's interests 
create an actual or potential organizational conflict of interest and 
identify any actions that must be taken to avoid, neutralize, or 
mitigate such conflict. The owner should award the contract to the 
apparent successful offeror unless an organizational conflict of 
interest is determined to exist that cannot be avoided, neutralized, or 
mitigated.
    (b) The organizational conflict of interest provisions in this 
subpart provide minimum standards for STDs to identify, mitigate or 
eliminate apparent or actual organizational conflicts of interest. To 
the extent that State-developed organizational conflict of interest 
standards are more stringent than that contained in this subpart, the 
State standards prevail.
    (c) If the NEPA process has been completed prior to issuing the RFP, 
the contracting agency may allow a consultant or subconsultant who 
prepared the NEPA document to submit a proposal in response to the RFP.
    (d) If the NEPA process has not been completed prior to issuing the 
RFP, the contracting agency may allow a subconsultant to the preparer of 
the NEPA document to participate as an offeror or join a team submitting 
a proposal in response to the RFP only if the contracting agency 
releases such subconsultant from further responsibilities with respect 
to the preparation of the NEPA document.

[67 FR 75926, Dec. 10, 2002, as amended at 72 FR 45337, Aug. 14, 2007]



Sec.  636.117  What conflict of interest standards apply to individuals 
who serve as selection team members for the owner?

    State laws and procedures governing improper business practices and 
personal conflicts of interest will apply to the owner's selection team 
members. In the absence of such State provisions, the requirements of 48 
CFR Part 3, Improper Business Practices and Personal Conflicts of 
Interest, will apply to selection team members.



Sec.  636.118  Is team switching allowed after contract award?

    Where the offeror's qualifications are a major factor in the 
selection of the successful design-builder, team member switching 
(adding or switching team members) is discouraged after contract award. 
However, the owner may use its discretion in reviewing team changes or 
team enhancement requests on a case-by-case basis. Specific project 
rules related to changes in team members or changes in personnel within 
teams should be explicitly stated by the STD in all project 
solicitations.



Sec.  636.119  How does this part apply to a project developed 
under a public-private partnership?

    (a) In order for a project being developed under a public-private 
agreement to be eligible for Federal-aid funding (including traditional 
Federal-aid funds, direct loans, loan guarantees, lines of credit, or 
some other form of credit assistance), the contracting agency must have 
awarded the contract to the public-private entity through a competitive 
process that complies with applicable State and local laws.
    (b) If a contracting agency wishes to utilize traditional Federal-
aid funds in a project under a public-private agreement, the 
applicability of Federal-aid procurement procedures will depend on the 
nature of the public-private agreement.
    (1) If the public-private agreement establishes price, then all 
subsequent contracts executed by the developer are considered to be 
subcontracts and are not subject to Federal-aid procurement 
requirements.

[[Page 314]]

    (2) If the public-private agreement does not establish price, the 
developer is considered to be an agent of the owner, and the developer 
must follow the appropriate Federal-aid procurement requirements (23 CFR 
part 172 for engineering service contracts, 23 CFR part 635 for 
construction contracts and the requirements of this part for design-
build contracts) for all prime contracts (not subcontracts).
    (c) The STD must ensure such public-private projects comply with all 
non-procurement requirements of 23 U. S. Code, regardless of the form of 
the FHWA funding (traditional Federal-aid funding or credit assistance). 
This includes compliance with all FHWA policies such as environmental 
and right-of-way requirements and compliance with such construction 
contracting requirements as Buy America, Davis-Bacon minimum wage rate 
requirements, for federally funded construction or design-build 
contracts under the public-private agreement.

[67 FR 75926, Dec. 10, 2002, as amended at 72 FR 45337, Aug. 14, 2007]



             Subpart B_Selection Procedures, Award Criteria



Sec.  636.201  What selection procedures and award criteria may be used?

    You should consider using two-phase selection procedures for all 
design-build projects. However, if you do not believe two-phase 
selection procedures are appropriate for your project (based on the 
criteria in Sec.  636.202), you may use a single phase selection 
procedure or the modified-design-build contracting method. The following 
procedures are available:

------------------------------------------------------------------------
                                  Criteria for using
       Selection procedure            a selection       Award criteria
                                       procedure            options
------------------------------------------------------------------------
(a) Two-Phase Selection           Sec.   636.202....  Lowest price,
 Procedures (RFQ followed by                           Adjusted low-bid
 RFP).                                                 (price per
                                                       quality point),
                                                       meets criteria/
                                                       low bid, weighted
                                                       criteria process,
                                                       fixed price/best
                                                       design, best
                                                       value.
(b) Single Phase (RFP)..........  Project not         All of the award
                                   meeting the         criteria in item
                                   criteria in Sec.    (a) of this
                                    636.202.           table.
(c) Modified Design-Build (may    Any project.......  Lowest price
 be one or two phases).                                technically
                                                       acceptable.
------------------------------------------------------------------------



Sec.  636.202  When are two-phase design-build selection 
procedures appropriate?

    You may consider the following criteria in deciding whether two-
phase selection procedures are appropriate. A negative response may 
indicate that two-phase selection procedures are not appropriate.
    (a) Are three or more offers anticipated?
    (b) Will offerors be expected to perform substantial design work 
before developing price proposals?
    (c) Will offerors incur a substantial expense in preparing 
proposals?
    (d) Have you identified and analyzed other contributing factors, 
including:
    (1) The extent to which you have defined the project requirements?
    (2) The time constraints for delivery of the project?
    (3) The capability and experience of potential contractors?
    (4) Your capability to manage the two-phase selection process?
    (5) Other criteria that you may consider appropriate?



Sec.  636.203  What are the elements of two-phase selection procedures 
for competitive proposals?

    The first phase consists of short listing based on a RFQ. The second 
phase consists of the receipt and evaluation of price and technical 
proposals in response to a RFP.



Sec.  636.204  What items may be included in a phase-one solicitation?

    You may consider including the following items in any phase-one 
solicitation:
    (a) The scope of work;
    (b) The phase-one evaluation factors and their relative weights, 
including:
    (1) Technical approach (but not detailed design or technical 
information);
    (2) Technical qualifications, such as--
    (i) Specialized experience and technical competence;

[[Page 315]]

    (ii) Capability to perform (including key personnel); and
    (iii) Past performance of the members of the offeror's team 
(including the architect-engineer and construction members);
    (3) Other appropriate factors (excluding cost or price related 
factors, which are not permitted in phase-one);
    (c) Phase-two evaluation factors; and
    (d) A statement of the maximum number of offerors that will be short 
listed to submit phase-two proposals.



Sec.  636.205  Can past performance be used as an evaluation criteria?

    (a) Yes, past performance information is one indicator of an 
offeror's ability to perform the contract successfully. Past performance 
information may be used as an evaluation criteria in either phase-one or 
phase-two solicitations. If you elect to use past performance criteria, 
the currency and relevance of the information, source of the 
information, context of the data, and general trends in contractor's 
performance may be considered.
    (b) Describe your approach for evaluating past performance in the 
solicitation, including your policy for evaluating offerors with no 
relevant performance history. You should provide offerors an opportunity 
to identify past or current contracts (including Federal, State, and 
local government and private) for efforts similar to the current 
solicitation.
    (c) If you elect to request past performance information, the 
solicitation should also authorize offerors to provide information on 
problems encountered on the identified contracts and the offeror's 
corrective actions. You may consider this information, as well as 
information obtained from any other sources, when evaluating the 
offeror's past performance. You may use your discretion in determining 
the relevance of similar past performance information.
    (d) The evaluation should take into account past performance 
information regarding predecessor companies, key personnel who have 
relevant experience, or subcontractors that will perform major or 
critical aspects of the requirement when such information is relevant to 
the current acquisition.



Sec.  636.206  How do I evaluate offerors who do not have a record 
of relevant past performance?

    In the case of an offeror without a record of relevant past 
performance or for whom information on past performance is not 
available, the offeror may not be evaluated favorably or unfavorably on 
past performance.



Sec.  636.207  Is there a limit on short listed firms?

    Normally, three to five firms are short listed, however, the maximum 
number specified shall not exceed five unless you determine, for that 
particular solicitation, that a number greater than five is in your 
interest and is consistent with the purposes and objectives of two-phase 
design-build contracting.



Sec.  636.208  May I use my existing prequalification procedures 
with design-build contracts?

    Yes, you may use your existing prequalification procedures for 
either construction or engineering design firms as a supplement to the 
procedures in this part.



Sec.  636.209  What items must be included in a phase-two solicitation?

    (a) You must include the requirements for technical proposals and 
price proposals in the phase-two solicitation. All factors and 
significant subfactors that will affect contract award and their 
relative importance must be stated clearly in the solicitation. Use your 
own procedures for the solicitation as long as it complies the 
requirements of this part.
    (b)(1) At your discretion, you may allow proposers to submit 
alternative technical concepts (ATCs) in their proposals if:
    (i) The ATCs:
    (A) Provide an equal or better solution; and
    (B) Do not conflict with criteria agreed upon in the environmental 
decisionmaking process; and
    (ii) The RFP document clearly describes your:
    (A) Requirements for ATC content, submission, and review;
    (B) Procedures for confidential meetings (if used); and

[[Page 316]]

    (C) Methods for evaluating ATCs in the proposal review process.
    (2) You must maintain the confidentiality of ATCs, except to the 
extent that disclosure is necessary to maintain compliance with Federal 
or State permitting and other legal requirements necessary for the 
delivery of the project. When disclosure is necessary, you must revise 
the RFP documents by releasing the minimal amount of information 
necessary to ensure:
    (i) Compliance with Federal or State permitting and other legal 
requirements; and
    (ii) All proposers are aware of the revised RFP requirements.

[67 FR 75926, Dec. 10, 2002, as amended at 79 FR 8266, Feb. 12, 2014]



Sec.  636.210  What requirements apply to projects which use 
the modified design-build procedure?

    (a) Modified design-build selection procedures (lowest price 
technically acceptable source selection process) may be used for any 
project.
    (b) The solicitation must clearly state the following:
    (1) The identification of evaluation factors and significant 
subfactors that establish the requirements of acceptability.
    (2) That award will be made on the basis of the lowest evaluated 
price of proposals meeting or exceeding the acceptability standards for 
non-cost factors.
    (c) The contracting agency may forgo a short listing process and 
advertise for the receipt of proposals from all responsible offerors. 
The contract is then awarded to the lowest responsive bidder.
    (d) Tradeoffs are not permitted, however, you may incorporate cost-
plus-time bidding procedures (A + B bidding), lane rental, or other 
cost-based provisions in such contracts.
    (e) Proposals are evaluated for acceptability but not ranked using 
the non-cost/price factors.
    (f) Exchanges may occur (see subpart D of this part).



Sec.  636.211  When and how should tradeoffs be used?

    (a) At your discretion, you may consider the tradeoff technique when 
it is desirable to award to other than the lowest priced offeror or 
other than the highest technically rated offeror.
    (b) If you use a tradeoff technique, the following apply:
    (1) All evaluation factors and significant subfactors that will 
affect contract award and their relative importance must be clearly 
stated in the solicitation; and
    (2) The solicitation must also state, at a minimum, whether all 
evaluation factors other than cost or price, when combined, are--
    (i) Significantly more important than cost or price; or
    (ii) Approximately equal to cost or price; or
    (iii) Significantly less important than cost or price.

[67 FR 75926, Dec. 10, 2002; 68 FR 7922, Feb. 19, 2003]



Sec.  636.212  To what extent must tradeoff decisions be documented?

    When tradeoffs are performed, the source selection records must 
include the following:
    (a) An assessment of each offeror's ability to accomplish the 
technical requirements; and
    (b) A summary, matrix, or quantitative ranking, along with 
appropriate supporting narrative, of each technical proposal using the 
evaluation factors.



                  Subpart C_Proposal Evaluation Factors



Sec.  636.301  How should proposal evaluation factors be selected?

    (a) The proposal evaluation factors and significant subfactors 
should be tailored to the acquisition.
    (b) Evaluation factors and significant subfactors should:
    (1) Represent the key areas of importance and emphasis to be 
considered in the source selection decision; and
    (2) Support meaningful comparison and discrimination between and 
among competing proposals.



Sec.  636.302  Are there any limitations on the selection and use 
of proposal evaluation factors?

    (a) The selection of the evaluation factors, significant subfactors 
and

[[Page 317]]

their relative importance are within your broad discretion subject to 
the following requirements:
    (1) You must evaluate price in every source selection where 
construction is a significant component of the scope of work. However, 
where the contracting agency elects to release the final RFP and award 
the design-build contract before the conclusion of the NEPA process (see 
Sec.  636.109), then the following requirements apply:
    (i) It is not necessary to evaluate the total contract price;
    (ii) Price must be considered to the extent the contract requires 
the contracting agency to make any payments to the design-builder for 
any work performed prior to the completion of the NEPA process and the 
contracting agency wishes to use Federal-aid highway funds for those 
activities;
    (iii) The evaluation of proposals and award of the contract may be 
based on qualitative considerations;
    (iv) If the contracting agency wishes to use Federal-aid highway 
funds for final design and construction, the subsequent approval of 
final design and construction activities will be contingent upon a 
finding of price reasonableness by the contracting agency;
    (v) The determination of price reasonableness for any design-build 
project funded with Federal-aid highway funds shall be based on at least 
one of the following methods:
    (A) Compliance with the applicable procurement requirements for part 
172, 635, or 636, where the contractor providing the final design or 
construction services, or both, is a person or entity other than the 
design-builder;
    (B) A negotiated price determined on an open-book basis by both the 
design-builder and contracting agency; or
    (C) An independent estimate by the contracting agency based on the 
price of similar work;
    (vi) The contracting agency's finding of price reasonableness is 
subject to FHWA concurrence.
    (2) You must evaluate the quality of the product or service through 
consideration of one or more non-price evaluation factors. These factors 
may include (but are not limited to) such criteria as:
    (i) Compliance with solicitation requirements;
    (ii) Completion schedule (contractual incentives and disincentives 
for early completion may be used where appropriate); or
    (iii) Technical solutions.
    (3) At your discretion, you may evaluate past performance, technical 
experience and management experience (subject to Sec.  636.303(b)).
    (b) All factors and significant subfactors that will affect contract 
award and their relative importance must be stated clearly in the 
solicitation.

[67 FR 75926, Dec. 10, 2002, as amended at 72 FR 45338, Aug. 14, 2007]



Sec.  636.303  May pre-qualification standards be used as proposal 
evaluation criteria in the RFP?

    (a) If you use a prequalification procedure or a two-phase selection 
procedure to develop a short list of qualified offerors, then pre-
qualification criteria should not be included as proposal evaluation 
criteria.
    (b) The proposal evaluation criteria should be limited to the 
quality, quantity, value and timeliness of the product or service being 
proposed. However, there may be circumstances where it is appropriate to 
include prequalification standards as proposal evaluation criteria. Such 
instances include situations where:
    (1) The scope of work involves very specialized technical expertise 
or specialized financial qualifications; or
    (2) Where prequalification procedures or two-phase selection 
procedures are not used (short listing is not performed).



Sec.  636.304  What process may be used to rate and score proposals?

    (a) Proposal evaluation is an assessment of the offeror's proposal 
and ability to perform the prospective contract successfully. You must 
evaluate proposals solely on the factors and subfactors specified in the 
solicitation.
    (b) You may conduct evaluations using any rating method or 
combination of methods including color or adjectival ratings, numerical 
weights, and ordinal rankings. The relative strengths, deficiencies, 
significant

[[Page 318]]

weaknesses, and risks supporting proposal evaluation must be documented 
in the contract file.



Sec.  636.305  Can price information be provided to analysts 
who are reviewing technical proposals?

    Normally, technical and price proposals are reviewed independently 
by separate evaluation teams. However, there may be occasions where the 
same experts needed to review the technical proposals are also needed in 
the review of the price proposals. This may occur where a limited amount 
of technical expertise is available to review proposals. Price 
information may be provided to such technical experts in accordance with 
your procedures.



                           Subpart D_Exchanges



Sec.  636.401  What types of information exchange may take place prior to 
the release of the RFP document?

    Verbal or written information exchanges (such as in the first-phase 
of a two-phase selection procedure) must be consistent with State and/or 
local procurement integrity requirements. See Sec.  636.115(a) for 
additional details.



Sec.  636.402  What types of information exchange may take place 
after the release of the RFP document?

    Certain types of information exchange may be desirable at different 
points after the release of the RFP document. The following table 
summarizes the types of communications that will be discussed in this 
subpart. These communication methods are optional.

----------------------------------------------------------------------------------------------------------------
     Type of information exchange                When                   Purpose              Parties involved
----------------------------------------------------------------------------------------------------------------
(a) Clarifications...................  After receipt of         Used when award without  Any offeror whose
                                        proposals.               discussions is           proposal is not clear
                                                                 contemplated. Used to    to the contracting
                                                                 clarify certain          agency.
                                                                 aspects of a proposal
                                                                 (resolve minor errors,
                                                                 clerical errors,
                                                                 obtain additional past
                                                                 performance
                                                                 information, etc.).
(b) Communications...................  After receipt of         Used to address issues   Only those offerors
                                        proposals, prior to      which might prevent a    whose exclusion from,
                                        the establishment of     proposal from being      or inclusion in, the
                                        the competitive range.   placed in the            competitive range is
                                                                 competitive range.       uncertain. All
                                                                                          offerors whose past
                                                                                          performance
                                                                                          information is the
                                                                                          determining factor
                                                                                          preventing them from
                                                                                          being placed in the
                                                                                          competitive range.
(c) Discussions (see Subpart E of      After receipt of         Enhance contracting      Must be held with all
 this part).                            proposals and after      agency understanding     offerors in the
                                        the determination of     of proposals and         competitive range.
                                        the competitive range.   offerors understanding
                                                                 of scope of work.
                                                                 Facilitate the
                                                                 evaluation process.
----------------------------------------------------------------------------------------------------------------



Sec.  636.403  What information may be exchanged with a clarification?

    (a) You may wish to clarify any aspect of proposals which would 
enhance your understanding of an offeror's proposal. This includes such 
information as an offeror's past performance or information regarding 
adverse past performance to which the offeror has not previously had an 
opportunity to respond. Clarification exchanges are discretionary. They 
do not have to be held with any specific number of offerors and do not 
have to address specific issues.
    (b) You may wish to clarify and revise the RFP document through an 
addenda process in response to questions from potential offerors.



Sec.  636.404  Can a competitive range be used to limit competition?

    If the solicitation notifies offerors that the competitive range can 
be limited for purposes of efficiency, you may limit the number of 
proposals to the greatest number that will permit an efficient 
competition. However, you

[[Page 319]]

must provide written notice to any offeror whose proposal is no longer 
considered to be included in the competitive range. Offerors excluded or 
otherwise eliminated from the competitive range may request a 
debriefing. Debriefings may be conducted in accordance with your 
procedures as long as you comply with Sec.  636.514.



Sec.  636.405  After developing a short list, can I still establish 
a competitive range?

    Yes, if you have developed a short list of firms, you may still 
establish a competitive range. The short list is based on qualifications 
criteria. The competitive range is based on the rating of technical and 
price proposals.



Sec.  636.406  Are communications allowed prior to establishing 
the competitive range?

    Yes, prior to establishing the competitive range, you may conduct 
communications to:
    (a) Enhance your understanding of proposals;
    (b) Allow reasonable interpretation of the proposal; or
    (c) Facilitate your evaluation process.



Sec.  636.407  Am I limited in holding communications with certain firms?

    Yes, if you establish a competitive range, you must do the 
following:
    (a) Hold communications with offerors whose past performance 
information is the determining factor preventing them from being placed 
within the competitive range;
    (b) Address adverse past performance information to which an offeror 
has not had a prior opportunity to respond; and
    (c) Hold communications only with those offerors whose exclusion 
from, or inclusion in, the competitive range is uncertain.



Sec.  636.408  Can communications be used to cure proposal deficiencies?

    (a) No, communications must not be used to:
    (1) Cure proposal deficiencies or material omissions;
    (2) Materially alter the technical or cost elements of the proposal; 
and/or
    (3) Otherwise revise the proposal.
    (b) Communications may be considered in rating proposals for the 
purpose of establishing the competitive range.



Sec.  636.409  Can offerors revise their proposals during communications?

    (a) No, communications shall not provide an opportunity for an 
offeror to revise its proposal, but may address the following:
    (1) Ambiguities in the proposal or other concerns (e.g., perceived 
deficiencies, weaknesses, errors, omissions, or mistakes); and
    (2) Information relating to relevant past performance.
    (b) Communications must address adverse past performance information 
to which the offeror has not previously had an opportunity to comment.



     Subpart E_Discussions, Proposal Revisions and Source Selection



Sec.  636.501  What issues may be addressed in discussions?

    In a competitive acquisition, discussions may include bargaining. 
The term bargaining may include: persuasion, alteration of assumptions 
and positions, give-and-take, and may apply to price, schedule, 
technical requirements, type of contract, or other terms of a proposed 
contract.



Sec.  636.502  Why should I use discussions?

    You should use discussions to maximize your ability to obtain the 
best value, based on the requirements and the evaluation factors set 
forth in the solicitation.



Sec.  636.503  Must I notify offerors of my intent to use/not use discussions?

    Yes, in competitive acquisitions, the solicitation must notify 
offerors of your intent. You should either:
    (a) Notify offerors that discussions may or may not be held 
depending on the quality of the proposals received (except 
clarifications may be used as described in Sec.  636.401). Therefore, 
the offeror's initial proposal should contain the offeror's best terms 
from a cost or price and technical standpoint; or

[[Page 320]]

    (b) Notify offerors of your intent to establish a competitive range 
and hold discussions.



Sec.  636.504  If the solicitation indicated my intent was to award contract 
without discussions, but circumstances change, may I still hold discussions?

    Yes, you may still elect to hold discussions when circumstances 
dictate, as long as the rationale for doing so is documented in the 
contract file. Such circumstances might include situations where all 
proposals received have deficiencies, when fair and reasonable prices 
are not offered, or when the cost or price offered is not affordable.



Sec.  636.505  Must a contracting agency establish a competitive range 
if it intends to have discussions with offerors?

    Yes, if discussions are held, they must be conducted with all 
offerors in the competitive range. If you wish to hold discussions and 
do not formally establish a competitive range, then you must hold 
discussions with all responsive offerors.



Sec.  636.506  What issues must be covered in discussions?

    (a) Discussions should be tailored to each offeror's proposal. 
Discussions must cover significant weaknesses, deficiencies, and other 
aspects of a proposal (such as cost or price, technical approach, past 
performance, and terms and conditions) that could be altered or 
explained to enhance materially the proposal's potential for award. You 
may use your judgment in setting limits for the scope and extent of 
discussions.
    (b) In situations where the solicitation stated that evaluation 
credit would be given for technical solutions exceeding any mandatory 
minimums, you may hold discussions regarding increased performance 
beyond any mandatory minimums, and you may suggest to offerors that have 
exceeded any mandatory minimums (in ways that are not integral to the 
design), that their proposals would be more competitive if the excesses 
were removed and the offered price decreased.



Sec.  636.507  What subjects are prohibited in discussions, 
communications and clarifications with offerors?

    You may not engage in conduct that:
    (a) Favors one offeror over another;
    (b) Reveals an offeror's technical solution, including unique 
technology, innovative and unique uses of commercial items, or any 
information that would compromise an offeror's intellectual property to 
another offeror;
    (c) Reveals an offerors price without that offeror's permission;
    (d) Reveals the names of individuals providing reference information 
about an offeror's past performance; or
    (e) Knowingly furnish source selection information which could be in 
violation of State procurement integrity standards.



Sec.  636.508  Can price or cost be an issue in discussions?

    You may inform an offeror that its price is considered to be too 
high, or too low, and reveal the results of the analysis supporting that 
conclusion. At your discretion, you may indicate to all offerors your 
estimated cost for the project.



Sec.  636.509  Can offerors revise their proposals as a result of discussions?

    (a) Yes, you may request or allow proposal revisions to clarify and 
document understandings reached during discussions. At the conclusion of 
discussions, each offeror shall be given an opportunity to submit a 
final proposal revision.
    (b) You must establish a common cut-off date only for receipt of 
final proposal revisions. Requests for final proposal revisions shall 
advise offerors that the final proposal revisions shall be in writing 
and that the contracting agency intends to make award without obtaining 
further revisions.



Sec.  636.510  Can the competitive range be further defined 
once discussions have begun?

    Yes, you may further narrow the competitive range if an offeror 
originally in the competitive range is no longer considered to be among 
the most highly rated offerors being considered for award. That offeror 
may be eliminated from the competitive range

[[Page 321]]

whether or not all material aspects of the proposal have been discussed, 
or whether or not the offeror has been afforded an opportunity to submit 
a proposal revision. You must provide an offeror excluded from the 
competitive range with a written determination and notice that proposal 
revisions will not be considered.



Sec.  636.511  Can there be more than one round of discussions?

    Yes, but only at the conclusion of discussions will the offerors be 
requested to submit a final proposal revision, also called best and 
final offer (BAFO). Thus, regardless of the length or number of 
discussions, there will be only one request for a revised proposal 
(i.e., only one BAFO).



Sec.  636.512  What is the basis for the source selection decision?

    (a) You must base the source selection decision on a comparative 
assessment of proposals against all selection criteria in the 
solicitation. While you may use reports and analyses prepared by others, 
the source selection decision shall represent your independent judgment.
    (b) The source selection decision shall be documented, and the 
documentation shall include the rationale for any business judgments and 
tradeoffs made or relied on, including benefits associated with 
additional costs. Although the rationale for the selection decision must 
be documented, that documentation need not quantify the tradeoffs that 
led to the decision.



Sec.  636.513  Are limited negotiations allowed prior to contract execution?

    (a) Yes, after the source selection but prior to contract execution, 
you may conduct limited negotiations with the selected design-builder to 
clarify any remaining issues regarding scope, schedule, financing or any 
other information provided by that offeror. You must comply with the 
provisions of Sec.  636.507 in the exchange of this information.
    (b) Limited negotiations conducted under this section may include 
negotiations necessary to incorporate the ideas and concepts from 
unsuccessful offerors into the contract if a stipend is offered by the 
contracting agency and accepted by the unsuccessful offeror and if the 
requirements of section 636.113 are met.

[67 FR 75926, Dec. 10, 2002, as amended at 73 FR 77502, Dec. 19, 2008]



Sec.  636.514  How may I provide notifications and debriefings?

    You may provide pre-award or post-award notifications in accordance 
with State approved procedures. If an offeror requests a debriefing, you 
may provide pre-award or post-award debriefings in accordance with State 
approved procedures.



PART 637_CONSTRUCTION INSPECTION AND APPROVAL--Table of Contents



Subpart A [Reserved]

         Subpart B_Quality Assurance Procedures for Construction

Sec.
637.201 Purpose.
637.203 Definitions.
637.205 Policy.
637.207 Quality assurance program.
637.209 Laboratory and sampling and testing personnel qualifications.

Appendix A to Subpart B of Part 637--Guide Letter of Certification by 
          State Engineer

    Authority: Sec. 1307, Pub. L. 105-178, 112 Stat. 107; 23 U.S.C. 109, 
114, and 315; 49 CFR 1.48(b).

    Source: 60 FR 33717, June 29, 1995, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 637 appear at 67 FR 
75934, Dec. 10, 2002.

Subpart A [Reserved]



         Subpart B_Quality Assurance Procedures for Construction



Sec.  637.201  Purpose.

    To prescribe policies, procedures, and guidelines to assure the 
quality of materials and construction in all Federal-aid highway 
projects on the National Highway System.



Sec.  637.203  Definitions.

    Acceptance program. All factors that comprise the State 
transportation department's (STD) determination of the

[[Page 322]]

quality of the product as specified in the contract requirements. These 
factors include verification sampling, testing, and inspection and may 
include results of quality control sampling and testing.
    Independent assurance program. Activities that are an unbiased and 
independent evaluation of all the sampling and testing procedures used 
in the acceptance program. Test procedures used in the acceptance 
program which are performed in the STD's central laboratory would not be 
covered by an independent assurance program.
    Proficiency samples. Homogeneous samples that are distributed and 
tested by two or more laboratories. The test results are compared to 
assure that the laboratories are obtaining the same results.
    Qualified laboratories. Laboratories that are capable as defined by 
appropriate programs established by each STD. As a minimum, the 
qualification program shall include provisions for checking test 
equipment and the laboratory shall keep records of calibration checks.
    Qualified sampling and testing personnel. Personnel who are capable 
as defined by appropriate programs established by each STD.
    Quality assurance. All those planned and systematic actions 
necessary to provide confidence that a product or service will satisfy 
given requirements for quality.
    Quality control. All contractor/vendor operational techniques and 
activities that are performed or conducted to fulfill the contract 
requirements.
    Random sample. A sample drawn from a lot in which each increment in 
the lot has an equal probability of being chosen.
    Vendor. A supplier of project-produced material that is not the 
contractor.
    Verification sampling and testing. Sampling and testing performed to 
validate the quality of the product.



Sec.  637.205  Policy.

    (a) Quality assurance program. Each STD shall develop a quality 
assurance program which will assure that the materials and workmanship 
incorporated into each Federal-aid highway construction project on the 
NHS are in conformity with the requirements of the approved plans and 
specifications, including approved changes. The program must meet the 
criteria in Sec.  637.207 and be approved by the FHWA.
    (b) STD capabilities. The STD shall maintain an adequate, qualified 
staff to administer its quality assurance program. The State shall also 
maintain a central laboratory. The State's central laboratory shall meet 
the requirements in Sec.  637.209(a)(2).
    (c) Independent assurance program. Independent assurance samples and 
tests or other procedures shall be performed by qualified sampling and 
testing personnel employed by the STD or its designated agent.
    (d) Verification sampling and testing. The verification sampling and 
testing are to be performed by qualified testing personnel employed by 
the STD or its designated agent, excluding the contractor and vendor.
    (e) Random samples. All samples used for quality control and 
verification sampling and testing shall be random samples.



Sec.  637.207  Quality assurance program.

    (a) Each STD's quality assurance program shall provide for an 
acceptance program and an independent assurance (IA) program consisting 
of the following:
    (1) Acceptance program.
    (i) Each STD's acceptance program shall consist of the following:
    (A) Frequency guide schedules for verification sampling and testing 
which will give general guidance to personnel responsible for the 
program and allow adaptation to specific project conditions and needs.
    (B) Identification of the specific location in the construction or 
production operation at which verification sampling and testing is to be 
accomplished.
    (C) Identification of the specific attributes to be inspected which 
reflect the quality of the finished product.
    (ii) Quality control sampling and testing results may be used as 
part of the acceptance decision provided that:
    (A) The sampling and testing has been performed by qualified 
laboratories and qualified sampling and testing personnel.

[[Page 323]]

    (B) The quality of the material has been validated by the 
verification sampling and testing. The verification testing shall be 
performed on samples that are taken independently of the quality control 
samples.
    (C) The quality control sampling and testing is evaluated by an IA 
program.
    (iii) If the results from the quality control sampling and testing 
are used in the acceptance program, the STD shall establish a dispute 
resolution system. The dispute resolution system shall address the 
resolution of discrepancies occurring between the verification sampling 
and testing and the quality control sampling and testing. The dispute 
resolution system may be administered entirely within the STD.
    (iv) In the case of a design-build project on the National Highway 
System, warranties may be used where appropriate. See 23 CFR 635.413(e) 
for specific requirements.
    (2) The IA program shall evaluate the qualified sampling and testing 
personnel and the testing equipment. The program shall cover sampling 
procedures, testing procedures, and testing equipment. Each IA program 
shall include a schedule of frequency for IA evaluation. The schedule 
may be established based on either a project basis or a system basis. 
The frequency can be based on either a unit of production or on a unit 
of time.
    (i) The testing equipment shall be evaluated by using one or more of 
the following: Calibration checks, split samples, or proficiency 
samples.
    (ii) Testing personnel shall be evaluated by observations and split 
samples or proficiency samples.
    (iii) A prompt comparison and documentation shall be made of test 
results obtained by the tester being evaluated and the IA tester. The 
STD shall develop guidelines including tolerance limits for the 
comparison of test results.
    (iv) If the STD uses the system approach to the IA program, the STD 
shall provide an annual report to the FHWA summarizing the results of 
the IA program.
    (3) The preparation of a materials certification, conforming in 
substance to appendix A of this subpart, shall be submitted to the FHWA 
Division Administrator for each construction project which is subject to 
FHWA construction oversight activities.
    (b) In the case of a design-build project funded under title 23, 
U.S. Code, the STD's quality assurance program should consider the 
specific contractual needs of the design-build project. All provisions 
of paragraph (a) of this section are applicable to design-build 
projects. In addition, the quality assurance program may include the 
following:
    (1) Reliance on a combination of contractual provisions and 
acceptance methods;
    (2) Reliance on quality control sampling and testing as part of the 
acceptance decision, provided that adequate verification of the design-
builder's quality control sampling and testing is performed to ensure 
that the design-builder is providing the quality of materials and 
construction required by the contract documents.
    (3) Contractual provisions which require the operation of the 
completed facility for a specific time period.

[60 FR 33717, June 29, 1995, as amended at 67 FR 75934, Dec. 10, 2002]



Sec.  637.209  Laboratory and sampling and testing personnel qualifications.

    (a) Laboratories.
    (1) After June 29, 2000, all contractor, vendor, and STD testing 
used in the acceptance decision shall be performed by qualified 
laboratories.
    (2) After June 30, 1997, each STD shall have its central laboratory 
accredited by the AASHTO Accreditation Program or a comparable 
laboratory accreditation program approved by the FHWA.
    (3) After June 29, 2000, any non-STD designated laboratory which 
performs IA sampling and testing shall be accredited in the testing to 
be performed by the AASHTO Accreditation Program or a comparable 
laboratory accreditation program approved by the FHWA.
    (4) After June 29, 2000, any non-STD laboratory that is used in 
dispute resolution sampling and testing shall be accredited in the 
testing to be performed

[[Page 324]]

by the AASHTO Accreditation Program or a comparable laboratory 
accreditation program approved by the FHWA.
    (5) After September 24, 2009, laboratories that perform crash 
testing for acceptance of roadside hardware by the FHWA shall be 
accredited by a laboratory accreditation body that is recognized by the 
National Cooperation for Laboratory Accreditation (NACLA), is a 
signatory to the Asia Pacific Laboratory Accreditation Cooperation 
(APLAC) Mutual Recognition Arrangement (MRA), is a signatory to the 
International Laboratory Accreditation Cooperation (ILAC) Mutual 
Recognition Arrangement (MRA), or another accreditation body acceptable 
to FHWA.
    (b) Sampling and testing personnel. After June 29, 2000, all 
sampling and testing data to be used in the acceptance decision or the 
IA program shall be executed by qualified sampling and testing 
personnel.
    (c) Conflict of interest. In order to avoid an appearance of a 
conflict of interest, any qualified non-STD laboratory shall perform 
only one of the following types of testing on the same project: 
Verification testing, quality control testing, IA testing, or dispute 
resolution testing.

[60 FR 33717, June 29, 1995, as amended at 72 FR 54212, Sept. 24, 2007]



Sec. Appendix A to Subpart B of Part 637--Guide Letter of Certification 
                            by State Engineer

Date____________________________________________________________________
Project No._____________________________________________________________
    This is to certify that:
    The results of the tests used in the acceptance program indicate 
that the materials incorporated in the construction work, and the 
construction operations controlled by sampling and testing, were in 
conformity with the approved plans and specifications. (The following 
sentence should be added if the IA testing frequencies are based on 
project quantities. All independent assurance samples and tests are 
within tolerance limits of the samples and tests that are used in the 
acceptance program.)
    Exceptions to the plans and specifications are explained on the back 
hereof (or on attached sheet).
________________________________________________________________________
Director of STD Laboratory or other appropriate STD Official.



PART 645_UTILITIES--Table of Contents



      Subpart A_Utility Relocations, Adjustments, and Reimbursement

Sec.
645.101 Purpose.
645.103 Applicability.
645.105 Definitions.
645.107 Eligibility.
645.109 Preliminary engineering.
645.111 Right-of-way.
645.113 Agreements and authorizations.
645.115 Construction.
645.117 Cost development and reimbursement.
645.119 Alternate procedure.

                  Subpart B_Accommodation of Utilities

645.201 Purpose.
645.203 Applicability.
645.205 Policy.
645.207 Definitions.
645.209 General requirements.
645.211 State transportation department accommodation policies.
645.213 Use and occupancy agreements (permits).
645.215 Approvals.

              Subpart C_Broadband Infrastructure Deployment

645.301 Purpose.
645.303 Applicability.
645.305 Definitions.
645.307 General requirements.
645.309 Limitations.

    Authority: 23 U.S.C. 101, 109, 111, 116, 123, and 315; 47 U.S.C. 
1504; 23 CFR 1.23 and 1.27; 49 CFR 1.48(b); and E.O. 11990, 42 FR 26961 
(May 24, 1977).

    Editorial Note: Nomenclature changes to part 645 appear at 65 FR 
70311, Nov. 22, 2000.



      Subpart A_Utility Relocations, Adjustments, and Reimbursement

    Source: 50 FR 20345, May 15, 1985, unless otherwise noted.



Sec.  645.101  Purpose.

    To prescribe the policies, procedures, and reimbursement provisions 
for the adjustment and relocation of utility facilities on Federal-aid 
and direct Federal projects.



Sec.  645.103  Applicability.

    (a) The provisions of this regulation apply to reimbursement claimed 
by a State transportation department (STD)

[[Page 325]]

for costs incurred under an approved and properly executed 
transportation department (TD)/utility agreement and for payment of 
costs incurred under all Federal Highway Administration (FHWA)/utility 
agreements.
    (b) Procedures on the accommodation of utilities are set forth in 23 
CFR part 645, subpart B, Accommodation of Utilities.
    (c) When the lines or facilities to be relocated or adjusted due to 
highway construction are privately owned, located on the owner's land, 
devoted exclusively to private use and not directly or indirectly 
serving the public, the provisions of the FHWA's right-of-way procedures 
in 23 CFR 710.203, apply. When applicable, under the foregoing 
conditions, the provisions of this regulation may be used as a guide to 
establish a cost-to-cure.
    (d) The FHWA's reimbursement to the STD will be governed by State 
law (or State regulation) or the provisions of this regulation, 
whichever is more restrictive. When State law or regulation differs from 
this regulation, a determination shall be made by the STD subject to the 
concurrence of the FHWA as to which standards will govern, and the 
record documented accordingly, for each relocation encountered.
    (e) For direct Federal projects, all references herein to the STD or 
TD are inapplicable, and it is intended that the FHWA be considered in 
the relative position of the STD or TD.

[50 FR 20345, May 15, 1985, as amended at 64 FR 71289, Dec. 21, 1999]



Sec.  645.105  Definitions.

    For the purposes of this regulation, the following definitions shall 
apply:
    Authorization--for Federal-aid projects authorization to the STD by 
the FHWA, or for direct Federal projects authorization to the utility by 
the FHWA, to proceed with any phase of a project. The date of 
authorization establishes the date of eligibility for Federal funds to 
participate in the costs incurred on that phase of work.
    Betterment--any upgrading of the facility being relocated that is 
not attributable to the highway construction and is made solely for the 
benefit of and at the election of the utility.
    Cost of relocation--the entire amount paid by or on behalf of the 
utility properly attributable to the relocation after deducting from 
that amount any increase in value of the new facility, and any salvage 
derived from the old facility.
    Cost of Removal--the amount expended to remove utility property 
including the cost of demolishing, dismantling, removing, transporting, 
or otherwise disposing of utility property and of cleaning up to leave 
the site in a neat and presentable condition.
    Cost of salvage--the amount expended to restore salvaged utility 
property to usable condition after its removal.
    Direct Federal projects--highway projects such as projects under the 
Federal Lands Highways Program which are under the direct administration 
of the FHWA.
    Indirect or overhead costs--those costs which are not readily 
identifiable with one specific task, job, or work order. Such costs may 
include indirect labor, social security taxes, insurance, stores 
expense, and general office expenses. Costs of this nature generally are 
distributed or allocated to the applicable job or work orders, other 
accounts and other functions to which they relate. Distribution and 
allocation is made on a uniform basis which is reasonable, equitable, 
and in accordance with generally accepted cost accounting practices.
    Relocation--the adjustment of utility facilities required by the 
highway project. It includes removing and reinstalling the facility, 
including necessary temporary facilities, acquiring necessary right-of-
way on the new location, moving, rearranging or changing the type of 
existing facilities and taking any necessary safety and protective 
measures. It shall also mean constructing a replacement facility that is 
both functionally equivalent to the existing facility and necessary for 
continuous operation of the utility service, the project economy, or 
sequence of highway construction.
    Salvage value--the amount received from the sale of utility property 
that has been removed or the amount at which the recovered material is 
charged to the utility's accounts, if retained for reuse.

[[Page 326]]

    State transportation department--the transportation department of 
one of the 50 States, the District of Columbia, or Puerto Rico.
    Transportation department(TD)--that department, commission, board, 
or official of any State or political subdivison thereof, charged by its 
law with the responsibility for highway administration.
    Use and occupancy agreement--the document (written agreement or 
permit) by which the TD approves the use and occupancy of highway right-
of-way by utility facilities or private lines.
    Utility--a privately, publicly, or cooperatively owned line, 
facility or system for producing, transmitting, or distributing 
communications, cable television, power, electricity, light, heat, gas, 
oil, crude products, water, steam, waste, storm water not connected with 
highway drainage, or any other similar commodity, including any fire or 
police signal system or street lighting system, which directly or 
indirectly serves the public. The term utility shall also mean the 
utility company inclusive of any wholly owned or controlled subsidiary.
    Work order system--a procedure for accumulating and recording into 
separate accounts of a utility all costs to the utility in connection 
with any change in its system or plant.

[50 FR 20345, May 15, 1985, as amended at 65 FR 70311, Nov. 22, 2000]



Sec.  645.107  Eligibility.

    (a) When requested by the STD, Federal funds may participate, 
subject to the provisions of Sec.  645.103(d) of this part and at the 
pro rata share applicable, in an amount actually paid by an TD for the 
costs of utility relocations. Federal funds may participate in safety 
corrective measures made under the provisions of Sec.  645.107(k) of 
this part. Federal funds may also participate for relocations 
necessitated by the actual construction of highway project made under 
one or more of the following conditions when:
    (1) The STD certifies that the utility has the right of occupancy in 
its existing location because it holds the fee, an easement, or other 
real property interest, the damaging or taking of which is compensable 
in eminent domain,
    (2) The utility occupies privately or publicly owned land, including 
public road or street right-of-way, and the STD certifies that the 
payment by the TD is made pursuant to a law authorizing such payment in 
conformance with the provisions of 23 U.S.C. 123, and/or
    (3) The utility occupies publicy owned land, including public road 
and street right-of-way, and is owned by a public agency or political 
subdivision of the State, and is not required by law or agreement to 
move at its own expense, and the STD certifies that the TD has the legal 
authority or obligation to make such payments.
    (b) On projects which the STD has the authority to participate in 
project costs, Federal funds may not participate in payments made by a 
political subdivision for relocation of utility facilities, other than 
those proposed under the provisions of Sec.  645.107(k) of this part, 
when State law prohibits the STD from making payment for relocation of 
utility facilities.
    (c) On projects which the STD does not have the authority to 
participate in project costs, Federal funds may participate in payments 
made by a political subdivision for relocation of utility facilities 
necessitated by the actual construction of a highway project when the 
STD certifies that such payment is based upon the provisions of Sec.  
645.107(a) of this part and does not violate the terms of a use and 
occupancy agreement, or legal contract, between the utility and the TD 
or for utility safety corrective measures under the provisions of Sec.  
645.107(k) of this part.
    (d) Federal funds are not eligible to participate in any costs for 
which the utility contributes or repays the TD, except for utilities 
owned by the political subdivision on projects which qualify under the 
provisions of Sec.  645.107(c) of this part in which case the costs of 
the utility are considered to be costs of the TD.
    (e) The FHWA may deny Federal fund participation in any payments 
made by a TD for the relocation of utility facilities when such payments 
do not constitute a suitable basis for Federal fund participation under 
the provisions of title 23 U.S.C.

[[Page 327]]

    (f) The rights of any public agency or political subdivision of a 
State under contract, franchise, or other instrument or agreement with 
the utility, pertaining to the utility's use and occupancy of publicly 
owned land, including public road and street right-of-way, shall be 
considered the rights of the STD in the absence of State law to the 
contrary.
    (g) In lieu of the individual certifications required by Sec.  
645.107(a) and (c), the STD may file a statement with the FHWA setting 
forth the conditions under which the STD will make payments for the 
relocation of utility facilities. The FHWA may approve Federal fund 
participation in utility relocations proposed by the STD under the 
conditions of the statement when the FHWA has made an affirmative 
finding that such statement and conditions form a suitable basis for 
Federal fund participation under the provisions of 23 U.S.C. 123.
    (h) Federal funds may not participate in the cost of relocations of 
utility facilities made solely for the benefit or convenience of a 
utility, its contractor, or a highway contractor.
    (i) When the advance installation of new utility facilities crossing 
or otherwise occupying the proposed right-of-way of a planned highway 
project is underway, or scheduled to be underway, prior to the time such 
right-of-way is purchased by or under control of the TD, arrangements 
should be made for such facilities to be installed in a manner that will 
meet the requirements of the planned highway project. Federal funds are 
eligible to participate in the additional cost incurred by the utility 
that are attributable to, and in accommodation of, the highway project 
provided such costs are incurred subsequent to authorization of the work 
by the FHWA. Subject to the other provisions of this regulation, Federal 
participation may be approved under the foregoing circumstances when it 
is demonstrated that the action taken is necessary to protect the public 
interest and the adjustment of the facility is necessary by reason of 
the actual construction of the highway project.
    (j) Federal funds are eligible to participate in the costs of 
preliminary engineering and allied services for utilities, the 
acquisition of replacement right-of-way for utilities, and the physical 
construction work associated with utility relocations. Such costs must 
be incurred by or on behalf of a utility after the date the work is 
included in an approved program and after the FHWA has authorized the 
STD to proceed in accordance with 23 CFR part 630, subpart A, Federal-
Aid Programs Approval and Project Authorization.
    (k) Federal funds may participate in projects solely for the purpose 
of implementing safety corrective measures to reduce the roadside 
hazards of utility facilities to the highway user. Safety corrective 
measures should be developed in accordance with the provisions of 23 CFR 
645.209(k).

(Information collection requirements in paragraph (g) were approved by 
the Office of Management and Budget under control number 2125-0515)

[50 FR 20345, May 15, 1985, as amended at 53 FR 24932, July 1, 1988]



Sec.  645.109  Preliminary engineering.

    (a) As mutually agreed to by the TD and utility, and subject to the 
provisions of paragraph (b) of this section, preliminary engineering 
activities associated with utility relocation work may be done by:
    (1) The TD's or utility's engineering forces;
    (2) An engineering consultant selected by the TD, after consultation 
with the utility, the contract to be administered by the TD; or,
    (3) An engineering consultant selected by the utility, with the 
approval of the TD, the contract to be administered by the utility.
    (b) When a utility is not adequately staffed to pursue the necessary 
preliminary engineering and related work for the utility relocation, 
Federal funds may participate in the amount paid to engineers, 
architects, and others for required engineering and allied services 
provided such amounts are not based on a percentage of the cost of 
relocation. When Federal participation is requested by the STD in the 
cost of such services, the utility and its consultant shall agree in 
writing as to the services to be provided and the fees and arrangements 
for the services. Federal

[[Page 328]]

funds may participate in the cost of such services performed under 
existing written continuing contracts when it is demonstrated that such 
work is performed regularly for the utility in its own work and that the 
costs are reasonable.
    (c) The procedures in 23 CFR part 172, Administration of Engineering 
and Design Related Service Contracts, may be used as a guide for 
reviewing proposed consultant contracts.

[50 FR 20345, May 15, 1985, as amended at 60 FR 34850, July 5, 1995; 65 
FR 70311, Nov. 22, 2000]



Sec.  645.111  Right-of-way.

    (a) Federal participation may be approved for the cost of 
replacement right-of-way provided:
    (1) The utility has the right of occupancy in its existing location 
beause it holds the fee, an easement, or another real property interest, 
the damaging or taking of which is compensable in eminent domain, or the 
acquisition is made in the interest of project economy or is necessary 
to meet the requirements of the highway project, and
    (2) There will be no charge to the project for that portion of the 
utility's existing right-of-way being transferred to the TD for highway 
purposes.
    (b) The utility shall determine and make a written valuation of the 
replacement right-of-way that it acquires in order to justify amounts 
paid for such right-of-way. This written valuation shall be accomplished 
prior to negotiation for acquisition.
    (c) Acquisition of replacement right-of-way by the TD on behalf of a 
utility or acquisition of nonoperating real property from a utility 
shall be in accordance with the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.) and 
applicable right-of-way procedures in 23 CFR 710.203.
    (d) When the utility has the right-of-occupancy in its existing 
location because it holds the fee, an easement, or another real property 
interest, and it is not necessary by reason of the highway construction 
to adjust or replace the facilities located thereon, the taking of and 
damage to the utility's real property, including the disposal or removal 
of such facilities, may be considered a right-of-way transaction in 
accordance with provisions of the applicable right-of-way procedures in 
23 CFR 710.203.

[50 FR 20345, May 15, 1985, as amended at 64 FR 71289, Dec. 21, 1999]



Sec.  645.113  Agreements and authorizations.

    (a) On Federal-aid and direct Federal projects involving utility 
relocations, the utility and the TD shall agree in writing on their 
separate responsibilities for financing and accomplishing the relocation 
work. When Federal participation is requested, the agreement shall 
incorporate this regulation by reference and designate the method to be 
used for performing the work (by contract or force account) and for 
developing relocation costs. The method proposed by the utility for 
developing relocation costs must be acceptable to both the TD and the 
FHWA. The preferred method for the development of relocation costs by a 
utility is on the basis of actual direct and related indirect costs 
accumulated in accordance with a work order accounting procedure 
prescribed by the applicable Federal or State regulatory body.
    (b) When applicable, the written agreement shall specify the terms 
and amounts of any contribution or repayments made or to be made by the 
utility to the TD in connection with payments by the TD to the utility 
under the provisions of Sec.  645.107 of this regulation.
    (c) The agreement shall be supported by plans, specifications when 
required, and itemized cost estimates of the work agreed upon, including 
appropriate credits to the project, and shall be sufficiently 
informative and complete to provide the TD and the FHWA with a clear 
description of the work required.
    (d) When the relocation involves both work to be done at the TD's 
expense and work to be done at the expense of the utility, the written 
agreement shall state the share to be borne by each party.
    (e) In the event there are changes in the scope of work, extra work 
or major changes in the planned work covered by the approved agreement, 
plans, and estimates, Federal participation shall

[[Page 329]]

be limited to costs covered by a modification of the agreement, a 
written change, or extra work order approved by the TD and the FHWA.
    (f) When proposed utility relocation and adjustment work on a 
project for a specific utility company can be clearly defined and the 
cost can be accurately estimated, the FHWA may approve an agreement 
between the TD and the utility company for a lump-sum payment without 
later confirmation by audit of actual costs.
    (g) Except as otherwise provided by Sec.  645.113(h), authorization 
by the FHWA to the STD to proceed with the physical relocation of a 
utility's facilities may be given after:
    (1) The utility relocation work, or the right-of-way, or physical 
construction phase of the highway construction work is included in an 
approved Statewide transportation improvement program,
    (2) The appropriate environmental evaluation and public hearing 
procedures required by 23 CFR part 771, Environmental Impact and Related 
Procedures, have been satisfied.
    (3) The FHWA has reviewed and approved the plans, estimates, and 
proposed or executed agreements for the utility work and is furnished a 
schedule for accomplishing the work.
    (h) The FHWA may authorize the physical relocation of utility 
facilities before the requirements of Sec.  645.113(g)(2) are satisfied 
when the relocation or adjustment of utility facilities meets the 
requirements of Sec.  645.107(i) of this regulation.
    (i) Whenever the FHWA has authorized right-of-way acquisition under 
the hardship and protective buying provisions of 23 CFR 710.503, the 
FHWA may authorize the physical relocation of utility facilities located 
in whole or in part on such right-of-way.
    (j) When all efforts by the TD and utility fail to bring about 
written agreement of their separate responsibilities under the 
provisions of this regulation, the STD shall submit its proposal and a 
full report of the circumstances to the FHWA. Conditional authorizations 
for the relocation work to proceed may be given by the FHWA to the STD 
with the understanding that Federal funds will not be paid for work done 
by the utility until the STD proposal has been approved by the FHWA.
    (k) The FHWA will consider for approval any special procedure under 
State law, or appropriate administrative or judicial order, or under 
blanket master agreements with the utilities, that will fully accomplish 
all of the foregoing objectives and accelerate the advancement of the 
construction and completion of projects.

[50 FR 20345, May 15, 1985, as amended at 60 FR 34850, July 5, 1995; 64 
FR 71289, Dec. 21, 1999; 65 FR 70311, Nov. 22, 2000]



Sec.  645.115  Construction.

    (a) Part 635, subpart B, of this title, Force Account Construction 
(justification required for force account work), states that it is cost-
effective for certain utility adjustments to be performed by a utility 
with its own forces and equipment, provided the utility is qualified to 
perform the work in a satisfactory manner. This cost-effectiveness 
finding covers minor work on the utility's existing facilities routinely 
performed by the utility with its own forces. When the utility is not 
adequately staffed and equipped to perform such work with its own forces 
and equipment at a time convenient to and in coordination with the 
associated highway construction, such work may be done by:
    (1) A contract awarded by the TD or utility to the lowest qualified 
bidder based on appropriate solicitation,
    (2) Inclusion as part of the TD's highway construction contract let 
by the TD as agreed to by the utility,
    (3) An existing continuing contract, provided the costs are 
reasonable, or
    (4) A contract for low-cost incidental work, such as tree trimming 
and the like, awarded by the TD or utility without competitive bidding, 
provided the costs are reasonable.
    (b) When it has been determined under part 635, subpart B, that the 
force account method is not the most cost-effective means for 
accomplishing the utility adjustment, such work is to be done under 
competitive bid contracts as described in Sec.  645.115(a) (1) and (2) 
or under an existing continuing contract provided it can be demonstrated 
this is the most cost-effective method.

[[Page 330]]

    (c) Costs for labor, materials, equipment, and other services 
furnished by the utility shall be billed by the utility directly to the 
TD. The special provisions of contracts let by the utility or the TD 
shall be explicit in this respect. The costs of force account work 
performed for the utility by the TD and of contract work performed for 
the utility under a contract let by the TD shall be reported separately 
from the costs of other force account and contract items on the highway 
project.



Sec.  645.117  Cost development and reimbursement.

    (a) Developing and recording costs. (1) All utility relocation costs 
shall be recorded by means of work orders in accordance with an approved 
work order system except when another method of developing and recording 
costs, such as lump-sum agreement, has been approved by the TD and the 
FHWA. Except for work done under contracts, the individual and total 
costs properly reported and recorded in the utility's accounts in 
accordance with the approved method for developing such costs, or the 
lump-sum agreement, shall constitute the maximum amount on which Federal 
participation may be based.
    (2) Each utility shall keep its work order system or other approved 
accounting procedure in such a manner as to show the nature of each 
addition to or retirement from a facility, the total costs thereof, and 
the source or sources of cost. Separate work orders may be issued for 
additions and retirements. Retirements, however, may be included with 
the construction work order provided that all items relating to 
retirements shall be kept separately from those relating to 
construction.
    (3) The STD may develop, or work in concert with utility companies 
to develop, other acceptable costing methods, such as unit costs, to 
estimate and reimburse utility relocation expenditures. Such other 
methods shall be founded in generally accepted industry practices and be 
reasonably supported by recent actual expenditures. Unit costs should be 
developed periodically and supported annually by a maintained data base 
of relocation expenses. Development of any alternate costing method 
should consider the factors listed in paragraphs (b) through (g) of this 
section. Streamlining of the cost development and reimbursement 
procedures is encouraged so long as adequate accountability for Federal 
expenditures is maintained. Concurrence by the FHWA is required for any 
costing method used other than actual cost.
    (b) Direct labor costs. (1) Salaries and wages, at actual or average 
rates, and related expenses paid by the utility to individuals for the 
time worked on the project are reimbursable when supported by adequate 
records. This includes labor associated with preliminary engineering, 
construction engineering, right-of-way, and force account construction.
    (2) Salaries and expenses paid to individuals who are normally part 
of the overhead organization of the utility may be reimbursed for the 
time worked directly on the project when supported by adequate records 
and when the work performed by such individuals is essential to the 
project and could not have been accomplished as economically by 
employees outside the overhead organization.
    (3) Amounts paid to engineers, architects and others for services 
directly related to projects may be reimbursed.
    (c) Labor surcharges. (1) Labor surcharges include worker 
compensation insurance, public liability and property damage insurance, 
and such fringe benefits as the utility has established for the benefit 
of its employees. The cost of labor surcharges will be reimbursed at 
actual cost to the utility, or, at the option of the utility, average 
rates which are representative of actual costs may be used in lieu of 
actual costs if approved by the STD and the FHWA. These average rates 
should be adjusted at least once annually to take into account known 
anticipated changes and correction for any over or under applied costs 
for the preceding period.
    (2) When the utility is a self-insurer, there may be reimbursement 
at experience rates properly developed from actual costs. The rates 
cannot exceed the rates of a regular insurance company for the class of 
employment covered.
    (d) Overhead and indirect construction costs. (1) Overhead and 
indirect construction costs not charged directly to

[[Page 331]]

work order or construction accounts may be allocated to the relocation 
provided the allocation is made on an equitable basis. All costs 
included in the allocation shall be eligible for Federal reimbursement, 
reasonable, actually incurred by the utility, and consistent with the 
provisions of 48 CFR part 31.
    (2) Costs not eligible for Federal reimbursement include, but are 
not limited to, the costs associated with advertising, sales promotion, 
interest on borrowings, the issuance of stock, bad debts, uncollectible 
accounts receivable, contributions, donations, entertainment, fines, 
penalties, lobbying, and research programs.
    (3) The records supporting the entries for overhead and indirect 
construction costs shall show the total amount, rate, and allocation 
basis for each additive, and are subject to audit by representatives of 
the State and Federal Government.
    (e) Material and supply costs. (1) Materials and supplies, if 
available, are to be furnished from company stock except that they may 
be obtained from other sources near the project site when available at a 
lower cost. When not available from company stock, they may be purchased 
either under competitive bids or existing continuing contracts under 
which the lowest available prices are developed. Minor quantities of 
materials and supplies and proprietary products routinely used in the 
utility's operation and essential for the maintenance of system 
compatibility may be excluded from these requirements. The utility shall 
not be required to change its existing standards for materials used in 
permanent changes to its facilities. Costs shall be determined as 
follows:
    (i) Materials and supplies furnished from company stock shall be 
billed at the current stock prices for such new or used materials at 
time of issue.
    (ii) Materials and supplies not furnished from company stock shall 
be billed at actual costs to the utility delivered to the project site.
    (iii) A reasonable cost for plant inspection and testing may be 
included in the costs of materials and supplies when such expense has 
been incurred. The computation of actual costs of materials and supplies 
shall include the deduction of all offered discounts, rebates, and 
allowances.
    (iv) The cost of rehabilitating rather than replacing existing 
utility facilities to meet the requirements of a project is 
reimbursable, provided this cost does not exceed replacement costs.
    (2) Materials recovered from temporary use and accepted for reuse by 
the utility shall be credited to the project at prices charged to the 
job, less a considertion for loss in service life at 10 percent. 
Materials recovered from the permanent facility of the utility that are 
accepted by the utility for return to stock shall be credited to the 
project at the current stock prices of such used materials. Materials 
recovered and not accepted for reuse by the utility, if determined to 
have a net sale value, shall be sold to the highest bidder by the TD or 
utility following an opportunity for TD inspection and appropriate 
solicitation for bids. If the utility practices a system of periodic 
disposal by sale, credit to the project shall be at the going prices 
supported by records of the utility.
    (3) Federal participation may be approved for the total cost of 
removal when either such removal is required by the highway construction 
or the existing facilities cannot be abandoned in place for aesthetic or 
safety reasons. When the utility facilities can be abandoned in place 
but the utility or highway constructor elects to remove and recover the 
materials, Federal funds shall not participate in removal costs which 
exceed the value of the materials recovered.
    (4) The actual and direct costs of handling and loading materials 
and supplies at company stores or material yards, and of unloading and 
handling recovered materials accepted by the utility at its stores or 
material yards are reimbursable. In lieu of actual costs, average rates 
which are representative of actual costs may be used if approved by the 
STD and the FHWA. These average rates should be adjusted at least once 
annually to take into account known anticipated changes and correction 
for any over or under applied costs for the preceding period. At the 
option of the utility, 5 percent of the amounts billed for the materials 
and supplies issued from company

[[Page 332]]

stores and material yards or the value of recovered materials will be 
reimbursed in lieu of actual or average costs for handling.
    (f) Equipment costs. The average or actual costs of operation, minor 
maintenance, and depreciation of utility-owned equipment may be 
reimbursed. Reimbursement for utility-owned vehicles may be made at 
average or actual costs. When utility-owned equipment is not available, 
reimbursement will be limited to the amount of rental paid (1) to the 
lowest qualified bidder, (2) under existing continuing contracts at 
reasonable costs, or (3) as an exception by negotiation when paragraph 
(f) (1) and (2) of this section are impractical due to project location 
or schedule.
    (g) Transportation costs. (1) The utility's cost, consistent with 
its overall policy, of necessary employee transportation and subsistence 
directly attributable to the project is reimbursable.
    (2) Reasonable cost for the movement of materials, supplies, and 
equipment to the project and necessary return to storage including the 
associated cost of loading and unloading equipment is reimbursable.
    (h) Credits. (1) Credit to the highway project will be required for 
the cost of any betterments to the facility being replaced or adjusted, 
and for the salvage value of the materials removed.
    (2) Credit to the highway project will be required for the accrued 
depreciation of a utility facility being replaced, such as a building, 
pumping station, filtration plant, power plant, substation, or any other 
similar operational unit. Such accrued depreciation is that amount based 
on the ratio between the period of actual length of service and total 
life expectancy applied to the original cost. Credit for accrued 
depreciation shall not be required for a segment of the utility's 
service, distribution, or transmission lines.
    (3) No betterment credit is required for additions or improvements 
which are:
    (i) Required by the highway project,
    (ii) Replacement devices or materials that are of equivalent 
standards although not identical,
    (iii) Replacement of devices or materials no longer regularly 
manufactured with next highest grade or size,
    (iv) Required by law under governmental and appropriate regulatory 
commission code, or
    (v) Required by current design practices regularly followed by the 
company in its own work, and there is a direct benefit to the highway 
project.
    (4) When the facilities, including equipment and operating 
facilities, described in Sec.  645.117(h)(2) are not being replaced, but 
are being rehabilitated and/or moved, as necessitated by the highway 
project, no credit for accrued depreciation is needed.
    (5) In no event will the total of all credits required under the 
provisions of this regulation exceed the total costs of adjustment 
exclusive of the cost of additions or improvements necessitated by the 
highway construction.
    (i) Billings. (1) After the executed TD/utility agreement has been 
approved by the FHWA, the utility may be reimbursed through the STD by 
progress billings for costs incurred. Cost for materials stockpiled at 
the project site or specifically purchased and delivered to the utility 
for use on the project may also be reimbursed on progress billings 
following approval of the executed TD/utility agreement.
    (2) The utility shall provide one final and complete billing of all 
costs incurred, or of the agreed-to lump-sum, within one year following 
completion of the utility relocation work, otherwise previous payments 
to the utility may be considered final, except as agreed to between the 
STD and the utility. Billings received from utilities more than one year 
following completion of the utility relocation work may be paid if the 
STD so desires, and Federal-aid highway funds may participate in these 
payments.
    (3) All utility cost records and accounts relating to the project 
are subject to audit by representatives of the State and Federal 
Government for a period of 3 years from the date final

[[Page 333]]

payment has been received by the utility.

(Information collection requirements in paragraph (i) were approved by 
the Office of Management and Budget under control number 2125-0159)

[50 FR 20345, May 15, 1985, as amended at 60 FR 34850, July 5, 1995; 65 
FR 70311, Nov. 22, 2000]



Sec.  645.119  Alternate procedure.

    (a) This alternate procedure is provided to simplify the processing 
of utility relocations or adjustments under the provisions of this 
regulation. Under this procedure, except as otherwise provided in 
paragraph (b) of this section, the STD is to act in the relative 
position of the FHWA for reviewing and approving the arrangements, fees, 
estimates, plans, agreements, and other related matters required by this 
regulation as prerequisites for authorizing the utility to proceed with 
and complete the work.
    (b) The scope of the STD's approval authority under the alternate 
procedure includes all actions necessary to advance and complete all 
types of utility work under the provisions of this regulation except in 
the following instances:
    (1) Utility relocations and adjustments involving major transfer, 
production, and storage facilities such as generating plants, power feed 
stations, pumping stations and reservoirs.
    (2) Utility relocations falling within the scope of Sec.  645.113 
(h), (i), and (j), and Sec.  645.107(i) of this regulation.
    (c) To adopt the alternate procedure, the STD must file a formal 
application for approval by the FHWA. The application must include the 
following:
    (1) The STD's written policies and procedures for administering and 
processing Federal-aid utility adjustments. Those policies and 
procedures must make adequate provisions with respect to the following:
    (i) Compliance with the requirements of this regulation, except as 
otherwise provided by Sec.  645.119(b), and the provisions of 23 CFR 
part 645, subpart B, Accommodation of Utilities.
    (ii) Advance utility liaison, planning, and coordination measures 
for providing adequate lead time and early scheduling of utility 
relocation to minimize interference with the planned highway 
construction.
    (iii) Appropriate administrative, legal, and engineering review and 
coordination procedures as needed to establish the legal basis of the 
TD's payment; the extent of eligibility of the work under State and 
Federal laws and regulations; the more restrictive payment standards 
under Sec.  645.103(d) of this regulation; the necessity of the proposed 
utility work and its compatibility with proposed highway improvements; 
and the uniform treatment of all utility matters and actions, consistent 
with sound management practices.
    (iv) Documentation of actions taken in compliance with STD policies 
and the provisions of this regulation, shall be retained by the STD.
    (2) A statement signed by the chief administrative officer of the 
STD certifying that:
    (i) Federal-aid utility relocations will be processed in accordance 
with the applicable provisions of this regulation, and the STD's utility 
policies and procedures submitted under Sec.  645.119(c)(1).
    (ii) Reimbursement will be requested only for those costs properly 
attributable to the proposed highway construction and eligible for 
participation under the provisions of this regulation.
    (d) The STD's application and any changes to it will be submitted to 
the FHWA for review and approval.
    (e) After the alternate procedure has been approved, the FHWA may 
authorize the STD to proceed with utility relocation on a project in 
accordance with the certification, subject to the following conditions:
    (1) The utility work must be included in an approved program.
    (2) The STD must submit a request in writing for such authorization. 
The request shall include a list of the utility relocations to be 
processed under the alternate procedure, along with the best available 
estimate of the total costs involved.
    (f) The FHWA may suspend approval of the alternate procedure when 
any FHWA review discloses noncompliance with the certification. Federal 
funds will not participate in relocation costs

[[Page 334]]

incurred that do not comply with the requirements under Sec.  
645.119(c)(1).

(Information collection requirements in paragraph (c) were approved by 
the Office of Management and Budget under control number 2125-0533)

[50 FR 20345, May 15, 1985, as amended at 65 FR 70311, Nov. 22, 2000]



                  Subpart B_Accommodation of Utilities

    Source: 50 FR 20354, May 15, 1985, unless otherwise noted.



Sec.  645.201  Purpose.

    To prescribe policies and procedures for accommodating utility 
facilities and private lines on the right-of-way of Federal-aid or 
direct Federal highway projects.



Sec.  645.203  Applicability.

    This subpart applies to:
    (a) New utility installations within the right-of-way of Federal-aid 
or direct Federal highway projects,
    (b) Existing utility facilities which are to be retained, relocated, 
or adjusted within the right-of-way of active projects under development 
or construction when Federal-aid or direct Federal highway funds are 
either being or have been used on the involved highway facility. When 
existing utility installations are to remain in place without 
adjustments on such projects the transportation department and utility 
are to enter into an appropriate agreement as discussed in Sec.  645.213 
of this part,
    (c) Existing utility facilities which are to be adjusted or 
relocated under the provisions of Sec.  645.209(k), and
    (d) Private lines which may be permitted to cross the right-of-way 
of a Federal-aid or direct Federal highway project pursuant to State law 
and regulations and the provisions of this subpart. Longitudinal use of 
such right-of-way by private lines is to be handled under the provisions 
of 23 CFR 1.23(c).



Sec.  645.205  Policy.

    (a) Pursuant to the provisions of 23 CFR 1.23, it is in the public 
interest for utility facilities to be accommodated on the right-of-way 
of a Federal-aid or direct Federal highway project when such use and 
occupancy of the highway right-of-way do not adversely affect highway or 
traffic safety, or otherwise impair the highway or its aesthetic 
quality, and do not conflict with the provisions of Federal, State or 
local laws or regulations.
    (b) Since by tradition and practice highway and utility facilities 
frequently coexist within common right-of-way or along the same 
transportation corridors, it is essential in such situations that these 
public service facilities be compatibly designed and operated. In the 
design of new highway facilities consideration should be given to 
utility service needs of the area traversed if such service is to be 
provided from utility facilities on or near the highway. Similarly the 
potential impact on the highway and its users should be considered in 
the design and location of utility facilities on or along highway right-
of-way. Efficient, effective and safe joint highway and utility 
development of transportation corridors is important along high speed 
and high volume roads, such as major arterials and freeways, 
particularly those approaching metropolitan areas where space is 
increasingly limited. Joint highway and utility planning and development 
efforts are encouraged on Federal-aid highway projects.
    (c) The manner is which utilities cross or otherwise occupy the 
right-of-way of a direct Federal or Federal-aid highway project can 
materially affect the highway, its safe operation, aesthetic quality, 
and maintenance. Therefore, it is necessary that such use and occupancy, 
where authorized, be regulated by transportation departments in a manner 
which preserves the operational safety and the functional and aesthetic 
quality of the highway facility. This subpart shall not be construed to 
alter the basic legal authority of utilities to install their facilities 
on public highways pursuant to law or franchise and reasonable 
regulation by transportation departments with respect to location and 
manner of installation.
    (d) When utilities cross or otherwise occupy the right-of-way of a 
direct Federal or Federal-aid highway project on Federal lands, and when 
the right-

[[Page 335]]

of-way grant is for highway purposes only, the utility must also obtain 
and comply with the terms of a right-of-way or other occupancy permit 
for the Federal agency having jurisdiction over the underlying land.

[50 FR 20354, May 15, 1985, as amended at 53 FR 2833, Feb. 2, 1988]



Sec.  645.207  Definitions.

    For the purpose of this regulation, the following definitions shall 
apply:
    Aesthetic quality--those desirable characteristics in the appearance 
of the highway and its environment, such as harmony between or blending 
of natural and manufactured objects in the environment, continuity of 
visual form without distracting interruptions, and simplicity of designs 
which are desirably functional in shape but without clutter.
    Border area--the area between the traveled way and the right-of-way 
line.
    Clear roadside policy--that policy employed by a transportation 
department to provide a clear zone in order to increase safety, improve 
traffic operations, and enhance the aesthetic quality of highways by 
designing, constructing and maintaining highway roadsides as wide, flat, 
and rounded as practical and as free as practical from natural or 
manufactured hazards such as trees, drainage structures, nonyielding 
sign supports, highway lighting supports, and utility poles and other 
ground-mounted structures. The policy should address the removal of 
roadside obstacles which are likely to be associated with accident or 
injury to the highway user, or when such obstacles are essential, the 
policy should provide for appropriate countermeasures to reduce hazards. 
Countermeasures include placing utility facilities at locations which 
protect out-of-control vehicles, using breakaway features, using impact 
attenuation devices, or shielding. In all cases full consideration shall 
be given to sound engineering principles and economic factors.
    Clear zone--the total roadside border area starting at the edge of 
the traveled way, available for safe use by errant vehicles. This area 
may consist of a shoulder, a recoverable slope, a non-recoverable slope, 
and/or the area at the toe of a non-recoverable slope available for safe 
use by an errant vehicle. The desired width is dependent upon the 
traffic volumes and speeds, and on the roadside geometry. The current 
edition of the AASHTO ``Roadside Design Guide'' should be used as a 
guide for establishing clear zones for various types of highways and 
operating conditions. This publication is available for inspection and 
copying from the FHWA Washington Headquarters and all FHWA Division 
Offices as prescribed in 49 CFR part 7. Copies of current AASHTO 
publications are available for purchase from the American Association of 
State Highway and Transportation Officials, Suite 225, 444 North Capitol 
Street, NW., Washington, D.C. 20001, or electronically at http://
www.aashto.org.
    Direct Federal highway projects--those active or completed highway 
projects such as projects under the Federal Lands Highways Program which 
are under the direct administration of the Federal Highway 
Administration (FHWA)
    Federal-aid highway projects--those active or completed highway 
projects administered by or through a State transportation department 
which involve or have involved the use of Federal-aid highway funds for 
the development, acquisition of right-of-way, construction or 
improvement of the highway or related facilities, including highway 
beautification projects under 23 U.S.C. 319, Landscaping and Scenic 
Enhancement.
    Freeway--a divided arterial highway with full control of access.
    Highway--any public way for vehicular travel, including the entire 
area within the right-of-way and related facilities constructed or 
improved in whole or in part with Federal-aid or direct Federal highway 
funds.
    Transportation department--that department, agency, commission, 
board, or official of any State or political subdivision thereof, 
charged by its law with the responsibility for highway administration.
    Private lines--privately owned facilities which convey or transmit 
the commodities outlined in the definition of utility facility of this 
section, but devoted exclusively to private use.

[[Page 336]]

    Right-of-way--real property, or interests therein, acquired, 
dedicated or reserved for the construction, operation, and maintenance 
of a highway in which Federal-aid or direct Federal highway funds are or 
have been involved in any stage of development. Lands acquired under 23 
U.S.C. 319 shall be considered to be highway right-of-way.
    State transportation department--the transportation department of 
one of the 50 States, the District of Columbia, or Puerto Rico.
    Use and occupancy agreement--the document (written agreement or 
permit) by which the transportation department approves the use and 
occupancy of highway right-of-way by utility facilities or private 
lines.
    Utility facility--privately, publicly or cooperatively owned line, 
facility, or system for producing, transmitting, or distributing 
communications, cable television, power, electricity, light, heat, gas, 
oil, crude products, water, steam, waste, storm water not connected with 
highway drainage, or any other similar commodity, including any fire or 
police signal system or street lighting system, which directly or 
indirectly serves the public. The term utility shall also mean the 
utility company inclusive of any substantially owned or controlled 
subsidiary. For the purposes of this part, the term includes those 
utility-type facilities which are owned or leased by a government agency 
for its own use, or otherwise dedicated solely to governmental use. The 
term utility includes those facilities used solely by the utility which 
are a part of its operating plant.

[50 FR 20345, May 15, 1985, as amended at 51 FR 16834, May 7, 1986; 53 
FR 2833, Feb. 2, 1988; 55 FR 25828, June 25, 1990; 60 FR 34850, July 5, 
1995; 61 FR 12022, Mar. 25, 1996; 65 FR 70311, Nov. 22, 2000]



Sec.  645.209  General requirements.

    (a) Safety. Highway safety and traffic safety are of paramount, but 
not of sole, importance when accommodating utility facilities within 
highway right-of-way. Utilities provide an essential public service to 
the general public. Traditionally, as a matter of sound economic public 
policy and law, utilities have used public road right-of-way for 
transmitting and distributing their services. The lack of sufficient 
right-of-way width to accommodate utilities outside the desirable clear 
zone, in and of itself, is not a valid reason to preclude utilities from 
occupying the highway right-of-way. However, due to the nature and 
volume of highway traffic, the effect of such joint use on the traveling 
public must be carefully considered by transportation departments before 
approval of utility use of the right-of-way of Federal-aid or direct 
Federal highway projects is given. Adjustments in the operating 
characteristics of the utility or the highway or other special efforts 
may be necessary to increase the compatibility of utility-highway joint 
use. The possibility of this joint use should be a consideration in 
establishing right-of-way requirements for highway projects. In any 
event, the design, location, and manner in which utilities use and 
occupy the right-of-way of Federal-aid or direct Federal highway 
projects must conform to the clear roadside policies for the highway 
involved and otherwise provide for a safe traveling environment as 
required by 23 U.S.C. 109(l)(1).
    (b) New above ground installations. On Federal-aid or direct Federal 
highway projects, new above ground utility installations, where 
permitted, shall be located as far from the traveled way as possible, 
preferably along the right-of-way line. No new above ground utility 
installations are to be allowed within the established clear zone of the 
highway unless a determination has been made by the transportation 
department that placement underground is not technically feasible or is 
unreasonably costly and there are no feasible alternate locations. In 
exceptional situations when it is essential to locate such above ground 
utility facilities within the established clear zone of the highway, 
appropriate countermeasures to reduce hazards shall be used. 
Countermeasures include placing utility facilities at locations which 
protect or minimize exposure to out-of-control vehicles, using breakaway 
features, using impact attenuation devices, using delineation, or 
shielding.
    (c) Installations within freeways. (1) Each State transportation 
department shall submit an accommodation plan in accordance with 
Sec. Sec.  645.211 and 645.215

[[Page 337]]

which addresses how the State transportation department will consider 
applications for longitudinal utility installations within the access 
control lines of a freeway. This includes utility installations within 
interchange areas which must be constructed or serviced by direct access 
from the main lanes or ramps. If a State transportation department 
elects to permit such use, the plan must address how the State 
transportation department will oversee such use consistent with this 
subpart, Title 23 U.S.C., and the safe and efficient use of the 
highways.
    (2) Any accommodation plan shall assure that installations satisfy 
the following criteria:
    (i) The effects utility installations will have on highway and 
traffic safety will be ascertained, since in no case shall any use be 
permitted which would adversely affect safety.
    (ii) The direct and indirect environmental and economic effects of 
any loss of productive agricultural land or any productivity of any 
agricultural land which would result from the disapproval of the use of 
such right-of-way for accommodation of such utility facility will be 
evaluated.
    (iii) These environmental and economic effects together with any 
interference with or impairment of the use of the highway in such right-
of-way which would result from the use of such right-of-way for the 
accommodation of such utility facility will be considered.
    (iv) [Reserved]
    (v) A utility strip will be established along the outer edge of the 
right-of-way by locating a utility access control line between the 
proposed utility installation and the through roadway and ramps. 
Existing fences should be retained and, except along sections of 
freeways having frontage roads, planned fences should be located at the 
freeway right-of-way line. The State or political subdivision is to 
retain control of the utility strip right-of-way including its use by 
utility facilities. Service connections to adjacent properties shall not 
be permitted from within the utility strip.
    (3) Nothing in this part shall be construed as prohibiting a 
transportation department from adopting a more restrictive policy than 
that contained herein with regard to longitudinal utility installations 
along freeway right-of-way and access for constructing and/or for 
servicing such installations.
    (d) Uniform policies and procedures. For a transportation department 
to fulfill its responsibilities to control utility use of Federal-aid 
highway right-of-way within the State and its political subdivisions, it 
must exercise or cause to be exercised, adequate regulation over such 
use and occupancy through the establishment and enforcement of 
reasonably uniform policies and procedures for utility accommodation.
    (e) Private lines. Because there are circumstances when private 
lines may be allowed to cross or otherwise occupy the right-of-way of 
Federal-aid projects, transportation departments shall establish uniform 
policies for properly controlling such permitted use. When permitted, 
private lines must conform to the provisions of this part and the 
provisions of 23 CFR 1.23(c) for longitudinal installations.
    (f) Direct Federal highway projects. On direct Federal highway 
projects, the FHWA will apply, or cause to be applied, utility and 
private line accommodation policies similar to those required on 
Federal-aid highway projects. When appropriate, agreements will be 
entered into between the FHWA and the transportation department or other 
government agencies to ensure adequate control and regulation of use by 
utilities and private lines of the right-of-way on direct Federal 
highway projects.
    (g) Projects where state lacks authority. On Federal-aid highway 
projects where the State transportation department does not have legal 
authority to regulate highway use by utilities and private lines, the 
State transportation department must enter into formal agreements with 
those local officials who have such authority. The agreements must 
provide for a degree of protection to the highway at least equal to the 
protection provided by the State transportation department's utility 
accommodation policy approved under the provisions of Sec.  645.215(b) 
of this part. The project agreement between the State transportation 
department

[[Page 338]]

and the FHWA on all such Federal-aid highway projects shall contain a 
special provision incorporating the formal agreements with the 
responsible local officials.
    (h) Scenic areas. New utility installations, including those needed 
for highway purposes, such as for highway lighting or to serve a weigh 
station, rest area or recreation area, are not permitted on highway 
right-of-way or other lands which are acquired or improved with Federal-
aid or direct Federal highway funds and are located within or adjacent 
to areas of scenic enhancement and natural beauty. Such areas include 
public park and recreational lands, wildlife and waterfowl refuges, 
historic sites as described in 23 U.S.C. 138, scenic strips, overlooks, 
rest areas and landscaped areas. The State transportation department may 
permit exceptions provided the following conditions are met:
    (1) New underground or aerial installations may be permitted only 
when they do not require extensive removal or alteration of trees or 
terrain features visible to the highway user or impair the aesthetic 
quality of the lands being traversed.
    (2) Aerial installations may be permitted only when:
    (i) Other locations are not available or are unusually difficult and 
costly, or are less desirable from the standpoint of aesthetic quality,
    (ii) Placement underground is not technically feasible or is 
unreasonably costly, and
    (iii) The proposed installation will be made at a location, and will 
employ suitable designs and materials, which give the greatest weight to 
the aesthetic qualities of the area being traversed. Suitable designs 
include, but are not limited to, self-supporting armless, single-pole 
construction with vertical configuration of conductors and cable.
    (3) For new utility installations within freeways, the provisions of 
paragraph (c) of this section must also be satisfied.
    (i) Joint use agreements. When the utility has a compensable 
interest in the land occupied by its facilities and such land is to be 
jointly occupied and used for highway and utility purposes, the 
transportation department and utility shall agree in writing as to the 
obligations and responsibilities of each party. Such joint-use 
agreements shall incorporate the conditions of occupancy for each party, 
including the rights vested in the transportation department and the 
rights and privileges retained by the utility. In any event, the 
interest to be acquired by or vested in the transportation department in 
any portion of the right-of-way of a Federal-aid or direct Federal 
highway project to be vacated, used or occupied by utilities or private 
lines, shall be adequate for the construction, safe operation, and 
maintenance of the highway project.
    (j) Traffic control plan. Whenever a utility installation, 
adjustment or maintenance activity will affect the movement of traffic 
or traffic safety, the utility shall implement a traffic control plan 
and utilize traffic control devices as necessary to ensure the safe and 
expeditious movement of traffic around the work site and the safety of 
the utility work force in accordance with procedures established by the 
transportation department. The traffic control plan and the application 
of traffic control devices shall conform to the standards set forth in 
the current edition of the ``Manual on Uniform Traffic Control Devices'' 
(MUTCD) and 23 CFR part 630, subpart J. This publication is available 
for inspection and copying from the FHWA Washington Headquarters and all 
FHWA Division Offices as prescribed in 49 CFR part 7.
    (k) Corrective measures. When the transportation department 
determines that existing utility facilities are likely to be associated 
with injury or accident to the highway user, as indicated by accident 
history or safety studies, the transportation department shall initiate 
or cause to be initiated in consultation with the affected utilities, 
corrective measures to provide for a safer traffic environment. The 
corrective measures may include changes to utility or highway facilities 
and should be prioritized to maximum safety benefits in the most cost-
effective manner. The scheduling of utility safety improvements should 
take into consideration planned utility replacement or

[[Page 339]]

upgrading schedules, accident potential, and the availability of 
resources. It is expected that the requirements of this paragraph will 
result in an orderly and positive process to address the identified 
utility hazard problems in a timely and reasonable manner with due 
regard to the effect of the corrective measures on both the utility 
consumer and the road user. The type of corrective measures are not 
prescribed. Any requests received involving Federal participation in the 
cost of adjusting or relocating utility facilities pursuant to this 
paragrpah shall be subject to the provisions of 23 CFR part 645, subpart 
A, Utility Relocations, Adjustments and Reimbursement, and 23 CFR part 
924, Highway Safety Improvement Program.
    (l) Wetlands. The installation of privately owned lines or conduits 
on the right-of-way of Federal-aid or direct Federal highway projects 
for the purpose of draining adjacent wetlands onto the highway right-of-
way is considered to be inconsistent with Executive Order 11990, 
Protection of Wetlands, dated May 24, 1977, and shall be prohibited.
    (m) Utility determination. In determining whether a proposed 
installation is a utility or not, the most important consideration is 
how the STD views it under its own State laws and/or regulations.

[50 FR 20354, May 15, 1985, as amended at 53 FR 2833, Feb. 2, 1988; 60 
FR 34851, July 5, 1995; 65 FR 70311, Nov. 22, 2000]



Sec.  645.211  State transportation department accommodation policies.

    The FHWA should use the current editions of the AASHTO publications, 
``A Guide for Accommodating Utilities Within Highway Right-of-Way'' and 
``Roadside Design Guide'' to assist in the evaluation of adequacy of STD 
utility accommodation policies. These publications are available for 
inspection from the FHWA Washington Headquarters and all FHWA Division 
Offices as prescribed in 49 CFR part 7. Copies of current AASHTO 
publications are available for purchase from the American Association of 
State Highway and Transportation Officials, Suite 225, 444 North Capitol 
Street NW., Washington, DC 20001, or electronically at http://
www.aashto.org. At a minimum, such policies shall make adequate 
provisions with respect to the following:
    (a) Utilities must be accommodated and maintained in a manner which 
will not impair the highway or adversely affect highway or traffic 
safety. Uniform procedures controlling the manner, nature and extent of 
such utility use shall be established.
    (b) Consideration shall be given to the effect of utility 
installations in regard to safety, aesthetic quality, and the costs or 
difficulty of highway and utility construction and maintenance.
    (c) The State transportation department's standards for regulating 
the use and occupancy of highway right-of-way by utilities must include, 
but are not limited to, the following:
    (1) The horizontal and vertical location requirements and clearances 
for the various types of utilities must be clearly stated. These must be 
adequate to ensure compliance with the clear roadside policies for the 
particular highway involved.
    (2) The applicable provisions of government or industry codes 
required by law or regulation must be set forth or appropriately 
referenced, including highway design standards or other measures which 
the State transportation department deems necessary to provide adequate 
protection to the highway, its safe operation, aesthetic quality, and 
maintenance.
    (3) Specifications for and methods of installation; requirements for 
preservation and restoration of highway facilities, appurtenances, and 
natural features and vegetation on the right-of-way; and limitations on 
the utility's activities within the right-of-way including installation 
within areas set forth by Sec.  645.209(h) of this part should be 
prescribed as necessary to protect highway interests.
    (4) Measures necessary to protect traffic and its safe operation 
during and after installation of facilities, including control-of-access 
restrictions, provisions for rerouting or detouring traffic, traffic 
control measures to be employed, procedures for utility traffic control 
plans, limitations on vehicle parking and materials storage, protection 
of open excavations, and the like must be provided.

[[Page 340]]

    (5) A State transportation department may deny a utility's request 
to occupy highway right-of-way based on State law, regulation, or 
ordinances or the State transportation department's policy. However, in 
any case where the provisions of this part are to be cited as the basis 
for disapproving a utility's request to use and occupy highway right-of-
way, measures must be provided to evaluate the direct and indirect 
environmental and economic effects of any loss of productive 
agricultural land or any impairment of the productivity of any 
agricultural land that would result from the disapproval. The 
environmental and economic effects on productive agricultural land 
together with the possible interference with or impairment of the use of 
the highway and the effect on highway safety must be considered in the 
decision to disapprove any proposal by a utility to use such highway 
right-of-way.
    (d) Compliance with applicable State laws and approved State 
transportation department utility accommodation policies must be 
assured. The responsible State transportation department's file must 
contain evidence of the written arrangements which set forth the terms 
under which utility facilities are to cross or otherwise occupy highway 
right-of-way. All utility installations made on highway right-of-way 
shall be subject to written approval by the State transportation 
department. However, such approval will not be required where so 
provided in the use and occupancy agreement for such matters as utility 
facility maintenance, installation of service connections on highways 
other than freeways, or emergency operations.
    (e) The State transportation department shall set forth in its 
utility accommodation plan detailed procedures, criteria, and standards 
it will use to evaluate and approve individual applications of utilities 
on freeways under the provisions of Sec.  645.209(c) of this part. The 
State transportation department also may develop such procedures, 
criteria and standards by class of utility. In defining utility classes, 
consideration may be given to distinguishing utility services by type, 
nature or function and their potential impact on the highway and its 
user.
    (f) The means and authority for enforcing the control of access 
restrictions applicable to utility use of controlled access highway 
facilities should be clearly set forth in the State transportation 
department plan.

(Information collection requirements in paragraphs (a), (b) and (c) were 
approved under control number 2125-0522, and paragraph (d) under control 
number 2125-0514)

[50 FR 20354, May 15, 1985, as amended at 53 FR 2834, Feb. 2, 1988; 55 
FR 25828, June 25, 1990; 65 FR 70312, Nov. 22, 2000]



Sec.  645.213  Use and occupancy agreements (permits).

    The written arrangements, generally in the form of use and occupancy 
agreements setting forth the terms under which the utility is to cross 
or otherwise occupy the highway right-of-way, must include or 
incorporate by reference:
    (a) The transportation department standards for accommodating 
utilities. Since all of the standards will not be applicable to each 
individual utility installation, the use and occupancy agreement must, 
as a minimum, describe the requirements for location, construction, 
protection of traffic, maintenance, access restriction, and any special 
conditions applicable to each installation.
    (b) A general description of the size, type, nature, and extent of 
the utility facilities being located within the highway right-of-way.
    (c) Adequate drawings or sketches showing the existing and/or 
proposed location of the utility facilities within the highway right-of-
way with respect to the existing and/or planned highway improvements, 
the traveled way, the right-of-way lines and, where applicable, the 
control of access lines and approved access points.
    (d) The extent of liability and responsibilities associated with 
future adjustment of the utilities to accommodate highway improvements.
    (e) The action to be taken in case of noncompliance with the 
transportation department's requirements.

[[Page 341]]

    (f) Other provisions as deemed necessary to comply with laws and 
regulations.

(Approved by the Office of Management and Budget under control number 
2125-0522)



Sec.  645.215  Approvals.

    (a) Each State transportation department shall submit a statement to 
the FHWA on the authority of utilities to use and occupy the right-of-
way of State highways, the State transportation department's power to 
regulate such use, and the policies the State transportation department 
employs or proposes to employ for accommodating utilities within the 
right-of-way Federal-aid highways under its jurisdiction. Statements 
previously submitted and approved by the FHWA need not be resubmitted 
provided the statement adequately addresses the requirements of this 
part. When revisions are deemed necessary the changes to the previously 
approved statement may be submitted separately to the FHWA for approval. 
The State transportation department shall include similar information on 
the use and occupancy of such highways by private lines where permitted. 
The State shall identify those areas, if any, of Federal-aid highways 
within its borders where the State transportation department is without 
legal authority to regulate use by utilities. The statement shall 
address the nature of the formal agreements with local officials 
required by Sec.  645.209(g) of this part. It is expected that the 
statements required by this part or necessary revisions to previously 
submitted and approved statements will be submitted to FHWA within 1 
year of the effective date of this regulation.
    (b) Upon determination by the FHWA that a State transportation 
department's policies satisfy the provisions of 23 U.S.C. 109, 111, and 
116, and 23 CFR 1.23 and 1.27, and meet the requirements of this 
regulation, the FHWA will approve their use on Federal-aid highway 
projects in that State
    (c) Any changes, additions or deletions the State transportation 
department proposes to the approved policies are subject to FHWA 
approval.
    (d) When a utility files a notice or makes an individual application 
or request to a STD to use or occupy the right-of-way of a Federal-aid 
highway project, the STD is not required to submit the matter to the 
FHWA for prior concurrence, except when the proposed installation is not 
in accordance with this regulation or with the STD's utility 
accommodation policy approved by the FHWA for use on Federal-aid highway 
projects.
    (e) The State transportation department's practices under the 
policies or agreements approved under Sec.  645.215(b) of this part 
shall be periodically reviewed by the FHWA.

(Information collection requirements in paragraph (a) were approved by 
the Office of Management and Budget under control number 2125-0514)

[50 FR 20354, May 15, 1985, as amended at 53 FR 2834, Feb. 2, 1988; 60 
FR 34851, July 5, 1995; 65 FR 70312, Nov. 22, 2000]



              Subpart C_Broadband Infrastructure Deployment

    Source: 86 FR 68559, Dec. 3, 2021, unless otherwise noted.



Sec.  645.301  Purpose.

    To prescribe additional requirements to facilitate the installation 
of broadband infrastructure pursuant to 47 U.S.C. 1504.



Sec.  645.303  Applicability.

    This subpart applies to each State that receives funds under Chapter 
1 of Title 23 of the U.S.C. and only to activities for which Federal 
obligations or expenditures are initially approved on or after the 
effective date of this subpart.



Sec.  645.305  Definitions.

    For purposes of this subpart, the terms defined in 47 U.S.C. 1504(a) 
shall have the same meaning where used in these regulations, 
notwithstanding other provisions of this part or Title 23 of the U.S.C.



Sec.  645.307  General requirements.

    (a) A State department of transportation, in consultation with 
appropriate State agencies, shall:

[[Page 342]]

    (1) Identify a broadband utility coordinator, whether in the State 
department of transportation or in another State agency, that is 
responsible for facilitating the broadband infrastructure right-of-way 
efforts within the State. The broadband utility coordinator may have 
additional responsibilities.
    (2) Establish a process for the registration of broadband 
infrastructure entities that seek to be included in those broadband 
infrastructure right-of-way facilitation efforts within the State.
    (3) Establish a process to notify electronically broadband 
infrastructure entities identified under subsection (2) of the State 
Transportation Improvement Program on an annual basis and provide 
additional notifications as necessary to achieve the goals of this 
subpart; and
    (4) Coordinate initiatives carried out under this subpart with other 
statewide telecommunication and broadband plans and State and local 
transportation and land use plans, including strategies to minimize 
repeated excavations that involve the installation of broadband 
infrastructure in a right-of-way.
    (b) If a State chooses to provide for the installation of broadband 
infrastructure in the right-of-way of an applicable Federal-aid highway 
project under this section, the State department of transportation shall 
carry out any appropriate measures to ensure that any existing broadband 
infrastructure entities are not disadvantaged, as compared to other 
broadband infrastructure entities, with respect to the program under 
this section.



Sec.  645.309  Limitations.

    Nothing in this subpart establishes a mandate or requirement that a 
State install or allow the installation of broadband infrastructure in a 
highway right-of-way. Nothing in this subpart authorizes the Secretary 
to withhold or reserve funds or approval of a project under Title 23 of 
the U.S.C.



PART 646_RAILROADS--Table of Contents



             Subpart A_Railroad-Highway Insurance Protection

Sec.
646.101 Purpose.
646.103 Application.
646.105 Contractor's public liability and property damage insurance.
646.107 Railroad protective insurance.
646.109 Types of coverage.
646.111 Amount of coverage.

                   Subpart B_Railroad-Highway Projects

646.200 Purpose and applicability.
646.202 [Reserved]
646.204 Definitions.
646.206 Types of projects.
646.208 Funding.
646.210 Classification of projects and railroad share of the cost.
646.212 Federal share.
646.214 Design.
646.216 General procedures.
646.218 Simplified procedure for accelerating grade crossing 
          improvements.
646.220 Alternate Federal-State procedure.

Appendix to Subpart B of Part 646--Horizontal and Vertical Clearance 
          Provisions for Overpass and Underpass Structures

    Authority: 23 U.S.C. 109(e), 120(c), 130, 133(d)(1), and 315; 49 CFR 
1.48(b).



             Subpart A_Railroad-Highway Insurance Protection

    Source: 39 FR 36474, Oct. 10, 1974, unless otherwise noted.



Sec.  646.101  Purpose.

    The purpose of this part is to prescribe provisions under which 
Federal funds may be applied to the costs of public liability and 
property damage insurance obtained by contractors (a) for their own 
operations, and (b) on behalf of railroads on or about whose right-of-
way the contractors are required to work in the construction of highway 
projects financed in whole or in part with Federal funds.



Sec.  646.103  Application.

    (a) This part applies:
    (1) To a contractors' legal liability for bodily injury to, or death 
of, persons and for injury to, or destruction of, property.

[[Page 343]]

    (2) To the liability which may attach to railroads for bodily injury 
to, or death of, persons and for injury to, or destruction of, property.
    (3) To damage to property owned by or in the care, custody or 
control of the railroads, both as such liability or damage may arise out 
of the contractor's operations, or may result from work performed by 
railroads at or about railroad rights-of-way in connection with projects 
financed in whole or in part with Federal funds.
    (b) Where the highway construction is under the direct supervision 
of the Federal Highway Administration (FHWA), all references herein to 
the State shall be considered as references to the FHWA.



Sec.  646.105  Contractor's public liability and property damage insurance.

    (a) Contractors may be subject to liability with respect to bodily 
injury to or death of persons, and injury to, or destruction of 
property, which may be suffered by persons other than their own 
employees as a result of their operations in connection with 
construction of highway projects located in whole or in part within 
railroad right-of-way and financed in whole or in part with Federal 
funds. Protection to cover such liability of contractors shall be 
furnished under regular contractors' public liability and property 
damage insurance policies issued in the names of the contractors. Such 
policies shall be so written as to furnish protection to contractors 
respecting their operations in performing work covered by their 
contract.
    (b) Where a contractor sublets a part of the work on any project to 
a subcontractor, the contractor shall be required to secure insurance 
protection in his own behalf under contractor's public liability and 
property damage insurance policies to cover any liability imposed on him 
by law for damages because of bodily injury to, or death of, persons and 
injury to, or destruction of, property as a result of work undertaken by 
such subcontractors. In addition, the contractor shall provide for and 
on behalf of any such subcontractors protection to cover like liability 
imposed upon the latter as a result of their operations by means of 
separate and individual contractor's public liability and property 
damage policies; or, in the alternative, each subcontractor shall 
provide satisfactory insurance on his own behalf to cover his individual 
operations.
    (c) The contractor shall furnish to the State highway department 
evidence satisfactory to such department and to the FHWA that the 
insurance coverages required herein have been provided. The contractor 
shall also furnish a copy of such evidence to the railroad or railroads 
involved. The insurance specified shall be kept in force until all work 
required to be performed shall have been satisfactorily completed and 
accepted in accordance with the contract under which the construction 
work is undertaken.



Sec.  646.107  Railroad protective insurance.

    In connection with highway projects for the elimination of hazards 
of railroad-highway crossings and other highway construction projects 
located in whole or in part within railroad right-of-way, railroad 
protective liability insurance shall be purchased on behalf of the 
railroad by the contractor. The standards for railroad protective 
insurance established by Sec. Sec.  646.109 through 646.111 shall be 
adhered to insofar as the insurance laws of the State will permit.

[39 FR 36474, Oct. 10, 1974, as amended at 47 FR 33955, Aug. 5, 1982]



Sec.  646.109  Types of coverage.

    (a) Coverage shall be limited to damage suffered by the railroad on 
account of occurrences arising out of the work of the contractor on or 
about the railroad right-of-way, independent of the railroad's general 
supervision or control, except as noted in Sec.  646.109(b)(4).
    (b) Coverage shall include:
    (1) Death of or bodily injury to passengers of the railroad and 
employees of the railroad not covered by State workmen's compensation 
laws;
    (2) Personal property owned by or in the care, custody or control of 
the railroads;
    (3) The contractor, or any of his agents or employees who suffer 
bodily injury or death as the result of acts of

[[Page 344]]

the railroad or its agents, regardless of the negligence of the 
railroad;
    (4) Negligence of only the following classes of railroad employees:
    (i) Any supervisory employee of the railroad at the job site;
    (ii) Any employee of the railroad while operating, attached to, or 
engaged on, work trains or other railroad equipment at the job site 
which are assigned exclusively to the contractor; or
    (iii) Any employee of the railroad not within (b)(4) (i) or (ii) who 
is specifically loaned or assigned to the work of the contractor for 
prevention of accidents or protection of property, the cost of whose 
services is borne specifically by the contractor or governmental 
authority.



Sec.  646.111  Amount of coverage.

    (a) The maximum dollar amounts of coverage to be reimbursed from 
Federal funds with respect to bodily injury, death and property damage 
is limited to a combined amount of $2 million per occurrence with an 
aggregate of $6 million applying separately to each annual period except 
as provided in paragraph (b) of this section.
    (b) In cases involving real and demonstrable danger of appreciably 
higher risks, higher dollar amounts of coverage for which premiums will 
be reimbursable from Federal funds shall be allowed. These larger 
amounts will depend on circumstances and shall be written for the 
individual project in accordance with standard underwriting practices 
upon approval of the FHWA.

[39 FR 36474, Oct. 10, 1974, as amended at 47 FR 33955, Aug. 5, 1982]



                   Subpart B_Railroad-Highway Projects

    Source: 40 FR 16059, Apr. 9, 1975, unless otherwise noted.



Sec.  646.200  Purpose and applicability.

    (a) The purpose of this subpart is to prescribe policies and 
procedures for advancing Federal-aid projects involving railroad 
facilities.
    (b) This subpart, and all references hereinafter made to projects, 
applies to Federal-aid projects involving railroad facilities, including 
projects for the elimination of hazards of railroad-highway crossings, 
and other projects which use railroad properties or which involve 
adjustments required by highway construction to either railroad 
facilities or facilities that are jointly owned or used by railroad and 
utility companies.
    (c) Additional instructions for projects involving the elimination 
of hazards of railroad/highway grade crossings pursuant to 23 U.S.C. 130 
are set forth in 23 CFR part 924.
    (d) Procedures on reimbursement for projects undertaken pursuant to 
this subpart are set forth in 23 CFR part 140, subpart I.
    (e) Procedures on insurance required of contractors working on or 
about railroad right-of-way are set forth in 23 CFR part 646, subpart A.

[40 FR 16059, Apr. 9, 1975, as amended at 45 FR 20795, Mar. 31, 1980; 62 
FR 45328, Aug. 27, 1997]



Sec.  646.202  [Reserved]



Sec.  646.204  Definitions.

    For the purposes of this subpart, the following definitions apply:
    Active warning devices means those traffic control devices activated 
by the approach or presence of a train, such as flashing light signals, 
automatic gates and similar devices, as well as manually operated 
devices and crossing watchmen, all of which display to motorists 
positive warning of the approach or presence of a train.
    Company shall mean any railroad or utility company including any 
wholly owned or controlled subsidiary thereof.
    Construction shall mean the actual physical construction to improve 
or eliminate a railroad-highway grade crossing or accomplish other 
railroad involved work.
    A diagnostic team means a group of knowledgeable representatives of 
the parties of interest in a railroad-highway crossing or a group of 
crossings.
    Main line railroad track means a track of a principal line of a 
railroad, including extensions through yards, upon which trains are 
operated by timetable or train order or both, or the use of which is 
governed by block signals or by centralized traffic control.

[[Page 345]]

    Passive warning devices means those types of traffic control 
devices, including signs, markings and other devices, located at or in 
advance of grade crossings to indicate the presence of a crossing but 
which do not change aspect upon the approach or presence of a train.
    Preliminary engineering shall mean the work necessary to produce 
construction plans, specifications, and estimates to the degree of 
completeness required for undertaking construction thereunder, including 
locating, surveying, designing, and related work.
    Railroad shall mean all rail carriers, publicly-owned, private, and 
common carriers, including line haul freight and passenger railroads, 
switching and terminal railroads and passenger carrying railroads such 
as rapid transit, commuter and street railroads.
    Utility shall mean the lines and facilities for producing, 
transmitting or distributing communications, power, electricity, light, 
heat, gas, oil, water, steam, sewer and similar commodities.

[40 FR 16059, Apr. 9, 1975, as amended at 62 FR 45328, Aug. 27, 1997]



Sec.  646.206  Types of projects.

    (a) Projects for the elimination of hazards, to both vehicles and 
pedestrians, of railroad-highway crossings may include but are not 
limited to:
    (1) Grade crossing elimination;
    (2) Reconstruction of existing grade separations; and
    (3) Grade crossing improvements.
    (b) Other railroad-highway projects are those which use railroad 
properties or involve adjustments to railroad facilities required by 
highway construction but do not involve the elimination of hazards of 
railroad-highway crossings. Also included are adjustments to facilities 
that are jointly owned or used by railroad and utility companies.



Sec.  646.208  Funding.

    (a) Railroad/highway crossing projects may be funded through the 
Federal-aid funding source appropriate for the involved project.
    (b) Projects for the elimination of hazards at railroad/highway 
crossings may, at the option of the State, be funded with the funds 
provided by 23 U.S.C. 133(d)(1).

[62 FR 45328, Aug. 27, 1997]



Sec.  646.210  Classification of projects and railroad share of the cost.

    (a) State laws requiring railroads to share in the cost of work for 
the elimination of hazards at railroad-highway crossings shall not apply 
to Federal-aid projects.
    (b) Pursuant to 23 U.S.C. 130(b), and 49 CFR 1.48:
    (1) Projects for grade crossing improvements are deemed to be of no 
ascertainable net benefit to the railroads and there shall be no 
required railroad share of the costs.
    (2) Projects for the reconstruction of existing grade separations 
are deemed to generally be of no ascertainable net benefit to the 
railroad and there shall be no required railroad share of the costs, 
unless the railroad has a specific contractual obligation with the State 
or its political subdivision to share in the costs.
    (3) On projects for the elimination of existing grade crossings at 
which active warning devices are in place or ordered to be installed by 
a State regulatory agency, the railroad share of the project costs shall 
be 5 percent.
    (4) On projects for the elimination of existing grade crossings at 
which active warning devices are not in place and have not been ordered 
installed by a State regulatory agency, or on projects which do not 
eliminate an existing crossing, there shall be no required railroad 
share of the project cost.
    (c) The required railroad share of the cost under Sec.  
646.210(b)(3) shall be based on the costs for preliminary engineering, 
right-of-way and construction within the limits described below:
    (1) Where a grade crossing is eliminated by grade separation, the 
structure and approaches required to transition to a theoretical highway 
profile which would have been constructed if there were no railroad 
present, for the number of lanes on the existing highway and in 
accordance with the current design standards of the State highway 
agency.
    (2) Where another facility, such as a highway or waterway, requiring 
a

[[Page 346]]

bridge structure is located within the limits of a grade separation 
project, the estimated cost of a theoretical structure and approaches as 
described in Sec.  646.210(c)(1) to eliminate the railroad-highway grade 
crossing without considering the presence of the waterway or other 
highway.
    (3) Where a grade crossing is eliminated by railroad or highway 
relocation, the actual cost of the relocation project, the estimated 
cost of the relocation project, or the estimated cost of a structure and 
approaches as described in Sec.  646.210(c)(1), whichever is less.
    (d) Railroads may voluntarily contribute a greater share of project 
costs than is required. Also, other parties may voluntarily assume the 
railroad's share.



Sec.  646.212  Federal share.

    (a) General. (1) Federal funds are not eligible to participate in 
costs incurred solely for the benefit of the railroad.
    (2) At grade separations Federal funds are eligible to participate 
in costs to provide space for more tracks than are in place when the 
railroad establishes to the satisfaction of the State highway agency and 
FHWA that it has a definite demand and plans for installation of the 
additional tracks within a reasonable time.
    (3) The Federal share of the cost of a grade separation project 
shall be based on the cost to provide horizontal and/or vertical 
clearances used by the railroad in its normal practice subject to 
limitations as shown in the appendix or as required by a State 
regulatory agency.
    (b) The Federal share of railroad/highway crossing projects may be:
    (1) Regular pro rata sharing as provided by 23 U.S.C. 120(a) and 
120(b).
    (2) One hundred percent Federal share, as provided by 23 U.S.C. 
120(c).
    (3) Ninety percent Federal share for funds made available through 23 
U.S.C. 133(d)(1).

[40 FR 16059, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 53 
FR 32218, Aug. 24, 1988; 62 FR 45328, Aug. 27, 1997]



Sec.  646.214  Design.

    (a) General. (1) Facilities that are the responsibility of the 
railroad for maintenance and operation shall conform to the 
specifications and design standards used by the railroad in its normal 
practice, subject to approval by the State highway agency and FHWA.
    (2) Facilities that are the responsibility of the highway agency for 
maintenance and operation shall conform to the specifications and design 
standards and guides used by the highway agency in its normal practice 
for Federal-aid projects.
    (b) Grade crossing improvements. (1) All traffic control devices 
proposed shall comply with the latest edition of the Manual on Uniform 
Traffic Control Devices for Streets and Highways supplemented to the 
extent applicable by State standards.
    (2) Pursuant to 23 U.S.C. 109(e), where a railroad-highway grade 
crossing is located within the limits of or near the terminus of a 
Federal-aid highway project for construction of a new highway or 
improvement of the existing roadway, the crossing shall not be opened 
for unrestricted use by traffic or the project accepted by FHWA until 
adequate warning devices for the crossing are installed and functioning 
properly.
    (3)(i) Adequate warning devices, under Sec.  646.214(b)(2) or on any 
project where Federal-aid funds participate in the installation of the 
devices are to include automatic gates with flashing light signals when 
one or more of the following conditions exist:
    (A) Multiple main line railroad tracks.
    (B) Multiple tracks at or in the vicinity of the crossing which may 
be occupied by a train or locomotive so as to obscure the movement of 
another train approaching the crossing.
    (C) High Speed train operation combined with limited sight distance 
at either single or multiple track crossings.
    (D) A combination of high speeds and moderately high volumes of 
highway and railroad traffic.
    (E) Either a high volume of vehicular traffic, high number of train 
movements, substantial numbers of schoolbuses or trucks carrying 
hazardous materials, unusually restricted sight distance, continuing 
accident occurrences, or any combination of these conditions.

[[Page 347]]

    (F) A diagnostic team recommends them.
    (ii) In individual cases where a diagnostic team justifies that 
gates are not appropriate, FHWA may find that the above requirements are 
not applicable.
    (4) For crossings where the requirements of Sec.  646.214(b)(3) are 
not applicable, the type of warning device to be installed, whether the 
determination is made by a State regulatory agency, State highway 
agency, and/or the railroad, is subject to the approval of FHWA.
    (c) Grade crossing elimination. All crossings of railroads and 
highways at grade shall be eliminated where there is full control of 
access on the highway (a freeway) regardless of the volume of railroad 
or highway traffic.

[40 FR 16059, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 62 
FR 45328, Aug. 27, 1997]



Sec.  646.216  General procedures.

    (a) General. Unless specifically modified herein, applicable 
Federal-aid procedures govern projects undertaken pursuant to this 
subpart.
    (b) Preliminary engineering and engineering services. (1) As 
mutually agreed to by the State highway agency and railroad, and subject 
to the provisions of Sec.  646.216(b)(2), preliminary engineering work 
on railroad-highway projects may be accomplished by one of the following 
methods:
    (i) The State or railroad's engineering forces;
    (ii) An engineering consultant selected by the State after 
consultation with the railroad, and with the State administering the 
contract; or
    (iii) An engineering consultant selected by the railroad, with the 
approval of the State and with the railroad administering the contract.
    (2) Where a railroad is not adequately staffed, Federal-aid funds 
may participate in the amounts paid to engineering consultants and 
others for required services, provided such amounts are not based on a 
percentage of the cost of construction, either under contracts for 
individual projects or under existing written continuing contracts where 
such work is regularly performed for the railroad in its own work under 
such contracts at reasonable costs.
    (c) Rights-of-way. (1) Acquisition of right-of-way by a State 
highway agency on behalf of a railroad or acquisition of nonoperating 
real property from a railroad shall be in accordance with the Uniform 
Relocation Assistance and Real Property Acquisition Policies Act of 1970 
(42 U.S.C. 4601 et seq.) and applicable FHWA right-of-way procedures in 
23 CFR, chapter I, subchapter H. On projects for the elimination of 
hazards of railroad-highway crossings by the relocation of railroads, 
acquisition or replacement right-of-way by a railroad shall be in 
accordance with 42 U.S.C. 4601 et seq.
    (2) Where buildings and other depreciable structures of the railroad 
(such as signal towers, passenger stations, depots, and other buildings, 
and equipment housings) which are integral to operation of railroad 
traffic are wholly or partly affected by a highway project, the costs of 
work necessary to functionally restore such facilities are eligible for 
participation. However, when replacement of such facilities is 
necessary, credits shall be made to the cost of the project for:
    (i) Accrued depreciation, which is that amount based on the ratio 
between the period of actual length of service and total life expectancy 
applied to the original cost.
    (ii) Additions or improvements which provide higher quality or 
increased service capability of the facility and which are provided 
solely for the benefit of the railroad.
    (iii) Actual salvage value of the material recovered from the 
facility being replaced. Total credits to a project shall not be 
required in excess of the replacement cost of the facility.
    (3) Where Federal funds participate in the cost of replacement 
right-of-way, there will be no charge to the project for the railroad's 
existing right-of-way being transferred to the State highway agency 
except when the value of the right-of-way being taken exceeds the value 
of the replacement right-of-way.
    (d) State-railroad agreements. (1) Where construction of a Federal-
aid project requires use of railroad properties or adjustments to 
railroad facilities, there shall be an agreement in

[[Page 348]]

writing between the State highway agency and the railroad company.
    (2) The written agreement between the State and the railroad shall, 
as a minimum include the following, where applicable:
    (i) The provisions of this subpart and of 23 CFR part 140, subpart 
I, incorporated by reference.
    (ii) A detailed statement of the work to be performed by each party.
    (iii) Method of payment (either actual cost or lump sum),
    (iv) For projects which are not for the elimination of hazards of 
railroad-highway crossings, the extent to which the railroad is 
obligated to move or adjust its facilities at its own expense,
    (v) The railroad's share of the project cost,
    (vi) An itemized estimate of the cost of the work to be performed by 
the railroad,
    (vii) Method to be used for performing the work, either by railroad 
forces or by contract,
    (viii) Maintenance responsibility,
    (ix) Form, duration, and amounts of any needed insurance,
    (x) Appropriate reference to or identification of plans and 
specifications,
    (xi) Statements defining the conditions under which the railroad 
will provide or require protective services during performance of the 
work, the type of protective services and the method of reimbursement to 
the railroad, and
    (xii) Provisions regarding inspection of any recovered materials.
    (3) On work to be performed by the railroad with its own forces and 
where the State highway agency and railroad agree, subject to approval 
by FHWA, an agreement providing for a lump sum payment in lieu of later 
determination of actual costs may be used for any of the following:
    (i) Installation or improvement of grade crossing warning devices 
and/or grade crossing surfaces, regardless of cost, or
    (ii) Any other eligible work where the estimated cost to the State 
of the proposed railroad work does not exceed $100,000 or
    (iii) Where FHWA finds that the circumstances are such that this 
method of developing costs would be in the best interest of the public.
    (4) Where the lump sum method of payment is used, periodic reviews 
and analyses of the railroad's methods and cost data used to develop 
lump sum estimates will be made.
    (5) Master agreements between a State and a railroad on an areawide 
or statewide basis may be used. These agreements would contain the 
specifications, regulations, and provisions required in conjunction with 
work performed on all projects. Supporting data for each project or 
group of projects must, when combined with the master agreement by 
reference, satisfy the provisions of Sec.  646.216(d)(2).
    (6) Official orders issued by regulatory agencies will be accepted 
in lieu of State-railroad agreements only where, together with 
supplementary written understandings between the State and the railroad, 
they include the items required by Sec.  646.216(d)(2).
    (7) In extraordinary cases where FHWA finds that the circumstances 
are such that requiring such agreement or order would not be in the best 
interest of the public, projects may be approved for construction with 
the aid of Federal funds, provided satisfactory commitments have been 
made with respect to construction, maintenance and the railroad share of 
project costs.
    (e) Authorizations. (1) The costs of preliminary engineering, right-
of-way acquisition, and construction incurred after the date each phase 
of the work is included in an approved statewide transportation 
improvement program and authorized by the FHWA are eligible for Federal-
aid participation. Preliminary engineering and right-of-way acquisition 
costs which are otherwise eligible, but incurred by a railroad prior to 
authorization by the FHWA, although not reimbursable, may be included as 
part of the railroad share of project cost where such a share is 
required.
    (2) Prior to issuance of authorization by FHWA either to advertise 
the physical construction for bids or to proceed with force account 
construction for railroad work or for other construction affected by 
railroad work, the following must be accomplished:
    (i) The plans, specifications and estimates must be approved by 
FHWA.

[[Page 349]]

    (ii) A proposed agreement between the State and railroad must be 
found satisfactory by FHWA. Before Federal funds may be used to 
reimburse the State for railroad costs the executed agreement must be 
approved by FHWA. However, cost for materials stockpiled at the project 
site or specifically purchased and delivered to the company for use on 
the project may be reimbursed on progress billings prior to the approval 
of the executed State-Railroad Agreement in accordance with 23 CFR 
140.922(a) and Sec.  646.218 of this part.
    (iii) Adequate provisions must be made for any needed easements, 
right-of-way, temporary crossings for construction purposes or other 
property interests.
    (iv) The pertinent portions of the State-railroad agreement 
applicable to any protective services required during performance of the 
work must be included in the project specifications and special 
provisions for any construction contract.
    (3) In unusual cases, pending compliance with Sec.  
646.216(e)(2)(ii), (iii) and (iv), authorization may be given by FHWA to 
advertise for bids for highway construction under conditions where a 
railroad grants a right-of-entry to its property as necessary to 
prosecute the physical construction.
    (f) Construction. (1) Construction may be accomplished by:
    (i) Railroad force account,
    (ii) Contracting with the lowest qualified bidder based on 
appropriate solicitation,
    (iii) Existing continuing contracts at reasonable costs, or
    (iv) Contract without competitive bidding, for minor work, at 
reasonable costs.
    (2) Reimbursement will not be made for any increased costs due to 
changes in plans:
    (i) For the convenience of the contractor, or
    (ii) Not approved by the State and FHWA.
    (3) The State and FHWA shall be afforded a reasonable opportunity to 
inspect materials recovered by the railroad prior to disposal by sale or 
scrap. This requirement will be satisfied by the railroad giving written 
notice, or oral notice with prompt written confirmation, to the State of 
the time and place where the materials will be available for inspection. 
The giving of notice is the responsibility of the railroad, and it may 
be held accountable for full value of materials disposed of without 
notice.
    (4) In addition to normal construction costs, the following 
construction costs are eligible for participation with Federal-aid funds 
when approved by the State and FHWA:
    (i) The cost of maintaining temporary facilities of a railroad 
company required by and during the highway construction to the extent 
that such costs exceed the documented normal cost of maintaining the 
permanent facilities.
    (ii) The cost of stage or extended construction involving grade 
corrections and/or slope stabilization for permanent tracks of a 
railroad which are required to be relocated on new grade by the highway 
construction. Stage or extended construction will be approved by FHWA 
only when documentation submitted by the State establishes the proposed 
method of construction to be the only practical method and that the cost 
of the extended construction within the period specified is estimated to 
be less than the cost of any practicable alternate procedure.
    (iii) The cost of restoring the company's service by adustments of 
existing facilities away from the project site, in lieu of and not to 
exceed the cost of replacing, adjusting or relocating facilities at the 
project site.
    (iv) The cost of an addition or improvement to an existing railroad 
facility which is required by the highway construction.

[40 FR 16059, Apr. 9, 1975, as amended at 40 FR 29712, July 15, 1975; 47 
FR 33956, Aug. 5, 1982; 62 FR 45328, Aug. 27, 1997]



Sec.  646.218  Simplified procedure for accelerating 
grade crossing improvements.

    (a) The procedure set forth in this section is encouraged for use in 
simplifying and accelerating the processing of single or multiple grade 
crossing improvements.

[[Page 350]]

    (b) Eligible preliminary engineering costs may include those 
incurred in selecting crossings to be improved, determining the type of 
improvement for each crossing, estimating the cost and preparing the 
required agreement.
    (c) The written agreement between a State and a railroad shall 
contain as a minimum:
    (1) Identification of each crossing location.
    (2) Description of improvement and estimate of cost for each 
crossing location.
    (3) Estimated schedule for completion of work at each location.
    (d) Following programming, authorization and approval of the 
agreement under Sec.  646.218(c), FHWA may authorize construction, 
including acquisition of warning device materials, with the condition 
that work at any particular location will not be undertaken until the 
proposed or executed State-railroad agreement under Sec.  646.216(d)(2) 
is found satisfactory by FHWA and the final plans, specifications, and 
estimates are approved and with the condition that only material 
actually incorporated into the project will be eligible for Federal 
participation.
    (e) Work programmed and authorized under this simplified procedure 
should include only that which can reasonably be expected to reach the 
construction stage within one year and be completed within two years 
after the initial authorization date.



Sec.  646.220  Alternate Federal-State procedure.

    (a) On other than Interstate projects, an alternate procedure may be 
used, at the election of the State, for processing certain types of 
railroad-highway work. Under this procedure, the State highway agency 
will act in the relative position of FHWA for reviewing and approving 
projects.
    (b) The scope of the State's approval authority under the alternate 
procedure includes all actions necessary to advance and complete the 
following types of railroad-highway work:
    (1) All types of grade crossing improvements under Sec.  
646.206(a)(3).
    (2) Minor adjustments to railroad facilities under Sec.  646.206(b).
    (c) The following types of work are to be reviewed and approved in 
the normal manner, as prescribed elsewhere in this subpart.
    (1) All projects under Sec.  646.206(a) (1) and (2).
    (2) Major adjustments to railroad facilities under Sec.  646.206(b).
    (d) Any State wishing to adopt the alternate procedure may file a 
formal application for approval by FHWA. The application must include 
the following:
    (1) The State's written policies and procedures for administering 
and processing Federal-aid railroad-highway work, which make adequate 
provisions with respect to all of the following:
    (i) Compliance with the provisions of title 23 U.S.C., title 23 CFR, 
and other applicable Federal laws and Executive Orders.
    (ii) Compliance with this subpart and 23 CFR part 140, subpart I and 
23 CFR part 172.
    (iii) For grade crossing safety improvements, compliance with the 
requirements of 23 CFR part 924.
    (2) A statement signed by the Chief Administrative Officer of the 
State highway agency certifying that:
    (i) The work will be done in accordance with the applicable 
provisions of the State's policies and procedures submitted under Sec.  
646.220(d)(1), and
    (ii) Reimbursement will be requested in only those costs properly 
attributable to the highway construction and eligible for Federal fund 
participation.
    (e) When FHWA has approved the alternate procedure, it may authorize 
the State to proceed in accordance with the State's certification, 
subject to the following conditions:
    (1) The work has been programmed.
    (2) The State submits in writing a request for such authorization 
which shall include a list of the improvements or adjustments to be 
processed under the alternate procedure, along with the best available 
estimate of cost.
    (f) The FHWA Regional Administrator may suspend approval of the 
certified procedure, where FHWA reviews disclose noncompliance with the 
certification. Federal-aid funds will not be

[[Page 351]]

eligible to participate in costs that do not qualify under Sec.  
646.220(d)(1).

[40 FR 16059, Apr. 9, 1975; 40 FR 29712, July 15, 1975; 40 FR 31211, 
July 25, 1975; 42 FR 30835, June 17, 1977, as amended at 45 FR 20795, 
Mar. 31, 1980]



    Sec. Appendix to Subpart B of Part 646--Horizontal and Vertical 
       Clearance Provisions for Overpass and Underpass Structures

    The following implements provisions of 23 CFR 646.212(a)(3).
a. Lateral Geometrics
    A cross section with a horizontal distance of 6.1 meters, measured 
at right angles from the centerline of track at the top of rails, to the 
face of the embankment slope, may be approved. The 6.1-meters distance 
may be increased at individual structure locations as appropriate to 
provide for drainage if justified by a hydraulic analysis or to allow 
adequate room to accommodate special conditions, such as where heavy and 
drifting snow is a problem. The railroad must demonstrate that this is 
its normal practice to address these special conditions in the manner 
proposed. Additionally, this distance may also be increased up to 2.5 
meters as may be necessary for off-track maintenance equipment, provided 
adequate horizontal clearance is not available in adjacent spans and 
where justified by the presence of an existing maintenance road or by 
evidence of future need for such equipment. All piers should be placed 
at least 2.8 meters horizontally from the centerline of the track and 
preferably beyond the drainage ditch. For multiple track facilities, all 
dimensions apply to the centerline of the outside track.
    Any increase above the 6.1-meters horizontal clearance distance must 
be required by specific site conditions and be justified by the railroad 
to the satisfaction of the State highway agency (SHA) and the FHWA.
b. Vertical Clearance
    A vertical clearance of 7.1 meters above the top of rails, which 
includes an allowance for future ballasting of the railroad tracks, may 
be approved. Vertical clearance greater than 7.1 meters may be approved 
when the State regulatory agency having jurisdiction over such matters 
requires a vertical clearance in excess of 7.1 meters or on a site by 
site basis where justified by the railroad to the satisfaction of the 
SHA and the FHWA. A railroad's justification for increased vertical 
clearance should be based on an analysis of engineering, operational 
and/or economic conditions at a specific structure location.
    Federal-aid highway funds are also eligible to participate in the 
cost of providing vertical clearance greater than 7.1 meters where a 
railroad establishes to the satisfaction of a SHA and the FHWA that it 
has a definite formal plan for electrification of its rail system where 
the proposed grade separation project is located. The plan must cover a 
logical independent segment of the rail system and be approved by the 
railroad's corporate headquarters. For 25 kv line, a vertical clearance 
of 7.4 meters may be approved. For 50 kv line, a vertical clearance of 
8.0 meters may be approved.
    A railroad's justification to support its plan for electrification 
shall include maps and plans or drawings showing those lines to be 
electrified; actions taken by its corporate headquarters committing it 
to electrification including a proposed schedule; and actions initiated 
or completed to date implementing its electrification plan such as a 
showing of the amounts of funds and identification of structures, if 
any, where the railroad has expended its own funds to provide added 
clearance for the proposed electrification. If available, the railroad's 
justification should include information on its contemplated treatment 
of existing grade separations along the section of its rail system 
proposed for electrification.
    The cost of reconstructing or modifying any existing railroad-
highway grade separation structures solely to accommodate 
electrification will not be eligible for Federal-aid highway fund 
participation.
c. Railroad Structure Width
    Two and eight tenths meters of structure width outside of the 
centerline of the outside tracks may be approved for a structure 
carrying railroad tracks. Greater structure width may be approved when 
in accordance with standards established and used by the affected 
railroad in its normal practice.
    In order to maintain continuity of off-track equipment roadways at 
structures carrying tracks over limited access highways, consideration 
should be given at the preliminary design stage to the feasibility of 
using public road crossings for this purpose. Where not feasible, an 
additional structure width of 2.5 meters may be approved if designed for 
off-track equipment only.

[53 FR 32218, Aug. 24, 1988, as amended at 62 FR 45328, Aug. 27, 1997]



PART 650_BRIDGES, STRUCTURES, AND HYDRAULICS--Table of Contents



Subpart A_Location and Hydraulic Design of Encroachments on Flood Plains

Sec.
650.101 Purpose.
650.103 Policy.
650.105 Definitions.
650.107 Applicability.
650.109 Public involvement.
650.111 Location hydraulic studies.
650.113 Only practicable alternative finding.

[[Page 352]]

650.115 Design standards.
650.117 Content of design studies.

 Subpart B_Erosion and Sediment Control on Highway Construction Projects

650.201 Purpose.
650.203 Policy.
650.205 Definitions.
650.207 Plans, specifications, and estimates.
650.209 Construction.
650.211 Guidelines.

             Subpart C_National Bridge Inspection Standards

650.301 Purpose.
650.303 Applicability.
650.305 Definitions.
650.307 Bridge inspection organization.
650.309 Qualifications of personnel.
650.311 Inspection frequency.
650.313 Inspection procedures.
650.315 Inventory.
650.317 Reference manuals.

     Subpart D_Highway Bridge Replacement and Rehabilitation Program

650.401 Purpose.
650.403 Definition of terms.
650.405 Eligible projects.
650.407 Application for bridge replacement or rehabilitation.
650.409 Evaluation of bridge inventory.
650.411 Procedures for bridge replacement and rehabilitation projects.
650.413 Funding.
650.415 Reports.

             Subpart E_National Tunnel Inspection Standards

650.501 Purpose.
650.503 Applicability.
650.505 Definitions.
650.507 Tunnel inspection organization responsibilities.
650.509 Qualifications of personnel.
650.511 Inspection interval.
650.513 Inspection procedures.
650.515 Inventory.
650.517 Incorporation by reference.

Subpart F [Reserved]

         Subpart G_Discretionary Bridge Candidate Rating Factor

650.701 Purpose.
650.703 Eligible projects.
650.705 Application for discretionary bridge funds.
650.707 Rating factor.
650.709 Special considerations.

              Subpart H_Navigational Clearances for Bridges

650.801 Purpose.
650.803 Policy.
650.805 Bridges not requiring a USCG permit.
650.807 Bridges requiring a USCG permit.
650.809 Movable span bridges.

    Authority: 23 U.S.C. 119, 144, and 315.



Subpart A_Location and Hydraulic Design of Encroachments on Flood Plains

    Source: 44 FR 67580, Nov. 26, 1979, unless otherwise noted.



Sec.  650.101  Purpose.

    To prescribe Federal Highway Administration (FHWA) policies and 
procedures for the location and hydraulic design of highway 
encroachments on flood plains, including direct Federal highway projects 
administered by the FHWA.



Sec.  650.103  Policy.

    It is the policy of the FHWA:
    (a) To encourage a broad and unified effort to prevent uneconomic, 
hazardous or incompatible use and development of the Nation's flood 
plains,
    (b) To avoid longitudinal encroachments, where practicable,
    (c) To avoid significant encroachments, where practicable,
    (d) To minimize impacts of highway agency actions which adversely 
affect base flood plains,
    (e) To restore and preserve the natural and beneficial flood-plain 
values that are adversely impacted by highway agency actions,
    (f) To avoid support of incompatible flood-plain development,
    (g) To be consistent with the intent of the Standards and Criteria 
of the National Flood Insurance Program, where appropriate, and
    (h) To incorporate ``A Unified National Program for Floodplain 
Management'' of the Water Resources Council into FHWA procedures.

[[Page 353]]



Sec.  650.105  Definitions.

    (a) Action shall mean any highway construction, reconstruction, 
rehabilitation, repair, or improvement undertaken with Federal or 
Federal-aid highway funds or FHWA approval.
    (b) Base flood shall mean the flood or tide having a 1-percent 
chance of being exceeded in any given year.
    (c) Base flood plain shall mean the area subject to flooding by the 
base flood.
    (d) Design Flood shall mean the peak discharge, volume if 
appropriate, stage or wave crest elevation of the flood associated with 
the probability of exceedance selected for the design of a highway 
encroachment. By definition, the highway will not be inundated from the 
stage of the design flood.
    (e) Encroachment shall mean an action within the limits of the base 
flood plain.
    (f) Floodproof shall mean to design and construct individual 
buildings, facilities, and their sites to protect against structural 
failure, to keep water out or to reduce the effects of water entry.
    (g) Freeboard shall mean the vertical clearance of the lowest 
structural member of the bridge superstructure above the water surface 
elevation of the overtopping flood.
    (h) Minimize shall mean to reduce to the smallest practicable amount 
or degree.
    (i) Natural and beneficial flood-plain values shall include but are 
not limited to fish, wildlife, plants, open space, natural beauty, 
scientific study, outdoor recreation, agriculture, aquaculture, 
forestry, natural moderation of floods, water quality maintenance, and 
groundwater recharge.
    (j) Overtopping flood shall mean the flood described by the 
probability of exceedance and water surface elevation at which flow 
occurs over the highway, over the watershed divide, or through 
structure(s) provided for emergency relief.
    (k) Practicable shall mean capable of being done within reasonable 
natural, social, or economic constraints.
    (l) Preserve shall mean to avoid modification to the functions of 
the natural flood-plain environment or to maintain it as closely as 
practicable in its natural state.
    (m) Regulatory floodway shall mean the flood-plain area that is 
reserved in an open manner by Federal, State or local requirements, 
i.e., unconfined or unobstructed either horizontally or vertically, to 
provide for the discharge of the base flood so that the cumulative 
increase in water surface elevation is no more than a designated amount 
(not to exceed 1 foot as established by the Federal Emergency Management 
Agency (FEMA) for administering the National Flood Insurance Program).
    (n) Restore shall mean to reestablish a setting or environment in 
which the functions of the natural and beneficial flood-plain values 
adversely impacted by the highway agency action can again operate.
    (o) Risk shall mean the consequences associated with the probability 
of flooding attributable to an encroachment. It shall include the 
potential for property loss and hazard to life during the service life 
of the highway.
    (p) Risk analysis shall mean an economic comparison of design 
alternatives using expected total costs (construction costs plus risk 
costs) to determine the alternative with the least total expected cost 
to the public. It shall include probable flood-related costs during the 
service life of the facility for highway operation, maintenance, and 
repair, for highway-aggravated flood damage to other property, and for 
additional or interrupted highway travel.
    (q) Significant encroachment shall mean a highway encroachment and 
any direct support of likely base flood-plain development that would 
involve one or more of the following construction-or flood-related 
impacts:
    (1) A significant potential for interruption or termination of a 
transportation facility which is needed for emergency vehicles or 
provides a community's only evacuation route.
    (2) A significant risk, or
    (3) A significant adverse impact on natural and beneficial flood-
plain values.
    (r) Support base flood-plain development shall mean to encourage, 
allow,

[[Page 354]]

serve, or otherwise facilitate additional base flood-plain development. 
Direct support results from an encroachment, while indirect support 
results from an action out of the base flood plain.



Sec.  650.107  Applicability.

    (a) The provisions of this regulation shall apply to all 
encroachments and to all actions which affect base flood plains, except 
for repairs made with emergency funds (23 CFR part 668) during or 
immediately following a disaster.
    (b) The provisions of this regulation shall not apply to or alter 
approvals or authorizations which were given by FHWA pursuant to 
regulations or directives in effect before the effective date of this 
regulation.



Sec.  650.109  Public involvement.

    Procedures which have been established to meet the public 
involvement requirements of 23 CFR part 771 shall be used to provide 
opportunity for early public review and comment on alternatives which 
contain encroachments.

[53 FR 11065, Apr. 5, 1988]



Sec.  650.111  Location hydraulic studies.

    (a) National Flood Insurance Program (NFIP) maps or information 
developed by the highway agency, if NFIP maps are not available, shall 
be used to determine whether a highway location alternative will include 
an encroachment.
    (b) Location studies shall include evaluation and discussion of the 
practicability of alternatives to any longitudinal encroachments.
    (c) Location studies shall include discussion of the following 
items, commensurate with the significance of the risk or environmental 
impact, for all alternatives containing encroachments and for those 
actions which would support base flood-plain development:
    (1) The risks associated with implementation of the action,
    (2) The impacts on natural and beneficial flood-plain values,
    (3) The support of probable incompatible flood-plain development,
    (4) The measures to minimize flood-plain impacts associated with the 
action, and
    (5) The measures to restore and preserve the natural and beneficial 
flood-plain values impacted by the action.
    (d) Location studies shall include evaluation and discussion of the 
practicability of alternatives to any significant encroachments or any 
support of incompatible flood-plain development.
    (e) The studies required by Sec.  650.111 (c) and (d) shall be 
summarized in environmental review documents prepared pursuant to 23 CFR 
part 771.
    (f) Local, State, and Federal water resources and flood-plain 
management agencies should be consulted to determine if the proposed 
highway action is consistent with existing watershed and flood-plain 
management programs and to obtain current information on development and 
proposed actions in the affected watersheds.



Sec.  650.113  Only practicable alternative finding.

    (a) A proposed action which includes a significant encroachment 
shall not be approved unless the FHWA finds that the proposed 
significant encroachment is the only practicable alternative. This 
finding shall be included in the final environmental document (final 
environmental impact statement or finding of no significant impact) and 
shall be supported by the following information:
    (1) The reasons why the proposed action must be located in the flood 
plain,
    (2) The alternatives considered and why they were not practicable, 
and
    (3) A statement indicating whether the action conforms to applicable 
State or local flood-plain protection standards.
    (b) [Reserved]

[44 FR 67580, Nov. 26, 1979, as amended at 48 FR 29274, June 24, 1983]



Sec.  650.115  Design standards.

    (a) The design selected for an encroachment shall be supported by 
analyses of design alternatives with consideration given to capital 
costs and risks, and to other economic, engineering, social and 
environmental concerns.

[[Page 355]]

    (1) Consideration of capital costs and risks shall include, as 
appropriate, a risk analysis or assessment which includes:
    (i) The overtopping flood or the base flood, whichever is greater, 
or
    (ii) The greatest flood which must flow through the highway drainage 
structure(s), where overtopping is not practicable. The greatest flood 
used in the analysis is subject to state-of-the-art capability to 
estimate the exceedance probability.
    (2) The design flood for encroachments by through lanes of 
Interstate highways shall not be less than the flood with a 2-percent 
chance of being exceeded in any given year. No minimum design flood is 
specified for Interstate highway ramps and frontage roads or for other 
highways.
    (3) Freeboard shall be provided, where practicable, to protect 
bridge structures from debris- and scour-related failure.
    (4) The effect of existing flood control channels, levees, and 
reservoirs shall be considered in estimating the peak discharge and 
stage for all floods considered in the design.
    (5) The design of encroachments shall be consistent with standards 
established by the FEMA, State, and local governmental agencies for the 
administration of the National Flood Insurance Program for:
    (i) All direct Federal highway actions, unless the standards are 
demonstrably inappropriate, and
    (ii) Federal-aid highway actions where a regulatory floodway has 
been designated or where studies are underway to establish a regulatory 
floodway.
    (b) Rest area buildings and related water supply and waste treatment 
facilities shall be located outside the base flood plain, where 
practicable. Rest area buildings which are located on the base flood 
plain shall be floodproofed against damage from the base flood.
    (c) Where highway fills are to be used as dams to permanently 
impound water more than 50 acre-feet (6.17 x 10\4\ cubic metres) in 
volume or 25 feet (7.6 metres) deep, the hydrologic, hydraulic, and 
structural design of the fill and appurtenant spillways shall have the 
approval of the State or Federal agency responsible for the safety of 
dams or like structures within the State, prior to authorization by the 
Division Administrator to advertise for bids for construction.



Sec.  650.117  Content of design studies.

    (a) The detail of studies shall be commensurate with the risk 
associated with the encroachment and with other economic, engineering, 
social or environmental concerns.
    (b) Studies by highway agencies shall contain:
    (1) The hydrologic and hydraulic data and design computations,
    (2) The analysis required by Sec.  650.115(a), and
    (3) For proposed direct Federal highway actions, the reasons, when 
applicable, why FEMA criteria (44 CFR 60.3, formerly 24 CFR 1910.3) are 
demonstrably inappropriate.
    (c) For encroachment locations, project plans shall show:
    (1) The magnitude, approximate probability of exceedance and, at 
appropriate locations, the water surface elevations associated with the 
overtopping flood or the flood of Sec.  650.115(a)(1)(ii), and
    (2) The magnitude and water surface elevation of the base flood, if 
larger than the overtopping flood.



 Subpart B_Erosion and Sediment Control on Highway Construction Projects

    Source: 59 FR 37939, July 26, 1994, unless otherwise noted.



Sec.  650.201  Purpose.

    The purpose of this subpart is to prescribe policies and procedures 
for the control of erosion, abatement of water pollution, and prevention 
of damage by sediment deposition from all construction projects funded 
under title 23, United States Code.



Sec.  650.203  Policy.

    It is the policy of the Federal Highway Administration (FHWA) that 
all highways funded in whole or in part under title 23, United States 
Code, shall be located, designed, constructed and operated according to 
standards

[[Page 356]]

that will minimize erosion and sediment damage to the highway and 
adjacent properties and abate pollution of surface and ground water 
resources. Guidance for the development of standards used to minimize 
erosion and sediment damage is referenced in Sec.  650.211 of this part.



Sec.  650.205  Definitions.

    Erosion control measures and practices are actions that are taken to 
inhibit the dislodging and transporting of soil particles by water or 
wind, including actions that limit the area of exposed soil and minimize 
the time the soil is exposed.
    Permanent erosion and sediment control measures and practices are 
installations and design features of a construction project which remain 
in place and in service after completion of the project.
    Pollutants are substances, including sediment, which cause 
deterioration of water quality when added to surface or ground waters in 
sufficient quantity.
    Sediment control measures and practices are actions taken to control 
the deposition of sediments resulting from surface runoff.
    Temporary erosion and sediment control measures and practices are 
actions taken on an interim basis during construction to minimize the 
disturbance, transportation, and unwanted deposition of sediment.



Sec.  650.207  Plans, specifications and estimates.

    (a) Emphasis shall be placed on erosion control in the preparation 
of plans, specifications and estimates.
    (b) All reasonable steps shall be taken to insure that highway 
project designs for the control of erosion and sedimentation and the 
protection of water quality comply with applicable standards and 
regulations of other agencies.

[39 FR 36332, Oct. 9, 1974]



Sec.  650.209  Construction.

    (a) Permanent erosion and sediment control measures and practices 
shall be established and implemented at the earliest practicable time 
consistent with good construction and management practices.
    (b) Implementation of temporary erosion and sediment control 
measures and practices shall be coordinated with permanent measures to 
assure economical, effective, and continuous control throughout 
construction.
    (c) Erosion and sediment control measures and practices shall be 
monitored and maintained or revised to insure that they are fulfilling 
their intended function during the construction of the project.
    (d) Federal-aid funds shall not be used in erosion and sediment 
control actions made necessary because of contractor oversight, 
carelessness, or failure to implement sufficient control measures.
    (e) Pollutants used during highway construction or operation and 
material from sediment traps shall not be stockpiled or disposed of in a 
manner which makes them susceptible to being washed into any watercourse 
by runoff or high water. No pollutants shall be deposited or disposed of 
in watercourses.



Sec.  650.211  Guidelines.

    (a) The FHWA adopts the AASHTO Highway Drainage Guidelines, Volume 
III, ``Erosion and Sediment Control in Highway Construction,'' 1992, \1\ 
as guidelines to be followed on all construction projects funded under 
title 23, United States Code. These guidelines are not intended to 
preempt any requirements made by or under State law if such requirements 
are more stringent.
---------------------------------------------------------------------------

    \1\ This document is available for inspection from the FHWA 
headquarters and field offices as prescribed by 49 CFR part 7, appendix 
D. It may be purchased from the American Association of State Highway 
and Transportation Officials offices at Suite 225, 444 North Capitol 
Street, NW., Washington, DC 20001.
---------------------------------------------------------------------------

    (b) Each State highway agency should apply the guidelines referenced 
in paragraph (a) of this section or apply its own guidelines, if these 
guidelines are more stringent, to develop standards and practices for 
the control of erosion and sediment on Federal-aid construction 
projects. These specific standards and practices may reference

[[Page 357]]

available resources, such as the procedures presented in the AASHTO 
``Model Drainage Manual,'' 1991. \2\
---------------------------------------------------------------------------

    \2\ This document is available for inspection from the FHWA 
headquarters and field offices as prescribed by 49 CFR part 7, appendix 
D. It may be purchased from the American Association of State Highway 
and Transportation Officials offices at Suite 225, 444 North Capitol 
Street, NW., Washington, DC 20001.
---------------------------------------------------------------------------

    (c) Consistent with the requirements of section 6217(g) of the 
Coastal Zone Act Reauthorization Amendments of 1990 (Pub. L. 101-508, 
104 Stat. 1388-299), highway construction projects funded under title 
23, United States Code, and located in the coastal zone management areas 
of States with coastal zone management programs approved by the United 
States Department of Commerce, National Oceanic and Atmospheric 
Administration, should utilize ``Guidance Specifying Management Measures 
for Sources of Nonpoint Source Pollution in Coastal Waters,'' 84-B-92-
002, U.S. EPA, January 1993. \3\ State highway agencies should refer to 
this Environmental Protection Agency guidance document for the design of 
projects within coastal zone management areas.
---------------------------------------------------------------------------

    \3\ This document is available for inspection and copying as 
prescribed by 49 CFR part 7, appendix D.
---------------------------------------------------------------------------



             Subpart C_National Bridge Inspection Standards

    Source: 69 FR 74436, Dec. 14, 2004, unless otherwise noted.



Sec.  650.301  Purpose.

    This subpart sets the national standards for the proper safety 
inspection and evaluation of all highway bridges in accordance with 23 
U.S.C. 151.



Sec.  650.303  Applicability.

    The National Bridge Inspection Standards (NBIS) in this subpart 
apply to all structures defined as highway bridges located on all public 
roads.



Sec.  650.305  Definitions.

    Terms used in this subpart are defined as follows:
    American Association of State Highway and Transportation Officials 
(AASHTO) Manual. ``The Manual for Bridge Evaluation,'' First Edition, 
2008, published by the American Association of State Highway and 
Transportation Officials (incorporated by reference, see Sec.  650.317).
    Bridge. A structure including supports erected over a depression or 
an obstruction, such as water, highway, or railway, and having a track 
or passageway for carrying traffic or other moving loads, and having an 
opening measured along the center of the roadway of more than 20 feet 
between undercopings of abutments or spring lines of arches, or extreme 
ends of openings for multiple boxes; it may also include multiple pipes, 
where the clear distance between openings is less than half of the 
smaller contiguous opening.
    Bridge inspection experience. Active participation in bridge 
inspections in accordance with the NBIS, in either a field inspection, 
supervisory, or management role. A combination of bridge design, bridge 
maintenance, bridge construction and bridge inspection experience, with 
the predominant amount in bridge inspection, is acceptable.
    Bridge inspection refresher training. The National Highway Institute 
``Bridge Inspection Refresher Training Course'' \1\ or other State, 
local, or federally developed instruction aimed to improve quality of 
inspections, introduce new techniques, and maintain the consistency of 
the inspection program.
---------------------------------------------------------------------------

    \1\ The National Highway Institute training may be found at the 
following URL: http://www.nhi.fhwa.dot.gov./
---------------------------------------------------------------------------

    Bridge Inspector's Reference Manual (BIRM). A comprehensive FHWA 
manual on programs, procedures and techniques for inspecting and 
evaluating a variety of in-service highway bridges. This manual may be 
purchased from the U.S. Government Printing Office, Washington, DC 20402 
and from National Technical Information Service, Springfield, Virginia 
22161, and is available at the following URL: http://www.fhwa.dot.gov/
bridge/bripub.htm.
    Complex bridge. Movable, suspension, cable stayed, and other bridges 
with unusual characteristics.

[[Page 358]]

    Comprehensive bridge inspection training. Training that covers all 
aspects of bridge inspection and enables inspectors to relate conditions 
observed on a bridge to established criteria (see the Bridge Inspector's 
Reference Manual for the recommended material to be covered in a 
comprehensive training course).
    Critical finding. A structural or safety related deficiency that 
requires immediate follow-up inspection or action.
    Damage inspection. This is an unscheduled inspection to assess 
structural damage resulting from environmental factors or human actions.
    Fracture critical member (FCM). A steel member in tension, or with a 
tension element, whose failure would probably cause a portion of or the 
entire bridge to collapse.
    Fracture critical member inspection. A hands-on inspection of a 
fracture critical member or member components that may include visual 
and other nondestructive evaluation.
    Hands-on. Inspection within arms length of the component. Inspection 
uses visual techniques that may be supplemented by nondestructive 
testing.
    Highway. The term ``highway'' is defined in 23 U.S.C. 101(a)(11).
    In-depth inspection. A close-up, inspection of one or more members 
above or below the water level to identify any deficiencies not readily 
detectable using routine inspection procedures; hands-on inspection may 
be necessary at some locations.
    Initial inspection. The first inspection of a bridge as it becomes a 
part of the bridge file to provide all Structure Inventory and Appraisal 
(SI&A) data and other relevant data and to determine baseline structural 
conditions.
    Legal load. The maximum legal load for each vehicle configuration 
permitted by law for the State in which the bridge is located.
    Load rating. The determination of the live load carrying capacity of 
a bridge using bridge plans and supplemented by information gathered 
from a field inspection.
    National Institute for Certification in Engineering Technologies 
(NICET). The NICET provides nationally applicable voluntary 
certification programs covering several broad engineering technology 
fields and a number of specialized subfields. For information on the 
NICET program certification contact: National Institute for 
Certification in Engineering Technologies, 1420 King Street, Alexandria, 
VA 22314-2794.
    Operating rating. The maximum permissible live load to which the 
structure may be subjected for the load configuration used in the 
rating.
    Professional engineer (PE). An individual, who has fulfilled 
education and experience requirements and passed rigorous exams that, 
under State licensure laws, permits them to offer engineering services 
directly to the public. Engineering licensure laws vary from State to 
State, but, in general, to become a PE an individual must be a graduate 
of an engineering program accredited by the Accreditation Board for 
Engineering and Technology, pass the Fundamentals of Engineering exam, 
gain four years of experience working under a PE, and pass the 
Principles of Practice of Engineering exam.
    Program manager. The individual in charge of the program, that has 
been assigned or delegated the duties and responsibilities for bridge 
inspection, reporting, and inventory. The program manager provides 
overall leadership and is available to inspection team leaders to 
provide guidance.
    Public road. The term ``public road'' is defined in 23 U.S.C. 
101(a)(27).
    Quality assurance (QA). The use of sampling and other measures to 
assure the adequacy of quality control procedures in order to verify or 
measure the quality level of the entire bridge inspection and load 
rating program.
    Quality control (QC). Procedures that are intended to maintain the 
quality of a bridge inspection and load rating at or above a specified 
level.
    Routine inspection. Regularly scheduled inspection consisting of 
observations and/or measurements needed to determine the physical and 
functional condition of the bridge, to identify any changes from initial 
or previously recorded conditions, and to ensure that the structure 
continues to satisfy present service requirements.
    Routine permit load. A live load, which has a gross weight, axle 
weight or distance between axles not conforming

[[Page 359]]

with State statutes for legally configured vehicles, authorized for 
unlimited trips over an extended period of time to move alongside other 
heavy vehicles on a regular basis.
    Scour. Erosion of streambed or bank material due to flowing water; 
often considered as being localized around piers and abutments of 
bridges.
    Scour critical bridge. A bridge with a foundation element that has 
been determined to be unstable for the observed or evaluated scour 
condition.
    Special inspection. An inspection scheduled at the discretion of the 
bridge owner, used to monitor a particular known or suspected 
deficiency.
    State transportation department. The term ``State transportation 
department'' is defined in 23 U.S.C. 101(a)(34).
    Team leader. Individual in charge of an inspection team responsible 
for planning, preparing, and performing field inspection of the bridge.
    Underwater diver bridge inspection training. Training that covers 
all aspects of underwater bridge inspection and enables inspectors to 
relate the conditions of underwater bridge elements to established 
criteria (see the Bridge Inspector's Reference Manual section on 
underwater inspection for the recommended material to be covered in an 
underwater diver bridge inspection training course).
    Underwater inspection. Inspection of the underwater portion of a 
bridge substructure and the surrounding channel, which cannot be 
inspected visually at low water by wading or probing, generally 
requiring diving or other appropriate techniques.

[69 FR 74436, Dec. 14, 2004, as amended at 74 FR 68379, Dec. 24, 2009]



Sec.  650.307  Bridge inspection organization.

    (a) Each State transportation department must inspect, or cause to 
be inspected, all highway bridges located on public roads that are fully 
or partially located within the State's boundaries, except for bridges 
that are owned by Federal agencies.
    (b) Federal agencies must inspect, or cause to be inspected, all 
highway bridges located on public roads that are fully or partially 
located within the respective agency responsibility or jurisdiction.
    (c) Each State transportation department or Federal agency must 
include a bridge inspection organization that is responsible for the 
following:
    (1) Statewide or Federal agencywide bridge inspection policies and 
procedures, quality assurance and quality control, and preparation and 
maintenance of a bridge inventory.
    (2) Bridge inspections, reports, load ratings and other requirements 
of these standards.
    (d) Functions identified in paragraphs (c)(1) and (2) of this 
section may be delegated, but such delegation does not relieve the State 
transportation department or Federal agency of any of its 
responsibilities under this subpart.
    (e) The State transportation department or Federal agency bridge 
inspection organization must have a program manager with the 
qualifications defined in Sec.  650.309(a), who has been delegated 
responsibility for paragraphs (c)(1) and (2) of this section.



Sec.  650.309  Qualifications of personnel.

    (a) A program manager must, at a minimum:
    (1) Be a registered professional engineer, or have ten years bridge 
inspection experience; and
    (2) Successfully complete a Federal Highway Administration (FHWA) 
approved comprehensive bridge inspection training course.
    (b) There are five ways to qualify as a team leader. A team leader 
must, at a minimum:
    (1) Have the qualifications specified in paragraph (a) of this 
section; or
    (2) Have five years bridge inspection experience and have 
successfully completed an FHWA approved comprehensive bridge inspection 
training course; or
    (3) Be certified as a Level III or IV Bridge Safety Inspector under 
the National Society of Professional Engineer's program for National 
Certification in Engineering Technologies (NICET) and have successfully 
completed an FHWA approved comprehensive bridge inspection training 
course, or
    (4) Have all of the following:

[[Page 360]]

    (i) A bachelor's degree in engineering from a college or university 
accredited by or determined as substantially equivalent by the 
Accreditation Board for Engineering and Technology;
    (ii) Successfully passed the National Council of Examiners for 
Engineering and Surveying Fundamentals of Engineering examination;
    (iii) Two years of bridge inspection experience; and
    (iv) Successfully completed an FHWA approved comprehensive bridge 
inspection training course, or
    (5) Have all of the following:
    (i) An associate's degree in engineering or engineering technology 
from a college or university accredited by or determined as 
substantially equivalent by the Accreditation Board for Engineering and 
Technology;
    (ii) Four years of bridge inspection experience; and
    (iii) Successfully completed an FHWA approved comprehensive bridge 
inspection training course.
    (c) The individual charged with the overall responsibility for load 
rating bridges must be a registered professional engineer.
    (d) An underwater bridge inspection diver must complete an FHWA 
approved comprehensive bridge inspection training course or other FHWA 
approved underwater diver bridge inspection training course.



Sec.  650.311  Inspection frequency.

    (a) Routine inspections. (1) Inspect each bridge at regular 
intervals not to exceed twenty-four months.
    (2) Certain bridges require inspection at less than twenty-four-
month intervals. Establish criteria to determine the level and frequency 
to which these bridges are inspected considering such factors as age, 
traffic characteristics, and known deficiencies.
    (3) Certain bridges may be inspected at greater than twenty-four 
month intervals, not to exceed forty-eight-months, with written FHWA 
approval. This may be appropriate when past inspection findings and 
analysis justifies the increased inspection interval.
    (b) Underwater inspections. (1) Inspect underwater structural 
elements at regular intervals not to exceed sixty months.
    (2) Certain underwater structural elements require inspection at 
less than sixty-month intervals. Establish criteria to determine the 
level and frequency to which these members are inspected considering 
such factors as construction material, environment, age, scour 
characteristics, condition rating from past inspections and known 
deficiencies.
    (3) Certain underwater structural elements may be inspected at 
greater than sixty-month intervals, not to exceed seventy-two months, 
with written FHWA approval. This may be appropriate when past inspection 
findings and analysis justifies the increased inspection interval.
    (c) Fracture critical member (FCM) inspections. (1) Inspect FCMs at 
intervals not to exceed twenty-four months.
    (2) Certain FCMs require inspection at less than twenty-four-month 
intervals. Establish criteria to determine the level and frequency to 
which these members are inspected considering such factors as age, 
traffic characteristics, and known deficiencies.
    (d) Damage, in-depth, and special inspections. Establish criteria to 
determine the level and frequency of these inspections.



Sec.  650.313  Inspection procedures.

    (a) Inspect each bridge in accordance with the inspection procedures 
in the AASHTO Manual (incorporated by reference, see Sec.  650.317).
    (b) Provide at least one team leader, who meets the minimum 
qualifications stated in Sec.  650.309, at the bridge at all times 
during each initial, routine, in-depth, fracture critical member and 
underwater inspection.
    (c) Rate each bridge as to its safe load-carrying capacity in 
accordance with the AASHTO Manual (incorporated by reference, see Sec.  
650.317). Post or restrict the bridge in accordance with the AASHTO 
Manual or in accordance with State law, when the maximum unrestricted 
legal loads or State routine permit loads exceed that allowed under the 
operating rating or equivalent rating factor.
    (d) Prepare bridge files as described in the AASHTO Manual 
(incorporated

[[Page 361]]

by reference, see Sec.  650.317). Maintain reports on the results of 
bridge inspections together with notations of any action taken to 
address the findings of such inspections. Maintain relevant maintenance 
and inspection data to allow assessment of current bridge condition. 
Record the findings and results of bridge inspections on standard State 
or Federal agency forms.
    (e) Identify bridges with FCMs, bridges requiring underwater 
inspection, and bridges that are scour critical.
    (1) Bridges with fracture critical members. In the inspection 
records, identify the location of FCMs and describe the FCM inspection 
frequency and procedures. Inspect FCMs according to these procedures.
    (2) Bridges requiring underwater inspections. Identify the location 
of underwater elements and include a description of the underwater 
elements, the inspection frequency and the procedures in the inspection 
records for each bridge requiring underwater inspection. Inspect those 
elements requiring underwater inspections according to these procedures.
    (3) Bridges that are scour critical. Prepare a plan of action to 
monitor known and potential deficiencies and to address critical 
findings. Monitor bridges that are scour critical in accordance with the 
plan.
    (f) Complex bridges. Identify specialized inspection procedures, and 
additional inspector training and experience required to inspect complex 
bridges. Inspect complex bridges according to those procedures.
    (g) Quality control and quality assurance. Assure systematic quality 
control (QC) and quality assurance (QA) procedures are used to maintain 
a high degree of accuracy and consistency in the inspection program. 
Include periodic field review of inspection teams, periodic bridge 
inspection refresher training for program managers and team leaders, and 
independent review of inspection reports and computations.
    (h) Follow-up on critical findings. Establish a statewide or Federal 
agency wide procedure to assure that critical findings are addressed in 
a timely manner. Periodically notify the FHWA of the actions taken to 
resolve or monitor critical findings.



Sec.  650.315  Inventory.

    (a) Each State or Federal agency must prepare and maintain an 
inventory of all bridges subject to the NBIS. Certain Structure 
Inventory and Appraisal (SI&A) data must be collected and retained by 
the State or Federal agency for collection by the FHWA as requested. A 
tabulation of this data is contained in the SI&A sheet distributed by 
the FHWA as part of the ``Recording and Coding Guide for the Structure 
Inventory and Appraisal of the Nation's Bridges,'' (December 1995) 
together with subsequent interim changes or the most recent version. 
Report the data using FHWA established procedures as outlined in the 
``Recording and Coding Guide for the Structure Inventory and Appraisal 
of the Nation's Bridges.''
    (b) For routine, in-depth, fracture critical member, underwater, 
damage and special inspections enter the SI&A data into the State or 
Federal agency inventory within 90 days of the date of inspection for 
State or Federal agency bridges and within 180 days of the date of 
inspection for all other bridges.
    (c) For existing bridge modifications that alter previously recorded 
data and for new bridges, enter the SI&A data into the State or Federal 
agency inventory within 90 days after the completion of the work for 
State or Federal agency bridges and within 180 days after the completion 
of the work for all other bridges.
    (d) For changes in load restriction or closure status, enter the 
SI&A data into the State or Federal agency inventory within 90 days 
after the change in status of the structure for State or Federal agency 
bridges and within 180 days after the change in status of the structure 
for all other bridges.



Sec.  650.317  Reference manuals.

    (a) The materials listed in this subpart are incorporated by 
reference in the corresponding sections noted. These incorporations by 
reference were approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are 
incorporated as they exist on

[[Page 362]]

the date of the approval, and notice of any change in these documents 
will be published in the Federal Register. The materials are available 
for purchase at the address listed below, and are available for 
inspection at the National Archives and Records Administration (NARA). 
These materials may also be reviewed at the Department of Transportation 
Library, 1200 New Jersey Avenue, SE., Washington, DC 20590, (202) 366-
0761. For information on the availability of these materials at NARA 
call (202) 741-6030, or go to the following URL: http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html. In the event there is a conflict between the 
standards in this subpart and any of these materials, the standards in 
this subpart will apply.
    (b) The following materials are available for purchase from the 
American Association of State Highway and Transportation Officials, 
Suite 249, 444 N. Capitol Street, NW., Washington, DC 20001, (202) 624-
5800. The materials may also be ordered via the AASHTO bookstore located 
at the following URL: http://www.transportation.org.
    (1) The Manual for Bridge Evaluation, First Edition, 2008, AASHTO, 
incorporation by reference approved for Sec. Sec.  650.305 and 650.313.
    (2) [Reserved]

[74 FR 68379, Dec. 24, 2009]



     Subpart D_Highway Bridge Replacement and Rehabilitation Program

    Source: 44 FR 15665, Mar. 15, 1979, unless otherwise noted.



Sec.  650.401  Purpose.

    The purpose of this regulation is to prescribe policies and outline 
procedures for administering the Highway Bridge Replacement and 
Rehabilitation Program in accordance with 23 U.S.C. 144.



Sec.  650.403  Definition of terms.

    As used in this regulation:
    (a) Bridge. A structure, including supports, erected over a 
depression or an obstruction, such as water, a highway, or a railway, 
having a track or passageway for carrying traffic or other moving loads, 
and having an opening measured along the center of the roadway of more 
than 20 feet between undercopings of abutments or spring lines of 
arches, or extreme ends of the openings for multiple boxes; it may 
include multiple pipes where the clear distance between openings is less 
than half of the smaller contiguous opening.
    (b) Sufficiency rating. The numerical rating of a bridge based on 
its structural adequacy and safety, essentiality for public use, and its 
serviceability and functional obsolescence.
    (c) Rehabilitation. The major work required to restore the 
structural integrity of a bridge as well as work necessary to correct 
major safety defects.



Sec.  650.405  Eligible projects.

    (a) General. Deficient highway bridges on all public roads may be 
eligible for replacement or rehabilitation.
    (b) Types of projects which are eligible. The following types of 
work are eligible for participation in the Highway Bridge Replacement 
and Rehabilitation Program (HBRRP), hereinafter known as the bridge 
program.
    (1) Replacement. Total replacement of a structurally deficient or 
functionally obsolete bridge with a new facility constructed in the same 
general traffic corridor. A nominal amount of approach work, sufficient 
to connect the new facility to the existing roadway or to return the 
gradeline to an attainable touchdown point in accordance with good 
design practice is also eligible. The replacement structure must meet 
the current geometric, construction and structural standards required 
for the types and volume of projected traffic on the facility over its 
design life.
    (2) Rehabilitation. The project requirements necessary to perform 
the major work required to restore the structural integrity of a bridge 
as well as work necessary to correct major safety defects are eligible 
except as noted under ineligible work. Bridges to be rehabilitated both 
on or off the F-A System shall, as a minimum, conform with the 
provisions of 23 CFR part 625, Design Standards for Federal-aid 
Highways, for the class of highway on which the bridge is a part.

[[Page 363]]

    (c) Ineligible work. Except as otherwise prescribed by the 
Administrator, the costs of long approach fills, causeways, connecting 
roadways, interchanges, ramps, and other extensive earth structures, 
when constructed beyond the attainable touchdown point, are not eligible 
under the bridge program.



Sec.  650.407  Application for bridge replacement or rehabilitation.

    (a) Agencies participate in the bridge program by conducting bridge 
inspections and submitting Structure Inventory and Appraisal (SI&A) 
sheet inspection data. Federal and local governments supply SI&A sheet 
data to the State agency for review and processing. The State is 
responsible for submitting the six computer card format or tapes 
containing all public road SI&A sheet bridge information through the 
Division Administrator of the Federal Highway Administration (FHWA) for 
processing. These requirements are prescribed in 23 CFR 650.309 and 
650.311, the National Bridge Inspection Standards.
    (b) Inventory data may be submitted as available and shall be 
submitted at such additional times as the FHWA may request.
    (c) Inventory data on bridges that have been strengthened or 
repaired to eliminate deficiencies, or those that have been replaced or 
rehabilitated using bridge replacement and/or other funds, must be 
revised in the inventory through data submission.
    (d) The Secretary may, at the request of a State, inventory bridges, 
on and off the Federal-aid system, for historic significance.

[44 FR 15665, Mar. 15, 1979, as amended at 44 FR 72112, Dec. 13, 1979]



Sec.  650.409  Evaluation of bridge inventory.

    (a) Sufficiency rating of bridges. Upon receipt and evaluation of 
the bridge inventory, a sufficiency rating will be assigned to each 
bridge by the Secretary in accordance with the approved AASHTO \1\ 
sufficiency rating formula. The sufficiency rating will be used as a 
basis for establishing eligibility and priority for replacement or 
rehabilitation of bridges; in general the lower the rating, the higher 
the priority.
---------------------------------------------------------------------------

    \1\ American Association of State Highway and Transporation 
Officials, Suite 225, 444 North Capitol Street, NW, Washington, DC 
20001.
---------------------------------------------------------------------------

    (b) Selection of bridges for inclusion in State program. After 
evaluation of the inventory and assignment of sufficiency ratings, the 
Secretary will provide the State with a selection list of bridges within 
the State that are eligible for the bridge program. From that list or 
from previously furnished selection lists, the State may select bridge 
projects.



Sec.  650.411  Procedures for bridge replacement and rehabilitation projects.

    (a) Consideration shall be given to projects which will remove from 
service highway bridges most in danger of failure.
    (b) Submission and approval of projects. (1) Bridge replacement or 
rehabilitation projects shall be submitted by the State to the Secretary 
in accordance with 23 CFR part 630, subpart A Federal-Aid Programs, 
Approval and Authorization.
    (2) Funds apportioned to a State shall be made available throughout 
each State on a fair and equitable basis.
    (c)(1) Each approved project will be designed, constructed, and 
inspected for acceptance in the same manner as other projects on the 
system on which the project is located. It shall be the responsibility 
of the State agency to properly maintain, or cause to be properly 
maintained, any project constructed under this bridge program. The State 
highway agency shall enter into a formal agreement for maintenance with 
appropriate local government officials in cases where an eligible 
project is located within and is under the legal authority of such a 
local government.
    (2) Whenever a deficient bridge is replaced or its deficiency 
alleviated by a new bridge under the bridge program, the deficient 
bridge shall either be dismantled or demolished or its use limited to 
the type and volume of traffic

[[Page 364]]

the structure can safely service over its remaining life. For example, 
if the only deficiency of the existing structure is inadequate roadway 
width and the combination of the new and existing structure can be made 
to meet current standards for the volume of traffic the facility will 
carry over its design life, the existing bridge may remain in place and 
be incorporated into the system.

[44 FR 15665, Mar. 15, 1979, as amended at 44 FR 72112, Dec. 13, 1979]



Sec.  650.413  Funding.

    (a) Funds authorized for carrying out the Highway Bridge Replacement 
and Rehabilitation Program are available for obligation at the beginning 
of the fiscal year for which authorized and remain available for 
expenditure for the same period as funds apportioned for projects on the 
Federal-aid primary system.
    (b) The Federal share payable on account of any project carried out 
under 23 U.S.C. 144 shall be 80 percent of the eligible cost.
    (c) Not less than 15 percent nor more than 35 percent of the 
apportioned funds shall be expended for projects located on public 
roads, other than those on a Federal-aid system. The Secretary after 
consultation with State and local officials may, with respect to a 
State, reduce the requirement for expenditure for bridges not on a 
Federal-aid system when he determines that such State has inadequate 
needs to justify such expenditure.



Sec.  650.415  Reports.

    The Secretary must report annually to the Congress on projects 
approved and current inventories together with recommendations for 
further improvements.



             Subpart E_National Tunnel Inspection Standards

    Source: 80 FR 41368, July 14, 2015, unless otherwise noted.



Sec.  650.501  Purpose.

    This subpart sets the national minimum standards for the proper 
safety inspection and evaluation of all highway tunnels in accordance 
with 23 U.S.C. 144(h) and the requirements for preparing and maintaining 
an inventory in accordance with 23 U.S.C. 144(b).



Sec.  650.503  Applicability.

    The National Tunnel Inspection Standards (NTIS) in this subpart 
apply to all structures defined as highway tunnels on all public roads, 
on and off Federal-aid highways, including tribally and federally owned 
tunnels.



Sec.  650.505  Definitions.

    The following terms used in this subpart are defined as follows:
    American Association of State Highway and Transportation Officials 
(AASHTO) Manual for Bridge Evaluation. The term ``AASHTO Manual for 
Bridge Evaluation'' means the ``Manual for Bridge Evaluation'', 
incorporated by reference in Sec.  650.517.
    At-grade roadway. The term ``at-grade roadway'' means paved or 
unpaved travel ways within the tunnel that carry vehicular traffic and 
are not suspended or supported by a structural system.
    Bridge inspection experience. The term ``bridge inspection 
experience'' has the same meaning as in Sec.  650.305.
    Complex tunnel. The term ``complex tunnel'' means a tunnel 
characterized by advanced or unique structural elements or functional 
systems.
    Comprehensive tunnel inspection training. The term ``comprehensive 
tunnel inspection training'' means the FHWA-approved training that 
covers all aspects of tunnel inspection and enables inspectors to relate 
conditions observed in a tunnel to established criteria.
    Critical finding. The term ``critical finding'' has the same meaning 
as in Sec.  650.305.
    Damage inspection. The term ``damage inspection'' has the same 
meaning as in Sec.  650.305.
    End-of-course assessment. The term ``end-of-course assessment'' 
means a comprehensive examination given to students after the completion 
of a training course.
    Federal-aid highway. The term ``Federal-aid highway'' has the same 
meaning as in 23 U.S.C. 101(a)(5).

[[Page 365]]

    Functional systems. The term ``functional systems'' means non-
structural systems, such as electrical, mechanical, fire suppression, 
ventilation, lighting, communications, monitoring, drainage, traffic 
signals, emergency response (including egress, refuge room spacing, or 
carbon monoxide detection), or traffic safety components.
    Hands-on inspection. The term ``hands-on inspection'' has the same 
meaning as in Sec.  650.305.
    Highway. The term ``highway'' has the same meaning as in 23 U.S.C. 
101(a)(11).
    In-depth inspection. The term ``in-depth inspection'' means a close-
up inspection of one, several, or all tunnel structural elements or 
functional systems to identify any deficiencies not readily detectable 
using routine inspection procedures. In-depth inspections may occur more 
or less frequently than routine inspections, as outlined in the tunnel-
specific inspection procedures.
    Initial inspection. The term ``initial inspection'' means the first 
inspection of a tunnel to provide all inventory, appraisal, and other 
data necessary to determine the baseline condition of the structural 
elements and functional systems.
    Inspection Date. The term ``Inspection Date'' means the date 
established by the Program Manager on which a regularly scheduled 
routine inspection begins for a tunnel.
    Legal load. The terms ``legal load means the maximum legal load for 
each vehicle configuration permitted by law for the State in which the 
tunnel is located.
    Load rating. The term ``load rating'' means the determination of the 
safe vehicular live load carrying capacity within or above the tunnel 
using structural plans, and information gathered from an inspection. The 
results of the load rating may include the need for load posting.
    Operating rating. The term ``operating rating'' has the same meaning 
as in Sec.  650.305.
    Portal. The term ``portal'' means the entrance and exit of the 
tunnel exposed to the environment; portals may include bare rock, 
constructed tunnel entrance structures, or buildings.
    Procedures. The term ``procedures'' means the written documentation 
of policies, methods, considerations, criteria, and other conditions 
that direct the actions of personnel so that a desired end result is 
achieved consistently.
    Professional Engineer (P.E.). The term ``Professional Engineer 
(P.E.)'' means an individual who has fulfilled education and experience 
requirements and passed examinations that, under State licensure laws, 
permits the individual to offer engineering services within areas of 
expertise directly to the public.
    Program Manager. The term ``Program Manager'' means the individual 
in charge of the inspection program who has been assigned or delegated 
the duties and responsibilities for tunnel inspection, reporting, and 
inventory. The Program Manager provides overall leadership and guidance 
to inspection Team Leaders and load raters.
    Public road. The term ``public road'' has the same meaning as in 23 
U.S.C. 101(a)(21).
    Quality assurance (QA). The term ``quality assurance (QA)'' means 
the use of sampling and other measures to ensure the adequacy of quality 
control procedures in order to verify or measure the quality of the 
entire tunnel inspection and load rating program.
    Quality control (QC). The term ``quality control (QC)'' means the 
procedures that are intended to maintain the quality of a tunnel 
inspection and load rating at or above a specified level.
    Routine inspection. The term ``routine inspection'' means a 
regularly scheduled comprehensive inspection encompassing all tunnel 
structural elements and functional systems and consisting of 
observations and measurements needed to determine the physical and 
functional condition of the tunnel, to identify any changes from initial 
or previously recorded conditions, and to ensure that tunnel components 
continue to satisfy present service requirements.
    Routine permit load. The term ``routine permit load'' means a 
vehicular load that has a gross weight, axle weight, or distance between 
axles not conforming with State laws for legally configured vehicles, 
and is authorized

[[Page 366]]

for unlimited trips over an extended period of time to move alongside 
other heavy vehicles on a regular basis.
    Special inspection. The term ``special inspection'' means an 
inspection, scheduled at the discretion of the tunnel owner, used to 
monitor a particular known or suspected deficiency.
    State transportation department (State DOT). The term ``State 
transportation department (State DOT)'' has the same meaning as in 23 
U.S.C. 101(a)(28).
    Team Leader. The term ``Team Leader'' means the on-site individual 
in charge of an inspection team responsible for planning, preparing, 
performing, and reporting on tunnel inspections.
    Tunnel. The term ``tunnel'' means an enclosed roadway for motor 
vehicle traffic with vehicle access limited to portals, regardless of 
type of structure or method of construction, that requires, based on the 
owner's determination, special design considerations that may include 
lighting, ventilation, fire protection systems, and emergency egress 
capacity. The terms ``tunnel'' does not include bridges or culverts 
inspected under the National Bridge Inspection Standards (subpart C of 
this part).
    Tunnel inspection experience. The term ``tunnel inspection 
experience'' means active participation in the performance of tunnel 
inspections in accordance with the National Tunnel Inspection Standards, 
in either a field inspection, supervisory, or management role.
    Tunnel inspection refresher training. The term ``tunnel inspection 
refresher training'' means an FHWA-approved training course that aims to 
improve the quality of tunnel inspections, introduce new techniques, and 
maintain the consistency of the tunnel inspection program.
    Tunnel Operations, Maintenance, Inspection and Evaluation (TOMIE) 
Manual. The term ``Tunnel Operations, Maintenance, Inspection and 
Evaluation (TOMIE) Manual'' means the ``Tunnel Operations, Maintenance, 
Inspection and Evaluation (TOMIE) Manual'' (incorporated by reference, 
see Sec.  650.517).
    Tunnel-specific inspection procedures. The term ``tunnel-specific 
inspection procedures'' means the written documentation of the 
directions necessary to plan for, and conduct an inspection. Directions 
include coverage of inspection methods, frequency of each method, 
inspection equipment, access equipment, identification of tunnel 
elements, components and functional systems, traffic coordination, and 
specialized qualifications for inspecting personnel.



Sec.  650.507  Tunnel inspection organization responsibilities.

    (a) Each State DOT shall inspect, or cause to be inspected, all 
highway tunnels located on public roads, on and off Federal-aid 
highways, that are fully or partially located within the State's 
boundaries, except for tunnels that are owned by Federal agencies or 
tribal governments.
    (b) Each Federal agency shall inspect, or cause to be inspected, all 
highway tunnels located on public roads, on and off Federal-aid 
highways, that are fully or partially located within the respective 
agency's responsibility or jurisdiction.
    (c) Each tribal government shall inspect, or cause to be inspected, 
all highway tunnels located on public roads, on and off Federal-aid 
highways, that are fully or partially located within the respective 
tribal government's responsibility or jurisdiction.
    (d) Where a tunnel is jointly owned, all bordering States, Federal 
agencies, and tribal governments with ownership interests should 
determine through a joint formal written agreement the inspection 
responsibilities of each State, Federal agency, and tribal government.
    (e) Each State that contains one or more tunnels subject to these 
regulations, or Federal agency or tribal government with a tunnel under 
its jurisdiction, shall include a tunnel inspection organization that is 
responsible for all of the following:
    (1) Statewide, Federal agency-wide, or tribal government-wide tunnel 
inspection policies and procedures (both general and tunnel-specific), 
quality control and quality assurance procedures, and preparation and 
maintenance of a tunnel inventory.
    (2) Tunnel inspections, written reports, load ratings, management of

[[Page 367]]

critical findings, and other requirements of these standards.
    (3) Maintaining a registry of nationally certified tunnel inspectors 
that work in their State or for their Federal agency or tribal 
government that includes, at a minimum, a method to positively identify 
each inspector, documentation that the inspector's training requirements 
are up-to-date, the inspector's current contact information, and 
detailed information about any adverse action that may affect the good 
standing of the inspector.
    (4) A process, developed under the direction of a Professional 
Engineer and approved by FHWA, to determine when an inspection Team 
Leader's qualifications must meet Sec.  650.509(b)(4) in order to 
adequately and appropriately lead an inspection of a complex tunnel or a 
tunnel with distinctive features or functions. At a minimum, the process 
shall consider a tunnel's type of construction, functional systems, 
history of performance, and physical and operational conditions.
    (f) A State DOT, Federal agency, or tribal government may delegate 
functions identified in paragraphs (e)(1), (2), and (3) of this section 
through a formal written agreement, but such delegation does not relieve 
the State DOT, Federal agency, or tribal government of any of its 
responsibilities under this subpart.
    (g) The State DOT, Federal agency, or tribal government tunnel 
inspection organization shall have a Program Manager with the 
qualifications listed in Sec.  650.509(a), who has been delegated 
responsibility for paragraphs (e)(1), (2), and (3) of this section.



Sec.  650.509  Qualifications of personnel.

    (a) A Program Manager shall, at a minimum:
    (1) Be a registered Professional Engineer, or have 10 years of 
tunnel or bridge inspection experience;
    (2) Be a nationally certified tunnel inspector;
    (3) Satisfy the requirements of paragraphs (a)(1) and (2) of this 
section by August 13, 2017; and
    (4) Be able to determine when a Team Leader's qualifications must 
meet the requirements of paragraph (b)(1)(i) of this section in 
accordance with the FHWA approved process developed in accordance with 
Sec.  650.507(e)(4).
    (b) A Team Leader shall, at a minimum:
    (1) Meet at least one of the four qualifications listed in 
paragraphs (b)(1)(i) through (iv) of this section:
    (i) Be a registered professional engineer and have six months of 
tunnel or bridge inspection experience.
    (ii) Have 5 years of tunnel or bridge inspection experience.
    (iii) Have all of the following:
    (A) A bachelor's degree in engineering or engineering technology 
from a college or university accredited or determined as substantially 
equivalent by the Accreditation Board for Engineering and Technology.
    (B) Successfully passed the National Council of Examiners for 
Engineering and Surveying Fundamentals of Engineering examination.
    (C) Two (2) years of tunnel or bridge inspection experience.
    (iv) Have all of the following:
    (A) An associate's degree in engineering or engineering technology 
from a college or university accredited or determined as substantially 
equivalent by the Accreditation Board for Engineering and Technology.
    (B) Four years of tunnel or bridge inspection experience.
    (2) Be a nationally certified tunnel inspector.
    (3) Provide documentation supporting the satisfaction of paragraphs 
(b)(1) and (2) of this section to the Program Manager of each State DOT, 
Federal agency, or tribal government for which they are performing 
tunnel inspections.
    (4) Be a registered Professional Engineer and have six months of 
tunnel or bridge inspection experience if the Program Manager determines 
through the approved process developed under Sec.  650.507(e)(4) that 
the tunnel being inspected is complex or has distinctive features or 
functions that warrant this level of qualifications.
    (c) Load ratings shall be performed by, or under the direct 
supervision of, a registered Professional Engineer.
    (d) Each State DOT, Federal agency, and tribal government shall 
determine inspection personnel qualifications for

[[Page 368]]

damage, cursory, and special inspections.
    (e) A nationally certified tunnel inspector shall:
    (1) Complete an FHWA-approved comprehensive tunnel inspection 
training course and score 70 percent or greater on an end-of-course 
assessment;
    (2) Complete a cumulative total of 18 hours of FHWA-approved tunnel 
inspection refresher training over each 60 month period; and
    (3) Maintain documentation supporting the satisfaction of paragraphs 
(e)(1) and (2) of this section, and, upon request, provide documentation 
of their training status and current contact information to the Tunnel 
Inspection Organization of each State DOT, Federal agency, or tribal 
government for which they will be performing tunnel inspections.
    (f) Acceptable tunnel inspection training includes the following:
    (1) National Highway Institute training. NHI courses on 
comprehensive tunnel inspection training.
    (2) FHWA approval of alternate training. A State DOT, Federal 
agency, or tribal government may submit to FHWA a training course as an 
alternative to the NHI course. The FHWA shall approve alternative course 
materials and end-of-course assessments for national consistency and 
certification purposes. The Program Manager shall review the approved 
alternative training course every 5 years to ensure the material is 
current. Updates to approved course materials and end-of-course 
assessments shall be resubmitted to FHWA for approval.
    (g) In evaluating the tunnel inspection experience requirements 
under paragraphs (a) and (b) of this section, a combination of tunnel 
design, tunnel maintenance, tunnel construction, and tunnel inspection 
experience, with the predominant amount in tunnel inspection, is 
acceptable. Also, the following criteria should be considered:
    (1) The relevance of the individual's actual experience, including 
the extent to which the experience has enabled the individual to develop 
the skills needed to properly lead a tunnel safety inspection.
    (2) The individual's exposure to the problems or deficiencies common 
in the types of tunnels being inspected by the individual.
    (3) The individual's understanding of the specific data collection 
needs and requirements.



Sec.  650.511  Inspection interval.

    (a) Initial inspection. A State DOT, Federal agency, or tribal 
government tunnel inspection organization shall conduct, or cause to be 
conducted, an initial inspection for each tunnel described in Sec.  
650.503 as follows:
    (1) For existing tunnels, conduct a routine inspection of each 
tunnel according to the inspection guidance provided in the Tunnel 
Operations, Maintenance, Inspection and Evaluation (TOMIE) Manual 
(incorporated by reference, see Sec.  650.517) by August 13, 2017.
    (2) For tunnels completed after these regulations take effect, the 
initial routine inspection shall be conducted after all construction is 
completed and prior to opening to traffic, according to the inspection 
guidance provided in the Tunnel Operations, Maintenance, Inspection and 
Evaluation (TOMIE) Manual (incorporated by reference, see Sec.  
650.517).
    (b) Routine inspections. A State DOT, Federal agency, or tribal 
government tunnel inspection organization shall conduct, or cause to be 
conducted, routine inspections for each tunnel described in Sec.  
650.503 as follows:
    (1) Establish for each tunnel the NTIS routine Inspection Date in a 
month and year (MM/DD/YYYY) format. This date should only be modified by 
the Program Manager in rare circumstances.
    (2) Inspect each tunnel at regular 24-month intervals.
    (3) For tunnels needing inspection more frequently than 24-month 
intervals, establish criteria to determine the level and frequency to 
which these tunnels are inspected, based on a risk analysis approach 
that considers such factors as tunnel age, traffic characteristics, 
geotechnical conditions, and known deficiencies.
    (4) Certain tunnels may be inspected at regular intervals up to 48 
months. Inspecting a tunnel at an increased interval may be appropriate 
when past

[[Page 369]]

inspection findings and analysis justifies the increased inspection 
interval. At a minimum, the following criteria shall be used to 
determine the level and frequency of inspection based on an assessed 
lower risk: Tunnel age, time from last major rehabilitation, tunnel 
complexity, traffic characteristics, geotechnical conditions, functional 
systems, and known deficiencies. A written request that justifies a 
regular routine inspection interval between 24 and 48 months shall be 
submitted to FHWA for review and comment prior to the extended interval 
being implemented.
    (5) Inspect each tunnel in accordance with the established interval. 
The acceptable tolerance for inspection interval is within 2 months 
before or after the Inspection Date established in paragraph (b)(1) of 
this section in order to maintain that date. The actual month, day, and 
year of the inspection are to be reported in the National Tunnel 
Inventory.
    (c) Damage, in-depth, and special inspections. The Program Manager 
shall establish criteria to determine the level and frequency of damage, 
in-depth, and special inspections. Damage, in-depth, and special 
inspections may use non-destructive testing or other methods not used 
during routine inspections at an interval established by the Program 
Manager. In-depth inspections should be scheduled for complex tunnels 
and for certain structural elements and functional systems when 
necessary to fully ascertain the condition of the element or system; 
hands-on inspection may be necessary at some locations.



Sec.  650.513  Inspection procedures.

    Each State DOT, Federal agency, or tribal government tunnel 
inspection organization, to carry out its inspection responsibilities, 
shall perform or cause to be performed all of the following:
    (a) Inspect tunnel structural elements and functional systems in 
accordance with the inspection guidance provided in the Tunnel 
Operations, Maintenance, Inspection and Evaluation (TOMIE) Manual 
(incorporated by reference, see Sec.  650.517).
    (b) Provide at least one Team Leader, who meets the minimum 
qualifications stated in Sec.  650.509, at the tunnel at all times 
during each initial, routine, and in-depth inspection. The State DOT, 
Federal agency, or tribal government shall report the nationally 
certified tunnel inspector identification for each Team Leader that is 
wholly or partly responsible for a tunnel inspection must be reported to 
the National Tunnel Inventory.
    (c) Prepare and document tunnel-specific inspection procedures for 
each tunnel inspected and inventoried that shall:
    (1) Take into account the design assumptions and the tunnel 
complexity; and
    (2) Identify the--
    (i) Tunnel structural elements and functional systems to be 
inspected;
    (ii) Methods of inspection to be used;
    (iii) Frequency of inspection for each method; and
    (iv) Inspection equipment, access equipment, and traffic 
coordination needed.
    (d) Establish requirements for functional system testing, direct 
observation of critical system checks, and testing documentation.
    (e) For complex tunnels, identify specialized inspection procedures 
and additional inspector training and experience required to inspect 
complex tunnels. Inspect complex tunnels according to the specialized 
inspection procedures.
    (f) Conduct tunnel inspections with qualified staff not associated 
with the operation or maintenance of the tunnel structure or functional 
systems.
    (g) Rate each tunnel's safe vehicular load-carrying capacity in 
accordance with the Sections 6 or 8, AASHTO Manual for Bridge Evaluation 
(incorporated by reference, see Sec.  650.517). A State DOT, Federal 
agency, or tribal government shall conduct a load rating evaluation as 
soon as practical, but not later than three months after the completion 
of the inspection, if a change in condition is identified. Post or 
restrict the highways in or over the tunnel in accordance with Section 
6, AASHTO Manual for Bridge Evaluation (incorporated by reference, see 
Sec.  650.517), or in accordance with State law, when the

[[Page 370]]

maximum unrestricted legal loads or State routine permit loads exceed 
those allowed under the operating rating or equivalent rating factor. 
Postings shall be made as soon as possible but not later than 30 days 
after a valid load rating determines a need for such posting. At-grade 
roadways in tunnels are exempt from load rating. A State DOT, Federal 
agency, or tribal government, shall maintain load rating calculations or 
input files with a summary of results as a part of the tunnel record.
    (h) Prepare tunnel inspection documentation as described in the 
Tunnel Operations, Maintenance, Inspection and Evaluation (TOMIE) Manual 
(incorporated by reference, see Sec.  650.517), and maintain written 
reports or electronic files on the results of tunnel inspections, 
together with notations of any action taken to address the findings of 
such inspections. Maintain relevant maintenance and inspection data to 
allow assessment of current tunnel condition. At a minimum, information 
collected will include data regarding basic tunnel information (e.g., 
tunnel location, posted speed, inspection reports, repair 
recommendations, and repair and rehabilitation work completed), tunnel 
and roadway geometrics, interior tunnel structural features, portal 
structure features, and tunnel systems information. When available, 
tunnel data collected shall include diagrams, photos, condition of each 
structural and functional system component, notations of any action 
taken to address the findings of such inspections, and the national 
tunnel inspector certification registry identification for each Team 
Leader responsible in whole or in part for the inspection.
    (i) Use systematic quality control and quality assurance procedures 
to maintain a high degree of accuracy and consistency in the inspection 
program. Include periodic field review of inspection teams, data quality 
checks, and independent review of inspection reports and computations.
    (j) Establish a Statewide, Federal agency-wide, or tribal 
government-wide procedure to ensure that critical findings are addressed 
in a timely manner. Notify FHWA within 24 hours of any critical finding 
and the activities taken, underway, or planned to resolve or monitor the 
critical finding. Update FHWA regularly or as requested on the status of 
each critical finding until it is resolved. Annually provide a written 
report to FHWA with a summary of the current status of the resolutions 
for each critical finding identified within that year or unresolved from 
a previous year.
    (k) Provide information at least annually, or more frequently upon 
request, in cooperation with any FHWA review of State DOT, Federal 
agency, or tribal government compliance with the NTIS. The FHWA will 
assess annually State DOT compliance using statistical assessments and 
well-defined measures based on the requirements of this subpart.



Sec.  650.515  Inventory.

    (a) Preliminary inventory. Each State, Federal agency, or tribal 
government shall collect and submit the inventory data items described 
in the Specifications for the National Tunnel Inventory (incorporated by 
reference, see Sec.  650.517) for all tunnels subject to the NTIS by 
December 11, 2015.
    (b) National Tunnel Inventory. Each State, Federal agency, or tribal 
government shall prepare, maintain, and make available to FHWA upon 
request, an inventory of all highway tunnels subject to the NTIS that 
includes the preliminary inventory information submitted in paragraph 
(a) of this section, reflects the findings of the most recent tunnel 
inspection conducted, and is consistent and coordinated with the 
Specifications for the National Tunnel Inventory.
    (c) Data entry for inspections. For all inspections, each State DOT, 
Federal agency, or tribal government shall enter the appropriate tunnel 
inspection data into its inventory within 3 months after the completion 
of the inspection.
    (d) Data entry for tunnel modifications and new tunnels. For 
modifications to existing tunnels that alter previously recorded data 
and new tunnels, each State DOT, Federal agency, or tribal government 
shall enter the appropriate data into its inventory within 3

[[Page 371]]

months after the completion of the work.
    (e) Data entry for tunnel load restriction and closure changes. For 
changes in traffic load restriction or closure status, each State DOT, 
Federal agency, or tribal government shall enter the data into its 
inventory within 3 months after the change in status of the tunnel.



Sec.  650.517  Incorporation by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, the FHWA must publish notice of change in the 
Federal Register and the material must be available to the public. All 
approved material is available for inspection at 1200 New Jersey Avenue 
SE., Washington, DC 20590. For questions regarding the availability of 
this material at FHWA, call the FHWA Regulations Officer, Office of the 
Chief Counsel, HCC-10, 202-366-0761. This material is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to http://www.archives.gov/federal_register/
code_of_federal_regulations/ibr_locations.html.
    (b) American Association of State Highway and Transportation 
Officials (AASHTO), Suite 249, 444 N. Capitol Street NW., Washington, DC 
20001, 800-231-3475, https://bookstore.transportation.org.
    (1) ``The Manual of Bridge Evaluation,'' Section 6 ``Load Rating'' 
and Section 8 ``Nondestructive Load Testing,'' Second Edition, 2011, 
copyright 2011, incorporation by reference approved for Sec. Sec.  
650.505 and 650.513(a).
    (2) 2011 Interim Revisions to ``The Manual of Bridge Evaluation,'' 
Section 6 ``Load Rating,'' Second Edition, 2010, copyright 2011, 
incorporation by reference approved for Sec. Sec.  650.505 and 
650.513(a).
    (3) 2013 Interim Revisions to ``The Manual of Bridge Evaluation,'' 
Section 6 ``Load Rating,'' Second Edition, 2010, copyright 2013, 
incorporation by reference approved for Sec. Sec.  650.505 and 
650.513(a).
    (4) 2014 Interim Revisions to ``The Manual of Bridge Evaluation,'' 
Section 6 ``Load Rating,'' Second Edition, 2010, copyright 2013, 
incorporation by reference approved for Sec. Sec.  650.505 and 
650.513(a).
    (5) 2015 Interim Revisions to ``The Manual of Bridge Evaluation,'' 
Section 6 ``Load Rating,'' Second Edition, 2010, copyright 2014, 
incorporation by reference approved for Sec. Sec.  650.505 and 
650.513(a).
    (c) Office of Bridges and Structures, Federal Highway 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE., Washington, DC 20590.
    (1) FHWA-HIF-15-005, ``Tunnel Operations, Maintenance, Inspection 
and Evaluation (TOMIE) Manual,'' 2015 edition, available in electronic 
format at http://www.fhwa.dot.gov/bridge/inspection/tunnel/. 
Incorporation by reference approved for Sec. Sec.  650.505, 650.511(a), 
and 650.513(a) and (h).
    (2) FHWA-HIF-15-006, ``Specifications for National Tunnel 
Inventory,'' 2015 edition, available in electronic format at http://
www.fhwa.dot.gov/bridge/inspection/tunnel/. Incorporation by reference 
approved for Sec.  650.515(a) and (b).

Subpart F [Reserved]



         Subpart G_Discretionary Bridge Candidate Rating Factor

    Source: 48 FR 52296, Nov. 17, 1983, unless otherwise noted.



Sec.  650.701  Purpose.

    The purpose of this regulation is to describe a rating factor used 
as part of a selection process of allocation of discretionary bridge 
funds made available to the Secretary of Transportation under 23 U.S.C. 
144.



Sec.  650.703  Eligible projects.

    (a) Deficient highway bridges on Federal-aid highway system roads 
may be eligible for allocation of discretionary bridge funds to the same 
extent as they are for bridge funds apportioned under 23 U.S.C. 144, 
provided that the total project cost for a discretionary bridge

[[Page 372]]

candidate is at least $10 million or twice the amont of 23 U.S.C. 144 
funds apportioned to the State during the fiscal year for which funding 
for the candidate bridge is requested.
    (b) After November 14, 2002 only candidate bridges not previously 
selected with a computed rating factor of 100 or less and ready to begin 
construction in the fiscal year in which funds are available for 
obligation will be eligible for consideration.
    (c) Projects from States that have transferred Highway Bridge 
Replacement and Rehabilitation funds to other funding categories will 
not be eligible for funding the following fiscal year.

[48 FR 52296, Nov. 17, 1983, as amended at 67 FR 63542, Oct. 15, 2002]



Sec.  650.705  Application for discretionary bridge funds.

    Each year through its field offices, the FHWA will issue an annual 
call for discretionary bridge candidate submittals including updates of 
previously submitted but not selected projects. Each State is 
responsible for submitting such data as required for candidate bridges. 
Data requested will include structure number, funds needed by fiscal 
year, total project cost, current average daily truck traffic and a 
narrative describing the existing bridge, the proposed new or 
rehabilitated bridge and other relevant factors which the State believes 
may warrant special consideration.



Sec.  650.707  Rating factor.

    (a) The following formula is to be used in the selection process for 
ranking discretionary bridge candidates.
[GRAPHIC] [TIFF OMITTED] TR15OC02.010


The lower the rating factor, the higher the priority for selection and 
funding.
    (b) The terms in the rating factor are defined as follows:
    (1) SR is Sufficiency Rating computed as illustrated in appendix A 
of the Recording and Coding Guide for the Structure Inventory and 
Appraisal of the Nation's Bridges, USDOT/FHWA (latest edition); (If SR 
is less than 1.0, use SR = 1.0);
    (2) ADT is Average Daily Traffic in thousands taking the most 
current value from the national bridge inventory data;
    (3) ADTT is Average Daily Truck Traffic in thousands (Pick up trucks 
and light delivery trucks not included). For load posted bridges, the 
ADTT furnished should be that which would use the bridge if traffic were 
not restricted. The ADTT should be the annual average volume, not peak 
or seasonal;
    (4) N is National Highway System Status. N = 1 if not on the 
National Highway System. N = 1.5 if bridge carries a National Highway 
System road;
    (5) The last term of the rating factor expression includes the 
State's unobligated balance of funds received under 23 U.S.C. 144 as of 
June 30 preceding the date of calculation, and the total funds received 
under 23 U.S.C. 144 for the last four fiscal years ending with the most 
recent fiscal year of the FHWA's annual call for discretionary bridge 
candidate submittals; (if unobligated HBRRP balance is less than $10 
million, use zero balance);
    (6) TPC is Total Project Cost in millions of dollars;
    (7) HBRRP is Highway Bridge Replacement and Rehabilitation Program;
    (8) ADT' is ADT plus ADTT.
    (c) In order to balance the relative importance of candidate bridges 
with very low (less than one) sufficiency ratings and very low ADT's 
against candidate bridges with high ADT's, the minimum sufficiency 
rating used will be 1.0. If the computed sufficiency rating for a 
candidate bridge is less than 1.0, use 1.0 in the rating factor formula.

[[Page 373]]

    (d) If the unobligated balance of HBRRP funds for the State is less 
than $10 million, the HBRRP modifier is 1.0. This will limit the effect 
of the modifier on those States with small apportionments or those who 
may be accumulating funds to finance a major bridge.

[48 FR 52296, Nov. 17, 1983; 48 FR 53407, Nov. 28, 1983, as amended at 
67 FR 63542, Oct. 15, 2002]



Sec.  650.709  Special considerations.

    (a) The selection process for new discretionary bridge projects will 
be based upon the rating factor priority ranking. However, although not 
specifically included in the rating factor formula, special 
consideration will be given to bridges that are closed to all traffic or 
that have a load restriction of less than 10 tons. Consideration will 
also be given to bridges with other unique situations, and to bridge 
candidates in States that have not previously been allocated 
discretionary bridge funds. In addition, consideration will be given to 
candidates that receive additional funds or contributions from local, 
State, county, or private sources, but not from Federal sources which 
reduce the total Federal cost or Federal share of the project. These 
funds or contributions may be used to reduce the total project cost for 
use in the rating factor formula.
    (b) The need to administer the program from a balanced national 
perspective requires that the special cases set forth in paragraph (a) 
of this section and other unique situations be considered in the 
discretionary bridge candidate evaluation process.
    (c) Priority consideration will be given to the continuation and 
completion of projects previously begun with discretionary bridge funds 
which will be ready to begin construction in the fiscal year in which 
funds are available for obligation.

[48 FR 52296, Nov. 17, 1983, as amended at 67 FR 63543, Oct. 15, 2002]



              Subpart H_Navigational Clearances for Bridges

    Source: 52 FR 28139, July 28, 1987, unless otherwise noted.



Sec.  650.801  Purpose.

    The purpose of this regulation is to establish policy and to set 
forth coordination procedures for Federal-aid highway bridges which 
require navigational clearances.



Sec.  650.803  Policy.

    It is the policy of FHWA:
    (a) To provide clearances which meet the reasonable needs of 
navigation and provide for cost-effective highway operations,
    (b) To provide fixed bridges wherever practicable, and
    (c) To consider appropriate pier protection and vehicular protective 
and warning systems on bridges subject to ship collisions.



Sec.  650.805  Bridges not requiring a USCG permit.

    (a) The FHWA has the responsibility under 23 U.S.C. 144(h) to 
determine that a USCG permit is not required for bridge construction. 
This determination shall be made at an early stage of project 
development so that any necessary coordination can be accomplished 
during environmental processing.
    (b) A USCG permit shall not be required if the FHWA determines that 
the proposed construction, reconstruction, rehabilitation, or 
replacement of the federally aided or assisted bridge is over waters (1) 
which are not used or are not susceptible to use in their natural 
condition or by reasonable improvement as a means to transport 
interstate or foreign commerce and (2) which are (i) not tidal, or (ii) 
if tidal, used only by recreational boating, fishing, and other small 
vessels less than 21 feet in length.
    (c) The highway agency (HA) shall assess the need for a USCG permit 
or navigation lights or signals for proposed bridges. The HA shall 
consult the appropriate District Offices of the U.S. Army Corps of 
Engineers if the susceptibility to improvement for navigation of the 
water of concern is unknown and shall consult the USCG if the types of 
vessels using the waterway are unknown.
    (d) For bridge crossings of waterways with navigational traffic 
where the HA believes that a USCG permit may not

[[Page 374]]

be required, the HA shall provide supporting information early in the 
environmental analysis stage of project development to enable the FHWA 
to make a determination that a USCG permit is not required and that 
proposed navigational clearances are reasonable.
    (e) Since construction in waters exempt from a USCG permit may be 
subject to other USCG authorizations, such as approval of navigation 
lights and signals and timely notice to local mariners of waterway 
changes, the USCG should be notified whenever the proposed action may 
substantially affect local navigation.



Sec.  650.807  Bridges requiring a USCG permit.

    (a) The USCG has the responsibility (1) to determine whether a USCG 
permit is required for the improvement or construction of a bridge over 
navigable waters except for the exemption exercised by FHWA in Sec.  
650.805 and (2) to approve the bridge location, alignment and 
appropriate navigational clearances in all bridge permit applications.
    (b) A USCG permit shall be required when a bridge crosses waters 
which are: (1) tidal and used by recreational boating, fishing, and 
other small vessels 21 feet or greater in length or (2) used or 
susceptible to use in their natural condition or by reasonable 
improvement as a means to transport interstate or foreign commerce. If 
it is determined that a USCG permit is required, the project shall be 
processed in accordance with the following procedures.
    (c) The HA shall initiate coordination with the USCG at an early 
stage of project development and provide opportunity for the USCG to be 
involved throughout the environmental review process in accordance with 
23 CFR part 771. The FHWA and Coast Guard have developed internal 
guidelines which set forth coordination procedures that both agencies 
have found useful in streamlining and expediting the permit approval 
process. These guidelines include (1) USCG/FHWA Procedures for Handling 
Projects which Require a USCG Permit \1\ and (2) the USCG/FHWA 
Memorandum of Understanding on Coordinating The Preparation and 
Processing of Environmental Projects. \2\
---------------------------------------------------------------------------

    \1\ This document is an internal directive in the USCG Bridge 
Administration Manual, Enclosure 1a, COMDT INST M16590.5, change 2 dated 
Dec. 1, 1983. It is available for inspection and copying from the U.S. 
Coast Guard or the Federal Highway Administration as prescribed in 49 
CFR part 7, appendices B and D.
    \2\ FHWA Notice 6640.22 dated July 17, 1981, is available for 
inspection and copying as prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (d) The HA shall accomplish sufficient preliminary design and 
consultation during the environmental phase of project development to 
investigate bridge concepts, including the feasibility of any proposed 
movable bridges, the horizontal and vertical clearances that may be 
required, and other location considerations which may affect navigation. 
At least one fixed bridge alternative shall be included with any 
proposal for a movable bridge to provide a comparative analysis of 
engineering, social, economic and environmental benefit and impacts.
    (e) The HA shall consider hydraulic, safety, environmental and 
navigational needs along with highway costs when designing a proposed 
navigable waterway crossing.
    (f) For bridges where the risk of ship collision is significant, 
HA's shall consider, in addition to USCG requirements, the need for pier 
protection and warning systems as outlined in FHWA Technical Advisory 
5140.19, Pier Protection and Warning Systems for Bridges Subject to Ship 
Collisions, dated February 11, 1983.
    (g) Special navigational clearances shall normally not be provided 
for accommodation of floating construction equipment of any type that is 
not required for navigation channel maintenance. If the navigational 
clearances are influenced by the needs of such equipment, the USCG 
should be consulted to determine the appropriate clearances to be 
provided.
    (h) For projects which require FHWA approval of plans, 
specifications and estimates, preliminary bridge plans shall be approved 
at the appropriate level by FHWA for structural concepts,

[[Page 375]]

hydraulics, and navigational clearances prior to submission of the 
permit application.
    (i) If the HA bid plans contain alternative designs for the same 
configuration (fixed or movable), the permit application shall be 
prepared in sufficient detail so that all alternatives can be evaluated 
by the USCG. If appropriate, the USCG will issue a permit for all 
alternatives. Within 30 days after award of the construction contract, 
the USCG shall be notified by the HA of the alternate which was 
selected. The USCG procedure for evaluating permit applications which 
contain alternates is presented in its Bridge Administration Manual 
(COMDT INST M16590.5). \3\ The FHWA policy on alternates, Alternate 
Design for Bridges; Policy Statement, was published at 48 FR 21409 on 
May 12, 1983.
---------------------------------------------------------------------------

    \3\ United States Coast Guard internal directives are available for 
inspection and copying as prescribed in 49 CFR part 7, appendix B.
---------------------------------------------------------------------------



Sec.  650.809  Movable span bridges.

    A fixed bridge shall be selected wherever practicable. If there are 
social, economic, environmental or engineering reasons which favor the 
selection of a movable bridge, a cost benefit analysis to support the 
need for the movable bridge shall he prepared as a part of the 
preliminary plans.

                           PART 652 [RESERVED]



PART 655_TRAFFIC OPERATIONS--Table of Contents



Subparts A-E [Reserved]

 Subpart F_Traffic Control Devices on Federal-Aid and Other Streets and 
                                Highways

Sec.
655.601 Purpose.
655.602 Definitions.
655.603 Standards.
655.604 Achieving basic uniformity.
655.605 Project procedures.
655.606 Higher cost materials.
655.607 Funding.

Appendix to Subpart F of Part 655--Alternate Method of Determining the 
          Color of Retroreflective Sign Materials and Pavement Marking 
          Materials

Subpart G [Reserved]

    Authority: 23 U.S.C. 101(a), 104, 109(d), 114(a), 217, 315, and 
402(a); 23 CFR 1.32; and 49 CFR 1.48(b).

Subparts A-E [Reserved]



 Subpart F_Traffic Control Devices on Federal-Aid and Other Streets and 
                                Highways

    Source: 48 FR 46776, Oct. 14, 1983, unless otherwise noted.



Sec.  655.601  Purpose.

    To prescribe the policies and procedures of the Federal Highway 
Administration (FHWA) to obtain basic uniformity of traffic control 
devices on all streets and highways in accordance with the following 
references that are approved by the FHWA for application on Federal-aid 
projects:
    (a) MUTCD.
    (b) AASHTO Guide to Metric Conversion.
    (c) AASHTO Traffic Engineering Metric Conversion Factors.
    (d) The standards required in this section are incorporated by 
reference into this section in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. To enforce any edition other than that specified in this 
section, the FHWA must publish notice of change in the Federal Register 
and the material must be available to the public. All approved material 
is available for inspection at the Federal Highway Administration, 
Office of Transportation Operations, 1200 New Jersey Avenue SE., 
Washington, DC 20590, (202) 366-8043 and is available from the sources 
listed below. It is also available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA call (202) 741-6030, or go to 
http://www.archives.gov/federal-register/cfr/index.html.
    (1) AASHTO, American Association of State Highway and Transportation 
Officials, Suite 249, 444 North Capitol Street NW., Washington, DC 20001
    (i) AASHTO Guide to Metric Conversion, 1993;
    (ii) AASHTO, Traffic Engineering Metric Conversion Factors, 1993--
Addendum to the Guide to Metric Conversion, October 1993.

[[Page 376]]

    (2) FHWA, Federal Highway Administration, 1200 New Jersey Avenue 
SE., Washington, DC 20590, telephone (202) 366-1993, also available at 
http://mutcd.fhwa.dot.gov.
    (i) Manual on Uniform Traffic Control Devices for Streets and 
Highways (MUTCD), 2009 Edition, including Revisions No. 1 and No. 2, 
FHWA, dated May 2012.
    (ii) [Reserved]

[77 FR 28466, May 14, 2012]



Sec.  655.602  Definitions.

    The terms used herein are defined in accordance with definitions and 
usages contained in the MUTCD and 23 U.S.C. 101(a).



Sec.  655.603  Standards.

    (a) National MUTCD. The MUTCD approved by the Federal Highway 
Administrator is the national standard for all traffic control devices 
installed on any street, highway, or bicycle trail open to public travel 
in accordance with 23 U.S.C. 109(d) and 402(a). For the purpose of MUTCD 
applicability, open to public travel includes toll roads and roads 
within shopping centers, airports, sports arenas, and other similar 
business and/or recreation facilities that are privately owned but where 
the public is allowed to travel without access restrictions. Except for 
gated toll roads, roads within private gated properties where access is 
restricted at all times are not included in this definition. Parking 
areas, driving aisles within parking areas, and private highway-rail 
grade crossings are also not included in this definition.
    (b) State or other Federal MUTCD. (1) Where State or other Federal 
agency MUTCDs or supplements are required, they shall be in substantial 
conformance with the National MUTCD. Substantial conformance means that 
the State MUTCD or supplement shall conform as a minimum to the standard 
statements included in the National MUTCD. The FHWA Division 
Administrators and Associate Administrator for the Federal Lands Highway 
Program may grant exceptions in cases where a State MUTCD or supplement 
cannot conform to standard statements in the National MUTCD because of 
the requirements of a specific State law that was in effect prior to the 
effective date of this final rule, provided that the Division 
Administrator or Associate Administrator determines based on information 
available and documentation received from the State that the non-
conformance does not create a safety concern. The guidance statements 
contained in the National MUTCD shall also be in the State Manual or 
supplement unless the reason for not including it is satisfactorily 
explained based on engineering judgment, specific conflicting State law, 
or a documented engineering study. The FHWA Division Administrators 
shall approve the State MUTCDs and supplements that are in substantial 
conformance with the National MUTCD. The FHWA AssociateAdministrator of 
the Federal Lands Highway Program shall approve other Federal land 
management agencies MUTCDs and supplements that are in substantial 
conformance with the National MUTCD. The FHWA Division Administrators 
and the FHWA Associate Administrators for the Federal Lands Highway 
Program have the flexibility to determine on a case-by-case basis the 
degree of variation allowed.
    (2) States and other Federal agencies are encouraged to adopt the 
National MUTCD in its entirety as their official Manual on Uniform 
Traffic Control Devices.
    (3) States and other Federal agencies shall adopt changes issued by 
the FHWA to the National MUTCD within two years from the effective date 
of the final rule. For those States that automatically adopt the MUTCD 
immediately upon the effective date of the latest edition or revision of 
the MUTCD, the FHWA Division Administrators have the flexibility to 
allow these States to install certain devices from existing inventory or 
previously approved construction plans that comply with the previous 
MUTCD during the two-year adoption period.
    (c) Color specifications. Color determinations and specifications of 
sign and pavement marking materials shall conform to requirements of the 
FHWA

[[Page 377]]

Color Tolerance Charts. \1\ An alternate method of determining the color 
of retroreflective sign material is provided in the appendix.
---------------------------------------------------------------------------

    \1\ Available for inspection from the Office of Traffic Operations, 
Federal Highway Administration, 1200 New Jersey Avenue, SE., Washington, 
DC.
---------------------------------------------------------------------------

    (d) Compliance--(1) Existing highways. Each State, in cooperation 
with its political subdivisions, and Federal agency shall have a program 
as required by 23 U.S.C. 402(a), which shall include provisions for the 
systematic upgrading of substandard traffic control devices and for the 
installation of needed devices to achieve conformity with the MUTCD. The 
FHWA may establish target dates of achieving compliance with changes to 
specific devices in the MUTCD.
    (2) New or reconstructed highways. Federal-aid projects for the 
construction, reconstruction, resurfacing, restoration, or 
rehabilitation of streets and highways shall not be opened to the public 
for unrestricted use until all appropriate traffic control devices, 
either temporary or permanent, are installed and functioning properly. 
Both temporary and permanent devices shall conform to the MUTCD.
    (3) Construction area activities. All traffic control devices 
installed in construction areas using Federal-aid funds shall conform to 
the MUTCD. Traffic control plans for handling traffic and pedestrians in 
construction zones and for protection of workers shall conform to the 
requirements of 23 CFR part 630, subpart J, Traffic Safety in Highway 
and Street Work Zones.

[48 FR 46776, Oct. 14, 1983, as amended at 51 FR 16834, May 7, 1986; 68 
FR 14139, Mar. 24, 2003; 71 FR 75115, Dec. 14, 2006; 74 FR 28442, June 
16, 2009; 74 FR 66861, Dec. 16, 2009]



Sec.  655.604  Achieving basic uniformity.

    (a) Programs. Programs for the orderly and systematic upgrading of 
existing traffic control devices or the installation of needed traffic 
control devices on or off the Federal-aid system should be based on 
inventories made in accordance with the Highway Safety Program Guideline 
21, ``Roadway Safety.'' These inventories provide the information 
necessary for programming traffic control device upgrading projects.
    (b) Inventory. An inventory of all traffic control devices is 
recommended in the Highway Safety Program Guideline 21, ``Roadway 
Safety.'' Highway planning and research funds and highway related safety 
grant program funds may be used in statewide or systemwide studies or 
inventories. Also, metropolitan planning (PL) funds may be used in 
urbanized areas provided the activity is included in an approved unified 
work program.

[48 FR 46776, Oct. 14, 1983, as amended at 71 FR 75115, Dec. 14, 2006]



Sec.  655.605  Project procedures.

    (a) Federal-aid highways. Federal-aid projects involving the 
installation of traffic control devices shall follow procedures as 
established in 23 CFR part 630, subpart A, Federal-Aid Programs Approval 
and Project Authorization. Simplified and timesaving procedures are to 
be used to the extent permitted by existing policy.
    (b) Off-system highways. Certain federally funded programs are 
available for installation of traffic control devices on streets and 
highways that are not on the Federal-aid system. The procedures used in 
these programs may vary from project to project but, essentially, the 
guidelines set forth herein should be used.



Sec.  655.606  Higher cost materials.

    The use of signing, pavement marking, and signal materials (or 
equipment) having distinctive performance characteristics, but costing 
more than other materials (or equipment) commonly used may be approved 
by the FHWA Division Administrator when the specific use proposed is 
considered to be in the public interest.



Sec.  655.607  Funding.

    (a) Federal-aid highways. (1) Funds apportioned or allocated under 
23 U.S.C. 104(b) are eligible to participate in projects to install 
traffic control devices in accordance with the MUTCD on newly 
constructed, reconstructed, resurfaced, restored, or rehabilitated 
highways, or on existing highways when this work is classified as 
construction in accordance with 23 U.S.C.

[[Page 378]]

101(a). Federal-aid highway funds for eligible pavement markings and 
traffic control signalization may amount to 100 percent of the 
construction cost. Federal-aid highway funds apportioned or allocated 
under other sections of 23 U.S.C. are eligible for participation in 
improvements conforming to the MUTCD in accordance with the provisions 
of applicable program regulations and directives.
    (2) Traffic control devices are eligible, in keeping with paragraph 
(a)(1) of this section, provided that the work is classified as 
construction in accordance with 23 U.S.C. 101(a) and the State or local 
agency has a policy acceptable to the FHWA Division Administrator for 
selecting traffic control devices material or equipment based on items 
such as cost, traffic volumes, safety, and expected service life. The 
State's policy should provide for cost-effective selection of materials 
which will provide for substantial service life taking into account 
expected and necessary routine maintenance. For these purposes, 
effectiveness would normally be measured in terms of durability, service 
life and/or performance of the material. Specific projects including 
material or equipment selection shall be developed in accordance with 
this policy. Proposed work may be approved on a project-by-project basis 
when the work is (i) clearly warranted, (ii) on a Federal-aid system, 
(iii) clearly identified by site, (iv) substantial in nature, and (v) of 
sufficient magnitude at any given location to warrant Federal-aid 
participation as a construction item.
    (3) The method of accomplishing the work will be in accordance with 
23 CFR part 635, subpart A, Contract Procedures.
    (b) Off-system highways. Certain Federal-aid highway funds are 
eligible to participate in traffic control device improvement projects 
on off-system highways. In addition, Federal-aid highway funds 
apportioned or allocated in 23 U.S.C. are eligible for the installation 
of traffic control devices on any public road not on the Federal-aid 
system when the installation is directly related to a traffic 
improvement project on a Federal-aid system route.



Sec. Appendix to Subpart F of Part 655--Alternate Method of Determining 
    the Color of Retroreflective Sign Materials and Pavement Marking 
                                Materials

    1. Although the FHWA Color Tolerance Charts depreciate the use of 
spectrophotometers or accurate tristimulus colorimeters for measuring 
the daytime color of retroreflective materials, recent testing has 
determined that 0/45 or 45/0 spectroradiometers and tristimulus 
colorimeters have proved that the measurements can be considered 
reliable and may be used.
    2. The daytime color of non-fluorescent retroreflective materials 
may be measured in accordance with ASTM Test Method E1349, ``Standard 
Test Method for Reflectance Factor and Color by Spectrophotometry Using 
Bidirectional Geometry'' or ASTM Test Method E 1347 (Replaces E97), 
``Standard Test Method for Color and Color-Difference Measurement by 
Tristimulus (Filter) Colorimetry.'' The latter test method specified 
bidirectional geometry for the measurement of retroreflective materials. 
The geometric conditions to be used in both test methods are 0/45 or 45/
0 circumferential illumination or viewing. Uniplanar geometry is not 
recommended for material types IV or higher (designated microprismatic). 
The CIE standard illuminant used in computing the colorimetric 
coordinates shall be D65 and the 2 Degree Standard CIE 
observer shall be used.
    3. For fluorescent retroreflective materials ASTM E991 may be used 
to determine the chromaticity provided that the D65 
illumination meets the requirements of E 991. This practice, however, 
allows only the total luminous factor to be measured. The fluorescent 
luminous factor must be determined using bispectral fluorescent 
colorimetry. Commercial instruments are available which allow such 
determination. Some testing laboratories are also equipped to perform 
these measurements.
    4. For nighttime measurements CIE Standard Illuminant A shall be 
used in computing the colorimetric coordinates and the 2 Degree Standard 
CIE Observer shall be used.
    5. Average performance sheeting is identified as Types I and II 
sheeting and high performance sheeting is identified as Type III. Super-
high intensity sheeting is identified as Types V, VI, and VII in ASTM D 
4956.
    6. The following nine tables depict the 1931 CIE Chromaticity 
Diagram x and y coordinates for the corner points defining the 
recommended color boxes in the diagram and the daytime luminance factors 
for those colors. Lines drawn between these corner points


[[Page 379]]

specify the limits of the chromaticity allowed in the 1931 Chromaticity 
Diagram. Color coordinates of samples that lie within these lines are 
acceptable. For blue and
green colors the spectrum locus is the defining limit between the corner 
points located on the spectrum locus:

Table 1 to Appendix to Part 655, Subpart F--Daytime Color Specification Limits for Retroreflective Material With
             CIE 2[deg] Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D65.
----------------------------------------------------------------------------------------------------------------
                                                            Chromaticity Coordinates
                              ----------------------------------------------------------------------------------
            Color                       1                    2                     3                   4
                              ----------------------------------------------------------------------------------
                                   x         y          x           y         y         x         x         y
----------------------------------------------------------------------------------------------------------------
White........................     0.303     0.300        0.368     0.366     0.340     0.393     0.274     0.329
Red..........................     0.648     0.351        0.735     0.265     0.629     0.281     0.565     0.346
Orange.......................     0.558     0.352        0.636     0.364     0.570     0.429     0.506     0.404
Brown........................     0.430     0.340        0.430     0.390     0.518     0.434     0.570     0.382
Yellow.......................     0.498     0.412        0.557     0.442     0.479     0.520     0.438     0.472
Green........................     0.026     0.399        0.166     0.364     0.286     0.446     0.207     0.771
Blue.........................     0.078     0.171        0.150     0.220     0.210     0.160     0.137     0.038
Light Blue...................     0.180     0.260        0.240     0.300     0.270     0.260     0.230     0.200
Purple.......................     0.302     0.064        0.310     0.210     0.380     0.255     0.468     0.140
----------------------------------------------------------------------------------------------------------------


Table 1a to Appendix to Part 655, Subpart F--Daytime Luminance Factors (%) for Retroreflective Material With CIE
               2[deg] Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D65.
----------------------------------------------------------------------------------------------------------------
                                                  Daytime Luminance Factor (Y %) by ASTM Type
                             -----------------------------------------------------------------------------------
            Color               Types I, II, III and VI     Types IV, VII, and VIII             Type V
                             -----------------------------------------------------------------------------------
                                 Minimum       Maximum       Minimum       Maximum       Minimum       Maximum
----------------------------------------------------------------------------------------------------------------
White.......................          27    ............          40    ............          15    ............
Red.........................           2.5          12             3.0          15             2.5          11
Orange......................          14            30            12            30             7.0          25
Brown.......................           4.0           9.0           1.0           6.0           1.0           9.0
Yellow......................          15            45            24            45            12            30
Green.......................           3.0           9.0           3.0          12             2.5          11
Blue........................           1.0          10             1.0          10             1.0          10
Light Blue..................          12            40            18            40             8.0          25
Purple......................           2.0          10             2.0          10             2.0          10
----------------------------------------------------------------------------------------------------------------


  Table 2 to Appendix to Part 655, Subpart F--Nighttime Color Specification Limits for Retroreflective Material
    With CIE 2[deg] Standard Observer and Observation Angle of 0.33[deg], Entrance Angle of + 5[deg] and CIE
                                             Standard Illuminant A.
----------------------------------------------------------------------------------------------------------------
                                                              Chromaticity Coordinates
                                   -----------------------------------------------------------------------------
               Color                        1                   2                  3                   4
                                   -----------------------------------------------------------------------------
                                       x         y         x         y         x        y         x         y
----------------------------------------------------------------------------------------------------------------
White.............................   0.475      0.452     0.360     0.415     0.392   0.370      0.515     0.409
Red...............................   0.650      0.348     0.620     0.348     0.712   0.2550     0.735     0.265
Orange............................   0.595      0.405     0.565     0.405     0.613   0.355      0.643     0.355
Brown.............................   0.595      0.405     0.540     0.405     0.570   0.365      0.643     0.355
Yellow............................   0.513      0.487     0.500    0.4700     0.545   0.425      0.572     0.425
Green.............................   0.007      0.570     0.200     0.500     0.322   0.590      0.193     0.782
Blue..............................   0.033      0.370     0.180     0.370     0.230   0.240      0.091     0.133
Purple............................   0.355      0.088     0.385     0.288     0.500   0.350      0.635     0.221
                                   -----------------------------------------------------------------------------
Light Blue........................               Chromaticity coordinates are yet to be determined.
                                   -----------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Note: Materials used as High-Conspicuity, Retroreflective Traffic Signage Materials shall meet the requirements
  for Daytime Color Specification Limits, Daytime Luminance Factors and Nighttime Color Specification Limits for
  Fluorescent Retroreflective Material, as described in Tables 3, 3a, and 4, throughout the service life of the
  sign.


[[Page 380]]


 Table 3 to Appendix to Part 655, Subpart F--Daytime Color Specification Limits for Fluorescent Retroreflective
      Material with CIE 2[deg] Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D65.
----------------------------------------------------------------------------------------------------------------
                                                             Chromaticity Coordinates
                                 -------------------------------------------------------------------------------
              Color                        1                   2                   3                   4
                                 -------------------------------------------------------------------------------
                                      x         y         x         y         x         y         x         y
----------------------------------------------------------------------------------------------------------------
Fluorescent Orange..............     0.583     0.416     0.535     0.400     0.595     0.351     0.645     0.355
Fluorescent Yellow..............     0.479     0.520     0.446     0.483     0.512     0.421     0.557     0.442
Fluorescent Yellow-Green........     0.387     0.610     0.369      .546      .428      .496     0.460     0.540
Fluorescent Green...............     0.210     0.770     0.232     0.656     0.320     0.590     0.320     0.675
Fluorescent Pink................     0.450     0.270     0.590     0.350     0.644     0.290     0.536     0.230
Fluorescent Red.................     0.666     0.334     0.613     0.333     0.671     0.275     9.735     0.265
----------------------------------------------------------------------------------------------------------------


   Table 3a to Appendix to Part 655, Subpart F--Daytime Luminance Factors (%) for Fluorescent Retroreflective
      Material With CIE 2[deg] Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D65.
----------------------------------------------------------------------------------------------------------------
                                                                                   Luminance Factor Limits (Y)
                                     Color                                      --------------------------------
                                                                                    Min        Max        YF*
----------------------------------------------------------------------------------------------------------------
Fluorescent Orange.............................................................         25       None         15
Fluorescent Yellow.............................................................         45       None         20
Fluorescent Yellow-Green.......................................................         60       None         20
Fluorescent Green..............................................................         20         30         12
Fluorescent Pink...............................................................         25       None         15
Fluorescent Red................................................................         20         30         15
----------------------------------------------------------------------------------------------------------------
*Fluorescence luminance factors (YF) are typical values, and are provided for quality assurance purposes only.
  YF shall not be used as a measure of performance during service.


Table 4 to Appendix to Part 655, Subpart F--Nighttime Color Specification Limits for Fluorescent Retroreflective
  Material With CIE 2[deg] Standard Observer and Observation Angle of 0.33[deg], Entrance Angle of + 5[deg] and
                                           CIE Standard Illuminant A.
----------------------------------------------------------------------------------------------------------------
                                                             Chromaticity Coordinates
                                 -------------------------------------------------------------------------------
              Color                        1                   2                   3                   4
                                 -------------------------------------------------------------------------------
                                      x         y         x         y         x         y         x         y
----------------------------------------------------------------------------------------------------------------
Fluorescent Orange..............     0.625     0.375     0.589     0.376     0.636     0.330     0.669     0.331
Fluorescent Yellow..............     0.554     0.445     0.526     0.437     0.569     0.394     0.610     0.390
Fluorescent Yellow-Green........     0.480     0.520     0.473     0.490     0.523     0.440     0.550     0.449
Fluorescent Green...............     0.007     0.570     0.200     0.500     0.322     0.590     0.193     0.782
Fluorescent Red.................     0.680     0.320     0.645     0.320     0.712     0.253     0.735     0.265
----------------------------------------------------------------------------------------------------------------


   Table 5 to Appendix to Part 655, Subpart F--Daytime Color Specification Limits for Retroreflective Pavement
  Marking Material With CIE 2[deg] Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant D65.
----------------------------------------------------------------------------------------------------------------
                                                             Chromaticity Coordinates
                                 -------------------------------------------------------------------------------
              Color                        1                   2                   3                   4
                                 -------------------------------------------------------------------------------
                                      x         y         x         y         x         y         x         y
----------------------------------------------------------------------------------------------------------------
White...........................     0.355     0.355     0.305     0.305     0.285     0.325     0.335     0.375
Yellow..........................     0.560     0.440     0.490     0.510     0.420     0.440     0.460     0.400
Red.............................     0.480     0.300     0.690     0.315     0.620     0.380     0.480     0.360
Blue............................     0.105     0.100     0.220     0.180     0.200     0.260     0.060     0.220
Purple..........................     0.300     0.064     0.309     0.260     0.362     0.295     0.475     0.144
----------------------------------------------------------------------------------------------------------------


[[Page 381]]


 Table 5a to Appendix to Part 655, Subpart F--Daytime Luminance Factors
    (%) for Retroreflective Pavement Marking Material With CIE 2[deg]
 Standard Observer and 45/0 (0/45) Geometry and CIE Standard Illuminant
                                  D65.
------------------------------------------------------------------------
                                                 Luminance Factor (Y%)
                    Color                    ---------------------------
                                                 Minimum       Maximum
------------------------------------------------------------------------
White.......................................            35
Yellow......................................            25
Red.........................................             6            15
Blue........................................             5            14
Purple......................................             5            15
------------------------------------------------------------------------


  Table 6 to Appendix to Part 655, Subpart F--Nightime Color Specification Limits for Retroreflective Pavement
     Marking Material With CIE 2[deg] Standard Observer, Observation Angle of 1.05[deg], Entrance Angle of +
                                    88.76[deg] and CIE Standard Illuminant A.
----------------------------------------------------------------------------------------------------------------
                                                             Chromaticity Coordinates
                                 -------------------------------------------------------------------------------
              Color                        1                   2                   3                   4
                                 -------------------------------------------------------------------------------
                                      x         y         x         y         x         y         x         y
----------------------------------------------------------------------------------------------------------------
White...........................     0.480     0.410     0.430     0.380     0.405     0.405     0.455     0.435
Yellow..........................     0.575     0.425     0.508     0.415     0.473     0.453     0.510     0.490
Purple..........................     0.338     0.080     0.425     0.365     0.470     0.385     0.635     0.221
----------------------------------------------------------------------------------------------------------------
Note: Luminance factors for retroreflective pavement marking materials are for materials as they are intended to
  be used. For paint products, that means inclusion of glass beads and/or other retroreflective components.


[67 FR 49572, July 31, 2002, as amended at 67 FR 70163, Nov. 21, 2002; 
68 FR 65582, 65583, Nov. 20, 2003; 74 FR 66862, 66863, Dec. 16, 2009]

Subpart G [Reserved]



PART 656_CARPOOL AND VANPOOL PROJECTS--Table of Contents



Sec.
656.1 Purpose.
656.3 Policy.
656.5 Eligibility.
656.7 Determination of an exception.

    Authority: 23 U.S.C. 146 and 315; sec. 126 of the Surface 
Transportation Assistance Act of 1978, Pub. L. 95-599, 92 Stat. 2689; 49 
CFR 1.48(b).

    Source: 47 FR 43024, Sept. 30, 1982, unless otherwise noted.



Sec.  656.1  Purpose.

    The purpose of this regulation is to prescribe policies and general 
procedures for administering a program of ridesharing projects using 
Federal-aid primary, secondary, and urban system funds.



Sec.  656.3  Policy.

    Section 126(d) of the Surface Transportation Assistance Act of 1978 
declares that special effort should be made to promote commuter modes of 
transportation which conserve energy, reduce pollution, and reduce 
traffic congestion.



Sec.  656.5  Eligibility.

    (a) Projects which promote ridesharing programs need not be located 
on but must serve a Federal-aid system to be eligible for Federal-aid 
primary, secondary, or urban system funds depending on the system 
served. The Federal share payable will be in accordance with the 
provisions of 23 U.S.C. 120. Except for paragraph (c)(3) of this 
section, for all purposes of this regulation the term carpool includes 
vanpool.
    (b) Projects shall not be approved under this regulation if they 
will have an adverse effect on any mass transportation system.
    (c) The following types of projects and work are considered eligible 
under this program:
    (1) Systems, whether manual or computerized, for locating potential 
participants in carpools and informing them of the opportunities for 
participation. Eligible costs for such systems may include costs of use 
or rental of computer hardware, costs of software, and installation 
costs (including both labor and other related items).

[[Page 382]]

    (2) Specialized procedures to provide carpooling opportunities to 
elderly or handicapped persons.
    (3) The costs of acquiring vanpool vehicles and actual financial 
losses that occur when the operation of any vanpool is aborted before 
the scheduled termination date for the reason, concurred in by the 
State, that its continuation is no longer productive. The cost of 
acquiring a vanpool vehicle is eligible under the following conditions:
    (i) The vanpool vehicle is a four-wheeled vehicle manufactured for 
use on public highways for transportation of 7-15 passengers (no 
passenger cars which do not meet the 7-15 criteria and no buses); and
    (ii) Provision is made for repayment of the acquisition cost to the 
project within the passenger-service life of the vehicle. Repayment may 
be accomplished through the charging of a reasonable user fee based on 
an estimated number of riders per vehicle and the cost of reasonable 
vehicle depreciation, operation, and maintenance. Repayment is not 
required under the following conditions:
    (A) When vehicles are purchased as demonstrator vans for use as a 
marketing device. Vehicles procured for this purpose should be used to 
promote the vanpool concept among employees, employers, and other groups 
by allowing potential riders and sponsors to examine commuter vans; or
    (B) When vehicles are purchased for use on a trial commuting basis 
to enable people to experience vanpooling first hand. The trial period 
must be limited to a maximum of 2 months. That part of the user fee 
normally collected to cover the capital or ownership cost of the van 
would be eligible for reimbursement as a promotional cost during the 
limited trial period. As with established vanpool service, all vehicle 
operating costs must be borne by the user(s) during the trial period.
    (4) Work necessary to designate existing highway lanes as 
preferential carpool lanes or bus and carpool lanes. Eligible work may 
include preliminary engineering to determine traffic flow and design 
criteria, signing, pavement markings, traffic control devices, and minor 
physical modifications to permit the use of designated lanes as 
preferential carpool lanes or bus and carpool lanes. Such improvements 
on any public road may be approved if such projects facilitate more 
efficient use of any Federal-aid highway. Eligible costs may also 
include costs of initial inspection or monitoring of use, including 
special equipment, to ensure that the high occupancy vehicle (HOV) lanes 
designation is effective and that the project is fully developed and 
operating properly. While no fixed time limit is being arbitrarily 
prescribed for the inspection and monitoring period, it is intended that 
this activity be conducted as soon as possible to evaluate the 
effectiveness of the project and does not extend indefinitely nor become 
a part of routine facility operations.
    (5) Signing of and modifications to existing facilities to provide 
preferential parking for carpools inside or outside the central business 
district. Eligible costs may include trail blazers, on-site signs 
designating highway interchange areas or other existing publicly or 
privately owned facilities as preferential parking for carpool 
participants, and initial or renewal costs for leasing parking space or 
acquisition or easements or restrictions, as, for example, at shopping 
centers and public or private parking facilities. The lease or 
acquisition cost may be computed on the demonstrated reduction in the 
overall number of vehicles using the designated portion of a commercial 
facility, but not on a reduction of the per-vehicle user charge for 
parking.
    (6) Construction of carpool parking facilities outside the central 
business district. Eligible costs may include acquisition of land and 
normal construction activities, including installation of lighting and 
fencing, trail blazers, on-site signing, and passenger shelters. Such 
facilities need not be located in conjunction with any existing or 
planned mass transportation service, but should be designed so that the 
facility could accommodate mass transportation in the event such service 
may be developed. Except for the requirement of the availability of 
mass/public transportation facilities, fringe parking construction under 
this section shall be subject to the provisions of 23 CFR part 810.106.

[[Page 383]]

    (7) Reasonable public information and promotion expenses, including 
personnel costs, incurred in connection with any of the other eligible 
items mentioned herein.



Sec.  656.7  Determination of an exception.

    (a) The FHWA has determined under provisions of 23 U.S.C. 146(b) 
that an exceptional situation exists in regard to the funding of 
carpools so as to allow the State to contribute as its share of the non-
Federal match essential project-related work and services performed by 
local agencies and private organizations when approved and authorized in 
accordance with regular Federal-aid procedures. The cost of such work 
must be properly valued, supportable and verifiable in order for 
inclusion as an eligible project cost. Examples of such contributed work 
and services include: public service announcements, computer services, 
and project-related staff time for administration by employees of public 
and private organizations.
    (b) This determination is based on: (1) The nature of carpool 
projects to provide a variety of services to the public; (2) the fact 
that carpool projects are labor intensive and require professional and 
specialized technical skills; (3) the extensive use of joint public and 
private endeavors; and (4) the fact that project costs involve the 
acquisition of capital equipment as opposed to construction of fixed 
items.
    (c) This exception is limited to carpool projects and therefore is 
not applicable to other Federal-aid projects. The exception does not 
affect or replace the standard Federal-aid funding procedures or real 
property acquisition procedures and requirements, part 712, The 
Acquisition Function.



PART 657_CERTIFICATION OF SIZE AND WEIGHT ENFORCEMENT--Table of Contents



Sec.
657.1 Purpose.
657.3 Definitions.
657.5 Policy.
657.7 Objective.
657.9 Formulation of a plan for enforcement.
657.11 Evaluation of operations.
657.13 Certification requirement.
657.15 Certification content.
657.17 Certification submittal.
657.19 Effect of failure to certify or to enforce State laws adequately.
657.21 Procedure for reduction of funds.

Appendix to Part 657--Guidelines To Be Used in Developing Enforcement 
          Plans and Certification Evaluation

    Authority: 23 U.S.C. 127, 141 and 315; 49 U.S.C. 31111, 31113 and 
31114; sec. 1023, Pub. L. 102-240, 105 Stat. 1914; and 49 CFR 
1.48(b)(19), (b)(23), (c)(1) and (c)(19).

    Source: 45 FR 52368, Aug. 7, 1980; 62 FR 62261, Nov. 21, 1997, 
unless otherwise noted.
    Note: The recordkeeping requirements contained in this part have 
been approved by the Office of Management and Budget under control 
number 2125-0034.



Sec.  657.1  Purpose.

    To prescribe requirements for administering a program of vehicle 
size and weight enforcement on the Interstate System, and those routes 
which, prior to October 1, 1991, were designated as part of the Federal-
aid primary, Federal-aid secondary, or Federal-aid urban systems, 
including the required annual certification by the State.

[72 FR 7747, Feb. 20, 2007]



Sec.  657.3  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Enforcing or Enforcement means all actions by the State to obtain 
compliance with size and weight requirements by all vehicles operating 
on the Interstate System and those roads which, prior to October 1, 
1991, were designated as part of the Federal-aid Primary, Federal-aid 
Secondary, or Federal-aid Urban Systems.
    Urbanized area means an area with a population of 50,000 or more.

[72 FR 7747, Feb. 20, 2007]



Sec.  657.5  Policy.

    Federal Highway Administration (FHWA) policy is that each State 
enforce vehicle size and weight laws to assure that violations are 
discouraged and that vehicles traversing the highway system do not 
exceed the limits specified by law. These size and weight limits are 
based upon design specifications and safety considerations, and 
enforcement shall be developed and

[[Page 384]]

maintained both to prevent premature deterioration of the highway 
pavement and structures and to provide a safe driving environment.



Sec.  657.7  Objective.

    The objective of this regulation is the development and operation by 
each State of an enforcement process which identifies vehicles of 
excessive size and weight and provides a systematic approach to 
eliminate violations and thus improve conditions.



Sec.  657.9  Formulation of a plan for enforcement.

    (a) Each State shall develop a plan for the maintenance of an 
effective enforcement process. The plan shall describe the procedures, 
resources, and facilities which the State intends to devote to the 
enforcement of its vehicle size and weight laws. Each State plan must be 
accepted by the FHWA and will then serve as a basis by which the annual 
certification of enforcement will be judged for adequacy.
    (b) The plan shall discuss the following subjects:
    (1) Facilities and resources. (i) No program shall be approved which 
does not utilize a combination of at least two of the following listed 
devices to deter evasion of size and weight measurement in sufficient 
quantity to cover the FA system: fixed platform scales; portable wheel 
weigher scales; semiportable or ramp scales; WIM equipment.
    (ii) Staff assigned to the program, identified by specific agency. 
Where more than one State agency has weight enforcement responsibility, 
the lead agency should be indicated.
    (2) Practices and procedures. (i) Proposed plan of operation, 
including geographical coverage and hours of operation in general terms.
    (ii) Policy and practices with respect to overweight violators, 
including off-loading requirements for divisible loads. In those States 
in which off-loading is mandatory by law, an administrative variance 
from the legal requirement shall be fully explained. In those States in 
which off-loading is permissive administrative guidelines shall be 
included.
    (iii) Policy and practices with respect to penalties, including 
those for repeated violations. Administrative directives, booklets or 
other written criteria shall be made part of the plan submission.
    (iv) Policy and practices with respect to special permits for 
overweight. Administrative directives, booklets or other written 
criteria shall be made part of the plan submission.
    (3) Updating. Modification and/or additions to the plan based on 
experience and new developments in the enforcement program. It is 
recognized that the plan is not static and that changes may be required 
to meet changing needs.



Sec.  657.11  Evaluation of operations.

    (a) The State shall submit its enforcement plan or annual update to 
the FHWA Division Office by July 1 of each year. However, if a State's 
legislative or budgetary cycle is not consonant with that date, the FHWA 
and the State may jointly select an alternate date. In any event, a 
State must have an approved plan in effect by October 1 of each year. 
Failure of a State to submit or update a plan will result in the State 
being unable to certify in accordance with Sec.  657.13 for the period 
to be covered by the plan.
    (b) The FHWA shall review the State's operation under the accepted 
plan on a continuing basis and shall prepare an evaluation report 
annually. The State will be advised of the results of the evaluation and 
of any needed changes in the plan itself or in its implementation. 
Copies of the evaluation reports and subsequent modifications resulting 
from the evaluation shall be forwarded to the FHWA's Office of 
Operations.

[59 FR 30418, June 13, 1994, as amended at 72 FR 7747, Feb. 20, 2007]



Sec.  657.13  Certification requirement.

    Each State shall certify to the Federal Highway Administrator, 
before January 1 of each year, that it is enforcing all State laws 
respecting maximum vehicle size and weight permitted on what, prior to 
October 1, 1991, were the Federal-aid Primary,

[[Page 385]]

Secondary, and Urban Systems, including the Interstate System, in 
accordance with 23 U.S.C. 127. The States must also certify that they 
are enforcing and complying with the ISTEA freeze on the use of LCV's 
and other multi-unit vehicles. The certification shall be supported by 
information on activities and results achieved during the preceding 12-
month period ending on September 30 of each year.

[59 FR 30418, June 13, 1994]



Sec.  657.15  Certification content.

    The certification shall consist of the following elements and each 
element shall be addressed even though the response is negative:
    (a) A statement by the Governor of the State, or an official 
designated by the Governor, that the State's vehicle weight laws and 
regulations governing use of the Interstate System conform to 23 U.S.C. 
127.
    (b) A statement by the Governor of the State, or an official 
designated by the Governor, that all State size and weight limits are 
being enforced on the Interstate System and those routes which, prior to 
October 1, 1991, were designated as part of the Federal-aid Primary, 
Urban, and Secondary Systems, and that the State is enforcing and 
complying with the provisions of 23 U.S.C. 127(d) and 49 U.S.C. 31112. 
Urbanized areas not subject to State jurisdiction shall be identified. 
The statement shall include an analysis of enforcement efforts in such 
areas.
    (c) Except for Alaska and Puerto Rico, the certifying statements 
required by paragraphs (a) and (b) of this section shall be worded as 
follows (the statements for Alaska and Puerto Rico do not have to 
reference 23 U.S.C. 127(d) in (c)(2), or include paragraph (c)(3) of 
this section):

    I, (name of certifying official), (position title), of the State of 
_______ do hereby certify:

    (1) That all State laws and regulations governing vehicle size and 
weight are being enforced on those highways which, prior to October 1, 
1991, were designated as part of the Federal-aid Primary, Federal-aid 
Secondary, or Federal-aid Urban Systems;
    (2) That the State is enforcing the freeze provisions of the 
Intermodal Surface Transportation Efficiency Act of 1991 (23 U.S.C. 
127(d) and 49 U.S.C. 31112); and
    (3) That all State laws governing vehicle weight on the Interstate 
System are consistent with 23 U.S.C. 127 (a) and (b).
    (d) If this statement is made by an official other than the 
Governor, a copy of the document designating the official, signed by the 
Governor, shall also be included in the certification made under this 
part.
    (e) A copy of any State law or regulation pertaining to vehicle 
sizes and weights adopted since the State's last certification and an 
analysis of the changes made.
    (f) A report of State size and weight enforcement efforts during the 
period covered by the certification which addresses the following:
    (1) Actual operations as compared with those forecast by the plan 
submitted earlier, with particular attention to changes in or deviations 
from the operations proposed.
    (2) Impacts of the process as actually applied, in terms of changes 
in the number of oversize and/or overweight vehicles.
    (3) Measures of activity--(i) Vehicles weighed. Separate totals 
shall be reported for the annual number of vehicles weighed on fixed 
scales, on semiportable scales, on portable scales, and on WIM when used 
for enforcement.
    (ii) Penalties. Penalties reported shall include the number of 
citations or civil assessments issued for violations of each of the 
following: Axle, gross and bridge formula weight limits. The number of 
vehicles whose loads are either shifted or offloaded must also be 
reported.
    (iii) Permits. The number of permits issued for overweight loads 
shall be reported. The reported numbers shall specify permits for 
divisible and nondivisible loads and whether issued on a trip or annual 
basis.

[59 FR 30418, June 13, 1994, as amended at 62 FR 10181, Mar. 5, 1997; 72 
FR 7747, Feb. 20, 2007]


[[Page 386]]



Sec.  657.17  Certification submittal.

    (a) The Governor, or an official designated by the Governor, shall 
submit the certification to the FHWA division office prior to January 1 
of each year.
    (b) The FHWA division office shall forward the original 
certification to the FHWA's Office of Operations and one copy to the 
Office of Chief Counsel. Copies of appropriate evaluations and/or 
comments shall accompany any transmittal.

[72 FR 7747, Feb. 20, 2007]



Sec.  657.19  Effect of failure to certify or to enforce State laws adequately.

    If a State fails to certify as required by this regulation or if the 
Secretary determines that a State is not adequately enforcing all State 
laws respecting maximum vehicle sizes and weights on the Interstate 
System and those routes which, prior to October 1, 1991, were designated 
as part of the Federal-aid primary, Federal-aid secondary or Federal-aid 
urban systems, notwithstanding the State's certification, the Federal-
aid funds for the National Highway System apportioned to the State for 
the next fiscal year shall be reduced by an amount equal to 10 percent 
of the amount which would otherwise be apportioned to the State under 23 
U.S.C. 104, and/or by the amount required pursuant to 23 U.S.C. 127.

[72 FR 7747, Feb. 20, 2007]



Sec.  657.21  Procedure for reduction of funds.

    (a) If it appears to the Federal Highway Administrator that a State 
has not submitted a certification conforming to the requirements of this 
regulation, or that the State is not adequately enforcing State laws 
respecting maximum vehicle size and weight, including laws applicable to 
vehicles using the Interstate System with weights or widths in excess of 
those provided under 23 U.S.C. 127, the Federal Highway Administrator 
shall make in writing a proposed determination of nonconformity, and 
shall notify the Governor of the State of the proposed determination by 
certified mail. The notice shall state the reasons for the proposed 
determination and inform the State that it may, within 30 days from the 
date of the notice, request a hearing to show cause why it should not be 
found in nonconformity. If the State informs the Administrator before 
the end of this 30-day period that it wishes to attempt to resolve the 
matter informally, the Administrator may extend the time for requesting 
a hearing. In the event of a request for informal resolution, the State 
and the Administrator (or designee) shall promptly schedule a meeting to 
resolve the matter.
    (b) In all instances where the State proceeds on the basis of 
informal resolution, a transcript of the conference will be made and 
furnished to the State by the FHWA.
    (1) The State may offer any information which it considers helpful 
to a resolution of the matter, and the scope of review at the conference 
will include, but not be limited to, legislative actions, including 
those proposed to remedy deficiencies, budgetary considerations, 
judicial actions, and proposals for specific actions which will be 
implemented to bring the State into compliance.
    (2) The information produced at the conference may constitute an 
explanation and offer of settlement and the Administrator will make a 
determination on the basis of the certification, record of the 
conference, and other information submitted by the State. The 
Administrator's final decision together with a copy of the transcript of 
the conference will be furnished to the State.
    (3) If the Administrator does not accept an offer of settlement made 
pursuant to paragraph (b)(2) of this section, the State retains the 
right to request a hearing on the record pursuant to paragraph (d) of 
this section, except in the case of a violation of section 127.
    (c) If the State does not request a hearing in a timely fashion as 
provided in paragraph (a) of this section, the Federal Highway 
Administrator shall forward the proposed determination of nonconformity 
to the Secretary. Upon approval of the proposed determination by the 
Secretary, the fund reduction specified by Sec.  657.19 shall be 
effected.

[[Page 387]]

    (d) If the State requests a hearing, the Secretary shall 
expeditiously convene a hearing on the record, which shall be conducted 
according to the provisions of the Administrative Procedure Act, 5 
U.S.C. 555 et seq. Based on the record of the proceeding, the Secretary 
shall determine whether the State is in nonconformity with this 
regulation. If the Secretary determines that the State is in 
nonconformity, the fund reduction specified by section 567.19 shall be 
effected.
    (e) The Secretary may reserve 10 percent of a State's apportionment 
of funds under 23 U.S.C. 104 pending a final administrative 
determination under this regulation to prevent the apportionment to the 
State of funds which would be affected by a determination of 
nonconformity.
    (f) Funds withheld pursuant to a final administrative determination 
under this regulation shall be reapportioned to all other eligible 
States one year from the date of this determination, unless before this 
time the Secretary determines, on the basis of information submitted by 
the State and the FHWA, that the State has come into conformity with 
this regulation. If the Secretary determines that the State has come 
into conformity, the withheld funds shall be released to the State.
    (g) The reapportionment of funds under paragraph (e) of this section 
shall be stayed during the pendency of any judicial review of the 
Secretary's final administrative determination of nonconformity.



     Sec. Appendix to Part 657--Guidelines To Be Used in Developing 
             Enforcement Plans and Certification Evaluation

                       A. Facilities and Equipment

    1. Permanent Scales
    a. Number
    b. Location (a map appropriately coded is suggested)
    c. Public-private (if any)
    2. Weigh-in-motion (WIM)
    a. Number
    b. Location (notation on above map is suggested)
    3. Semi-portable scales
    a. Type and number
    b. If used in sets, the number comprising a set
    4. Portable Scales
    a. Type and number
    b. If used in sets, the number comprising a set

                              B. Resources

    1. Agencies involved (i.e., highway agency, State police, motor 
vehicle department, etc.)
    2. Personnel--numbers from respective agencies assigned to weight 
enforcement
    3. Funding
    a. Facilities
    b. Personnel

                              C. Practices

    1. Proposed schedule of operation of fixed scale locations in 
general terms
    2. Proposed schedule of deployment of portable scale equipment in 
general terms
    3. Proposed schedule of deployment of semi-portable equipment in 
general terms
    4. Strategy for prevention of bypassing of fixed weighing facility 
location
    5. Proposed action for implementation of off-loading, if applicable

                                D. Goals

    1. Short term--the year beginning
October 1 following submission of a vehicle size and weight enforcement 
plan
    2. Medium term--2-4 years after submission of the enforcement plan
    3. Long term--5 years beyond the submission of the enforcement plan
    4. Provision for annual review and update of vehicle size and weight 
enforcement plan

                              E. Evaluation

    The evaluation of an existing plan, in comparison to goals for 
strengthening the enforcement program, is a difficult task, especially 
since there is very limited experience nationwide.
    The FHWA plans to approach this objective through a continued 
cooperative effort with State and other enforcement agencies by 
gathering useful information and experience on elements of enforcement 
practices that produce positive results.
    It is not considered practicable at this time to establish objective 
minimums, such as the number of vehicles to be weighed by each State, as 
a requirement for satisfactory compliance. However, the States will want 
to know as many specifics as possible about what measuring tools will be 
used to evaluate their annual certifications for adequacy.
    The above discussion goes to the heart of the question concerning 
numerical criteria. The assumption that a certain number of weighings 
will provide a maximum or even satisfactory deterrent is not 
supportable. The enforcement of vehicle size and weight laws requires 
that vehicles be weighed but it does not logically follow that the more 
vehicles weighed, the more effective the enforcement program, especially 
if the vehicles are

[[Page 388]]

weighed at a limited number of fixed locations. A ``numbers game'' does 
not necessarily provide a deterrent to deliberate overloading. 
Consistent, vigorous enforcement activities, the certainty of 
apprehension and of penalty, the adequacy of the penalty, even the 
publicity given these factors, may be greater deterrents than the number 
of weighings alone.
    In recognizing that all States are unique in character, there are 
some similarities between certain States and useful perspectives may be 
obtained by relating their program elements. Some comparative factors 
are:
    1. Truck registration (excluding pickups and panels)
    2. Population
    3. Average Daily Traffic (ADT) for trucks on FA highways
    4. To total mileage of Federal-aid highways
    5. Geographic location of the State
    6. Annual truck miles traveled in State
    7. Number of truck terminals (over 6 doors)
    8. Vehicle miles of intrastate truck traffic
    Quantities relating to the above items can become factors that in 
the aggregate are descriptive of a State's characteristics and can 
identify States that are similar from a trucking operation viewpoint. 
This is especially applicable for States within the same area.
    After States with similar truck traffic operations have been 
identified in a regional area, another important variable must be 
considered: the type of weighing equipment that has been or is proposed 
for predominant use in the States. When data become available on the 
number of trucks weighed by each type of scale (fixed, portable, semi-
portable, etc.) some indicators will be developed to relate one State's 
effort to those of other States. The measures of activity that are a 
part of each certification submitted will provide a basis for the 
development of more precise numerical criteria by which an enforcement 
plan and its activities can be judged for adequacy.
    Previous certifications have provided information from which the 
following gross scale capabilities have been derived.

                      Potential Weighing Capacities

    1. Permanent scales 60 veh/hr.
    2. Weigh-in-motion scales 100 veh/hr.
    3. Semi-portable scales 25 veh/hr.
    4. Portable scales 3 veh/hr.
    To meet the mandates of Federal and other laws regarding truck size 
and weight enforcement, the FHWA desires to become a resource for all 
States in achieving a successful exchange of useful information. Some 
States are more advanced in their enforcement activities. Some have 
special experience with portable, semi-portable, fixed, or weighing-in-
motion devices. Others have operated permanent scales in combination 
with concentrated safety inspection programs. The FHWA is interested in 
information on individual State experiences in these specialized areas 
as part of initial plan submissions. If such information has recently 
been furnished to the Washington Headquarters, an appropriate cross 
reference should be included on the submission.
    It is the policy of the FHWA to avoid red tape, and information 
volunteered by the States will be of assistance in meeting many needs. 
The ultimate goal in developing information through the evaluation 
process is to assemble criteria for a model enforcement program.



PART 658_TRUCK SIZE AND WEIGHT, ROUTE DESIGNATIONS_LENGTH, WIDTH 
AND WEIGHT LIMITATIONS--Table of Contents



Sec.
658.1 Purpose.
658.3 Policy statement.
658.5 Definitions.
658.7 Applicability.
658.9 National Network criteria.
658.11 Additions, deletions, exceptions, and restrictions.
658.13 Length.
658.15 Width.
658.16 Exclusions from length and width determinations.
658.17 Weight.
658.19 Reasonable access.
658.21 Identification of National Network.
658.23 LCV freeze; cargo-carrying unit freeze.

Appendix A to Part 658--National Network--Federally-Designated Routes
Appendix B to Part 658--Grandfathered Semitrailer Lengths
Appendix C to Part 658--Trucks Over 80,000 Pounds on the Interstate 
          System and Trucks Over STAA Lengths on the National Network
Appendix D to Part 658--Devices That Are Excluded From Measurement of 
          the Length or Width of a Commercial Motor Vehicle

    Authority: 23 U.S.C. 127 and 315; 49 U.S.C. 31111, 31112, and 31114; 
sec. 347, Pub. L. 108-7, 117 Stat. 419; sec. 756, Pub. L. 109-58, 119 
Stat. 829; sec. 1309, Pub. L. 109-59, 119 Stat. 1219; sec. 115, Pub. L. 
109-115, 119 Stat. 2408; sec. 5516, Pub. L. 114-94, 129 Stat. 1312, 
1557; 49 CFR 1.81(a)(3).

    Source: 49 FR 23315, June 5, 1984, unless otherwise noted.

[[Page 389]]



Sec.  658.1  Purpose.

    The purpose of this part is to identify a National Network of 
highways available to vehicles authorized by provisions of the Surface 
Transportation Assistance Act of 1982 (STAA) as amended, and to 
prescribe national policies that govern truck and bus size and weight.

[59 FR 30419, June 13, 1994]



Sec.  658.3  Policy statement.

    The Federal Highway Administration's (FHWA) policy is to provide a 
safe and efficient National Network of highways that can safely and 
efficiently accommodate the large vehicles authorized by the STAA. This 
network includes the Interstate System plus other qualifying Federal-aid 
Primary System Highways.



Sec.  658.5  Definitions.

    Automobile transporters. Any vehicle combination designed and used 
specifically for the transport of assembled highway vehicles, including 
truck camper units.
    Beverage semitrailer. A van-type, drop-frame semitrailer designed 
and used specifically for the transport and delivery of bottled or 
canned beverages (i.e., liquids for drinking, including water) which has 
side-only access for loading and unloading this commodity. Semitrailer 
has the same meaning as in 49 CFR 390.5.
    Boat transporters. Any vehicle combination designed and used 
specifically to transport assembled boats and boat hulls. Boats may be 
partially disassembled to facilitate transporting.
    Bridge gross weight formula. The standard specifying the 
relationship between axle (or groups of axles) spacing and the gross 
weight that (those) axle(s) may carry expressed by the formula:
[GRAPHIC] [TIFF OMITTED] TC14OC91.011


where W = overall gross weight on any group of two or more consecutive 
          axles to the nearest 500 pounds, L = distance in feet between 
          the extreme of any group of two or more consecutive axles, and 
          N = number of axles in the group under consideration.

    Cargo-carrying unit. As used in this part, cargo-carrying unit means 
any portion of a commercial motor vehicle (CMV) combination (other than 
a truck tractor) used for the carrying of cargo, including a trailer, 
semitrailer, or the cargo-carrying section of a single-unit truck. The 
length of the cargo carrying units of a CMV with two or more such units 
is measured from the front of the first unit to the rear of the last 
[including the hitch(es) between the units].
    Commercial motor vehicle. For purposes of this regulation, a motor 
vehicle designed or regularly used to carry freight, merchandise, or 
more than ten passengers, whether loaded or empty, including buses, but 
not including vehicles used for vanpools, or recreational vehicles 
operating under their own power.
    Drive-away saddlemount vehicle transporter combination. The term 
drive-away saddlemount vehicle transporter combination means a vehicle 
combination designed and specifically used to tow up to 3 trucks or 
truck tractors, each connected by a saddle to the frame or fifth wheel 
of the forward vehicle of the truck tractor in front of it. Such 
combinations may include up to one fullmount.
    Dromedary unit. A box, deck, or plate mounted behind the cab and 
forward of the fifth wheel on the frame of the power unit of a truck 
tractor-semitrailer combination.
    Federal-aid Primary System. The Federal-aid Highway System of rural 
arterials and their extensions into or through urban areas in existence 
on June 1, 1991, as described in 23 U.S.C. 103(b) in effect at that 
time.
    Fullmount. A fullmount is a smaller vehicle mounted completely on 
the frame of either the first or last vehicle in a saddlemount 
combination.
    Interstate System. The National System of Interstate and Defense 
Highways described in sections 103(e) and 139(a) of Title 23, U.S.C. For 
the purpose of this regulation this system includes toll roads 
designated as Interstate.

[[Page 390]]

    Length exclusive devices. Devices excluded from the measurement of 
vehicle length. Such devices shall not be designed or used to carry 
cargo.
    Longer combination vehicle (LCV). As used in this part, longer 
combination vehicle means any combination of a truck tractor and two or 
more trailers or semitrailers which operates on the Interstate System at 
a gross vehicle weight greater than 80,000 pounds.
    Maxi-cube vehicle. A maxi-cube vehicle is a combination vehicle 
consisting of a power unit and a trailing unit, both of which are 
designed to carry cargo. The power unit is a nonarticulated truck with 
one or more drive axles that carries either a detachable or a 
permanently attached cargo box. The trailing unit is a trailer or 
semitrailer with a cargo box so designed that the power unit may be 
loaded and unloaded through the trailing unit. Neither cargo box shall 
exceed 34 feet in length, excluding drawbar or hitching device; the 
distance from the front of the first to the rear of the second cargo box 
shall not exceed 60 feet, including the space between the cargo boxes; 
and the overall length of the combination vehicle shall not exceed 65 
feet, including the space between the cargo boxes.
    Motor carrier of passengers. As used in this part, a motor carrier 
of passengers is a common, contract, or private carrier using a bus to 
provide commercial transportation of passengers. Bus has the same 
meaning as in 49 CFR 390.5.
    National Network (NN). The composite of the individual network of 
highways from each State on which vehicles authorized by the provisions 
of the STAA are allowed to operate. The network in each State includes 
the Interstate System, exclusive of those portions excepted under Sec.  
658.11(f) or deleted under Sec.  658.11(d), and those portions of the 
Federal-aid Primary System in existence on June 1, 1991, set out by the 
FHWA in appendix A to this part.
    Nondivisible load or vehicle.
    (1) As used in this part, nondivisible means any load or vehicle 
exceeding applicable length or weight limits which, if separated into 
smaller loads or vehicles, would:
    (i) Compromise the intended use of the vehicle, i.e., make it unable 
to perform the function for which it was intended;
    (ii) Destroy the value of the load or vehicle, i.e., make it 
unusable for its intended purpose; or
    (iii) Require more than 8 workhours to dismantle using appropriate 
equipment. The applicant for a nondivisible load permit has the burden 
of proof as to the number of workhours required to dismantle the load.
    (2) A State may treat as nondivisible loads or vehicles: emergency 
response vehicles, including those loaded with salt, sand, chemicals or 
a combination thereof, with or without a plow or blade attached in 
front, and being used for the purpose of spreading the material on 
highways that are or may become slick or icy; casks designed for the 
transport of spent nuclear materials; and military vehicles transporting 
marked military equipment or materiel.
    Over-the-road bus. The term over-the-road bus means a bus 
characterized by an elevated passenger deck located over a baggage 
compartment, and typically operating on the Interstate System or roads 
previously designated as making up the Federal-aid Primary System.
    Saddlemount combination. A saddlemount combination is a combination 
of vehicles in which a truck or truck tractor tows one or more trucks or 
truck tractors, each connected by a saddle to the frame or fifth wheel 
of the vehicle in front of it. The saddle is a mechanism that connects 
the front axle of the towed vehicle to the frame or fifth wheel of the 
vehicle in front and functions like a fifth wheel kingpin connection. 
When two vehicles are towed in this manner the combination is called a 
double saddlemount combination. When three vehicles are towed in this 
manner, the combination is called a triple saddlemount combination.
    Single axle weight. The total weight transmitted to the road by all 
wheels whose centers may be included between two parallel transverse 
vertical planes 40 inches apart, extending across the full width of the 
vehicle. The Federal single axle weight limit on the Interstate System 
is 20,000 pounds.

[[Page 391]]

    Special mobile equipment. Every self-propelled vehicle not designed 
or used primarily for the transportation of persons or property and 
incidentally operated or moved over the highways, including military 
equipment, farm equipment, implements of husbandry, road construction or 
maintenance machinery, and emergency apparatus which includes fire and 
police emergency equipment. This list is partial and not exclusive of 
such other vehicles as may fall within the general terms of this 
definition.
    Stinger-steered combination. A truck tractor semitrailer wherein the 
fifth wheel is located on a drop frame located behind and below the 
rear-most axle of the power unit.
    Tandem axle weight. The total weight transmitted to the road by two 
or more consecutive axles whose centers may be included between parallel 
transverse vertical planes spaced more than 40 inches and not more than 
96 inches apart, extending across the full width of the vehicle. The 
Federal tandem axle weight limit on the Interstate System is 34,000 
pounds.
    Terminal. The term terminal as used in this regulation means, at a 
minimum, any location where:
    Freight either originates, terminates, or is handled in the 
transportation process; or
    Commercial motor carriers maintain operating facilities.
    Tractor or Truck tractor. The noncargo carrying power unit that 
operates in combination with a semitrailer or trailer, except that a 
truck tractor and semitrailer engaged in the transportation of 
automobiles may transport motor vehicles on part of the power unit, and 
a truck tractor equipped with a dromedary unit operating in combination 
with a semitrailer transporting Class 1 explosives and/or any munitions 
related security material as specified by the U.S. Department of Defense 
in compliance with 49 CFR 177.835 may use the dromedary unit to carry a 
portion of the cargo.
    Truck-tractor semitrailer-semitrailer. In a truck-tractor 
semitrailer-semitrailer combination vehicle, the two trailing units are 
connected with a ``B-train'' assembly. The B-train assembly is a rigid 
frame extension attached to the rear frame of a first semitrailer which 
allows for a fifth wheel connection point for the second semitrailer. 
This combination has one less articulation point than the conventional 
``A dolly'' connected truck-tractor semitrailer-trailer combination.
    Truck-trailer boat transporter. A boat transporter combination 
consisting of a straight truck towing a trailer using typically a ball 
and socket connection. The trailer axle(s) is located substantially at 
the trailer center of gravity (rather than the rear of the trailer) but 
so as to maintain a downward force on the trailer tongue.
    Width exclusive devices. Devices excluded from the measurement of 
vehicle width. Such devices shall not be designed or used to carry 
cargo.

[49 FR 23315, June 5, 1984]

    Editorial Note: For Federal Register citations affecting Sec.  
658.5, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.govinfo.gov.



Sec.  658.7  Applicability.

    Except as limited in Sec.  658.17(a) the provisions of this part are 
applicable to the National Network and reasonable access thereto. 
However, nothing in this regulation shall be construed to prevent any 
State from applying any weight and size limits to other highways, except 
when such limits would deny reasonable access to the National Network.



Sec.  658.9  National Network criteria.

    (a) The National Network listed in the appendix to this part is 
available for use by commercial motor vehicles of the dimensions and 
configurations described in Sec. Sec.  658.13 and 658.15.
    (b) For those States with detailed lists of individual routes in the 
appendix, the routes have been designated on the basis of their general 
adherence to the following criteria.
    (1) The route is a geometrically typical component of the Federal-
Aid Primary System, serving to link principal cities and densely 
developed portions of the States.
    (2) The route is a high volume route utilized extensively by large 
vehicles for interstate commerce.

[[Page 392]]

    (3) The route does not have any restrictions precluding use by 
conventional combination vehicles.
    (4) The route has adequate geometrics to support safe operations, 
considering sight distance, severity and length of grades, pavement 
width, horizontal curvature, shoulder width, bridge clearances and load 
limits, traffic volumes and vehicle mix, and intersection geometry.
    (5) The route consists of lanes designed to be a width of 12 feet or 
more or is otherwise consistent with highway safety.
    (6) The route does not have any unusual characteristics causing 
current or anticipated safety problems.
    (c) For those States where State law provides that STAA authorized 
vehicles may use all or most of the Federal-Aid Primary system, the 
National Network is no more restrictive than such law. The appendix 
contains a narrative summary of the National Network in those States.

[49 FR 23315, June 5, 1984, as amended at 53 FR 12148, Apr. 13, 1988]



Sec.  658.11  Additions, deletions, exceptions, and restrictions.

    To ensure that the National Network remains substantially intact, 
FHWA retains the authority to rule upon all requested additions to and 
deletions from the National Network as well as requests for the 
imposition of certain restrictions. FHWA approval or disapproval will 
constitute the final decision of the U.S. Department of Transportation.
    (a) Additions. (1) Requests for additions to the National Network, 
including justification, shall have the endorsement of the Governor or 
the Governor's authorized representative, and be submitted in writing to 
the appropriate FHWA Division Office. Proposals for addition of routes 
to the National Network shall be accompanied by an analysis of 
suitability based on the criteria in Sec.  658.9.
    (2) Proposals for additions that meet the criteria of Sec.  658.9 
and have the endorsement of the Governor or the Governor's authorized 
representative will be published in the Federal Register for public 
comment as a notice of proposed rulemaking (NPRM), and if found 
acceptable, as a final rule.
    (b) Deletions--Federal-aid primary--other than interstate. Changed 
conditions or additional information may require the deletion of a 
designated route or a portion thereof. The deletion of any route or 
route segment shall require FHWA approval. Requests for deletion of 
routes from the National Network, including the reason(s) for the 
deletion, shall be submitted in writing to the appropriate FHWA Division 
Office. These requests shall be assessed on the basis of the criteria of 
Sec.  658.9. FHWA proposed deletions will be published in the Federal 
Register as a Notice of Proposed Rulemaking (NPRM).
    (c) Requests for deletion--Federal-aid primary--other than 
interstate. Requests for deletion should include the following 
information, where appropriate:
    (1) Did the route segment prior to designation carry combination 
vehicles or 102-inch buses?
    (2) Were truck restrictions in effect on the segment on January 6, 
1983? If so, what types of restrictions?
    (3) What is the safety record of the segment, including current or 
anticipated safety problems? Specifically, is the route experiencing 
above normal accident rates and/or accident severities? Does analysis of 
the accident problem indicate that the addition of larger trucks have 
aggravated existing accident problems?
    (4) What are the geometric, structural or traffic operations 
features that might preclude safe, efficient operation? Specifically 
describe lane widths, sight distance, severity and length of grades, 
horizontal curvature, shoulder width, narrow bridges, bridge clearances 
and load limits, traffic volumes and vehicle mix, intersection 
geometrics and vulnerability of roadside hardware.
    (5) Is there a reasonable alternate route available?
    (6) Are there operational restrictions that might be implemented in 
lieu of deletion?
    (d) Deletions and use restrictions--Federal-aid interstate. (1) The 
deletion of, or imposition of use restrictions on, any specific segment 
of the Interstate

[[Page 393]]

Highway System on the National Network, except as otherwise provided in 
this part, must be approved by the FHWA. Such action will be initiated 
on the FHWA's own initiative or on the request of the Governor or the 
Governor's authorized representative of the State in which the 
Interstate segment is located. Requests from the Governor or the 
Governor's authorized representative shall be submitted along with 
justification for the deletion or restriction, in writing, to the 
appropriate FHWA Division Office for transmittal to Washington 
Headquarters.
    (2) The justification accompanying a request shall be based on the 
following:
    (i) Analysis of evidence of safety problems supporting the deletion 
or restriction as identified in Sec.  658.11(c).
    (ii) Analysis of the impact on interstate commerce.
    (iii) Analysis and recommendation of any alternative routes that can 
safely accommodate commercial motor vehicles of the dimensions and 
configurations described in Sec. Sec.  658.13 and 658.15 and serve the 
area in which such segment is located.
    (iv) Evidence of consultation with the local governments in which 
the segment is located as well as the Governor or the Governor's 
authorized representative of any adjacent State that might be directly 
affected by such a deletion or restriction.
    (3) Actions to ban all commercial vehicles on portions of the 
Interstate System not excepted under Sec.  658.11(f) are considered 
deletions subject to the requirements of subsection (d) of this section.
    (4) Reasonable restrictions on the use of Interstate routes on the 
National Network by STAA-authorized vehicles related to specific travel 
lanes of multi-lane facilities, construction zones, adverse weather 
conditions or structural or clearance deficiencies are not subject to 
the requirements of paragraph (d) of this section.
    (5) Proposed deletions or restrictions will be published in the 
Federal Register as an NPRM, except in the case of an emergency deletion 
as prescribed in Sec.  658.11(e). The FHWA will consider the factors set 
out in paragraph (d)(2) of this section and the comments of interested 
parties. Any approval of deletion or restriction will be published as a 
final rule. A deletion of or restriction on a segment for reasons 
ascribable to dimensions of commercial motor vehicles described in 
either Sec.  658.13 or Sec.  658.15 shall result in a deletion or 
restriction for the purposes of both Sec. Sec.  658.13 and 658.15.
    (e) Emergency deletions. FHWA has the authority to delete any route 
from the National Network, on an emergency basis, for safety 
considerations. Emergency deletions are not considered final, and will 
be published in the Federal Register for notice and comment.
    (f) Exceptions. Those portions of the Interstate System which were 
open to traffic and on which all commercial motor vehicles were banned 
on January 6, 1983, are not included in the National Network.
    (g) Restrictions--Federal-aid primary--other than interstate. (1) 
Reasonable restrictions on the use of non-Interstate Federal-aid Primary 
routes on the National Network by STAA-authorized vehicles may be 
imposed during certain peak hours of travel or on specific travel lanes 
of multi-lane facilities. Restrictions related to construction zones, 
seasonal operation, adverse weather conditions or structural or 
clearance deficiencies may be imposed.
    (2) All restrictions on the use of the National Network based on 
hours of use by vehicles authorized by the STAA require prior FHWA 
approval. Requests for such restrictions on the National Network shall 
be submitted in writing to the appropriate FHWA Division Office. 
Approval of requests for restrictions will be contingent on the ability 
to justify significant negative impact on safety, the environment and/or 
operational efficiency.

[49 FR 23315, June 5, 1984, as amended at 53 FR 12148, Apr. 13, 1988]



Sec.  658.13  Length.

    (a) The length provisions of the STAA apply only to the following 
types of vehicle combinations:
    (1) Truck tractor-semitrailer
    (2) Truck tractor-semitrailer-trailer.

The length provisions apply only when these combinations are in use on 
the

[[Page 394]]

National Network or in transit between these highways and terminals or 
service locations pursuant to Sec.  658.19.
    (b) The length provisions referred to in paragraph (a) of this 
section include the following:
    (1) No State shall impose a length limitation of less than 48 feet 
on a semitrailer operating in a truck tractor-semitrailer combination.
    (2) No State shall impose a length limitation of less than 28 feet 
on any semitrailer or trailer operating in a truck tractor-semitrailer-
trailer combination.
    (3) No State shall impose an overall length limitation on commercial 
vehicles operating in truck tractor-semitrailer or truck tractor-
semitrailer-trailer combinations.
    (4) No State shall prohibit commercial motor vehicles operating in 
truck tractor-semitrailer-trailer combinations.
    (5) No State shall prohibit the operation of semitrailers or 
trailers which are 28\1/2\ feet long when operating in a truck tractor-
semitrailer-trailer combination if such a trailer or semitrailer was in 
actual and lawful operation on December 1, 1982, and such combination 
had an overall length not exceeding 65 feet.
    (c) State maximum length limits for semitrailers operating in a 
truck tractor-semitrailer combination and semitrailers and trailers 
operating in a truck tractor-semitrailer-trailer combination are subject 
to the following:
    (1) No State shall prohibit the use of trailers or semitrailers of 
such dimensions as those that were in actual and lawful use in such 
State on December 1, 1982, as set out in appendix B of this part.
    (2) If on December 1, 1982, State length limitations on a 
semitrailer were described in terms of the distance from the kingpin to 
rearmost axle, or end of semitrailer, the operation of any semitrailer 
that complies with that limitation must be allowed.
    (d) No State shall impose a limit of less than 45 feet on the length 
of any bus on the NN.
    (e) Specialized equipment--(1) Automobile transporters. (i) 
Automobile transporters are considered to be specialized equipment. As 
provided in Sec.  658.5, automobile transporters may carry vehicles on 
the power unit behind the cab and on an over-cab rack. No State shall 
impose an overall length limitation of less than 65 feet on traditional 
automobile transporters (5th wheel located on tractor frame over rear 
axle(s)), including ``low boys,'' or less than 75 feet on stinger-
steered automobile transporters. Paragraph (c) requires the States to 
allow operation of vehicles with the dimensions that were legal in the 
State on December 1, 1982.
    (ii) All length provisions regarding automobile transporters are 
exclusive of front and rear cargo overhang. No State shall impose a 
front overhang limitation of less than 3 feet or a rear overhang 
limitation of less than 4 feet. Extendable ramps or ``flippers'' on 
automobile transporters that are used to achieve the allowable 3-foot 
front and 4-foot rear cargo overhangs are excluded from the measurement 
of vehicle length, but must be retracted when not supporting vehicles.
    (iii) Drive-away saddlemount vehicle transporter combinations are 
considered to be specialized equipment. No State shall impose an overall 
length limit of less or more than 97 feet on such combinations. This 
provision applies to drive-away saddlemount combinations with up to 
three saddlemounted vehicles. Such combinations may include one 
fullmount. Saddlemount combinations must also comply with the applicable 
motor carrier safety regulations at 49 CFR parts 390-399.
    (2) Boat transporters. (i) Boat transporters are considered to be 
specialized equipment. As provided for automobile transporters in Sec.  
658.5, boat transporters may carry boats on the power unit so long as 
the length and width restrictions of the vehicles and load are not 
exceeded. No State shall impose an overall length limitation of less 
than 65 feet on traditional boat transporters (fifth wheel located on 
tractor frame over rear axle(s), including ``low boys,'' or less than 75 
feet on stinger-steered boat transporters. In addition, no State shall 
impose an overall length limitation of less than 65 feet on truck-
trailer boat transporters. Paragraph (c) of this section requires the 
States to

[[Page 395]]

allow operation of vehicles with the dimensions that were legal in the 
State on December 1, 1982.
    (ii) All length provisions regarding boat transporters are exclusive 
of front and rear overhang. Further, no State shall impose a front 
overhang limitation of less than three (3) feet nor a rearmost overhang 
limitation of less than four (4) feet.
    (3) Truck-tractor semitrailer-semitrailer. (i) Truck-tractor 
semitrailer-semitrailer combination vehicles are considered to be 
specialized equipment. No State shall impose a length limitation of less 
than 28 feet on any semitrailer or 28\1/2\ feet if the semitrailer was 
in legal operation on December 1, 1982, operating in a truck-tractor 
semitrailer-semitrailer combination. No State shall impose an overall 
length limitation on a truck-tractor semitrailer-semitrailer combination 
when each semitrailer length is 28 feet, or 28\1/2\ feet if 
grandfathered.
    (ii) The B-train assembly is excluded from the measurement of 
trailer length when used between the first and second trailer of a 
truck-tractor semitrailer-semitrailer combination vehicle. However, when 
there is no semitrailer mounted to the B-train assembly, it will be 
included in the length measurement of the semitrailer, the length 
limitation in this case being 48 feet, or longer if grandfathered.
    (4) Maxi-cube vehicle. No State shall impose a length limit on a 
maxi-cube vehicle, as defined in Sec.  658.5 of this part, of less than 
34 feet on either cargo box, excluding drawbar or hitching device; 60 
feet on the distance from the front of the first to the rear of the 
second cargo box, including the space between the cargo boxes; or 65 
feet on the overall length of the combination, including the space 
between the cargo boxes. The measurement for compliance with the 60- and 
65-foot distance shall include the actual distance between cargo boxes, 
measured along the centerline of the drawbar or hitching device. For 
maxi-cubes with an adjustable length drawbar or hitching device, the 60- 
and 65-foot distances shall be measured with a drawbar spacing of not 
more than 27 inches. The drawbar may be temporarily extended beyond that 
distance to maneuver or load the vehicle.
    (5) Beverage semitrailer. (i) A beverage semitrailer is specialized 
equipment if it has an upper coupler plate that extends beyond the front 
of the semitrailer, but not beyond its swing radius, as measured from 
the center line of the kingpin to a front corner of the semitrailer, 
which cannot be used for carrying cargo other than the structure of the 
semitrailer, and with the center line of the kingpin not more than 28 
feet from the rear of the semitrailer (exclusive of rear-mounted devices 
not measured in determining semitrailer length). No State shall impose 
an overall length limit on such vehicles when operating in a truck 
tractor-beverage semitrailer or truck tractor-beverage semitrailer-
beverage trailer combination on the NN.
    (ii) The beverage trailer referred to in paragraph (e)(5)(i) of this 
section means a beverage semitrailer and converter dolly. Converter 
dolly has the same meaning as in 49 CFR 393.5.
    (iii) Truck tractor-beverage semitrailer combinations shall have the 
same access to points of loading and unloading as 28-foot semitrailers 
(28.5-foot where allowed by Sec.  658.13) in 23 CFR 658.19.
    (6) Munitions carriers using dromedary equipment. A truck tractor 
equipped with a dromedary unit operating in combination with a 
semitrailer is considered to be specialized equipment, providing the 
combination is transporting Class 1 explosives and/or any munitions 
related security material as specified by the U.S. Department of Defense 
in compliance with 49 CFR 177.835. No State shall impose an overall 
length limitation of less than 75 feet on the combination while in 
operation.
    (f) A truck tractor containing a dromedary box, deck, or plate in 
legal operation on December 1, 1982, shall be permitted to continue to 
operate, notwithstanding its cargo carrying capacity, throughout its 
useful life. Proof of such legal operation on December 1, 1982, shall 
rest upon the operator of the equipment.
    (g) No State shall impose a limitation of less than 46 feet on the 
distance from the kingpin to the center of the

[[Page 396]]

rear axle on trailers or semitrailers used exclusively or primarily to 
transport vehicles in connection with motorsports competition events.
    (h) Truck-tractors, pulling 2 trailers or semitrailers, used to 
transport custom harvester equipment during harvest months within the 
State of Nebraska may not exceed 81 feet 6 inches.

[49 FR 23315, June 5, 1984, as amended at 53 FR 2597, 2599, Jan. 29, 
1988; 53 FR 25485, July 7, 1988; 53 FR 48636, Dec. 2, 1988; 55 FR 4998, 
Feb. 13, 1990; 55 FR 32399, Aug. 9, 1990; 59 FR 30419, June 13, 1994; 62 
FR 10181, Mar. 5, 1997; 63 FR 70653, Dec. 22, 1998; 67 FR 15109, Mar. 
29, 2002; 68 FR 37968, June 26, 2003; 72 FR 7748, Feb. 20, 2007]



Sec.  658.15  Width.

    (a) No State shall impose a width limitation of more or less than 
102 inches, or its approximate metric equivalent, 2.6 meters (102.36 
inches) on a vehicle operating on the National Network, except for the 
State of Hawaii, which is allowed to keep the State's 108-inch width 
maximum by virtue of section 416(a) of the STAA.
    (b) The provisions of paragraph (a) of this section do not apply to 
special mobile equipment as defined in Sec.  658.5.
    (c) Notwithstanding the provisions of this section or any other 
provision of law, a State may grant special use permits to motor 
vehicles, including manufactured housing, that exceed 102 inches in 
width.

[49 FR 23315, June 5, 1984, as amended at 59 FR 30419, June 13, 1994; 67 
FR 15110, Mar. 29, 2002; 72 FR 7748, Feb. 20, 2007]



Sec.  658.16  Exclusions from length and width determinations.

    (a) Vehicle components not excluded by law or regulation shall be 
included in the measurement of the length and width of commercial motor 
vehicles.
    (b) The following shall be excluded from either the measured length 
or width of commercial motor vehicles, as applicable:
    (1) Rear view mirrors, turn signal lamps, handholds for cab entry/
egress, splash and spray suppressant devices, load induced tire bulge;
    (2) All non-property-carrying devices, or components thereof--
    (i) At the front of a semitrailer or trailer, or
    (ii) That do not extend more than 3 inches beyond each side or the 
rear of the vehicle, or
    (iii) That do not extend more than 24 inches beyond the rear of the 
vehicle and are needed for loading or unloading, or
    (vi) Listed in appendix D to this part;
    (3) Resilient bumpers that do not extend more than 6 inches beyond 
the front or rear of the vehicle;
    (4) Aerodynamic devices that extend a maximum of 5 feet beyond the 
rear of the vehicle, provided such devices have neither the strength, 
rigidity nor mass to damage a vehicle, or injure a passenger in a 
vehicle, that strikes a trailer so equipped from the rear, and provided 
also that they do not obscure tail lamps, turn signals, marker lamps, 
identification lamps, or any other required safety devices, such as 
hazardous materials placards or conspicuity markings; and
    (5) A fixed step up to 3 inches deep at the front of an existing 
automobile transporter until April 29, 2005. It will be the 
responsibility of the operator of the unit to prove that the step 
existed prior to April 29, 2002. Such proof can be in the form of a work 
order for equipment modification, a receipt for purchase and 
installation of the piece, or any similar type of documentation. 
However, after April 29, 2005, the step shall no longer be excluded from 
a vehicle's length.
    (c) Each exclusion allowance is specific and may not be combined 
with other excluded devices.
    (d) Measurements are to be made from a point on one side or end of a 
commercial motor vehicle to the same point on the opposite side or end 
of the vehicle.

[67 FR 15110, Mar. 29, 2002]



Sec.  658.17  Weight.

    (a) The provisions of the section are applicable to the National 
System of Interstate and Defense Highways and reasonable access thereto.
    (b) The maximum gross vehicle weight shall be 80,000 pounds except 
where lower gross vehicle weight is dictated by the bridge formula.
    (c) The maximum gross weight upon any one axle, including any one 
axle of

[[Page 397]]

a group of axles, or a vehicle is 20,000 pounds.
    (d) The maximum gross weight on tandem axles is 34,000 pounds.
    (e) No vehicle or combination of vehicles shall be moved or operated 
on any Interstate highway when the gross weight on two or more 
consecutive axles exceeds the limitations prescribed by the following 
formula, referred to as the Bridge Gross Weight Formula:
[GRAPHIC] [TIFF OMITTED] TC14OC91.012


except that two consecutive sets of tandem axles may carry a gross load 
of 34,000 pounds each if the overall distance between the first and last 
axle is 36 feet or more. In no case shall the total gross weight of a 
vehicle exceed 80,000 pounds.
    (f) Except as provided herein, States may not enforce on the 
Interstate System vehicle weight limits of less than 20,000 pounds on a 
single axle, 34,000 pounds on a tandem axle, or the weights derived from 
the Bridge Formula, up to a maximum of 80,000 pounds, including all 
enforcement tolerances. States may not limit tire loads to less than 500 
pounds per inch of tire or tread width, except that such limits may not 
be applied to tires on the steering axle. States may not limit steering 
axle weights to less than 20,000 pounds or the axle rating established 
by the manufacturer, whichever is lower.
    (g) The weights in paragraphs (b), (c), (d), and (e) of this section 
shall be inclusive of all tolerances, enforcement or otherwise, with the 
exception of a scale allowance factor when using portable scales (wheel-
load weighers). The current accuracy of such scales is generally within 
2 or 3 percent of actual weight, but in no case shall an allowance in 
excess of 5 percent be applied. Penalty or fine schedules which impose 
no fine up to a specified threshold, i.e., 1,000 pounds, will be 
considered as tolerance provisions not authorized by 23 U.S.C. 127.
    (h) States may issue special permits without regard to the axle, 
gross, or Federal Bridge Formula requirements for nondivisible vehicles 
or loads.
    (i) The provisions of paragraphs (b), (c), and (d) of this section 
shall not apply to single-, or tandem-axle weights, or gross weights 
legally authorized under State law on July 1, 1956. The group of axles 
requirement established in this section shall not apply to vehicles 
legally grandfathered under State groups of axles tables or formulas on 
January 4, 1975. Grandfathered weight limits are vested on the date 
specified by Congress and remain available to a State even if it chooses 
to adopt a lower weight limit for a time.
    (j) The provisions of paragraphs (c) through (e) of this section 
shall not apply to the operation on Interstate Route 68 in Allegany and 
Garrett Counties, Maryland, of any specialized vehicle equipped with a 
steering axle and a tridem axle and used for hauling coal, logs, and 
pulpwood if such vehicle is of a type of vehicle as was operating in 
such counties on U.S. Routes 40 or 48 for such purposes on August 1, 
1991.
    (k) Any over-the-road bus, or any vehicle which is regularly and 
exclusively used as an intrastate public agency transit passenger bus, 
is excluded from the axle weight limits in paragraphs (c) through (e) of 
this section until October 1, 2009. Any State that has enforced, in the 
period beginning October 6, 1992, and ending November 30, 2005, a single 
axle weight limitation of 20,000 pounds or greater but less than 24,000 
pounds may not enforce a single axle weight limit on these vehicles of 
less than 24,000 lbs.
    (m) The provisions of paragraphs (b) through (e) of this section 
shall not apply to the operation, on I-99 between Bedford and Bald 
Eagle, Pennsylvania, of any vehicle that could legally operate on this 
highway section before December 29, 1995.
    (n) Any vehicle subject to this subpart that utilizes an auxiliary 
power or idle reduction technology unit in order to promote reduction of 
fuel use and emissions because of engine idling, may be allowed up to an 
additional 400 lbs. total in gross, axle, tandem, or bridge formula 
weight limits.
    (1) To be eligible for this exception, the operator of the vehicle 
must be able to prove:

[[Page 398]]

    (i) By written certification, the weight of the APU; and
    (ii) By demonstration or certification, that the idle reduction 
technology is fully functional at all times.
    (2) Certification of the weight of the APU must be available to law 
enforcement officers if the vehicle is found in violation of applicable 
weight laws. The additional weight allowed cannot exceed 400 lbs. or the 
weight certified, whichever is less.

[49 FR 23315, June 5, 1984, as amended at 59 FR 30420, June 13, 1994; 60 
FR 15214, Mar. 22, 1995; 62 FR 10181, Mar. 5, 1997; 63 FR 70653, Dec. 
22, 1998; 72 FR 7748, Feb. 20, 2007]



Sec.  658.19  Reasonable access.

    (a) No State may enact or enforce any law denying reasonable access 
to vehicles with dimensions authorized by the STAA between the NN and 
terminals and facilities for food, fuel, repairs, and rest. In addition, 
no State may enact or enforce any law denying reasonable access between 
the NN and points of loading and unloading to household goods carriers, 
motor carriers of passengers, and any truck tractor-semitrailer 
combination in which the semitrailer has a length not to exceed 28 feet 
(28.5 feet where allowed pursuant to Sec.  658.13(b)(5) of this part) 
and which generally operates as part of a vehicle combination described 
in Sec. Sec.  658.13(b)(5) and 658.15(a) of this part.
    (b) All States shall make available to commercial motor vehicle 
operators information regarding their reasonable access provisions to 
and from the National Network.
    (c) Nothing in this section shall be construed as preventing any 
State or local government from imposing any reasonable restriction, 
based on safety considerations, on access to points of loading and 
unloading by any truck tractor-semitrailer combination in which the 
semitrailer has a length not to exceed 28\1/2\ feet and which generally 
operates as part of a vehicle combination described in Sec. Sec.  
658.13(b)(5) and 658.15(a).
    (d) No State may enact or enforce any law denying access within 1 
road-mile from the National Network using the most reasonable and 
practicable route available except for specific safety reasons on 
individual routes.
    (e) Approval of access for specific vehicles on any individual route 
applies to all vehicles of the same type regardless of ownership. 
Distinctions between vehicle types shall be based only on significant, 
substantial differences in their operating characteristics.
    (f) Blanket restrictions on 102-inch wide vehicles may not be 
imposed.
    (g) Vehicle dimension limits shall not be more restrictive than 
Federal requirements.
    (h) States shall ensure compliance with the requirements of this 
section for roads under the jurisdiction of local units of government.
    (i)(1) Except in those States in which State law authorizes the 
operation of STAA-dimensioned vehicles on all public roads and highways, 
all States shall have an access review process that provides for the 
review of requests for access from the National Network.
    (2) State access review processes shall provide for:
    (i) One or more of the following:
    (A) An analysis of the proposed access routes using observations or 
other data obtained from the operation of test vehicles over the routes;
    (B) An analysis of the proposed access routes by application of 
vehicle templates to plans of the routes;
    (C) A general provision for allowing access, without requiring a 
request, for commercial motor vehicles with semitrailers with a kingpin 
distance of 41 feet or less (measured from the kingpin to the center of 
the rear axle, if single, or the center of a group of rear axles). State 
safety analyses may be conducted on individual routes if warranted; and
    (ii) All of the following:
    (A) The denial of access to terminals and services only on the basis 
of safety and engineering analysis of the access route.
    (B) The automatic approval of an access request if not acted upon 
within 90 days of receipt by the State. This provision shall become 
effective no later than 12 months following the effective date of this 
rule unless an extension is requested by the State and approved by FHWA.
    (C) The denial of access for any 102-inch wide vehicles only on the 
basis of the characteristics of specific routes,

[[Page 399]]

in particular significant deficiencies in lane width.
    (j)(1) Each State shall submit its access provisions to FHWA for 
approval within 6 months after June 1, 1990. In those States in which 
State law authorizes the operation of STAA-dimensioned vehicles on all 
public roads and highways, no submission or approval under this 
paragraph is required. If, in the future, such a State changes its 
authorizing legislation and restricts the operation of STAA-dimensioned 
vehicles, then compliance with these provisions will be necessary.
    (2) The FHWA will review the access provisions as submitted by each 
State subject to the provisions in paragraph (j)(1) and approve those 
that are in compliance with the requirements of this section. The FHWA 
may, at a State's request, approve State provisions that differ from the 
requirements of this section if FHWA determines that they provide 
reasonable access for STAA-dimensioned vehicles and do not impose an 
unreasonable burden on motor freight carriers, shippers and receivers 
and service facility operators.
    (3) Any State that does not have FHWA approved access provisions in 
effect within 1 year after June 1, 1990 shall follow the requirements 
and the criteria set forth in this section and section 658.5 and 658.19 
for determining access for STAA-dimensioned vehicles to terminals and 
services. The FHWA may approve a State's request for a time extension if 
it is received by FHWA at least 1 month before the end of the 1 year 
period.

[53 FR 12149, Apr. 13, 1988, as amended at 55 FR 22763, June 1, 1990; 59 
FR 30420, June 13, 1994]



Sec.  658.21  Identification of National Network.

    (a) To identify the National Network, a State may sign the routes or 
provide maps of lists of highways describing the National Network.
    (b) Exceptional local conditions on the National Network shall be 
signed. All signs shall conform to the Manual on Uniform Traffic Control 
Devices. Exceptional conditions shall include but not be limited to:
    (1) Operational restrictions designed to maximize the efficiency of 
the total traffic flow, such as time of day prohibitions, or lane use 
controls.
    (2) Geometric and structural restrictions, such as vertical 
clearances, posted weight limits on bridges, or restrictions caused by 
construction operations.
    (3) Detours from urban Interstate routes to bypass of 
circumferential routes for commercial motor vehicles not destined for 
the urban area to be bypassed.



Sec.  658.23  LCV freeze; cargo-carrying unit freeze.

    (a)(1) Except as otherwise provided in this section and except for 
tow trucks with vehicles in tow, a State may allow the operation of 
LCV's on the Interstate System only as listed in appendix C to this 
part.
    (2) Except as otherwise provided in this section, a State may not 
allow the operation on the NN of any CMV combination with two or more 
cargo-carrying units (not including the truck tractor) whose cargo-
carrying units exceed:
    (i) The maximum combination trailer, semitrailer, or other type of 
length limitation authorized by State law or regulation of that State on 
or before June 1, 1991; or
    (ii) The length of the cargo-carrying units of those CMV 
combinations, by specific configuration, in actual, lawful operation on 
a regular or periodic basis (including continuing seasonal operation) in 
that State on or before June 1, 1991, as listed in appendix C to this 
part.
    (b) Notwithstanding paragraph (a)(2) of this section, the following 
CMV combinations with two or more cargo-carrying units may operate on 
the NN.
    (1) Truck tractor-semitrailer-trailer and truck tractor-semitrailer-
semitrailer combinations with a maximum length of the individual cargo 
units of 28.5 feet or less.
    (2) Vehicles described in Sec.  658.13(e) and (g).
    (3) Truck-trailer and truck-semitrailer combinations with an overall 
length of 65 feet or less.
    (4) Maxi-cubes.
    (5) Tow trucks with vehicles in tow.
    (c) For specific safety purposes and road construction, a State may 
make

[[Page 400]]

minor adjustments of a temporary and emergency nature to route 
designation and vehicle operating restrictions applicable to 
combinations subject to 23 U.S.C. 127(d) and 49 U.S.C. 31112 and in 
effect on June 1, 1991 (July 6, 1991, for Alaska). Minor adjustments 
which last 30 days or less may be made without notifying the FHWA. Minor 
adjustments which exceed 30 days require approval of the FHWA. When such 
adjustments are needed, a State must submit to the FHWA, by the end of 
the 30th day, a written description of the emergency, the date on which 
it began, and the date on which it is expected to conclude. If the 
adjustment involves alternate route designations, the State shall 
describe the new route on which vehicles otherwise subject to the freeze 
imposed by 23 U.S.C. 127(d) and 49 U.S.C. 31112 are allowed to operate. 
To the extent possible, the geometric and pavement design 
characteristics of the alternate route should be equivalent to those of 
the highway section which is temporarily unavailable. If the adjustment 
involves vehicle operating restrictions, the State shall list the 
restrictions that have been removed or modified. If the adjustment is 
approved, the FHWA will publish the notice of adjustment, with an 
expiration date, in the Federal Register. Requests for extension of time 
beyond the originally established conclusion date shall be subject to 
the same approval and publications process as the original request. If 
upon consultation with the FHWA a decision is reached that minor 
adjustments made by a State are not legitimately attributable to road or 
bridge construction or safety, the FHWA will inform the State, and the 
original conditions of the freeze must be reimposed immediately. Failure 
to do so may subject the State to a penalty pursuant to 23 U.S.C. 141.
    (d) A State may issue a permit authorizing a CMV to transport an 
overlength nondivisible load on two or more cargo-carrying units on the 
NN without regard to the restrictions in Sec.  658.23(a)(2).
    (e) States further restricting or prohibiting the operation of 
vehicles subject to 23 U.S.C. 127(d) and 49 U.S.C. 31112 after June 1, 
1991, shall notify the FHWA within 30 days after the restriction is 
effective. The FHWA will publish the restriction in the Federal Register 
as an amendment to appendix C to this part. Failure to provide such 
notification may subject the State to a penalty pursuant to 23 U.S.C. 
141.
    (f) The Federal Highway Administrator, on his or her own motion or 
upon a request by any person (including a State), shall review the 
information set forth in appendix C to this part. If the Administrator 
determines there is cause to believe that a mistake was made in the 
accuracy of the information contained in appendix C to this part, the 
Administrator shall commence a proceeding to determine whether the 
information published should be corrected. If the Administrator 
determines that there is a mistake in the accuracy of the information 
contained in appendix C to this part, the Administrator shall publish in 
the Federal Register the appropriate corrections to reflect that 
determination.

[59 FR 30420, June 13, 1994, as amended at 60 FR 15214, Mar. 22, 1995; 
62 FR 10181, Mar. 5, 1997; 72 FR 7748, Feb. 20, 2007]



  Sec. Appendix A to Part 658--National Network--Federally-Designated 
                                 Routes

 [The federally-designated routes on the National Network consist of the
    Interstate System, except as noted, and the following additional
                               highways.]
------------------------------------------------------------------------
        Route                    From                       To
------------------------------------------------------------------------
                                 Alabama
------------------------------------------------------------------------
US 43................  I-65 N. of Mobile.......  Sunflower.
US 43................  AL 5 near Russellville..  TN State Line.
US 72................  MS State Line...........  CR 33 Hollywood.
US 72 Alt............  US 72 Tuscumbia.........  US 72/231/431
                                                  Huntsville.
US 78................  End of 4-lane W. of AL 5  I-59 Birmingham.
                        Jasper.
US 80................  AL 14 W. Int. Selma.....  US 82 Montgomery.
US 82................  Coker W. of I-59........  Eoline W. of AL 5.
US 82................  AL 206 Prattville.......  US 231 N. Int.
                                                  Montgomery.
US 84................  AL 92 E. of Daleville     End of 4-lane E. of
                        (via AL 210 Dothan        Dothan.
                        Cir.).
US 98................  I-10 Daphne.............  End of 4-lane near
                                                  Fairhope.
US 231...............  FL State Line (via AL     End of 4-lane N. of
                        210 Dothan Circle.).      Wetumpka.
US 231...............  Arab....................  TN State Line.
US 280...............  US 31 Mountain Brook....  AL 22 Alexander City.
US 280...............  I-85 Opelika............  GA State Line Phenix
                                                  City.
US 431...............  AL 210 Dothan...........  AL 173 Headland.

[[Page 401]]

 
US 431...............  I-20 Anniston...........  AL 79 N. Int. Columbus
                                                  City (via I-59--AL 77
                                                  Gadsden).
US 431...............  CR 8 New Hope...........  TN State Line.
AL 21................  US 31 Atmore............  I-65 N. of Atmore.
AL 21................  US 431 Anniston.........  Jacksonville.
AL 67................  I-65 Priceville.........  US 72 Alt. W. of
                                                  Decatur.
AL 79................  I-59 Birmingham.........  Pinson.
AL 152...............  US 231 N. Int.            I-65 N. Int.
                        Montgomery.               Montgomery.
AL 210...............  Dothan Circle (Beltway).
AL 248...............  US 84 Enterprise........  Ft. Rucker.
AL 249...............  Ft. Rucker..............  US 231.
------------------------------------------------------------------------
                                 Alaska
------------------------------------------------------------------------
AK 1.................  Potter Weigh Station      AK 3 Palmer.
                        Anchorage.
AK 2.................  AK 3 Fairbanks..........  Milepost 1412 Delta
                                                  Junction.
AK 3.................  AK 1 Palmer.............  AK 2 Fairbanks.
 
 Note: Routes added to the Interstate System under 23 U.S.C. 139(c) are
              included only to the extent designated above.
------------------------------------------------------------------------
                                 Arizona
------------------------------------------------------------------------
US 60................  I-10 Brenda.............  I-17 Phoenix.
US 60................  AZ 87 Mesa..............  AZ 70 Globe.
US 60................  AZ 260 E. Int. Show Low.  NM State Line.
US 64................  US 160 Teec Nos Pos.....  NM State Line.
US 70................  US 60 Globe.............  NM State Line.
US 80................  AZ 92 Bisbee............  NM State Line.
US 89................  I-10 Tucson.............  US 60 Florence
                                                  Junction.
US 89................  AZ 69 Prescott..........  I-40 Ash Fork.
US 89................  I-40 Flagstaff..........  UT State Line.
US 95................  Mexican Border..........  I-8 Yuma.
US 160...............  US 89 Tuba City.........  NM State Line.
US 163...............  US 160 Kayenta..........  UT State Line.
US 666...............  I-10 Bowie..............  US 70 Safford.
US 666...............  US 60 Springerville.....  I-40 Sanders.
US 666...............  Mexican Border..........  US 80 Douglas.
AZ 69................  US 89 Prescott..........  I-17 Cordes Junction.
AZ 77................  US 60 Show Low..........  I-40 Holbrook.
AZ 84................  I-10 Picacho............  AZ 87 E. of Eloy.
AZ 85................  I-8 Gila Bend (via I-8B)  I-10 Buckeye (via AZ 85
                                                  Spur).
AZ 87................  AZ 84 E. of Eloy........  AZ 387 W. of Coolidge.
AZ 87................  AZ 587 Chandler.........  US 60 Mesa.
AZ 90................  I-10 Benson.............  AZ 92 Sierra Vista.
AZ 169...............  AZ 69 Dewey.............  I-17 S. of Camp Verde.
AZ 189...............  Mexican Border..........  I-19 Nogales.
AZ 287...............  AZ 87 Coolidge..........  US 89 Florence.
AZ 360...............  I-10 Phoenix............  AZ 87 Mesa.
AZ 387...............  I-10 Exit 185...........  AZ 87 W. of Coolidge.
AZ 587 (Old AZ 93)...  I-10 Exit 175...........  AZ 87 Chandler.
------------------------------------------------------------------------
                                Arkansas
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                               California
------------------------------------------------------------------------
I-80 Bus. Loop (US 50- I-80 W. Sacramento......  I-80 near Watt Ave.,
 CA 51).                                          Sacramento.
US 6.................  US 395 Bishop...........  NV State Line.
US 50................  I-80 W. of Sacramento...  Sly Park Rd. Pollock
                                                  Pines.
US 95................  I-40 near Needles.......  NV State Line.
US 101...............  I-5 Los Angeles.........  I-80 San Francisco.
US 395...............  I-15 S. of Victorville..  NV State Line.
CA 2.................  I-5.....................  I-210 Los Angeles.
CA 10 (San Bern.       US 101..................  I-5 Los Angeles.
 Fwy.).
CA 14................  I-5 near San Fernando...  US 395 Ridgecrest.
CA 15................  I-5.....................  I-805 San Diego.
CA 22................  I-405 Seal Beach........  CA 55 Orange.
CA 24................  I-580 Oakland...........  I-680 Walnut Creek.
CA 52................  I-5.....................  I-805 San Diego.
CA 55................  I-405 Costa Mesa........  CA 91 Anaheim.
CA 57................  I-5 Santa Ana...........  I-210 Pomona.
CA 58................  CA 99 Bakersfield.......  I-15 Barstow.
CA 60................  I-10 Los Angeles........  I-10 Beaumont.
CA 71................  I-210...................  CA 60 Pomona.
CA 78................  I-5 Carlsbad............  I-15 Escondido.
CA 85................  I-280 near San Jose.....  CA 101 Mountain View.
CA 91................  I-110 Los Angeles.......  I-215/CA 60 Riverside.
CA 92................  I-280 San Mateo.........  I-880 Hayward.
CA 94................  I-5.....................  CA 125 San Diego.
CA 99................  I-5 Wheeler Ridge.......  I-80 Bus. Loop/US 50
                                                  Sacramento.
CA 110...............  I-10....................  US 101 Los Angeles.
CA 118...............  I-405 Los Angeles.......  I-210 San Fernando.
CA 125...............  CA 94...................  I-8 La Mesa.
CA 133...............  I-405...................  I-5 near El Toro.
CA 134...............  US 101 Los Angeles......  I-210 Pasadena.
CA 163...............  I-8.....................  I-15 San Diego.
CA 170...............  US 101..................  I-5 Los Angeles.
CA 198...............  I-5 Coalinga............  CA 99 Visalia.
CA 215...............  I-15 N. of Temecula.....  CA 60 Riverside.
CA 905 (Old CA 117)..  I-5.....................  I-805 San Diego.
 
  Note: I-580 Oakland--All vehicles over 4\1/2\ tons (except passenger
   buses and stages) are prohibited on MacArthur Freeway between Grand
 Avenue and the north city limits of San Leandro. (Excepted under 23 CFR
                               658.11(f)).
------------------------------------------------------------------------
                                Colorado
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                               Connecticut
------------------------------------------------------------------------
CT 2.................  Columbus Blvd. Hartford.  I-395 Norwich.
CT 8.................  I-95 Bridgeport.........  US 44 Winsted.
CT 9.................  I-95 Old Saybrook.......  I-91 Cromwell.

[[Page 402]]

 
CT 20................  CT 401 Bradley Intl.      I-91 Windsor.
                        Airport, Windsor Locks.
CT 401...............  CT 20 Windsor Locks.....  Bradley Intl. Airport
                                                  Access Rd., Windsor
                                                  Lks.
------------------------------------------------------------------------
                                Delaware
------------------------------------------------------------------------
US 13................  MD State Line...........  I-495 S. Int.
                                                  Wilmington.
US 40................  MD State Line...........  I-295/US 13 Wilmington.
US 113...............  MD State Line...........  US 13 Dover.
US 301...............  MD State Line...........  I-295/US 13 Wilmington.
------------------------------------------------------------------------
                          District of Columbia
------------------------------------------------------------------------
Anacostia Fwy/Ken.     I-295...................  MD State Line Cheverly
 Ave.                                             MD
 
Note: I-66--There is a 24 hour total truck ban on the Theodore Roosevelt
 Memorial Bridge and its approaches. (Excepted under 23 CFR 658.11(f).)
------------------------------------------------------------------------
                                 Florida
------------------------------------------------------------------------
US 27................  FL Turnpike Ext.........  FL 84 Andytown.
US 27................  South Bay...............  I-75 Ocala.
US 301...............  SR 24 Waldo.............  I-10.
FL 24................  SR 331 Gainesville......  US 301 Waldo.
FL 85................  FL 397 Valparaiso.......  I-10 near Crestview.
FL 202...............  I-95 Jacksonville.......  FL A-1-A.
FL 263...............  US 90 W. of Tallahassee.  I-10.
FL 331...............  I-75 S. of Gainesville..  FL 24.
FL 397...............  Entrance Eglin AFB......  FL 85 Valparaiso.
FL 528-FL 407........  I-4 Orlando.............  Cape Canaveral.
20th St. Expwy.......  1-95 Jacksonville.......  Adams St. near Matthews
                                                  Bridge.
FL Turnpike..........  S. End of Homestead       I-75 Wildwood.
                        Extension.
------------------------------------------------------------------------
 
                                 Georgia
------------------------------------------------------------------------
US 19................  FL State Line...........  US 82 Albany.
US 23/GA 365.........  I-985 near Gainesville..  US 441 near Cornelia.
US 25................  I-16....................  N. of Statesboro.
US 27................  GA 53 Rome..............  US 278 Cedartown.
US 27................  FL State Line...........  GA 38 Bainbridge.
US 27 Alternate GA 85  I-185 Columbus..........  Ellerslie.
US 29................  US 78 W. Interchange....  US 129/441 E.
                                                  Interchange Athens.
US 41................  I-75 W. of Morrow.......  Near Barnesville.
US 41................  GA 5 Connector..........  County Road 633
                                                  Emerson.
US 76................  I-75 Dalton.............  US 411 Chatsworth.
US 78-US 29..........  GA 138 Monroe...........  US 29 W. Interchange
                                                  Athens.
US 78/GA 410.........  Valleybrook Rd.           GA 10 Stone Mountain.
                        Scottsdale.
US 78/GA 10..........  Stone Mountain Freeway..  Monroe Bypass.
US 80/GA 22..........  AL State Line...........  GA 85 Columbus.
US 82/GA 520.........  Dawson..................  I-95 Exit 6 Brunswick.
US 84/GA 38..........  Alabama State Line......  I-75.
US 84/GA 38..........  GA 520 Waycross.........  GA 32 Patterson.
US 129...............  I-16....................  Gray.
US 129...............  GA 247 Connector Warner   I-75 Macon.
                        Robins.
US 129/GA 11.........  I-85....................  I-985.
US 280/GA 520........  Alabama State Line......  Dawson.
US 319/GA 35.........  US 19/GA 300 Thomasville  US 82/GA 520 Tifton.
US 411-US 41.........  US 27 Rome..............  I-75 near Emerson.
US 441/GA 31.........  US 82/GA 520 Pearson....  GA 135 Douglas.
US 441/GA 24.........  I-20....................  GA 22 Milledgeville.
US 441/GA 15.........  Athens Bypass...........  I-85.
GA 2.................  US 27 Fort Oglethorpe...  I-75.
GA 5 Connector.......  I-75....................  US 41.
GA 6.................  I-20....................  GA 6 Bypass near
                                                  Dallas.
GA 6 Bypass..........  E. of Dallas............  W. of Dallas.
GA 10 Loop...........  E. and S. Bypass in       .......................
                        Athens.
GA 14 Spur...........  US 29/Welcome All Road..  I-85/285 S. Interchange
                                                  Atlanta.
GA 21................  I-95 Monteith...........  GA 204 Savannah.
GA 25................  GA 520..................  GA 25 Spur.
GA 25 Spur...........  US 17 N. of Brunswick...  I-95 Exit 8.
GA 53................  Rome....................  I-75 Calhoun.
GA 61................  I-20....................  GA 166 near Carrollton.
GA 85................  Fayetteville............  I-75.
GA 138...............  I-20 Conyers............  US 78 Monroe.
GA 166...............  GA 61...................  End of 4-lane section
                                                  of W. GA 1 Carrollton.
GA 247C..............  I-75....................  GA 247 Warner Robins.
GA 300...............  US 82 Albany............  I-75 near Cordele.
GA 316...............  I-85....................  US 29.
GA 400...............  I-285 near Atlanta......  GA 60.
GA 515...............  I-575...................  Blairsville.
GA 520...............  I-95....................  GA 25.
 
Note: Atlanta area--Interstate highways within the I-285 beltway are not
     available to through trucks with more than 6 wheels because of
                              construction.
------------------------------------------------------------------------
                                 Hawaii
------------------------------------------------------------------------
HI 61................  HI 98 (Vineyard           Kawainui Bridge Kailua.
                        Boulevard).
HI 63................  HI 92 (Nimitz Hwy.).....  HI 83 (Kahekili Hwy.).
HI 64................  Sand Island Park........  HI 92 (Nimitz Hwy.).
HI 72................  61 Kailua/Waimanalo       Ainakoa.
                        Junction.
HI 78................  H-1 Middle St...........  HI 99 (Kamehameha Hwy.)
                                                  Aiea.
HI 83................  HI 99 Weed Junction.....  HI 61 (Kalanianaole
                                                  Hwy).
HI 92................  Pearl Harbor/Main Gate..  Kalakaua Avenue.
HI 93................  Beginning of H-1........  Makaha Bridge.
HI 95................  H-1.....................  Barbers Point Harbor.

[[Page 403]]

 
HI 99................  Pearl Harbor Int........  HI 83 Weed Junction.
------------------------------------------------------------------------
                                  Idaho
------------------------------------------------------------------------
I-15B................  I-15/US 26 S. of Idaho    US 26 N. Int. Idaho
                        Falls.                    Falls.
US 2.................  Dover...................  US 95 Sandpoint.
US 2.................  US 95 Bonners Ferry.....  MT State Line.
US 20/26.............  OR State Line...........  I-84 W. Caldwell Int.
                                                  Caldwell
US 20................  I-84 Mountain Home......  MT State Line.
US 26................  I-84 Bliss..............  I-15 Blackfoot.
US 30................  US 95 Fruitland.........  ID 72 New Plymouth.
US 30................  I-15 McCammon...........  WY State Line.
US 89................  UT State Line...........  US 30 Montpelier.
US 91................  UT State Line...........  I-15 Virginia.
US 93................  NV State Line...........  Arco.
US 95................  OR State Line S. of       OR State Line Weiser
                        Marsing.                  (via US 95 Spur).
US 95................  Grangeville.............  Moscow.
US 95................  I-90 Coeur D'Alene......  US 2 Bonners Ferry.
ID 16................  ID 44 Star..............  Emmett.
ID 28................  ID 33 Mud Lake..........  US 93 Salmon.
ID 33................  ID 28 Mud Lake..........  US 20 Rexburg
ID 44................  I-84 Caldwe1l...........  ID 55 Eagle.
ID 51................  NV State Line...........  I-84 Mountain Home.
ID 53................  WA State Line...........  US 95 Garwood.
ID 55................  US 95 Marsing...........  I-84 Nampa.
ID 55................  US 20/26 S. of Eagle....  ID 44 Eagle.
ID 75................  US 93 Shoshone..........  Ketchum.
ID 87................  US 20 N. of Macks Inn...  MT State Line.
------------------------------------------------------------------------
                                Illinois
------------------------------------------------------------------------
US 20................  US 20 BR W. of Rockford.  I-39 Rockford.
US 36................  IL 100 NW. of Winchester  I-55 Springfield.
US 50................  US 50 BR E. of            IN State Line.
                        Lawrenceville.
US 51................  US 51 BR S. of Decatur..  I-72 Decatur.
US 67................  IL 92 Rock Island.......  IA State Line.
IL 6.................  I-74/474 Peoria.........  IL 88 N. of Peoria.
IL 53................  Army Trail Rd. Addison..  IL 68 Arlington
                                                  Heights.
IL 92................  I-280 Rock Island.......  US 67 Rock Island.
IL 336...............  IL 57 Fall Creek........  US 24 NE. of Quincy.
IL 394...............  IL 1 Goodenow...........  I-80/94/294 S. Holland.
IL Toll Hwys.........  All Routes..............
------------------------------------------------------------------------
                                 Indiana
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                  Iowa
------------------------------------------------------------------------
 Note: Iowa State law allows STAA-dimensioned vehicles to operate on all
highways in the State. The routes shown below were incorporated into the
                         NN by the FHWA in 1984.
------------------------------------------------------------------------
US 6.................  NE State Line...........  I-80 Council Bluffs.
US 6.................  IA 48 Lewis.............  I-80 N. of Wilton.
US 6.................  IA 130 Davenport........  I-74.
US 18................  WCL Rock Valley.........  WI State Line.
US 20................  I-29 Sioux City.........  IL State Line.
US 30................  Missouri River Bridge     IL State Line Clinton.
                        (NE).
US 34................  Missouri River Bridge     IL State Line
                        (NE).                     Burlington.
US 52................  US 61 Dubuque...........  IA 386 N. Int.
                                                  Sageville.
US 52................  IA 3 Luxemburg..........  US 18 E. Int.
US 52................  ECL Calmar..............  Burr Oak.
US 59................  IA 2 Shenandoah.........  IA 184.
US 59................  IA 92 Carson............  US 6 N. Int.
US 59................  IA 83 Avoca.............  US 30 Denison.
US 59................  US 20 Holstein..........  IA 3.
US 59................  IA 10 E. Int. W. of       US 18 Sanborn.
                        Sutherland.
US 61................  Des Moines River Bridge   WI State Line.
                        (MO) Keokuk.
US 63................  MO State Line...........  IA 146 New Sharon.
US 63................  I-80 Malcom.............  NCL Chester.
US 65................  US 34 N. Int. Lucas.....  IA 117/330.
US 65................  US 30 Colo..............  Sheffield.
US 65................  SCL Mason City..........  IA 105 Northwood.
US 67................  IL State Line Davenport.  4.64 Miles N. of
                                                  Clinton.
US 69................  SCL Lamoni..............  I-35.
US 69................  US 6/65 Des Moines......  IA 105 Lake Mills.
US 71................  MO State Line...........  IA 196 Ulmer.
US 71................  US 20 Early.............  MN State Line.
US 75................  I-29 N. Int. Sioux City.  IA 9 E. Int.
US 77................  NE State Line...........  I-29 Sioux City.
US 136...............  Des Moines River Bridge   Mississippi River
                        (MO).                     Bridge Keokuk.
US 151...............  I-80 E. of Williamsburg.  US 61 S. Int.
US 169...............  SCL Arispe..............  IA 92 Winterset.
US 169...............  SCL Desoto..............  I-80.
US 169...............  US 6 Adel...............  IA 141 Perry.
US 169...............  US 30 Beaver............  IA 3.
US 169...............  US 18 Algona............  IA 9 W. Int. Swea City.
US 218...............  US 136 Keokuk...........  IA 92 Ainsworth.
US 218...............  IA 22 Riverside.........  IA 227.
IA 1.................  IA 16 N. Int............  IA 78 W. Int. Richland.
IA 1.................  IA 92 N. Int............  IA 22 Kalona.
IA 1.................  US 6/218 N. Int. Iowa     I-80 Iowa City.
                        City.
IA 1.................  SCL Martelle............  US 151.
IA 2.................  NE State Line...........  IA 25 W. of Mt. Ayr.
IA 2.................  Decatur Co. Line........  Mississippi River
                                                  Bridge (IL) Ft.
                                                  Madison.
IA 3.................  SD State Line...........  IA 12 N. Int. Akron.
IA 3.................  US 75 Le Mars...........  IA 7.
IA 3.................  IA 17 E. Int. Goldfield.  IA 13 W. Int.
IA 4.................  IA 3 Pocahontas.........  US 18 E. Int.
IA 4.................  SCL Wallingford.........  IA 9 Estherville.
IA 5.................  IA 2 Centerville........  I-35.
IA 7.................  IA 3....................  US 71 N. Int. Storm
                                                  Lake.
IA 7.................  Barnum..................  US 20 Fort Dodge.
IA 8.................  US 63 Traer.............  US 218.
IA 9.................  IA 60...................  IA 26 Lansing.
IA 10................  US 59 E. Int............  ECL Sutherland.
IA 12................  US 20...................  NCL Sioux City.
IA 13................  US 30 Bertram...........  US 52.
IA 14................  IA 92/5.................  NCL Newton.
IA 14................  US 30 Marshalltown......  US 20 S. Int.

[[Page 404]]

 
IA 15................  US 18 Whittemore........  IA 9 W. Int.
IA 16................  NCL Eldon...............  IA 1 N. Int.
IA 16................  Denmark.................  US 61 Wever.
IA 17................  IA 141 Granger..........  IA 3 E. Int.
IA 21................  SCL What Cheer..........  IA 412 Waterloo.
IA 22................  WCL Wellman.............  IA 70 W. Int.
IA 23................  US 63 Ottumwa...........  IA 137 Eddyville.
IA 25................  IA 2....................  IA 92 Greenfield.
IA 25................  IA 925 W. Int...........  IA 44 Guthrie Center.
IA 26................  IA 9 Lansing............  New Albin.
IA 28................  IA 92...................  US 6 Des Moines.
IA 31................  SCL Correctionville.....  US 59.
IA 37................  WCL Earling.............  US 59.
IA 38................  US 61 Muscatine.........  I-80.
IA 38................  SCL Tipton..............  US 30 E. Int.
IA 39................  US 59 Denison...........  Deloit.
IA 44................  US 71 Hamlin............  IA 141.
IA 46................  IA 5....................  IA 163 Des Moines.
IA 48................  US 59 Shenandoah........  NCL Essex.
IA 48................  US 34 Red Oak...........  US 6.
IA 49................  SCL Lenox...............  US 34.
IA 51................  US 18 Postville.........  IA 9.
IA 55................  Seymour.................  IA 2.
IA 60................  US 75 Lemars............  MN State Line.
IA 62................  US 61 Maquoketa.........  US 52 Bellevue.
IA 64................  US 151 Anamosa..........  US 61.
IA 70................  Columbus City...........  IA 22 W. Int.
IA 77................  IA 92...................  Keota.
IA 78................  IA 149..................  IA 249 Winfield.
IA 78................  WCL Morning Sun.........  US 61.
IA 83................  S. of Walnut............  US 6 Atlantic.
IA 85................  US 63 Montezuma.........  IA 21.
IA 86................  US 71...................  IA 9 Montgomery.
IA 92................  NE State Line...........  IA 48 Griswold.
IA 92................  WCL Fontanelle..........  IA 1 N. Int.
IA 92................  IA 1 S. Int.............  Cotter.
IA 93................  WCL Sumner..............  IA 150 Fayette.
IA 94................  I-380 Cedar Rapids......  Palo.
IA 96................  Gladbrook...............  US 63 Traer.
IA 99................  Toolesboro..............  US 61 Wapello.
IA 100...............  IA 151 Cedar Rapids.....  I-380.
IA 103...............  US 218..................  US 61 Fort Madison.
IA 105...............  US 69 Lake Mills........  US 218 St. Ansgar.
IA 107...............  SCL Thornton............  US 18 Clear Lake.
IA 110...............  US 20...................  IA 7 Storm Lake.
IA 111...............  US 18 Britt.............  Woden.
IA 117...............  IA 163 Prairie City.....  US 65.
IA 127...............  IA 183 S. Int...........  US 30 Logan.
IA 130...............  US 61/67 Davenport......  I-80.
IA 133...............  US 30...................  Nevada.
IA 136...............  ECL Delmar..............  WCL Lost Nation.
IA 136...............  SCL Worthington.........  US 52/IA 3 Luxemburg.
IA 137...............  IA 5 Albia..............  IA 23.
IA 141...............  I-29....................  US 30/59 Denison.
IA 141...............  WCL Manning.............  US 169.
IA 141...............  IA 210 Woodward.........  I-35 Urbandale.
IA 144...............  IA 141 Perry............  US 30 Grand Junction.
IA 145...............  I-29....................  ECL Thurman.
IA 146...............  US 63 New Sharon........  Dunbar.
IA 148...............  IA 2 Bedford............  US 34.
IA 148...............  IA 951 Carbon...........  I-80.
IA 149...............  US 63...................  IA 78 Martinsburg.
IA 149...............  SCL Williamsburg........  I-80.
IA 150...............  US 218 Vinton...........  IA 283.
IA 150...............  US 20...................  US 18 West Union.
IA 150 (Old).........  I-380 Center Point......  IA 150.
IA 157...............  US 63...................  Lime Springs.
IA 160...............  US 69/IA 415............  I-35 Ankeny.
IA 163...............  US 65 Des Moines........  IA 92 Oskaloosa.
IA 173...............  IA 83 Atlantic..........  I-80.
IA 175...............  NE State Line...........  ECL Onawa.
IA 175...............  US 71 S. Int............  ECL Lake City.
IA 175...............  Gowrie..................  ECL Dayton.
IA 175...............  WCL Stratford...........  ECL Radcliffe.
IA 175...............  US 65 N. Int............  US 63 Voorhies.
IA 181...............  Melcher-Dallas..........  IA 5/92.
IA 183...............  IA 127 N. Int...........  NCL Pisgah.
IA 184...............  WCL Randolph............  US 59.
IA 192...............  I-29/80.................  I-29 Council Bluffs.
IA 196...............  US 71...................  US 20 Sac City.
IA 210...............  IA 141..................  NCL Woodward.
IA 210...............  IA 17 N. Int............  ECL Slater.
IA 215...............  Union...................  IA 175 Eldora.
IA 221...............  I-35....................  Roland.
IA 227...............  US 218..................  Stacyville.
IA 244...............  I-80....................  IA 191 Neola.
IA 249...............  IA 78...................  Winfield.
IA 272...............  Elma....................  US 63.
IA 273...............  WCL Drakesville.........  US 63.
IA 276...............  US 71...................  IA 327 Orleans.
IA 279...............  US 30...................  Atkins.
IA 281...............  WCL Fairbank............  IA 150.
IA 283...............  Brandon.................  IA 150.
IA 287...............  US 30...................  Newhall.
IA 300...............  Modale..................  I-29.
IA 316...............  IA 5 Pleasantville......  NCL Runnells.
IA 330...............  US 65...................  US 30 Marshalltown.
IA 363...............  IA 101..................  Urbana.
IA 401...............  US 6....................  Johnston.
IA 405...............  Lone Tree...............  IA 22.
IA 406...............  US 34...................  US 61 Burlington.
IA 415...............  US 6 Des Moines.........  IA 160.
IA 927...............  IA 38 Wilton............  1-280 Davenport.
IA 928...............  US 20/IA 17.............  US 20 Williams.
IA 930...............  US 30...................  Ames.
IA 939...............  IA 150 Independence.....  IA 187.
IA 964...............  IA 5/92.................  IA 975/14 Knoxville.
IA 967...............  US 20...................  Farley.
IA 975...............  IA 5/92.................  IA 964/14 Knoxville.
University Ave.......  US 20 SW. of Cedar Falls  US 218 Cedar Falls.
------------------------------------------------------------------------
                                 Kansas
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                Kentucky
------------------------------------------------------------------------
I-471 Connector......  US 27 Highland Heights..  I-275/471 Interchange.
US 23................  Virginia State Line.....  US 119 near Jenkins.
US 23................  US 119 N. of Pikeville..  S. end U.S. Grant
                                                  Bridge South
                                                  Portsmouth.
US 23 Spur...........  US 60 Ashland (via 13th   Ohio State Line.
                        St. Bridge).
US 25/421............  Int. US 25/US 421 S. of   KY 876 Richmond.
                        Richmond.
US 25/421............  KY 418 (via KY 4).......  Nandino Blvd.,
                                                  Lexington.
US 25E...............  Virginia State Line.....  I-75 Exit 29 N. of
                                                  Corbin.
US 27................  Tennessee State Line      Ohio State Line.
                        (via KY 4 Lexington).
US 31W...............  Tennessee State Line....  KY 255 Park City.

[[Page 405]]

 
US 31W...............  Byp US 31W N. of          I-264 Exit 8
                        Elizabethtown.            Louisville.
US 31W Byp...........  Western Kentucky Parkway  US 31W N. of
                        Exit 136.                 Elizabethtown.
US 41................  Pennyrile Parkway         Indiana State Line.
                        Henderson.
US 41................  Tennessee State Line....  Pennyrile Parkway near
                                                  SCL Hopkinsville.
US 45................  Jackson Purchase Parkway  US 60 Paducah.
                        N. of Mayfield.
US 60................  US 45 Paducah...........  Int. US 60/62 Paducah.
US 60................  US 60 Byp W. of           KY 69 Hawesville.
                        Owensboro.
US 60................  KY 144 Garrett..........  US 31W S. of Muldraugh.
US 60................  Int. US 421/KY 676        I-75 Exit 110
                        Frankfort (via KY 4       Lexington.
                        Lexington).
US 60................  KY 180 Cannonsburg......  US 23 Ashland.
US 60 Byp............  US 60 W. of Owensboro...  US 60 E. of Owensboro.
US 62................  I-24 Exit 7 Paducah (via  US 68.
                        US 60 Paducah).
US 62/68.............  Washington..............  Ohio State Line.
US 68................  US 62...................  I-24 Exit 16.
US 68................  I-24 Exit 65 E. of Cadiz  Green River Parkway
                        (via US 41                Exit 5 Bowling Green.
                        Hopkinsville).
US 68................  US 27 Paris (via Paris    Int. US 62/68
                        Byp).                     Washington.
US 119...............  KY 15 E. of Whitesburg..  US 23 near Jenkins.
US 119...............  US 25E S. of Pineville..  US 421 Harlan.
US 119...............  US 23 N. of Pikeville...  KY 1441.
US 127...............  KY 22 Owenton...........  KY 35 Bromley.
US 127...............  US 127 Byp N. of          US 60 Frankfort (via
                        Danville (via US 68       Lawrenceburg Byp.).
                        Harrosdburg).
US 127 Byp...........  US 127 S. of Danville...  US 127 N. of Danville.
US 127 Byp...........  US 127 S. of              US 127 N. of
                        Lawrenceburg.             Lawrenceburg.
US 150...............  US 62 Bardstown (via US   US 27 N. of Stanford.
                        68 Perryville, the
                        Danville Byp, and the
                        Stanford Byp).
US 150 Byp...........  US 127 S. of Danville...  US 150 E. of Danville.
US 150 Byp...........  US 150 N. of Stanford...  US 27 N. of Stanford.
US 231...............  US 60 Byp Owensboro.....  Indiana State Line.
US 421...............  0.1 mile S. of Harlan     US 119.
                        Appalachian Regional
                        Hospital.
US 421...............  Int. US 60/460 Frankfort  US 127 Wilkinson Blvd./
                                                  Owenton Rd.
                                                  Interchange Frankfort.
US 431...............  US 60 Byp Owensboro.....  US 60 (4th St.)
                                                  Owensboro.
US 460...............  I-64 Exit 110 N. of Mt.   KY 686 Mt. Sterling.
                        Sterling.
US 460...............  E. end Mountain Pkwy.     US 23 W. of
                        Extension.                Paintsville.
US 641...............  Tennessee State Line....  KY 348 Benton.
KY 4.................  US 27 S. Lexington......  Entire Circle of
                                                  Lexington.
KY 11................  KY 3170 Lewisburg.......  US 62/68 Maysville.
KY 15................  US 119 Whitesburg (via    KY 15 Spur/KY 191
                        KY 7 Isom).               Campton.
KY 15 Spur...........  KY 15/191 Campton.......  Mountain Parkway Exit
                                                  43.
KY 21................  I-75 Exit 76 W. of Berea  US 25 Berea.
KY 35................  US 127 Bromley..........  I-71 Exit 57.
KY 55................  Cumberland Parkway Exit   US 150 Springfield.
                        49 Columbia.
KY 61................  Peytonsburg.............  KY 90 Burkesville
KY 69................  US 60 Hawesville........  Indiana State Line.
KY 70/90.............  I-65 Exit 53............  US 31E Glasgow.
KY 79................  KY 1051 Brandenburg.....  Indiana State Line.
KY 80................  KY 80 Byp. E. of          US 25 N. of London.
                        Somerset.
KY 80................  KY 15 N. of Hazard......  US 23 Watergap.
KY 80/US 421.........  S. ramps Daniel Boone     2nd Street Manchester.
                        Parkway Exit 20.
KY 80 Byp............  US 27 Somerset..........  KY 80 E. of Somerset.
KY 90................  KY 61 Burkesville.......  US 27 Burnside.
KY 114...............  US 460 E. of              US 23/460 S. of
                        Salyersville.             Prestonburg.
KY 118...............  Int. US 421/KY 80 Hyden.  Daniel Boone Parkway
                                                  Exit 44.
KY 144...............  KY 448..................  US 60 Garrett.
KY 151...............  US 127 N. of              I-64 Exit 48.
                        Lawrenceburg.
KY 180...............  I-64 Exit 185...........  Int. US 60/KY 180
                                                  Cannonsburg.
KY 192...............  I-75 Exit 38............  Daniel Boone Parkway E.
                                                  of London.
KY 259...............  Western Kentucky Parkway  US 62 Leitchfield.
                        Exit 107.
KY 418...............  US 25/421 Lexington.....  I-75 Exit 104.
KY 446...............  US 31W Bowling Green....  I-65 Exit 28.
KY 448...............  KY 144..................  KY 1051 Brandenburg.
KY 555...............  US 150 Springfield......  Bluegrass Parkway Exit
                                                  42.
KY 676...............  US 127 Frankfort........  US 60/421 Frankfort.
KY 686...............  US 460 Mt. Sterling.....  KY 11 S. of Mt.
                                                  Sterling.
KY 876...............  I-75 Exit 87 Richmond...  KY 52.
KY 922...............  KY 4 Lexington..........  I-64/75 Exit 115.
KY 1051..............  KY 448 S. of Brandenburg  KY 79.
KY 1682..............  US 68 W. of Hopkinsville  Pennyrile Parkway Exit
                                                  12 NCL Hopkinsville.
KY 1958..............  KY 627 S. of Winchester.  I-64 Exit 94
                                                  Winchester.
Audubon Parkway......  Pennyrile Parkway Exit    US 60 Byp Owensboro.
                        77 Henderson.
Blue Grass Parkway...  I-65 Exit 93 E. of        US 60 E. of Versailles.
                        Elizabethtown.
Cumberland Parkway...  I-65 Exit 43 N. of Hays.  US 27 Somerset.
Daniel Boone Parkway.  US 25 N. of London......  KY 15 N. of Hazard.
Green River Parkway..  I-65 Exit 20 S.E. of      US 60 Byp Owensboro.
                        Bowling Green.

[[Page 406]]

 
Jackson Purchase       Tennessee State Line....  I-24 Exit 25 E. of
 Parkway.                                         Calvert City.
Mountain Parkway and   I-64 Exit 98 E. of        US 460 Salyersville.
 Mountain Parkway       Winchester.
 Extension.
Pennyrile Parkway....  US 41 Alt. Hopkinsville.  US 41 Henderson.
Western Kentucky       I-24 Exit 42 S. of        I-65 Exit 91 S. of
 Parkway.               Eddyville.                Elizabethtown.
   Note: US 23 crosses the Ohio River between South Portsmouth, KY and
  Portsmouth, OH via the U.S. Grant Bridge. Although the state line is
  near the Ohio shoreline, putting most of the bridge in Kentucky, the
    terminal point for US 23 is listed as the south end of the bridge
            because the bridge is maintained by the Ohio DOT.
------------------------------------------------------------------------
                                Louisiana
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                  Maine
------------------------------------------------------------------------
US 1.................  I-95 Brunswick..........  Old US 1 (Vicinity of
                                                  Congress St.) Bath.
Scarboro Connector...  I-295 South Portland....  US 1 Scarborough.
South Portland Spur..  I-95 South Portland.....  US 1 South Portland.
------------------------------------------------------------------------
                                Maryland
------------------------------------------------------------------------
US 13................  VA State Line...........  DE State Line.
US 15................  US 40/340 Frederick.....  MD 26 Frederick.
US 40................  US 15/340 Frederick.....  I-70/270 Frederick.
US 48................  WV State Line...........  I-70 Hancock.
US 50................  MD 201/Kenilworth Ave.    US 13 Salisbury.
                        Cheverly.
US 301...............  VA State Line...........  DE State Line.
US 340...............  MD 67 Weverton..........  US 15/40 Frederick.
MD 3.................  US 50/301 Bowie.........  I-695/MD 695 Glen
                                                  Burnie.
MD 4.................  I-95 Forestville........  US 301 Upper Marlboro.
MD 10................  MD 648 Glen Burnie......  MD 695 Glen Burnie.
MD 100...............  MD 3....................  MD 607 Jacobsville.
MD 201 (Kenilw. Ave.)  D.C. Line...............  US 50 Cheverly.
MD 295...............  I-695 Linthicum.........  I-95 Baltimore.
MD 695...............  I-695/MD 3 Glen Burnie..  I-95/695 Kenwood.
MD 702...............  Old Eastern Avenue......  MD 695 Essex.
 
 Note: I-895 Baltimore--Widths over 96 inches and tandem trailers may be
    prohibited on the Harbor Tunnel Thruway because of construction.
------------------------------------------------------------------------
                              Massachusetts
------------------------------------------------------------------------
US 3.................  I-95 Burlington.........  NH State Line.
MA 2.................  I-190 Leominister.......  I-495 Littleton.
MA 24................  I-195 Fall River........  I-93 Randolph.
MA 140...............  I-195 New Bedford.......  MA 24 Taunton.
 
   Note: I-93 Boston--Restrictions may be applied, when necessary, to
portions of I-93 affected by reconstruction of the Central Artery (I-93)
           and construction of the Third Harbor Tunnel (I-90).
------------------------------------------------------------------------
                                Michigan
------------------------------------------------------------------------
I-75 Conn............  US 24BR Pontiac.........  I-75.
US 2.................  WI State Line Ironwood..  WI State Line S. of
                                                  Crystal Falls.
US 2.................  WI State Line Iron        I-75 St. Ignace.
                        Mountain.
US 8.................  US 2 Norway.............  WI State Line.
US 10................  Ludington...............  I-75 Bay City.
US 12................  IN State Line...........  I-94 W. Jct. Ypsilanti.
US 23................  OH State Line...........  I-75 Mackinaw City.
US 24................  OH State Line...........  MI 15 Waterford.
US 24BR..............  US 24 S. of Pontiac.....  MI 1 Pontiac.
US 27................  IN State Line...........  I-75 S. of Grayling.
US 31................  IN State Line...........  I-75 Mackinaw City.
US 33................  IN State Line...........  US 12 Niles.
US 41................  WI State Line...........  Houghton.
US 45................  WI State Line...........  MI 26 Rockland.
US 127...............  OH State Line...........  I-69/US 27 N. of
                                                  Lansing.
US 131...............  IN State Line...........  US 31 Petoskey.
US 141...............  WI State Line S. of       US 41/MI 28.
                        Crystal Falls.
US 223...............  US 23...................  US 12/127 Somerset.
MI 10................  I-375 Detroit...........  Orchard Lake Road.
MI 13................  I-69 Lennon.............  I-75 Saginaw (via MI
                                                  81).
MI 13................  I-75 Kawkawlin (via I-75  US 23 Standish.
                        Conn.).
MI 14................  I-94 Ann Arbor..........  I-96/275 Plymouth.
MI 15................  US 24 Clarkston.........  MI 25 Bay City.
MI 18................  US 10...................  MI 61 Gladwin.
MI 20................  US 31 New Era...........  MI 37 White Cloud.
MI 20................  US 27 Mt. Pleasant......  US 10 Midland.
MI 21................  I-96 near Grand Rapids..  I-69 Flint.
MI 24................  I-75 Auburn Hills (via I- I-69 Lapeer.
                        75 Conn.).
MI 24................  MI 46...................  MI 81 Caro.
MI 26................  US 45 Rockland..........  MI 38.
MI 27................  I-75....................  US 23 Cheboygan.
MI 28................  US 2 Wakefield..........  I-75.
MI 32................  Hillman.................  Alpena.
MI 33................  Mio.....................  Fairview.
MI 35................  US 2/41 Escanaba........  US 2/41 Gladstone.
MI 36................  US 127 Mason............  Dansville.
MI 37................  MI 55...................  US 31/MI 72 Traverse
                                                  City.
MI 37................  I-96 Grand Rapids.......  MI 46 Kent City.
MI 38................  US 45 Ontonagon.........  US 41 Baraga.
MI 39................  I-75 Lincoln Park.......  MI 10 Southfield.
MI 40................  MI 89 Allegan...........  US 31BR/I-196BL
                                                  Holland.
MI 43................  MI 37 Hastings..........  US 127 Lansing.
MI 46................  US 131 Howard City......  MI 25 Port Sanilac.
MI 47................  I-675 Saginaw (via MI     US 10.
                        58).
MI 50................  MI 43/66 Woodbury.......  MI 99 Eaton Rapids.
MI 50................  US 127 S. Jct...........  I-75 Monroe.
MI 51................  US 12 Niles.............  I-94.
MI 52................  OH State Line...........  US 12 Clinton.
MI 52................  I-96 Webberville........  MI 46 W. of Saginaw.
MI 53................  MI 3 Detroit............  MI 25 Port Austin.
MI 55................  US 31 Manistee..........  I-75.
MI 55................  MI 65...................  US 23 Tawas City.

[[Page 407]]

 
MI 57................  US 131 N. of Rockford...  US 27.
MI 57................  MI 52 Chesaning.........  I-75 Clio.
MI 59................  US 24 BR Pontiac........  I-94.
MI 60................  MI 62 Cassopolis........  I-69/US 27.
MI 61................  MI 115..................  US 27 Harrison.
MI 61................  MI 18 Gladwin...........  US 23 Standish.
MI 63................  US 31 Scottdale.........  I-196.
MI 65................  US 23 Omer..............  MI 55.
MI 65................  MI 72 Curran............  MI 32.
MI 65................  Posen...................  US 23 N. of Posen.
MI 66................  IN State Line...........  US 12 Sturgis.
MI 66................  Battle Creek............  MI 78.
MI 66................  MI 43/50 Woodbury.......  MI 46 Edmore.
MI 67................  US 41 Trenary...........  MI 94 Chatham.
MI 68................  US 31/131 Petoskey......  US 23 Rogers City.
MI 69................  US 2/141 Crystal Falls..  MI 95 Sagola.
MI 72................  US 31/MI 37 Traverse      US 23 Harrisville.
                        City.
MI 77................  US 2....................  MI 28 Seney.
MI 78................  MI 66...................  I-69 Olivet.
MI 81................  MI 24 Caro..............  MI 53.
MI 82................  MI 37 S. Jct. Newago....  US 131.
MI 83................  Frankenmuth.............  I-75.
MI 84................  I-75....................  MI 25 Bay City.
MI 89................  MI 40 Allegan...........  US 131.
MI 94................  US 41...................  MI 28 Munising.
MI 95................  US 2 Iron Mountain......  US 41/MI 28.
MI 104...............  US 31 Grand Haven.......  I-96.
MI 115...............  US 27...................  MI 22 Frankfort.
MI 117...............  US 2 Engadine...........  MI 28.
MI 123...............  I-75 N. of St. Ignace...  MI 28.
MI 142...............  MI 25 Bay Port..........  MI 53.
MI 205...............  IN State Line...........  US 12 W. of Union.
------------------------------------------------------------------------
                                Minnesota
------------------------------------------------------------------------
US 2.................  ND State Line E. Grand    I-35 Duluth.
                        Forks.
US 10................  CH 11 E. of Moorhead....  I-694 Arden Hills.
US 12................  US 59 Holloway..........  I-94 Minneapolis.
US 14................  US 75 Lake Benton.......  US 52 Rochester.
US 52................  I-90 S. of Rochester....  MN 110 Inver Grove Hts.
US 53................  I-35/535 Duluth.........  US 169 S. Int.
                                                  Virginia.
US 59................  I-90 Worthington........  MN 30 S. Int. Slayton.
US 59................  MN 7 Appleton...........  US 12 Holloway.
US 59................  I-94 N. Int. Fergus       MN 175 Lake Bronson.
                        Falls.
US 61................  WI State Line...........  MN 60 Wabasha.
US 61................  MN 55 Hastings..........  I-94 St. Paul.
US 61................  I-35 Duluth.............  CH 2 Two Harbors.
US 63................  I-90 Rochester..........  US 52 Rochester.
US 63................  MN 58 Red Wing..........  WI State Line.
US 71................  IA State Line...........  MN 34 Park Rapids.
US 75................  I-90....................  US 2 Crookston.
US 75................  MN 175 Hallock..........  Canadian Border.
US 169...............  I-90 Blue Earth.........  US 212 Chanhassen.
US 169...............  I-94 Brooklyn Park......  MN 23 Milaca.
US 169...............  US 2 Grand Rapids.......  US 53 S. Int. Virginia.
US 212...............  SD State Line...........  MN 62 Edina.
US 218...............  I-90 Austin.............  US 14 Owatonna.
MN 1.................  ND State Line...........  US 59/MN 32 Thief River
                                                  Falls.
MN 3.................  MN 110 Inver Grove Hts..  I-94 St. Paul.
MN 5.................  MN 22 Gaylord...........  US 212.
MN 7.................  US 75 near Odessa.......  MN 100 St. Louis Park.
MN 9.................  US 12 Benson............  US 59 Morris.
MN 11................  MN 32 Greenbush.........  MN 72 Baudette.
MN 13................  I-90....................  MN 14 Waseca.
MN 15................  I-90 Fairmont...........  MN 60.
MN 15................  US 14 New Ulm...........  MN 19 Winthrop.
MN 19................  US 59 Marshall..........  MN 22 Gaylord.
MN 22................  MN 109 Wells............  US 14/MN 60 Mankato.
MN 22................  US 212 Glencoe..........  US 12 Litchfield.
MN 23................  US 75 Pipestone.........  I-35 near Hinckley.
MN 24................  I-94 Clearwater.........  US 10 Clear Lake.
MN 25................  I-94 Monticello.........  US 10 Big Lake.
MN 27................  MN 29 Alexandria........  MN 127 Osakis.
MN 27................  US 71 N. Int. Long        US 10 Little Falls.
                        Prairie.
MN 28................  SD State Line Browns      I-94/US 71 Sauk Centre.
                        Valley.
MN 29................  I-94 Alexandria.........  MN 27 Alexandria.
MN 30................  US 75 Pipestone.........  US 59 S. Int. Slayton.
MN 32................  US 59/MN 1 Thief River    MN 11 Greenbush.
                        Falls.
MN 33................  I-35 Cloguet............  US 53 Independence.
MN 34................  US 71 Park Rapids.......  MN 371 Walker.
MN 36................  I-35W Roseville.........  MN 95 Oak Park Hts.
MN 43................  I-90 Wilson.............  US 61 Winona.
MN 55................  MN 28 Glenwood..........  7th St. N., W. Int.
                                                  Minneapolis.
MN 55................  I-94 E. Int. Minneapolis  MN 3 Inver Grove Hts.
MN 60................  IA State Line Bigelow...  US 14/169 Mankato.
MN 62................  US 212 Edina............  MN 100 Edina.
MN 65................  I-694 Fridley...........  MN 23 Mora.
MN 68................  US 75 Canby.............  MN 19 Marshall.
MN 101...............  I-94 Rogers.............  US 10 Elk River.
MN 109...............  I-90 Alden..............  MN 22 Wells.
MN 175...............  US 75 Hallock...........  US 59.
MN 210...............  ND State Line             US 59 W. Int. Fergus
                        Breckenridge.             Falls.
MN 210...............  US 10 Motley............  I-35 Carlton.
MN 371...............  US 10 Little Falls......  US 2 Cass Lake.
 
NOTE: I-35E St. Paul--The parkway segment of I-35E from 7th Street to I-
   94 is not available to trucks because of reduced design standards.
------------------------------------------------------------------------
                               Mississippi
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                Missouri
------------------------------------------------------------------------
US 24................  I-435 Kansas City.......  US 65 Waverly.
US 24................  US 36 E. Jct. W. of       IL State Line.
                        Hannibal.
US 36................  KS State Line St. Joseph  IL State Line Hannibal.
US 40................  I-70 Wentzville.........  I-270 W. of St. Louis.
US 50................  I-470 Exit 7 Kansas City  I-44 Exit 247 Union.
US 54................  US 54BR Lake Ozark......  IL State Line.
US 59................  KS State Line...........  I-229 St. Joseph.
US 60................  OK State Line...........  US 71 Neosho.
US 60................  MO 37 Monett............  US 63 Cabool.

[[Page 408]]

 
US 60................  2 Mi. E. of E. Jct. MO    I-55/57 Sikeston.
                        21 Ellsinore.
US 61................  I-70 Wentzville.........  IA State Line.
US 63................  AR State Line Thayer....  IA State Line.
US 65................  AR State Line Ridgedale.  IA State Line.
US 67................  AR State Line...........  I-55 Exit 174 Crystal
                                                  City.
US 67................  MO 367 N. of St. Louis..  IL State Line.
US 71................  AR State Line...........  I-435/470 Kansas City.
US 71................  I-29 Exit 53 N. of St.    US 136 Maryville.
                        Joseph.
US 71 Alt............  I-44 E. of Joplin.......  US 71 Carthage.
US 136...............  NE State Line...........  I-29 Exit 110 Rock
                                                  Port.
US 166...............  KS State Line...........  I-44 SW. of Joplin.
US 169...............  I-29 Kansas City........  MO 152 Kansas City.
US 412...............  AR State Line...........  I-55 Exit 19 Hayti.
MO 5.................  AR State Line...........  US 60 Mansfield.
MO 7.................  US 71 Harrisonville.....  MO 13 Clinton.
MO 13................  I-44 Springfield........  US 24 Lexington.
MO 25................  US 412 near Kennett.....  US 60 Dexter.
MO 37................  MO 76 Cassville.........  US 60 Monett.
MO 47................  US 50 Union.............  MO 100 Washington.
MO 84................  AR State Line...........  US 412 near Kennett.
MO 100...............  MO 47 Washington........  I-44 SE. of Washington.
MO 171...............  KS State Line/KS 57.....  US 71 Webb City.
MO 367...............  I-270 N. of St. Louis...  US 67 N. of St. Louis.
------------------------------------------------------------------------
                                 Montana
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                Nebraska
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                 Nevada
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                              New Hampshire
------------------------------------------------------------------------
 
US 3.................  MA State Line...........  NH 101A Nashua.
US 4/Spaulding Tpk...  I-95 Portsmouth.........  Exit 6 E. of Durham.
------------------------------------------------------------------------
                               New Jersey
------------------------------------------------------------------------
 
US 130...............  US 322 Bridgeport.......  I-295 Logan Township.
US 130...............  I-295/NJ 44 West          I-295 West Deptford.
                        Deptford.
US 322...............  PA State Line...........  US 130 Bridgeport.
NJ 42................  Atlantic City Expwy.      I-295 Bellmawr.
                        Turnersville.
NJ 81................  I-95 Elizabeth..........  US 1/9 Newark Intl.
                                                  Airport.
NJ 440...............  I-287/I-95 Edison.......  NY State Line
                                                  Outerbridge Crossing.
------------------------------------------------------------------------
  Note: I-95--The following two sections of the New Jersey Turnpike are
     available to STAA-dimensioned vehicles. They were added to the
  Interstate System on March 3, 1983, but are not signed as Interstate.
------------------------------------------------------------------------
PA Tpk. Connector....  PA State Line...........  Exit 6 Mansfield.
NJ Tpk...............  Exit 6 Mansfield........  Exit 10 Edison.
------------------------------------------------------------------------
                               New Mexico
------------------------------------------------------------------------
US 56................  I-25 Springer...........  OK State Line.
US 60................  AZ State Line...........  I-25 Socorro.
US 62................  US 285 Carlsbad.........  Tx State Line.
US 64................  AZ State Line...........  NM 516 Farmington.
US 70................  AZ State Line...........  I-10 Lordsburg.
US 70................  I-10 Las Cruces.........  U.S. 54 Tularosa.
US 70................  US 285 Roswell..........  U.S. 84 Clovis.
NM 80................  AZ State Line...........  I-10 Road Forks.
US 84................  Tx State Line Clovis....  CO State Line.
US 87................  US 56 Clayton...........  Tx State Line.
US 160...............  Az State Line (Four       CO State Line.
                        Corners).
US 285...............  Tx State Line s. of       CO State Line.
                        Carlsbad.
US 491...............  1-40 Gallup.............  CO State Line.
NM 516...............  U.S. 64 Farmington......  U.S. 550 Aztec.
US 550...............  NM 516 Aztec............  CO State Line.
------------------------------------------------------------------------
                                New York
------------------------------------------------------------------------
US 15................  Presho Int..............  NY 17 Corning.
US 20................  NY 75 Mt. Vernon........  Howard Rd. Mt. Vernon.
US 219...............  NY 39 Springville.......  I-90 S. of Exit 55.
NY 5.................  NY 174 Camillus.........  NY 695 Fairmont.
NY 5.................  ECL Schenectady.........  I-87 Colonie.
NY 5.................  NY 179 Woodlawn Beach...  NY 75 Mt. Vernon.
NY 7.................  Schenectady/Albany Co.    I-87 Colonie.
                        Line.
NY 8.................  CR 9/Main St. Sauquoit..  I-790 Utica.
NY 12................  I-790 Utica.............  Putnam Road Trenton.
NY 17................  Exit 24 Allegany........  I-87 Exit 16 Harriman.
NY 17................  NJ State Line...........  I-87 Exit 15 Suffern.
NY 33................  Michigan Ave. Buffalo...  Greater Buffalo Intl.
                                                  Airport.
NY 49................  NY 365 Rome.............  NY 291 near Oriskany.
NY 104...............  Maplewood Dr. Rochester.  Monroe/Wayne Co. Line.
NY 179...............  NY 5 Woodlawn Beach.....  I-90 Exit 56 Windom.
NY 198...............  I-190 Exit N11..........  NY 33 Buffalo.
NY 254...............  I-87 Glens Falls........  0.3 Miles E. of US 9.
NY 365...............  I-90 Exit 33............  NY 49 Rome.
NY 390...............  I-390/490 Rochester.....  NY 18 North Greece.
NY 400...............  I-90 Exit 54............  NY 16 South Wales.
NY 481...............  I-81 North Syracuse.....  NY 3 Fulton.
NY 590...............  I-490/590 Rochester.....  NY 104 Irondequoit.
NY 690...............  I-90/690 Lakeland.......  NY 370 Baldwinsville.
NY 695...............  NY 5 Fairmont...........  I-690 Solvay.

[[Page 409]]

 
Berkshire Conn. (NY    I-87 Exit 21A S. of       I-90 Exit B1.
 912M).                 Albany.
Inner Loop (NY 940T).  I-490 W. Int. Rochester.  I-490 E. Int.
                                                  Rochester.
Walden Avenue (NY      I-90 Exit 52............  NY 277 Cheektowaga.
 952Q).
Sheridan Boulevard     I-278 Bruckner            I-95 Cross Bronx
 (NY 895).              Expressway.               Expressway.
------------------------------------------------------------------------
                             North Carolina
------------------------------------------------------------------------
I-40 Conn............  US 19/23/74 Clyde.......  I-40 W. of Clyde.
I-95 BR..............  I-95 S. of Fayetteville.  I-95 N. of
                                                  Fayetteville.
US 1.................  US 74 Rockingham........  I-85 near Henderson.
US 15................  US 401 Laurinburg.......  US 1 Aberdeen.
US 15................  US 1 Northview..........  US 64 Pittsboro.
US 17................  SC State Line...........  US 74/76 W. of
                                                  Wilmington.
US 17................  SR 1409 E. of Wilmington  VA State Line.
US 19/US 23..........  I-240 Asheville.........  N. Int. Mars Hill.
US 23................  US 441 Franklin.........  US 74 Dillsboro.
US 25................  SC State Line...........  I-26 East Flat Rock.
US 25/US 70..........  US 19/23 Weaverville....  US 25/70 Bypass
                                                  Marshall.
US 29................  US 52 Lexington.........  VA State Line.
US 52................  NC 24/27 Albemarle......  VA State Line.
US 64................  I-40 Morganton..........  US 321 Lenoir.
US 64................  US 29 Lexington.........  US 15 Pittsboro.
US 64................  US 1/70/401 Raleigh.....  US 17 Williamston.
US 70................  I-77 Statesville........  I-85 Salisbury (via US
                                                  601).
US 70................  I-85 Durham.............  US 70A W. of
                                                  Smithfield.
US 70A...............  US 70 W. of Smithfield..  US 70 Princeton.
US 70................  US 70A Princeton........  Beaufort.
US 74................  TN State Line...........  I-40 Conn. Clyde.
US 74................  US 221 Rutherfordton....  I-85 Kings Mountain.
US 74 (See Note        I-277 Charlotte.........  US 17 W. Int.
 Below).                                          Wilmington.
US 74................  I-26 EXIT 36............  US 74 ALT: near Forest
                                                  City.
US 76................  US 17/74 W. Int.          SR 1409 E. of
                        Wilmington.               Wilmington.
US 158...............  I-40 Winston-Salem......  US 29 Reidsville.
US 158...............  I-85 Henderson..........  US 258 Murfreesboro.
US 220...............  US 74 Rockingham........  VA State Line.
US 221...............  US 74 Rutherfordton.....  I-40 Glenwood.
US 258...............  NC 24 N. Int. Richlands.  US 64 Tarboro.
US 258...............  US 158 Murfreesboro.....  VA State Line.
US 264...............  US 64 Zebulon...........  US 17 Washington.
US 301...............  I-95 Kenly..............  NC 4 Battleboro.
US 321...............  SC State Line...........  I-85 Gastonia.
US 321...............  I-40 Hickory............  NC 18/90 Lenoir.
US 401...............  SC State Line...........  I-40 Raleigh.
US 421...............  Carolina Beach..........  I-95 Dunn.
US 421...............  US 1 Sanford............  US 64 Siler City.
US 421...............  I-40 Winston-Salem......  Wilkesboro.
US 521...............  SC State Line...........  I-77 Charlotte.
US 601...............  SC State Line...........  US 74 Monroe.
NC 4.................  I-95 Gold Rock..........  US 301 Battleboro.
NC 11................  US 70 Kinston...........  US 264 Greenville.
NC 24................  US 74 Charlotte.........  US 52 Albemarle.
NC 24................  NC 87 Spout Springs.....  I-95 Fayetteville.
NC 24................  US 421 Clinton..........  US 70 Mansfield.
NC 49................  I-85 Charlotte..........  US 64 Asheboro.
NC 87................  NC 24/27 Spout Springs..  US 1 Sanford.
SR 1409..............  US 76 E. of Wilmington..  US 17.
SR 1728..............  I-40 W. of Raleigh......  US 1/Wade Ave. Raleigh.
SR 1959-SR 2028......  US 70 Bethesda..........  I-40 S. of Durham.
 
  Note: US 74 Charlotte--STAA-dimensioned vehicles are subject to State
    restrictions on US 74 in Charlotte because of narrow lane widths.
------------------------------------------------------------------------
                              North Dakota
------------------------------------------------------------------------
US 2.................  MT State Line...........  MN State Line Grand
                                                  Forks.
US 10................  I-94 W. Fargo...........  MN State Line.
US 12................  MT State Line Marmarth..  SD State Line.
US 52................  I-94 Jamestown..........  Canadian Border.
US 81................  I-29 Manvel.............  I-29 Joliette.
US 83................  SD State Line...........  Canadian Border
                                                  Westhope.
US 85................  SD State Line...........  Canadian Border
                                                  Fortuna.
US 281...............  SD State Line Ellendale.  Canadian Border.
ND 1.................  ND 11 Ludden............  ND 13 S. Jct.
ND 5.................  MT State Line...........  US 85 Fortuna.
ND 11................  US 281 Ellendale........  ND 1 Ludden.
ND 13................  ND 1 S. Jct.............  MN State Line.
ND 32................  West Junction of ND       1-94.
                        Highway 13.
ND 68................  MT State Line...........  US 85 Alexander.
ND 200...............  MT State Line...........  US 85 Alexander.
------------------------------------------------------------------------
                                  Ohio
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                Oklahoma
------------------------------------------------------------------------
  No additional routes have been federally designated; STAA-dimensioned
   commercial vehicles may legally operate on all Federal-aid Primary
                        highways under State law.
------------------------------------------------------------------------
                                 Oregon
------------------------------------------------------------------------
US 20................  OR 34 W. Int. Philomath.  ECL Sweet Home.
US 20................  OR 126 Sisters..........  ID State Line Nyssa.
US 26................  US 101 Cannon Beach       OR 126 Prineville.
                        Junction.
US 30................  US 101 Astoria..........  I-405 Portland.
US 30 BR.............  OR 201 Ontario..........  ID State Line.
US 95................  NV State Line...........  ID State Line.
US 95 Spur...........  OR 201..................  ID State Line Weiser,
                                                  ID.
US 97................  CA State Line...........  WA State Line.
US 101...............  SCL Port Orford.........  OR 126 Florence.
US 101...............  US 20 Newport...........  OR 18 Otis.
US 101...............  OR 6 Tillamook..........  WA State Line.
US 197...............  I-84 The Dalles.........  WA State Line.

[[Page 410]]

 
US 199...............  CA State Line...........  OR 99 Grants Pass.
US 395...............  CA State Line...........  US 26 John Day.
US 395...............  I-84 Stanfield..........  US 730 near Umatilla.
US 730...............  I-84 Boardman...........  WA State Line.
OR 6.................  US 101 Tillamook........  US 26 Near Banks.
OR 8.................  OR 47 Forest Grove......  OR 217 Beaverton.
OR 11................  I-84 Pendelton..........  WA State Line.
OR 18................  US 101 Otis.............  OR 99W Dayton.
OR 19................  OR 206 Condon...........  I-84 Arlington.
OR 22................  OR 18 near Willamina....  US 20 Santiam Junction.
OR 31................  US 97 La Pine...........  US 395 Valley Falls.
OR 34................  OR 99W Corvallis........  US 20 Lebanon.
OR 35................  US 26 Government Camp...  I-84 Hood River.
OR 38................  US 101 Reedsport........  I-5 Anlauf.
OR 39................  CA State Line...........  OR 140 E. of Klamath
                                                  Falls.
OR 42................  US 101 Coos Bay.........  OR 42S Coquille.
OR 47................  OR 8 Forest Grove.......  US 26 N. of Banks.
OR 58................  I-5 Eugene..............  US 97 near Chemult.
OR 62................  Medford.................  OR 140 White City.
OR 78................  Burns...................  US 95 Burns Junction.
OR 99................  I-5 E. of Rogue River...  I-5 Grants Pass.
OR 99................  I-5 Eugene..............  OR 99W/E Junction City.
OR 99E...............  OR 99/99W Junction City.  I-5 Albany.
OR 99E...............  I-5 Salem...............  I-5 Portland.
OR 99W...............  OR 99/99E Junction City.  I-5 Portland.
OR 126...............  US 101 Florence.........  US 26 Prineville.
OR 138...............  OR 38 Elkton............  I-5 near Sutherlin.
OR 140...............  OR 62 White City........  OR 39 E. of Klamath
                                                  Falls.
OR 201...............  US 26 Cairo.............  US 95 Spur near Weiser,
                                                  ID.
OR 207...............  US 730 Cold Springs Jct.  OR 74 S. Int. Heppner.
OR 212...............  OR 224 E. Int. near Rock  US 26 near Boring.
                        Ck. Corner.
OR 214...............  I-5 Woodburn............  OR 213 Silverton.
OR 217...............  US 26 Beaverton.........  I-5 Tigard.
OR 223...............  Kings Valley Hwy. in      OR 99W Rickreall.
                        Dallas.
OR 224...............  OR 99E Milwaukie........  OR 212 E. Int. near
                                                  Rock Ck. Corner
------------------------------------------------------------------------
                              Pennsylvania
------------------------------------------------------------------------
US 1.................  US 13 Morrisville.......  NJ State Line.
US 6.................  Conneaut Lake Borough...  End of 4-lane Bypass
                                                  NE. of Meadville.
US 11................  Turnpike Int. 16........  US 15 Harrisburg.
US 13................  US 1 Morrisville........  Turnpike Int. 29.
US 15................  Turnpike Int. 17........  US 11 Harrisburg Expwy.
US 15................  PA 642 West Milton......  White Deer Int.
US 15................  I-180/US 220              End of lim. acc.
                        Williamsport.             Williamsport.
US 20................  PA 89 North East........  I-90 Int. 12.
US 22................  WV State Line...........  I-79 Int. 15 Carnegie.
US 22................  I-78 Fogelsville........  NJ State Line.
US 30................  End of lim. acc. W. of    End of lim. acc. E. of
                        Greensburg.               Greensburg.
US 30................  PA 462 W. of York.......  PA 462 E. of Lancaster.
US 119...............  End of lim. acc. S. of    US 30 Greensburg.
                        Uniontown.
US 202...............  DE State Line...........  I-76 Int. 26 King of
                                                  Prussia.
US 209...............  PA 33 Snydersville......  I-80 Stroudsburg.
US 219...............  PA 601 N. of Somerset...  US 422 W. Int.
US 219...............  South Bradford Int......  NY State Line.
US 220...............  Turnpike Int. 11........  King.
US 220...............  End of lim. acc. Linden.  I-180/US 15
                                                  Williamsport.
US 220...............  PA 199 S. of Athens.....  NY State Line NY 17.
US 222...............  US 422 N. Int. Reading..  PA 61 S. of Tuckerton.
US 222...............  US 30 Lancaster.........  Turnpike Int. 21.
US 322...............  NJ State Line (Comm.      I-95 Chester.
                        Barry Br.).
US 322...............  I-83/283................  US 422/PA 39 Hershey.
US 422...............  US 322/PA 39 Hershey....  Hockersville Rd.
                                                  Hershey.
US 422...............  US 422 Bus. Reiffton....  US 422 Bus. Wyomissing.
PA 3.................  US 202..................  Garrett Rd. Upper
                                                  Darby.
PA 9.................  Turnpike Int. 25........  I-81 Int. 58 N. of
                                                  Scranton.
PA 28................  PA 8....................  Creighton.
PA 33................  US 22 Easton............  I-80.
PA 42................  I-80 Int. 34............  US 11 Bloomsburg.
PA 51................  US 119 Uniontown........  Monongahela Riv.
                                                  Elizabeth.
PA 54................  I-80 Int. 33............  US 11 Danville.
PA 60................  PA 51 Beaver Falls......  US 22.
PA 60-US 422.........  I-80 Int. 1.............  1 Mile E. of PA 65 New
                                                  Castle.
PA 61................  US 222 S. of Tuckerton..  I-78 Int. 9.
PA 93................  I-81 Int. 41............  PA 924 Hazelton.
PA 114...............  US 11 Hogestown.........  I-81 Int. 18.
PA 132...............  I-95 Cornwells Heights..  Turnpike Int. 28 (via
                                                  US 1 Connection).
PA 283...............  I-283 Int. 2............  US 30 Lancaster.
PA 924...............  I-81 Int. 40............  PA 93 Hazelton.
Airport Access (SR     PA 283..................  Harrisburg
 3032).                                           International Airport.
Harrisburg Exp. (Sr    US 11/15................  I-83 Int. 20.
 2022).
Reading Outer Loop     PA 183 Leinbachs........  US 222.
 (SR 3055).
------------------------------------------------------------------------
                               Puerto Rico
------------------------------------------------------------------------
PR 1.................  PR 2 Ponce..............  PR 52 Ponce.
PR 2.................  PR 22 San Juan..........  PR 1 Ponce.
PR 3.................  N. Ent. Roosevelt Roads   PR 26 Carolina.
                        Naval Sta..
PR 18................  PR 52 San Juan..........  PR 22 San Juan.
PR 22................  PR 26 San Juan..........  PR 165 Toa Baja.
 
PR 26................  PR 22 San Juan..........  PR 3 Carolina.
PR 30................  PR 52 Caguas............  PR 3 Humacao.
PR 52................  PR 1 Ponce..............  PR 18 San Juan.
PR 165...............  PR 22 Toa Baja..........  PR 2 Toa Baja.
 

[[Page 411]]

 
 Note: Routes added to the Interstate System under 23 U.S.C. 139(c) are
              included only to the extent designated above.
------------------------------------------------------------------------
                              Rhode Island
------------------------------------------------------------------------
RI 10................  RI 195 Providence.......  I-95 Cranston.
RI 37................  I-295 Cranston..........  I-95 near Lincoln Park.
RI 146...............  I-95 Providence.........  I-295 N. of Lime Rock.
RI 195...............  I-295 Johnston..........  RI 10 Providence.
------------------------------------------------------------------------
                             South Carolina
------------------------------------------------------------------------
US 15/401............  NC State Line...........  US 52 Society Hill.
US 17................  I-95 Pocotaligo.........  US 21 Gardens Corner.
US 17................  I-26 Charleston.........  NC State Line.
US 21................  US 17 Gardens Corner....  SC 170 Beaufort.
US 25................  NC State Line...........  US 78 North Augusta
                                                  (via Greenwood
                                                  Bypass).
US 52................  US 15/401 Society Hill..  End of 4-ln. div. N. of
                                                  urban limits of
                                                  Kingstree.
US 52................  US 17 A1t. S. Int.        I-26 Exit 208 N.
                        Moncks Corner.            Charleston connector.
US 76................  US 52 Florence..........  SC 576 Marion.
US 76................  SC 277 Columbia.........  I-126 Columbia.
US 78................  GA State Line...........  I-95 St. George.
US 78................  I-26 Exit 205 N.          US 52 N. Charleston.
                        Charleston.
US 123...............  Bibb St. Westminister...  US 25 Greenville.
US 21/178 Bypass.....  US 601 Orangeburg.......  Orangeburg.
US276................  I-385 Simpsonville......  I-85 Greenville.
US 301...............  US 321 Ulmer............  I-95 Santee.
US 321...............  I-26 S. of Columbia.....  I-95 Hardeeville.
US 378...............  SC 262 Columbia.........  US 501 Conway.
US 501...............  SC 576 Marion...........  US 17 Myrtle Beach.
US 601...............  NC State Line...........  SC 151 Pageland.
US 601...............  I-26 Jamison............  US 21/178 Bypass
                                                  Orangeburg.
SC 72................  US 25 Byp. Greenwood....  I-77 Exit 61 (via SC 72
                                                  Byp.-US 21 BR-US 21
                                                  Rock Hill).
SC 121...............  SC 72 Whitmire..........  US 25 Trenton.
SC 151...............  US 601 Pageland.........  US 52 Darlington.
SC 2 77..............  I-77 Columbia...........  US 76 Columbia.
SC 576...............  US 76 Marion............  US 501 Marion.
------------------------------------------------------------------------
                              South Dakota
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                Tennessee
------------------------------------------------------------------------
US 25E...............  I-81....................  VA State Line
                                                  Cumberland Gap.
US 27................  End of I-124 Chattanooga  US 127 Chattanooga.
US 27................  TN 153 Chattanooga......  KY State Line Winfield.
US 43................  AL State Line St. Joseph  US 64 Lawrenceburg.
US 45................  MS State Line...........  US 45 Bypass S. Int.
                                                  Jackson.
US 45 Bypass-US 45W..  US 45 S. Int. Jackson...  US 51 Union City.
US 51................  TN 300 Memphis..........  KY State Line Jackson
                                                  Purchase Pkwy.
US 64................  I-40 E. Int. Memphis....  I-24 Monteagle.
US 70 Alt............  US 79 Atwood............  TN 22 Huntingdon.
US 70................  TN 22 Huntingdon........  TN 96 Dickson.
US 70................  TN 155 Nashville........  US 127 Crossville.
US 70S...............  TN 102 Smyrna...........  US 70/TN 111 Sparta.
US 72................  AL State Line...........  I-24 Kimball.
US 74................  I-75 Cleveland..........  NC State Line IsabelIa.
US 79................  I-40 Memphis............  KY State Line US 41
                                                  Guthrie.
US 127...............  US 27 Chattanooga.......  TN 27 W. Int.
US 127...............  TN 28 Dunlap............  KY State Line Static.
US 231...............  AL State Line S. of       KY State Line N. of
                        Fayetteville.             Westmoreland.
US 412...............  I-40 Jackson............  US 51 Dyersburg.
US 641...............  I-40 near Natchez Trace   KY State Line N. of
                        State Park.               Paris.
TN 96................  US 70 Dickson...........  I-40 E. of Dickson.
TN 153...............  I-75 Chattanooga........  US 27 Chattanooga.
TN 155...............  I-40 Nashville..........  I-65 N. of Nashville.
TN 300...............  I-40 Memphis............  US 51 Memphis.
------------------------------------------------------------------------
                                  Texas
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                  Utah
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                                 Vermont
------------------------------------------------------------------------
US 4.................  NY State Line...........  ECL Rutland.
US 7.................  End of 4-lane divided     US 4 N. Int. Rutland.
                        hwy. Wallingford.
VT 9.................  I-91 Int. 3 N. of         NH State Line.
                        Brattleboro.
------------------------------------------------------------------------
                                Virginia
------------------------------------------------------------------------
US 11................  I-81 Exit 195...........  0.16 Mi. N. of VA 645
                                                  Rockbridge Co.
US 11................  VA 220 Alt. N. Int......  2.15 Mi. S. of VA 220
                                                  Alt. N. Int.
                                                  Cloverdale.
US 11................  VA 100 Dublin...........  VA 643 S. of Dublin.
US 11................  1.52 Mi. N. of VA 75....  US 19 N. Int. Abington.
US 13................  MD State Line...........  I-64 Exit 282 Norfolk.
US 17................  US 29 Opal..............  VA 2/US 17 BR New Post.
US 17................  VA 134 York County......  I-64 Exit 258 Newport
                                                  News.
US 17................  BR/SCL Fredericksburg...  US 17 New Post VA 2.

[[Page 412]]

 
US 19................  I-81 Exit 14 (via VA      US 460 N. Int./VA 720
                        140) Abington.            Bluefield.
US 23................  TN State Line...........  US 58 Alt. Big Stone
                                                  Gap.
US 23................  0.33 Mi. N. of US 23 BR   KY State Line.
                        Norton.
US 25E...............  TN State Line...........  KY State Line.
US 29................  NC State Line...........  I-66 Exit 43
                                                  Gainesville.
US 33................  N. Carlton Street         US 340 Elkton.
                        Harrisonburg.
US 33................  I-295 Exit 49...........  0.96 Mi. W. of I-295
                                                  Hanover County.
US 50................  VA 259 Gore.............  VA 37 Frederick County.
US 50................  Apple Blossom Loop Road   I-81 Exit 313
                        Winchester.               Winchester.
US 58................  VA 721 W. of              US 220 BR N. Int.
                        Martinsville.             Martinsville.
US 58................  S. Fairy Street           WCL Emporia.
                        Martinsville.
US 58................  0.6 Mi. E. of ECL         VA 35 S. Int.
                        Emporia.                  Courtland.
US 58................  US 58 BR E. of Courtland  US 13/I-264 Bowers
                                                  Hill.
US 58 Alt............  US 23 Norton............  US 19 Hansonville.
US 58 Alt............  0.4 Mi. W. of US 11.....  I-81 Exit 17 Abington.
US 58 BR.............  VA 35 Courtland.........  US 58 E. of Courtland.
US 58................  W. Int. VA 337 Claremont  US 460/St. Paul's Blvd.
                        St. Norfolk.              Norfolk.
US 60................  0.03 Mi. West of VA 887   US 522 Powhatan.
                        Chesterfield County.
US 220...............  NC State Line...........  I-581 Roanoke.
US 220...............  I-81 Exit 150...........  SCL Fincastle.
US 220 BR............  US 220 S. Int...........  0.16 Mi. N. of VA 825
                                                  S. of Martinsville.
US 220 BR............  US 58 N. Int.             US 220 N. Int. Bassett
                        Martinsville.             Forks.
US 250...............  US 340 E. Int.            VA 254 Waynesboro.
                        Waynesboro.
US 250...............  I-81 Exit 222...........  VA 261 Statler Blvd.
                                                  Staunton.
US 258...............  NC State Line...........  US 58 Franklin.
US 258...............  VA 10 Benns Church......  VA 143 Jefferson Ave.
                                                  Newport News.
US 301...............  VA 1250 S. of I-295.....  I-295 Exit 41 Hanover
                                                  County.
US 301...............  US 301 BR N. Int.         MD State Line.
                        Bowling Green.
US 340/522...........  I-66 Exit 6 Front Royal.  2.85 Mi. N. of I-66.
US 340...............  VA 7 Berryville.........  WV State Line.
US 360...............  US 58 South Boston......  VA 150 Chesterfield
                                                  County.
US 360...............  I-64 Exit 192 Richmond..  VA 617 Village.
US 460...............  VA 67 W. Int. Raven.....  US 19 Claypool Hill.
US 460...............  VA 720 Bluefield........  WV State Line at
                                                  Bluefield.
US 460...............  WV State Line at Glen     I-81 Exit 118
                        Lyn.                      Christiansburg.
US 460...............  I-581 Roanoke...........  0.08 Mi. E. of VA 1512
                                                  Lynchburg.
US 460...............  US 29 Lynchburg.........  1 Mi. W. of VA 24
                                                  Appomattox County.
US 460...............  0.64 Mi. E. of VA 707     I-85 Exit 61
                        Appomattox County.        Petersburg.
US 460...............  I-95 Exit 50 Petersburg.  US 58 Suffolk.
US 501...............  VA 360 S. Int. Halifax..  US 58 South Boston.
US 522...............  0.6 Mi. S. of US 50.....  US 50 Frederick County.
US 522...............  VA 37 Frederick County..  1.07 Mi. N. of VA 705
                                                  Cross Junction.
VA 3.................  US 1 Fredericksburg.....  VA 20 Wilderness.
VA 7.................  I-81 Exit 315 Winchester  0.68 Mi. W. of WCL
                                                  Round Hill.
VA 10................  US 58 Suffolk...........  VA 666 Smithfield.
VA 10................  ECL Hopewell............  0.37 Mi. W. of W. Int.
                                                  VA 156 Hopewell.
VA 10................  US 1 Chesterfield County  VA 827 W. of Hopewell.
VA 20................  I-64 Exit 121...........  Carlton Rd.
                                                  Charlottesville.
VA 30................  I-95 Exit 98 Doswell....  US 1.
VA 33................  I-64 Exit 220...........  VA 30 E. Int. West
                                                  Point.
VA 36................  I-95 Exit 52 Petersburg.  VA 156 Hopewell.
VA 37................  I-81 Exit 310 S. of       I-81 Exit 317 (via US
                        Winchester.               11) N. of Winchester.
VA 42................  VA 257 S. Int.            VA 290 Dayton.
                        Bridgewater.
VA 57................  VA 753 Bassett..........  US 220 Bassett Forks.
VA 86................  US 29 Danville..........  NC State Line.
VA 100...............  I-81 Exit 98............  US 11 Dublin.
VA 105...............  US 60 Newport News......  I-64 Exit 250.
VA 114...............  US 460 Christians- burg.  0.09 Mi. E. of VA 750
                                                  Montgomery County.
VA 156...............  VA 10 W. Int. Hopewell..  VA 36 Hopewell.
VA 199...............  US 60 Williamsburg......  I-64 Exit 242.
VA 207...............  I-95 Exit 104...........  0.2 Mi. S. of VA 619
                                                  Milford.
VA 220 Alt...........  US 11 N. Int. N. of       I-81 Exit 150/US 220.
                        Cloverdale.
VA 277...............  I-81 Exit 307 Stephens    1.6 MI. E. of I-81 Exit
                        City.                     307.
VA 419...............  I-81 Exit 141 Salem.....  Midland Ave. Salem.
VA 624...............  I-64 Exit 96............  Old SCL Waynesboro.
Commonwealth Blvd. in  Market Street...........  N. Fairy Street.
 Martins- ville.
 

[[Page 413]]

 
Note 1: I-66 Washington, DC, area--There is a 24-hour total truck ban on
 I-66 from I-495 Capital Beltway to the District of Columbia. (Excepted
                        under 23 CFR 658.11(f)).
 
  Note 2: I-264 Norfolk--Truck widths are limited to 96 inches for the
  westbound tube of the Elizabeth River Downtown Tunnel from Norfolk to
              Portsmouth because of clearance deficiencies.
------------------------------------------------------------------------
                               Washington
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
                              West Virginia
------------------------------------------------------------------------
US 19................  I-77 Bradley............  I-79 Gassaway.
US 35................  WV 34 Winfield..........  OH State Line.
US 48................  I-79 Morgantown.........  MD State Line.
US 50................  I-77 Parkersburg........  I-79 Clarksburg.
US 460...............  VA State Line Bluefield.  VA State Line
                                                  Kelleysville.
WV 34................  I-64 Putnam Co..........  US 35 Winfield.
------------------------------------------------------------------------
                                Wisconsin
------------------------------------------------------------------------
US 2.................  I-535/US 53 Superior....  MI State Line Hurley.
US 2.................  MI State Line W. of       MI State Line E. of
                        Florence.                 Florence.
US 8.................  US 63 Turtle Lake.......  MI State Line Norway
                                                  MI.
US 10................  US 53 Osseo.............  I-43 Manitowoc.
US 12................  I-94/CH ``EE'' W. of Eau  US 53 Eau Claire.
                        Claire.
US 12................  I-90/94 Lake Delton.....  End of 4-lane S. of W.
                                                  Baraboo.
US 12................  WI 67 S. Jct. Elkhorn...  IL State Line Genoa
                                                  City.
US 14................  US 51 N. of Janesville..  I-90 Janesville.
US 14................  WI 11/89 N. of Darien...  I-43 Darien.
US 18................  IA State Line Prairie Du  I-90 Madison.
                        Chien.
US 41................  National Ave. Milwaukee.  Garfield Ave.
                                                  Milwaukee.
US 41................  107th St. Milwaukee.....  MI State Line
                                                  Marinette.
US 45................  IL State Line Bristol...  WI 28 Kewaskum.
US 45................  WI 29 Wittenberg........  MI State Line Land
                                                  O'Lakes.
US 51................  SCL Janesville..........  US 14 Janesville.
US 51................  WI 78 N. of Portage.....  US 2 Hurley.
US 53................  US 14/61 La Crosse......  US 10 Osseo.
US 53................  I-94 Eau Claire.........  I-535/US 2 Superior.
US 61................  IA State Line Dubugue IA  MN State Line La Crosse
                                                  (via WI 129 Lancaster
                                                  Byp.).
US 63................  MN State Line Red Wing    US 2 W. of Ashland.
                        MN.
US 141...............  US 41 Abrams............  US 8 Pembine.
US 151...............  IA State Line Dubugue IA  US 18 E. of Dodgeville.
US 151...............  I-90/94 Madison.........  US 41 Fond Du Lac.
WI 11................  IA State Line Dubuque IA  US 51 Janesville.
WI 11................  I-90 Janesville.........  US 14/WI 89 N. of
                                                  Darien.
WI 11................  I-43 Elkhorn............  WI 31 Racine.
WI 13................  WI 21 Friendship........  US 2 Ashland.
WI 16................  WI 78 Portage...........  I-94 Waukesha.
WI 17................  US 8 Rhinelander........  US 45 Eagle River.
WI 20................  I-94 Racine.............  WI 31 Racine.
WI 21................  WI 27 Sparta............  US 41 Oshkosh.
WI 23................  WI 32 N. of Sheboygan     Taylor Dr. Sheboygan.
                        Falls.
WI 26................  I-94 Johnson Creek......  WI 16 Watertown.
WI 26................  US 151 Waupun...........  US 41 SW. of Oshkosh.
WI 27................  US 14/61 Westby.........  US 10 Fairchild.
WI 28................  US 41 Theresa...........  US 45 Kewaskum.
WI 29................  I-94 Elk Mound..........  US 53 Chippewa Falls.
WI 29................  WI 124 S. of Chippewa     US 41 Green Bay.
                        Falls.
WI 30................  US 151 Madison..........  I-90/94 Madison.
WI 31................  WI 11 Racine............  WI 20 Racine.
WI 32................  WI 29 W. of Green Bay...  Gillett.
WI 34................  WI 13 Wisconsin Rapids..  US 51 Knowlton.
WI 42................  I-43 Manitowoc..........  WI 57 SW. of Sturgeon
                                                  Bay.
WI 47................  US 10 Appleton..........  WI 29 Bonduel.
WI 50................  I-94 Kenosha............  45th Ave. Kenosha.
WI 54................  WI 13 Wisconsin Rapids..  US 51 Plover.
WI 57................  I-43 Green Bay..........  Sturgeon Bay.
WI 69................  WI 11 Monroe............  CH ``PB'' Paoli.
WI 73................  US 51 Plainfield........  WI 54 Wisconsin Rapids.
WI 78................  I-90/94 S. of Portage...  US 51 N. of portage.
WI 80................  WI 21 Necedah...........  WI 13 Pittsville.
WI 119...............  I-94 Milwaukee..........  WI 38 Milwaukee.
WI 124...............  US 53 N. of Eau Claire..  WI 29 S. of Chippewa
                                                  Falls.
WI 139...............  US 8 Cavour, Forest Co..  Long Lake.
WI 145...............  Broadway Milwaukee......  US 41/45 Milwaukee.
WI 172...............  US 41 Ashwaubenon.......  CH ``x'' S. of Green
                                                  Bay.
CH ``PB''............  WI 69 Paoli.............  US 18/151 E. of Verona.
------------------------------------------------------------------------
                                 Wyoming
------------------------------------------------------------------------
  No additional routes have been federally designated; under State law
STAA-dimensioned commercial vehicles may legally operate on all highways
  which, prior to June 1, 1991, were designated as Federal-aid primary
                                highways.
------------------------------------------------------------------------
   Note: Information on additional highways on which STAA-dimensioned
 vehicles may legally operate may be obtained from the respective State
                            highway agencies.
------------------------------------------------------------------------


[55 FR 17953, Apr. 30, 1990; 55 FR 19145, May 8, 1990, as amended at 59 
FR 30421, June 13, 1994; 59 FR 36053, July 15, 1994; 60 FR 15214, Mar. 
22, 1995; 60 FR 16571, Mar. 31, 1995; 62 FR 30758, June 5, 1997; 63 FR 
70653, Dec. 22, 1998; 63 FR 71748, Dec. 30, 1998; 72 FR 7748, Feb. 20, 
2007; 83 FR 30335, June 28, 2018]

[[Page 414]]



     Sec. Appendix B to Part 658--Grandfathered Semitrailer Lengths

------------------------------------------------------------------------
                                                                Feet and
                            State                                inches
------------------------------------------------------------------------
Alabama......................................................       53-6
Alaska.......................................................       48-0
Arizona......................................................       57-6
Arkansas.....................................................       53-6
California...................................................   \1\ 48-0
Colorado.....................................................       57-4
Connecticut..................................................       48-0
Delaware.....................................................       53-0
District of Columbia.........................................       48-0
Florida......................................................       48-0
Georgia......................................................       48-0
Hawaii.......................................................       48-0
Idaho........................................................       48-0
Illinois.....................................................       53-0
Indiana......................................................   \2\ 48-6
Iowa.........................................................       53-0
Kansas.......................................................       57-6
Kentucky.....................................................       53-0
Louisiana....................................................       59-6
Maine........................................................       48-0
Maryland.....................................................       48-0
Massachusetts................................................       48-0
Michigan.....................................................       48-0
Minnesota....................................................       48-0
Mississippi..................................................       53-0
Missouri.....................................................       53-0
Montana......................................................       53-0
Nebraska.....................................................       53-0
Nevada.......................................................       53-0
New Hampshire................................................       48-0
New Jersey...................................................       48-0
New Mexico...................................................       57-6
New York.....................................................       48-0
North Carolina...............................................       48-0
North Dakota.................................................       53-0
Ohio.........................................................       53-0
Oklahoma.....................................................       59-6
Oregon.......................................................       53-0
Pennsylvania.................................................       53-0
Puerto Rico..................................................       48-0
Rhode Island.................................................       48-6
South Carolina...............................................       48-0
South Dakota.................................................       53-0
Tennessee....................................................       50-0
Texas........................................................       59-0
Utah.........................................................       48-0
Vermont......................................................       48-0
Virginia.....................................................       48-0
Washington...................................................       48-0
West Virginia................................................       48-0
Wisconsin....................................................   \3\ 48-0
Wyoming......................................................       57-4
------------------------------------------------------------------------
\1\ Semitrailers up to 53 feet may also operate without a permit by
  conforming to a kingpin-to-rearmost axle distance of 38 feet.
  Semitrailers that are consistent with 23 CFR 658.13(g) may operate
  without a permit provided the distance from the kingpin to the center
  of the rear axle is 46 feet or less.
\2\ Semitrailers up to 53 feet in length may operate without a permit by
  conforming to a kingpin-to-rearmost axle distance of 40 feet 6 inches.
  Semitrailers that are consistent with 23 CFR 658.13(g) may operate
  without a permit provided the distance from the kingpin to the center
  of the rear axle is 46 feet or less.
\3\ Semitrailers up to 53 feet in length may operate without a permit by
  conforming to a kingpin-to-rear axle distance of 41 feet, measured to
  the center of the rear tandem assembly. Semitrailers that are
  consistent with 23 CFR 658.13(g) may operate without a permit provided
  the distance from the kingpin to the center of the rear axle is 46
  feet or less.


[53 FR 2599, Jan. 29, 1988, as amended at 54 FR 1931, Jan. 18, 1989; 62 
FR 10181, Mar. 5, 1997; 72 FR 7749, Feb. 20, 2007]



Sec. Appendix C to Part 658--Trucks Over 80,000 Pounds on the Interstate 
       System and Trucks Over STAA Lengths on the National Network

    This appendix contains the weight and size provisions that were in 
effect on or before June 1, 1991 (July 6, 1991 for Alaska), for vehicles 
covered by 23 U.S.C. 127(d) (LCV's) and 49 U.S.C. app. 2311(j) 
(commercial motor vehicles (CMV's) with 2 or more cargo-carrying units). 
Weights and dimensions are ``frozen'' at the values shown here, which 
were in effect on June 1, 1991 (Alaska, July 6, 1991). All vehicles are 
listed by configuration type.

           Trucks Over 80,000 Pounds on the Interstate System

    In the State-by-State descriptions, CMV combinations which can also 
be LCV's are identified with the letters ``LCV'' following the type of 
combination vehicle. The maximum allowable gross vehicle weight is given 
in this appendix (in thousands of pounds indicated by a ``K''), as well 
as information summarizing the operational conditions, routes, and legal 
citations. The term ``Interstate System'' as used herein refers to the 
Dwight D. Eisenhower System of Interstate and Defense Highways.

            Trucks Over STAA Lengths on the National Network

    Listed for each State by combination type is either:
    1. The maximum cargo-carrying length (shown in feet); or
    2. A notation that such vehicle is not allowed (indicated by a 
``NO'').
    CMV's are categorized as follows:
    1. A CMV combination consisting of a truck tractor and two trailing 
units.
    2. A CMV combination consisting of a truck tractor and three 
trailing units.
    3. CMV combinations with two or more cargo-carrying units not 
included in descriptions 1 or 2.
    In the following table the left number is the maximum cargo-carrying 
length measured in feet from the front of the first cargo unit to the 
rear of the last cargo unit. This distance is not to include length 
exclusive devices which have been approved by the Secretary or by any 
State. Devices excluded from length determination shall only include 
items whose function is related to the safe and efficient operation of 
the semitrailer or trailer. No device excluded from length determination 
shall be designed or used for carrying cargo. The right number is the 
maximum gross weight in thousands of

[[Page 415]]

pounds that the type of vehicle can carry when operating as an LCV on 
the Interstate System. For every State where there is a length or weight 
number in the table that follows, additional information is provided.

             Vehicle Combinations Subject to Pub. L. 102-240
------------------------------------------------------------------------
                                   1 Truck
                                tractor and 2  2 Truck tractor
             State                 trailing     and 3 trailing   3 Other
                                    units           units
------------------------------------------------------------------------
Alabama.......................  NO...........  NO.............  NO
Alaska........................  95[foot].....  110[foot]......  83[foot]
Arizona.......................  95[foot] 129K  95[foot] 129K..  (1)
Arkansas......................  NO...........  NO.............  NO
California....................  NO...........  NO.............  NO
Colorado......................  111[foot]      115.5[foot]      78[foot]
                                 110K.          110K.
Connecticut...................  NO...........  NO.............  NO
Delaware......................  NO...........  NO.............  NO
Dist. of Columbia.............  NO...........  NO.............  NO
Florida.......................  106[foot] (2)  NO.............  NO
Georgia.......................  NO...........  NO.............  NO
Hawaii........................  65[foot] (2).  NO.............  NO
Idaho.........................  95[foot]       95[foot] 105.5K  (1)
                                 105.5K.
Illinois......................  NO...........  NO.............  NO
Indiana.......................  106[foot]      104.5[foot]      58[foot]
                                 127.4K.        127.4K.
Iowa..........................  100[foot]      100[foot] 129K.  78[foot]
                                 129K.
Kansas........................  109[foot]      109[foot] 120K.  NO
                                 120K.
Kentucky......................  NO...........  NO.............  NO
Louisiana.....................  NO...........  NO.............  NO
Maine.........................  NO...........  NO.............  NO
Maryland......................  NO...........  NO.............  NO
Massachusetts.................  104[foot]      NO.............  NO
                                 127.4K.
Michigan......................  58[foot] 164K  No.............  63[foot]
Minnesota.....................  NO...........  NO.............  NO
Mississippi...................  65[foot] (2).  NO.............  NO
Missouri......................  110[foot]      109[foot] 120K.  NO
                                 120K(4).
Montana.......................  93[foot]       100[foot]        (1)
                                 137.8K.        131.06K.
Nebraska......................  95[foot] 95K.  95[foot] (2)...  68[foot]
Nevada........................  95[foot] 129K  95[foot] 129K..  98[foot]
New Hampshire.................  NO...........  NO.............  NO
New Jersey....................  NO...........  NO.............  NO
New Mexico....................  86.4K(3).....  NO.............  NO
New York......................  102[foot]      NO.............  NO
                                 143K.
North Carolina................  NO...........  NO.............  NO
North Dakota..................  103[foot]      100[foot]        103[foot
                                 105.5K.        105.5K.          ]
Ohio..........................  102[foot]      95[foot] 115K..  NO
                                 127.4K.
Oklahoma......................  110[foot] 90K  95[foot] 90K...  NO
Oregon........................  68[foot]       96[foot] 105.5K  70[foot]
                                 105.5K.                         5[foot]
                                                                 [foot]
Pennsylvania..................  NO...........  NO.............  NO
Puerto Rico...................  NO...........  NO.............  NO
Rhode Island..................  NO...........  NO.............  NO
South Carolina................  NO...........  NO.............  NO
South Dakota..................  100[foot]      100[foot] 129K.  (1)
                                 129K.
Tennessee.....................  NO...........  NO.............  NO
Texas.........................  NO...........  NO.............  NO
Utah..........................  95[foot] 129K  95[foot] 129K..  (1)
Vermont.......................  NO...........  NO.............  NO
Virginia......................  NO...........  NO.............  NO
Washington....................  68[foot]       NO.............  68[foot]
                                 105.5K.
West Virginia.................  NO...........  NO.............  NO
Wisconsin.....................  NO...........  NO.............  NO
Wyoming.......................  81[foot] 117K  NO.............  (1)
------------------------------------------------------------------------
(1)--State submission includes multiple vehicles in this category--see
  individual State listings.
(2)--No maximum weight is established as this vehicle combination is not
  considered an ``LCV'' per the ISTEA definition. Florida's combination
  is not allowed to operate on the Interstate System, and the
  combinations for Hawaii, Mississippi, and Nebraska are not allowed to
  exceed 80,000 pounds.
(3)--No maximum cargo-carrying length is established for this
  combination. Because State law limits each trailing unit to not more
  than 28.5 feet in length, this combination is allowed to operate on
  all NN routes under the authority of the STAA of 1982, regardless of
  actual cargo-carrying length. The maximum weight listed is New
  Mexico's maximum allowable gross weight on the Interstate System under
  the grandfather authority of 23 U.S.C. 127.
(4)--These dimensions do not apply to the same combinations. The 110-
  foot length is limited to vehicles entering from Oklahoma, also
  limited to 90K gross weight. The 120K gross weight is limited to
  vehicles entering from Kansas, also limited to a cargo carrying length
  of 109 feet.

    The following abbreviation convention is used throughout the 
narrative State-by-State descriptions for the captions OPERATIONAL 
CONDITIONS, ROUTES, and LEGAL CITATIONS: two letter State abbreviation, 
dash, ``TT'' for truck tractor, and 2 or 3 for two or three trailing 
units. For example, the phrase ``Arizona truck tractor and 2 trailing 
units'', would be noted as ``AZ-TT2''; the phrase ``Indiana truck 
tractor and 3 trailing units'' would be noted as ``IN-TT3'', etc.

                              STATE: ALASKA

             COMBINATION: Truck tractor and 2 trailing units

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: The combination must be in compliance with State laws and 
regulations. There are no highways in the State subject to Interstate 
System weight limits. Therefore, the ISTEA freeze as it applies to 
maximum weight is not applicable.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: Combinations with an overall length greater than 75 feet, 
measured bumper to bumper, must display an ``OVERSIZE warning sign on 
the front and rear. In combinations where one cargo-carrying unit is 
more than 5,000 pounds heavier than the other, the heavier unit shall be 
placed immediately behind the power unit. Weather restrictions are 
imposed when hazardous conditions exist, as determined by the Alaska 
Department of Transportation and Public Facilities (DOT&PF) and the 
Alaska Department of Public Safety, Division of State Troopers. Time of 
day travel is not restricted.
    PERMIT: None required.
    ACCESS: Alaska allows reasonable access not to exceed 5 miles to 
reach or return from terminals and facilities for food, fuel, or rest. 
The most direct route must be used. The Commissioner of the Alaska 
DOT&PF may allow access to specific routes if it can be shown that 
travel frequency, necessity, and route accommodation are required.

[[Page 416]]



                                 Routes
------------------------------------------------------------------------
                                From                       To
------------------------------------------------------------------------
AK-1                  Anchorage (Potter Weigh   Palmer (Palmer-Wasilla
                       Station).                 Highway Junction).
AK-2                  Fairbanks (Gaffney Road   Delta Junction (MP 1412
                       Junction).                Alaska Highway).
AK-3                  Jct. AK-1...............  Fairbanks (Gaffney Road
                                                 Junction).
------------------------------------------------------------------------

                            LEGAL CITATIONS:

    17 AAC 25, and 35; the Administrative Permit Manual.

                              STATE: ALASKA

             COMBINATION: Truck tractor and 3 trailing units

              LENGTH OF THE CARGO-CARRYING UNITS: 110 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT and ACCESS: Same as the AK-TT2 combination.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement. Drivers of this combination must have 10 years 
of experience in Alaska and certified training in operation of these 
combinations.
    VEHICLE: Individual trailer length in a three trailing unit 
combination shall not exceed 28.5 feet. Engine horsepower rating shall 
not be less than 400 horsepower.
    These combinations are allowed to operate only between May 1 and 
September 30 of each year. Weather restrictions are imposed when 
hazardous conditions exist, as determined by the Alaska DOT&PF and the 
Department of Public Safety, Division of State Troopers. No movement is 
permitted if visibility is less than 1,000 feet.
    PERMIT: Permits are required with specified durations of not less 
than 3 months or more than 18 months. There is a fee.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
AK-1............................  Anchorage (Potter   Jct. AK-3.
                                   Weigh Station).
AK-3............................  Jct. AK-1.........  Fairbanks (Gaffney
                                                       Road Junction)
------------------------------------------------------------------------

            LEGAL CITATIONS: Same as the AK-TT2 combination.

                              STATE: ALASKA

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 83 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT, DRIVER, PERMIT, and ACCESS: Same as the AK-TT2 combination.
    VEHICLE: Same as the AK-TT2 combination, except that overall 
combination length may not exceed 90 feet.
    ROUTES: Same as the AK-TT2 combination.
    LEGAL CITATIONS: Same as the AK-TT2 combination.

                             STATE: ARIZONA

          COMBINATION: Truck tractor and 2 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Single-axle maximum weight limit is 20,000 pounds, tandem-
axle maximum weight limit is 34,000 pounds, and the gross vehicle weight 
limit is 129,000 pounds, subject to the Federal Bridge Formula.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement. Drivers must comply with the Federal Motor 
Carrier Safety Regulations of the U.S. Department of Transportation and 
Title 28, Arizona Revised Statutes.
    VEHICLE: This vehicle must be able to operate at speeds compatible 
with other traffic on level roads and maintain 20 miles per hour speed 
on grades where operated. A heavy-duty fifth wheel is required. The 
kingpin must be a solid type, not a screw-out or folding type. All hitch 
connectors must be of a no-slack type, preferably an air-actuated ram. 
Axles must be those designed for the width of the body. All braking 
systems must comply with State and Federal requirements. A brake force 
limiting valve, sometimes called a ``slippery road'' valve, may be 
provided on the steering axle. Mud flaps or splash guards are required. 
When traveling on a smooth, paved surface, trailers must follow in the 
path of the towing vehicle without shifting or swerving more than 3 
inches to either side when the towing vehicle is moving in a straight 
line.
    PERMITS: Permits are required. Fees are charged. This vehicle is 
allowed continuous travel, however, the State may restrict or

[[Page 417]]

prohibit operations during periods when traffic, weather, or other 
safety considerations make such operations unsafe or inadvisable. All 
multiple-trailer combinations shall be driven in the right-hand traffic 
lane.
    Access: Access is allowed for 20 miles from I-15 Exits 8 and 27 or 
20 miles from other authorized routes.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-15............................  Nevada............  Utah
US 89...........................  20 miles south of   Utah
                                   Utah.
US 160..........................  US 163............  New Mexico
US 163..........................  US 160............  Utah
------------------------------------------------------------------------
                                              LEGAL CITATIONS
------------------------------------------------------------------------
ARS 28-107......................  ARS 28-1009.......  ARS 28-1011.O
ARS 28-108.5....................  ARS 28-1009.01....  ARS 28-1012
ARS 28-108.13...................  ARS 28-1011.A.....  ARS 28-1013
ARS 28-108.14...................  ARS 28-1011.C.....  ARS 28-1014
ARS 28-403......................  ARS 28-1011.F.....  ARS 28-1031
ARS 28-405......................  ARS 28-1011.K.....  ARS 28-1051
ARS 28-1001.....................  ARS 28-1011.L.....  ARS 28-1052
ARS 28-1004.G...................  ARS 28-1011.M.....  R17-40-426
ARS 28-1008.....................
------------------------------------------------------------------------

                             STATE: ARIZONA

          COMBINATION: Truck tractor and 3 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

MAXIMUM ALLOWABLE GROSS WEIGHT: 123,000 pounds (129,000 pounds on I-15).

                         OPERATIONAL CONDITIONS:

    VEHICLE, and ACCESS: Same as the AZ-TT2 combination.
    Weight: Single-axle maximum weight limit is 20,000 pounds, tandem-
axle maximum weight limit is 34,000 pounds, and the gross vehicle weight 
is 123,500 pounds (129,000 on I-15), subject to the Federal Bridge 
Formula.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement. Drivers must comply with the Federal Motor 
Carrier Safety Regulations of the U.S. Department of Transportation and 
Title 28, Arizona Revised Statutes. Drivers must be trained by an 
experienced driver of a three trailing unit combination. Training should 
be through special instructions or by traveling with the new driver 
until such time as the new driver is deemed adequately qualified by the 
trainer on the use and operation of these combinations.
    PERMIT: Permits are required. Fees are charged. This vehicle is 
allowed continuous travel, however, the State may restrict or prohibit 
operations during periods when traffic, weather, or other safety 
considerations make such operations unsafe or inadvisable. These 
combinations shall not be dispatched during adverse weather conditions. 
All multiple-trailer combinations shall be driven in the right-hand 
traffic lane.
    ROUTES: Same as the AZ-TT2 combination.
    LEGAL CITATIONS: Same as the AZ-TT2 combination.

                             STATE: ARIZONA

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 69 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, VEHICLE, PERMIT, and ACCESS: Same as the AZ-TT2 combination.
    ROUTES: Same as the AZ-TT2 combination.
    LEGAL CITATIONS: Same as the AZ-TT2 combination.

                             STATE: ARIZONA

                 COMBINATION: Truck-semitrailer-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 98 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, VEHICLE, PERMIT, and ACCESS: Same as the AZ-TT2 combination.
    ROUTES: Same as the AZ-TT2 combination.
    LEGAL CITATIONS: Same as the AZ-TT2 combination.

                             STATE: COLORADO

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 111 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 110,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: The maximum gross weight is 110,000 pounds, subject to the 
formula W = 800(L + 40) where ``W'' equals the gross weight in pounds 
and ``L'' equals the length in feet between the centers of the first and 
last axles, or the gross weight determined by the Federal Bridge 
Formula, whichever is least. A single axle shall not exceed 20,000

[[Page 418]]

pounds and a tandem axle shall not exceed 36,000 pounds.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement. The driver cannot have had any suspension of 
driving privileges in any State during the past 3 years where such 
suspension arose out of the operation of a motor vehicle used as a 
contract or common carrier of persons or property.
    The driver must be certified by the motor carrier permit holder's 
safety office. The certification shall demonstrate that the driver has 
complied with all written requirements, and that the driver has 
successfully completed a company-approved road test for each type of 
combination vehicle operated.
    VEHICLE: Vehicles shall not have fewer than six axles or more than 
nine axles. They shall be configured such that the shorter trailer shall 
be operated as the rear trailer, and the trailer with the heavier gross 
weight shall be operated as the front trailer. In the event that the 
shorter trailer is also the heavier, the load must be adjusted so that 
the front trailer is the longer and heavier of the two.
    Vehicles shall have adequate power to maintain a minimum speed of 20 
miles per hour on any grade over which the combination operates and can 
resume a speed of 20 miles per hour after stopping on any such grade.
    Tires must conform to the standards in the Department of Public 
Safety's (DPS) Rules and Regulations Concerning Minimum Standards for 
the Operation of Commercial Motor Vehicles, at 8 CCR 1507-1 and C.R.S. 
42-4-225 and 42-2-406.
    Vehicles are required to have a heavy-duty fifth wheel and equal 
strength pick-up plates that meet the standards in the DPS Commercial 
Vehicle Rules. This equipment must be properly lubricated and located in 
a position that provides stability during normal operation, including 
braking. The trailers shall follow in the path of the towing vehicle 
without shifting or swerving more than 3 inches to either side when the 
towing vehicle is moving in a straight line.
    Kingpins must be of a solid type and permanently fastened. Screw-out 
or folding type kingpins are prohibited.
    Hitch connections must be of a no-slack type, preferably air-
actuated ram.
    Drawbar lengths shall be adequate to provide for the clearances 
required between the towing vehicle and the trailer(s) for turning and 
backing maneuvers.
    Axles must be those designed for the width of the body of the 
trailer(s).
    Braking systems must comply with the DPS Commercial Vehicle Rules 
and C.R.S. 42-4-220. Fast air-transmission and release valves must be 
provided on all trailer(s) and converter dolly axles. A brake force 
limiting valve, sometimes called a ``slippery road'' valve, may be 
provided on the steering axle.
    PERMIT: An annual permit is required for which a fee is charged. 
Also, the vehicle must have an overweight permit pursuant to C.R.S. 42-
4-409(11)(a)(II) (A), (B), or (C), and comply with Rule 4-15 in the 
rules pertaining to Extra-Legal Vehicles or Loads.
    A truck tractor and two trailing units wherein at least one of the 
trailing units exceeds 28.5 feet in length shall not operate on the 
following designated highway segments during the hours of 6 a.m. to 9 
a.m. and from 3 p.m. to 6 p.m., Monday through Friday, for Colorado 
Springs, Denver, and Pueblo. (A truck tractor with two trailing units 
wherein at least one of the trailing units exceeds 28.5 feet in length 
not operating at greater than the legal maximum weight of 80,000 pounds 
is subject to different hours-of-operation restrictions. Refer to rules 
pertaining to Extra-Legal Vehicles or Loads).

Colorado Springs: I-25 between Exit 135 (CO 83 Academy Blvd. So.) and 
          Exit 150 (CO 83, Academy Blvd. No.).
Denver: I-25 between Exit 200 (Jct. I-225) and Exit 223 (CO 128, 120th 
          Avenue),
    I-70 between Exit 259 (CO 26/US 40) and Exit 282 (Jct. I-225),
    I-76 between Exit 5 (Jct. I-25) and Exit 12 (US 85),
    I-225 entire length,
    I-270 entire length.
Pueblo: I-25 between Exit 94 (CO 45 Lake Ave.) and Exit 101 (US 50/CO 
          47).

    The holder of a longer vehicle combination (LVC) permit must have an 
established safety program as provided in Chapter 9 of the ``Colorado 
Department of Highways Rules and Regulations for Operation of Longer 
Vehicle Combinations on Designated State Highway Segments.'' Elements of 
the program include compliance with minimum safety standards at 8 CCR 
1507-1, hazardous materials regulations at 8 CCR 1507-7, -8, and -9, 
Colorado Uniform Motor Vehicle Law, Articles 1 through 4 of Title 42, 
C.R.S. as amended, and Public Utility Commission regulations at 4 CCR 
723-6, -8, -15, -22, and -23.
    ACCESS: A vehicle shall not be operated off the designated portions 
of the Interstate System except to access food, fuel, repairs, and rest 
or to access a facility. Access to a facility shall be subject to the 
following conditions:
    (1) The facility must:
    (a) Be either a manufacturing or a distribution center, a warehouse, 
or truck terminal located in an area where industrial uses are 
permitted;
    (b) Be a construction site; and
    (c) Meet the following criteria:
    1 vehicles are formed for transport or broken down for delivery on 
the premises;

[[Page 419]]

    2 adequate off-roadway space exists on the premises to safely 
maneuver the vehicles; and
    3 adequate equipment is available on the premises to handle, load, 
and unload the vehicle, its trailers, and cargo.
    (2) The facility must be located within a maximum distance of 10 
miles from the point where the vehicle enters or exits the designated 
portions of the Interstate System. Such 10-mile distance shall be 
measured by the actual route(s) to be traveled to the facility, rather 
than by a straight line radius from the designated Interstate System to 
the facility;
    (3) The access route(s) between the designated Interstate System and 
the facility must be approved in advance by the public entity (Colorado 
DOT, municipality, or county) having jurisdiction for the roadway(s) 
that make up the route(s). Where the State of Colorado has jurisdiction 
over the access route(s), it will consider the following safety, 
engineering, and other criteria in determining whether to approve the 
route(s):
    (a) Safety of the motoring public;
    (b) Geometrics of the street and roadway;
    (c) Traffic volumes and patterns;
    (d) Protection of State highways, roadways, and structures;
    (e) Zoning and general characteristics of the route(s) to be 
encountered; and
    (f) Other relevant criteria warranted by special circumstances of 
the proposed route(s).
    Local entities, counties, and municipalities having jurisdiction 
over route(s), should consider similar criteria in determining whether 
to approve the proposed ingress and egress route(s); and
    (4) A permit holder shall access only the facility or location 
authorized by the permit. If the permit authorizes more than one 
facility or location, then on any single trip by an LVC from the 
designated Interstate System the permit holder may access only one 
facility or location before returning to the designated Interstate 
System.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-25............................  New Mexico........  Wyoming
I-70............................  Utah..............  I-70 Exit 90 Rifle
I-70............................  I-70 Exit 259       Kansas
                                   Golden.
I-76............................  Jct. I-70.........  Nebraska
I-225...........................  Jct. I-25.........  Jct. I-70
I-270...........................  Jct. I-76.........  Jct. I-70
------------------------------------------------------------------------

    LEGAL CITATIONS: Vehicles must comply with all applicable statutes, 
such as C.R.S. 42-4-402(1), 42-4-404(1), 42-4-407(1)(c)(III)(A), 42-4-
409(11)(a)(II) (A), (B) or (C). All LVC's must comply with the Extra-
Legal Vehicles and Loads Rules and the Longer Vehicle Combination Rules. 
However, when the rules address the same subject, the LVC, since it is 
operating at greater than 80,000 pounds, must comply with the Extra-
Legal Vehicles and Loads Rules. Such rules are: 4-1-2 and 4-1-3 
concerning holiday travel restrictions, 4-1-5 concerning hours of 
operation restrictions, 4-8 concerning minimum distance between vehicles 
and 4-15 concerning maximum allowable gross weight.

                             STATE: COLORADO

          COMBINATION: Truck tractor and 3 trailing units--LCV

             LENGTH OF THE CARGO-CARRYING UNITS: 115.5 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 110,000 pounds

         OPERATIONAL CONDITIONS: Same as the CO-TT2 combination.

    ROUTES: Same as the CO-TT2 combination.
    LEGAL CITATIONS: Same as the CO-TT2 combination.

                             STATE: COLORADO

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 78 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, VEHICLE, PERMIT, and ACCESS: Same as the CO-TT2 combination.
    ROUTES: Same as the CO-TT2 combination.
    LEGAL CITATIONS: Same as the CO-TT2 combination.

                             STATE: FLORIDA

             COMBINATION: Truck tractor and 2 trailing units

              LENGTH OF THE CARGO-CARRYING UNITS: 106 feet

    OPERATIONAL CONDITIONS: All overdimensional and weight regulations 
of the Florida Turnpike Authority shall apply to such units unless 
specifically excluded under the terms of the Tandem Trailer Permit or 
these regulations.
    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.

[[Page 420]]

    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement. Proposed drivers of tandem-trailer units shall 
be registered by the Florida Turnpike Authority prior to driving such 
equipment on the turnpike system. For further information, see Rule 14-
62.016 FAC.
    VEHICLE: A complete tandem-trailer combination shall consist of a 
truck tractor, first semitrailer, fifth-wheel converter dolly, and a 
second semitrailer. The converter dolly may be either a separate unit or 
an integral component of the first semitrailer. The width shall not 
exceed 102 inches and the height shall not exceed 13 feet 6 inches. A 
tractor used in the tandem-trailer operations shall be capable of 
hauling the maximum gross load to be transported by a permittee at a 
speed of not less than 40 miles per hour on all portions of the turnpike 
system excepting that portion of the roadway, as posted in 1988, between 
mileposts 234 and 238 where a minimum speed of 30 miles per hour will be 
permitted.
    Every tandem-trailer combination shall be equipped with full air 
brakes or air-activated hydraulic brakes on the tractor and either air 
or electric brakes on the dolly and trailers.
    A tractor, which will be used to haul a complete tandem-trailer 
combination with a total gross weight of 110,000 pounds or more, shall 
be equipped with tandem rear axles and driving power shall be applied to 
all wheels on both axles. When the above tandem-axle tractor is 
required, a tandem-axle dolly converter must be used.
    Every tandem-trailer combination shall be equipped with emergency 
equipment that equals or exceeds both the equipment requirements and the 
performance standards cited in Chapter 316, Florida Statutes and subpart 
H ``Emergency Equipment'' of 49 CFR 393.95.
    A converter (fifth-wheel) dolly used in the tandem-trailer 
operations may have either single or tandem axles, according to its 
total gross weight. In addition to the primary towbar(s), the dolly 
vehicle must be equipped with safety chains or cables for connecting the 
dolly to the lead semitrailer and must be adequate to prevent breakaway.
    Lamps and Reflectors. Each tractor, trailer, and converter dolly in 
a tandem-trailer combination shall be equipped with electric lamps and 
reflectors mounted on the vehicle in accordance with Chapter 316, 
Florida Statutes, and subpart B ``Lighting Devices, Reflectors and 
Electrical Equipment,'' of 49 CFR 393.9 through 49 CFR 393.33.
    Coupling Devices. Coupling devices shall be so designed, 
constructed, and installed and the vehicles in a tandem-trailer 
combination shall equal or exceed both the equipment requirements and 
the performance standards established on 49 CFR 393.70, except that such 
devices shall be so designed and constructed as to ensure that any such 
combination traveling on a level, smooth paved surface will follow in 
the path of the towing vehicle without shifting or swerving from side to 
side over 2 inches to each side of the path of the vehicle when it is 
moving in a straight line. (For further information see Rule 14-62.002; 
14-62.005; 14-62.006; 14-62.007; 14-62.008; 14-62.009; 14-62.010; 14-
62.011; 14-62.012; 14-62.013; and 14-62.015, FAC)
    PERMIT: Tandem-trailer units may operate on the turnpike system 
under a Tandem Trailer Permit issued by the Florida Turnpike Authority 
upon application, except as provided in subparagraph (2) below.
    (1) The Florida Turnpike Authority shall provide a copy of each such 
permit to the Motor Carrier Compliance Office.
    (2) Tandem-trailer trucks of the dimensions mandated by the STAA of 
1982 and operating in compliance with Rule Chapter 14-54, FAC, and under 
the provisions of section 316.515, Florida Statutes shall be exempt from 
the provisions of this rule chapter to the extent provided in Rule 14-
54.0011, FAC.
(For further information see Rules 14-62.001; 14-62.022; 14-62.023; 14-
62.024; 14-62.026; 14-62.027, FAC)
    ACCESS: Staging. Tandem-trailer combinations shall be made up and 
broken up only in special assembly (staging) areas as designated for 
this purpose. For further information, see Rule 14-62.017, FAC. Make-up 
and break-up of tandem-trailer combinations shall not be allowed on a 
public right-of-way unless the area is designated for such use or unless 
an emergency exists.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
Florida's Turnpike..............  South end           Exit 304 Wildwood.
                                   Homestead
                                   Extension at US 1.
------------------------------------------------------------------------

    LEGAL CITATIONS: Chapter 14-62, ``Regulations Governing Tandem 
Combinations of Florida's Turnpike,'' Florida Administrative Code.

                              STATE: HAWAII

             COMBINATION: Truck tractor and 2 trailing units

                 LENGTH OF CARGO CARRYING UNITS: 65 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.

[[Page 421]]

    VEHICLE: No load may exceed the carrying capacity of the axles 
specified by the manufacturer and no combination vehicle shall have a 
total weight in excess of its designed gross combination weight limit.
    PERMITS: No permits are required.
    ACCESS: Designated routes off the NN.
    ROUTES: All NN routes except HI-95 from H-1 to Barbers Point Harbor.
    LEGAL CITATIONS: Chapter 291, Section 34, Hawaii Revised Statutes 
and Chapter 104 of Title 19, Administrative Rules.

                              STATE: IDAHO

          COMBINATION: Truck tractor and 2 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 105,500 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Single axle: 20,000 pounds, tandem axle: 34,000 pounds, and 
gross vehicle weight up to 105,500 pounds.
    Axle spacing: must comply with Idaho Code 49-1001.
    Trailer weights: The respective loading of any trailer shall not be 
substantially greater than the weight of any trailer located ahead of it 
in the vehicle combination. Substantially greater shall be defined as 
more than 4,000 pounds heavier.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: The rules provide that all CMV's with two or more cargo-
carrying units (except for truck-trailer combinations which are limited 
to an 85-foot combination length) are subject to calculated maximum off-
tracking (CMOT) limits. The CMOT formula is:

CMOT = R - [R\2\ - (A\2\ + B\2\ + C\2\ + D\2\ + E\2\)]\1/2\ R = 161
A, B, C, D, E, etc. = measurements between points of articulation or 
          pivot. Squared dimensions to stinger steer points of 
          articulation are negative.

    The power unit of LCV's and extra-length combinations shall have 
adequate power and traction to maintain a speed of 15 miles per hour 
under normal operating conditions on any up-grade over which the 
combination is operated.
    Fifth-wheel, drawbar, and other coupling devices shall be as 
specified by Federal Motor Carrier Safety Regulations, section 393.70.
    Every combination operated under special permit authority shall be 
covered by insurance meeting State and Federal requirements. Evidence of 
this insurance must be carried in the permitted vehicle.
    PERMIT: Permits are required. Permit duration is for 1 year from the 
date of issuance.
    ACCESS: Combinations with a CMOT limit of less than 6.5 feet may use 
any Interstate or designated highway system interchange for access. 
Combinations with a CMOT of 6.5 to 8.75 feet may use only the following 
Interstate System interchanges:

I-15 Exits 58 and 119.
I-84 Exits 3, 49, 50, 52, 54, 57, 95, 168, 173, 182, 208, and 211.
I-86 Exits 36, 40, 56, and 58.
    ROUTES: All NN routes.
    LEGAL CITATIONS: Other regulations and restrictions that must be 
complied with are:

Idaho Code 49-1001, -1002, -1004, -1010, and -1011.
Idaho Transportation Department Rules 39.C.01, .06, .08, .09, .10, .11, 
.15, and .19-.23.

                              STATE: IDAHO

          COMBINATION: Truck tractor and 3 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 105,500 pounds

    OPERATIONAL CONDITIONS: Same as the ID-TT2 combination.
    ROUTES: Same as the ID-TT2 combination.
    LEGAL CITATIONS: Same as the ID-TT2 combination.

                              STATE: IDAHO

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 78 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, PERMIT, and ACCESS: Same as the ID-TT2 combination.
    VEHICLE: Overall combination length limited to 85 feet.
    ROUTES: Same as the ID-TT2 combination.
    LEGAL CITATIONS: Same as the ID-TT2 combination.

[[Page 422]]

                              STATE: IDAHO

   COMBINATION: Truck-trailer-trailer, and Truck-semitrailer-trailer.

               LENGTH OF THE CARGO-CARRYING UNITS: 98 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, PERMIT, and ACCESS: Same as the ID-TT2 combination.
    VEHICLE: Overall combination length limited to 105 feet.
    ROUTES: Same as the ID-TT2 combination.
    LEGAL CITATIONS: Same as the ID-TT2 combination.

                             STATE: INDIANA

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 106 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 127,400 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Single axle = 22,400 pounds. Axles spaced less than 40 
inches between centers are considered to be single axles.
    Tandem axle = 36,000 pounds. Axles spaced more than 40 inches but 
less than 9 feet between centers are considered to be tandem axles.
    Gross vehicle weight = 90,000 pounds plus 1,070 pounds per foot for 
each foot of total vehicle length in excess of 60 feet with a maximum 
gross weight not to exceed 127,400 pounds.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement, and a Toll Road identification card. Drivers 
must be at least 26 years old, in good health, and with 5 years of 
experience driving tractor-semitrailers or tandem-trailer combinations. 
Experience must include driving in all four seasons.
    VEHICLE: Lightest trailer to the rear. Distance between coupled 
trailers shall not exceed 9 feet. The combination vehicle, including 
coupling devices, shall be designed and constructed so as to ensure that 
while traveling on a level, smooth paved surface each trailing unit will 
follow in the path of the towing vehicle without shifting or swerving 
from side to side more than 3 inches. The combination vehicle must have 
at least five axles but not more than nine axles and except on ramps be 
able to achieve and maintain a speed of 45 miles per hour. Following 
distance is 500 feet, and passing maneuvers must be completed within 1 
mile. The truck tractor must be equipped at a minimum with emergency 
equipment including fire extinguisher, spare fuses, tire chains, tire 
tread minimums, and disabled vehicle warning devices. Every dolly must 
be coupled with safety chain directly to the frame of the semitrailer by 
which it is towed. Each unit in a multi-trailer combination must be 
equipped at a minimum with electric lights and reflectors mounted on the 
vehicle.
    PERMIT: A free annual tandem-trailer permit must be obtained from 
the Indiana DOT for loads which exceed 90,000 pounds. A multiple-trip 
access permit, for which a fee is charged, must also be obtained for 
access to points of delivery or to breakdown locations. Permission to 
operate can be temporarily suspended by the Indiana DOT due to weather, 
road conditions, holiday traffic, or other emergency conditions. Any 
oversize vehicle whose length exceeds 80 feet shall not be operated at a 
speed in excess of 45 miles per hour. Oversize loads are not to be 
operated at any time when wind velocity exceeds 25 miles per hour.
    ACCESS: 15 miles from toll gates.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-80/90 (IN Toll Road)..........  Toll Road Gate 21.  Ohio.
I-90 (IN Toll Road).............  Illinois..........  Toll Road Gate 21.
------------------------------------------------------------------------

                            LEGAL CITATIONS:

Indiana Code 9-8-1-16
Indiana Code 8-15-2
135 Indiana Administrative Code 2

                             STATE: INDIANA

          COMBINATION: Truck tractor and 3 trailing units--LCV

             LENGTH OF THE CARGO-CARRYING UNITS: 104.5 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 127,400 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT, DRIVER, PERMIT, and ACCESS: Same as the IN-TT2 combination.
    VEHICLE: Semitrailers and trailers shall not be longer than 28.5 
feet, and the minimum number of axles for the combination is seven. 
Three trailing unit combinations must be equipped with adequate spray-
suppressant mud flaps which are properly maintained.
    ROUTES: Same as the IN-TT2 combination.
    LEGAL CITATIONS: Same as the IN-TT2 combination.

[[Page 423]]

                             STATE: INDIANA

   COMBINATION: Combination of three or more vehicles coupled together

               LENGTH OF THE CARGO CARRYING UNITS: 58 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: The maximum width is 102 inches, and the maximum height is 
13 feet 6 inches.
    PERMIT: None required.
    ACCESS: Unlimited.

                   ROUTES: All roads within the State.

                 LEGAL CITATIONS: Indiana Code 9-8-1-2.

                               STATE: IOWA

          COMBINATION: Truck tractor and 2 trailing units--LCV.

 LENGTH OF THE CARGO-CARRYING UNITS: 100 feet when entering Sioux City 
from South Dakota or South Dakota from Sioux City; 65 feet when entering 
          Sioux City from Nebraska or Nebraska from Sioux City.

MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 pounds when entering Sioux City 
 from South Dakota or South Dakota from Sioux City; 95,000 pounds when 
     entering Sioux City from Nebraska or Nebraska from Sioux City.

                         OPERATIONAL CONDITIONS:

    Iowa allows vehicles from South Dakota and Nebraska access to 
terminals which are located within the corporate limits of Sioux City 
and its commercial zone as shown in 49 CFR 1048.101 on November 28, 
1995. These vehicles must be legal in the State from which they enter 
Iowa.
    WEIGHT, DRIVER, VEHICLE, AND PERMIT: Same conditions which apply to 
a truck tractor and 2 trailing units legally operating in South Dakota 
or Nebraska.
    ACCESS: These combinations may operate on any road within the 
corporate limits of Sioux City and its commercial zone as shown in 49 
CFR 1048.101 on November 28, 1995, when authorized by appropriate State 
or local authority.
    ROUTES: LCV combinations may operate on all Interstate System routes 
in Sioux City and its commercial zone as shown in 49 CFR 1048.101 on 
November 28, 1995. If subject only to the ISTEA freeze on length, they 
may operate on all NN routes in Sioux City and its commercial zone, as 
above.
    LEGAL CITATIONS: Iowa Code Sec.  321.457(2)(f) (1995).

                               STATE: IOWA

          COMBINATION: Truck tractor and 3 trailing units--LCV.

 LENGTH OF CARGO-CARRYING UNITS: 100 feet when entering Sioux City from 
              South Dakota or South Dakota from Sioux City.

MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 POUNDS when entering Sioux City 
           from South Dakota or South Dakota from Sioux City.

                         OPERATIONAL CONDITIONS:

    WEIGHT, DRIVER, VEHICLE, AND PERMIT: Same as the SD-TT3 combination.
    ACCESS: Same as the IA-TT2 combination.
    ROUTES: Same as the IA-TT2 combination.
    LEGAL CITATION: Same as the IA-TT2 combination.

                               STATE: IOWA

                       COMBINATION: Truck-trailer.

  LENGTH OF THE CARGO-CARRYING UNITS: 78 feet when entering Sioux City 
from South Dakota or South Dakota from Sioux City; 68 feet when entering 
          Sioux City from Nebraska or Nebraska from Sioux City.

                         OPERATIONAL CONDITIONS:

    Iowa allows vehicles from South Dakota and Nebraska access to 
terminals which are located within the corporate limits of Sioux City 
and its commercial zone, as shown in 49 CFR 1048.101 on November 28, 
1995. These vehicles must be legal in the State from which they enter 
Iowa.
    WEIGHT, DRIVER, VEHICLE, AND PERMIT: Same conditions which apply to 
a truck-trailer combination legally operating in Nebraska or South 
Dakota.
    ACCESS: Same as the IA-TT2 combination.
    ROUTES: Same as IA-TT2 combination.
    LEGAL CITATION: Same as the IA-TT2 combination.

[[Page 424]]

                              STATE: KANSAS

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 109 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 120,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Combinations consisting of a truck tractor and two trailing 
units must comply with the Federal Bridge Formula, with maximum weights 
of 20,000 pounds on a single axle and 34,000 pounds on a tandem axle, 
and with a maximum gross weight of 120,000 pounds.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: Truck tractor and two trailing unit combinations must meet 
legal width and height with no time-of-day travel restrictions or other 
special requirements.
    PERMIT: Permits are not required for operation on the Kansas 
Turnpike. A permit is required for access between the Turnpike and motor 
freight terminals located within a 10-mile radius of each toll booth, 
except at the northeastern end of the Turnpike where a 20-mile radius is 
allowed. Access permits are valid for 6 months.
    ACCESS: Turnpike access routes include all routes between the 
Turnpike and a motor freight terminal located within a 10-mile radius of 
each toll booth, except at the northeastern end of the Turnpike where a 
20-mile radius is allowed.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-35 Kansas Tpk. Authority (KTA)  Oklahoma..........  KTA Exit 127.
I-70 KTA........................  KTA Exit 182......  KTA Exit 223.
I-335 KTA.......................  KTA Exit 127......  KTA Exit 177.
I-470 KTA.......................  KTA Exit 177......  KTA Exit 182.
LEGAL CITATIONS:
Kansas Statutes Annotated (KSA)
KSA 8-1911......................  KSA 68-2004.......  KSA 68-2019.
KSA 8-1914......................  KSA 68-2005.......  KSA 68-2048a.
KSA 68-2003.....................
------------------------------------------------------------------------

                              STATE: KANSAS

          COMBINATION: Truck tractor and 3 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 109 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 120,000 pounds

    OPERATIONAL CONDITIONS: The operations of triple trailing unit 
combinations are governed by two sets of criteria: (1) The Turnpike and 
Turnpike access rules, and (2) the SVC rules which apply off of the 
Turnpike except in the case of vehicles operating under Turnpike access 
authority. The Turnpike and Turnpike access rules allow a maximum 
combination vehicle length of 119 feet overall. The SVC rules require 
``Triples'' to have trailers of no more than 28.5 feet maximum length or 
a cargo-carrying length of approximately 95 feet.
    The Turnpike and Turnpike access rules have no time-of-day travel 
restrictions or other special requirements.
    The SVC rules have several operational conditions. SVC's cannot 
operate on holidays or during holiday weekends. SVC's cannot be 
dispatched or operated during adverse weather conditions. SVC's must 
travel in the right lane, except for passing, and the following distance 
is 100 feet for every 10 miles per hour. SVC permits can include any 
restrictions deemed necessary, including specific routes and hours, 
days, and/or seasons of operation. Rules and regulations can be 
promulgated regarding driver qualifications, vehicle equipment, and 
operational standards.
    WEIGHT: All triple trailing unit combinations must comply with the 
Federal Bridge Formula with maximum axle weights of 20,000 pounds on a 
single axle and 34,000 pounds on a tandem axle. The maximum gross weight 
is 120,000 pounds on the Turnpike and Turnpike access routes, but the 
SVC's have a maximum weight of 110,000 pounds.
    DRIVER: A commercial driver's license with the appropriate 
endorsement is required under both Turnpike and SVC rules. In addition, 
for SVC operation drivers must have completed SVC driver training and a 
company road test. Drivers must also have 2 years of experience driving 
tractor-semitrailers and 1 year driving doubles.
    VEHICLE: Vehicle requirements apply to the SVC program only. All 
axles, except steering axles, must have dual wheels, and all vehicles 
must be able to achieve and maintain a speed of 40 miles per hour on all 
grades. Antispray mud flaps shall be attached to the rear of each axle 
except the steering axle. Mud flaps shall have a surface designed to 
absorb and deflect excess moisture to the road surface. Drop and lift 
axles

[[Page 425]]

are prohibited. Vehicles may have a minimum of six and a maximum of nine 
axles. The heaviest trailers are to be placed forward. Hazardous cargo 
is prohibited. Convex mirrors are required on both sides of the cab. 
Equipment must comply with the requirements of 49 CFR 390-399.
    Any SVC shall be stable at all times during normal braking and 
normal operation. When traveling on a level, smooth paved surface, an 
SVC shall follow the towing vehicle without shifting or swerving beyond 
the restraints of the lane of travel.
    PERMIT: Same as the KS-TT2 combination on the Turnpike and Turnpike 
access routes. A fee per company plus a permit fee for each power unit 
is required for the SVC program, and the SVC permits are valid for 1 
year. SVC's operated pursuant to regulation 36-1-33 under an annual 
permit shall be covered by insurance.
    ACCESS: Turnpike access routes include all routes between the 
Turnpike and a motor freight terminal located within a 10-mile radius of 
each toll booth, except at the northeastern end of the Turnpike where a 
20-mile radius is allowed. SVC access routes include all routes between 
the Interstate and a motor freight terminal located within 5 miles of 
the Interstate at Goodland.

                                 ROUTES:

    A. For vehicles subject to the Turnpike and Turnpike access rules:

------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-35 KTA........................  Oklahoma..........  KTA Exit 127.
I-70 KTA........................  KTA Exit 182......  KTA Exit 223.
I-335 KTA.......................  KTA Exit 127......  KTA Exit 177.
I-470 KTA.......................  KTA Exit 177......  KTA Exit 182.
------------------------------------------------------------------------

    B. For vehicles subject to the SVC rules:

------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-70............................  Colorado..........  I-70 Exit 19
                                                       Goodland.
------------------------------------------------------------------------

    LEGAL CITATIONS: Same as the KS-TT2 combination, plus KSA 8-1915.

                          STATE: MASSACHUSETTS

          COMBINATION: Truck tractor and 2 trailing units--LCV

                LENGTH OF CARGO-CARRYING UNITS: 104 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 127,400 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Any combination of vehicles may not exceed a maximum gross 
weight of 127,400 pounds. The maximum gross weight of the tractor and 
first semitrailer shall not exceed 71,000 pounds. The maximum gross 
weight of each unit of dolly and semitrailer shall not exceed 56,400 
pounds. The maximum gross weight for the tractor and first semitrailer 
is governed by the formula 35,000 pounds plus 1,000 pounds per foot 
between the center of the foremost axle and the center of the rearmost 
axle of the semitrailer. The maximum gross weight on any one axle is 
22,400 pounds, and on any tandem axle it is 36,000 pounds. Axles less 
than 46 inches between centers are considered to be one axle.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement and must be registered with the Massachusetts 
Turnpike Authority (MTA). Registration shall include all specified 
driving records, safety records, physical examinations, and minimum of 5 
years of driving experience with tractor trailers.
    VEHICLE:
    (1) Brake Regulation. The brakes on any vehicle, dolly converter, or 
combination of vehicles used in tandem-trailer operations as a minimum 
shall comply with Federal Motor Carrier Safety Regulations in 49 CFR 
part 393. In addition, any vehicle, dolly converter or combination of 
vehicles used in tandem-trailer operations shall meet the requirements 
of the provisions of the Massachusetts Motor Vehicle Law. Tandem-trailer 
combinations certified on or after June 1, 1968, shall be equipped with 
suitable devices to accelerate application and release of the brakes of 
the towed vehicle.
    (2) Axles. A tractor used to haul a tandem trailer combination with 
a gross weight of more than 110,000 pounds shall be equipped with tandem 
rear axles, each of which shall be engaged to bear its full share of the 
load on the roadway surface.
    (3) Tandem Assembly. When the gross weight of the trailers vary by 
more than 20 percent, they shall be coupled with the heaviest trailer 
attached to the tractor. Coupling devices and towing devices shall 
comply with the Federal regulations as stated in 49 CFR part 393. When 
the distance between the rear of the one semitrailer and the front of 
the following semitrailer is 10 feet or more, the dolly shall be 
equipped with a device, or the trailers shall be connected along the 
sides with suitable material, which will indicate to other Turnpike 
users that the trailers are connected and are in effect one unit. The 
MTA shall approve the devices or connections to be used on the 
semitrailers that would indicate it is one unit. Coupling devices shall 
be so designed, constructed, and installed, and the vehicles in a tandem 
trailer combination shall be so designed and constructed to ensure that 
when traveling on a level, smooth paved surface they will follow in the 
path of the towing vehicle without shifting or swerving over 3 inches to 
each side of the path of the towing vehicle when it is moving in a 
straight line. A tandem

[[Page 426]]

trailer unit may pass another vehicle traveling in the same direction 
only if the speed differential will allow the tandem trailer unit to 
complete the maneuver and return to the normal driving lane within a 
distance of 1 mile.
    Each truck tractor shall be equipped with at least one spare fuse or 
other overload protective device, if the devices are not of a reset 
type, for each kind and size used. The vehicle is to carry at least one 
set of tire chains for at least one driving wheel on each side between 
October 15 and May 1 of each year. Each truck tractor shall carry a fire 
extinguisher which shall have an aggregate rating of 20 BC.
    PERMIT: A permittee must demonstrate to the MTA that it has 
insurance coverage of the type and amounts required by Turnpike 
regulation. Both the tractor manufacturer and the permittee shall 
certify to the MTA, prior to the approval of a tractor, that it is 
capable of hauling the maximum permissible gross load to be transported 
by the permittee at a speed not less than 20 miles per hour on all 
portions of the turnpike system. The MTA may revoke or temporarily 
suspend any permit at will and the instructions of the MTA or 
Massachusetts State Police shall be complied with immediately.
    ACCESS: Makeup and breakup areas. Tandem trailer units shall not 
leave the Turnpike right-of-way and shall be assembled and disassembled 
only in designated areas.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-90 Mass Turnpike..............  New York State....  Turnpike Exit 18
                                                       Boston.
------------------------------------------------------------------------

                            LEGAL CITATIONS:

    The MTA, Massachusetts Rules and Regulations 730, and CMR 4.00.

                             STATE: MICHIGAN

          COMBINATION: Truck tractor and 2 trailing units--LCV

                 LENGTH OF CARGO-CARRYING UNITS: 58 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 164,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: The single-axle weight limit for LCV's is 18,000 pounds for 
axles spaced 9 feet or more apart. For axles spaced more than 3.5 but 
less than 9 feet apart, the single-axle weight limit is 13,000 pounds. 
The tandem-axle weight limit is 16,000 pounds per axle for the first 
tandem and 13,000 pounds per axle for all other tandems. Axles spaced 
less than 3.5 feet apart are limited to 9,000 pounds per axle. Maximum 
load per inch width of tire is 700 pounds. Maximum gross weight is 
determined based on axle and axle group weight limits.
    When restricted seasonal loadings are in effect, load per inch width 
of tire and maximum axle weights are reduced as follows: Rigid 
pavements--525 pounds per inch of tire width, 25 percent axle weight 
reduction; Flexible pavements--450 pounds per inch of tire width, 35 
percent axle weight reduction.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: Truck height may not exceed 13.5 feet. There is no overall 
length for LCV's operating on the Interstate System when semitrailer and 
trailer lengths do not exceed 28.5 feet. If either the trailer or 
semitrailer is longer than 28.5 feet, the distance from the front of the 
first box to the rear of the second box may not exceed 58 feet. A 
combination of vehicles shall not have more than 11 axles, and the ratio 
of gross weight to net horsepower delivered to the clutch shall not 
exceed 400 to 1.
    PERMIT: Permits for divisible loads of more than 80,000 pounds must 
conform to either Federal or grandfathered axle and bridge spacing 
requirements.
    ACCESS: All designated State highways.
    ROUTES: All Interstate routes and designated State highways.

                            LEGAL CITATIONS:

Michigan Public Act 300, section 257.722
Michigan Public Act 300, section 257.719

                             STATE: MICHIGAN

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 63 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER: The driver must have a commercial driver's license with 
appropriate endorsement.
    VEHICLE: The overall length of this combination is limited to 70 
feet. The only cargo that may be carried is saw logs, pulpwood, and tree 
length poles.
    PERMIT: None required.
    ACCESS: All NN routes.
    ROUTES: All NN routes.
    LEGAL CITATIONS: Michigan Public Act 300, section 257.719.

[[Page 427]]

                           STATE: MISSISSIPPI

             COMBINATION: Truck tractor and 2 trailing units

               LENGTH OF THE CARGO-CARRYING UNITS: 65 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: Each trailing unit may be a maximum of 30 feet long.
    PERMIT: None required.
    ACCESS: No restrictions, may operate Statewide.
    ROUTES: All NN routes.
    LEGAL CITATIONS: Section 63-5-19, Mississippi Code, Annotated, 1972.

                             STATE: MISSOURI

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 110 feet

    MAXIMUM ALLOWABLE GROSS WEIGHT: 120,000 pounds when entering 
Missouri from Kansas; 95,000 pounds when entering from Nebraska; 90,000 
pounds when entering from Oklahoma.
    OPERATIONAL CONDITIONS: Missouri allows vehicles from neighboring 
States access to terminals in Missouri which are within 20 miles of the 
Missouri State Line. These vehicles must be legal in the State from 
which they are entering Missouri.
    WEIGHT, DRIVER, VEHICLE: Same conditions which apply to a truck 
tractor and two trailing units legally operating in Kansas, Nebraska, or 
Oklahoma.
    PERMIT: Annual blanket overdimension permits are issued to allow a 
truck tractor and two trailing units legally operating in Kansas, 
Nebraska, or Oklahoma to move to and from terminals in Missouri which 
are located within a 20-mile band of the State Line for these three 
States. There is a permit fee per power unit. The permits carry routine 
permit restrictions, but do not address driver qualifications or any 
other restrictions not included in the rules and regulations for all 
permitted movement.
    ACCESS: Routes as necessary to reach terminals.
    ROUTES: All NN routes within a 20-mile band from the Kansas, 
Nebraska, and Oklahoma borders.
    LEGAL CITATIONS: Sec.  304.170 and Sec.  304.200 Revised Statutes of 
Missouri 1990.

                             STATE: MISSOURI

          COMBINATION: Truck tractor and 3 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 109 feet

    MAXIMUM ALLOWABLE GROSS WEIGHT: 120,000 pounds when entering 
Missouri from Kansas; 90,000 pounds when entering from Oklahoma.
    OPERATIONAL CONDITIONS: Missouri allows vehicles from neighboring 
States access to terminals in Missouri which are within 20 miles of the 
Missouri State Line. These vehicles must be legal in the State from 
which they are entering Missouri.
    WEIGHT, DRIVER, VEHICLE: Same conditions which apply to a truck 
tractor and three trailing units legally operating in Kansas or 
Oklahoma.
    PERMIT: Annual blanket overdimension permits are issued to allow a 
truck tractor and three trailing units legally operating in Kansas or 
Oklahoma, to move to and from terminals in Missouri which are located 
within a 20-mile band of the State Line for these two States. There is a 
permit fee per power unit. The permits carry routine permit 
restrictions, but do not address driver qualifications or any other 
restrictions not included in the rules and regulations for all permitted 
movement.
    ACCESS: Routes as necessary to reach terminals.
    ROUTES: All NN routes within a 20-mile band from the Kansas and 
Oklahoma borders.
    LEGAL CITATIONS: Sec.  304.170 & Sec.  304.200 Revised Statutes of 
Missouri 1990.

                             STATE: MONTANA

          COMBINATION: Truck tractor and 2 trailing units--LCV

                 LENGTH OF CARGO-CARRYING UNITS: 93 feet

 MAXIMUM ALLOWABLE GROSS WEIGHT: 137,800 pounds for vehicles operating 
 under the Montana/Alberta Memorandum of Understanding (MOU). For other 
   MT-TT2 combinations, the maximum allowable gross weight is 131,060 
                                 pounds.

                         OPERATIONAL CONDITIONS:

    WEIGHT: Except for vehicles operating under the MOU, any vehicle 
carrying a divisible load over 80,000 pounds must comply with the 
Federal Bridge Formula found in 23 U.S.C. 127.
Maximum single-axle limit: 20,000 pounds
Maximum tandem-axle limit: 34,000 pounds
Maximum gross weight limit: 131,060 pounds
Maximum weight allowed per inch of tire width is 600 pounds.
    WEIGHT, MONTANA/ALBERTA MOU:
Maximum single-axle limit: 20,000 pounds

[[Page 428]]

Maximum tandem-axle limit: 37,500 pounds
Maximum tridem-axle limit:
    Axles spaced from 94 to less than 118: 46,300 
pounds
    Axles spaced from 118 to less than 141: 50,700 
pounds
    Axles spaced from 141 to 146: 52,900 pounds
Maximum gross weight:
    A-Train: 118,000 pounds
    B-Train (eight axle): 137,800 pounds
    B-Train (seven axle): 124,600 pounds

    The designation of ``A-Train'' or ``B-Train'' refers to the manner 
in which the two trailing units are connected.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: No special requirements beyond compliance with Federal 
Motor Carrier Safety Regulations.
    PERMIT: Special permit required for double trailer combinations if 
either trailer exceeds 28.5 feet. Permits are available on an annual or 
a trip basis and provide for continuous travel. Statutory reference: 61-
10-124, MCA. For vehicles being operated under the Montana/Alberta MOU, 
operators must have paid gross vehicle weight fees for the total weight 
being carried. In addition, a term Restricted Route and Oversize Permit 
for which an annual fee is charged must be obtained. Finally, vehicle 
operators must secure a single-trip, overweight permit prior to each 
trip.
    ACCESS: Access must be authorized by the Montana DOT. For vehicles 
operated under the Montana/Alberta MOU, access routes from I-15 into 
Shelby are authorized when permits are issued. For vehicles with a 
cargo-carrying length greater than 88 feet, but not more than 93 feet, a 
2-mile access from the Interstate System is automatically granted to 
terminals and service areas. Access outside the 2-mile provision may be 
granted on a case-by-case basis by the Administrator of the Motor 
Carrier Services Division.
    ROUTES: Combinations with a cargo-carrying length greater than 88 
feet, but not more than 93 feet, are limited to the Interstate System. 
Combinations with a cargo-carrying length of 88 feet or less can use all 
NN routes except U.S. 87 from milepost 79.3 to 82.5. For vehicles being 
operated under the Montana/Alberta MOU, the only route available is I-15 
from the border with Canada to Shelby.
    LEGAL CITATION:

61-10-124 MCA...................  61-10-104 MCA.....  ARM 18.8.509(6)
61-10-107 (3) MCA...............  61-10-121 MCA.....  ARM 18.8.517, 518
 

Montana/Alberta Memorandum of Understanding
Administrative Rules of Montana

                             STATE: MONTANA

          COMBINATION: Truck tractor and 3 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 100 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 131,060 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Any vehicle carrying a divisible load over 80,000 pounds 
must comply with the Federal Bridge Formula found in 23 U.S.C. 127.
Maximum single-axle limit: 20,000 pounds
Maximum tandem-axle limit: 34,000 pounds
Maximum gross weight limit: 131,060 pounds
Maximum weight allowed per inch of tire width is 600 pounds.

    DRIVER: Drivers of three trailing unit combinations must be 
certified by the operating company. This certification includes an 
actual driving test and knowledge of Federal Motor Carrier Safety 
Regulations and State law pertaining to triple vehicle operations. 
Drivers are also required to have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: The 100-foot cargo-carrying length is only with a 
conventional tractor within a 110-foot overall length limit. If a 
cabover tractor is used, the cargo length is 95 feet within a 105-foot 
overall length limit. Vehicles involved in three trailing unit 
operations must comply with the following regulations:
    1. Shall maintain a minimum speed of 20 miles per hour on any grade;
    2. Kingpins must be solid and permanently affixed;
    3. Hitch connections must be no-slack type;
    4. Drawbars shall be of minimum practical length;
    5. Permanently affixed axles must be designed for the width of the 
trailer;
    6. Anti-sail mudflaps or splash and spray suppression devices are 
required;
    7. The heavier trailers shall be in front of lighter trailers;
    8. A minimum distance of 100 feet per 10 miles per hour is required 
between other vehicles except when passing;
    9. Operating at speeds greater than 55 miles per hour is prohibited; 
and
    10. Vehicle and driver are subject to Federal Motor Carrier Safety 
Regulations.
    Reference: 18.8.517 Administrative Rules of Montana.
    PERMIT: Special triple vehicle permits are required for the 
operation of these combinations. Permits are available on an annual or 
trip basis. Permits are good for travel on the Interstate System only 
and are subject to the following conditions:

[[Page 429]]

    1. Travel is prohibited during adverse weather conditions;
    2. Transportation of Class A explosives is prohibited; and
    3. Companies operating triple combinations must have an established 
safety program including driver certifications.
    ACCESS: Access is for 2 miles beyond the Interstate System, or 
further if granted by the Administrator of the Motor Carrier Services 
Division.
    ROUTES: Interstate System routes in the State.
    LEGAL CITATION: 18.8.517 Administrative Rules of Montana.

                             STATE: MONTANA

                       COMBINATION: Truck-Trailer

                 LENGTH OF CARGO-CARRYING UNITS: 88 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, and ACCESS: Same as the MT-TT2 combination.
    VEHICLE: Same as the MT-TT2 combination, except overall length 
limited to 95 feet.
    PERMIT: Special permit required if overall length exceeds 75 feet. 
Special permits allow continuous travel and are available on an annual 
or trip basis.
    ROUTES: Same as the MT-TT2 combination.
    LEGAL CITATIONS: 61-10-121 and 61-10-124, MCA.

                             STATE: MONTANA

                   COMBINATION: Truck-trailer-trailer

              LENGTH OF THE CARGO-CARRYING UNITS: 103 feet

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, PERMIT, and ACCESS: Same as the MT-TT2 combination.
    VEHICLE: The cargo-carrying unit length is 103 feet with a 
conventional truck within a 110-foot overall length limit, and 98 feet 
with a cab-over-engine truck within a 105-foot overall length limit. On 
two-lane highways the cargo-carrying unit length is 88 feet within a 95-
foot overall length limit.
    ROUTES: All NN routes except U.S. 87 between mileposts 79.3 and 
82.5.

                            LEGAL CITATIONS:

61-10-124 MCA
61-10-121 MCA
ARM 18-8-509

                             STATE: NEBRASKA

          COMBINATION: Truck tractor and 2 trailing units--LCV

   LENGTH OF THE CARGO-CARRYING UNITS: 95 feet for combination units 
 traveling empty. 65 feet for combination units carrying cargo, except 
 those carrying seasonally harvested products from the field where they 
  are harvested to storage, market, or stockpile in the field, or from 
     stockpile to market, which may extend the length to 71.5 feet.

                         OPERATIONAL CONDITIONS:

    WEIGHT:
Maximum weight:
    Single axle = 20,000 pounds
    Tandem axle = 34,000 pounds
    Gross = Determined by Federal Bridge Formula B, but not to exceed 
95,000 pounds.

    Truck tractor and 2 trailing unit combinations with a length of 
cargo-carrying units of over 65 feet are required to travel empty.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement. There are no additional special qualifications 
where the cargo-carrying unit lengths are 65 feet or less. For cargo-
carrying unit lengths over 65 feet, the driver must comply with all 
State and Federal requirements and must not have had any accidents while 
operating such vehicles.
    VEHICLE: For combinations with a cargo-carrying length over 65 feet, 
but not over 85 feet, the semitrailer cannot exceed 48 feet in length 
and the full trailer cannot be less than 26 feet or more than 28 feet 
long. The shorter trailer must be placed to the rear. The wheel path of 
the trailer(s) cannot vary more than 3 inches from that of the towing 
vehicle.
    For combinations with a cargo-carrying length greater than 85 feet, 
up to and including 95 feet, the trailers must be of approximately equal 
length.
    PERMIT: A weight permit in accordance with Chapter 12 of the 
Nebraska Department of Roads (NDOR) Rules and Regulations is required 
for operating on the Interstate System with weight in excess of 80,000 
pounds.
    A length permit, in accordance with Chapters 8 or 11 of the NDOR 
Rules and Regulations, is required for two trailing unit combinations 
with a length of cargo-carrying units over 65 feet. Except for permits 
issued to carriers hauling seasonally harvested products in combinations 
with a cargo-carrying length greater than 65 feet but not more than 71.5 
feet which may move as necessary to accommodate crop movement 
requirements, holders of length permits are subject to the following 
conditions.

[[Page 430]]

    Movement is prohibited on Saturdays, Sundays, and holidays; when 
ground wind speed exceeds 25 miles per hour; when visibility is less 
than 800 feet; or when steady rain, snow, sleet, ice, or other 
conditions cause slippery pavement. Beginning November 15 until April 16 
permission to move must be obtained from the NDOR Permit Office within 3 
hours of movement. Beginning April 16 until November 15 permission to 
move must be obtained within 3 days of the movement.
    Fees are charged for all permits. Length permits for combinations 
carrying seasonally harvested products are valid for 30 days and are 
renewable but may not authorize operation for more than 150 days per 
year.
    All permits are subject to revocation if the terms are violated.
    ACCESS: Access to NN routes is not restricted for two trailing unit 
combinations with a cargo-carrying length of 65 feet or less, or 71.5 
feet or less if involved in carrying seasonally harvested products. For 
two trailing unit combinations with a cargo-carrying length greater than 
65 feet and not involved in carrying seasonally harvested products, 
access to and from I-80 is limited to designated staging areas within 
six miles of the route between the Wyoming State Line and Exit 440 
(Nebraska Highway 50); and except for weather, emergency, and repair, 
cannot reenter I-80 after exiting.
    ROUTES: Except for length permits issued to carriers hauling 
seasonally harvested products in combinations with a cargo-carrying 
length greater than 65 feet but not more than 71.5 feet which may use 
all non-Interstate NN routes, vehicles requiring length permits are 
restricted to Interstate 80 between the Wyoming State Line and Exit 440 
(Nebraska Highway 50). Combinations not requiring length permits may use 
all NN routes.

                            LEGAL CITATIONS:

Nebraska Revised Statutes Reissued 1988
Sec.  39-6,179 (Double trailers under 65 feet)
Sec.  39-6,179.01 (Double trailers over 65 feet)
Sec.  39-6,180.01 (Authorized weight limits)
Sec.  39-6,181 (Vehicles; size; weight; load; overweight; special 
permits; etc.)
Nebraska Department of Roads Rules and Regulations, Title 408, Chapter 1 
(Double trailers over 65 feet)

                             STATE: NEBRASKA

             COMBINATION: Truck tractor and 3 trailing units

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: A truck tractor and three trailing unit combination is 
required to travel empty.
    DRIVER: Same as the NE-TT2 combination.
    PERMIT: A length permit, in accordance with Chapter 11 of the NDOR 
Rules and Regulations is required for a three trailing unit combination. 
Conditions of the length permit prohibit movements on Saturdays, 
Sundays, and holidays; when ground wind speed exceeds 25 miles per hour; 
and when visibility is less than 800 feet. Movement is also prohibited 
during steady rain, snow, sleet, ice, or other conditions causing 
slippery pavement. Beginning November 15 until April 16 permission to 
move must be obtained from the NDOR Permit Office within 3 hours of 
movement. Beginning April 16 until November 15 permission to move must 
be obtained within 3 days of the movement. A fee is charged for the 
annual length permit. These permits can be revoked if the terms are 
violated.
    ACCESS: Access to and from I-80 is limited to designated staging 
areas within 6 miles of the route between Wyoming State Line and Exit 
440 (Nebraska Route 50). Except for weather, emergency, and repair, 
three trailing unit combinations cannot reenter the Interstate after 
having exited.
    VEHICLE: A three trailing unit combination must have trailers of 
approximately equal length and the overall vehicle length cannot exceed 
105 feet.
    ROUTES: I-80 from Wyoming to Exit 440 (Nebraska Highway 50).

                            LEGAL CITATIONS:

Neb. Rev. Stat. Sec.  39-6.179,01 (Reissue 1988)
Nebraska Department of Roads Rules and Regulations, Title 408, Chapter 1

                             STATE: NEBRASKA

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 68 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.

[[Page 431]]

    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: The overall vehicle length, including load, cannot exceed 
75 feet.
    PERMIT: No permit is required.
    ACCESS: Statewide during daylight hours only.
    ROUTES: All NN routes.
    LEGAL CITATIONS: Neb. Rev. Stat. Sec.  39-6,179.

                              STATE: NEVADA

          COMBINATION: Truck tractor and 2 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: The single-axle weight limit is 20,000 pounds, the tandem-
axle weight limit is 34,000 pounds, and the gross weight is subject to 
the Federal Bridge Formula limits, provided that two consecutive tandems 
with a distance of 36 feet or more between the first and last axle may 
carry 34,000 pounds on each tandem.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement, be at least 25 years old, and have had a 
medical exam within previous 24 months. Every operator must be covered 
by a liability insurance policy with personal injury and property damage 
limits meeting State requirements.
    VEHICLE: No trailer may be longer than 48 feet. If one trailer is 48 
feet long, the other trailer cannot exceed 42 feet. Towed vehicles must 
not shift or sway more than 3 inches to right or left and must track in 
a straight line on a level, smooth paved highway. Vehicles must be able 
to accelerate and operate on a level highway at speeds which are 
compatible with other traffic and with the speed limits and must be able 
to maintain a minimum of 20 miles per hour on any grade on which they 
may operate. All vehicles must have safety chains on converter dollies. 
Vehicles must carry snow chains for each drive wheel.
    Vehicle operations may be suspended in adverse weather and high 
winds, as determined by police or the Nevada DOT.
    The shortest trailer must be in the rear of a combination unless it 
is heavier than the longer trailer.
    Brakes must comply with all State and Federal requirements for 
commercial vehicles including automatic braking for separation of 
vehicles, parking brakes, and working lights.
    Vehicles must not exceed posted speed limits and cannot operate on 
any highway on which they cannot at all times stay on the right side of 
the center line. All LCV's must keep a distance of at least 500 feet 
from each other.
    Every full-sized truck or truck tractor used in a combination of 
vehicles must be equipped with at least the following emergency and 
safety equipment:
    1. One fire extinguisher which meets ``Classification B'' of the 
National Fire Protection Association.
    2. One spare light bulb for every electrical lighting device used on 
the rear of the last vehicle in a combination of vehicles.
    3. One spare fuse for each different kind and size of fuse used in 
every vehicle in the combination of vehicles. If the electrical system 
of any vehicle in the combination contains any devices for protection of 
electrical circuits from overloading, other than fuses and circuit 
breakers which can be reset, one spare of each such device must be kept 
as emergency and safety equipment.
    4. Any flares, reflectors or red electrical lanterns which meet 
State or Federal law or regulation.
    Before operating a combination of vehicles on a highway of this 
State, the owner or operator of the combination shall certify to the 
Nevada DOT, on a form provided by it, that all vehicles and equipment in 
the combination meet the requirements of and will be operated in 
compliance with NAC 484.300 to 484.440, inclusive.
    All axles except for steering axles and axles that weigh less than 
10,000 pounds must have at least four tires unless the tire width of 
each tire on the axles is 14 inches or greater.
    PERMIT: Permits are required and a fee is charged. They may be 
revoked for violation of any of the provisions of the legal regulations. 
The State may suspend operation on roads deemed unsafe or impracticable. 
Permits must be carried in the vehicle along with identification devices 
issued by the Nevada Department of Motor Vehicles.
    ACCESS: As authorized by the Nevada DOT.
    ROUTES: All NN routes, except US 93 from Nevada State route 500 to 
Arizona.
    LEGAL CITATIONS: NRS 484.400, .405(4), .425, .430, .739, 408.100-4, 
.100-6(a), and 706.531. Also, ``Regulations for the Operation of 70 to 
105 foot Combinations'' (1990).

[[Page 432]]

                              STATE: NEVADA

          COMBINATION: Truck tractor and 3 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 pounds

    OPERATIONAL CONDITIONS: Same as the NV-TT2 combination.
    ROUTES: Same as the NV-TT2 combination.
    LEGAL CITATIONS: Same as the NV-TT2 combination.

                              STATE: NEVADA

          COMBINATION: Truck-trailer, and Truck-trailer-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 98 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, VEHICLE, and ACCESS: Same as the NV-TT2 combination.
    PERMITS: Same as the NV-TT2 combination, except permits for Truck-
trailer, or Truck-trailer-trailer combinations are only required when 
the overall length is 70 feet or more.
    ROUTES: Same as the NV-TT2 combination.
    LEGAL CITATIONS: Same as the NV-TT2 combination.

                            STATE: NEW MEXICO

          COMBINATION: Truck tractor and 2 trailing units--LCV

           LENGTH OF THE CARGO-CARRYING UNITS: Not applicable

              MAXIMUM ALLOWABLE GROSS WEIGHT: 86,400 pounds

    OPERATIONAL CONDITIONS: The cargo-carrying length restriction does 
not apply to this combination. The length of each trailing unit is 
limited to 28.5 feet. This describes a two trailing unit vehicle whose 
operation is guaranteed by the STAA of 1982 regardless of inter-unit 
spacing. As long as each trailing unit is 28.5 feet long or less, cargo-
carrying length is not restricted. This combination is listed as a LCV 
because it can exceed the 80,000-pound threshold established in the 
Congressional definition. The 86,400-pound gross weight limit is 
grandfathered for New Mexico.
    WEIGHT: Single axle = 21,600 pounds. Tandem axle = 34,200 pounds. 
Load per inch of tire width = 600 pounds. The total gross weight with 
load imposed on the highway by any vehicle or combination of vehicles 
where the distance between the first and last axles is less than 19 feet 
shall not exceed that given for the respective distances in the 
following table:

------------------------------------------------------------------------
                                                                 Allowed
                                                                 load in
    Distance in feet between first and last axles of group       pounds
                                                                on group
                                                                of axles
------------------------------------------------------------------------
4.............................................................    34,320
5.............................................................    35,100
6.............................................................    35,880
7.............................................................    36,660
8.............................................................    37,440
9.............................................................    38,220
10............................................................    39,000
11............................................................    39,780
12............................................................    40,560
13............................................................    41,340
14............................................................    42,120
15............................................................    42,900
16............................................................    43,680
17............................................................    44,460
18............................................................    45,240
------------------------------------------------------------------------

    The total gross weight with load imposed on the highway by any 
vehicle or combination of vehicles where the distance between the first 
and last axles is 19 feet or more shall not exceed that given for the 
respective distances in the following table:

------------------------------------------------------------------------
                                                                 Allowed
                                                                 load in
    Distance in feet between first and last axles of group       pounds
                                                                on group
                                                                of axles
------------------------------------------------------------------------
19............................................................    53,100
20............................................................    54,000
21............................................................    54,900
22............................................................    55,800
23............................................................    56,700
24............................................................    57,600
25............................................................    58,500
26............................................................    59,400
27............................................................    60,300
28............................................................    61,200
29............................................................    62,100
30............................................................    63,000
31............................................................    63,900
32............................................................    64,800
33............................................................    65,700
34............................................................    66,600
35............................................................    67,500
36............................................................    68,400
37............................................................    69,300
38............................................................    70,200
39............................................................    71,100
40............................................................    72,000
41............................................................    72,900
42............................................................    73,800
43............................................................    74,700
44............................................................    75,600
45............................................................    76,500
46............................................................    77,400
47............................................................    78,300

[[Page 433]]

 
48............................................................    79,200
49............................................................    80,100
50............................................................    81,000
51............................................................    81,900
52............................................................    82,800
53............................................................    83,700
54............................................................    84,600
55............................................................    85,500
56 and over...................................................    86,400
------------------------------------------------------------------------

    The distance between the centers of the axles shall be measured to 
the nearest even foot. When a fraction is exactly one-half the next 
larger whole number shall be used.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: No special requirements beyond normal Federal Motor Carrier 
or State regulations. The maximum length of the trailing units is 28.5 
feet.
    PERMIT: None Required.
    ACCESS: STAA vehicles must be allowed reasonable access in 
accordance with 23 CFR 658.19.
    ROUTES: All Interstate highways.

                            LEGAL CITATIONS:

66-7-409 NMSA 1978
66-7-410 NMSA 1978

                             STATE: NEW YORK

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 102 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 143,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: The following information pertains to tandem trailer 
combinations with either trailer more than 28.5 feet long but not more 
than 48 feet long. A nine-axle combination vehicle may not exceed a 
total maximum gross weight of 143,000 pounds. An eight-axle combination 
vehicle may not exceed a total maximum gross weight of 138,400 pounds. 
The maximum gross weight that may be carried upon any combination of 
units is limited by the maximum gross weight that can be carried upon 
the axles as follows. For a nine-axle combination: Drive axles--36,000 
pounds, axles four/five--36,000 pounds, axles six/seven--27,000 pounds, 
and axles eight/nine--36,000 pounds. A minimum 12-foot axle spacing 
between the fifth and sixth axles is also required on the nine-axle LCV. 
For an eight-axle combination: Drive axles--36,000 pounds, axles four/
five--36,000 pounds, sixth axle--22,400 pounds, and axles seven/eight--
36,000 pounds. The eight-axle LCV has no minimum axle-spacing 
requirements. For gross weights in excess of 138,400 pounds the 
combination must include a tandem-axle dolly to meet the nine-axle 
requirements. Maximum permissible gross weight for B-train combination 
is 127,000 pounds.
    When the gross weight of the two trailers in a tandem combination 
vary more than 20 percent, the heaviest of the two must be placed in the 
lead position.
    For tandem trailer combinations in which neither trailing unit 
exceeds 28.5 feet in length the following maximum allowable weights 
apply: for a single axle--28,000 pounds (except that steering axles may 
not exceed 22,400 pounds), for a tandem axle--42,500 pounds, for a tri-
axle--52,500 pounds. The gross weight may not exceed 100,000 pounds or 
the manufacturers gross weight rating, whichever is lower.
    DRIVER: For operation on highways under the jurisdiction of the New 
York State Thruway Authority (NYSTA), except for the full length of I-84 
and that portion of I-287 from Thruway exit 8 to I-95, the driver must 
have a commercial driver's license with the appropriate endorsement, and 
hold a Tandem Trailer Driver's Permit issued by the NYSTA. In order to 
obtain an NYSTA driver's permit, an applicant must (1) hold a valid 
commercial driver's license with multiple-trailer endorsement; (2) be 
over 26 years old, in good health, and have at least 5 years of provable 
experience driving tractor-trailer combinations; and (3) meet all other 
application requirements with regard to driving history established by 
the NYSTA. Qualified drivers receive a Tandem Trailer Driver's Permit 
for Tandem Vehicle Operation which is valid only for the operation of 
the certified equipment owned by the company to which the permit is 
issued.
    For operation on highways under the jurisdiction of the New York 
State DOT, cities not wholly included in one county, the full length of 
I-84 and that portion of I-287 from Thruway exit 8 to I-95, the driver 
must have a commercial driver's license with the appropriate 
endorsement.
    VEHICLE: All vehicles must meet the requirements of applicable 
Federal and State statutes, rules, and regulations. Vehicles operating 
on highways under the jurisdiction of the NYSTA, except for the full 
length of I-84 and that portion of I-287 from Thruway exit 8 to I-95, 
must also meet the following additional requirements. The tractor 
manufacturer and the permittee shall certify to the NYSTA prior to the 
approval of the tractor that it is capable of hauling the maximum 
permissible gross load at a speed of not less than 20 miles per hour on 
all portions of the thruway system.
    The brakes on any vehicle, dolly converter, or combination of 
vehicles shall comply with

[[Page 434]]

49 CFR part 393 and, in addition, any vehicle or dolly converter shall 
meet the provisions of the New York State Traffic Law.
    Tandem trailer operations shall be equipped, at a minimum, with 
emergency equipment as required by 49 CFR part 393, subpart H, as 
amended, tire chains from October 15 to May 1 of each year, a fire 
extinguisher with an aggregate rating of 20BC, and each trailer with 
specific lamps and reflectors.
    All tractors certified by the NYSTA for use with tandem trailers 
will be assigned an identification number by the NYSTA which must be 
placed on the vehicle. The number must be at least 3 inches in height 
and visible to a person standing at ground level opposite the driver's 
position in the cab.
    Axle Type. Tractors to be used for hauling 110,000 pounds or more 
shall be equipped with tandem rear axles, both with driving power. 
Tractors to be used for hauling 110,000 pounds or less may have a single 
drive axle. Tandem combinations using single wheel tires commonly 
referred to as ``Super Singles'' are required to use triple-axle 
tractors, dual-axle trailers, and dual-axle dollies.
    Dollies. Every converter dolly certified on and after June 1, 1968, 
used to convert a semitrailer to a full trailer may have either single 
or tandem axles at the option of the permittee. Single-axle dollies may 
not utilize low profile tires. Combination vehicles with a gross weight 
in excess of 138,400 pounds must have a tandem-axle dolly to meet the 
nine-axle requirement. If the distance between two semitrailers is 10 
feet or more, the dolly shall be equipped with a device or the trailers 
connected along the sides with suitable material to indicate they are in 
effect one unit. The devices or connection shall be approved by the 
NYSTA prior to use on a tandem trailer combination. The NYSTA tandem-
trailer provisions require that converter dollies shall be coupled with 
one or more safety chains or cables to the frame or an extension of the 
frame of the motor vehicle by which it is towed. Each dolly converter 
must also be equipped with mud flaps. Tandem combinations using a 
sliding fifth wheel attached to the lead trailer, known as a ``B-Train'' 
combination, will require a separate Thruway Engineer Service approval 
prior to the initial tandem run. Special provisions regarding B-Trains 
will be reviewed at the time of the application or request for use on 
the Thruway.
    PERMIT: For operation on highways under the jurisdiction of the New 
York State DOT, cities not wholly included in one county, or the 
following highway sections under NYSTA jurisdiction; the full length of 
I-84 and that portion of I-287 from Thruway exit 8 to I-95, a permit to 
exceed the weight limits set forth in section 385(15) of the New York 
State Vehicle and Traffic Law must be obtained from the State DOT, city 
involved, or the NYSTA. A fee is charged for the permit.
    For operation on highways under the jurisdiction of the NYSTA, 
except for the full length of I-84 and that portion of I-287 from 
Thruway exit 8 to I-95, companies must file an application for a Tandem 
Trailer Permit with the NYSTA. Permits are issued to such companies upon 
meeting qualifications, including insurance, for tandem combinations 
over 65 feet in length. No permit fee is charged; however, Thruway tolls 
are charged for each use of the Thruway, and the equipment must be 
certified by the NYSTA annually. The annual re-certification of 
equipment is handled by: New York State Thruway Authority, Manager of 
Traffic Safety Services, P.O. Box 189, Albany, New York 12201-0189
    Transportation of hazardous materials is subject to special 
restrictions plus 49 CFR part 397 of the Federal Motor Carrier Safety 
Regulations.
    ACCESS: For tandem trailer combinations with either trailer more 
than 28.5 feet long but not more than 48 feet long, the following access 
is available to authorized operating routes.

I-87 (New York Thruway) Access provided at Thruway Exit 21B to or from a 
          point 1,500 feet north of the Thruway on US 9W.
I-90 (NYSTA-Berkshire Section) access provided at:
    (1) Thruway Exit B-1 to or from a point 0.8 mile north of the 
southern most access ramp on US 9.
    (2) Thruway Exit B-3 within a 2,000-foot radius of the Thruway ramps 
to NY 22.
I-90 (New York Thruway) access provided at:
    (1) Thruway Exit 28 within a radius of 1,500 feet of the toll booth 
at Fultonville, New York.
    (2) Thruway Exit 32 to or from a point 0.6 mile north of the Thruway 
along NY 233.
    (3) Thruway Exit 44 to or from a point 0.8 mile from the Thruway 
along NY 332 and Collett Road.
    (4) Thruway Exit 52 to or from:
    (a) A point 1.7 miles west and south of the Thruway via Walden 
Avenue and NY 240 (Harlem Road);
    (b) A point 0.85 mile east and south of the Thruway via Walden 
Avenue and a roadway purchased by the Town of Cheektowaga from Sorrento 
Cheese, Inc.
    (5) Thruway Exit 54 to or from a point approximately 2.5 miles east 
and north of the Thruway via routes NY 400 and NY 277.
    (6) Thruway Exit 56 to or from a point approximately 2 miles west 
and south of the Thruway via NY 179 and Old Mile Strip Road.
I-190 (NYSTA--Niagara Section) access provided at:
    (1) Thruway Exit N1 to or from:

[[Page 435]]

    (a) A point 0.8 mile west of the Thruway exit along Dingens Street.
    (b) A point 0.45 mile from the Thruway exit via Dingens Street and 
James E. Casey Drive.
    (2) Thruway Exit N5 to or from a point approximately 1.0 miles south 
of the Thruway via Louisiana Street and South Street.
    (3) Thruway Exit N15 to or from a point 0.5 mile southeast of the 
Thruway via NY 325 (Sheridan Drive) and Kenmore Avenue.
    (4) Thruway Exit N17 to or from:
    (a) A point 1.5 miles north of the Thruway on NY 266 (River Road).
    (b) A point approximately 0.4 mile south of the Thruway on NY 266 
(River Road).

    Tandem trailer combinations in which neither trailing unit exceeds 
28.5 feet in length are restricted to the Designated Qualifying and 
Access Highway System.
    ROUTES: For tandem trailer combinations with either trailer more 
than 28.5 feet long, but not more than 48 feet long, the following 
routes are available:

------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-87 (New York Thruway).........  Bronx/Westchester   Thruway Exit 24.
                                   County Line.
I-90 (New York Thruway).........  Pennsylvania......  Thruway Exit 24.
I-90 (New York Thruway Berkshire  Thruway Exit B-1..  Massachusetts.
 Section).
I-190 (New York Thruway Niagara   Thruway Exit 53...  Int'l Border with
 Section).                                             Canada.
NY 912M (Berkshire Connection of  Thruway Exit 21A..  Thruway Exit B-1.
 the New York Thruway).
------------------------------------------------------------------------

    Tandem trailer combinations in which neither trailing unit exceeds 
28.5 feet in length may operate on all NN Highways.

                            LEGAL CITATIONS:

Public Authorities Law--Title 9, sec. 350, et. seq. (section 361 is most 
relevant)
New York State Thruway Authority Rules & Regulations, sections 100.6, 
100.8, and 103.13
New York State Vehicle & Traffic Law, sections 385 and 1630

                           STATE: NORTH DAKOTA

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 103 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 105,500 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: The Gross Vehicle Weight (GVW) of any vehicle or combination 
of vehicles is determined by the Federal Bridge Formula, including the 
exception for two sets of tandems spaced 36 feet apart.
    No single axle shall carry a gross weight in excess of 20,000 
pounds. Axles spaced 40 inches or less apart are considered one axle. 
Axles spaced 8 feet or more apart are considered as individual axles. 
The gross weight of two individual axles may be restricted by the weight 
formula. Spacing between axles shall be measured from axle center to 
axle center.
    Axles spaced over 40 inches but less than 8 feet apart shall not 
carry a gross weight in excess of 17,000 pounds per axle. The gross 
weight of three or more axles in a grouping is determined by the 
measurement between the extreme axle centers. During the spring breakup 
season or on otherwise posted highways, reductions in the above axle 
weights may be specified.
    The weight in pounds on any one wheel shall not exceed one-half the 
allowable axle weight. Dual tires are considered one wheel.
    The weight per inch of tire width shall not exceed 550 pounds. The 
width of tire shall be the manufacturer's rating.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: The cargo length of a two trailing unit combination may not 
exceed 100 feet (when the power unit is a truck tractor) or 103 feet 
(when the power unit is a truck) when traveling on the NN or local 
highways designated by local authorities.
    All hitches must be of a load-bearing capacity capable of bearing 
the weight of the towed vehicles. The towing vehicle must have a hitch 
commonly described as a fifth wheel or gooseneck design, or one that is 
attached to the frame.
    The hitch on the rear of the vehicle connected to the towing vehicle 
must be attached to the frame of the towed vehicle. All hitches, other 
than a fifth wheel or gooseneck, must be of a ball and socket type with 
a locking device or a pintle hook.
    The drawn vehicles shall be equipped with brakes and safety chains 
adequate to control the movement of, and to stop and hold, such 
vehicles. When the drawn vehicle is of a fifth wheel or gooseneck 
design, safety chains are not required.

[[Page 436]]

    In any truck or truck tractor and two trailer combination, the 
lighter trailer must always be operated as the rear trailer, except when 
the gross weight differential with the other trailer does not exceed 
5,000 pounds.
    The power unit shall have adequate power and traction to maintain a 
minimum speed of 15 miles per hour on all grades.
    PERMIT: No permits are required for GVW of 80,000 pounds or less. 
Single-trip permits are required for GVW exceeding 80,000 pounds. 
Weather restrictions (37-06-04-06, NDAC), weight distribution on 
trailers (37-06-04, NDAC), and signing requirements (37-06-04-05, NDAC) 
are applicable.
    Movements of LCV's are prohibited when:
    1. Road surfaces, due to ice, snow, slush, or frost present a 
slippery condition which may be hazardous to the operation of the unit 
or to other highway users;
    2. Wind or other conditions may cause the unit or any part thereof 
to swerve, whip, sway, or fail to follow substantially in the path of 
the towing vehicle; or
    3. Visibility is reduced due to snow, ice, sleet, fog, mist, rain, 
dust, or smoke.
    The North Dakota Highway Patrol may restrict or prohibit operations 
during periods when in its judgment traffic, weather, or other safety 
conditions make travel unsafe.
    The last trailer in any combination must have a ``LONG LOAD'' sign 
mounted on the rear. It must be a minimum of 12 inches in height and 60 
inches in length. The lettering must be 8 inches in height with 1-inch 
brush strokes. The letters must be black on a yellow background.
    Legal width--8 feet 6 inches on all highways.
    Legal height--13 feet 6 inches.
    ACCESS: Access for vehicles with cargo-carrying length of 68 feet or 
more is 10 miles off the NN. Vehicles with a cargo-carrying length less 
than 68 feet may travel on all highways in North Dakota.
    ROUTES: All NN routes.
    LEGAL CITATIONS: North Dakota Century Code, section 38-12-04; North 
Dakota Administrative Code, article 37-06.

                           STATE: NORTH DAKOTA

          COMBINATION: Truck tractor and 3 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 100 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 105,500 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT, DRIVER, PERMIT, and ACCESS: Same as the ND-TT2 combination.
    VEHICLE: Same as the ND-TT2 combination, and in addition, in any 
combination with three trailing units the lightest trailer must always 
be operated as the rear trailer. For the first two trailing units the 
lighter trailer must always be second except when the gross weight 
differential with the other trailer does not exceed 5,000 pounds.

                 ROUTES: Same as the ND-TT2 combination.

            LEGAL CITATIONS: Same as the ND-TT2 combination.

                           STATE: NORTH DAKOTA

          COMBINATION: Truck-trailer, and Truck-trailer-trailer

              LENGTH OF THE CARGO-CARRYING UNITS: 103 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, VEHICLE, PERMIT, and ACCESS: Same as the ND-TT2 combination.

                 ROUTES: Same as the ND-TT2 combination.

            LEGAL CITATIONS: Same as the ND-TT2 combination.

                               STATE: OHIO

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 102 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 127,400 pounds

    OPERATIONAL CONDITIONS: Long double combination vehicles are only 
allowed on that portion of Ohio's Interstate System which is under the 
jurisdiction of the Ohio Turnpike Commission (OTC). These same vehicles 
are not allowed on any portion of the Interstate System under the 
jurisdiction of the Ohio DOT.
    WEIGHT: The OTC has established the following provisions for 
operation:
    Maximum Weight: Single axle = 21,000 pounds; tandem axle spaced 4 
feet or less apart = 24,000 pounds; tandem axle spaced more than 4 feet 
but less than 8 feet apart = 34,000 pounds; gross weight for doubles 90 
feet or less in length = 90,000 pounds; gross weight for doubles over 90 
feet but less than 112 feet in length = 127,400 pounds.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement, be over 26 years of age, in good health, and 
shall have not less than 5 years of experience driving tractor-trailer 
or tractor-short double trailer motor vehicles. Such driving experience 
shall include experience throughout the four seasons. Drivers must

[[Page 437]]

comply with the applicable current requirements of the Federal Motor 
Carrier Safety Regulations, Federal Hazardous Materials Regulations, and 
the Economic and Safety regulations of the Ohio Public Utility 
Commission.
    VEHICLE: Vehicles being operated under permit at night must be 
equipped with all lights and reflectors required by the Ohio Public 
Utilities Commission and the Federal Motor Carrier Safety Regulations, 
except that the trailer shall be equipped with two red tail lights and 
two red or amber stop lights mounted with one set on each side. Trailer 
and semitrailer length for doubles cannot exceed 48 feet, and mixed 
trailer length combinations are not allowed for combination vehicles 
over 90 feet in length. Combined cargo-carrying length, including the 
trailer hitch, cannot be less than 80 feet or more than 102 feet. The 
number of axles on a double shall be a minimum of five and a maximum of 
nine. A tractor used in the operation of a double shall be capable of 
hauling the maximum weight at a speed of not less than 40 miles per hour 
on all portions of the Turnpike.
    PERMIT: A special permit is required if the vehicle is over 102 
inches wide, 14 feet high, or 65 feet in length including overhang. 
Tractor-semitrailer-semitrailer combinations require a permit if over 75 
feet in length, excluding an allowed 3-foot front overhang and a 4-foot 
rear overhang. For vehicles over 120 inches wide, 14 feet high, or 80 
feet long or if any unit of the combination vehicle is over 60 feet in 
length, travel is restricted to daylight hours Monday through noon 
Saturday, except holidays and the day before and after holidays. 
Operators are restricted to daylight driving if the load overhang is 
more than 4 feet. A ``Long Double Trailer Permit'' issued by the OTC is 
required for operation of doubles in excess of 90 feet in length. Towing 
units and coupling devices shall have sufficient structural strength to 
ensure safe operation. Vehicles and coupling devices shall be so 
designed, constructed, and installed in a double as to ensure that any 
towed vehicles when traveling on a level, smooth paved surface will 
follow in the path of the towing vehicle without shifting or swerving 
more than 3 inches to either side of the path of the towing vehicle when 
the latter is moving in a straight line. Vehicle coupling devices and 
brakes shall meet the requirements of the Ohio Public Utilities 
Commission and Federal Motor Carrier Safety Regulations. The distance 
between the rearmost axle of a semitrailer and the front axle of the 
next semitrailer in a coupled double unit shall not exceed 12 feet 6 
inches. In no event shall the distance between the semitrailers coupled 
in a double exceed 9 feet. Double and triple trailer combinations must 
be equipped with adequate, properly maintained spray-suppressant mud 
flaps on all axles except the steering axle. In the event that the gross 
weights of the trailers vary by more than 20 percent, they shall be 
coupled according to their gross weights with the heavier trailer 
forward. A minimum distance of 500 feet shall be maintained between 
double units and/or triple units except when overtaking and passing 
another vehicle. A double shall remain in the right-hand, outside lane 
except when passing or when emergency or work-zone conditions exist. 
When, in the opinion of the OTC, the weather conditions are such that 
operation of a double is inadvisable, the OTC will notify the permittee 
that travel is prohibited for a certain period of time.
    Class A and B explosives; Class A poisons; and Class 1, 2, and 3 
radioactive material cannot be transported in double trailer 
combinations. Other hazardous materials may be transported in one 
trailer of a double. The hazardous materials should be placed in the 
front trailer unless doing so will result in the second trailer weighing 
more than the first trailer.
    ACCESS: Tandem trailer units shall not leave the Turnpike right-of-
way and shall be assembled and disassembled only in designated areas 
located at Exits 4, 7, 10, 11, 13, 14, and 16.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-76 Ohio Turnpike..............  Turnpike Exit 15..  Pennsylvania.
I-80 Ohio Turnpike..............  Turnpike Exit 8A..  Turnpike Exit 15.
I-80/90 Ohio Turnpike...........  Indiana...........  Turnpike Exit 8A.
------------------------------------------------------------------------

    LEGAL CITATIONS: Statutory authority, as contained in Chapter 5537 
of the Ohio Revised Code, to regulate the dimensions and weights of 
vehicles using the Turnpike.

                               STATE: OHIO

          COMBINATION: Truck tractor and 3 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 115,000 pounds

    OPERATIONAL CONDITIONS: Same as the OH-TT2 combination, except as 
follows below, and triple trailer units may operate on any ``turnpike 
project'' as defined in Ohio Revised Code (ORC) section 5537.01 and 
permitted by the Ohio Turnpike and Infrastructure Commission under the 
program authorized in ORC 5537.16 (The Ohio Turnpike Act of 1949 and as 
amendedand effective prior to June 1, 1991).
    WEIGHT: Gross weight for triples with an overall length greater than 
90 feet but not over 105 feet in length = 115,000 pounds.

[[Page 438]]

    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement, be over 26 years of age, in good health, and 
shall have not less than 5 years of experience driving double trailer 
combination units. Such driving experience shall include experience 
throughout the four seasons. Each driver must have special training on 
triple combinations to be provided by the Permittee.
    VEHICLE: Triple trailer combination vehicles are allowed to operate 
on the Turnpike provided the combination vehicle is at least 90 feet 
long but less than 105 feet long and each trailer is not more than 28.5 
feet in length. The minimum number of axles on the triple shall be seven 
and the maximum is nine.
    PERMIT: A triple trailer permit to operate on the Turnpike is 
required for triple trailer combinations in excess of 90 feet in length. 
There is an annual fee for the permit. Class A and B explosives; Class A 
poisons; and Class 1, 2, and 3 radioactive material cannot be 
transported in triple trailer combinations. Other hazardous materials 
may be transported in two trailers of a triple. The hazardous materials 
should be placed in the front two trailers unless doing so will result 
in the third trailer weighing more than either one of the lead trailers. 
In addition, under ORC 4513 .34, ODOT and local authorities are 
authorized to issue special permits for oversized vehicles.
    ACCESS: With two exceptions, triple trailer units shall not leave 
the Turnpike Project. The first exception is that triple trailer 
combinations are allowed on State Route 21 from I-80 Exit 11 (Ohio 
Turnpike) to a terminal located approximately 500 feet to the north in 
the town of Richfield. The second exception is for a segment of State 
Route 7 from Ohio Turnpike Exit 16 to 1 mile south. Triple trailer units 
shall not leave the Turnpike project. Section 5537.01, as discussed 
above defines ``turnpike project'' as: ``(B) ``Project'' or ``turnpike 
project'' means . . . interchanges, entrance plazas, approaches, those 
portions of connecting public roads that serve interchanges and are 
determined by the commission and the director of transportation to be 
necessary for the safe merging of traffic between the turnpike project 
and those public roads, . . .''

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-76 Ohio Turnpike..............  Turnpike Exit 15..  Pennsylvania.
I-80 Ohio Turnpike..............  Turnpike Exit 8A..  Turnpike Exit 15.
I-80/90 Ohio Turnpike...........  Indiana...........  Turnpike Exit 8A.
OH-7............................  Turnpike Exit 16..  Extending 1 mile
                                                       south.
------------------------------------------------------------------------
LEGAL CITATIONS: Same as the OH-TT2 combination.

                             STATE: OKLAHOMA

          COMBINATION: Truck tractor and 2 trailing units--LCV

              LENGTH OF THE CARGO-CARRYING UNITS: 110 feet

              MAXIMUM ALLOWABLE GROSS WEIGHT: 90,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Single axle = 20,000 pounds; tandem axle = 34,000 pounds; 
gross vehicle weight = 90,000 pounds. The total weight on any group of 
two or more consecutive axles shall not exceed the amounts shown in 
Table 1.

                                  Table 1--Oklahoma Allowable Axle Group Weight
----------------------------------------------------------------------------------------------------------------
                                                                           Maximum load (lbs) by axle group
                         Axle Spacing (ft)                          --------------------------------------------
                                                                     2 Axles  3 Axles  4 Axles  5 Axles  6 Axles
----------------------------------------------------------------------------------------------------------------
 4.................................................................   34,000  .......  .......  .......  .......
 5.................................................................   34,000  .......  .......  .......  .......
 6.................................................................   34,000  .......  .......  .......  .......
 7.................................................................   34,000  .......  .......  .......  .......
 8.................................................................   34,000   42,000  .......  .......  .......
 9.................................................................   39,000   42,500  .......  .......  .......
10.................................................................   40,000   43,500  .......  .......  .......
11.................................................................  .......   44,000  .......  .......  .......
12.................................................................  .......   45,000   50,000  .......  .......
13.................................................................  .......   45,500   50,500  .......  .......
14.................................................................  .......   46,500   51,500  .......  .......
15.................................................................  .......   47,000   52,000  .......  .......
16.................................................................  .......   48,000   52,500   58,000  .......
17.................................................................  .......   48,500   53,500   58,500  .......
18.................................................................  .......   49,500   54,000   59,000  .......
19.................................................................  .......   50,000   54,500   60,000  .......
20.................................................................  .......   51,000   55,500   60,500   66,000
21.................................................................  .......   51,500   56,000   61,000   66,500
22.................................................................  .......   52,500   56,500   61,500   67,000
23.................................................................  .......   53,000   57,500   62,500   68,000
24.................................................................  .......   54,000   58,000   63,000   68,500
25.................................................................  .......   54,500   58,500   63,500   69,000
26.................................................................  .......   56,000   59,500   64,000   69,500
27.................................................................  .......   57,500   60,000   65,000   70,000
28.................................................................  .......   59,000   60,500   65,500   71,000
29.................................................................  .......   60,500   61,500   66,000   71,500
30.................................................................  .......   62,000   62,000   66,500   72,000
31.................................................................  .......   63,500   63,500   67,000   72,500
32.................................................................  .......   64,000   64,000   68,000   73,500
33.................................................................  .......  .......   64,500   68,500   74,000
34.................................................................  .......  .......   65,000   69,000   74,500
35.................................................................  .......  .......   66,000   70,000   75,000
36.................................................................  .......  .......   68,000   70,500   75,500
37.................................................................  .......  .......   68,000   71,000   76,000
38.................................................................  .......  .......   69,000   72,000   77,000
39.................................................................  .......  .......   70,000   72,500   77,500
40.................................................................  .......  .......   71,000   73,000   78,000
41.................................................................  .......  .......   72,000   73,500   78,500
42.................................................................  .......  .......   73,000   74,000   79,000
43.................................................................  .......  .......   73,280   75,000   80,000
44.................................................................  .......  .......   73,280   75,500   80,500
45.................................................................  .......  .......   73,280   76,000   81,000
46.................................................................  .......  .......   73,280   76,500   81,500
47.................................................................  .......  .......   73,500   77,500   82,000
48.................................................................  .......  .......   74,000   78,000   82,000
49.................................................................  .......  .......   74,500   78,500   83,500
50.................................................................  .......  .......   75,500   79,000   84,000
51.................................................................  .......  .......   76,000   80,000   84,500

[[Page 439]]

 
52.................................................................  .......  .......   76,500   80,500   85,000
53.................................................................  .......  .......   77,500   81,000   86,000
54.................................................................  .......  .......   78,000   81,500   86,500
55.................................................................  .......  .......   78,500   82,500   87,000
56.................................................................  .......  .......   79,500   83,000   87,500
57.................................................................  .......  .......   80,000   83,500   88,000
58.................................................................  .......  .......  .......   84,000   89,000
59.................................................................  .......  .......  .......   85,000   89,500
60.................................................................  .......  .......  .......   85,500   90,000
----------------------------------------------------------------------------------------------------------------

    DRIVER: All drivers must have a commercial driver's license with the 
appropriate endorsement and must meet the requirements of the Federal 
Motor Carrier Safety Regulations (49 CFR parts 390-397). State 
requirements more stringent and not in conflict with Federal 
requirements take precedence.
    VEHICLE: All vehicles must meet the requirements of applicable 
Federal and State statutes, rules, and regulations. Vehicles and load 
shall not exceed 102 inches in width on the Interstate System and four-
lane divided highways. Maximum semitrailer length is 53 feet.

    Multiple trailer combinations must be stable at all times during 
braking and normal operation. A multiple trailer combination when 
traveling on a level, smooth, paved surface must follow in the path of 
the towing vehicle without shifting or swerving more than 3 inches to 
either side when the towing vehicle is moving in a straight line. 
Heavier trailers are to be placed to the front in multiple trailer 
combinations.
    PERMIT: An annual special authorization permit is required for 
tandem trailer vehicles operating on the Interstate System having a 
gross weight of more than 80,000 pounds. A fee is charged for the 
special authorization permit.
    ACCESS: Access is allowed from legally available routes (listed 
below) to service facilities and terminals within a 5-mile radius. 
Access is also authorized on two-lane roadways which connect multi-lane 
divided highways when such connection does not exceed 15 miles.
    ROUTES: Doubles with 29-foot trailers may use any route on the NN. 
Doubles with at least one trailer or semitrailer over 29 feet in length 
are limited to the Interstate and other multi-lane divided highways 
listed below.

------------------------------------------------------------------------
                                From                       To
------------------------------------------------------------------------
I-35................  Texas...................  Kansas.
I-40................  Texas...................  Arkansas.
I-44................  Texas...................  Missouri.
I-235...............  Entire length in
                       Oklahoma City.
I-240...............  Entire length in
                       Oklahoma City.
I-244...............  Entire length in Tulsa..
I-444...............  Entire length in Tulsa..
I-40 Bus............  I-40 Exit 119...........  US 81 El Reno.
US 60...............  I-35 Exit 214...........  US 177 Ponca City.
US 62...............  US 69 Muskogee..........  OK 80 Ft. Gibson.
US 62...............  I-44 Exit 39A Lawton....  OK 115 Cache.
US 64...............  Cimarron Turnpike.......  I-244 Tulsa.
US 64...............  I-35 Exit 186 Perry.....  US 77 Perry.
US 64...............  I-40 Exit 325 Roland....  Arkansas.
US 69...............  Texas...................  I-44 (Will Rogers Tpk.)
                                                 Exit 282.
US 70...............  OK 76 Wilson............  I-35 Exits 31A-B
                                                 Ardmore.
US 75...............  I-40 Exits 240A-B         I-244 Exit 2 Tulsa.
                       Henryetta.
US 75...............  I-44 Exits 6A-B Tulsa...  Dewey.
US 77...............  I-35 Exit 141 Edmond....  3.5 mi. W of I-35.
US 81...............  I-44 (Bailey Tpk.) Exit   South Intersection OK 7
                       80.                       Duncan.
US 81...............  OK 51 Hennessey.........  11.5 mi. N of US 412.
US 169..............  OK 51 Tulsa.............  OK 20 Collinsville.
US 270..............  Indian Nation Tpk. Exit   US 69 McAlester.
                       4.
US 270..............  OK 9 Tecumseh...........  I-40 Exit 181.
US 271..............  Texas...................  Indian Nation Tpk. Hugo.
US 412..............  I-44 Exit 241 Catoosa...  US 69.
US 412..............  OK 58 Ringwood..........  I-35 Exits 194A-B.
US 412..............  US 69 Chouteau..........  OK 412 B.
OK 3................  I-44 Exit 123...........  Oklahoma/Canadian County
                                                 Line.
OK 3A...............  OK 3 Oklahoma City......  I-44 Exit 125B Oklahoma
                                                 City.
OK 7................  I-44 Exits 36A-B........  OK 65 Pumpkin Center.
OK 7................  I-35 Exit 55............  US 177 Sulphur.
OK 7................  South intersection US 81  7.5 mi. E of US 81.
                       Duncan.
OK 9................  I-35 Exit 108A..........  US 77 Norman.
OK 11...............  I-35 Exit 222...........  US 177 Blackwell.
OK 11...............  US 75 Tulsa.............  I-244 Exit 12B.
OK 33...............  US 77 Guthrie...........  I-35 Exit 157 Guthrie.
OK 51...............  I-35 Exit 174...........  US 177 Stillwater.
OK 51...............  I-44 Exit 231 Tulsa.....  Muskogee Tpk. Broken
                                                 Arrow.

[[Page 440]]

 
OK 165..............  Connecting two sections
                       of the Muskogee
                       Turnpike at Muskogee.
OK 165..............  US 64/Bus. US 64          Muskogee Tpk.
                       Muskogee.
Cimarron Tpk........  I-35 Exit 194...........  US 64.
Cimarron Tpk Conn...  US 177 Stillwater.......  Cimarron Tpk.
Indian Nation         US 70/271 Hugo..........  I-40 Exits 240A-B
 Turnpike.                                       Henryetta.
Muskogee Tpk........  OK 51 Broken Arrow......  US 62/OK 165 Muskogee.
Muskogee Tpk........  OK 165 Muskogee.........  I-40 Exit 286 Webber's
                                                 Falls.
------------------------------------------------------------------------

                            LEGAL CITATIONS:

Title 47 1981 O.S. 14-101
Title 47 1990 O.S. 14-103, -109, and -116
DPS Size and Weight Permit Manual 595:30.

                             STATE: OKLAHOMA

          COMBINATION: Truck tractor and 3 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

              MAXIMUM ALLOWABLE GROSS WEIGHT: 90,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT and ACCESS: Same as the OK-TT2 combination.
    DRIVER: Same as the OK-TT2 combination except that in addition, a 
driver of a three trailing unit combination must have had at least 2 
years of experience driving tractor-trailer combinations.
    VEHICLE: All vehicles must meet the requirements of applicable 
Federal and State statutes, rules, and regulations. Vehicle and load 
shall not exceed 102 inches in width on the Interstate System and other 
four-lane divided highways. Maximum unit length of triple trailers is 29 
feet. Truck tractors pulling triple trailers must have sufficient 
horsepower to maintain a minimum speed of 40 miles per hour on the level 
and 20 miles per hour on grades under normal operation conditions. 
Heavy-duty fifth wheels, pick-up plates equal in strength to the fifth 
wheel, solid kingpins, no-slack hitch connections, mud flaps and splash 
guards, and full-width axles are required on triple trailer 
combinations. All braking systems must comply with State and Federal 
requirements.
    Multiple trailer combinations must be stable at all times during 
braking and normal operation. A multiple trailer combination when 
traveling on a level, smooth paved surface must follow in the path of 
the towing vehicle without shifting or swerving more than 3 inches to 
either side when the towing vehicle is moving in a straight line. 
Heavier trailers are to be placed to the front in multiple trailer 
combinations.
    PERMIT: An annual special combination permit is required for the 
operation of triple-trailer combinations on the Interstate System and 
other four-lane divided primary highways. This permit also authorizes 
such combinations to exceed 80,000 pounds on the Interstate System.
    The permit holder must certify that the driver of a triple-trailer 
combination is qualified. Operators of triple-trailer combinations must 
maintain a 500-foot following distance and must drive in the right lane, 
except when passing or in an emergency.
    Speed shall be reduced and extreme caution exercised when operating 
triple-trailer combinations under hazardous conditions, such as those 
caused by snow, wind, ice, sleet, fog, mist, rain, dust, or smoke. When 
conditions become sufficiently dangerous, as determined by the company 
or driver, operations shall be discontinued and shall not resume until 
the vehicle can be safely operated. The State may restrict or prohibit 
operations during periods when, in the State's judgment, traffic, 
weather, or other safety conditions make such operations unsafe or 
inadvisable.
    Class A and B explosives; Class A poisons; Class 1, 2, and 3 
radioactive material; and any other material deemed to be unduly 
hazardous by the U.S. Department of Transportation cannot be transported 
in triple-trailer combinations.
    A fee is charged for the annual special authorization permit.
    ROUTES: Same as the OK-TT2 combination.

                            LEGAL CITATIONS:

Title 47 1981 O.S. 14-101
Title 47 1990 O.S. 14-109, -116, -121
DPS Size and Weight Permit Manual 595:30.

                              STATE: OREGON

          COMBINATION: Truck tractor and 2 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 68 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 105,500 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Maximum allowable weights are as follows: single wheel--
10,000 pounds, single

[[Page 441]]

axle--20,000 pounds, tandem axle--34,000 pounds. Gross vehicle weights 
over 80,000 pounds must follow the Oregon extended weight table, with a 
maximum of 105,500 pounds. Weight is also limited to 600 pounds per inch 
of tire width.

                          EXTENDED WEIGHT TABLE

    Gross weights over 80,000 pounds are authorized only when operating 
under the authority of a Special Transportation Permit.

                        MAXIMUM ALLOWABLE WEIGHTS

    1. The maximum allowable weights for single axles and tandem axles 
shall not exceed those specified under ORS 818.010.
    2. The maximum allowable weight for groups of axles spaced at 46 
feet or less apart shall not exceed those specified under ORS 818.010.
    3. The maximum weights for groups of axles spaced at 47 feet or more 
and the gross combined weight for any combination of vehicles shall not 
exceed those set forth in the following table:

------------------------------------------------------------------------
                                     Maximum gross weight in pounds on
                                 ---------------------------------------
      Axle spacing in feet                                        8 or
                                   5 Axles   6 Axles   7 Axles    More
                                                                  axles
------------------------------------------------------------------------
47..............................    77,500    81,000    81,000    81,000
48..............................    78,000    82,000    82,000    82,000
49..............................    78,500    83,000    83,000    83,000
50..............................    79,000    84,000    84,000    84,000
51..............................    80,000    84,500    85,000    85,000
52..............................    80,500    85,000    86,000    86,000
53..............................    81,000    86,000    87,000    87,000
54..............................    81,500    86,500    88,000    91,000
55..............................    82,500    87,000    89,000    92,000
56..............................    83,000    87,500    90,000    93,000
57..............................    83,500    88,000    91,000    94,000
58..............................    84,000    89,000    92,000    95,000
59..............................    85,000    89,500    93,000    96,000
60..............................    85,500    90,000    94,000    97,000
61..............................    86,000    90,500    95,000    98,000
62..............................    87,000    91,000    96,000    99,000
63..............................    87,500    92,000    97,000   100,000
64..............................    88,000    92,500    97,500   101,000
65..............................    88,500    93,000    98,000   102,000
66..............................    89,000    93,500    98,500   103,000
67..............................    90,000    94,000    99,000   104,000
68..............................    90,000    95,000    99,500   105,000
69..............................    90,000    95,500   100,000   105,500
70..............................    90,000    96,000   101,000   105,500
71..............................    90,000    96,500   101,500   105,000
72..............................    90,000    96,500   102,000   105,500
73..............................    90,000    96,500   102,500   105,500
74..............................    90,000    96,500   103,000   105,500
75..............................    90,000    96,500   104,000   105,500
76..............................    90,000    96,500   104,500   105,500
77..............................    90,000    96,500   105,000   105,500
78..............................    90,000    96,500   105,500   105,500
------------------------------------------------------------------------

    Distance measured to nearest foot; when exactly one-half foot, take 
next larger number.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: For a combination which includes a truck tractor and two 
trailing units, the lead trailing unit (semitrailer) may be up to 40 
feet long. The second trailing unit may be up to 35 feet long. However, 
the primary control is the total cargo-carrying distance which has a 
maximum length of 68 feet. Any towed vehicles in a combination must be 
equipped with safety chains or cables to prevent the towbar from 
dropping to the ground in the event the coupling fails. The chains or 
cables must have sufficient strength to control the towed vehicle in the 
event the coupling device fails and must be attached with no more slack 
than necessary to permit proper turning. However, this requirement does 
not apply to a fifth-wheel coupling if the upper and lower halves of the 
fifth wheel must be manually released before they can be separated.
    PERMIT: A permit is required for operation if the gross combination 
weight exceeds 80,000 pounds. A fee is charged. Permitted movements must 
have the lighter trailing unit placed to the rear, and use splash and 
spray devices when operating in rainy weather. Movement is not allowed 
when road surfaces are hazardous due to ice or snow, or when other 
atmospheric conditions make travel unsafe.
    ACCESS: As allowed by the Oregon DOT.
    ROUTES: All NN routes.
    LEGAL CITATIONS: ORS 810.010, ORS 810.030 through 810.060, and ORS 
818.010 through 818.235.

                              STATE: OREGON

          COMBINATION: Truck tractor and 3 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 96 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 105,500 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT, DRIVER, PERMIT, and ACCESS: Same as the OR-TT2 combination.
    VEHICLE: Trailing units must be of reasonably uniform in length. The 
overall length of the combination is limited to 105 feet. Any towed 
vehicles in a combination must be equipped with safety chains or cables 
to prevent the towbar from dropping to the ground in the event the 
coupling fails. The chains or cables must have sufficient strength to 
control the towed vehicle in the event the coupling device fails and 
must be attached with no more slack than necessary to permit proper 
turning. However, this requirement does not apply to a fifth-wheel 
coupling if the upper and lower halves of the fifth wheel must be 
manually released before they can be separated.

[[Page 442]]

    ROUTES: The following NN routes are also open to truck tractor and 
three trailing unit combinations.

------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-5.............................  California........  Washington.
I-105...........................  Entire length in
                                   the Eugene-
                                   Springfield area.
I-205...........................  Jct. I-5..........  Washington.
I-405...........................  Entire length in
                                   Portland.
I-82............................  Washington........  Jct. I-84.
I-84............................  Jct. I-5..........  Idaho.
US 20...........................  Jct OR 22/OR 126    US 26 Vale.
                                   Santiam Junction.
US 20...........................  East Jct OR 99E     I-5 Exit 233.
                                   Albany.
US 26...........................  US 101 Cannon       OR 126 Prineville.
                                   Beach Junction.
US 20/26........................  Vale..............  Idaho.
US 30...........................  US 101 Astoria....  I-405 Exit 3
                                                       Portland.
US 95...........................  Nevada............  Idaho.
SPUR US 95......................  OR 201............  Idaho.
US 97...........................  California........  Washington.
US 101..........................  US 30 Astoria.....  US 26 Cannon Beach
                                                       Jct.
US 101..........................  OR 18 Otis........  US 20 Newport.
US 101..........................  Bandon............  North city limit
                                                       Coos Bay.
US 197..........................  I-84 Exit 87 The    Washington.
                                   Dalles.
US 395..........................  I-82 Exit 1         I-84 Exit 188
                                   Umatilla.           Stanfield.
US 395..........................  US 26 John Day....  OR 140 Lakeview.
US 730..........................  I-84 Exit 168.....  Washington.
OR 6............................  US 101 Tillamook..  US 26 near Banks.
OR 8............................  OR 47 Forest Grove  OR 217 Beaverton.
OR 11...........................  Washington........  Mission Cutoff
                                                       near Pendleton.
OR 18...........................  US 101 Otis.......  OR 99W Dayton.
OR 19...........................  I-84 Exit 137.....  South 2.5 miles.
OR 22...........................  OR 18 near          OR 99E Salem.
                                   Willamena.
OR 22...........................  I-5 Exit 253......  Jct US 20/OR 126
                                                       Santiam Jct.
OR 31...........................  US 97 La Pine.....  US 395 Valley
                                                       Falls.
OR 34...........................  Jct US 20/OR 99W    I-5 Exit 228.
                                   Corvallis.
OR 35...........................  I-84 Exit 64......  Mt. Hood Hood
                                                       River.
OR 39...........................  OR 140 East of      California.
                                   Klamath Falls.
OR 58...........................  I-5 Exit 188        US 97 near
                                   Goshen.             Chemult.
OR 62...........................  OR 99 Medford.....  OR 140 White City.
OR 78...........................  Jct US 20/ US 395   US 95 Burns
                                   Burns.              Junction.
OR 99...........................  I-5 Exit 58 Grants  I-5 Exit 48 Rogue
                                   Pass.               River.
OR 99...........................  I-5 Exit 192        Jct OR 99E/ OR 99W
                                   Eugene.             Junction City.
OR 99E..........................  I-5 Exit 307        I-205 Exit 9
                                   Portland.           Oregon City.
OR 99E..........................  I-5 Exit 233        Tangent.
                                   Albany.
OR 99E..........................  OR 228 Halsey.....  Harrisburg.
OR 99W..........................  Jct US 20/OR 34     I-5 Exit 294
                                   Corvallis.          Portland.
OR 126..........................  US 20 Sisters.....  US 26 Prineville.
OR 138..........................  I-5 Exit 136        East 2 miles.
                                   Sutherlin.
OR 140..........................  OR 62 White City..  Jct US 97/OR 66
                                                       Klamath Falls.
OR 201..........................  Jct US 20/US 26...  SPUR US 95 Cairo
                                                       Junction.
OR 207..........................  I-84 Exit 182.....  OR 74 Lexington.
OR 207/OR 74....................  Jct OR 207/OR 74    Jct OR 207/ OR 74/
                                   Lexington.          OR 206 Heppner.
OR 212..........................  I-205 Exit 12.....  US 26 Boring.
OR 214..........................  I-5 Exit 271        OR 99E Woodburn.
                                   Woodburn.
OR 217..........................  I-5 Exit 292        US 26 Beaverton.
                                   Tigard.
OR 224..........................  OR 99E Milwaukie..  I-205 Exit 13.
------------------------------------------------------------------------

    LEGAL CITATIONS: Same as the OR-TT2 combination.

                              STATE: OREGON

                       COMBINATION: Truck-trailer

           LENGTH OF CARGO-CARRYING UNITS: 70 feet, 5 inches.

WEIGHT: This combination must operate in compliance with State laws and 
 regulations. Because it is not an LCV, it is not subject to the ISTEA 
                 freeze as it applies to maximum weight.

DRIVER, ACCESS, ROUTES, AND LEGAL CITATIONS: Same as OR-TT2 combination.

    VEHICLE: The truck or trailer may be up to 40 feet long not to 
exceed 75 feet overall. The truck may have a built-in hoist to load 
cargo. Any towed vehicle in a combination must be equipped with safety 
chains or cables to prevent the towbar from dropping to the ground in 
the event the coupling fails. The chains or cables must have sufficient 
strength to control the towed vehicle in the event the coupling device 
fails and must be attached with no more slack than necessary to permit 
proper turning. However, this requirement does not apply to a fifth-
wheel coupling if the upper and lower halves of the fifth wheel must be 
manually released before they can be separated.

                 PERMIT: No overlength permit required.

                           STATE: PENNSYLVANIA

             COMBINATION: Truck tractor and 2 trailing units

               LENGTH OF THE CARGO-CARRYING UNITS: 57 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: The maximum gross weight is 100,000 pounds.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.

[[Page 443]]

    VEHICLE: A semitrailer, or the trailer of a tandem trailer 
combination, may not be longer than 28\1/2\ feet. A tandem combination--
including the truck tractor, semitrailer and trailer--which exceeds 85 
feet in length is considered a Class 9 vehicle which requires a special 
permit to travel on the Turnpike System. In tandem combinations, the 
heaviest trailer shall be towed next to the truck tractor.
    PERMIT: None required except for a Class 9 vehicle.

                                 Routes
------------------------------------------------------------------------
                                         From                 To
------------------------------------------------------------------------
I-76 Pennsylvania Turnpike        Ohio..............  Turnpike Exit 75.
 Mainline.
I-76/1-70 Pennsylvania Turnpike   Turnpike Exit 75..  Turnpike Exit 161.
 Mainline.
I-76 Pennsylvania Turnpike        Turnpike Exit 161.  Turnpike Exit 326.
 Mainline.
1-276 Pennsylvania Turnpike       Turnpike Exit 326.  I-95 Interchange.
 Mainline.
I-95 interchange Pennsylvania     I-95 Interchange..  New Jersey.
 Turnpike Mainline.
I-476 Pennsylvania Turnpike       Turnpike Exit 20..  Turnpike Exit 131.
 Northeastern Extension.
I-376 Pennsylvania Turnpike       Turnpike Exit 15..  Turnpike Exit 31.
 Beaver Valley Expressway.
Pennsylvania Turnpike 66          Turnpike Exit 0...  Turnpike Exit 14.
 Greensburg Bypass.
Pennsylvania Turnpike 43 Mon/     West Virginia.....  Turnpike Exit M8.
 Fayette Expressway (I-68 to
 Route 43).
Pennsylvania Turnpike 43 Mon/     Turnpike Exit M 15  Turnpike Exit M28.
 Fayette Expressway (Uniontown
 to Brownsville).
Pennsylvania Turnpike 43 Mon/     Turnpike Exit M30.  Turnpike Exit M54.
 Fayette Expressway (US-40 to PA-
 51).
Pennsylvania Turnpike 43 Mon/     Turnpike Exit M54.  I-376/Monroeville.
 Fayette Expressway (PA-51 to I-
 376/Monroeville).
Pennsylvania Turnpike 576         Turnpike Exit S1..  Turnpike Exit S6.
 Southern Beltway (I-376 to US-
 22).
Pennsylvania Turnpike 576         Turnpike Exit S6..  I-79.
 Southern Beltway (US-22 to I-
 79).
Pennsylvania Turnpike 576         I-79..............  Pennsylvania
 Southern Beltway (I-79 to Mon/                        Turnpike 43 Mon/
 Fayette Expressway).                                  Fayette
                                                       Expressway.
------------------------------------------------------------------------

    LEGAL CITATIONS: Pennsylvania Vehicle Code, 75 Pa.C.S. Sec.  
6110(a); Pennsylvania Code, 67 Pa. Code, Chapter 601.
    State: South Dakota.
    Combination: Truck tractor and two trailing units--LCV.
    Length of Cargo-Carrying Units: 100 feet.
    Maximum Allowable Gross Weight: 129,000 pounds.
    Operational Conditions:
    Weight: For all combinations, the maximum gross weight on two or 
more consecutive axles is limited by the Federal Bridge Formula but 
cannot exceed 129,000 pounds. The weight on single axles or tandem axles 
spaced 40 inches or less apart may not exceed 20,000 pounds. Tandem 
axles spaced more than 40 inches but 96 inches or less may not exceed 
34,000 pounds. Two consecutive sets of tandem axles may carry a gross 
load of 34,000 pounds each, provided the overall distance between the 
first and last axles of the tandems is 36 feet or more. The weight on 
the steering axle may not exceed 600 pounds per inch of tire width.
    For combinations with a cargo-carrying length greater than 81.5 feet 
the following additional regulations also apply. The weight on all axles 
(other than the steering axle) may not exceed 500 pounds per inch of 
tire width. Lift axles and belly axles are not considered load-carrying 
axles and will not count when determining allowable vehicle weight.
    Driver: The driver must have a commercial driver's license with the 
appropriate endorsement.
    Vehicle: For all combinations, a semitrailer or trailer may neither 
be longer than nor weigh 3,000 pounds more than the trailer located 
immediately in front of it. Towbars longer than 19 feet must be flagged 
during daylight hours and lighted at night.
    For combinations with a cargo-carrying length of 81.5 feet or less, 
neither trailer may exceed 45 feet, including load overhang. Vehicles 
may be 12 feet wide when hauling baled feed during daylight hours.
    For combinations with a cargo-carrying length over 81.5 feet long, 
neither trailer may exceed 48 feet, including load overhang. Loading the 
rear of the trailer heavier than the front is not allowed. All axles 
except the steering axle require dual tires. Axles spaced 8 feet or less 
apart must weigh within 500 pounds of each other. The trailer hitch 
offset

[[Page 444]]

may not exceed 6 feet. The maximum effective rear trailer overhang may 
not exceed 35 percent of the trailer's wheelbase. The power unit must 
have sufficient power to maintain 40 miles per hour. A ``LONG LOAD'' 
sign measuring 18 inches high by 7 feet long with black on yellow 
lettering 10 inches high is required on the rear. Offtracking is limited 
to 8.75 feet for a turning radius of 161 feet.

Offtracking Formula = 161-[161\2\-(L1\2\ + L2\2\ + 
          L3\2\ + L4\2\ + L5\2\ + 
          L6\2\ + L7\2\ + L8\2\)]\1/2\

    Note. L1 through L8 are measurements between 
points of articulation or vehicle pivot points. Squared dimensions to 
stinger steer points of articulation are negative. For two trailing unit 
combinations where at least one trailer is 45 feet long or longer, all 
the dimensions used to calculate offtracking must be written in the 
``Permit Restriction'' area of the permit along with the offtracking 
value derived from the calculation.
    Permit: For combinations with a cargo-carrying length of 81.5 feet 
or less, a single-trip permit is required for movement on the Interstate 
System if the gross vehicle weight exceeds 80,000 pounds. An annual or 
single-trip permit is required for hauling baled feed over 102 inches 
wide.
    For combinations with a cargo-carrying length greater than 81.5 
feet, a single-trip permit is required for all movements. Operations 
must be discontinued when roads are slippery due to moisture, visibility 
must be good, and wind conditions must not cause trailer whip or sway.
    For all combinations, a fee is charged for any permit.
    Access: For combinations with a cargo-carrying length of 81.5 feet 
or less, access is statewide off the NN unless restricted by the South 
Dakota DOT.
    For combinations with a cargo-carrying length greater than 81.5 
feet, access to operating routes must be approved by the South Dakota 
DOT.
    Routes: Combinations with a cargo-carrying length of 81.5 feet or 
less may use all NN routes. Combinations with a cargo-carrying length 
over 81.5 feet, are restricted to the Interstate System and:

------------------------------------------------------------------------
           Highway                    From                   To
------------------------------------------------------------------------
US12........................  North Dakota State    Jct I-29 at Summit.
                               Line.
US14........................  Jct US83 at Ft.       Jct US14B in Pierre.
                               Pierre.
US14........................  Jct US14B east of     W Jct US14 Bypass at
                               Pierre.               Brookings.
US14B.......................  Jct US14 in Pierre..  Jct US14 east of
                                                     Pierre.
US14B.......................  W Jct US14 at         Jct I-29 Exit 133 at
                               Brookings.            Brookings.
US16B.......................  Jct SD79 south of     Jct I-90 at Rapid
                               Rapid City.           City.
US18........................  E Jct US18B at Hot    Jct US385 at
                               Springs.              Oelrichs.
US18B.......................  W Jct US18 at Hot     E Jct US18 at Hot
                               Springs.              Springs.
US212.......................  Wyoming State Line..  Jct US85 at Belle
                                                     Fourche.
US212.......................  W Jct US83 west of    E Jct US83 west of
                               Gettysburg.           Gettysburg.
US212.......................  W Jct US281 in        E Jct US281 in
                               Redfield.             Redfield.
US281.......................  Jct I-90 Exit 310 at  S Jct US14 west of
                               Plankinton.           Huron.
US281.......................  Jct US14 north of     W Jct US212 in
                               Wolsey.               Redfield.
US281.......................  E Jct US212 in        North Dakota State
                               Redfield.             Line.
US83........................  Jct I-90 near Vivian  Jct US14 at Ft.
                                                     Pierre.
US83........................  Jct US14 east of      W Jct US212 west of
                               Pierre.               Gettysburg.
US83........................  E Jct US212 west of   Jct US12 south of
                               Gettysburg.           Selby.
US83........................  Jct US12 west of      North Dakota State
                               Selby.                Line.
US85........................  I-90 Exit 10 at       North Dakota State
                               Spearfish.            Line.
SD34........................  W Jct SD37..........  E Jct SD37.
SD37........................  Jct I-90 at Mitchell  E Jct SD34.
SD37........................  W Jct SD34..........  Jct US14 at Huron.
SD50........................  Burleigh Street in    Jct I-29 Exit 26.
                               Yankton.
SD79........................  Jct US18 & US385 at   Jct US16B south of
                               Oelrichs.             Rapid City.
------------------------------------------------------------------------
Legal Citations: SDCL 32-22-8.1, -38, -39, -41, -42, and -52; and
  Administrative Rules 70:03:01:37,:47,:48, and:60 through:70.


[[Page 445]]

                           STATE: SOUTH DAKOTA

          COMBINATION: Truck tractor and 3 trailing units--LCV

                LENGTH OF CARGO-CARRYING UNITS: 100 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT, DRIVER, PERMIT, and ACCESS: Same as the SD-TT2 combination.
    VEHICLE: Same as the SD-TT2 combination, except trailer lengths are 
limited to 28.5 feet, including load overhang, and the overall length 
cannot exceed 110 feet, including load overhang.
    ROUTES: Same as the SD-TT2 combination with a cargo-carrying length 
over 81.5 feet.
    LEGAL CITATIONS: SDCL 32-22-14.14, -38, -39, -42, and -52; and 
Administrative Rules 70:03:01:60 through :70.

                           STATE: SOUTH DAKOTA

                       COMBINATION: Truck-Trailer

                 LENGTH OF CARGO-CARRYING UNITS: 73 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, and PERMIT: Same as the SD-TT2 combination.
    VEHICLE: Same as the SD-TT2 combination except that in addition, the 
overall length including load overhang is limited to 80 feet. Trailer 
length is not limited.
    ACCESS: Same as the access provisions for the SD-TT2 combination 
with a cargo-carrying length of 81.5 feet or less.
    ROUTES: Same as the route provisions for the SD-TT2 combination with 
a cargo-carrying length of 81.5 feet or less.
    LEGAL CITATIONS: SDCL 32-22-8.1, -38, -39, -41, -42, and -52; and 
Administrative Rules 70:03:01:37, :47, and :48.

                           STATE: SOUTH DAKOTA

                       COMBINATION: Truck-Trailer

                 LENGTH OF CARGO-CARRYING UNITS: 78 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, and PERMIT: Same as the SD-TT2 combination.
    VEHICLE: Same as the SD-TT2 combination with a cargo-carrying length 
over 81.5 feet, except that in addition, the overall length is limited 
to 85 feet.
    ACCESS: Same as the access provisions for the SD-TT2 combination 
with a cargo-carrying length greater than 81.5 feet.
    ROUTES: Same as the route provisions for the SD-TT2 combination with 
a cargo-carrying length greater than 81.5 feet.
    LEGAL CITATIONS: SDCL 32-22-38, -39, -42, and -52; and 
Administrative Rules 70:03:01:60 through :70.

                               STATE: UTAH

          COMBINATION: Truck tractor and 2 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Weight limits are as follows:
Single axle: 20,000 pounds
Tandem axle: 34,000 pounds
Gross weight: 129,000 pounds
Vehicles must comply with the Federal Bridge Formula
    Tire loading on vehicles requiring an overweight or oversize permit 
shall not exceed 500 pounds per inch of tire width for tires 11 inches 
wide and greater, and 450 pounds per inch of tire width for tires less 
than 11 inches wide as designated by the tire manufacturer on the side 
wall of the tire. Tire loading on vehicles not requiring an overweight 
or oversize permit shall not exceed 600 pounds per inch of tire width as 
designated by the tire manufacturer on the sidewall.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement. Carriers must certify that their drivers have a 
safe driving record and have passed a road test administered by a 
qualified safety supervisor.
    VEHICLE: While in transit, no trailer shall be positioned ahead of 
another trailer which carries an appreciably heavier load. An empty 
trailer shall not precede a loaded trailer. Vehicles shall be powered to 
operate on level terrain at speeds compatible with other traffic. They 
must be able to maintain a minimum speed of 20 miles per hour under 
normal operating conditions on any grade of 5 percent or less over which 
the combination is operated and be able to resume a speed of 20 miles 
per hour after stopping on any such grade, except in extreme weather 
conditions.
    Oversize signs are required on vehicles in excess of 75 feet in 
length on two-lane highways.

[[Page 446]]

    A heavy-duty fifth wheel is required. All fifth wheels must be clean 
and lubricated with a light-duty grease prior to each trip. The fifth 
wheel must be located in a position which provides adequate stability. 
Pick-up plates must be of equal strength to the fifth wheel. The kingpin 
must be of a solid type and permanently fastened. Screw-out or folding-
type kingpins are prohibited.
    All hitch connections must be of a no-slack type, preferably a 
power-actuated ram. Air-actuated hitches which are isolated from the 
primary air transmission system are recommended.
    The drawbar length should be the practical minimum consistent with 
the clearances required between trailers for turning and backing 
maneuvers.
    Axles must be those designed for the width of the body.
    All braking systems must comply with State and Federal requirements. 
In addition, fast air transmission and release valves must be provided 
on all semitrailer and converter-dolly axles. A brake force limiting 
valve, sometimes called a ``slippery road'' valve, may be provided on 
the steering axle. Anti-sail type mud flaps are recommended.
    The use of single tires on any combination vehicle requiring an 
overweight or oversize permit shall not be allowed on single axles. A 
single axle is defined as one having more than 8 feet between it and the 
nearest axle or group of axles on the vehicle.
    When traveling on a level, smooth paved surface, the trailing units 
must follow in the path of the towing vehicle without shifting or 
swerving more than 3 inches to either side when the towing vehicle is 
moving in a straight line. Each combination shall maintain a minimum 
distance of 500 feet from another commercial vehicle traveling in the 
same direction on the same highway. Loads shall be securely fastened to 
the transporter with material and devices of sufficient strength to 
prevent the load from becoming loose, detached, dangerously displaced, 
or in any manner a hazard to other highway users. The components of the 
load shall be reinforced or bound securely in advance of travel to 
prevent debris from being blown off the unit and endangering the safety 
of the traveling public. Any debris from the special permit vehicle 
deposited on the highway shall be removed by the permittee.
    Bodily injury and property damage insurance is required before a 
special Transportation Permit will be issued.
    In the event any claim arises against the State of Utah, Utah 
Department of Transportation, Utah Highway Patrol, or their employees 
from the operation granted under the permit, the permittee shall agree 
to indemnify and hold harmless each of them from such claim.
    PERMIT: Permits must be purchased. The Utah DOT Motor Carrier Safety 
Division will, on submission of an LCV permit request, assign an 
investigator to perform an audit on the carrier, which must have an 
established safety program that is in compliance with the Federal Motor 
Carrier Safety Regulations (49 CFR parts 387-399), the Federal Hazardous 
Materials Regulations (49 CFR parts 171-178), and a ``Satisfactory'' 
safety rating. The request must show a travel plan for the operation of 
the vehicles. Permits are subject to Highway Patrol supervision and 
permitted vehicles may be subject to temporary delays or removed from 
the highways when necessary during hazardous road, weather, or traffic 
conditions. The permit will be cancelled without refund if violated. 
Expiration dates cannot be extended except for reasons beyond the 
control of the permittee, including adverse weather. Permits are void if 
defaced, modified, or obliterated. Lost or destroyed permits cannot be 
duplicated and are not transferable.
    ACCESS: Routes approved by the Utah DOT plus local delivery 
destination travel on two-lane roads.
    ROUTES: For combinations with a cargo-carrying length of 85 feet or 
less, all NN routes. Combinations with a cargo-carrying length over 85 
feet are restricted to the following NN routes:

------------------------------------------------------------------------
                               From                        To
------------------------------------------------------------------------
I-15...............  Arizona.................  Idaho.
I-70...............  Jct. I-15...............  Colorado.
I-80...............  Nevada..................  Wyoming.
I-84...............  Idaho...................  Jct. I-80.
I-215..............  Entire length in the
                      Salt Lake City area.
UT-201.............  I-80 Exit 102 Lake Point  300 West Street, Salt
                      Jct.                      Lake City.
------------------------------------------------------------------------

                            LEGAL CITATIONS:

Utah Code 27-12-154 and -155; Utah Administrative Code, Section R-909-1.

                               STATE: UTAH

          COMBINATION: Truck tractor and 3 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 95 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 129,000 pounds

    OPERATIONAL CONDITIONS: Same as the UT-TT2 combination.
    ROUTES: Same as the UT-TT2 combination with a cargo-carrying length 
greater than 85 feet.
    LEGAL CITATIONS: Same as the UT-TT2 combination.

[[Page 447]]

                               STATE: UTAH

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 88 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, VEHICLE, PERMIT, and ACCESS: Same as the UT-TT2 combination.
ROUTES:
    1. Truck-trailer combinations hauling bulk gasoline or LP gas: 
cargo-carrying length less than or equal to 78 feet, all NN routes; 
cargo-carrying lengths over 78 feet up to and including 88 feet, same as 
UT-TT2 with cargo-carrying length over 85 feet.
    2. All other truck-trailer combinations: cargo-carrying length less 
than or equal to 70 feet, all NN routes; cargo-carrying lengths over 70 
feet up to and including 78 feet, same as UT-TT2 with cargo-carrying 
length over 85 feet.
    LEGAL CITATIONS: Same as the UT-TT2 combination.

                               STATE: UTAH

                   COMBINATION: Truck-trailer-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 88 feet

   OPERATIONAL CONDITIONS: Same as the Utah truck-trailer combination.

    ROUTES: Same as the UT-TT2.
    LEGAL CITATIONS: Same as the UT-TT2 combination.

                               STATE: UTAH

                   COMBINATION: Automobile transporter

              LENGTH OF THE CARGO-CARRYING UNITS: 105 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT, DRIVER, PERMIT, and ACCESS: Same as the Utah truck-trailer 
combination.
    VEHICLE: The cargo-carrying length of automobile transporters that 
carry vehicles on the power unit is the same as the overall length.
    ROUTES: For automobile transporters with a cargo-carrying length of 
92 feet or less, all NN routes. Automobile transporters with a cargo-
carrying length over 92 feet up to and including 105 feet, same as UT-
TT2 with cargo-carrying length over 85 feet.
    LEGAL CITATIONS: Same as the UT-TT2 combination.

                            STATE: WASHINGTON

          COMBINATION: Truck tractor and 2 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 68 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 105,500 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: Single axle limit = 20,000 pounds; tandem axle limit = 
34,000 pounds; gross weight must comply with the Federal Bridge Formula.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: Operating conditions are the same for permitted doubles as 
for STAA of 1982 doubles.
    PERMIT: Combinations with a cargo-carrying length over 60 feet in 
length but not exceeding 68 feet must obtain an annual overlength permit 
to operate. A fee is charged.
    ACCESS: All State routes except SR 410 and SR 123 in or adjacent to 
Mt. Rainier National Park. In addition, restrictions may be imposed by 
local governments having maintenance responsibilities for local 
highways.
    ROUTES: All NN routes except SR 410 and SR 123 in the vicinity of 
Mt. Rainier National Park.
    LEGAL CITATIONS:
RCW 46.37, 46.44.030, .037(3), .041, and .0941.

                            STATE: WASHINGTON

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 68 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, PERMIT, and ACCESS: Same as the WA-TT2 combination.
    VEHICLE: Overall length limited to 75 feet.
    ROUTES: Same as the WA-TT2 combination.
    LEGAL CITATIONS: Same as the WA-TT2 combination.

[[Page 448]]

                             STATE: WYOMING

          COMBINATION: Truck tractor and 2 trailing units--LCV

               LENGTH OF THE CARGO-CARRYING UNITS: 81 feet

             MAXIMUM ALLOWABLE GROSS WEIGHT: 117,000 pounds

                         OPERATIONAL CONDITIONS:

    WEIGHT: No single axle shall carry a load in excess of 20,000 
pounds. No tandem axle shall carry a load in excess of 36,000 pounds. No 
triple axle, consisting of three consecutive load-bearing axles that 
articulate from an attachment to the vehicle including a connecting 
mechanism to equalize the load between axles having a spacing between 
the first and third axle of at least 96 inches and not more than 108 
inches, shall carry a load in excess of 42,500 pounds. No vehicles 
operated on the Interstate System shall exceed the maximum weight 
allowed by application of Federal Bridge Weight Formula B.
    No wheel shall carry a load in excess of 10,000 pounds. No tire on a 
steering axle shall carry a load in excess of 750 pounds per inch of 
tire width and no other tire on a vehicle shall carry a load in excess 
of 600 pounds per inch of tire width. ``Tire width'' means the width 
stamped on the tire by the manufacturer.
    Dummy axles may not be considered in the determination of allowable 
weights.
    DRIVER: The driver must have a commercial driver's license with the 
appropriate endorsement.
    VEHICLE: The lead semitrailer can be up to 48 feet long with the 
trailing unit up to 40 feet long. In a truck tractor-semitrailer-trailer 
combination, the heavier towed vehicle shall be directly behind the 
truck-tractor and the lighter towed vehicle shall be last if the weight 
difference between consecutive towed vehicles exceeds 5,000 pounds.
    PERMITS: No permits required.
    ACCESS: Unlimited access off the NN to terminals.
    ROUTES: All NN routes.
    LEGAL CITATIONS:
WS 31-5-1001, -1002, -1004, -1008, and WS 31-17-1-1 through 31-17-117.

                             STATE: WYOMING

                       COMBINATION: Truck-trailer

               LENGTH OF THE CARGO-CARRYING UNITS: 78 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, PERMIT, and ACCESS: Same as the WY-TT2 combination.
    VEHICLE: No single vehicle shall exceed 60 feet in length within an 
overall limit of 85 feet.
    ROUTES: Same as the WY-TT2 combination.
    LEGAL CITATIONS:
WS 31-5-1002

                             STATE: WYOMING

                COMBINATION: Automobile/Boat Transporter

                 LENGTH OF CARGO CARRYING UNITS: 85 feet

                         OPERATIONAL CONDITIONS:

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, PERMIT, and ACCESS: Same as the WY-TT2 combination.
    VEHICLE: The cargo-carrying length of automobile transporters that 
carry vehicles on the power unit is the same as the overall length. No 
single vehicle shall exceed 60 feet in length within an overall limit of 
85 feet.
    ROUTES: Same as the WY-TT2 combination.
    LEGAL CITATIONS: Same as the WY-TT2 combination.

                             STATE: WYOMING

                  COMBINATION: Saddlemount Combination

                 LENGTH OF CARGO CARRYING UNITS: 85 feet

    WEIGHT: This combination must operate in compliance with State laws 
and regulations. Because it is not an LCV, it is not subject to the 
ISTEA freeze as it applies to maximum weight.
    DRIVER, PERMIT, and ACCESS: Same as the WY-TT2 combination.
    VEHICLE: The cargo-carrying length of saddlemount combinations that 
carry vehicles on the power unit is the same as the overall length. No 
single vehicle shall exceed 60 feet in length within an overall limit of 
85 feet.
    No more than three saddlemounts may be used in any combination, 
except additional vehicles may be transported when safely loaded upon 
the frame of a vehicle in a properly assembled saddlemount combination.
    Towed vehicles in a triple saddlemount combination shall have brakes 
acting on all wheels which are in contact with the roadway.
    All applicable State and Federal rules on coupling devices shall be 
observed and complied with.

[[Page 449]]

    ROUTES: Same as the WY-TT2 combination.
    LEGAL CITATIONS: Same as the WY-TT2 combination.

[59 FR 30422, June 13, 1994, as amended at 60 FR 15215, Mar. 22, 1995; 
60 FR 16571, Mar. 31, 1995; 62 FR 10181, Mar. 5, 1997; 63 FR 70653, Dec. 
22, 1998; 67 FR 15110, Mar. 29, 2002; 77 FR 32014, May 31, 2012; 83 FR 
49488, Oct. 2, 2018; 84 FR 43688, Aug. 22, 2019]



Sec. Appendix D to Part 658--Devices That Are Excluded From Measurement 
          of the Length or Width of a Commercial Motor Vehicle

    The following devices are excluded from measurement of the length or 
width of a commercial motor vehicle, as long as they do not carry 
property and do not exceed the dimensional limitations included in Sec.  
658.16. This list is not exhaustive.
    1. All devices at the front of a semitrailer or trailer including, 
but not limited to, the following:
    (a) A device at the front of a trailer chassis to secure containers 
and prevent movement in transit;
    (b) A front coupler device on a semitrailer or trailer used in road 
and rail intermodal operations;
    (c) Aerodynamic devices, air deflector;
    (d) Air compressor;
    (e) Certificate holder (manifest box);
    (f) Door vent hardware;
    (g) Electrical connector;
    (h) Gladhand;
    (i) Handhold;
    (j) Hazardous materials placards and holders;
    (k) Heater;
    (l) Ladder;
    (m) Non-load carrying tie-down devices on automobile transporters;
    (n) Pickup plate lip;
    (o) Pump offline on tank trailer;
    (p) Refrigeration unit;
    (q) Removable bulkhead;
    (r) Removable stakes;
    (s) Stabilizing jack (anti-nosedive device);
    (t) Stake pockets;
    (u) Step;
    (v) Tarp basket;
    (w) Tire carrier; and
    (x) Uppercoupler.
    2. Devices excluded from length measurement at the rear of a 
semitrailer or trailer including, but not limited to, the following:
    (a) Handhold;
    (b) Hazardous materials placards and holders;
    (c) Ladder;
    (d) Pintle hook;
    (e) Removable stakes;
    (f) Splash and spray suppression device;
    (g) Stake pockets; and
    (h) Step.
    3. Devices excluded from width determination, not to exceed 3 inches 
from the side of the vehicle including, but not limited to, the 
following:
    (a) Corner caps;
    (b) Hazardous materials placards and holders;
    (c) Lift pads for trailer on flatcar (piggyback) operation;
    (d) Rain gutters;
    (e) Rear and side door hinges and their protective hardware;
    (f) Side marker lamps;
    (g) Structural reinforcement for side doors or intermodal operation 
(limited to 1 inch from the side within the 3 inch maximum extension);
    (h) Tarping systems for open-top trailers;
    (i) Movable devices to enclose the cargo area of flatbed 
semitrailers or trailers, usually called tarping systems, where no 
component part of the system extends more than 3 inches from the sides 
or back of the vehicle when the vehicle is in operation. This exclusion 
applies to all component parts of tarping systems, including the 
transverse structure at the front of the vehicle to which the sliding 
walls and roof of the tarp mechanism are attached, provided the 
structure is not also intended or designed to comply with 49 CFR 
393.106, which requires a headerboard strong enough to prevent cargo 
from penetrating or crushing the cab; the transverse structure may be up 
to 108 inches wide if properly centered so that neither side extends 
more than 3 inches beyond the structural edge of the vehicle. Also 
excluded from measurement are side rails running the length of the 
vehicle and rear doors, provided the only function of the latter, like 
that of the transverse structure at the front of the vehicle, is to seal 
the cargo area and anchor the sliding walls and roof. On the other hand, 
a headerboard designed to comply with 49 CFR 393.106 is load bearing and 
thus limited to 102 inches in width. However, the ``wings'' designed to 
close the gap between such a headerboard and the movable walls and roof 
of a tarping system are width exclusive, provided they are add-on pieces 
designed to bear only the load of the tarping system itself and are not 
integral parts of the load-bearing headerboard structure;
    (j) Tie-down assembly on platform trailers;
    (k) Wall variation from true flat; and
    (l) Weevil pins and sockets on low-bed trailers.

[67 FR 15110, Mar. 29, 2002]

[[Page 450]]



PART 660_SPECIAL PROGRAMS (DIRECT FEDERAL)--Table of Contents



                        Subpart A_Forest Highways

Sec.
660.101 Purpose.
660.103 Definitions.
660.105 Planning and route designation.
660.107 Allocations.
660.109 Program development.
660.111 Agreements.
660.112 Project development.
660.113 Construction.
660.115 Maintenance.
660.117 Funding, records and accounting.

Subparts B-D [Reserved]

                     Subpart E_Defense Access Roads

660.501 Purpose.
660.503 Objectives.
660.505 Scope.
660.507 Definitions.
660.509 General principles.
660.511 Eligibility.
660.513 Standards.
660.515 Project administration.
660.517 Maneuver area roads.
660.519 Missile installations and facilities.



                        Subpart A_Forest Highways

    Authority: 16 U.S.C. 1608-1610; 23 U.S.C. 101, 202, 204, and 315; 49 
CFR 1.48.

    Source: 59 FR 30300, June 13, 1994, unless otherwise noted.



Sec.  660.101  Purpose.

    The purpose of this subpart is to implement the Forest Highway (FH) 
Program which enhances local, regional, and national benefits of FHs 
funded under the public lands highway category of the coordinated 
Federal Lands Highway Program. As provided in 23 U.S.C. 202, 203, and 
204, the program, developed in cooperation with State and local 
agencies, provides safe and adequate transportation access to and 
through National Forest System (NFS) lands for visitors, recreationists, 
resource users, and others which is not met by other transportation 
programs. Forest highways assist rural and community economic 
development and promote tourism and travel.



Sec.  660.103  Definitions.

    In addition to the definitions in 23 U.S.C. 101(a), the following 
apply to this subpart:
    Cooperator means a non-Federal public authority which has 
jurisdiction and maintenance responsibility for a FH.
    Forest highway means a forest road under the jurisdiction of, and 
maintained by, a public authority and open to public travel.
    Forest road means a road wholly or partly within, or adjacent to, 
and serving the NFS and which is necessary for the protection, 
administration, and utilization of the NFS and the use and development 
of its resources.
    Jurisdiction means the legal right or authority to control, operate, 
regulate use of, maintain, or cause to be maintained, a transportation 
facility, through ownership or delegated authority. The authority to 
construct or maintain such a facility may be derived from fee title, 
easement, written authorization, or permit from a Federal agency, or 
some similar method.
    Metropolitan Planning Organization (MPO) means that organization 
designated as the forum for cooperative transportation decisionmaking 
pursuant to the provisions of part 450 of this title.
    Metropolitan Transportation Plan means the official intermodal 
transportation plan that is developed and adopted through the 
metropolitan transportation planning process for the metropolitan 
planning area.
    National Forest System means lands and facilities administered by 
the Forest Service (FS), U.S. Department of Agriculture, as set forth in 
the Forest and Rangeland Renewable Resource Planning Act of 1974, as 
amended (16 U.S.C. 1601 note, 1600-1614).
    Open to public travel means except during scheduled periods, extreme 
weather conditions, or emergencies, open to the general public for use 
with a standard passenger auto, without restrictive gates or prohibitive 
signs or regulations, other than for general traffic control or 
restrictions based on size, weight, or class of registration.
    Public authority means a Federal, State, county, town, or township, 
Indian tribe, municipal or other local

[[Page 451]]

government or instrumentality with authority to finance, build, operate, 
or maintain toll or toll-free facilities.
    Public lands highway means: (1) A forest road under the jurisdiction 
of and maintained by a public authority and open to public travel or (2) 
any highway through unappropriated or unreserved public lands, 
nontaxable Indian lands, or other Federal reservations under the 
jurisdiction of and maintained by a public authority and open to public 
travel.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Renewable resources means those elements within the scope of 
responsibilities and authorities of the FS as defined in the Forest and 
Rangeland Renewable Resource Planning Act of August 17, 1974 (88 Stat. 
476) as amended by the National Forest Management Act of October 22, 
1976 (90 Stat. 2949; 16 U.S.C. 1600-1614) such as recreation, 
wilderness, wildlife and fish, range, timber, land, water, and human and 
community development.
    Resources means those renewable resources defined above, plus other 
nonrenewable resources such as minerals, oil, and gas which are included 
in the FS's planning and land management processes.
    Statewide transportation plan means the official transportation plan 
that is: (1) Intermodal in scope, including bicycle and pedestrian 
features, (2) addresses at least a 20-year planning horizon, and (3) 
covers the entire State pursuant to the provisions of part 450 of this 
title.



Sec.  660.105  Planning and route designation.

    (a) The FS will provide resource planning and related transportation 
information to the appropriate MPO and/or State Highway Agency (SHA) for 
use in developing metropolitan and statewide transportation plans 
pursuant to the provisions of part 450 of this title. Cooperators shall 
provide various planning (23 U.S.C. 134 and 135) information to the 
Federal Highway Administration (FHWA) for coordination with the FS.
    (b) The management systems required under 23 U.S.C. 303 shall 
fulfill the requirement in 23 U.S.C. 204(a) regarding the establishment 
and implementation of pavement, bridge, and safety management systems 
for FHs. The results of bridge management systems and safety management 
systems on all FHs and results of pavement management systems for FHs on 
Federal-aid highways are to be provided by the SHAs for consideration in 
the development of programs under Sec.  660.109 of this part. The FHWA 
will provide appropriate pavement management results for FHs which are 
not Federal-aid highways.
    (c) The FHWA, in consultation with the FS, the SHA, and other 
cooperators where appropriate, will designate FHs.
    (1) The SHA and the FS will nominate forest roads for FH 
designation.
    (2) The SHA will represent the interests of all cooperators. All 
other agencies shall send their proposals for FHs to the SHA.
    (d) A FH will meet the following criteria:
    (1) Generally, it is under the jurisdiction of a public authority 
and open to public travel, or a cooperator has agreed, in writing, to 
assume jurisdiction of the facility and to keep the road open to public 
travel once improvements are made.
    (2) It provides a connection between adequate and safe public roads 
and the resources of the NFS which are essential to the local, regional, 
or national economy, and/or the communities, shipping points, or markets 
which depend upon those resources.
    (3) It serves:
    (i) Traffic of which a preponderance is generated by use of the NFS 
and its resources; or
    (ii) NFS-generated traffic volumes that have a substantial impact on 
roadway design and construction; or
    (iii) Other local needs such as schools, mail delivery, commercial 
supply, and access to private property within the NFS.

[[Page 452]]



Sec.  660.107  Allocations.

    On October 1 of each fiscal year, the FHWA will allocate 66 percent 
of Public Lands Highway funds, by FS Region, for FHs using values based 
on relative transportation needs of the NFS, after deducting such sums 
as deemed necessary for the administrative requirements of the FHWA and 
the FS; the necessary costs of FH planning studies; and the FH share of 
costs for approved Federal Lands Coordinated Technology Implementation 
Program studies.



Sec.  660.109  Program development.

    (a) The FHWA will arrange and conduct a conference with the FS and 
the SHA to jointly select the projects which will be included in the 
programs for the current fiscal year and at least the next 4 years. 
Projects included in each year's program will be selected considering 
the following criteria:
    (1) The development, utilization, protection, and administration of 
the NFS and its resources;
    (2) The enhancement of economic development at the local, regional, 
and national level, including tourism and recreational travel;
    (3) The continuity of the transportation network serving the NFS and 
its dependent communities;
    (4) The mobility of the users of the transportation network and the 
goods and services provided;
    (5) The improvement of the transportation network for economy of 
operation and maintenance and the safety of its users;
    (6) The protection and enhancement of the rural environment 
associated with the NFS and its resources; and
    (7) The results for FHs from the pavement, bridge, and safety 
management systems.
    (b) The recommended program will be prepared and approved by the 
FHWA with concurrence by the FS and the SHA. Following approval, the SHA 
shall advise any other cooperators in the State of the projects included 
in the final program and shall include the approved program in the 
State's process for development of the Statewide Transportation 
Improvement Program. For projects located in metropolitan areas, the 
FHWA and the SHA will work with the MPO to incorporate the approved 
program into the MPO's Transportation Improvement Program.



Sec.  660.111  Agreements.

    (a) A statewide FH agreement shall be executed among the FHWA, the 
FS, and each SHA. This agreement shall set forth the responsibilities of 
each party, including that of adherence to the applicable provisions of 
Federal and State statutes and regulations.
    (b) The design and construction of FH projects will be administered 
by the FHWA unless otherwise provided for in an agreement approved under 
this subpart.
    (c) A project agreement shall be entered into between the FHWA and 
the cooperator involved under one or more of the following conditions:
    (1) A cooperator's funds are to be made available for the project or 
any portion of the project;
    (2) Federal funds are to be made available to a cooperator for any 
work;
    (3) Special circumstances exist which make a project agreement 
necessary for payment purposes or to clarify any aspect of the project; 
or
    (4) It is necessary to document jurisdiction and maintenance 
responsibility.



Sec.  660.112  Project development.

    (a) Projects to be administered by the FHWA or the FS will be 
developed in accordance with FHWA procedures for the Federal Lands 
Highway Program. Projects to be administered by a cooperator shall be 
developed in accordance with Federal-aid procedures and procedures 
documented in the statewide agreement.
    (b) The FH projects shall be designed in accordance with part 625 of 
this chapter or those criteria specifically approved by the FHWA for a 
particular project.



Sec.  660.113  Construction.

    (a) No construction shall be undertaken on any FH project until 
plans, specifications, and estimates have been concurred in by the 
cooperator(s) and the FS, and approved in accordance with procedures 
contained in the statewide FH agreement.

[[Page 453]]

    (b) The construction of FHs will be performed by the contract 
method, unless construction by the FHWA, the FS, or a cooperator on its 
own account is warranted under 23 U.S.C. 204(e).
    (c) Prior to final construction acceptance by the contracting 
authority, the project shall be inspected by the cooperator, the FS, and 
the FHWA to identify and resolve any mutual concerns.



Sec.  660.115  Maintenance.

    The cooperator having jurisdiction over a FH shall, upon acceptance 
of the project in accordance with Sec.  660.113(c), assume operation 
responsibilities and maintain, or cause to be maintained, any project 
constructed under this subpart.



Sec.  660.117  Funding, records and accounting.

    (a) The Federal share of funding for eligible FH projects may be any 
amount up to and including 100 percent. A cooperator may participate in 
the cost of project development and construction, but participation 
shall not be required.
    (b) Funds for FHs may be used for:
    (1) Planning;
    (2) Federal Lands Highway research;
    (3) Preliminary and construction engineering; and
    (4) Construction.
    (c) Funds for FHs may be made available for the following 
transportation-related improvement purposes which are generally part of 
a transportation construction project:
    (1) Transportation planning for tourism and recreational travel;
    (2) Adjacent vehicular parking areas;
    (3) Interpretive signage;
    (4) Acquisition of necessary scenic easements and scenic or historic 
sites;
    (5) Provisions for pedestrians and bicycles;
    (6) Construction and reconstruction of roadside rest areas including 
sanitary and water facilities; and
    (7) Other appropriate public road facilities as approved by the 
FHWA.
    (d) Use of FH funds for right-of-way acquisition shall be subject to 
specific approval by the FHWA.
    (e) Cooperators which administer construction of FH projects shall 
maintain their FH records according to 49 CFR part 18.
    (f) Funds provided to the FHWA by a cooperator should be received in 
advance of construction procurement unless otherwise specified in a 
project agreement.

Subparts B-D [Reserved]



                     Subpart E_Defense Access Roads

    Authority: 23 U.S.C. 210, 315; 49 CFR 1.48(b).

    Source: 49 FR 21924, May 24, 1984, unless otherwise noted.



Sec.  660.501  Purpose.

    The purpose of this regulation is to prescribe policies and 
procedures governing evaluations of defense access road needs, and 
administration of projects financed under the defense access roads and 
other defense related special highway programs.



Sec.  660.503  Objectives.

    The defense access roads program provides a means by which the 
Federal Government may pay its fair share of the cost of:
    (a) Highway improvements needed for adequate highway service to 
defense and defense related installations;
    (b) New highways to replace those which must be closed to permit 
establishment or expansion of defense installations;
    (c) Repair of damage to highways caused by major military maneuvers;
    (d) Repair of damages due to the activities of contractors engaged 
in the construction of missile sites; and
    (e) Missile routes to ensure their continued ability to support the 
missile transporter-erector (TE) vehicle.



Sec.  660.505  Scope.

    This regulation focuses on procedures as they apply to the defense 
access roads and other special highway programs of the Department of 
Defense (DOD).



Sec.  660.507  Definitions.

    (a) Defense installation. A military reservation or installation, or 
defense

[[Page 454]]

related industry or source of raw materials.
    (b) Military Traffic Management Command (MTMC). The military 
transportation agency with responsibilities assigned by the Secretary of 
Defense for maintaining liaison with the Federal Highway Administration 
(FHWA) and other agencies for the integration of defense needs into the 
Nation's highway program.
    (c) Certification. The statement to the Secretary of Transportation 
by the Secretary of Defense (or such other official as the President may 
designate) that certain roads are important to the national defense.
    (d) Access road. An existing or proposed public highway which is 
needed to provide essential highway transportation services to a defense 
installation. (This definition may include public highways through 
military installations only when right-of-way for such roads is 
dedicated to public use and the roads are maintained by civil 
authority.)
    (e) Replacement road. A public road constructed to replace one 
closed by establishment of a new, or the expansion of an old, defense 
installation.
    (f) Maneuver area road. A public road in an area delineated by 
official orders for field maneuvers or exercises of military forces.
    (g) Transporter-erector route. A public road specifically designated 
for use by the TE vehicle for access to missile sites.



Sec.  660.509  General principles.

    (a) State and local highway agencies are expected to assume the same 
responsibility for developing and maintaining adequate highways to 
permanent defense installations as they do for highways serving private 
industrial establishments or any other permanent traffic generators. The 
Federal Government expects that highway improvements in the vicinity of 
defense installations will receive due priority consideration and 
treatment as State and local agencies develop their programs of 
improvement. The FHWA will provide assistance, as requested by MTMC, to 
ascertain State program plans for improvements to roads serving as 
access to defense installations. Roads which serve permanent defense 
installations and which qualify under established criteria as Federal-
aid routes should be included in the appropriate Federal-aid system.
    (b) It is recognized that problems may arise in connection with the 
establishment, expansion, or operation of defense installations which 
create an unanticipated impact upon the long-range requirements for the 
development of highways in the vicinity. These problems can be resolved 
equitably only by Federal assistance from other than normal Federal-aid 
highway programs for part or all of the cost of highway improvements 
necessary for the functioning of the installation.



Sec.  660.511  Eligibility.

    (a) The MTMC has the responsibility for determining the eligibility 
of proposed improvements for financing with defense access roads funds. 
The evaluation report will be furnished to MTMC for its use in making 
the determination of eligibility and certification of importance to the 
national defense. The criteria upon which MTMC will base its 
determination of eligibility are included in the Federal-Aid Highway 
Program Manual, Volume 6, Chapter 9, Section 5, Attachment 2. \1\
---------------------------------------------------------------------------

    \1\ This document is available for inspection and copying from the 
FHWA headquarters and field offices as prescribed by 49 CFR part 7, 
appendix D.
---------------------------------------------------------------------------

    (b) If the project is determined to be eligible for financing either 
in whole or in part with defense access road funds, MTMC will certify 
the project as important to the national defense and will authorize 
expenditure of defense access road funds. The Commander, MTMC, is the 
only representative of the DOD officially authorized to make the 
certification required by section 210, title 23, U.S.C., in behalf of 
the Secretary of Defense.



Sec.  660.513  Standards.

    (a) Access roads to permanent defense installations and all 
replacement roads shall be designed to conform to the same standards as 
the agency having jurisdiction is currently using for other comparable 
highways under similar conditions in the area. In general,

[[Page 455]]

where the agency having jurisdiction does not have established 
standards, the design shall conform to American Association of State 
Highway and Transportation Officials (AASHTO) standards. Should local 
agencies desire higher standards than are currently being used for other 
comparable highways under similar conditions in the area, they shall 
finance the increases in cost.
    (b) Access roads to temporary military establishments or for service 
to workers temporarily engaged in construction of defense installations 
should be designed to the minimum standards necessary to provide service 
for a limited period without intolerable congestion and hazard. As a 
guide, widening to more than two lanes generally will not be undertaken 
to accommodate anticipated one-way, peak-hour traffic of less than 1,200 
vehicles per hour and resurfacing or strengthening of existing pavements 
will be held to the minimum type having the structural integrity to 
carry traffic for the short period of anticipated use.



Sec.  660.515  Project administration.

    (a) Determination of the agency best able to accomplish the 
location, design, and construction of the projects covered by this 
regulation will be made by the FHWA Division Administrator after 
consultation with the State and/or local highway agency within whose 
jurisdiction the highway lies. When an agency other than the State or 
local highway agency is selected to administer the project, the Division 
Administrator will be responsible during the life of the project for any 
necessary coordination between the selected agency and the State or 
local highway agency.
    (b) Defense access road projects under the supervision of a State or 
local highway agency, whether on or off the Federal-aid system, shall be 
administered in accordance with Federal-aid procedures, as modified 
specifically herein or as limited by the delegations of authority to 
Regional and Division Administrators, unless approval of other 
procedures has been obtained from Washington Headquarters Office of 
Direct Federal Programs (HDF-1).
    (c) The Division Administrator shall have a firm commitment from the 
State or local highway agency, within whose jurisdiction the access road 
lies, that it will accept the responsibility for maintenance of the 
completed facility before authorization of acquisition of right-of-way 
or construction of a project.
    (d) When defense access road funds are available for a pro-rata 
portion of the total project cost, the remaining portion of the project 
may be funded as a Federal-aid project if on a Federal-aid route. 
Defense access road funds shall not be substituted for the State's 
matching share of the Federal-aid portion of a project.



Sec.  660.517  Maneuver area roads.

    (a) Claims by a highway agency for costs incurred to restore, to 
their former condition, roads damaged by maneuvers involving a military 
force at least equal in strength to a ground division or an air wing 
will be paid from funds appropriated for the maneuver and transferred to 
FHWA by the DOD agency. Defense access road funds may be used to 
reimburse the highway authority pending transfer of funds by the DOD 
agency.
    (b) Costs incurred by State or local highway authorities while 
conducting a pre- or post-condition survey may be included in the claim 
to DOD for direct settlement or in the damage repair project as 
appropriate.



Sec.  660.519  Missile installations and facilities.

    Should damage occur to public highways as a result of construction 
activities, the contractor would normally be held responsible for 
restoring the damages. However, should the contractor deny 
responsibility on the basis of contract terms, restoration is provided 
for under 23 U.S.C. 210(h).
    (a) Restoration under the contract. (1) The highway agency having 
jurisdiction over the road shall take appropriate actions, such as load 
and speed restrictions, to protect the highway. When extensive damage is 
anticipated and the contractor under the terms of the contract is 
responsible, it may be necessary to require a performance bond to assure 
restoration.

[[Page 456]]

    (2) If the contractor does not properly maintain the roads when 
requested in writing, the highway agency having jurisdiction over the 
road shall perform extraordinary maintenance as necessary to keep the 
roads serviceable and maintain adequate supporting records of the work 
performed. Claims shall be presented to the contractor for this 
extraordinary maintenance and any other work required to restore the 
roads. If the contractor denies responsibility on the basis of the 
contract terms, the claim with the required supporting documentation 
shall be presented to the contracting officer for disposition and 
arrangement for reimbursement.
    (b) Restoration under 23 U.S.C. 210(h). (1) To implement 23 U.S.C. 
210(h), DOD must make the determination that a contractor for a missile 
installation or facility did not include in the bid the cost of 
repairing damage caused to public highways by the operation of the 
contractor's vehicles and equipment. The FHWA must then make the 
determination that the State highway agency is, or has been, unable to 
prevent such damage by restrictions upon the use of the highways without 
interference with, or delay in, the completion of the contract. If these 
determinations are made, the Division Administrator will be authorized 
by the Washington Headquarters to reimburse the highway agency for the 
cost of the work necessary to keep the roads in a serviceable condition.
    (2) Upon receipt of a damage claim, division office representatives 
accompanied by representatives of the agencies that made the original 
condition survey will inspect the roads on which damage is claimed. The 
Division Administrator shall then prepare an estimate of the cost of 
restoring the roads to original condition as well as any documented cost 
for extraordinary maintenance for which reimbursement has not been 
received. No allowance for upgrading the roads shall be included.



PART 661_INDIAN RESERVATION ROAD BRIDGE PROGRAM--Table of Contents



Sec.
661.1 What is the purpose of this regulation?
661.3 Who must comply with this regulation?
661.5 What definitions apply to this regulation?
661.7 What is the IRRBP?
661.9 What is the total funding available for the IRRBP?
661.11 When do IRRBP funds become available?
661.13 How long are these funds available?
661.15 What are the eligible activities for IRRBP funds?
661.17 What are the criteria for bridge eligibility?
661.19 When is a bridge eligible for replacement?
661.21 When is a bridge eligible for rehabilitation?
661.23 How will a bridge project be programmed for funding once 
          eligibility has been determined?
661.25 What does a complete application package for PE consist of and 
          how does the project receive funding?
661.27 What does a complete application package for construction consist 
          of and how does the project receive funding?
661.29 How does ownership impact project selection?
661.31 Do IRRBP projects have to be listed on an approved IRR TIP?
661.33 What percentage of IRRBP funding is available for PE and 
          construction?
661.35 What percentage of IRRBP funding is available for use on BIA and 
          Tribally owned IRR bridges, and non-BIA owned IRR bridges?
661.37 What are the funding limitations on individual IRRPB projects?
661.39 How are project cost overruns funded?
661.41 After a bridge project has been completed (either PE or 
          construction) what happens with the excess or surplus funding?
661.43 Can other sources of funds be used to finance a queued project in 
          advance of receipt of IRRBP funds?
661.45 What happens when IRRBP funds cannot be obligated by the end of 
          the fiscal year?
661.47 Can bridge maintenance be performed with IRRBP funds?
661.49 Can IRRBP funds be spent on Interstate, State Highway, and Toll 
          Road IRR bridges?
661.51 Can IRRBP funds be used for the approach roadway to a bridge?
661.53 What standards should be used for bridge design?
661.55 How are BIA and Tribal owned IRR bridges inspected?
661.57 How is a list of deficient bridges to be generated?
661.59 What should be done with a deficient BIA owned IRR bridge if the 
          Indian Tribe does not support the project?


[[Page 457]]


    Authority: 23 U.S.C. 120(j) and (k), 202, and 315; Section 1119 of 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144); and 49 
CFR 1.48.

    Source: 73 FR 15664, Mar. 25, 2008, unless otherwise noted.



Sec.  661.1  What is the purpose of this regulation?

    The purpose of this regulation is to prescribe policies for project 
selection and fund allocation procedures for administering the Indian 
Reservation Road Bridge Program (IRRBP).



Sec.  661.3  Who must comply with this regulation?

    Public authorities must comply to participate in the IRRBP by 
applying for preliminary engineering (PE), construction, and 
construction engineering (CE) activities for the replacement or 
rehabilitation of structurally deficient and functionally obsolete 
Indian Reservation Road (IRR) bridges.



Sec.  661.5  What definitions apply to this regulation?

    The following definitions apply to this regulation:
    Approach roadway means the portion of the highway immediately 
adjacent to the bridge that affects the geometrics of the bridge, 
including the horizontal and vertical curves and grades required to 
connect the existing highway alignment to the new bridge alignment using 
accepted engineering practices and ensuring that all safety standards 
are met.
    Construction engineering (CE) is the supervision, inspection, and 
other activities required to ensure the project construction meets the 
project's approved acceptance specifications, including but not limited 
to: additional survey staking functions considered necessary for 
effective control of the construction operations; testing materials 
incorporated into construction; checking shop drawings; and measurements 
needed for the preparation of pay estimates.
    Functionally obsolete (FO) is the state in which the deck geometry, 
load carrying capacity (comparison of the original design load to the 
State legal load), clearance, or approach roadway alignment no longer 
meets the usual criteria for the system of which it is an integral part.
    Indian Reservation Road (IRR) means a public road that is located 
within or provides access to an Indian reservation or Indian trust land 
or restricted Indian land that is not subject to fee title alienation 
without the approval of the Federal government, or Indian and Alaska 
Native villages, groups, or communities in which Indians and Alaska 
Natives reside, whom the Secretary of the Interior has determined are 
eligible for services generally available to Indians under Federal laws 
specifically applicable to Indians.
    Indian reservation road bridge means a structure located on an IRR, 
including supports, erected over a depression or an obstruction, such as 
water, a highway, or a railway, and having a track or passageway for 
carrying traffic or other moving loads, and having an opening measured 
along the center of the roadway of more than 20 feet between 
undercopings of abutments or spring lines of arches, or extreme ends of 
the openings for multiple boxes; it may also include multiple pipes, 
where the clear distance between openings is less than half of the 
smaller contiguous opening.
    Life cycle cost analysis (LCCA) means a process for evaluating the 
total economic worth of a usable project segment by analyzing initial 
costs and discounted future costs, such as maintenance, user costs, 
reconstruction, rehabilitation, restoring, and resurfacing costs, over 
the life of the project segment.
    National Bridge Inventory (NBI) means the aggregation of structure 
inventory and appraisal data collected to fulfill the requirements of 
the National Bridge Inspection Standards (NBIS).
    Plans, specifications and estimates (PS&E) means construction 
drawings, compilation of provisions, and construction project cost 
estimates for the performance of the prescribed scope of work.
    Preliminary engineering (PE) means planning, survey, design, 
engineering, and preconstruction activities (including archaeological, 
environmental, and right-of-way activities) related to a specific bridge 
project.

[[Page 458]]

    Public authority means a Federal, State, county, town, or township, 
Indian tribe, municipal or other local government or instrumentality 
with authority to finance, build, operate, or maintain toll or toll-free 
facilities.
    Public road means any road or street under the jurisdiction of and 
maintained by a public authority and open to public travel.
    Structurally deficient (SD) means a bridge becomes structurally 
deficient when it reaches the set threshold of one of the six criteria 
from the FHWA NBI.
    Structure Inventory and Appraisal (SI&A) Sheet means the graphic 
representation of the data recorded and stored for each NBI record in 
accordance with the Recording and Coding Guide for the Structure 
Inventory and Appraisal of the Nation's Bridges (Report No. FHWA-PD-96-
001).
    Sufficiency rating (SR) means the numerical rating of a bridge based 
on its structural adequacy and safety, essentiality for public use, and 
its serviceability and functional obsolescence.



Sec.  661.7  What is the IRRBP?

    The IRRBP, as established under 23 U.S.C. 202(d)(4), is a nationwide 
priority program for improving structurally deficient and functionally 
obsolete IRR bridges.



Sec.  661.9  What is the total funding available for the IRRBP?

    The statute authorizes $14 million to be appropriated from the 
Highway Trust Fund in Fiscal Years 2005 through 2009.



Sec.  661.11  When do IRRBP funds become available?

    IRRBP funds are authorized at the start of each fiscal year but are 
subject to Office of Management and Budget apportionment before they 
become available to FHWA for further distribution.



Sec.  661.13  How long are these funds available?

    IRRBP funds for each fiscal year are available for obligation for 
the year authorized plus three years (a total of four years).



Sec.  661.15  What are the eligible activities for IRRBP funds?

    (a) IRRBP funds can be used to carry out PE, construction, and CE 
activities of projects to replace, rehabilitate, seismically retrofit, 
paint, apply calcium magnesium acetate, sodium acetate/formate or other 
environmentally acceptable, minimally corrosive anti-icing and deicing 
compositions, or install scour countermeasures for structurally 
deficient or functionally obsolete IRR bridges, including multiple pipe 
culverts.
    (b) If a bridge is replaced under the IRRBP, IRRBP funds can be also 
used for the demolition of the old bridge.



Sec.  661.17  What are the criteria for bridge eligibility?

    (a) Bridge eligibility requires the following:
    (1) Have an opening of 20 feet or more;
    (2) Be located on an IRR that is included in the IRR Inventory;
    (3) Be structurally deficient or functionally obsolete, and
    (4) Be recorded in the NBI maintained by the FHWA.
    (b) Bridges that were constructed, rehabilitated or replaced in the 
last 10 years, will be eligible only for seismic retrofit or 
installation of scour countermeasures.



Sec.  661.19  When is a bridge eligible for replacement?

    To be eligible for replacement, the bridge must be considered 
structurally deficient or functionally obsolete and must be in 
accordance with 23 CFR part 650.409(a) for bridge replacement. After an 
existing bridge is replaced under the IRRBP, it must be taken completely 
out of service and removed from the inventory. If the original bridge is 
considered historic, it must still be removed from the inventory, 
however the Tribe is allowed to request an exemption from the BIA 
Division of Transportation (BIADOT) to allow the bridge to remain in 
place.



Sec.  661.21  When is a bridge eligible for rehabilitation?

    To be eligible for rehabilitation, the bridge must be considered 
structurally deficient or functionally obsolete and

[[Page 459]]

must be in accordance with 23 CFR part 650.409(a) for bridge 
rehabilitation. A bridge eligible for rehabilitation may be replaced if 
the life cycle cost analysis is conducted which shows the cost for 
bridge rehabilitation exceeds the replacement cost.



Sec.  661.23  How will a bridge project be programmed for funding 
once eligibility has been determined?

    (a) All projects will be programmed for funding after a completed 
application package is received and accepted by the FHWA. At that time, 
the project will be acknowledged as either BIA and Tribally owned, or 
non-BIA owned and placed in either a PE or a construction queue.
    (b) All projects will be ranked and prioritized based on the 
following criteria:
    (1) Bridge sufficiency rating (SR);
    (2) Bridge status with structurally deficient (SD) having precedence 
over functionally obsolete (FO);
    (3) Bridges on school bus routes;
    (4) Detour length;
    (5) Average daily traffic; and
    (6) Truck average daily traffic.
    (c) Queues will carryover from fiscal year to fiscal year as made 
necessary by the amount of annual funding made available.



Sec.  661.25  What does a complete application package for PE consist of 
and how does the project receive funding?

    (a) A complete application package for PE consists of the following: 
the certification checklist, IRRBP transportation improvement program 
(TIP), project scope of work, detailed cost for PE, and SI&A sheet.
    (b) For non-BIA IRR bridges, the application package must also 
include a tribal resolution supporting the project and identification of 
the required minimum 20 percent local funding match.
    (c) The IRRBP projects for PE will be placed in queue and determined 
as eligible for funding after receipt by FHWA of a complete application 
package. Incomplete application packages will be disapproved and 
returned for revision and resubmission along with a notation providing 
the reason for disapproval.
    (d) Funding for the approved eligible projects on the queues will be 
made available to the Tribes, under an FHWA/Tribal agreement, or the 
Secretary of the Interior upon availability of program funding at FHWA.



Sec.  661.27  What does a complete application package for construction 
consist of and how does the project receive funding?

    (a) A complete application package for construction consists of the 
following: a copy of the approved PS&E, the certification checklist, 
SI&A sheet, and IRRBP TIP. For non-BIA IRR bridges, the application 
package must also include a copy of a letter from the bridge's owner 
approving the project and its PS&E, a tribal resolution supporting the 
project, and identification of the required minimum 20 percent local 
funding match. All environmental and archeological clearances and 
complete grants of public rights-of-way must be acquired prior to 
submittal of the construction application package.
    (b) The IRRBP projects for construction will be placed in queue and 
determined as eligible for funding after receipt by FHWA of a complete 
application package. Incomplete application packages will be disapproved 
and returned for revision and resubmission along with a notation 
providing the reason for disapproval.
    (c) Funding for the approved eligible projects on the queues will be 
made available to the Tribes, under an FHWA/Tribal agreement, or the 
Secretary of the Interior upon availability of program funding at FHWA.



Sec.  661.29  How does ownership impact project selection?

    Since the Federal government has both a trust responsibility and 
owns the BIA bridges on Indian reservations, primary consideration will 
be given to eligible projects on BIA and Tribally owned IRR bridges. A 
smaller percentage of available funds will be set aside for non-BIA IRR 
bridges, since States and counties have access to Federal-aid and other 
funding to design, replace and rehabilitate their bridges and that 23 
U.S.C. 204(c) requires that IRR funds be supplemental to and not in lieu 
of

[[Page 460]]

other funds apportioned to the State. The program policy will be to 
maximize the number of IRR bridges participating in the IRRBP in a given 
fiscal year regardless of ownership.



Sec.  661.31  Do IRRBP projects have to be listed on an approved IRR TIP?

    Yes. All IRRBP projects must be listed on an approved IRR TIP. The 
approved IRR TIP will be forwarded by FHWA to the respective State for 
inclusion into its State TIP.



Sec.  661.33  What percentage of IRRBP funding is available 
for PE and construction?

    Up to 15 percent of the funding made available in any fiscal year 
will be eligible for PE. The remaining funding in any fiscal year will 
be available for construction.



Sec.  661.35  What percentage of IRRBP funding is available for use 
on BIA and Tribally owned IRR bridges, and non-BIA owned IRR bridges?

    (a) Up to 80 percent of the available funding made available for PE 
and construction in any fiscal year will be eligible for use on BIA and 
Tribally owned IRR bridges. The remaining funding in any fiscal year 
will be made available for PE and construction for use on non-BIA owned 
IRR bridges.
    (b) At various times during the fiscal year, FHWA will review the 
projects awaiting funding and may shift funds between BIA and Tribally 
owned, and non-BIA owned bridge projects so as to maximize the number of 
projects funded and the overall effectiveness of the program.



Sec.  661.37  What are the funding limitations on individual IRRBP projects?

    The following funding provisions apply in administration of the 
IRRBP:
    (a) An IRRBP eligible BIA and Tribally owned IRR bridge is eligible 
for 100 percent IRRBP funding, with a $150,000 maximum limit for PE.
    (b) An IRRBP eligible non-BIA owned IRR bridge is eligible for up to 
80 percent IRRBP funding, with a $150,000 maximum limit for PE and 
$1,000,000 maximum limit for construction. The minimum 20 percent local 
match will need to be identified in the application package. IRR Program 
construction funds received by a Tribe may be used as the local match.
    (c) Requests for additional funds above the referenced thresholds 
may be submitted along with proper justification to FHWA for 
consideration. The request will be considered on a case-by-case basis. 
There is no guarantee for the approval of the request for additional 
funds.



Sec.  661.39  How are project cost overruns funded?

    (a) A request for additional IRRBP funds for cost overruns on a 
specific bridge project must be submitted to BIADOT and FHWA for 
approval. The written submission must include a justification, an 
explanation as to why the overrun occurred, and the amount of additional 
funding required with supporting cost data. If approved by FHWA, the 
request will be placed at the top of the appropriate queue (with a 
contract modification request having a higher priority than a request 
for additional funds for a project award) and funding may be provided if 
available.
    (b) Project cost overruns may also be funded out of the Tribe's 
regular IRR Program construction funding.



Sec.  661.41  After a bridge project has been completed 
(either PE or construction) what happens with the excess or surplus funding?

    Since the funding is project specific, once a bridge design or 
construction project has been completed under this program, any excess 
or surplus funding is returned to FHWA for use on additional approved 
deficient IRRBP projects.



Sec.  661.43  Can other sources of funds be used to finance a queued project 
in advance of receipt of IRRBP funds?

    Yes. A Tribe can use other sources of funds, including IRR Program 
construction funds, on a project that has been approved for funding and 
placed on the queue and then be reimbursed when IRRBP funds become 
available. If IRR Program construction funds are used for this purpose, 
the funds must be identified on an FHWA approved IRR TIP prior to their 
expenditure.

[[Page 461]]



Sec.  661.45  What happens when IRRBP funds cannot be obligated 
by the end of the fiscal year?

    IRRBP funds provided to a project that cannot be obligated by the 
end of the fiscal year are to be returned to FHWA during August 
redistribution. The returned funds will be re-allocated to the BIA the 
following fiscal year after receipt and acceptance at FHWA from BIA of a 
formal request for the funds, which includes a justification for the 
amounts requested and the reason for the failure of the prior year 
obligation.



Sec.  661.47  Can bridge maintenance be performed with IRRBP funds?

    No. Bridge maintenance repairs, e.g., guard rail repair, deck 
repairs, repair of traffic control devices, striping, cleaning scuppers, 
deck sweeping, snow and debris removal, etc., are not eligible uses of 
IRRBP funding. The Department of the Interior annual allocation for 
maintenance and IRR Program construction funds are eligible funding 
sources for bridge maintenance.



Sec.  661.49  Can IRRBP funds be spent on Interstate, State Highway, 
and Toll Road IRR bridges?

    Yes. Interstate, State Highway, and Toll Road IRR bridges are 
eligible for funding as described in Sec.  661.37(b).



Sec.  661.51  Can IRRBP funds be used for the approach roadway to a bridge?

    (a) Yes, costs associated with approach roadway work, as defined in 
Sec.  661.5 are eligible.
    (b) Long approach fills, causeways, connecting roadways, 
interchanges, ramps, and other extensive earth structures, when 
constructed beyond an attainable touchdown point, are not eligible uses 
of IRRBP funds.



Sec.  661.53  What standards should be used for bridge design?

    (a) Replacement--A replacement structure must meet the current 
geometric, construction and structural standards required for the types 
and volumes of projected traffic on the facility over its design life 
consistent with 25 CFR part 170, Subpart D, Appendix B and 23 CFR part 
625.
    (b) Rehabilitation--Bridges to be rehabilitated, as a minimum, 
should conform to the standards of 23 CFR part 625, Design Standards for 
Federal-aid Highways, for the class of highway on which the bridge is a 
part.



Sec.  661.55  How are BIA and Tribal owned IRR bridges inspected?

    BIA and Tribally owned IRR bridges are inspected in accordance with 
25 CFR part 170.504-170.507.



Sec.  661.57  How is a list of deficient bridges to be generated?

    (a) In consultation with the BIA, a list of deficient BIA IRR 
bridges will be developed each fiscal year by the FHWA based on the 
annual April update of the NBI. The NBI is based on data from the 
inspection of all bridges. Likewise, a list of non-BIA IRR bridges will 
be obtained from the NBI. These lists would form the basis for 
identifying bridges that would be considered potentially eligible for 
participation in the IRRBP. Two separate master bridge lists (one each 
for BIA and non-BIA IRR bridges) will be developed and will include, at 
a minimum, the following:
    (1) Sufficiency rating (SR);
    (2) Status (structurally deficient or functionally obsolete);
    (3) Average daily traffic (NBI item 29);
    (4) Detour length (NBI item 19); and
    (5) Truck average daily traffic (NBI item 109).
    (b) These lists would be provided by the FHWA to the BIADOT for 
publication and notification of affected BIA regional offices, Indian 
Tribal governments (ITGs), and State and local governments.
    (c) BIA regional offices, in consultation with ITGs, are encouraged 
to prioritize the design for bridges that are structurally deficient 
over bridges that are simply functionally obsolete, since the former is 
more critical structurally than the latter. Bridges that have higher 
average daily traffic (ADT) should be considered before those that have 
lower ADT. Detour length should also be a factor in selection and 
submittal of bridges, with those having a higher detour length being of 
greater concern. Lastly, bridges with higher

[[Page 462]]

truck ADT should take precedence over those which have lower truck ADT. 
Other items of note should be whether school buses use the bridge and 
the types of trucks that may cross the bridge and the loads imposed.



Sec.  661.59  What should be done with a deficient BIA owned IRR bridge 
if the Indian Tribe does not support the project?

    The BIA should notify the Tribe and encourage the Tribe to develop 
and submit an application package to FHWA for the rehabilitation or 
replacement of the bridge. For safety of the motoring public, if the 
Tribe decides not to pursue the bridge project, the BIA shall work with 
the Tribe to either reduce the bridge's load rating or close the bridge, 
and remove it from the IRR inventory in accordance with 25 CFR part 170 
(170.813).



PART 667_PERIODIC EVALUATION OF FACILITIES REPEATEDLY REQUIRING REPAIR 
AND RECONSTRUCTION DUE TO EMERGENCY EVENTS--Table of Contents



Sec.
667.1 Statewide evaluation.
667.3 Definitions.
667.5 Data time period, availability, and sources.
667.7 Timing of evaluations.
667.9 Consideration of evaluations.

    Authority: Sec. 1315(b) of Pub. L. 112-141, 126 Stat. 405; 23 U.S.C. 
109, 144, and 315; 49 CFR 1.85.

    Source: 81 FR 73267, Oct. 24, 2016, unless otherwise noted.



Sec.  667.1  Statewide evaluation.

    Each State, acting through its department of transportation (State 
DOT), shall conduct statewide evaluations to determine if there are 
reasonable alternatives to roads, highways, and bridges that have 
required repair and reconstruction activities on two or more occasions 
due to emergency events. The evaluations shall be conducted in 
accordance with the requirements in this part.



Sec.  667.3  Definitions.

    For purposes of this part:

    Catastrophic failure means the sudden failure of a major element or 
segment of a road, highway, or bridge due to an external cause. The 
failure must not be primarily attributable to gradual and progressive 
deterioration or lack of proper maintenance.
    Evaluation means an analysis that includes identification and 
consideration of any alternative that will mitigate, or partially or 
fully resolve, the root cause of the recurring damage, the costs of 
achieving the solution, and the likely duration of the solution. The 
evaluations shall consider the risk of recurring damage and cost of 
future repair under current and future environmental conditions. These 
considerations typically are a part of the planning and project 
development process.
    Emergency event means a natural disaster or catastrophic failure 
resulting in an emergency declared by the Governor of the State or an 
emergency or disaster declared by the President of the United States.
    Reasonable alternatives include options that could partially or 
fully achieve the following:
    (1) Reduce the need for Federal funds to be expended on emergency 
repair and reconstruction activities;
    (2) Better protect public safety and health and the human and 
natural environment; and
    (3) Meet transportation needs as described in the relevant and 
applicable Federal, State, local, and tribal plans and programs. 
Relevant and applicable plans and programs include the Long-Range 
Statewide Transportation Plan, Statewide Transportation Improvement Plan 
(STIP), Metropolitan Transportation Plan(s), and Transportation 
Improvement Program(s) (TIP) that are developed under part 450 of this 
title.
    Repair and reconstruction means work on a road, highway, or bridge 
that has one or more reconstruction elements. The term includes 
permanent repairs such as restoring pavement surfaces, reconstructing 
damaged bridges and culverts, and replacing highway appurtenances, but 
excludes emergency repairs as defined in 23 CFR 668.103.
    Roads, highways, and bridges means a highway, as defined in 23 
U.S.C. 101(a)(11), that is open to the public and eligible for financial 
assistance under title 23, U.S.C.; but excludes tribally owned and 
federally owned roads, highways, and bridges.



Sec.  667.5  Data time period, availability, and sources.

    (a) The beginning date for every evaluation under this part shall be 
January 1, 1997. The end date must be no earlier than December 31 of the 
year preceding the date on which the evaluation is due for completion. 
Evaluations should cover a longer period if useful data is

[[Page 463]]

reasonably available. Subject to the timing provisions in Sec.  667.7, 
evaluations must include any road, highway, or bridge that, on or after 
January 1, 1997, required repair and reconstruction on two or more 
occasions due to emergency events.
    (b) State DOTs must use reasonable efforts to obtain the data needed 
for the evaluation. If the State DOT determines the necessary data for 
the evaluation is unavailable, the State DOT must document in the 
evaluation the lack of available data for that facility.
    (c) A State DOT may use whatever sources and types of data it 
determines are useful to the evaluation. Available data sources include 
reports or other information required to receive emergency repair funds 
under title 23, other sources used to apply for Federal or nonfederal 
funding, and State or local records pertaining to damage sustained and/
or funding sought.



Sec.  667.7  Timing of evaluations.

    (a) Not later than November 23, 2018, the State DOT must complete 
the statewide evaluation for all NHS roads, highways and bridges. The 
State DOT shall update the evaluation after every emergency event to the 
extent needed to add any roads, highways, or bridges subject to this 
paragraph that were affected by the event. The State DOT shall review 
and update the entire evaluation at least every 4 years. In establishing 
its evaluation cycle, the State DOT should consider how the evaluation 
can best inform the State DOT's preparation of its asset management plan 
and STIP.
    (b) Beginning on November 23, 2020, for all roads, highways, and 
bridges not included in the evaluation prepared under paragraph (a) of 
this section, the State DOT must prepare an evaluation that conforms 
with this part for the affected portion of the road, highway, or bridge 
prior to including any project relating to such facility in its STIP.



Sec.  667.9  Consideration of evaluations.

    (a) The State DOT shall consider the results of an evaluation 
prepared under this part when developing projects. State DOTs and 
metropolitan planning organizations are encouraged to include 
consideration of the evaluations during the development of 
transportation plans and programs, including TIPs and STIPs, and during 
the environmental review process under part 771 of this title. Nothing 
in this section prohibits State DOTs from proceeding with emergency 
repairs to restore functionality of the system, or from receiving 
emergency repair funding under part 668 of this title.
    (b) The FHWA will periodically review the State DOT's compliance 
under this part, including evaluation performance, consideration of 
evaluation results during project development, and overall results 
achieved. Nothing in this paragraph limits FHWA's ability to consider 
the results of the evaluations when relevant to an FHWA decision, 
including when making a planning finding under 23 U.S.C. 134(g)(8), 
making decisions during the environmental review process under part 771 
of this title, or when approving funding. The State DOT must make 
evaluations required under this part available to FHWA upon request.



PART 668_EMERGENCY RELIEF PROGRAM--Table of Contents



              Subpart A_Procedures for Federal-Aid Highways

Sec.
668.101 Purpose.
668.103 Definitions.
668.105 Policy.
668.107 Federal share payable.
668.109 Eligibility.
668.111 Application procedures.
668.113 Program and project procedures.

       Subpart B_Procedures for Federal Agencies for Federal Roads

668.201 Purpose.
668.203 Definitions.
668.205 Policy.
668.207 Federal share payable from emergency fund.
668.209 Eligibility of work.
668.211 Notification, damage assessment, and finding.
668.213 Application procedures.
668.215 Programming and project procedures.

    Authority: 23 U.S.C. 101, 120(e), 125 and 315; 49 CFR 1.48(b).

[[Page 464]]



              Subpart A_Procedures for Federal-Aid Highways

    Source: 52 FR 21948, June 10, 1987, unless otherwise noted.



Sec.  668.101  Purpose.

    To establish policy and provide program guidance for the 
administration of emergency funds for the repair or reconstruction of 
Federal-aid highways, which are found to have suffered serious damage by 
natural diasters over a wide area or serious damage from catastrophic 
failures. Guidance for application by Federal agencies for 
reconstruction of Federal roads that are not part of the Federal-aid 
highways is contained in 23 CFR part 668, subpart B.

[52 FR 21948, June 10, 1987, as amended at 61 FR 67212, Dec. 20, 1996]



Sec.  668.103  Definitions.

    In addition to others contained in 23 U.S.C. 101(a), the following 
definitions shall apply as used in this regulation:
    Applicant. The State highway agency is the applicant for Federal 
assistance under 23 U.S.C. 125 for State highways and local roads and 
streets which are a part of the Federal-aid highways.
    Betterments. Added protective features, such as rebuilding of 
roadways at a higher elevation or the lengthening of bridges, or changes 
which modify the function or character of a highway facility from what 
existed prior to the disaster or catastrophic failure, such as 
additional lanes or added access control.
    Catastrophic failure. The sudden failure of a major element or 
segment of the highway system due to an external cause. The failure must 
not be primarily attributable to gradual and progressive deterioration 
or lack of proper maintenance. The closure of a facility because of 
imminent danger of collapse is not in itself a sudden failure.
    Emergency repairs. Those repairs including temporary traffic 
operations undertaken during or immediately following the disaster 
occurrence for the purpose of:
    (1) Minimizing the extent of the damage,
    (2) Protecting remaining facilities, or
    (3) Restoring essential traffic.
    External cause. An outside force or phenomenon which is separate 
from the damaged element and not primarily the result of existing 
conditions.
    Heavy maintenance. Work usually done by highway agencies in 
repairing damage normally expected from seasonal and occasionally 
unusual natural conditions or occurrences. It includes work at a site 
required as a direct result of a disaster which can reasonably be 
accommodated by a State or local road authority's maintenance, emergency 
or contingency program.
    Natural disaster. A sudden and unusual natural occurrence, including 
but not limited to intense rainfall, floods, hurricanes, tornadoes, 
tidal waves, landslides, volcanoes or earthquakes which cause serious 
damage.
    Proclamation. A declaration of emergency by the Governor of the 
affected State.
    Serious damage. Heavy, major or unusual damage to a highway which 
severely impairs the safety or usefulness of the highway or results in 
road closure. Serious damage must be beyond the scope of heavy 
maintenance.
    State. Any one of the United States, the District of Columbia, 
Puerto Rico or the Virgin Islands, Guam, American Samoa or Commonwealth 
of the Northern Mariana Islands.

[52 FR 21948, June 10, 1987, as amended at 61 FR 67212, Dec. 20, 1996; 
65 FR 25444, May 2, 2000]



Sec.  668.105  Policy.

    (a) The Emergency Relief (ER) program is intended to aid States in 
repairing road facilities which have suffered widespread serious damage 
resulting from a natural disaster over a wide area or serious damage 
from a catastrophic failure.
    (b) ER funds are not intended to supplant other funds for correction 
of preexisting, nondisaster related deficiencies.
    (c) The expenditure of ER funds for emergency repair shall be in 
such a manner so as to reduce, to the greatest extent feasible, the cost 
of permanent restoration work.
    (d) The approval to use available ER funds to repair or restore 
highways

[[Page 465]]

damaged by a natural disaster shall be based on the combination of the 
extraordinary character of the natural disturbance and the wide area of 
impact as well as the seriousness of the damage. Storms of unusual 
intensity occurring over a small area may not meet the above conditions.
    (e) ER funds shall not duplicate assistance under another Federal 
program or compensation from insurance or any other source. Partial 
compensation for a loss by other sources will not preclude emergency 
fund assistance for the part of such loss not compensated otherwise. Any 
compensation for damages or insurance proceeds including interest 
recovered by the State or political subdivision or by a toll authority 
for repair of the highway facility must be used upon receipt to reduce 
ER fund liability on the project.
    (f) Prompt and diligent efforts shall be made by the State to 
recover repair costs from the legally responsible parties to reduce the 
project costs particularly where catastrophic damages are caused by 
ships, barge tows, highway vehicles, or vehicles with illegal loads or 
where damage is increased by improperly controlled objects or events.
    (g) The processing of ER requests shall be given prompt attention 
and shall be given priority over non-emergency work.
    (h) ER projects shall be promptly constructed. Any project that has 
not advanced to the construction obligation stage by the end of the 
second fiscal year following the disaster occurrence will not be 
advanced unless suitable justification to warrant retention is furnished 
to the FHWA.
    (i) Permanent repair and reconstruction work, not accomplished as 
emergency repairs, shall be done by the contract method unless the State 
Highway agency adequately demonstrates that some other method is more 
cost effective as described in 23 CFR 635.204. Emergency repair work may 
be accomplished by the contract, negotiated contract or highway agency 
force account methods as determined by the Highway agency as best suited 
to protect the public health and safety.
    (j) ER program funding is only to be used to repair highways which 
have been seriously damaged and is not intended to fund heavy 
maintenance or routine emergency repair activities which should normally 
be funded as contingency items in the State and local road programs. An 
application for ER funds in the range of $700,000 or less must be 
accompanied by a showing as to why the damage repair involved is 
considered to be beyond the scope of heavy maintenance or routine 
emergency repair. As a general rule, widespread nominal road damages in 
this range would not be considered to be of a significant nature 
justifying approval by the FHWA Division Administrator for ER funding.

[52 FR 21948, June 10, 1987, as amended at 61 FR 67212, Dec. 20, 1996; 
65 FR 25444, May 2, 2000]



Sec.  668.107  Federal share payable.

    (a) The Federal share payable on account of any repair or 
reconstruction provided for by funds made available under 23 U.S.C. 125 
of this title on account of any project on a Federal-aid highway system, 
including the Interstate System, shall not exceed the Federal share 
payable on a project on such system as provided in 23 U.S.C. 120; except 
that the Federal share payable for eligible emergency repairs to 
minimize damage, protect facilities, or restore essential traffic 
accomplished within 180 days after the actual occurrence of the natural 
disaster or catastrophic failure may amount to 100 percent of the costs 
thereof.
    (b) Total obligations of ER funds in any State, excluding the Virgin 
Islands, Guam, American Samoa or Commonwealth of the Northern Mariana 
Islands, for all projects (including projects on both the Federal-aid 
systems and those on Federal roads under 23 CFR part 668, subpart B), 
resulting from a single natural disaster or a single catastrophic 
failure, shall not exceed $100 million per disaster or catastrophic 
failure. The total obligations for ER projects in any fiscal year in the 
Virgin Islands, Guam, American Samoa and the Commonwealth of the 
Northern Mariana Islands shall not exceed $20 million.

[52 FR 21948, June 10, 1987, as amended at 52 FR 32540, Aug. 28, 1987; 
61 FR 67212, Dec. 20, 1996; 65 FR 25444, May 2, 2000]

[[Page 466]]



Sec.  668.109  Eligibility.

    (a) The eligibility of all work is contingent upon approval by the 
FHWA Division Administrator of an application for ER and inclusion of 
the work in an approved program of projects.
    (1) Prior FHWA approval or authorization is not required for 
emergency repairs and preliminary engineering (PE).
    (2) Permanent repairs or restoration must have prior FHWA program 
approval and authorization, unless done as part of the emergency 
repairs.
    (b) ER funds may participate in:
    (1) Repair to or reconstruction of seriously damaged highway 
elements as necessary to restore the facility to pre-disaster 
conditions, including necessary clearance of debris and other deposits 
in drainage courses within the right-of way (ROW);
    (2) Restoration of stream channels outside the highway ROW when:
    (i) The public highway agency has responsibility for the maintenance 
and proper operation of the stream channel section, and
    (ii) The work is necessary for satisfactory operation of the highway 
system involved;
    (3) Actual PE and construction engineering costs on approved 
projects;
    (4) Emergency repairs;
    (5) Temporary operations, including emergency traffic services such 
as flagging traffic through inundated sections of highways, undertaken 
by the applicant during or immediately following the disaster;
    (6) Betterments, only where clearly economically justified to 
prevent future recurring damage. Economic justification must weigh the 
cost of betterment against the risk of eligible recurring damage and the 
cost of future repair;
    (7) Temporary work to maintain essential traffic, such as raising 
roadway grade during a period of flooding by placing fill and temporary 
surface material;
    (8) Raising the grades of critical Federal-aid highways faced with 
long-term loss of use due to basin flooding as defined by an 
unprecedented rise in basin water level both in magnitude and time 
frame. Such grade raises are not considered to be a betterment for the 
purpose of 23 CFR 668.109(b)(6); and
    (9) Repair of toll facilities when the provisions of 23 U.S.C. 129 
are met. If a toll facility does not have an executed toll agreement 
with the FHWA at the time of the disaster, a toll agreement may be 
executed after the disaster to qualify for that disaster.
    (c) ER funds may not participate in:
    (1) Heavy maintenance such as repair of minor damages consisting 
primarily of eroded shoulders, filled ditches and culverts, pavement 
settlement, mud and debris deposits off the traveled way, slope 
sloughing, slides, and slip-outs in cut or fill slopes. In order to 
simplify the inspection and estimating process, heavy maintenance may be 
defined using dollar guidelines developed by the States and Divisions 
with Regional concurrence;
    (2) Repair of surface damage caused by traffic whether or not the 
damage was aggravated by saturated subgrade or inundation, except ER 
funds may participate in:
    (i) Repair of surface damage to any public road caused by traffic 
making repairs to Federal-aid highways.
    (ii) Repair of surface damage to designated detours (which may lie 
on both Federal-aid and non-Federal-aid routes) caused by traffic that 
has been detoured from a damaged Federal-aid highway; and
    (iii) Repair of surface damage to Federal-aid highways caused by 
vehicles responding to a disaster; provided the surface damage has 
occurred during the first 60 days after a disaster occurrence, unless 
otherwise approved by the FHWA Division Administrator.
    (3) Repair of damage not directly related to, and isolated away 
from, the pattern of the disaster;
    (4) Routine maintenance of detour routes, not related to the 
increased traffic volumes, such as mowing, maintaining drainage, 
pavement signing, snow plowing, etc.;
    (5) Replacement of damaged or lost material not incorporated into 
the highway such as stockpiled materials or items awaiting installation;
    (6) Repair or reconstruction of facilities affected by long-term, 
pre-existing conditions or predictable developing situations, such as, 
gradual, long-term

[[Page 467]]

rises in water levels in basins or slow moving slides, except for 
raising grades as noted in Sec.  668.109(b)(8);
    (7) Permanent repair or replacement of deficient bridges scheduled 
for replacement with other funds. A project is considered scheduled if 
the construction phase is included in the FHWA approved Statewide 
Transportation Improvement Program (STIP);
    (8) Other normal maintenance and operation functions on the highway 
system including snow and ice removal; and
    (9) Reimbursing loss of toll revenue.
    (d) Replacement of a highway facility at its existing location is 
appropriate when it is not technically and economically feasible to 
repair or restore a seriously damaged element to its predisaster 
condition and is limited in ER reimbursement to the cost of a new 
facility to current design standards of comparable capacity and 
character to the destroyed facility. With respect to a bridge, a 
comparable facility is one which meets current geometric and 
construction standards for the type and volume of traffic it will carry 
during its design life. Where it is neither practical nor feasible to 
replace a damaged highway facility in kind at its existing location, an 
alternative selected through the National Environmental Policy Act 
(NEPA) process, if of comparable function and character to the destroyed 
facility, is eligible for ER reimbursement.
    (e) Except as otherwise provided in paragraph (b)(6) of this 
section, the total cost of a project eligible for ER funding may not 
exceed the cost of repair or reconstruction of a comparable facility. ER 
funds may participate to the extent of eligible repair costs when 
proposed projects contain unjustified betterments or other work not 
eligible for ER funds.

[52 FR 21948, June 10, 1987, as amended at 61 FR 67212, Dec. 20, 1996; 
65 FR 25444, May 2, 2000]



Sec.  668.111  Application procedures.

    (a) Notification. As soon as possible after the disaster, the 
applicant shall notify the FHWA Division Administrator of its intent to 
apply for ER funds.
    (b) Damage survey. As soon as practical after occurrence, the State 
will make a preliminary field survey, working cooperatively with the 
FHWA Division Administrator and other governmental agencies with 
jurisdiction over eligible highways. The preliminary field survey should 
be coordinated with the Federal Emergency Management Agency work, if 
applicable, to eliminate duplication of effort. The purpose of this 
survey is to determine the general nature and extent of damage to 
eligible highways.
    (1) A damage survey summary report is to be prepared by the State. 
The purpose of the damage survey summary report is to provide a factual 
basis for the FHWA Division Administrator's finding that serious damage 
to Federal-aid highways has been caused by a natural disaster over a 
wide area or a catastrophe. The damage survey summary report should 
include by political subdivision or other generally recognized 
administrative or geographic boundaries, a description of the types and 
extent of damage to highways and a preliminary estimate of cost of 
restoration or reconstruction for damaged Federal-aid highways in each 
jurisdiction. Pictures showing the kinds and extent of damage and sketch 
maps detailing the damaged areas should be included, as appropriate, in 
the damage survey summary report.
    (2) Unless very unusual circumstances prevail, the damage survey 
summary report should be prepared within 6 weeks following the 
applicant's notification.
    (3) For large disasters where extensive damage to Federal-aid 
highways is readily evident, the FHWA Division Administrator may approve 
an application under Sec.  668.111(d) prior to submission of the damage 
survey summary report. In these cases, an abbreviated damage survey 
summary report, summarizing eligible repair costs by jurisdiction, is to 
be prepared and submitted to the FHWA Division Administrator after the 
damage inspections have been completed.
    (c) Application. Before funds can be made available, an application 
for ER must be made to, and approved by the FHWA Division Administrator. 
The application shall include:

[[Page 468]]

    (1) A copy of the Governor's proclamation, request for a 
Presidential declaration, or a Presidential declaration; and
    (2) A copy of the damage survey summary report, as appropriate.
    (d) Approval of application. The FHWA Division Administrator's 
approval of the application constitutes the finding of eligibility under 
23 U.S.C. 125 and shall constitute approval of the application.

[65 FR 25444, May 2, 2000]



Sec.  668.113  Program and project procedures.

    (a) Immediately after approval of an application, the FHWA Division 
Administrator will notify the applicant to proceed with preparation of a 
program which defines the work needed to restore or replace the damaged 
facilities. It should be submitted to the FHWA Division Administrator 
within 3 months of receipt of this notification. The FHWA field office 
will assist the applicant and other affected agencies in preparation of 
the program. This work may involve joint site inspections to view damage 
and reach tentative agreement on type of permanent corrective work to be 
undertaken. Program data should be kept to a minimum, but should be 
sufficient to identify the approved disaster or catastrophe and to 
permit a determination of the eligibility and propriety of proposed 
work. If the damage survey summary report is determined by the FHWA 
Division Administrator to be of sufficient detail to meet these 
criteria, additional program support data need not be submitted.
    (b) Project procedures. (1) Projects for permanent repairs shall be 
processed in accordance with regular Federal-aid procedures. In those 
cases where a regular Federal-aid project in a State similar to the ER 
project would be handled under the project oversight exceptions found in 
title 23, United States Code, the ER project can be handled in a similar 
fashion subject to the following two conditions:
    (i) Any betterment to be incorporated into the project and for which 
ER funding is requested must receive prior FHWA approval; and
    (ii) The FHWA reserves the right to conduct final inspections on all 
ER projects. The FHWA Division Administrator has the discretion to 
undertake final inspections on ER projects as deemed appropriate.
    (2) Simplified procedures, including abbreviated plans should be 
used where appropriate.
    (3) Emergency repair meets the criteria for categorical exclusions 
pursuant to 23 CFR 771.117 and normally does not require any further 
NEPA approvals.

[52 FR 21948, June 10, 1987, as amended at 61 FR 67212, Dec. 20, 1996; 
65 FR 25445, May 2, 2000]



       Subpart B_Procedures for Federal Agencies for Federal Roads



Sec.  668.201  Purpose.

    To establish policy, procedures, and program guidance for the 
administration of emergency relief to Federal agencies for the repair or 
reconstruction of Federal roads which are found to have suffered serious 
damage by a natural disaster over a wide area or by catastrophic 
failure.

[43 FR 59485, Dec. 21, 1978]



Sec.  668.203  Definitions.

    (a) Applicant. Any Federal agency which submits an application for 
emergency relief and which has authority to repair or reconstruct 
Federal roads.
    (b) Betterments. Added protective features, such as, the relocation 
or rebuilding of roadways at a higher elevation or the extension, 
replacement or raising of bridges, and added facilities not existing 
prior to the natural disaster or catastrophic failure such as additional 
lanes, upgraded surfacing, or structures.
    (c) Catastrophic failure. The sudden failure of a major element or 
segment of a Federal road which is not primarily attributable to gradual 
and progressive deterioration or lack of proper maintenance. The closure 
of a facility because of imminent danger of collapse is not in itself a 
sudden failure.
    (d) Emergency repairs. Those repairs, including necessary 
preliminary engineering (PE), construction engineering (CE), and 
temporary traffic operations,

[[Page 469]]

undertaken during or immediately after a natural disaster or 
catastrophic failure (1) to restore essential travel, (2) to protect 
remaining facilities, or (3) to minimize the extent of damage.
    (e) Federal roads. Forest highways, forest development roads and 
trails, park roads and trails, parkways, public lands highways, public 
lands development roads and trails, and Indian reservation roads as 
defined under 23 U.S.C. 101(a).
    (f) Finding. A letter or other official correspondence issued by the 
Direct Federal Division Engineer (DFDE) to a Federal agency giving 
notification that pursuant to 23 U.S.C. 125, Federal roads have 
(Affirmative Finding) or have not (Negative Finding) been found to have 
suffered serious damage as the result of (1) a natural disaster over a 
wide area, or (2) a catastrophic failure.
    (g) Natural disaster. An unusual natural occurrence such as a flood, 
hurricane, severe storm, tidal wave, earthquake, or landslide which 
causes serious damage.
    (h) Permanent work. Repair or reconstruction to pre-disaster or 
other allowed geometric and construction standards and related PE and 
CE.
    (i) Direct Federal Division Engineer. Director of one of the Direct 
Federal field offices located in Vancouver, WA; Denver, CO; and 
Arlington, VA.

[43 FR 59485, Dec. 21, 1978, as amended at 47 FR 10529, Mar. 11, 1982]



Sec.  668.205  Policy.

    (a) This emergency relief program is intended to pay the unusually 
heavy expenses in the repair and reconstruction of Federal roads 
resulting from damage caused by natural disasters over a wide area or 
catastrophic failures.
    (b) Emergency relief work shall be given prompt attention and 
priority over non-emergency work.
    (c) Permanent work shall be done by contract awarded by competitive 
bidding through formal advertising, where feasible.
    (d) It is in the public interest to perform emergency repairs 
immediately and prior approval or authorization from the DFDE is not 
required. Emergency repairs may be performed by the method of 
contracting (advertised contract, negotiated contract, or force account) 
which the applicant or the Federal Highway Administration (FHWA) (where 
FHWA performs the work) determines to be most suited for this work.
    (e) Emergency relief projects shall be promptly constructed. 
Projects not under construction by the end of the second fiscal year 
following the year in which the disaster occurred will be reevaluated by 
the DFDE and will be withdrawn from the approved program of projects 
unless suitable justification is provided by the applicant to warrant 
retention.
    (f) The Finding for natural disasters will be based on both the 
extraordinary character of the natural disturbance and the wide area of 
impact. Storms of unusual intensity occurring over a small area do not 
meet these conditions.
    (g) Diligent efforts shall be made to recover repair costs from the 
legally responsible parties to reduce the project costs where highway 
damages are caused by ships, barge tows, highway vehicles, vehicles with 
illegal loads, and similar improperly controlled objects or events.
    (h) Emergency funds shall not duplicate assistance under another 
Federal program or compensation from insurance or any other source. 
Where other funding compensates for only part of an eligible cost, 
emergency relief funding can be used to pay the remaining costs.

[43 FR 59485, Dec. 21, 1978, as amended at 47 FR 10529, Mar. 11, 1982]



Sec.  668.207  Federal share payable from emergency fund.

    The Federal share payable under this program is 100 percent of the 
cost.

[43 FR 59485, Dec. 21, 1978]



Sec.  668.209  Eligibility of work.

    (a) Permanent work must have prior program approval in accordance 
with paragraph (a) of Sec.  668.215 unless such work is performed as 
emergency repairs.
    (b) Emergency repairs, including permanent work performed incidental 
to emergency repairs, and all PE may begin immediately and do not need

[[Page 470]]

prior program approval. Reimbursement shall be contingent upon the work 
ultimately being approved in accordance with the requirements of 
paragraph (a) of Sec.  668.215.
    (c) To qualify for emergency relief, the damaged or destroyed road 
or trail shall be designated as a Federal road.
    (d) Replacement highway facilities are appropriate when it is not 
practical and economically feasible to repair or restore a damaged 
element to its preexisting condition. Emergency relief is limited to the 
cost of a new facility constructed to current design standards of 
comparable capacity and character to the destroyed facility. With 
respect to a bridge, a comparable facility is one which meets current 
geometric and construction standards for the type and volume of traffic 
it will carry during its design life.
    (e) Emergency relief funds may participate to the extent of eligible 
repair costs when proposed projects contain betterments or other work 
not eligible for emergency funds.
    (f) Work may include:
    (1) Repair to, or reconstruction of, seriously damaged highway 
elements for a distance which would be within normal highway right-of-
way limits, including necessary clearance of debris and other deposits 
in drainage courses, where such work would not be classed as heavy 
maintenance.
    (2) Restoration of stream channels when the work is necessary for 
the satisfactory operation of the Federal road. The applicant must have 
responsibility and authority for maintenance and proper operation of 
stream channels restored.
    (3) Betterments where clearly economically justified to prevent 
future recurring damage. Economic justification acceptable to the DFDE 
must weigh the cost of such betterments against the risk of eligible 
recurring damage and the cost of future repair.
    (4) Actual PE and CE costs on approved projects.
    (5) Emergency repairs.

[43 FR 59485, Dec. 21, 1978, as amended at 47 FR 10529, Mar. 11, 1982]



Sec.  668.211  Notification, damage assessment, and finding.

    (a) Notification. During or as soon as possible after a natural 
disaster or catastrophic failure, each applicant will notify the DFDE of 
its tentative intent to apply for emergency relief and request that a 
Finding be made.
    (b) Acknowledgment. The DFDE will promptly acknowledge the 
notification and briefly describe subsequent damage assessment, Finding, 
and application procedures.
    (c) Field report. The applicant shall cooperate with the DFDE to 
promptly make a field survey of overall damage and in the preparation of 
a field report.
    (d) Finding. Using the field report and other information deemed 
appropriate, the DFDE will promptly issue a Finding and if an 
Affirmative Finding is made, establish the date after which repair or 
reconstruction will be considered for emergency relief, and note the 
dates of the extraordinary natural occurrence or catastrophic event 
responsible for the damage or destruction.
    (e) Detailed site inspections. (1) If an Affirmative Finding is 
made, the applicant shall cooperate with the DFDE to make a detailed 
inspection of each damage site.
    (2) If it appears certain an Affirmative Finding will be made, the 
DFDE may elect to make these site inspections at the time damage is 
initially assessed pursuant to paragraph (c) of this section.
    (f) The applicant shall make available to FHWA personnel conducting 
damage survey and estimate work maps depicting designated Federal roads 
in the affected area.

[43 FR 59485, Dec. 21, 1978, as amended at 47 FR 10529, Mar. 11, 1982]



Sec.  668.213  Application procedures.

    (a) Based on the detailed site inspections and damage estimates 
prepared pursuant to paragraph (e) of Sec.  668.211, the applicant will 
submit an application in the form of a letter to the DFDE which shall 
include a list of projects for which emergency relief is requested. The 
application shall be submitted within 3 months after an Affirmative 
Finding.

[[Page 471]]

    (b) The list of projects shall include emergency repairs, PE, and 
permanent work, and provide for each project a location, length, project 
number, type of damage, description of work with a separate breakdown 
for betterments including a justification for those intended for 
emergency relief funding, proposed method of construction, estimated 
cost, and any other information requested by the DFDE.
    (c) If the initial list of projects is incomplete, a subsequent 
list(s) of projects shall be forwarded to the DFDE for approval 
consideration as soon as possible.

[43 FR 59485, Dec. 21, 1978, as amended at 47 FR 10529, Mar. 11, 1982]



Sec.  668.215  Programming and project procedures.

    (a) The DFDE will advise the applicant in writing which projects in 
the application, or in any subsequent submittals pursuant to paragraph 
(c) of Sec.  668.213 are approved including any approval conditions. 
Approved projects shall constitute the approved program of projects 
(program).
    (b) Plans, specifications, and estimates (PS&E) shall be developed 
based on work identified in the approved program.
    (c) The DFDE will approve PS&E's, concur in the award of contracts 
or the rejection of bids, determine that construction by the force 
account method is in the public interest, and accept completed work in 
accordance with interagency procedures established by the DFDE.
    (d) The applicant shall notify the DFDE in writing of the semi-
annual status and completion of each emergency relief project 
constructed by applicant forces.

[43 FR 59485, Dec. 21, 1978, as amended at 47 FR 10529, Mar. 11, 1982]



PART 669_ENFORCEMENT OF HEAVY VEHICLE USE TAX--Table of Contents



Sec.
669.1 Scope and purpose.
669.3 Policy.
669.5 Objective.
669.7 Certification requirement.
669.9 Certification content.
669.11 Certification submittal.
669.13 Effect of failure to certify or to adequately obtain proof-of-
          payment.
669.15 Procedure for the reduction of funds.
669.17 Compliance finding.
669.19 Reservation and reapportionment of funds.
669.21 Procedure for evaluating state compliance.

    Authority: 23 U.S.C. 141(c) and 315; 49 CFR 1.85.

    Source: 51 FR 25364, July 14, 1986, unless otherwise noted.



Sec.  669.1  Scope and purpose.

    To prescribe requirements for certification by the states that 
evidence of proof of payment is obtained either before vehicles subject 
to the Federal heavy vehicle use tax are lawfully registered or within 4 
months after being lawfully registered if a suspension registration 
system is implemented.



Sec.  669.3  Policy.

    It is the policy of the FHWA that each state require registrants of 
heavy trucks as described in 26 CFR part 41 to provide proof of payment 
of the vehicle use tax either before lawfully registering or within 4 
months after lawfully registering such vehicles as provided for under a 
suspension registration system.



Sec.  669.5  Objective.

    The objective of this regulation is to establish realistic and 
workable procedures for an annual certification process to provide 
suitable evidence that an effective program is being conducted by the 
states and to ensure that the states are not registering vehicles which 
have not been accounted for under the tax collection procedures 
instituted by the Internal Revenue Service (IRS).



Sec.  669.7  Certification requirement.

    The Governor of each State, or his or her designee, shall certify to 
the FHWA before January 1 of each year that it is obtaining proof-of-
payment of the heavy vehicle use tax as a condition of registration in 
accordance with 23 U.S.C. 141(c). The certification shall cover the 12-
month period ending September 30, except for the certification due on 
January 1, 2011, which shall

[[Page 472]]

cover the 4-month period from June 1, 2010 to September 30, 2010.

[75 FR 43409, July 26, 2010]



Sec.  669.9  Certification content.

    The certification shall consist of the following elements:
    (a) A statement by the Governor of the state or a state official 
designated by the Governor, that evidence of payment of the heavy 
vehicle use tax is being obtained as a condition of registration for all 
vehicles subject to such tax. The statement shall include the inclusive 
dates of the period during which payment of the heavy vehicle use tax 
was verified as a condition of registration.
    (b) The certifying statement required by paragraph (a) of this 
section shall be worded as follows:

    I (name of certifying official), (position, title), of the State of 
( ), do hereby certify that evidence of payment of the heavy vehicle use 
tax pursuant to section 4481 of the Internal Revenue Code of 1954, as 
amended, is being obtained as a condition of registration for vehicles 
subject to such tax in accordance with 23 U.S.C. 141(c) and applicable 
IRS rules. This certification is for the period ( ) to ( ).

    (c) For the initial certification, submit a copy of any state law or 
regulation pertaining to the implementation of 23 U.S.C. 141(c); for 
subsequent certifications, submit a copy of any new or revised laws and 
regulations pertaining to the implementation of 23 U.S.C. 141(c).

[51 FR 25364, July 14, 1986, as amended at 75 FR 43409, July 26, 2010]



Sec.  669.11  Certification submittal.

    The Governor or an official designated by the Governor, shall each 
year submit the certification, including the supporting material 
specified in Sec.  669.9 to the FHWA Division Administrator prior to 
January 1.

[51 FR 25364, July 14, 1986, as amended at 75 FR 43409, July 26, 2010]



Sec.  669.13  Effect of failure to certify or to adequately obtain 
proof-of-payment.

    If a State fails to certify as required by this regulation or if the 
Secretary of Transportation determines that a State is not adequately 
obtaining proof-of-payment of the heavy vehicle use tax as a condition 
of registration notwithstanding the State's certification, Federal-aid 
highway funds apportioned to the State under 23 U.S.C. 104(b)(1) for the 
next fiscal year shall be reduced in an amount up to 8 percent as 
determined by the Secretary.

[81 FR 32230, May 23, 2016]



Sec.  669.15  Procedure for the reduction of funds.

    (a) Each fiscal year, each State determined to be in nonconformity 
with the requirements of this part will be advised of the funds expected 
to be withheld from apportionment in accordance with Sec.  669.13 and 23 
U.S.C. 141(c), as part of the advance notice of apportionments required 
under 23 U.S.C. 104(e), normally not later than 90 days prior to final 
apportionment.
    (b) A State that received a notice in accordance with paragraph (a) 
of this section may within 30 days of its receipt of the advance notice 
of apportionments, submit documentation showing why it is in conformity 
with this Part. Documentation shall be submitted to the Federal Highway 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.
    (c) Each fiscal year, each State determined to be in nonconformity 
with the requirements of this part and 23 U.S.C. 141(c), based on FHWA's 
final determination, will receive notice of the funds being withheld 
from apportionment pursuant to section 669.3 and 23 U.S.C. 141(c), as 
part of the certification of apportionments required under 23 U.S.C. 
104(e), which normally occurs on October 1 of each fiscal year.

[75 FR 43409, July 26, 2010]



Sec.  669.17  Compliance finding.

    (a) If, following the conference or review of submitted materials 
described in Sec.  669.15, the Administrator concludes that the state is 
in compliance, the Administrator shall issue a decision which is the 
final decision, and the matter shall be concluded.
    (b) If, following the conference or review of information submitted 
under Sec.  669.15, the Administrator, with the

[[Page 473]]

concurrence of the Secretary, concludes that the state is in 
noncompliance, the Administrator shall issue a decision, which is the 
final decision, and the matter be concluded. The decision will be served 
on the Governor, or his/her designee.



Sec.  669.19  Reservation and reapportionment of funds.

    (a) The Administrator may reserve from obligation up to 8 percent of 
a State's apportionment of funds under 23 U.S.C. 104(b)(1), pending a 
final determination.
    (b) Funds withheld pursuant to a final administrative determination 
under this regulation shall be reapportioned to all other eligible 
States pursuant to the formulas of 23 U.S.C. 104(b)(1) and the 
apportionment factors in effect at the time of the original 
apportionments, unless the Secretary determines, on the basis of 
information submitted by the State, that the state has come into 
conformity with this regulation prior to the final determination. If the 
Secretary determines that the state has come into conformity, the 
withheld funds shall be released to the state subject to the 
availability of such funds under 23 U.S.C. 118(b).
    (c) The reapportionment of funds under paragraph (b) of this section 
shall be stayed during the pendency of any judicial review of the final 
determination of nonconformity.

[51 FR 25364, July 14, 1986, as amended at 75 FR 43409, July 26, 2010; 
81 FR 32230, May 23, 2016]



Sec.  669.21  Procedure for evaluating state compliance.

    The FHWA shall periodically review the State's procedures for 
complying with 23 U.S.C. 141(c), including an inspection of supporting 
documentation and records. In those States where a branch office of the 
State, a local jurisdiction, or a private entity is providing services 
to register motor vehicles including vehicles subject to HVUT, the State 
shall be responsible for ensuring that these entities comply with the 
requirements of this part concerning the collection and retention of 
evidence of payment of the HVUT as a condition of registration for 
vehicles subject to such tax and develop adequate procedures to maintain 
such compliance. The State or other responsible entity shall retain a 
copy of the receipted IRS Schedule 1 (Form 2290), or an acceptable 
substitute prescribed by 26 CFR part 41 sec. 41.6001-2 for a period of 1 
year for purposes of evaluating State compliance with 23 U.S.C. 141(c) 
by the FHWA. The State may develop a software system to maintain copies 
or images of this proof-of-payment.

[75 FR 43409, July 26, 2010]

[[Page 474]]



                SUBCHAPTER H_RIGHT-OF-WAY AND ENVIRONMENT





PART 710_RIGHT-OF-WAY AND REAL ESTATE--Table of Contents



                            Subpart A_General

Sec.
710.101 Purpose.
710.103 Applicability.
710.105 Definitions.

                    Subpart B_Program Administration

710.201 Grantee and subgrantee responsibilities.
710.203 Title 23 funding and reimbursement.

                      Subpart C_Project Development

710.301 General.
710.303 Project authorization and agreements.
710.305 Acquisition.
710.307 Construction advertising.
710.309 Design-build projects.

                   Subpart D_Real Property Management

710.401 General.
710.403 Management.
710.405 ROW use agreements.
710.407 [Reserved]
710.409 Disposal of excess real property.

               Subpart E_Property Acquisition Alternatives

710.501 Early acquisition.
710.503 Protective buying and hardship acquisition.
710.505 Real property donations.
710.507 State and local contributions.
710.509 Functional replacement of real property in public ownership.
710.511 Transportation Alternatives.

                  Subpart F_Federal Assistance Program

710.601 Federal land transfers.
710.603 Direct Federal acquisition.

                     Subpart G_Concession Agreements

710.701 Purpose.
710.703 Definitions.
710.705 Applicability.
710.707 Fair market value.
710.709 Determination of Fair market value.

    Authority: Secs.1302 and 1321, Pub. L. 112-141, 126 Stat. 405. Sec. 
1307, Pub. L. 105-178, 112 Stat. 107; 23 U.S.C. 101(a), 107, 108, 111, 
114, 133, 142(f), 156, 204, 210, 308, 315, 317, and 323; 42 U.S.C. 2000d 
et seq., 4633, 4651-4655; 2 CFR 200.311; 49 CFR 1.48(b) and (cc), parts 
21 and 24; 23 CFR 1.32.

    Source: 64 FR 71290, Dec. 21, 1999, unless otherwise noted.



                            Subpart A_General

    Source: 81 FR 57729, Aug. 23, 2016, unless otherwise noted.



Sec.  710.101  Purpose.

    The primary purpose of the requirements in this part is to ensure 
the prudent use of Federal funds under title 23, United States Code, in 
the acquisition, management, and disposal of real property. In addition 
to the requirements of this part, other real property related provisions 
apply and are found at 49 CFR part 24.



Sec.  710.103  Applicability.

    (a) This part applies whenever title 23, United States Code, grant 
funding is used, including when grant funds are expended or participate 
in project costs incurred by the State or other Title 23 grantee. This 
part applies to programs and projects administered by the Federal 
Highway Administration (FHWA) and, unless otherwise stated in this part, 
to all property purchased with title 23 grant funds or incorporated into 
a project carried out with grant funding provided under title 23, except 
property for which the title is vested in the United States upon project 
completion. Grantees are accountable to FHWA for complying with, and are 
responsible for ensuring their subgrantees, contractors, and other 
project partners comply with applicable Federal laws, including this 
part.
    (b) The parties responsible for ROW and real estate activities, and 
for compliance with applicable Federal requirements, can vary by the 
nature of the responsibility or the underlying activity. Throughout this 
part, the FHWA identifies the parties subject to a particular provision 
through the use of terms of reference defined as set forth in Sec.  
710.105. It is important to refer to those definitions, such as ``State 
Department of Transportation

[[Page 475]]

(SDOT),'' ``grantee,'' ``subgrantee,'' ``State agency'' and ``acquiring 
agency,'' when applying the provisions in this part.
    (c) Where title 23 funds are transferred to other Federal agencies 
to administer, those agencies' ROW and real estate procedures may be 
utilized. Additional guidance is available electronically at the FHWA 
Real Estate Services Web site: http://www.fhwa.dot.gov/realestate/
index.htm.



Sec.  710.105  Definitions.

    (a) Terms defined in 23 U.S.C. 101(a) and 49 CFR part 24 have the 
same meaning where used in this part, except as modified in this 
section.
    (b) The following terms where used in this part have the following 
meaning:
    Access rights mean the right of ingress to and egress from a 
property to a public way.
    Acquiring agency means a State agency, other entity, or person 
acquiring real property for title 23, United States Code, purposes. When 
an acquiring agency acquires real property interests that will be 
incorporated into a project eligible for title 23 grant funds, the 
acquiring agency must comply with Federal real estate and ROW 
requirements applicable to the grant.
    Acquisition means activities to obtain an interest in, and 
possession of, real property.
    Damages means the loss in the value attributable to remainder 
property due to the severance or consequential damages, as limited by 
State law, that arise when only part of an owner's real property is 
acquired.
    Disposal means the transfer by sale or other conveyance of permanent 
rights in excess real property, when the real property interest is not 
currently or in the foreseeable future needed for highway ROW or other 
uses eligible for funding under title 23 of the United States Code. A 
disposal must meet the requirements contained in Sec.  710.403(b) of 
this part. The term ``disposal'' includes actions by a grantee, or its 
subgrantees, in the nature of relinquishment, abandonment, vacation, 
discontinuance, and disclaimer of real property or any rights therein.
    Donation means the voluntary transfer of privately owned real 
property, by a property owner who has been informed in writing by the 
acquiring agency of rights and benefits available to owners under the 
Uniform Act and this section, for the benefit of a public transportation 
project without compensation or with compensation at less than fair 
market value.
    Early acquisition means acquisition of real property interests by an 
acquiring agency prior to completion of the environmental review process 
for a proposed transportation project, as provided under 23 CFR 710.501 
and 23 U.S.C. 108.
    Early Acquisition Project means a project for the acquisition of 
real property interests prior to the completion of the environmental 
review process for the transportation project into which the acquired 
property will be incorporated, as authorized under 23 U.S.C. 108 and 
implemented under Sec.  710.501 of this part. It may consist of the 
acquisition of real property interests in a specific parcel, a portion 
of a transportation corridor, or an entire transportation corridor.
    Easement means an interest in real property that conveys a right to 
use or control a portion of an owner's property or a portion of an 
owner's rights in the property either temporarily or permanently.
    Excess real property means a real property interest not needed 
currently or in the foreseeable future for transportation purposes or 
other uses eligible for funding under title 23, United States Code.
    Federal-aid project means a project funded in whole or in part 
under, or requiring an FHWA approval pursuant to provisions in chapter 1 
of title 23, United States Code.
    Federally assisted means a project or program that receives grant 
funds under title 23, United States Code.
    Grantee means the party that is the direct recipient of title 23 
funds and is accountable to FHWA for the use of the funds and for 
compliance with applicable Federal requirements.
    Mitigation property means real property interests acquired to 
mitigate for impacts of a project eligible for funding under title 23.
    Option means the purchase of a right to acquire real property within 
an

[[Page 476]]

agreed-to period of time for an agreed-to amount of compensation or 
through an agreed-to method by which compensation will be calculated.
    Person means any individual, family, partnership, corporation, or 
association.
    Real Estate Acquisition Management Plan (RAMP) means a written 
document that details how a non-State department of transportation 
grantee, subgrantee, or design-build contractor will administer the 
title 23 ROW and real estate requirements for its project or program of 
projects. The document must be approved by the SDOT, or by the funding 
agency in the case of a non-SDOT grantee, before any acquisition work 
may begin. It must lay out in detail how the acquisition and relocation 
assistance programs will be accomplished and any anticipated issues that 
may arise during the process. If relocations are reasonably expected as 
part of the title 23 projects or program, the Real Estate Acquisition 
Management Plan (RAMP) must address relocation assistance and related 
procedures.
    Real property or real property interest means any interest in land 
and any improvements thereto, including fee and less-than-fee interests 
such as: temporary and permanent easements, air or access rights, access 
control, options, and other contractual rights to acquire an interest in 
land, rights to control use or development, leases, and licenses, and 
any other similar action to acquire or preserve ROW for a transportation 
facility. As used in this part, the terms ``real property'' and ``real 
property interest'' are synonymous unless otherwise specified.
    Relinquishment means the conveyance of a portion of a highway ROW or 
facility by a grantee under title 23, United States Code, or its 
subgrantee, to another government agency for continued transportation 
use. (See part 620, subpart B of this chapter.)
    Right-of-way (ROW) means real property and rights therein obtained 
for the construction, operation, maintenance, or mitigation of a 
transportation or related facility funded under title 23, United States 
Code.
    ROW manual means an operations manual that establishes a grantee's 
acquisition, valuation, relocation, and property management and disposal 
requirements and procedures, and has been approved in accordance with 
Sec.  710.201(c).
    ROW use agreement means real property interests, defined by an 
agreement, as evidenced by instruments such as a lease, license, or 
permit, for use of real property interests for non-highway purposes 
where the use is in the public interest, consistent with the continued 
operation, maintenance, and safety of the facility, and such use will 
not impair the highway or interfere with the free and safe flow of 
traffic (see also 23 CFR 1.23). These rights may be granted only for a 
specified period of time because the real property interest may be 
needed in the future for highway purposes or other purposes eligible for 
funding under title 23.
    Settlement means the result of negotiations based on fair market 
value in which the amount of just compensation is agreed upon for the 
purchase of real property or an interest therein. This term includes the 
following:
    (1) An administrative settlement is a settlement reached prior to 
filing a condemnation proceeding based on value related evidence, 
administrative consideration, or other factors approved by an authorized 
agency official.
    (2) A legal settlement is a settlement reached by an authorized 
legal representative or a responsible official of the acquiring agency 
who has the legal power vested in him by State law, after filing a 
condemnation proceeding, including agreements resulting from mediation 
and stipulated settlements approved by the court in which the 
condemnation action had been filed.
    (3) A court settlement or court award is any decision by a court 
that follows a contested trial or hearing before a jury, commission, 
judge, or other legal entity having the authority to establish the 
amount of just compensation for a taking under the laws of eminent 
domain.
    State agency means: A department, agency, or instrumentality of a 
State or of a political subdivision of a State; any department, agency, 
or instrumentality of two or more States or of two or more political 
subdivisions of a

[[Page 477]]

State or States; or any person who has the authority to acquire property 
by eminent domain, for public purposes, under State law.
    State department of transportation (SDOT) means the State highway 
department, transportation department, or other State transportation 
agency or commission to which title 23, United States Code, funds are 
apportioned.
    Stewardship/Oversight Agreement means the written agreement between 
the SDOT and FHWA that defines the respective roles and responsibilities 
of FHWA and the State for carrying out certain project review, approval, 
and oversight responsibilities under title 23, including those 
activities specified by 23 U.S.C. 106(c)(3).
    Subgrantee means a government agency or legal entity that enters 
into an agreement with a grantee to carry out part or all of the 
activity funded by title 23 grant funds. A subgrantee is accountable to 
the grantee for the use of the funds and for compliance with applicable 
Federal requirements.
    Temporary development restriction means the purchase of a right to 
temporarily control or restrict development or redevelopment of real 
property. This right is for an agreed to time period, defines 
specifically what is restricted or controlled, and is for an agreed to 
amount of compensation.
    Transportation project means any highway project, public 
transportation capital project, multimodal project, or other project 
that requires the approval of the Secretary. As used in this part, the 
term ``transportation project'' does not include an Early Acquisition 
Project as defined in this section.
    Uneconomic remnant means a remainder property which the acquiring 
agency has determined has little or no utility or value to the owner.
    Uniform Act means the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, as amended (Pub. L. 91-646, 
84 Stat. 1894; primarily codified in 42 U.S.C. 4601 et seq.), and the 
implementing regulations at 49 CFR part 24.



                    Subpart B_Program Administration

    Source: 81 FR 57729, Aug. 23, 2016, unless otherwise noted.



Sec.  710.201  Grantee and subgrantee responsibilities.

    (a) Program oversight. States administer the Federal-aid highway 
program, funded under chapter 1 of title 23, United States Code, through 
their SDOTs. The SDOT shall have overall responsibility for the 
acquisition, management, and disposal of real property interests on its 
Federal-aid projects, including when those projects are carried out by 
the SDOT's subgrantees or contractors. This responsibility shall include 
ensuring compliance with the requirements of this part and other Federal 
laws, including regulations. Non-SDOT grantees of funds under title 23 
must comply with the requirements under this part, except as otherwise 
expressly provided in this part, and are responsible for ensuring 
compliance by their subgrantees and contractors with the requirements of 
this part and other Federal laws, including regulations.
    (b) Organization. Each grantee and subgrantee, including any other 
acquiring agency acting on behalf of a grantee or subgrantee, shall be 
adequately staffed, equipped, and organized to discharge its real 
property related responsibilities.
    (c) ROW manual. (1) Every grantee must ensure that its title 23-
funded projects are carried out using an FHWA-approved and up-to-date 
ROW manual or RAMP that is consistent with applicable Federal 
requirements, including the Uniform Act and this part. Each SDOT that 
receives funding under title 23, United States Code, shall maintain an 
approved and up-to-date ROW manual describing its ROW organization, 
policies, and procedures. Non-SDOT grantees may use one of the 
procedures in paragraph (d) to meet the requirements in this paragraph; 
however, the ROW manual options can only be used with SDOT approval and 
permission. The ROW manual shall describe functions and procedures for 
all phases of the ROW program, including appraisal and appraisal review, 
waiver

[[Page 478]]

valuation, negotiation and eminent domain, property management, 
relocation assistance, administrative settlements, legal settlements, 
and oversight of its subgrantees and contractors. The ROW manual shall 
also specify procedures to prevent conflict of interest and avoid fraud, 
waste, and abuse. The ROW manual shall be in sufficient detail and depth 
to guide the grantee, its employees, and others involved in acquiring, 
managing, and disposing of real property interests. Grantees, 
subgrantees, and their contractors must comply with current FHWA 
requirements whether or not the requirements are included in the FHWA-
approved ROW manual.
    (2) The SDOT's ROW manual must be developed and updated, as a 
minimum, to meet the following schedule:
    (i) The SDOTs shall prepare and submit for approval by FHWA an up-
to-date ROW Manual by no later than August 23, 2018.
    (ii) Every 5 years thereafter, the chief administrative officer of 
the SDOT shall certify to the FHWA that the current SDOT ROW manual 
conforms to existing practices and contains necessary procedures to 
ensure compliance with Federal and State real estate law and regulation, 
including this part.
    (iii) The SDOT shall update its ROW manual periodically to reflect 
changes in operations and submit the updated materials for approval by 
the FHWA.
    (d) ROW manual alternatives. Non-SDOT grantees, and all subgrantees, 
design-build contractors, and other acquiring agencies carrying out a 
project funded by a grant under title 23, United States Code, must 
demonstrate that they will use FHWA-approved ROW procedures for 
acquisition and other real estate activities, and that they have the 
ability to comply with current FHWA requirements, including this part. 
This can be done through any of the following methods:
    (1) Certification in writing that the acquiring agency will adopt 
and use the FHWA-approved SDOT ROW manual;
    (2) Submission of the acquiring agency's own ROW manual to the 
grantee for review and determination whether it complies with Federal 
and State requirements, together with a certification that once the 
reviewing agency approves the manual, the acquiring agency will use the 
approved ROW manual; or
    (3)(i) Submission of a RAMP setting forth the procedures the 
acquiring agency or design-build contractor intends to follow for a 
specified project or group of projects, along with a certification that 
if the reviewing agency approves the RAMP, the acquiring agency or 
design-build contractor will follow the approved RAMP for the specified 
program or project(s). The use of a RAMP is appropriate for a 
subgrantee, non-SDOT grantee, or design-build contractor if that party 
infrequently carries out title 23 programs or projects, the program or 
project is non-controversial, and the project is not complex.
    (ii) Subgrantees, design-build contractors, and other acquiring 
agencies carrying out a project for an SDOT submit the required 
certification and information to the SDOT, and the SDOT will review and 
make a determination on behalf of FHWA. Non-SDOT grantees submit the 
required certification and information directly to FHWA. Non-SDOT 
grantees are responsible for submitting to FHWA the required 
certification and information for any subgrantee, contractor, and other 
acquiring agency carrying out a project for the non-SDOT grantee.
    (e) Record keeping. The acquiring agency shall maintain adequate 
records of its acquisition and property management activities.
    (1) Acquisition records, including records related to owner or 
tenant displacements, and property inventories of improvements acquired 
shall be in sufficient detail to demonstrate compliance with this part 
and 49 CFR part 24. These records shall be retained at least 3 years 
from the later of either:
    (i) The date the SDOT or other grantee receives Federal 
reimbursement of the final payment made to each owner of a property and 
to each person displaced from a property; or
    (ii) The date of reimbursement for early acquisitions or credit 
toward the State share of a project is approved based on early 
acquisition activities under Sec.  710.501.

[[Page 479]]

    (2) Property management records shall include inventories of real 
property interests considered excess to project or program needs, as 
well as all authorized ROW use agreements for real property acquired 
with title 23 funds or incorporated into a program or project that 
received title 23 funding.
    (f) Procurement. Contracting for all activities required in support 
of an SDOT's or other grantee's ROW projects or programs through the use 
of private consultants and other services shall conform to 2 CFR 
200.317, except to the extent that the procurement is required to adhere 
to requirements under 23 U.S.C. 112(b)(2) and 23 CFR part 172 for 
engineering and design related consultant services.
    (g) Use of other public land acquisition organizations, conservation 
organizations, or private consultants. The grantee may enter into 
written agreements with other State, county, municipal, or local public 
land acquisition organizations, conservation organizations, private 
consultants, or other persons to carry out its authorities under this 
part. Such organizations, firms, or persons must comply with the 
grantee's ROW manual or RAMP as approved in accordance with paragraphs 
(c) or (d) of this section. The grantee shall monitor any such real 
property interest acquisition activities to ensure compliance with State 
and Federal law, and is responsible for informing such persons of all 
such requirements and for imposing sanctions in cases of material non-
compliance.
    (h) Assignment of FHWA approval actions to an SDOT. The SDOT and 
FHWA will agree in their Stewardship/Oversight Agreement on the scope of 
property-related oversight and approvals under this part that will be 
performed directly by FHWA and those that FHWA will assign to the SDOT. 
This assignment provision does not apply to other grantees of title 23 
funds. The content of the most recent Stewardship/Oversight Agreement 
shall be reflected in the FHWA-approved SDOT ROW manual. The agreement, 
and thus the SDOT ROW manual, will indicate which Federal-aid projects 
require submission of materials for FHWA review and approval. The FHWA 
retains responsibility for any approval action not expressly assigned to 
the SDOT in the Stewardship/Oversight Agreement.



Sec.  710.203  Title 23 funding and reimbursement.

    (a) General conditions. Except as otherwise provided in Sec.  
710.501 for early acquisition, a State agency only may acquire real 
property, including mitigation property, with title 23 grant funds if 
the following conditions are satisfied:
    (1) The project for which the real property is acquired is included 
in an approved Statewide Transportation Improvement Program (STIP);
    (2) The grantee has executed a project agreement or other agreement 
recognized under title 23 reflecting the Federal funding terms and 
conditions for the project;
    (3) Preliminary acquisition activities, including a title search, 
appraisal, appraisal review and waiver valuation preparation, 
preliminary property map preparation and preliminary relocation planning 
activities, limited to searching for comparable properties, identifying 
replacement neighborhoods and identifying available public services, can 
be advanced under preliminary engineering, as defined in Sec.  646.204 
of this chapter, prior to completion of the National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321, et seq.) review, while other work 
involving contact with affected property owners for purposes of 
negotiation and relocation assistance must normally be deferred until 
after NEPA approval, except as provided in Sec.  710.501, early 
acquisition; and in Sec.  710.503 for protective buying and hardship 
acquisition; and
    (4) Costs have been incurred in conformance with State and Federal 
requirements.
    (b) Direct eligible costs. Federal funds may only participate in 
direct costs that are identified specifically as an authorized 
acquisition activity such as the costs of acquiring the real property 
incorporated into the final project and the associated direct costs of 
acquisition, except in the case of a State that has an approved indirect 
cost allocation plan as stated in Sec.  710.203(d) or specifically 
provided by statute. Participation is provided for:

[[Page 480]]

    (1) Real property acquisition. Usual costs and disbursements 
associated with real property acquisition as required under the laws of 
the State, including the following:
    (i) The cost of contracting for private acquisition services or the 
cost associated with the use of local public agencies;
    (ii) Ordinary and reasonable costs of acquisition activities, such 
as, appraisal, waiver valuation development, appraisal review, cost 
estimates, relocation planning, ROW plan preparation, title work, and 
similar necessary ROW related work;
    (iii) The compensation paid for the real property interest and costs 
normally associated with completing the purchase, such as document fees 
and document stamps. The costs of acquiring options and other 
contractual rights to acquire an interest in land, rights to control use 
or development, leases, ROWs, and any other similar action to acquire or 
preserve rights-of way for a transportation facility are eligible costs 
when FHWA determines such costs are actual, reasonable and necessary 
costs. Costs under this paragraph do not include salary and related 
expenses for an acquiring agency's employees (see payroll-related 
expenses in paragraph (b)(5) of this section);
    (iv) The cost of administrative settlements in accordance with 49 
CFR 24.102(i), legal settlements, court awards, and costs incidental to 
the condemnation process. This includes reasonable acquiring agency 
attorney's fees, but excludes attorney's fees for other parties except 
where required by State law (including an order of a court of competent 
jurisdiction) or approved by FHWA;
    (v) The cost of minimum payments and waiver valuation amounts 
included in the approved ROW manual or approved RAMP; and
    (vi) Ordinary and reasonable costs associated with closing, and 
costs of finalizing the acquisition.
    (2) Relocation assistance and payments. Usual costs and 
disbursements associated with the following:
    (i) Relocation assistance and payments required under 49 CFR part 
24; and
    (ii) Relocation assistance and payments provided under the laws of 
the State that may exceed the requirements of 49 CFR part 24, except for 
relocation assistance and payments provided to aliens not lawfully 
present in the United States.
    (3) Damages. The cost of severance and/or consequential damages to 
remaining real property resulting from a partial acquisition, actual or 
constructive, of real property for a project based on elements 
compensable under State law.
    (4) Property management. The net cost of managing real property 
prior to and during construction to provide for maintenance, protection, 
and the clearance and disposal of improvements until final project 
acceptance.
    (5) Payroll-related expenses. Salary and related expenses 
(compensation for personal services) of employees of an acquiring agency 
for work on a project funded by a title 23 grant are eligible costs in 
accordance with 2 CFR part 225 (formerly OMB Circular A-87), as are 
salary and related expenses of a grantee's employees for work with an 
acquiring agency or a contractor to ensure compliance with Federal 
requirements on a title 23 project if the work is dedicated to a 
specific project and documented in accordance with 2 CFR part 225.
    (6) Property not incorporated into a project funded under title 23, 
United States Code. The cost of property not incorporated into a project 
may be eligible for reimbursement in the following circumstances:
    (i) General. Costs for construction material sites, property 
acquisitions to a logical boundary, eligible Transportation Alternatives 
(TA) projects, sites for disposal of hazardous materials, environmental 
mitigation, environmental banking activities, or last resort housing; 
and
    (ii) Easements and alternate access not incorporated into the ROW. 
The cost of acquiring easements and alternate access points necessary 
for highway construction and maintenance outside the approved ROW limits 
for permanent or temporary use.
    (7) Uneconomic remnants. The cost of uneconomic remnants purchased 
in connection with the acquisition of a

[[Page 481]]

partial taking for the project as required by the Uniform Act.
    (8) Access rights. Payment for full or partial control of access on 
an existing road or highway (i.e., one not on a new location), based on 
elements compensable under applicable State law. Participation does not 
depend on another real property interest being acquired or on further 
construction of the highway facility.
    (9) Utility and railroad property. (i) The cost to replace operating 
real property owned by a displaced utility or railroad and conveyed to 
an acquiring agency for a project, as provided in 23 CFR part 140, 
subpart I, Reimbursement for Railroad Work, and 23 CFR part 645, subpart 
A, Utility Relocations, Adjustments and Reimbursement, and 23 CFR part 
646, subpart B, Railroad-Highway Projects; and
    (ii) Participation in the cost of acquiring non-operating utility or 
railroad real property shall be in the same manner as that used in the 
acquisition of other privately owned property.
    (c) Withholding payment. The FHWA may withhold payment under the 
conditions described in 23 CFR 1.36 for failure to comply with Federal 
law or regulation, State law, or under circumstances of waste, fraud, 
and abuse.
    (d) Indirect costs. Indirect costs may be claimed under the 
provisions of 2 CFR part 225 (formerly OMB Circular A-87). Indirect 
costs may be included on billings after the indirect cost allocation 
plan has been prepared in accordance with 2 CFR part 225 and approved by 
FHWA, other cognizant Federal agency, or, in the case of an SDOT 
subgrantee without a rate approved by a cognizant Federal agency, by the 
SDOT. Indirect costs for an SDOT may include costs of providing program-
level guidance, consultation, and oversight to other acquiring agencies 
and contractors where ROW activities on title 23-funded projects are 
performed by non-SDOT personnel.



                      Subpart C_Project Development

    Source: 81 FR 57729, Aug. 23, 2016, unless otherwise noted.



Sec.  710.301  General.

    The project development process typically follows a sequence of 
actions and approvals in order to qualify for funding. The key steps in 
this process typically are planning, environmental review, project 
agreement/authorization, acquisition, construction advertising, and 
construction.



Sec.  710.303  Project authorization and agreements.

    As a condition of Federal funding under title 23, the grantee shall 
obtain FHWA authorization in writing or electronically before proceeding 
with any real property acquisition using title 23 funds, including early 
acquisitions under Sec.  710.501(e) and hardship acquisition and 
protective buying under Sec.  710.503. For projects funded under chapter 
1, title 23, United States Code, the grantee must prepare a project 
agreement in accordance with 23 CFR part 630, subpart A. Authorizations 
and agreements shall be based on an acceptable estimate for the cost of 
acquisition.



Sec.  710.305  Acquisition.

    (a) General. The process of acquiring real property includes 
appraisal, appraisal review, waiver valuations, establishing estimates 
of just compensation, negotiations, relocation assistance, 
administrative and legal settlements, and court settlements and 
condemnations. Grantees must ensure all acquisition and related 
relocation assistance activities are performed in accordance with 49 CFR 
part 24 and this part. If a grantee does not directly own the real 
property interests used for a title 23 project, the grantee must have an 
enforceable subgrant agreement or other agreement with the owner of the 
ROW that permits the grantee to enforce applicable Federal requirements 
affecting the real property interests, including real property 
management requirements under subpart D of this part.
    (b) Adequacy of real property interest. The real property interests 
acquired for any project funded under title 23 must be adequate to 
fulfill the purpose of the project. Except in the case of an Early 
Acquisition Project, this means

[[Page 482]]

adequate for the construction, operation, and maintenance of the 
resulting facility, and for the protection of both the facility and the 
traveling public.
    (c) Establishment and offer of just compensation. The amount 
believed to be just compensation shall be approved by a responsible 
official of the acquiring agency. This shall be done in accordance with 
49 CFR 24.102(d).
    (d) Description of acquisition process. The acquiring agency shall 
provide persons affected by projects or acquisitions advanced under 
title 23 of the United States Code with a written description of its 
real property acquisition process under State law and this part, and of 
the owner's rights, privileges, and obligations. The description shall 
be written in clear, non-technical language and, where appropriate, be 
available in a language other than English in accordance with 49 CFR 
24.5, 24.102(b), and 24.203.



Sec.  710.307  Construction advertising.

    (a) The grantee must manage real property acquired for a project 
until it is required for construction. Except for properties acquired 
under the early acquisition provisions of 23 CFR 710.501(e), clearance 
of improvements can be scheduled during the acquisition phase of the 
project using sale/removal agreements, separate demolition contracts, or 
be included as a work item in the construction contract. The grantee 
shall develop ROW availability statements and certifications related to 
project acquisitions as described in 23 CFR 635.309.
    (b) The FHWA-SDOT Stewardship/Oversight Agreement will specify SDOT 
responsibility for the review and approval of the ROW availability 
statements and certifications in accordance with applicable law. 
Generally, for non-National Highway System projects, the SDOT has full 
responsibility for determining that right-of-way is available for 
construction. For non-SDOT grantees, FHWA will be responsible for the 
review and approval.



Sec.  710.309  Design-build projects.

    (a) In the case of a design-build project, ROW must be acquired and 
cleared in accordance with the Uniform Act and the FHWA-approved ROW 
manual or RAMP, as provided in Sec.  710.201(c) and (d). The grantee 
shall submit a ROW certification in accordance with 23 CFR 635.309(p) 
when requesting FHWA's authorization. The grantee shall ensure that ROW 
is available prior to the start of physical construction on individual 
properties.
    (b) The decision to advance a ROW segment to the construction stage 
shall not impair the safety or in any way be coercive in the context of 
49 CFR 24.102(h) with respect to unacquired or occupied properties on 
the same or adjacent segments of project ROW.
    (c) The grantee may choose not to allow construction to commence 
until all property is acquired and relocations have been completed; or, 
the grantee may permit the construction to be phased or segmented to 
allow ROW activities to be completed on individual properties or a group 
of properties, with ROW certifications done in a manner satisfactory to 
the grantee for each phase or segment.
    (d) If the grantee elects to include ROW services within the design-
builder's scope of work for the design-build contract, the following 
provisions must be addressed in the request for proposals document:
    (1) The design-builder must submit written certification in its 
proposal that it will comply with the process and procedures in the 
FHWA-approved ROW manual or RAMP as provided in Sec.  710.201(c) and 
(d).
    (2) When relocation of displaced persons from their dwellings has 
not been completed, the grantee or design-builder shall establish a hold 
off zone around all occupied properties to ensure compliance with ROW 
procedures prior to starting construction activities in affected areas. 
The limits of this zone should be established by the grantee prior to 
the design-builder entering onto the property. There should be no 
construction-related activity within the hold off zone until the 
property is vacated. The design-builder must have written notification 
of vacancy from the grantee prior to entering the hold off zone.

[[Page 483]]

    (3) Contractors activities must be limited to those that the grantee 
determines do not have a material adverse impact on the quality of life 
of those in occupied properties that have been or will be acquired.
    (4) The grantee will provide a ROW project manager who will serve as 
the first point of contact for all ROW issues.
    (e) If the grantee elects to perform all ROW services relating to 
the design-build contract, the provisions in Sec.  710.307 will apply. 
The grantee will notify potential offerors of the status of all ROW 
issues in the request for proposal document.



                   Subpart D_Real Property Management

    Source: 81 FR 57729, Aug. 23, 2016, unless otherwise noted.



Sec.  710.401  General.

    This subpart describes the grantee's responsibilities to control the 
use of real property acquired for a project in which Federal funds 
participated in any phase of the project. The grantee shall specify in 
its approved ROW manual or RAMP, the procedures for the maintenance, ROW 
use agreements, and disposal of real property interests acquired with 
title 23 funds. The grantee shall ensure that subgrantees, including 
local agencies, follow Federal requirements and approved ROW procedures 
as provided in Sec.  710.201(c) and (d).



Sec.  710.403  Management.

    (a) As provided in Sec.  710.201(h), FHWA and SDOT may use their 
Stewardship/Oversight Agreement to enter into a written agreement 
establishing which approvals the SDOT may make on behalf of FHWA, 
provided FHWA may not assign to the SDOT the decision to allow any ROW 
use agreement or any disposal on or within the approved ROW limits of 
the Interstate, including any change in access control. The assignment 
agreement provisions in Sec.  710.201(h) and this paragraph do not apply 
to non-SDOT grantees.
    (b) The grantee must ensure that all real property interests within 
the approved ROW limits or other project limits of a facility that has 
been funded under title 23 are devoted exclusively to the purposes of 
that facility and the facility is preserved free of all other public or 
private alternative uses, unless such non-highway alternative uses are 
permitted by Federal law (including regulations) or the FHWA. An 
alternative use, whether temporary under Sec.  710.405 or permanent as 
provided in Sec.  710.409, must be in the public interest, consistent 
with the continued operation, maintenance, and safety of the facility, 
and such use must not impair the highway or interfere with the free and 
safe flow of traffic (see also 23 CFR 1.23). Park and Ride lots are 
exempted from the provisions of this part. Park and Ride lots 
requirements are found 23 U.S.C. 137 and 23 CFR 810.106.
    (c) Grantees shall specify procedures in their approved ROW manual 
or RAMP for determining when a real property interest is excess real 
property and may be disposed of in accordance with this part. These 
procedures must provide for coordination among relevant State 
organizational units that may be interested in the proposed use or 
disposal of the real property. Grantees also shall specify procedures in 
their ROW manual or RAMP for determining when a real property interest 
is excess and when a real property interest may be made available under 
a ROW use agreement for an alternative use that satisfies the 
requirements described in paragraph (b) of this section.
    (d) Disposal actions and ROW use agreements, including leasing 
actions, are subject to 23 CFR part 771.
    (e) Current fair market value must be charged for the use or 
disposal of all real property interests if those real property interests 
were obtained with title 23, United States Code, funding except as 
provided in paragraphs (e)(1) through (6) of this section. The term fair 
market value as used for acquisition and disposal purposes is as defined 
by State statute and/or State court decisions. Exceptions to the 
requirement for charging fair market value must be submitted to FHWA in 
writing and may be approved by FHWA in the following situations:
    (1) When the grantee shows that an exception is in the overall 
public interest based on social, environmental, or

[[Page 484]]

economic benefits, or is for a nonproprietary governmental use. The 
grantee's ROW manual or RAMP must include criteria for evaluating 
disposals at less than fair market value, and a method for ensuring the 
public will receive the benefit used to justify the less than fair 
market value disposal.
    (2) Use by public utilities in accordance with 23 CFR part 645.
    (3) Use by railroads in accordance with 23 CFR part 646.
    (4) Use for bikeways and pedestrian walkways in accordance with 23 
CFR part 652.
    (5) Uses under 23 U.S.C. 142(f), Public Transportation. Lands and 
ROWs of a highway constructed using Federal-aid highway funds may be 
made available without charge to a publicly owned mass transit authority 
for public transit purposes whenever the public interest will be served, 
and where this can be accomplished without impairing automotive safety 
or future highway improvements.
    (6) Use for other transportation projects eligible for assistance 
under title 23 of the United States Code, provided that a concession 
agreement, as defined in Sec.  710.703, shall not constitute a 
transportation project exempt from fair market value requirements.
    (f) The Federal share of net income from the use or disposal of real 
property interests obtained with title 23 funds shall be used by the 
grantee for activities eligible for funding under title 23. Where 
project income derived from the use or disposal of real property 
interests is used for subsequent title 23-eligible projects, the funds 
are not considered Federal financial assistance and use of the income 
does not cause title 23 requirements to apply.



Sec.  710.405  ROW use agreements.

    (a) A ROW use agreement for the non-highway use of real property 
interests may be executed with a public entity or private party in 
accordance with Sec.  710.403 and this section. Any non-highway 
alternative use of real property interests requires approval by FHWA, 
including a determination by FHWA that such occupancy, use, or 
reservation is in the public interest; is consistent with the continued 
use, operations, maintenance, and safety of the facility; and such use 
does not impair the highway or interfere with the free and safe flow of 
traffic as described in Sec.  710.403(b). Except for Interstate 
Highways, where the SDOT controls the real property interest, the FHWA 
may assign its determination and approval responsibilities to the SDOT 
in their Stewardship/Oversight Agreement.
    (1) This section applies to highways as defined in 23 U.S.C. 101(a) 
that received title 23, United States Code, financial assistance in any 
way.
    (2) This section does not apply to the following:
    (i) Uses by railroads and public utilities which cross or otherwise 
occupy Federal-aid highway ROW and that are governed by other sections 
of this title;
    (ii) Relocations of railroads or utilities for which reimbursement 
is claimed under 23 CFR part 140, subparts E and H, 23 CFR part 645, or 
23 CFR part 646, subpart B; and
    (iii) Bikeways and pedestrian walkways as covered in 23 CFR part 
652.
    (b) Subject to the requirements in this subpart, ROW use agreements 
for a time-limited occupancy or use of real property interests may be 
approved if the grantee has acquired sufficient legal right, title, and 
interest in the ROW of a federally assisted highway to permit the non-
highway use. A ROW use agreement must contain provisions that address 
the following items:
    (1) Ensure the safety and integrity of the federally assisted 
facility;
    (2) Define the term of the agreement;
    (3) Identify the design and location of the non-highway use;
    (4) Establish terms for revocation of the ROW use agreement and 
removal of improvements at no cost to the FHWA;
    (5) Provide for adequate insurance to hold the grantee and the FHWA 
harmless;
    (6) Require compliance with nondiscrimination requirements;
    (7) Require grantee and FHWA approval, if not assigned to SDOT, and 
SDOT approval if the agreement affects a Federal-aid highway and the 
SDOT is not the grantee, for any significant revision in the design, 
construction, or operation of the non-highway use; and

[[Page 485]]

    (8) Grant access to the non-highway use by the grantee and FHWA, and 
the SDOT if the agreement affects a Federal-aid highway and the SDOT is 
not the grantee, for inspection, maintenance, and for activities needed 
for reconstruction of the highway facility.
    (9) Additional terms and conditions appropriate for inclusion in ROW 
use agreements are described in FHWA guidance at http://
www.fhwa.dot.gov/real_estate/right-of-way/corridor_management/
airspace_guidelines.cfm. The terms and conditions listed in the guidance 
are not mandatory requirements.
    (c) Where a proposed use requires changes in the existing highway, 
such changes shall be provided without cost to Federal funds unless 
otherwise specifically agreed to by the grantee and FHWA.
    (d) Proposed uses of real property interests shall conform to the 
current design standards and safety criteria of FHWA for the functional 
classification of the highway facility in which the property is located.
    (e) An individual, company, organization, or public agency desiring 
to use real property interests shall submit a written request to the 
grantee, together with an application supporting the proposal. If FHWA 
is the approving authority, the grantee shall forward the request, 
application, and the SDOT's recommendation if the proposal affects a 
Federal-aid highway, and the proposed ROW use agreement, together with 
its recommendation and any necessary supplemental information, to FHWA. 
The submission shall affirmatively provide for adherence to all 
requirements contained in this subpart and must include the following 
information:
    (1) Identification of the party responsible for developing and 
operating the proposed use;
    (2) A general statement of the proposed use;
    (3) A description of why the proposed use would be in the public 
interest;
    (4) Information demonstrating the proposed use would not impair the 
highway or interfere with the free and safe flow of traffic;
    (5) The proposed design for the use of the space, including any 
facilities to be constructed;
    (6) Maps, plans, or sketches to adequately demonstrate the 
relationship of the proposed project to the highway facility;
    (7) Provision for vertical and horizontal access for maintenance 
purposes;
    (8) A description of other general provisions such as the term of 
use, insurance requirements, design limitations, safety mandates, 
accessibility, and maintenance as outlined further in this section; and
    (9) An adequately detailed three-dimensional presentation of the 
space to be used and the facility to be constructed if required by FHWA 
or the grantor. Maps and plans may not be required if the available real 
property interest is to be used for leisure activities (such as walking 
or biking), beautification, parking of motor vehicles, public mass 
transit facilities, and similar uses. In such cases, an acceptable metes 
and bounds description of the surface area, and appropriate plans or 
cross sections clearly defining the vertical use limits, may be 
furnished in lieu of a three-dimensional description, at the grantee's 
discretion.



Sec.  710.407  [Reserved]



Sec.  710.409  Disposal of excess real property.

    (a) Excess real property outside or within the approved right-of-way 
limits or other project limits may be sold or conveyed to a public 
entity or to a private party in accordance with Sec.  710.403(a), (c), 
(d), (e), (f) and this section. Approval by FHWA is required for 
disposal of excess real property unless otherwise provided in this 
section or in the FHWA-SDOT Stewardship/Oversight Agreement.
    (b) Federal, State, and local agencies shall be afforded the 
opportunity to acquire excess real property considered for disposal when 
such real property interests have potential use for parks, conservation, 
recreation, or related purposes, and when such a transfer is allowed by 
State law. When this potential exists, the grantee shall notify the 
appropriate agencies of its intentions

[[Page 486]]

to dispose of the real property interests determined to be excess.
    (c) The grantee may decide to retain excess real property to 
restore, preserve, or improve the scenic beauty and environmental 
quality adjacent to the transportation facility.
    (d) Where the transfer of excess real property to other agencies at 
less than fair market value for continued public use is clearly 
justified as in the public interest and approved by FHWA under Sec.  
710.403(e), the deed shall provide for reversion of the property for 
failure to continue public ownership and use. Where property is sold at 
fair market value, no reversion clause is required.
    (e) No FHWA approval is required for disposal of excess real 
property located outside of the approved ROW limits or other project 
limits if Federal funds did not participate in the acquisition cost of 
the real property.
    (f) Highway facilities in which Federal funds participated in either 
the ROW or construction may be relinquished to another governmental 
agency for continued highway use under the provisions of 23 CFR part 
620, subpart B.
    (g) A request for approval of a disposal must demonstrate compliance 
with the requirements of Sec.  710.403(a), (c), (d), (e), (f) and this 
section. An individual, company, organization, or public agency 
requesting a grantee to approve of a disposal of excess real property 
within the approved ROW limits or other project limits, or to approve of 
a disposal of excess real property outside the ROW limits that was 
acquired with title 23 of the United States Code funding, shall submit a 
written request to the grantee, together with an application supporting 
the proposal. If the FHWA is the approving authority, the grantee shall 
forward the request, the SDOT recommendation if the proposal affects a 
Federal-aid highway, the application, and proposed terms and conditions, 
together with its recommendation and any necessary supplemental 
information, to FHWA. The submission shall affirmatively provide for 
adherence to requirements contained in this section and must include the 
information specified in Sec.  710.405(e)(1) through (9).



               Subpart E_Property Acquisition Alternatives

    Source: 81 FR 57729, Aug. 23, 2016, unless otherwise noted.



Sec.  710.501  Early acquisition.

    (a) General. A State agency may initiate acquisition of real 
property interests for a proposed transportation project at any time it 
has the legal authority to do so. The State agency may undertake Early 
Acquisition Projects before the completion of the environmental review 
process for the proposed transportation project for corridor 
preservation, access management, or other purposes. Subject to the 
requirements in this section, State agencies may fund Early Acquisition 
Project costs entirely with State funds with no title 23 participation; 
use State funds initially but seek title 23 credit or reimbursement when 
the acquired property is incorporated into a transportation project 
eligible for Federal surface transportation program funds; or use the 
normal Federal-aid project agreement and reimbursement process to fund 
an Early Acquisition Project pursuant to paragraph (e) of this section. 
The early acquisition of a real property interest under this section 
shall be carried out in compliance with all requirements applicable to 
the acquisition of real property interests for federally assisted 
transportation projects.
    (b) State-funded early acquisition without Federal credit or 
reimbursement. A State agency may carry out early acquisition entirely 
at its expense and later incorporate the acquired real property into a 
transportation project or program for which the State agency receives 
Federal financial assistance or other Federal approval under title 23 
for other transportation project activities. In order to maintain 
eligibility for future Federal assistance on the project, early 
acquisition activities funded entirely without Federal participation 
must comply with the requirements of Sec.  710.501(c)(1) through (5).
    (c) State-funded early acquisition eligible for future credit. 
Subject to Sec.  710.203(b) (direct eligible costs), Sec.  710.505(b), 
and Sec.  710.507 (State and local contributions), Early Acquisition

[[Page 487]]

Project costs incurred by a State agency at its own expense prior to 
completion of the environmental review process for a proposed 
transportation project are eligible for use as a credit toward the non-
Federal share of the total project costs if the project receives surface 
transportation program funds, and if the following conditions are met:
    (1) The property was lawfully obtained by the State agency;
    (2) The property was not land described in 23 U.S.C. 138;
    (3) The property was acquired, and any relocations were carried out, 
in accordance with the provisions of the Uniform Act and regulations in 
49 CFR part 24;
    (4) The State agency complied with the requirements of title VI of 
the Civil Rights Act of 1964 (42 U.S.C. 2000d-2000d-4);
    (5) The State agency determined, and FHWA concurred, the early 
acquisition did not influence the environmental review process for the 
proposed transportation project, including:
    (i) The decision on need to construct the proposed transportation 
project;
    (ii) The consideration of any alternatives for the proposed 
transportation project required by applicable law; and
    (iii) The selection of the design or location for the proposed 
transportation project; and
    (6) The property will be incorporated into the project for which 
surface transportation program funds are received and to which the 
credit will be applied.
    (d) State-funded early acquisition eligible for future 
reimbursement. Early Acquisition Project costs incurred by a State 
agency prior to completion of the environmental review process for the 
transportation project are eligible for reimbursement from title 23 
funds apportioned to the State once the real property interests are 
incorporated into a project eligible for surface transportation program 
funds if the State agency demonstrates, and FHWA concurs, that the terms 
and conditions specified in the requirements of Sec.  710.501(c)(1) 
through (5), and the requirements of Sec.  710.203(b) (direct eligible 
costs) have been met. The State agency must demonstrate that it has met 
the following requirements, as set forth in 23 U.S.C. 108(c)(3):
    (1) Any land acquired, and relocation assistance provided, complied 
with the Uniform Act;
    (2) The requirements of title VI of the Civil Rights Act of 1964 
have been complied with;
    (3) The State has a mandatory comprehensive and coordinated land 
use, environment, and transportation planning process under State law 
and the acquisition is certified by the Governor as consistent with the 
State plans before the acquisition;
    (4) The acquisition is determined in advance by the Governor to be 
consistent with the State transportation planning process pursuant to 23 
U.S.C. 135;
    (5) The alternative for which the real property interest is acquired 
is selected by the State pursuant to regulations issued by the Secretary 
which provide for the consideration of the environmental impacts of 
various alternatives;
    (6) Before the time that the cost incurred by a State is approved 
for Federal participation, environmental compliance pursuant to the 
National Environmental Policy Act has been completed for the project for 
which the real property interest was acquired by the State, and the 
acquisition has been approved by the Secretary under this Act, and in 
compliance with section 303 of title 49, section 7 of the Endangered 
Species Act, and all other applicable environmental laws that shall be 
identified by the Secretary in regulations; and
    (7) Before the time that the cost incurred by a State is approved 
for Federal participation, the Secretary has determined that the 
property acquired in advance of Federal approval or authorization did 
not influence the environmental assessment of the project, the decision 
relative to the need to construct the project, or the selection of the 
project design or location.
    (e) Federally funded early acquisition. The FHWA may authorize the 
use of funds apportioned to a State under title 23 for an Early 
Acquisition Project if the State agency certifies, and FHWA concurs, 
that all of the following conditions have been met:

[[Page 488]]

    (1) The State has authority to acquire the real property interest 
under State law; and
    (2) The acquisition of the real property interest--
    (i) Is for a transportation project or program eligible for funding 
under title 23 that will not require FHWA approval under 23 CFR 774.3;
    (ii) Will not cause any significant adverse environmental impacts 
either as a result of the Early Acquisition Project or from cumulative 
effects of multiple Early Acquisition Projects carried out under this 
section in connection with a proposed transportation project;
    (iii) Will not limit the choice of reasonable alternatives for a 
proposed transportation project or otherwise influence the decision of 
FHWA on any approval required for a proposed transportation project;
    (iv) Will not prevent the lead agency from making an impartial 
decision as to whether to accept an alternative that is being considered 
in the environmental review process for a proposed transportation 
project;
    (v) Is consistent with the State transportation planning process 
under 23 U.S.C. 135;
    (vi) Complies with other applicable Federal laws (including 
regulations);
    (vii) Will be acquired through negotiation, without the threat of, 
or use of, condemnation; and
    (viii) Will not result in a reduction or elimination of benefits or 
assistance to a displaced person required by the Uniform Act and title 
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
    (3) The Early Acquisition Project is included as a project in an 
applicable transportation improvement program under 23 U.S.C. 134 and 
135 and 49 U.S.C. 5303 and 5304.
    (4) The environmental review process for the Early Acquisition 
Project is complete and FHWA has approved the Early Acquisition Project. 
Pursuant to 23 U.S.C. 108(d)(4)(B), the Early Acquisition Project is 
deemed to have independent utility for purposes of the environmental 
review process under NEPA. When the Early Acquisition Project may result 
in a change to the use or character of the real property interest prior 
to the completion of the environmental review process for the proposed 
transportation project, the NEPA evaluation for the Early Acquisition 
Project must consider whether the change has the potential to cause a 
significant environmental impact as defined in 40 CFR 1508.27, including 
a significant adverse impact within the meaning of paragraph (e)(2)(ii) 
of this section. The Early Acquisition Project must comply with all 
applicable environmental laws.
    (f) Prohibited activities. Except as provided in this paragraph, 
real property interests acquired under paragraph (e) of this section and 
pursuant to 23 U.S.C. 108(d) cannot be developed in anticipation of a 
transportation project until all required environmental reviews for the 
transportation project have been completed. For the purpose of this 
paragraph, ``development in anticipation of a transportation project'' 
means any activity related to demolition, site preparation, or 
construction that is not necessary to protect public health or safety. 
With prior FHWA approval, a State agency may carry out limited 
activities necessary for securing real property interests acquired as 
part of an Early Acquisition Project, such as limited clearing and 
demolition activity, if the activities are necessary to protect the 
public health or safety and are considered during the environmental 
review of the Early Acquisition Project.
    (g) Reimbursement. If Federal-aid reimbursement is made for real 
property interests acquired early under this section and the real 
property interests are not subsequently incorporated into a project 
eligible for surface transportation funds within the time allowed by 23 
U.S.C. 108 (a)(2), FHWA must offset the amount reimbursed against funds 
apportioned to the State.
    (h) Relocation assistance eligibility. In the case of an Early 
Acquisition Project, a person is considered to be displaced when 
required to move from the real property as a direct result of a binding 
written agreement for the purchase of the real property interest(s) 
between the acquiring agency and the property owner. Options to purchase 
and similar agreements used for Early

[[Page 489]]

Acquisition Projects that give the acquiring agency a right to prevent 
new development or to decide in the future whether to acquire the real 
property interest(s), but do not create an immediate commitment by the 
acquiring agency to acquire and do not require an owner or tenant to 
relocate, do not create relocation eligibility until the acquiring 
agency legally commits itself to acquiring the real property 
interest(s).



Sec.  710.503  Protective buying and hardship acquisition.

    (a) General conditions. Prior to final environmental approval of a 
transportation project, the grantee may request FHWA agreement to 
provide reimbursement for advance acquisition of a particular parcel or 
a limited number of parcels, to prevent imminent development and 
increased costs on the preferred location (Protective Buying), or to 
alleviate hardship to a property owner or owners on the preferred 
location (Hardship Acquisition), provided the following conditions are 
met:
    (1) The transportation project is included in the currently approved 
STIP;
    (2) The grantee has complied with applicable public involvement 
requirements in 23 CFR parts 450 and 771;
    (3) A determination has been completed for any property interest 
subject to the provisions of 23 U.S.C. 138; and
    (4) Procedures of the Advisory Council on Historic Preservation are 
completed for properties subject to (54 U.S.C. 306108), (historic 
properties).
    (b) Protective buying. The grantee must clearly demonstrate that 
development of the property is imminent and such development would limit 
future transportation choices. A significant increase in cost may be 
considered as an element justifying a protective purchase.
    (c) Hardship acquisitions. The grantee must accept and concur in an 
owner's request for a hardship acquisition based on a property owner's 
written submission that--
    (1) Supports the hardship acquisition by providing justification, on 
the basis of health, safety or financial reasons, that remaining in the 
property poses an undue hardship compared to other property owners; and
    (2) Documents an inability to sell the property because of the 
impending project, at fair market value, within a time period that is 
typical for properties not impacted by the impending project.
    (d) Environmental decisions. Acquisition of property under this 
section is subject to environmental review under part 771 of this 
chapter. Acquisitions under this section shall not influence the 
environmental review of a transportation project which would use the 
property, including decisions about the need to construct the 
transportation project or the selection of an alternative.



Sec.  710.505  Real property donations.

    (a) Donations of property being acquired. A non-governmental owner 
whose real property is required for a title 23 project may donate the 
property. Donations may be made at any time during the development of a 
project subject to applicable State laws. Prior to accepting the 
property, the owner must be informed in writing by the acquiring agency 
of his/her right to receive just compensation for the property, the 
right to an appraisal or waiver valuation of the real property, and of 
all other applicable financial and non-financial assistance provided 
under 49 CFR part 24 and applicable State law. All donations of property 
received prior to the approval of the NEPA document for the project must 
meet the requirements specified in 23 U.S.C. 323(d).
    (b) Credit for donations. Donations of real property may be credited 
to the State's matching share of the project in accordance with 23 
U.S.C. 323. As required by 23 U.S.C. 323(b)(2), credit to the State's 
matching share for donated property shall be based on fair market value 
established on the earlier of the following: Either the date on which 
the donation becomes effective, or the date on which equitable title to 
the property vests in the State. The fair market value shall not include 
increases or decreases in value caused by the project. The grantee shall 
ensure sufficient documentation is developed to indicate compliance with 
paragraph (a) of this section and with the provisions of 23 U.S.C. 323, 
and to support the

[[Page 490]]

amount of credit applied. The total credit cannot exceed the State's 
pro-rata share under the project agreement to which it is applied.
    (c) Donations and conveyances in exchange for construction features 
or services. A property owner may donate property in exchange for 
construction features or services. The value of the donation is limited 
to the fair market value of property donated less the cost of the 
construction features or services. If the value of the donated property 
exceeds the cost of the construction features or services, the 
difference may be eligible for a credit to the State's share of project 
costs.



Sec.  710.507  State and local contributions.

    (a) Credit for State and local government contributions. If the 
requirements of 23 U.S.C. 323 are met, real property owned by State and 
local governments that is incorporated within a project receiving 
financial assistance from the Highway Trust Fund can be used as a credit 
toward the grantee or subgrantee's matching share of total project cost. 
A credit cannot exceed the grantee or subgrantee's matching share 
required by the project agreement. The grantee must ensure there is 
documentation supporting all credits, including the following:
    (1) A certification that the State or local government acquisition 
satisfied the conditions in 23 CFR 710.501(c)(1) through (6); and
    (2) Justification of the value of credit applied. Acquisition costs 
incurred by the State or local government to acquire title can be used 
as justification for the value of the real property.
    (b) Exemptions. Credits are not available for real property acquired 
with any form of Federal financial assistance except as provided in 23 
U.S.C. 120(j), or for real property already incorporated into existing 
ROW and used for transportation purposes.
    (c) Contributions without credit. Property may be presented for 
project use with the understanding that no credit for its use is sought. 
In such case, the grantee shall assure that the acquisition satisfied 
the conditions in 23 CFR 710.501(c)(1) through (6).



Sec.  710.509  Functional replacement of real property in public ownership.

    (a) General. When publicly owned real property, including land and/
or facilities, is to be acquired for a project receiving grant funds 
under title 23, in lieu of paying the fair market value for the real 
property, the acquiring agency may provide compensation by functionally 
replacing the publicly owned real property with another facility that 
will provide equivalent utility.
    (b) Federal participation. Federal-aid funds may participate in 
functional replacement costs only if the following conditions are met:
    (1) Functional replacement is permitted under State law and the 
acquiring agency elects to provide it;
    (2) The property in question is in public ownership and use;
    (3) The replacement facility will be in public ownership and will 
continue the public use function of the acquired facility;
    (4) The acquiring agency has informed, in writing, the public entity 
owning the property of its right to an estimate of just compensation 
based on an appraisal of fair market value and of the option to choose 
either just compensation or functional replacement;
    (5) The FHWA concurs in the acquiring agency determination that 
functional replacement is in the public interest; and
    (6) The real property is not owned by a utility or railroad.
    (c) Federal land transfers. Use of this section for functional 
replacement of real property in Federal ownership shall be in accordance 
with Federal land transfer provisions in subpart F of this part.
    (d) Limits upon participation. Federal-aid participation in the 
costs of functional replacement is limited to costs that are actually 
incurred in the replacement of the acquired land and/or facility and 
are--
    (1) Costs for facilities that do not represent increases in capacity 
or betterments, except for those necessary to replace utilities, to meet 
legal, regulatory, or similar requirements, or to meet reasonable 
prevailing standards; and
    (2) Costs for land to provide a site for the replacement facility.

[[Page 491]]

    (e) Procedures. When a grantee determines that payments providing 
for functional replacement of public facilities are allowable under 
State law, the grantee will incorporate within its approved ROW manual, 
or approved RAMP, full procedures covering review and oversight that 
will be applied to such cases.



Sec.  710.511  Transportation Alternatives.

    (a) General. 23 U.S.C. 133(h) sets aside an amount from each State's 
Surface Transportation Block Grant apportionment for Transportation 
Alternatives (TA). The TA projects that involve the acquisition, 
management, and disposition of real property, and the relocation of 
families, individuals, and businesses, are governed by the general 
requirements of the Federal-aid program found in titles 23 and 49 of the 
CFR, except as specified in paragraph (b)(2) of this section.
    (b) Requirements. (1) Acquisition and relocation activities for TA 
projects are subject to the Uniform Act.
    (2) When a person or agency acquires real property for a project 
receiving title 23 grant funds on behalf of an acquiring agency with 
eminent domain authority, the requirements of the Uniform Act apply as 
if the acquiring agency had acquired the property itself.
    (3) When, subsequent to Federal approval of property acquisition, a 
person or agency acquires real property for a project receiving title 23 
grant funds, and there will be no use or recourse to the power of 
eminent domain, the limited requirements of 49 CFR 24.101(b)(2) apply.
    (c) Property management and disposal of property acquired for TA 
projects. Subpart D of this part applies to the management and disposal 
of real property interests acquired with TA funds, including alternate 
uses authorized under ROW use agreements. A TA project involving 
acquisition of any real property interest must have a real property 
agreement between FHWA and the grantee that identifies the expected 
useful life of the TA project and establishes a pro rata formula for 
repayment of TAP funding by the grantee if--
    (1) The acquired real property interest is used in whole or in part 
for purposes other than the TA project purposes for which it was 
acquired; or
    (2) The actual TA project life is less than the expected useful life 
specified in the real property agreement.



                  Subpart F_Federal Assistance Programs

    Source: 81 FR 57729, Aug. 23, 2016, unless otherwise noted.



Sec.  710.601  Federal land transfers.

    (a) The provisions of this subpart apply to any project constructed 
on a Federal-aid highway or under Chapter 2 of title 23, of the United 
States Code. When the FHWA determines that a strong Federal 
transportation interest exists, these provisions may also be applied to 
highway projects that are eligible for Federal funding under Chapters 1 
and 2 of title 23, of the United States Code, and to highway-related 
transfers that are requested by a State in conjunction with a military 
base closure under the Defense Base Closure and Realignment Act of 1990 
(Pub. L. 101-510, 104 Stat. 1808, as amended).
    (b) Under certain conditions, real property interests owned by the 
United States may be transferred to a non-Federal owner for use for 
highway purposes. Sections 107(d) and 317 of title 23, United States 
Code, establish the circumstances under which such transfers may occur, 
and the parties eligible to receive such transfers (SDOTs and their 
nominees).
    (c) An eligible party may file an application with FHWA, or can make 
application directly to the Federal land management agency if the 
Federal land management agency has its own authority for granting 
interests in land.
    (d) Applications under this section shall include the following 
information:
    (1) The purpose for which the lands are to be used;
    (2) The estate or interest in the land required for the project;
    (3) The Federal project number or other appropriate references;
    (4) The name of the Federal agency exercising jurisdiction over the 
land

[[Page 492]]

and identity of the installation or activity in possession of the land;
    (5) A map showing the survey of the lands to be acquired;
    (6) A legal description of the lands desired; and
    (7) A statement of compliance with the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321, et seq.) and any other applicable Federal 
environmental laws, including the National Historic Preservation Act (54 
U.S.C. 306108), and 23 U.S.C. 138.
    (e) If the FHWA concurs in the need for the transfer, the Federal 
land management agency will be notified and a right-of-entry requested. 
For projects not on the Interstate System, the Federal land management 
agency shall have a period of 4 months in which to designate conditions 
necessary for the adequate protection and utilization of the reserve or 
to certify that the proposed appropriation is contrary to the public 
interest or inconsistent with the purposes for which such land or 
materials have been reserved. The FHWA may extend the reply period at 
the timely request of the Federal land management agency for good cause.
    (f) The FHWA may participate in the payment of fair market value or 
the functional replacement of impacted facilities under 710.509 and the 
reimbursement of the ordinary and reasonable direct costs of the Federal 
land management agency for the transfer when reimbursement is required 
by the Federal land management agency's governing laws as a condition of 
the transfer.
    (g) Deeds for conveyance of real property interests owned by the 
United States shall be prepared by the eligible party and must be 
certified as being legally sufficient by an attorney licensed within the 
State where the real property is located. Such deeds shall contain the 
clauses required by FHWA and 49 CFR 21.7(a)(2). After the eligible party 
prepares the deed, it will submit the proposed deed with the 
certification to FHWA for review and execution.
    (h) Following execution by FHWA, the eligible party shall record the 
deed in the appropriate land record office and so advise FHWA and the 
affected Federal land management agency.
    (i) When the need for the interest acquired under this subpart no 
longer exists, the party that received the real property must restore 
the land to the condition which existed prior to the transfer, or to a 
condition that is acceptable to the Federal land management agency to 
which such property would revert, and must give notice to FHWA and to 
the affected Federal land management agency that such interest will 
immediately revert to the control of the Federal land management agency 
from which it was appropriated or to its assigns. Where authorized by 
Federal law, the Federal land management agency and such party may enter 
into a separate agreement to release the reversion clause and make 
alternative arrangements for the sale, restoration, or other disposition 
of the lands no longer needed.



Sec.  710.603  Direct Federal acquisition.

    (a) The provisions of this paragraph may be applied to any real 
property that is not owned by the United States and is needed in 
connection with a project for the construction, reconstruction, or 
improvement of any section of the Interstate System or for a Defense 
Access Road project under 23 U.S.C. 210, if the SDOT is unable to 
acquire the required ROW or is unable to obtain possession with 
sufficient promptness. If the landowner tenders a right-of-entry or 
other right of possession document required by State law any time before 
FHWA makes a determination that the SDOT is unable to acquire the ROW 
with sufficient promptness, the SDOT is legally obligated to accept such 
tender and FHWA may not proceed with Federal acquisition. To enable FHWA 
to make the necessary findings and to proceed with the acquisition of 
the ROW, the SDOT's written application for Federal acquisition must 
include the following:
    (1) Justification for the Federal acquisition of the lands or 
interests in lands;
    (2) The date FHWA authorized the SDOT to commence ROW acquisition, 
the date of the project agreement, and a statement that the agreement 
contains the provisions required by 23 U.S.C. 111;

[[Page 493]]

    (3) The necessity for acquisition of the particular lands under 
request;
    (4) A statement of the specific interests in lands to be acquired, 
including the proposed treatment of control of access;
    (5) The SDOT's intentions with respect to the acquisition, 
subordination, or exclusion of outstanding interests, such as minerals 
and utility easements, in connection with the proposed acquisition;
    (6) A statement on compliance with the provisions of parts 771 and 
774 of this chapter, as applicable;
    (7) Adequate legal descriptions, plats, appraisals, and title data;
    (8) An outline of the negotiations that have been conducted with 
landowners;
    (9) An agreement that the SDOT will pay its pro rata share of costs 
incurred in the acquisition of, or the attempt to acquire, ROW; and
    (10) A statement that assures compliance with the applicable 
provisions of the Uniform Act.
    (b) Except as provided in paragraph (a) of this section, direct 
Federal acquisitions from non-Federal owners for projects administered 
by the FHWA Office of Federal Lands Highway may be carried out in 
accordance with applicable Federal condemnation laws. The FHWA will 
proceed with such a direct Federal acquisition only when the public 
agency responsible for the road is unable to obtain the ROW necessary 
for the project. The public agency must make a written request to FHWA 
for the acquisition and, if the public agency is a Federal agency, the 
request shall include a commitment that any real property obtained will 
be under that agency's sole jurisdiction and control and FHWA will have 
no jurisdiction or control over the real property as a result of the 
acquisition. The FHWA may require the applicant to provide any 
information FHWA needs to make the required determinations or to carry 
out the acquisition.
    (c) If the applicant for direct Federal acquisition obtains title to 
a parcel prior to the filing of the Declaration of Taking, it shall 
notify FHWA and immediately furnish the appropriate U.S. Attorney with a 
disclaimer together with a request that the action against the landowner 
be dismissed (ex parte) from the proceeding and the estimated just 
compensation deposited into the registry of the court for the affected 
parcel be withdrawn after the appropriate motions are approved by the 
court.
    (d) When the United States obtains a court order granting possession 
of the real property, FHWA shall authorize the applicant for direct 
Federal acquisition to immediately take over supervision of the 
property. The authorization shall include, but need not be limited to, 
the following:
    (1) The right to take possession of unoccupied properties;
    (2) The right to give 90 days notice to owners to vacate occupied 
properties and the right to take possession of such properties when 
vacated;
    (3) The right to permit continued occupancy of a property until it 
is required for construction and, in those instances where such 
occupancy is to be for a substantial period of time, the right to enter 
into rental agreements, as appropriate, to protect the public interest;
    (4) The right to request assistance from the U.S. Attorney in 
obtaining physical possession where an owner declines to comply with the 
court order of possession;
    (5) The right to clear improvements and other obstructions;
    (6) Instructions that the U.S. Attorney be notified prior to actual 
clearing, so as to afford him an opportunity to view the lands and 
improvements, to obtain appropriate photographs, and to secure 
appraisals in connection with the preparation of the case for trial;
    (7) The requirement for appropriate credits to the United States for 
any net salvage or net rentals obtained by the applicant for direct 
Federal acquisition, as in the case of ROW acquired by an SDOT for 
Federal-aid projects; and
    (8) Instructions that the authority granted to the applicant for 
direct Federal acquisition is not intended to preclude the U.S. Attorney 
from taking action, before the applicant has made arrangements for 
removal, to reach a settlement with the former owner which would include 
provision for removal.

[[Page 494]]

    (e) If the Federal Government initiates condemnation proceedings 
against the owner of real property in a Federal court and the final 
judgment is that FHWA cannot acquire the real property by condemnation, 
or the proceeding is abandoned, the court is required by law to award 
such a sum to the owner of the real property that in the opinion of the 
court provides reimbursement for the owner's reasonable costs, 
disbursements, and expenses, including reasonable attorney, appraisal, 
and engineering fees, actually incurred because of the condemnation 
proceedings.
    (f) As soon as practicable after the date of payment of the purchase 
price or the date of deposit in court of funds to satisfy the award of 
the compensation in a Federal condemnation, FHWA shall reimburse the 
owner to the extent deemed fair and reasonable, the following costs:
    (1) Recording fees, transfer taxes, and similar expenses incidental 
to conveying such real property to the United States;
    (2) Penalty costs for prepayment of any preexisting recorded 
mortgage entered into in good faith encumbering such real property; and
    (3) The pro rata portion of real property taxes paid which are 
allocable to a period subsequent to the date of vesting title in the 
United States or the effective date of possession, whichever is the 
earlier.
    (g) The lands or interests in lands, acquired under this section, 
will be conveyed to the State or the appropriate political subdivision 
thereof, upon agreement by the SDOT, or said subdivision to:
    (1) Maintain control of access where applicable;
    (2) Accept title thereto;
    (3) Maintain the project constructed thereon;
    (4) Abide by any conditions which may set forth in the deed; and
    (5) Notify the FHWA at the appropriate time that all the conditions 
have been performed.
    (h) The deed from the United States to the State, or to the 
appropriate political subdivision thereof, or in the case of a Federal 
applicant for a direct Federal acquisition any document designating 
jurisdiction, shall include the conditions required by 49 CFR part 21 
and shall not include any grant of jurisdiction to FHWA. The deed shall 
be recorded by the grantee in the appropriate land record office, and 
the FHWA shall be advised of the recording date.

[81 FR 57729, Aug. 23, 2016, as amended at 83 FR 21710, May 10, 2018]



                     Subpart G_Concession Agreements

    Authority: 23 U.S.C. 156 and 315; 23 CFR 1.32; 49 CFR 1.48.

    Source: 73 FR 77503, Dec. 19, 2008, unless otherwise noted.



Sec.  710.701  Purpose.

    The purpose of this subpart is to prescribe the standards that 
ensure fair market value is received by a highway agency under 
concession agreements involving federally funded highways.



Sec.  710.703  Definitions.

    As used in this subpart:
    (a) Best value means the proposal offering the most overall public 
benefits as determined through an evaluation of the amount of the 
concession payment and other appropriate considerations. Such other 
appropriate considerations may include, but are not limited to, 
qualifications and experience of the concessionaire, expected quality of 
services to be provided, the history or track record of the 
concessionaire in providing the services, timelines for the delivery of 
services, performance standards, complexity of the services to be 
rendered, and revenue sharing. Such appropriate considerations may also 
include, but are not limited to, policy considerations that are 
important, but not quantifiable, such as retaining the ability to amend 
the concession agreement if conditions change, having a desired level of 
oversight over the facility, ensuring a certain level of maintenance and 
operations for the facility, considerations relative to the structure 
and amount of the toll rates, economic development impacts and 
considerations, or social and environmental benefits and impacts.

[[Page 495]]

    (b) Concession agreement means an agreement between a highway agency 
and a concessionaire under which the concessionaire is given the right 
to operate and collect revenues or fees for the use of a federally 
funded highway in return for compensation to be paid to the highway 
agency. A concession agreement may include, but not be limited to, 
obligations concerning the development, design, construction, 
maintenance, operation, level of service, and/or capital improvements to 
a facility over the term of the agreement. Concession agreement shall 
not include agreements between government entities, even when 
compensation is paid, where the primary purpose of the transaction is 
not commercial in nature but for the purpose of determining governmental 
ownership, control, jurisdiction, or responsibilities with respect to 
the operation of a federally funded highway. The highway agency's 
determination as to whether an agreement between government entities 
constitutes a concession agreement shall be controlling.
    (c) Concessionaire means any private or public entity that enters 
into a concession agreement with a highway agency.
    (d) Fair market value means the price at which a highway agency and 
concessionaire are ready and willing to enter into a concession 
agreement for a federally funded highway on, or as if in, the open 
market for a reasonable period of time and in an arm's length 
transaction to any willing, knowledgeable, and able buyer. For purposes 
of this subpart, a concession agreement based on best value shall be 
deemed fair market value.
    (e) Federally funded highway means any highway (including highways, 
bridges, and tunnels) acquired with Federal assistance made available 
from the Highway Trust Fund (other than the Mass Transit Account). A 
highway shall be deemed to be acquired with Federal assistance if 
Federal assistance participated in either the purchase of any real 
property, or in any capital expenditures in any fixtures located on real 
property, within the right-of-way, including the highway and any 
structures located upon the property.
    (f) Highway agency in this subpart means any SDOT or other public 
authority with jurisdiction over a federally funded highway.

[73 FR 77503, Dec. 19, 2008, as amended at 81 FR 57741, Aug. 23, 2016]



Sec.  710.705  Applicability.

    This subpart applies to all concession agreements involving 
federally funded highways that are executed after January 18, 2009.



Sec.  710.707  Fair market value.

    A highway agency shall receive fair market value for any concession 
agreement involving a federally funded highway.



Sec.  710.709  Determination of fair market value.

    (a) Fair market value may be determined either on a best value 
basis, highest net present value of the payments to be received over the 
life of the agreement, or highest bid received, as may be specified by 
the highway agency in the request for proposals or other relevant 
solicitation. If best value is used, the highway agency should identify, 
in the relevant solicitation, the criteria to be used as well as the 
weight afforded to the criteria.
    (b) In order to be considered fair market value, the terms of the 
concession agreement must be both legally binding and enforceable.
    (c) Any concession agreement awarded pursuant to a competitive 
process with more than one bidder shall be deemed to be fair market 
value. Any concession agreement awarded pursuant to a competitive 
process with only one bidder shall be presumed to be fair market value. 
Such presumption may be overcome only if the highway agency determines 
the proposal to not be fair market value based on the highway agency's 
estimates. Nothing in this subpart shall be construed to require a 
highway agency to accept any proposal, even if the proposal is deemed 
fair market value. For purposes of this subsection, a competitive 
process shall afford all interested proposers an equal opportunity to 
submit a proposal for the concession agreement and shall comply with 
applicable State and local law.

[[Page 496]]

    (d) If a concession agreement is not awarded pursuant to a 
competitive process, the highway agency must receive fair market value, 
as determined by the highway agency in accordance with State law, so 
long as an independent third party assessment is conducted and made 
publicly available.
    (e) Nothing in this subpart is intended to waive the requirements of 
part 172, part 635, and part 636 whenever any Federal-aid (including 
TIFIA assistance) is to be used for a project under the concession 
agreement.



PART 750_HIGHWAY BEAUTIFICATION--Table of Contents



    Subpart A_National Standards for Regulation by States of Outdoor 
   Advertising Adjacent to the Interstate System Under the 1958 Bonus 
                                 Program

Sec.
750.101 Purpose.
750.102 Definitions.
750.103 Measurements of distance.
750.104 Signs that may not be permitted in protected areas.
750.105 Signs that may be permitted in protected areas.
750.106 Class 3 and 4 signs within informational sites.
750.107 Class 3 and 4 signs outside informational sites.
750.108 General provisions.
750.109 Exclusions.
750.110 State regulations.

     Subpart B_National Standards for Directional and Official Signs

750.151 Purpose.
750.152 Application.
750.153 Definitions.
750.154 Standards for directional signs.
750.155 State standards.

Subpart C [Reserved]

 Subpart D_Outdoor Advertising (Acquisition of Rights of Sign and Sign 
                              Site Owners)

750.301 Purpose.
750.302 Policy.
750.303 Definitions.
750.304 State policies and procedures.
750.305 Federal participation.
750.306 Documentation for Federal participation.
750.307 FHWA project approval.
750.308 Reports.

          Subpart E_Signs Exempt From Removal in Defined Areas

750.501 Purpose.
750.502 Applicability.
750.503 Exemptions.

Subpart F [Reserved]

                  Subpart G_Outdoor Advertising Control

750.701 Purpose.
750.702 Applicability.
750.703 Definitions.
750.704 Statutory requirements.
750.705 Effective control.
750.706 Sign control in zoned and unzoned commercial and industrial 
          areas.
750.707 Nonconforming signs.
750.708 Acceptance of state zoning.
750.709 On-property or on-premise advertising.
750.710 Landmark signs.
750.711 Structures which have never displayed advertising material.
750.712 Reclassification of signs.
750.713 Bonus provisions.

    Source: 38 FR 16044, June 20, 1973, unless otherwise noted.



    Subpart A_National Standards for Regulation by States of Outdoor 
   Advertising Adjacent to the Interstate System Under the 1958 Bonus 
                                 Program

    Authority: Sec. 12, Pub. L. 85-381, 72 Stat. 95, as amended; 23 
U.S.C. 131; delegation of authority in 49 CFR 1.48(b).



Sec.  750.101  Purpose.

    (a) In section 12 of the Federal-Aid Highway Act of 1958, Pub. L. 
85-381, 72 Stat. 95, hereinafter called the act, the Congress declared 
that:
    (1) To promote the safety, convenience, and enjoyment of public 
travel and the free flow of interstate commerce and to protect the 
public investment in the National System of Interstate and Defense 
Highways, hereinafter called the Interstate System, it is in the public 
interest to encourage and assist the States to control the use of and to 
improve areas adjacent to such system by controlling the erection and 
maintenance of outdoor advertising signs, displays, and devices adjacent 
to that system.
    (2) It is a national policy that the erection and maintenance of 
outdoor advertising signs, displays, or devices

[[Page 497]]

within 660 feet of the edge of the right-of-way and visible from the 
main-traveled way of all portions of the Interstate System constructed 
upon any part of right-of-way, the entire width of which is acquired 
subsequent to July 1, 1956, should be regulated, consistent with 
national standards to be prepared and promulgated by the Secretary of 
Transportation.
    (b) The standards in this part are hereby promulgated as provided in 
the act.

[38 FR 16044, June 20, 1973, as amended at 39 FR 28629, Aug. 9, 1974]



Sec.  750.102  Definitions.

    The following terms when used in the standards in this part have the 
following meanings:
    (a) Acquired for right-of-way means acquired for right-of-way for 
any public road by the Federal Government, a State, or a county, city, 
or other political subdivision of a State, by donation, dedication, 
purchase, condemnation, use, or otherwise. The date of acquisition shall 
be the date upon which title (whether fee title or a lesser interest) 
vested in the public for right-of-way purposes under applicable Federal 
or State law.
    (b) Centerline of the highway means a line equidistant from the 
edges of the median separating the main-traveled ways of a divided 
Interstate Highway, or the centerline of the main-traveled way of a 
nondivided Interstate Highway.
    (c) Controlled portion of the Interstate System means any portion 
which:
    (1) Is constructed upon any part of right-of-way, the entire width 
of which is acquired for right-of-way subsequent to July 1, 1956 (a 
portion shall be deemed so constructed if, within such portion, no line 
normal or perpendicular to the centerline of the highway and extending 
to both edges of the right-of-way will intersect any right-of-way 
acquired for right-of-way on or before July 1, 1956);
    (2) Lies within a State, the highway department of which has entered 
into an agreement with the Secretary of Transportation as provided in 
the act; and
    (3) Is not excluded under the terms of the act which provide that 
agreements entered into between the Secretary of Transportation and the 
State highway department shall not apply to those segments of the 
Interstate System which traverse commercial or industrial zones within 
the boundaries of incorporated municipalities, as such boundaries 
existed on September 21, 1959, wherein the use of real property adjacent 
to the Interstate System is subject to municipal regulation or control, 
or which traverse other areas where the land use as of September 21, 
1959, was clearly established by State law as industrial or commercial.
    (d) Entrance roadway means any public road or turning roadway, 
including acceleration lanes, by which traffic may enter the main-
traveled way of an Interstate Highway from the general road system 
within a State, irrespective of whether traffic may also leave the main-
traveled way by such road or turning roadway.
    (e) Erect means to construct, build, raise, assemble, place, affix, 
attach, create, paint, draw, or in any other way bring into being or 
establish.
    (f) Exit roadway means any public road or turning roadway including 
deceleration lanes, by which traffic may leave the main-traveled way of 
an Interstate Highway to reach the general road system within a State, 
irrespective of whether traffic may also enter the main-traveled way by 
such road or turning roadway.
    (g) Informational site means an area or site established and 
maintained within or adjacent to the right-of-way of a highway on the 
Interstate System by or under the supervision or control of a State 
highway department, wherein panels for the display of advertising and 
informational signs may be erected and maintained.
    (h) Legible means capable of being read without visual aid by a 
person of normal visual acuity.
    (i) Maintain means to allow to exist.
    (j) Main-traveled way means the traveled way of an Interstate 
Highway on which through traffic is carried. In the case of a divided 
highway, the traveled way of each of the separated roadways for traffic 
in opposite directions is a main-traveled way. It does not include such 
facilities as frontage roads, turning roadways, or parking areas.

[[Page 498]]

    (k) Protected areas means all areas inside the boundaries of a State 
which are adjacent to and within 660 feet of the edge of the right-of-
way of all controlled portions of the Interstate System within that 
State. Where a controlled portion of the Interstate System terminates at 
a State boundary which is not perpendicular or normal to the centerline 
of the highway, protected areas also means all areas inside the boundary 
of such State which are within 660 feet of the edge of the right-of-way 
of the Interstate Highway in the adjoining State.
    (l) Scenic area means any public park or area of particular scenic 
beauty or historical significance designated by or pursuant to State law 
as a scenic area.
    (m) Sign means any outdoor sign, display, device, figure, painting, 
drawing, message, placard, poster, billboard, or other thing which is 
designed, intended, or used to advertise or inform, any part of the 
advertising or informative contents of which is visible from any place 
on the main-traveled way of a controlled portion of the Interstate 
System.
    (n) State means the District of Columbia and any State of the United 
States within the boundaries of which a portion of the Interstate System 
is located.
    (o) State law means a State constitutional provision or statute, or 
an ordinance, rule, or regulation enacted or adopted by a State agency 
or political subdivision of a State pursuant to State constitution or 
statute.
    (p) Trade name shall include brand name, trademark, distinctive 
symbol, or other similar device or thing used to identify particular 
products or services.
    (q) Traveled way means the portion of a roadway for the movement of 
vehicles, exclusive of shoulders.
    (r) Turning roadway means a connecting roadway for traffic turning 
between two intersection legs of an interchange.
    (s) Visible means capable of being seen (whether or not legible) 
without visual aid by a person of normal visual acuity.



Sec.  750.103  Measurements of distance.

    (a) Distance from the edge of a right-of-way shall be measured 
horizontally along a line normal or perpendicular to the centerline of 
the highway.
    (b) All distances under Sec.  750.107 (a)(2) and (b) shall be 
measured along the centerline of the highway between two vertical planes 
which are normal or perpendicular to and intersect the centerline of the 
highway, and which pass through the termini of the measured distance.

[38 FR 16044, June 20, 1973, as amended at 41 FR 9321, Mar. 4, 1976]



Sec.  750.104  Signs that may not be permitted in protected areas.

    Erection or maintenance of the following signs may not be permitted 
in protected areas:
    (a) Signs advertising activities that are illegal under State or 
Federal laws or regulations in effect at the location of such signs or 
at the location of such activities.
    (b) Obsolete signs.
    (c) Signs that are not clean and in good repair.
    (d) Signs that are not securely affixed to a substantial structure, 
and
    (e) Signs that are not consistent with the standards in this part.



Sec.  750.105  Signs that may be permitted in protected areas.

    (a) Erection or maintenance of the following signs may be permitted 
in protected areas:

    Class 1--Official signs. Directional or other official signs or 
notices erected and maintained by public officers or agencies pursuant 
to and in accordance with direction or authorization contained in State 
of Federal law, for the purpose of carrying out an official duty or 
responsibility.
    Class 2--On-premise signs. Signs not prohibited by State law which 
are consistent with the applicable provisions of this section and Sec.  
750.108 and which advertise the sale or lease of, or activities being 
conducted upon, the real property where the signs are located.
    Not more than one such sign advertising the sale or lease of the 
same property may be permitted under this class in such manner as to be 
visible to traffic proceeding in any one direction on any one Interstate 
Highway.
    Not more than one such sign, visible to traffic proceeding in any 
one direction on any one Interstate Highway and advertising

[[Page 499]]

activities being conducted upon the real property where the sign is 
located, may be permitted under this class more than 50 feet from the 
advertised activity.
    Class 3--Signs within 12 miles of advertised activities. Signs not 
prohibited by State law which are consistent with the applicable 
provisions of this section and Sec. Sec.  750.106, 750.107, and 750.108 
and which advertise activities being conducted within 12 air miles of 
such signs.
    Class 4--Signs in the specific interest of the traveling public. 
Signs authorized to be erected or maintained by State law which are 
consistent with the applicable provisions of this section and Sec. Sec.  
750.106, 750.107, and 750.108 and which are designed to give information 
in the specific interest of the traveling public.

    (b) A Class 2 or 3 sign, except a Class 2 sign not more than 50 feet 
from the advertised activity, that displays any trade name which refers 
to or identifies any service rendered or product sold, used, or 
otherwise handled more than 12 air miles from such sign may not be 
permitted unless the name of the advertised activity which is within 12 
air miles of such sign is displayed as conspicuously as such trade name.
    (c) Only information about public places operated by Federal, State, 
or local governments, natural phenomena, historic sites, areas of 
natural scenic beauty or naturally suited for outdoor recreation and 
places for camping, lodging, eating, and vehicle service and repair is 
deemed to be in the specific interest of the traveling public. For the 
purposes of the standards in this part, a trade name is deemed to be 
information in the specific interest of the traveling public only if it 
identifies or characterizes such a place or identifies vehicle service, 
equipment, parts, accessories, fuels, oils, or lubricants being offered 
for sale at such a place. Signs displaying any other trade name may not 
be permitted under Class 4.
    (d) Notwithstanding the provisions of paragraph (b) of this section, 
Class 2 or Class 3 signs which also qualify as Class 4 signs may display 
trade names in accordance with the provisions of paragraph (c) of this 
section.



Sec.  750.106  Class 3 and 4 signs within informational sites.

    (a) Informational sites for the erection and maintenance of Class 3 
and 4 advertising and informational signs may be established in 
accordance with Sec.  1.35 of this chapter. The location and frequency 
of such sites shall be as determined by agreements between the Secretary 
of Transportation and the State highway departments.
    (b) Class 3 and 4 signs may be permitted within such informational 
sites in protected areas in a manner consistent with the following 
provisions:
    (1) No sign may be permitted which is not placed upon a panel.
    (2) No panel may be permitted to exceed 13 feet in height or 25 feet 
in length, including border and trim, but excluding supports.
    (3) No sign may be permitted to exceed 12 square feet in area, and 
nothing on such sign may be permitted to be legible from any place on 
the main-traveled way or a turning roadway.
    (4) Not more than one sign concerning a single activity or place may 
be permitted within any one informational site.
    (5) Signs concerning a single activity or place may be permitted 
within more than one informational site, but no Class 3 sign which does 
not also qualify as a Class 4 sign may be permitted within any 
informational site more than 12 air miles from the advertised activity.
    (6) No sign may be permitted which moves or has any animated or 
moving parts.
    (7) Illumination of panels by other than white lights may not be 
permitted, and no sign placed on any panel may be permitted to contain, 
include, or be illuminated by any other lights, or any flashing, 
intermittent, or moving lights.
    (8) No lighting may be permitted to be used in any way in connection 
with any panel unless it is so effectively shielded as to prevent beams 
or rays of light from being directed at any portion of the main-traveled 
way of the Interstate System, or is of such low intensity or brilliance 
as not to cause glare or to impair the vision of the driver of any motor 
vehicle, or to otherwise interfere with any driver's operation of a 
motor vehicle.

[23 FR 8793, Nov. 13, 1958, as amended at 35 FR 18719, Dec. 10, 1970; 41 
FR 9321, Mar. 4, 1976]

[[Page 500]]



Sec.  750.107  Class 3 and 4 signs outside informational sites.

    (a) The erection or maintenance of the following signs may be 
permitted within protected areas, outside informational sites:
    (1) Class 3 signs which are visible only to Interstate highway 
traffic not served by an informational site within 12 air miles of the 
advertised activity;
    (2) Class 4 signs which are more than 12 miles from the nearest 
panel within an informational site serving Interstate highway traffic to 
which such signs are visible.
    (3) Signs that qualify both as Class 3 and 4 signs may be permitted 
in accordance with either paragraph (a)(1) or (2) of this section.
    (b) The erection or maintenance of signs permitted under paragraph 
(a) of this section may not be permitted in any manner inconsistent with 
the following:
    (1) In protected areas in advance of an intersection of the main-
traveled way of an Interstate highway and an exit roadway, such signs 
visible to Interstate highway traffic approaching such intersection may 
not be permitted to exceed the following number:

------------------------------------------------------------------------
        Distance from intersection                Number of signs
------------------------------------------------------------------------
0-2 miles................................  0.
2-5 miles................................  6.
More than 5 miles........................  Average of one sign per mile.
------------------------------------------------------------------------


The specified distances shall be measured to the nearest point of the 
intersection of the traveled way of the exit roadway and the main-
traveled way of the Interstate highway.
    (2) Subject to the other provisions of this paragraph, not more than 
two such signs may be permitted within any mile distance measured from 
any point, and no such signs may be permitted to be less than 1,000 feet 
apart.
    (3) Such signs may not be permitted in protected areas adjacent to 
any Interstate highway right-of-way upon any part of the width of which 
is constructed an entrance or exit roadway.
    (4) Such signs visible to Interstate highway traffic which is 
approaching or has passed an entrance roadway may not be permitted in 
protected areas for 1,000 feet beyond the furthest point of the 
intersection between the traveled way of such entrance roadway and the 
main-traveled way of the Interstate highway.
    (5) No such signs may be permitted in scenic areas.
    (6) Not more than one such sign advertising activities being 
conducted as a single enterprise or giving information about a single 
place may be permitted to be erected or maintained in such manner as to 
be visible to traffic moving in any one direction on any one Interstate 
highway.
    (c) No Class 3 or 4 signs other than those permitted by this section 
may be permitted to be erected or maintained within protected areas, 
outside informational sites.



Sec.  750.108  General provisions.

    No Class 3 or 4 signs may be permitted to be erected or maintained 
pursuant to Sec.  750.107, and no Class 2 sign may be permitted to be 
erected or maintained, in any manner inconsistent with the following:
    (a) No sign may be permitted which attempts or appears to attempt to 
direct the movement of traffic or which interferes with, imitates or 
resembles any official traffic sign, signal or device.
    (b) No sign may be permitted which prevents the driver of a vehicle 
from having a clear and unobstructed view of official signs and 
approaching or merging traffic.
    (c) No sign may be permitted which contains, includes, or is 
illuminated by any flashing, intermittent or moving light or lights.
    (d) No lighting may be permitted to be used in any way in connection 
with any sign unless it is so effectively shielded as to prevent beams 
or rays of light from being directed at any portion of the main-traveled 
way of the Interstate System, or is of such low intensity or brilliance 
as not to cause glare or to impair the vision of the driver of any motor 
vehicle, or to otherwise interfere with any driver's operation of a 
motor vehicle.
    (e) No sign may be permitted which moves or has any animated or 
moving parts.
    (f) No sign may be permitted to be erected or maintained upon trees 
or

[[Page 501]]

painted or drawn upon rocks or other natural features.
    (g) No sign may be permitted to exceed 20 feet in length, width or 
height, or 150 square feet in area, including border and trim but 
excluding supports, except Class 2 signs not more than 50 feet from, and 
advertising activities being conducted upon, the real property where the 
sign is located.



Sec.  750.109  Exclusions.

    The standards in this part shall not apply to markers, signs and 
plaques in appreciation of sites of historical significance for the 
erection of which provisions are made in an agreement between a State 
and the Secretary of Transportation, as provided in the Act, unless such 
agreement expressly makes all or any part of the standards applicable.



Sec.  750.110  State regulations.

    A State may elect to prohibit signs permissible under the standards 
in this part without forfeiting its rights to any benefits provided for 
in the act.



     Subpart B_National Standards for Directional and Official Signs

    Authority: 23 U.S.C. 131, 315, 49 U.S.C. 1651; 49 CFR 1.48(b).



Sec.  750.151  Purpose.

    (a) In section 131 of title 23 U.S.C., Congress has declared that:
    (1) The erection and maintenance of outdoor advertising signs, 
displays, and devices in areas adjacent to the Interstate System and the 
primary system should be controlled in order to protect the public 
investment in such highways, to promote safety and recreational value of 
public travel, and to preserve natural beauty.
    (2) Directional and official signs and notices, which signs and 
notices shall include, but not be limited to, signs and notices 
pertaining to natural wonders, scenic and historical attractions, which 
are required or authorized by law, shall conform to national standards 
authorized to be promulgated by the Secretary, which standards shall 
contain provisions concerning the lighting, size, number and spacing of 
signs, and such other requirements as may be appropriate to implement 
the section.
    (b) The standards in this part are issued as provided in section 131 
of title 23 U.S.C.

[38 FR 16044, June 30, 1973, as amended at 40 FR 21934, May 20, 1975]



Sec.  750.152  Application.

    The following standards apply to directional and official signs and 
notices located within six hundred and sixty (660) feet of the right-of-
way of the Interstate and Federal-aid primary systems and to those 
located beyond six hundred and sixty (660) feet of the right-of-way of 
such systems, outside of urban areas, visible from the main traveled way 
of such systems and erected with the purpose of their message being read 
from such main traveled way. These standards do not apply to directional 
and official signs erected on the highway right-of-way.

[40 FR 21934, May 20, 1975]



Sec.  750.153  Definitions.

    For the purpose of this part:
    (a) Sign means an outdoor sign, light, display, device, figure, 
painting, drawing, message, placard, poster, billboard, or other thing 
which is designed, intended, or used to advertise or inform, any part of 
the advertising or informative contents of which is visible from any 
place on the main traveled way of the Interstate or Federal-aid primary 
highway.
    (b) Main traveled way means the through traffic lanes of the 
highway, exclusive of frontage roads, auxiliary lanes, and ramps.
    (c) Interstate System means the National System of Interstate and 
Defence Highways described in section 103(d) of title 23 U.S.C.
    (d) Primary system means the Federal-aid highway system described in 
section 103(b) of title 23 U.S.C.
    (e) Erect means to construct, build, raise, assemble, place, affix, 
attach, create, paint, draw, or in any other way bring into being or 
establish.
    (f) Maintain means to allow to exist.
    (g) Scenic area means any area of particular scenic beauty or 
historical significance as determined by the Federal,

[[Page 502]]

State, or local officials having jurisdiction thereof, and includes 
interests in land which have been acquired for the restoration, 
preservation, and enhancement of scenic beauty.
    (h) Parkland means any publicly owned land which is designated or 
used as a public park, recreation area, wildlife or waterfowl refuge or 
historic site.
    (i) Federal or State law means a Federal or State constitutional 
provision or statute, or an ordinance, rule, or regulation enacted or 
adopted by a State or Federal agency or a political subdivision of a 
State pursuant to a Federal or State constitution or statute.
    (j) Visible means capable of being seen (whether or not legible) 
without visual aid by a person of normal visual acuity.
    (k) Freeway means a divided arterial highway for through traffic 
with full control of access.
    (l) Rest area means an area or site established and maintained 
within or adjacent to the highway right-of-way by or under public 
supervision or control for the convenience of the traveling public.
    (m) Directional and official signs and notices includes only 
official signs and notices, public utility signs, service club and 
religious notices, public service signs, and directional signs.
    (n) Official signs and notices means signs and notices erected and 
maintained by public officers or public agencies within their 
territorial or zoning jurisdiction and pursuant to and in accordance 
with direction or authorization contained in Federal, State, or local 
law for the purposes of carrying out an official duty or responsibility. 
Historical markers authorized by State law and erected by State or local 
government agencies or nonprofit historical societies may be considered 
official signs.
    (o) Public utility signs means warning signs, informational signs, 
notices, or markers which are customarily erected and maintained by 
publicly or privately owned public utilities, as essential to their 
operations.
    (p) Service club and religious notices means signs and notices, 
whose erection is authorized by law, relating to meetings of nonprofit 
service clubs or charitable associations, or religious services, which 
signs do not exceed 8 square feet in area.
    (q) Public service signs means signs located on school bus stop 
shelters, which signs:
    (1) Identify the donor, sponsor, or contributor of said shelters;
    (2) Contain public service messages, which shall occupy not less 
than 50 percent of the area of the sign;
    (3) Contain no other message;
    (4) Are located on schoolbus shelters which are authorized or 
approved by city, county, or State law, regulation, or ordinance, and at 
places approved by the city, county, or State agency controlling the 
highway involved; and
    (5) May not exceed 32 square feet in area. Not more than one sign on 
each shelter shall face in any one direction.
    (r) Directional signs means signs containing directional information 
about public places owned or operated by Federal, State, or local 
governments or their agencies; publicly or privately owned natural 
phenomena, historic, cultural, scientific, educational, and religious 
sites; and areas of natural scenic beauty or naturally suited for 
outdoor recreation, deemed to be in the interest of the traveling 
public.
    (s) State means any one of the 50 States, the District of Columbia, 
or Puerto Rico.
    (t) Urban area means an urbanized area or, in the case of an 
urbanized area encompassing more than one State, that part of the 
urbanized areas in each such State, or an urban place as designated by 
the Bureau of the Census having a population of five thousand or more 
and not within any urbanized area, within boundaries to be fixed by 
responsible State and local officials in cooperation with each other, 
subject to approval by the Secretary. Such boundaries shall, as a 
minimum, encompass the entire urban place designated by the Bureau of 
the Census.

[38 FR 16044, June 30, 1973, as amended at 40 FR 21934, May 20, 1975]



Sec.  750.154  Standards for directional signs.

    The following apply only to directional signs:
    (a) General. The following signs are prohibited:

[[Page 503]]

    (1) Signs advertising activities that are illegal under Federal or 
State laws or regulations in effect at the location of those signs or at 
the location of those activities.
    (2) Signs located in such a manner as to obscure or otherwise 
interfere with the effectiveness of an official traffic sign, signal, or 
device, or obstruct or interfere with the driver's view of approaching, 
merging, or intersecting traffic.
    (3) Signs which are erected or maintained upon trees or painted or 
drawn upon rocks or other natural features.
    (4) Obsolete signs.
    (5) Signs which are structurally unsafe or in disrepair.
    (6) Signs which move or have any animated or moving parts.
    (7) Signs located in rest areas, parklands or scenic areas.
    (b) Size. (1) No sign shall exceed the following limits:
    (i) Maximum area--150 square feet.
    (ii) Maximum height--20 feet.
    (iii) Maximum length--20 feet.
    (2) All dimensions include border and trim, but exclude supports.
    (c) Lighting. Signs may be illuminated, subject to the following:
    (1) Signs which contain, include, or are illuminated by any 
flashing, intermittent, or moving light or lights are prohibited.
    (2) Signs which are not effectively shielded so as to prevent beams 
or rays of light from being directed at any portion of the traveled way 
of an Interstate or primary highway or which are of such intensity or 
brilliance as to cause glare or to impair the vision of the driver of 
any motor vehicle, or which otherwise interfere with any driver's 
operation of a motor vehicle are prohibited.
    (3) No sign may be so illuminated as to interfere with the 
effectiveness of or obscure an official traffic sign, device, or signal.
    (d) Spacing. (1) Each location of a directional sign must be 
approved by the State highway department.
    (2) No directional sign may be located within 2,000 feet of an 
interchange, or intersection at grade along the Interstate System or 
other freeways (measured along the Interstate or freeway from the 
nearest point of the beginning or ending of pavement widening at the 
exit from or entrance to the main traveled way).
    (3) No directional sign may be located within 2,000 feet of a rest 
area, parkland, or scenic area.
    (4)(i) No two directional signs facing the same direction of travel 
shall be spaced less than 1 mile apart;
    (ii) Not more than three directional signs pertaining to the same 
activity and facing the same direction of travel may be erected along a 
single route approaching the activity;
    (iii) Signs located adjacent to the Interstate System shall be 
within 75 air miles of the activity; and
    (iv) Signs located adjacent to the primary system shall be within 50 
air miles of the activity.
    (e) Message content. The message on directional signs shall be 
limited to the identification of the attraction or activity and 
directional information useful to the traveler in locating the 
attraction, such as mileage, route numbers, or exit numbers. Descriptive 
words or phrases, and pictorial or photographic representations of the 
activity or its environs are prohibited.
    (f) Selection method and criteria. (1) Privately owned activities or 
attractions eligible for directional signing are limited to the 
following: natural phenomena; scenic attractions; historic, educational, 
cultural, scientific, and religious sites; and outdoor recreational 
areas.
    (2) To be eligible, privately owned attractions or activities must 
be nationally or regionally known, and of outstanding interest to the 
traveling public.
    (3) Each State shall develop specific selection methods and criteria 
to be used in determining whether or not an activity qualifies for this 
type of signing. A statement as to selection methods and criteria shall 
be furnished to the Secretary of Transportation before the State permits 
the erection of any such signs under section 131(c) of title 23 U.S.C., 
and this part.



Sec.  750.155  State standards.

    This part does not prohibit a State from establishing and 
maintaining standards which are more restrictive with respect to 
directional and official

[[Page 504]]

signs and notices along the Federal-aid highway systems than these 
national standards.

[38 FR 16044, June 20, 1973, as amended at 40 FR 21934, May 20, 1975]

Subpart C [Reserved]



 Subpart D_Outdoor Advertising (Acquisition of Rights of Sign and Sign 
                              Site Owners)

    Authority: 23 U.S.C. 131 and 315; 23 CFR 1.32 and 1.48(b).

    Source: 39 FR 27436, July 29, 1974, unless otherwise noted.



Sec.  750.301  Purpose.

    To prescribe the Federal Highway Administration (FHWA) policies 
relating to Federal participation in the costs of acquiring the property 
interests necessary for removal of nonconforming advertising signs, 
displays and devices on the Federal-aid Primary and Interstate Systems, 
including toll sections on such systems, regardless of whether Federal 
funds participated in the construction thereof. This regulation should 
not be construed to authorize any additional rights in eminent domain 
not already existing under State law or under 23 U.S.C. 131(g).



Sec.  750.302  Policy.

    (a) Just compensation shall be paid for the rights and interests of 
the sign and site owner in those outdoor advertising signs, displays, or 
devices which are lawfully existing under State law, in conformance with 
the terms of 23 U.S.C. 131.
    (b)(1) Federal reimbursement will be made on the basis of 75 percent 
of the acquisition, removal and incidental costs legally incurred or 
obligated by the State.
    (2) Federal funds will participate in 100 percent of the costs of 
removal of those signs which were removed prior to January 4, 1975, by 
relocation, pursuant to the provisions of 23 CFR Sec.  750.305(a)(2), 
and which are required to be removed as a result of the amendments made 
to 23 U.S.C. 131 by the Federal-Aid Highway Amendments of 1974, Pub. L. 
93-643, section 109, January 4, 1975. Such signs must have been 
relocated to a legal site, must have been legally maintained since the 
relocation, and must not have been substantially changed, as defined by 
the State maintenance standards, issued pursuant to 23 CFR 750.707(b).
    (c) Title III of the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 (42 U.S.C. 4651, et seq.) applies 
except where complete conformity would defeat the purposes set forth in 
42 U.S.C. 4651, would impede the expeditious implementation of the sign 
removal program or would increase administrative costs out of proportion 
to the cost of the interests being acquired or extinguished.
    (d) Projects for the removal of outdoor advertising signs including 
hardship acquisitions should be programed and authorized in accordance 
with normal program procedures for right-of-way projects.

[39 FR 27436, July 29, 1974; 39 FR 30349, Aug. 22, 1974, as amended at 
41 FR 31198, July 27, 1976]



Sec.  750.303  Definitions.

    (a) Sign. An outdoor sign, light, display, device, figure, painting, 
drawing, message, placard, poster, billboard or other thing which is 
designed, intended of the advertising or informative contents of which 
is visible from any place on the main-traveled way of the Interstate or 
Primary Systems, whether the same be permanent or portable installation.
    (b) Lease (license, permit, agreement, contract or easement). An 
agreement, oral or in writing, by which possession or use of land or 
interests therein is given by the owner or other person to another 
person for a specified purpose.
    (c) Leasehold value. The leasehold value is the present worth of the 
difference between the contractual rent and the current market rent at 
the time of the appraisal.
    (d) Illegal sign. One which was erected and/or maintained in 
violation of State law.
    (e) Nonconforming sign. One which was lawfully erected, but which 
does not comply with the provisions of State law or State regulations 
passed at a later date or which later fails to comply with State law or 
State regulations due to changed conditions. Illegally

[[Page 505]]

erected or maintained signs are not nonconforming signs.
    (f) 1966 inventory. The record of the survey of advertising signs 
and junkyards compiled by the State highway department.
    (g) Abandoned sign. One in which no one has an interest, or as 
defined by State law.



Sec.  750.304  State policies and procedures.

    The State's written policies and operating procedures for 
implementing its sign removal program under State law and complying with 
23 U.S.C. 131 and its proposed time schedule for sign removal and 
procedure for reporting its accomplishments shall be submitted to the 
FHWA for approval within 90 days of the date of this regulation. This 
statement should be supported by the State's regulations implementing 
its program. Revisions to the State's policies and procedures shall be 
submitted to the FHWA for approval. The statement should contain 
provisions for the review of its policies and procedure to meet changing 
conditions, adoption of improved procedures, and for internal review to 
assure compliance. The statement shall include as a minimum the 
following:
    (a) Project priorities. The following order of priorities is 
recommended.
    (1) Illegal and abandoned signs.
    (2) Hardship situations.
    (3) Nominal value signs.
    (4) Signs in areas which have been designated as scenic under 
authority of State law.
    (5) Product advertising on:
    (i) Rural interstate highway.
    (ii) Rural primary highway.
    (iii) Urban areas.
    (6) Nontourist-oriented directional advertising.
    (7) Tourist-oriented directional advertising.
    (b) Programing. (1) A sign removal project may consist of any group 
of proposed sign removals. The signs may be those belonging to one 
company or those located along a single route, all of the signs in a 
single county or other locality, hardship situations, individually or 
grouped, such as those involving vandalized signs, or all of a sign 
owner's signs in a given State or area, or any similar grouping.
    (2) A project for sign removal on other than a Federal-aid primary 
route basis e.g., a countywide project or a project involving only signs 
owned by one company, should be identified as CAF-000B( ), continuing 
the numbering sequence which began with the sign inventory project in 
1966.
    (3) Where it would not interfere with the State's operations, the 
State should program sign removal projects to minimize disruption of 
business.
    (c) Valuation and review methods--(1) Schedules--formulas. 
Schedules, formulas or other methods to simplify valuation of signs and 
sites are recommended for the purpose of minimizing administrative and 
legal expenses necessarily involved in determining just compensation by 
individual appraisals and litigation. They do not purport to be a basis 
for the determination of just compensation under eminent domain.
    (2) Appraisals. Where appropriate, the State may use its approved 
appraisal report forms including those for abbreviated or short form 
appraisals. Where a sign or site owner does not accept the amount 
computed under an approved schedule, formula, or other simplified 
method, an appraisal shall be utilized.
    (3) Leaseholds. When outdoor advertising signs and sign sites 
involve a leasehold value, the State's procedures should provide for 
determining value in the same manner as any other real estate leasehold 
that has value to the lessee.
    (4) Severance damages. The State has the responsibility of 
justifying the recognition of severance damages pursuant to 23 CFR 
710.304(h), and the law of the State before Federal participation will 
be allowed. Generally, Federal participation will not be allowed in the 
payment of severance damages to remaining signs, or other property of a 
sign company alleged to be due to the taking of certain of the company's 
signs. Unity of use of the separate properties, as required by 
applicable principles of eminent domain law, must be shown to exist 
before participation in severance damages will be allowed. Moreover, the 
value of the remaining signs or other real property

[[Page 506]]

must be diminished by virtue of the taking of such signs. Payments for 
severance damages to economic plants or loss of business profits are not 
compensable. Severance damage cases must be submitted to the FHWA for 
prior concurrence, together with complete legal and appraisal 
justification for payment of these damages. To assist the FHWA in its 
evaluation, the following data will accompany any submission regarding 
severance:
    (i) One copy of each appraisal in which this was analyzed. One copy 
of the State's review appraiser analysis and determination of market 
value.
    (ii) A plan or map showing the location of each sign.
    (iii) An opinion by the State highway department's chief legal 
officer that severance is appropriate in accordance with State law 
together with a legal opinion that, in the instant case, the damages 
constitute severance as opposed to consequential damage as a matter of 
law. The opinion shall include a determination, and the basis therefor, 
that the specific taking of some of an outdoor advertiser's signs 
constitutes a distinct economic unit, and that unity of use of the 
separate properties in conformity with applicable principles of eminent 
domain law had been satisfactorily established. A legal memorandum must 
be furnished citing and discussing cases and other authorities 
supporting the State's position.
    (5) Review of value estimates. All estimates of value shall be 
reviewed by a person other than the one who made the estimate. Appraisal 
reports shall be reviewed and approved prior to initiation of 
negotiations. All other estimates shall be reviewed before the agreement 
becomes final.
    (d) Nominal value plan. (1) This plan may provide for the removal 
costs of eligible nominal value signs and for payments up to $250 for 
each nonconforming sign, and up to $100 for each nonconforming sign 
site.
    (2) The State's procedures may provide for negotiations for sign 
sites and sign removals to be accomplished simultaneously without prior 
review.
    (3) Releases or agreements executed by the sign and/or site owner 
should include the identification of the sign, statement of ownership, 
price to be paid, interest acquired, and removal rights.
    (4) It is not expected that salvage value will be a consideration in 
most acquisitions; however, the State's procedures may provide that the 
sign may be turned over to the sign owner, site owner, contractor, or 
individual as all or a part of the consideration for its removal, 
without any project credits.
    (5) Programing and authorizations will be in accord with Sec.  
750.308 of this regulation. A detailed estimate of value of each 
individual sign is not necessary. The project may be programed and 
authorized as one project.
    (e) Sign removal. The State's procedural statement should include 
provision for:
    (1) Owner retention.
    (2) Salvage value.
    (3) State removal.

[39 FR 27436, July 29, 1974; 42 FR 30835, June 17, 1977, as amended at 
50 FR 34093, Aug. 23, 1985]



Sec.  750.305  Federal participation.

    (a) Federal funds may participate in:
    (1) Payments made to a sign owner for his right, title and interest 
in a sign, and where applicable, his leasehold value in a sign site, and 
to a site owner for his right and interest in a site, which is his right 
to erect and maintain the existing nonconforming sign on such site.
    (2) The cost of relocating a sign to the extent of the cost to 
acquire the sign, less salvage value if any.
    (3) A duplicate payment for the site owner's interest of $2,500 or 
less because of a bona fide error in ownership, provided the State has 
followed its title search procedures as set forth in its policy and 
procedure submission.
    (4) The cost of removal of signs, partially completed sign 
structures, supporting poles, abandoned signs and those which are 
illegal under State law within the controlled areas, provided such costs 
are incurred in accordance with State law. Removal may be by State 
personnel on a force account basis or by contract. Documentation for 
Federal participation in such removal projects should be in accord with 
the State's normal force account

[[Page 507]]

and contractual reimbursement procedures. The State should maintain a 
record of the number of signs removed. These data should be retained in 
project records and reported on the periodic report required under Sec.  
750.308 of this regulation.
    (5) Signs materially damaged by vandals. Federal funds shall be 
limited to the Federal pro-rata share of the fair market value of the 
sign immediately before the vandalism occurred minus the estimated cost 
of repairing and reerecting the sign. If the State chooses, it may use 
its FHWA approved nominal value plan procedure to acquire these signs.
    (6) The cost of acquiring and removing completed sign structures 
which have been blank or painted out beyond the period of time 
established by the State for normal maintenance and change of message, 
provided the sign owner can establish that his nonconforming use was not 
abandoned or discontinued, and provided such costs are incurred in 
accordance with State law, or regulation. The evidence considered by the 
State as acceptable for establishing or showing that the nonconforming 
use has not been abandoned or voluntarily discontinued shall be set 
forth in the State's policy and procedures.
    (7) In the event a sign was omitted in the 1966 inventory, and the 
State supports a determination that the sign was in existence prior to 
October 22, 1965, the costs are eligible for Federal participation.
    (b) Federal funds may not participate in:
    (1) Cost of title certificates, title insurance, title opinion or 
similar evidence or proof of title in connection with the acquisition of 
a landowner's right to erect and maintain a sign or signs when the 
amount of payment to the landowner for his interest is $2,500 or less, 
unless required by State law. However, Federal funds may participate in 
the costs of securing some lesser evidence or proof of title such as 
searches and investigations by State highway department personnel to the 
extent necessary to determine ownership, affidavit of ownership by the 
owner, bill of sale, etc. The State's procedure for determining evidence 
of title should be set forth in the State's policy and procedure 
submission.
    (2) Payments to a sign owner where the sign was erected without 
permission of the property owner unless the sign owner can establish his 
legal right to erect and maintain the sign. However, such signs may be 
removed by State personnel on a force account basis or by contract with 
Federal participation except where the sign owner reimburses the State 
for removal.
    (3) Acquisition costs paid for abandoned or illegal signs, potential 
sign sites, or signs which were built during a period of time which 
makes them ineligible for compensation under 23 U.S.C. 131, or for 
rights in sites on which signs have been abandoned or illegally erected 
by a sign owner.
    (4) The acquisition cost of supporting poles or partially completed 
sign structures in nonconforming areas which do not have advertising or 
informative content thereon unless the owner can show to the State's 
satisfaction he has not abandoned the structure. When the State has 
determined the sign structure has not been abandoned, Federal funds will 
participate in the acquisition of the structure, provided the cost are 
incurred in accordance with State law.



Sec.  750.306  Documentation for Federal participation.

    The following information concerning each sign must be available in 
the State's files to be eligible for Federal participation.
    (a) Payment to sign owner. (1) A photograph of the sign in place. 
Exceptions may be made in cases where in one transaction the State has 
acquired a number of a company's nominal value signs similar in size, 
condition and shape. In such cases, only a sample of representative 
photographs need be provided to document the type and condition of the 
signs.
    (2) Evidence showing the sign was nonconforming as of the date of 
taking.
    (3) Value documentation and proof of obligation of funds.
    (4) Satisfactory indication of ownership of the sign and compensable 
interest therein (e.g., lease or other agreement with the property 
owner, or an

[[Page 508]]

affidavit, certification, or other such evidence of ownership).
    (5) Evidence that the sign falls within one of the three categories 
shown in Sec.  750.302 of this regulation. The specific category should 
be identified.
    (6) Evidence that the right, title, or interest pertaining to the 
sign has passed to the State, or that the sign has been removed.
    (b) Payment to the site owner. (1) Evidence that an agreement has 
been reached between the State and owner.
    (2) Value documentation and proof of obligation of funds.
    (3) Satisfactory indication of ownership or compensable interest.
    (c) In those cases where Federal funds participate in 100 percent of 
the cost of removal, the State file shall contain the records of the 
relocation made prior to January 4, 1975.

[39 FR 27436, July 29, 1974, as amended at 41 FR 31198, July 27, 1976]



Sec.  750.307  FHWA project approval.

    Authorization to proceed with acquisitions on a sign removal project 
shall not be issued until such time as the State has submitted to FHWA 
the following:
    (a) A general description of the project.
    (b) The total number of signs to be acquired.
    (c) The total estimated cost of the sign removal project, including 
a breakdown of incidental, acquisition and removal costs.



Sec.  750.308  Reports.

    Periodic reports on site acquisitions and actual sign removals shall 
be submitted on FHWA Form 1424 and as prescribed. \1\
---------------------------------------------------------------------------

    \1\ Forms are available at FHWA Division Offices located in each 
State.

[39 FR 27436, July 29, 1974, as amended at 41 FR 9321, Mar. 4, 1976]



          Subpart E_Signs Exempt From Removal in Defined Areas

    Authority: 23 U.S.C. 131 and 315, 49 CFR 1.48, 23 CFR 1.32.

    Source: 41 FR 45827, Oct. 18, 1976, unless otherwise noted.



Sec.  750.501  Purpose.

    This subpart sets forth the procedures pursuant to which a State 
may, if it desires, seek an exemption from the acquisition requirements 
of 23 U.S.C. 131 for signs giving directional information about goods 
and services in the interest of the traveling public in defined areas 
which would suffer substantial economic hardship if such signs were 
removed. This exemption may be granted pursuant to the provisions of 23 
U.S.C. 131(o).



Sec.  750.502  Applicability.

    The provisions of this subpart apply to signs adjacent to the 
Interstate and primary systems which are required to be controlled under 
23 U.S.C. 131.



Sec.  750.503  Exemptions.

    (a) The Federal Highway Administration (FHWA) may approve a State's 
request to exempt certain nonconforming signs, displays, and devices 
(hereinafter called signs) within a defined area from being acquired 
under the provisions of 23 U.S.C. 131 upon a showing that removal would 
work a substantial economic hardship throughout that area. A defined 
area is an area with clearly established geographical boundaries defined 
by the State which the State can evaluate as an economic entity. Neither 
the States nor FHWA shall rely on individual claims of economic 
hardship. Exempted signs must:
    (1) Have been lawfully erected prior to May 5, 1976, and must 
continue to be lawfully maintained.
    (2) Continue to provide the directional information to goods and 
services offered at the same enterprise in the defined area in the 
interest of the traveling public that was provided on May 5, 1976. 
Repair and maintenance of these signs shall conform with the State's 
approved maintenance standards as required by subpart G of this part.
    (b) To obtain the exemption permitted by 23 U.S.C. 131(o), the State 
shall establish:
    (1) Its requirements for the directional content of signs to qualify 
the signs as directional signs to goods and services in the defined 
area.
    (2) A method of economic analysis clearly showing that the removal 
of

[[Page 509]]

signs would work a substantial economic hardship throughout the defined 
area.
    (c) In support of its request for exemption, the State shall submit 
to the FHWA:
    (1) Its requirements and method (see Sec.  750.503(b)).
    (2) The limits of the defined area(s) requested for exemption, a 
listing of signs to be exempted, their location, and the name of the 
enterprise advertised on May 5, 1976.
    (3) The application of the requirements and method to the defined 
areas, demonstrating that the signs provide directional information to 
goods and services of interest to the traveling public in the defined 
area, and that removal would work a substantial economic hardship in the 
defined area(s).
    (4) A statement that signs in the defined area(s) not meeting the 
exemption requirements will be removed in accordance with State law.
    (5) A statement that the defined area will be reviewed and evaluated 
at least every three (3) years to determine if an exemption is still 
warranted.
    (d) The FHWA, upon receipt of a State's request for exemption, shall 
prior to approval:
    (1) Review the State's requirements and methods for compliance with 
the provisions of 23 U.S.C. 131 and this subpart.
    (2) Review the State's request and the proposed exempted area for 
compliance with State requirements and methods.
    (e) Nothing herein shall prohibit the State from acquiring signs in 
the defined area at the request of the sign owner.
    (f) Nothing herein shall prohibit the State from imposing or 
maintaining stricter requirements.

Subpart F [Reserved]



                  Subpart G_Outdoor Advertising Control

    Authority: 23 U.S.C. 131 and 315; 49 CFR 1.48.

    Source: 40 FR 42844, Sept. 16, 1975, unless otherwise noted.



Sec.  750.701  Purpose.

    This subpart prescribes the Federal Highway Administration (FHWA) 
policies and requirements relating to the effective control of outdoor 
advertising under 23 U.S.C. 131. The purpose of these policies and 
requirements is to assure that there is effective State control of 
outdoor advertising in areas adjacent to Interstate and Federal-aid 
primary highways. Nothing in this subpart shall be construed to prevent 
a State from establishing more stringent outdoor advertising control 
requirements along Interstate and Primary Systems than provided herein.



Sec.  750.702  Applicability.

    The provisions of this subpart are applicable to all areas adjacent 
to the Federal-aid Interstate and Primary Systems, including toll 
sections thereof, except that within urban areas, these provisions apply 
only within 660 feet of the nearest edge of the right-of-way. These 
provisions apply regardless of whether Federal funds participated in the 
costs of such highways. The provisions of this subpart do not apply to 
the Federal-aid Secondary or Urban Highway System.



Sec.  750.703  Definitions.

    The terms as used in this subpart are defined as follows:
    (a) Commercial and industrial zones are those districts established 
by the zoning authorities as being most appropriate for commerce, 
industry, or trade, regardless of how labeled. They are commonly 
categorized as commercial, industrial, business, manufacturing, highway 
service or highway business (when these latter are intended for highway-
oriented business), retail, trade, warehouse, and similar 
classifications.
    (b) Erect means to construct, build, raise, assemble, place, affix, 
attach, create, paint, draw, or in any other way bring into being or 
establish.
    (c) Federal-aid Primary Highway means any highway on the system 
designated pursuant to 23 U.S.C. 103(b).
    (d) Interstate Highway means any highway on the system defined in 
and designated, pursuant to 23 U.S.C. 103(e).

[[Page 510]]

    (e) Illegal sign means one which was erected or maintained in 
violation of State law or local law or ordinance.
    (f) Lease means an agreement, license, permit, or easement, oral or 
in writing, by which possession or use of land or interests therein is 
given for a specified purpose, and which is a valid contract under the 
laws of a State.
    (g) Maintain means to allow to exist.
    (h) Main-traveled way means the traveled way of a highway on which 
through traffic is carried. In the case of a divided highway, the 
traveled way of each of the separate roadways for traffic in opposite 
directions is a main-traveled way. It does not include such facilities 
as frontage roads, turning roadways, or parking areas.
    (i) Sign, display or device, hereinafter referred to as ``sign,'' 
means an outdoor advertising sign, light, display, device, figure, 
painting, drawing, message, placard, poster, billboard, or other thing 
which is designed, intended, or used to advertise or inform, any part of 
the advertising or informative contents of which is visible from any 
place on the main-traveled way of the Interstate or Primary Systems, 
whether the same be permanent or portable installation.
    (j) State law means a State constitutional provision or statute, or 
an ordinance, rule or regulation, enacted or adopted by a State.
    (k) Unzoned area means an area where there is no zoning in effect. 
It does not include areas which have a rural zoning classification or 
land uses established by zoning variances or special exceptions.
    (l) Unzoned commercial or industrial areas are unzoned areas 
actually used for commercial or industrial purposes as defined in the 
agreements made between the Secretary, U.S. Department of Transportation 
(Secretary), and each State pursuant to 23 U.S.C. 131(d).
    (m) Urban area is as defined in 23 U.S.C. 101(a).
    (n) Visible means capable of being seen, wehter or not readable, 
without visual aid by a person of normal visual acuity.



Sec.  750.704  Statutory requirements.

    (a) 23 U.S.C. 131 provides that signs adjacent to the Interstate and 
Federal-aid Primary Systems which are visible from the main-traveled way 
and within 660 feet of the nearest edge of the right-of-way, and those 
additional signs beyond 660 feet outside of urban areas which are 
visible from the main-traveled way and erected with the purpose of their 
message being read from such main-traveled way, shall be limited to the 
following:
    (1) Directional and official signs and notice which shall conform to 
national standards promulgated by the Secretary in subpart B, part 750, 
chapter I, 23 CFR, National Standards for Directional and Official 
Signs;
    (2) Signs advertising the sale or lease of property upon which they 
are located;
    (3) Signs advertising activities conducted on the property on which 
they are located;
    (4) Signs within 660 feet of the nearest edge of the right-of-way 
within areas adjacent to the Interstate and Federal-aid Primary Systems 
which are zoned industrial or commercial under the authority of State 
law;
    (5) Signs within 660 feet of the nearest edge of the right-of-way 
within areas adjacent to the Interstate and Federal-aid Primary Systems 
which are unzoned commercial or industrial areas, which areas are 
determined by agreement between the State and the Secretary; and
    (6) Signs lawfully in existence on October 22, 1965, which are 
determined to be landmark signs.
    (b) 23 U.S.C. 131(d) provides that signs in Sec.  750.704(a) (4) and 
(5) must comply with size, lighting, and spacing requirements, to be 
determined by agreement between the State and the Secretary.
    (c) 23 U.S.C. 131 does not permit signs to be located within zoned 
or unzoned commercial or industrial areas beyond 660 feet of the right-
of-way adjacent to the Interstate or Federal-aid Primary System, outside 
of urban areas.
    (d) 23 U.S.C. 131 provides that signs not permitted under Sec.  
750.704 of this regulation must be removed by the State.



Sec.  750.705  Effective control.

    In order to provide effective control of outdoor advertising, the 
State must:

[[Page 511]]

    (a) Prohibit the erection of new signs other than those which fall 
under Sec.  750.704(a)(1) through (6);
    (b) Assure that signs erected under Sec.  750.704(a)(4) and (5) 
comply, at a minimum, with size, lighting, and spacing criteria 
contained in the agreement between the Secretary and the State;
    (c) Assure that signs erected under Sec.  750.704(a)(1) comply with 
the national standards contained in subpart B, part 750, chapter I, 23 
CFR;
    (d) Remove illegal signs expeditiously;
    (e) Remove nonconforming signs with just compensation within the 
time period set by 23 U.S.C. 131 (subpart D, part 750, chapter I, 23 
CFR, sets forth policies for the acquisition and compensation for such 
signs);
    (f) Assure that signs erected under Sec.  750.704(a)(6) comply with 
Sec.  750.710, Landmark Signs, if landmark signs are allowed;
    (g) Establish criteria for determining which signs have been erected 
with the purpose of their message being read from the main-traveled way 
of an Interstate or primary highway, except where State law makes such 
criteria unnecessary. Where a sign is erected with the purpose of its 
message being read from two or more highways, one or more of which is a 
controlled highway, the more stringent of applicable control 
requirements will apply;
    (h) Develop laws, regulations, and procedures to accomplish the 
requirements of this subpart;
    (i) Establish enforcement procedures sufficient to discover 
illegally erected or maintained signs shortly after such occurrence and 
cause their prompt removal; and
    (j) Submit regulations and enforcement procedures to FHWA for 
approval.

[40 FR 42844, Sept. 16, 1975; 40 FR 49777, Oct. 24, 1975]



Sec.  750.706  Sign control in zoned and unzoned commercial 
and industrial areas.

    The following requirements apply to signs located in zoned and 
unzoned commercial and industrial areas within 660 feet of the nearest 
edge of the right-of-way adjacent to the Interstate and Federal-aid 
primary highways.
    (a) The State by law or regulation shall, in conformity with its 
agreement with the Secretary, set criteria for size, lighting, and 
spacing of outdoor advertising signs located in commercial or industrial 
zoned or unzoned areas, as defined in the agreement, adjacent to 
Interstate and Federal-aid primary highways. If the agreement between 
the Secretary and the State includes a grandfather clause, the criteria 
for size, lighting, and spacing will govern only those signs erected 
subsequent to the date specified in the agreement. The States may adopt 
more restrictive criteria than are presently contained in agreements 
with the Secretary.
    (b) Agreement criteria which permit multiple sign structures to be 
considered as one sign for spacing purposes must limit multiple sign 
structures to signs which are physically contiguous, or connected by the 
same structure or cross-bracing, or located not more than 15 feet apart 
at their nearest point in the case of back-to-back or ``V'' type signs.
    (c) Where the agreement and State law permits control by local 
zoning authorities, these controls may govern in lieu of the size, 
lighting, and spacing controls set forth in the agreement, subject to 
the following:
    (1) The local zoning authority's controls must include the 
regulation of size, of lighting and of spacing of outdoor advertising 
signs, in all commercial and industrial zones.
    (2) The regulations established by local zoning authority may be 
either more restrictive or less restrictive than the criteria contained 
in the agreement, unless State law or regulations require equivalent or 
more restrictive local controls.
    (3) If the zoning authority has been delegated, extraterritorial, 
jurisdiction under State law, and exercises control of outdoor 
advertising in commercial and industrial zones within this 
extraterritorial jurisdiction, control by the zoning authority may be 
accepted in lieu of agreement controls in such areas.
    (4) The State shall notify the FHWA in writing of those zoning 
jurisdictions wherein local control applies. It will not be necessary to 
furnish a copy of

[[Page 512]]

the zoning ordinance. The State shall periodically assure itself that 
the size, lighting, and spacing control provisions of zoning ordinances 
accepted under this section are actually being enforced by the local 
authorities.
    (5) Nothing contained herein shall relieve the State of the 
responsibility of limiting signs within controlled areas to commercial 
and industrial zones.



Sec.  750.707  Nonconforming signs.

    (a) General. The provisions of Sec.  750.707 apply to nonconforming 
signs which must be removed under State laws and regulations 
implementing 23 U.S.C. 131. These provisions also apply to nonconforming 
signs located in commercial and industrial areas within 660 feet of the 
nearest edge of the right-of-way which come under the so-called 
grandfather clause contained in State-Federal agreements. These 
provisions do not apply to conforming signs regardless of when or where 
they are erected.
    (b) Nonconforming signs. A nonconforming sign is a sign which was 
lawfully erected but does not comply with the provisions of State law or 
State regulations passed at a later date or later fails to comply with 
State law or State regulations due to changed conditions. Changed 
conditions include, for example, signs lawfully in existence in 
commercial areas which at a later date become noncommercial, or signs 
lawfully erected on a secondary highway later classified as a primary 
highway.
    (c) Grandfather clause. At the option of the State, the agreement 
may contain a grandfather clause under which criteria relative to size, 
lighting, and spacing of signs in zoned and unzoned commercial and 
industrial areas within 660 feet of the nearest edge of the right-of-way 
apply only to new signs to be erected after the date specified in the 
agreement. Any sign lawfully in existence in a commercial or industrial 
area on such date may remain even though it may not comply with the 
size, lighting, or spacing criteria. This clause only allows an 
individual sign at its particular location for the duration of its 
normal life subject to customary maintenance. Preexisting signs covered 
by a grandfather clause, which do not comply with the agreement criteria 
have the status of nonconforming signs.
    (d) Maintenance and continuance. In order to maintain and continue a 
nonconforming sign, the following conditions apply:
    (1) The sign must have been actually in existence at the time the 
applicable State law or regulations became effective as distinguished 
from a contemplated use such as a lease or agreement with the property 
owner. There are two exceptions to actual existence as follows:
    (i) Where a permit or similar specific State governmental action was 
granted for the construction of a sign prior to the effective date of 
the State law or regulations and the sign owner acted in good faith and 
expended sums in reliance thereon. This exception shall not apply in 
instances where large numbers of permits were applied for and issued to 
a single sign owner, obviously in anticipation of the passage of a State 
control law.
    (ii) Where the State outdoor advertising control law or the Federal-
State agreement provides that signs in commercial and industrial areas 
may be erected within six (6) months after the effective date of the law 
or agreement provided a lease dated prior to such effective date was 
filed with the State and recorded within thirty (30) days following such 
effective date.
    (2) There must be existing property rights in the sign affected by 
the State law or regulations. For example, paper signs nailed to trees, 
abandoned signs and the like are not protected.
    (3) The sign may be sold, leased, or otherwise transferred without 
affecting its status, but its location may not be changed. A 
nonconforming sign removed as a result of a right-of-way taking or for 
any other reason may be relocated to a conforming area but cannot be 
reestablished at a new location as a nonconforming use.
    (4) The sign must have been lawful on the effective date of the 
State law or regulations, and must continue to be lawfully maintained.
    (5) The sign must remain substantially the same as it was on the 
effective date of the State law or regulations. Reasonable repair and 
maintenance of the sign, including a change of

[[Page 513]]

advertising message, is not a change which would terminate nonconforming 
rights. Each State shall develop its own criteria to determine when 
customary maintenance ceases and a substantial change has occurred which 
would terminate nonconforming rights.
    (6) The sign may continue as long as it is not destroyed, abandoned, 
or discontinued. If permitted by State law and reerected in kind, 
exception may be made for signs destroyed due to vandalism and other 
criminal or tortious acts.
    (i) Each state shall develop criteria to define destruction, 
abandonment and discontinuance. These criteria may provide that a sign 
which for a designated period of time has obsolete advertising matter or 
is without advertising matter or is in need of substantial repair may 
constitute abandonment or discontinuance. Similarly, a sign damaged in 
excess of a certain percentage of its replacement cost may be considered 
destroyed.
    (ii) Where an existing nonconforming sign ceases to display 
advertising matter, a reasonable period of time to replace advertising 
content must be established by each State. Where new content is not put 
on a structure within the established period, the use of the structure 
as a nonconforming outdoor advertising sign is terminated and shall 
constitute an abandonment or discontinuance. Where a State establishes a 
period of more than one (1) year as a reasonable period for change of 
message, it shall justify that period as a customary enforcement 
practice within the State. This established period may be waived for an 
involuntary discontinuance such as the closing of a highway for repair 
in front of the sign.
    (e) Just compensation. The States are required to pay just 
compensation for the removal of nonconforming lawfully existing signs in 
accordance with the terms of 23 U.S.C. 131 and the provisions of subpart 
D, part 750, chapter I, 23 CFR. The conditions which establish a right 
to maintain a nonconforming sign and therefore the right to compensation 
must pertain at the time it is acquired or removed.



Sec.  750.708  Acceptance of state zoning.

    (a) 23 U.S.C. 131(d) provide that signs ``may be erected and 
maintained within 660 feet of the nearest edge of the right-of-way 
within areas . . . which are zoned industrial or commercial under 
authority of State law.'' Section 131(d) further provides, ``The States 
shall have full authority under their own zoning laws to zone areas for 
commercial or industrial purposes, and the actions of the States in this 
regard will be accepted for the purposes of this Act.''
    (b) State and local zoning actions must be taken pursuant to the 
State's zoning enabling statute or constitutional authority and in 
accordance therewith. Action which is not a part of comprehensive zoning 
and is created primarily to permit outdoor advertising structures, is 
not recognized as zoning for outdoor advertising control purposes.
    (c) Where a unit of government has not zoned in accordance with 
statutory authority or is not authorized to zone, the definition of an 
unzoned commercial or industrial area in the State-Federal agreement 
will apply within that political subdivision or area.
    (d) A zone in which limited commercial or industrial activities are 
permitted as an incident to other primary land uses is not considered to 
be a commercial or industrial zone for outdoor advertising control 
purposes.



Sec.  750.709  On-property or on-premise advertising.

    (a) A sign which consists solely of the name of the establishment or 
which identifies the establishment's principal or accessory products or 
services offered on the property is an on-property sign.
    (b) When a sign consists principally of brand name or trade name 
advertising and the product or service advertised is only incidental to 
the principal activity, or if it brings rental income to the property 
owner, it shall be considered the business of outdoor advertising and 
not an on-property sign.
    (c) A sale or lease sign which also advertises any product or 
service not conducted upon and unrelated to the business or selling or 
leasing the land on

[[Page 514]]

which the sign is located is not an on-property sign.
    (d) Signs are exempt from control under 23 U.S.C. 131 if they solely 
advertise the sale or lease of property on which they are located or 
advertise activities conducted on the property on which they are 
located. These signs are subject to regulation (subpart A, part 750, 
chapter I, 23 CFR) in those States which have executed a bonus 
agreement, 23 U.S.C. 131(j). State laws or regulations shall contain 
criteria for determining exemptions. These criteria may include:
    (1) A property test for determining whether a sign is located on the 
same property as the activity or property advertised; and
    (2) A purpose test for determining whether a sign has as its sole 
purpose the identification of the activity located on the property or 
its products or services, or the sale or lease of the property on which 
the sign is located.
    (3) The criteria must be sufficiently specific to curb attempts to 
improperly qualify outdoor advertising as ``on-property'' signs, such as 
signs on narrow strips of land contiguous to the advertised activity 
when the purpose is clearly to circumvent 23 U.S.C. 131.



Sec.  750.710  Landmark signs.

    (a) 23 U.S.C. 131(c) permits the existence of signs lawfully in 
existence on October 22, 1965, determined by the State, subject to the 
approval of the Secretary, to be landmark signs, including signs on farm 
structures or natural surfaces, of historic or artistic significance, 
the preservation of which is consistent with the purpose of 23 U.S.C. 
131.
    (b) States electing to permit landmark signs under 23 U.S.C. 131(c) 
shall submit a one-time list to the Federal Highway Administration for 
approval. The list should identify each sign as being in the original 
1966 inventory. In the event a sign was omitted in the 1966 inventory, 
the State may submit other evidence to support a determination that the 
sign was in existence on October 22, 1965.
    (c) Reasonable maintenance, repair, and restoration of a landmark 
sign is permitted. Substantial change in size, lighting, or message 
content will terminate its exempt status.



Sec.  750.711  Structures which have never displayed advertising material.

    Structures, including poles, which have never displayed advertising 
or informative content are subject to control or removal when 
advertising content visible from the main-traveled way is added or 
affixed. When this is done, an ``outdoor advertising sign'' has then 
been erected which must comply with the State law in effect on that 
date.



Sec.  750.712  Reclassification of signs.

    Any sign lawfully erected after the effective date of a State 
outdoor advertising control law which is reclassified from legal-
conforming to nonconforming and subject to removal under revised State 
statutes or regulations and policy pursuant to this regulation is 
eligible for Federal participation in just compensation payments and 
other eligible costs.



Sec.  750.713  Bonus provisions.

    23 U.S.C. 131(j) specifically provides that any State which had 
entered into a bonus agreement before June 30, 1965, will be entitled to 
remain eligible to receive bonus payments provided it continues to carry 
out its bonus agreement. Bonus States are not exempt from the other 
provisions of 23 U.S.C. 131. If a State elects to comply with both 
programs, it must extend controls to the Primary System, and continue to 
carry out its bonus agreement along the Interstate System except where 
23 U.S.C. 131, as amended, imposes more stringent requirements.



PART 751_JUNKYARD CONTROL AND ACQUISITION--Table of Contents



Sec.
751.1 Purpose.
751.3 Applicability.
751.5 Policy.
751.7 Definitions.
751.9 Effective control.
751.11 Nonconforming junkyards.
751.13 Control measures.
751.15 Just compensation.
751.17 Federal participation.
751.19 Documentation for Federal participation.

[[Page 515]]

751.21 Relocation assistance.
751.23 Concurrent junkyard control and right-of-way projects.
751.25 Programming and authorization.

    Authority: 23 U.S.C. 136 and 315, 42 U.S.C. 4321-4347 and 4601-4655, 
23 CFR 1.32, 49 CFR 1.48, unless otherwise noted.

    Source: 40 FR 8551, Feb. 28, 1975, unless otherwise noted.



Sec.  751.1  Purpose.

    Pursuant to 23 U.S.C. 136, this part prescribes Federal Highway 
Administration [FHWA] policies and procedures relating to the exercise 
of effective control by the States of junkyards in areas adjacent to the 
Interstate and Federal-aid primary systems. Nothing in this part shall 
be construed to prevent a State from establishing more stringent 
junkyard control requirements than provided herein.

[40 FR 12260, Mar. 18, 1975]



Sec.  751.3  Applicability.

    The provisions of this part are applicable to all areas within 1,000 
feet of the nearest edge of the right-of-way and visible from the main 
traveled way of all Federal-aid Primary and Interstate Systems 
regardless of whether Federal funds participated in the construction 
thereof, including toll sections of such highways. This part does not 
apply to the Urban System.



Sec.  751.5  Policy.

    In carrying out the purposes of this part:
    (a) Emphasis should be placed on encouraging recycling of scrap and 
junk where practicable, in accordance with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321, et seq.);
    (b) Every effort should be made to screen nonconforming junkyards 
which are to continue as ongoing businesses; and
    (c) Nonconforming junkyards should be relocated only as a last 
resort.



Sec.  751.7  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) Junkyard. (1) A Junkyard is an establishment or place of 
business which is maintained, operated or used for storing, keeping, 
buying, or selling junk, or for the maintenance or operation of an 
automobile graveyard. This definition includes scrap metal processors, 
auto-wrecking yards, salvage yards, scrap yards, autorecycling yards, 
used auto parts yards and temporary storage of automobile bodies and 
parts awaiting disposal as a normal part of a business operation when 
the business will continually have like materials located on the 
premises. The definition includes garbage dumps and sanitary landfills. 
The definition does not include litter, trash, and other debris 
scattered along or upon the highway, or temporary operations and outdoor 
storage of limited duration.
    (2) An Automobile Graveyard is an establishment or place of business 
which is maintained, used, or operated for storing, keeping, buying, or 
selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor 
vehicle parts. Ten or more such vehicles will constitute an automobile 
graveyard.
    (3) An Illegal Junkyard is one which was established or is 
maintained in violation of State law.
    (4) A Nonconforming Junkyard is one which was lawfully established, 
but which does not comply with the provisions of State law or State 
regulations passed at a later date or which later fails to comply with 
State regulations due to changed conditions. Illegally established 
junkyards are not nonconforming junkyards.
    (b) Junk. Old or scrap metal, rope, rags, batteries, paper, trash, 
rubber, debris, waste, or junked, dismantled, or wrecked automobiles, or 
parts thereof.
    (c) Main traveled way. The traveled way of a highway on which 
through traffic is carried. In the case of a divided highway, the 
traveled way of each of the separated roadways for traffic in opposite 
directions is a main traveled way. It does not include such facilities 
as frontage roads, turning roadways, or parking areas.
    (d) Industrial zones. Those districts established by zoning 
authorities as being most appropriate for industry or manufacturing. A 
zone which simply permits certain industrial activities as an incident 
to the primary land use designation is not considered to be an 
industrial zone. The provisions of part 750, subpart G of this chapter 
relative to Outdoor Advertising Control shall

[[Page 516]]

apply insofar as industrial zones are concerned.
    (e) Unzoned industrial areas. An area where there is no zoning in 
effect and which is used primarily for industrial purposes as determined 
by the State and approved by the FHWA. An unzoned area cannot include 
areas which may have a rural zoning classification or land uses 
established by zoning variances or special exceptions.

[40 FR 8551, Feb. 28, 1975, as amended at 41 FR 9321, Mar. 4, 1976]



Sec.  751.9  Effective control.

    (a) In order to provide effective control of junkyards located 
within 1,000 feet of Interstate and Federal-aid primary highways, the 
State must:
    (1) Require such junkyards located outside of zoned and unzoned 
industrial areas to be screened or located so as not to be visible from 
the main traveled way, or be removed from sight.
    (2) Require the screening or removal of nonconforming junkyards 
within a reasonable time, but no later than 5 years after the date the 
junkyard becomes nonconforming unless Federal funds are not available in 
adequate amounts to participate in the cost of such screening or removal 
as provided in 23 U.S.C. 136(j).
    (3) Prohibit the establishment of new junkyards unless they comply 
with the requirements of paragraph (a)(1) of this section.
    (4) Expeditiously require junkyards which are illegally established 
or maintained to conform to the requirements of paragraph (a)(1) of this 
section.
    (b) Sanitary landfills as described herein need not be screened to 
satisfy requirements of Title 23, U.S.C., but landscaping should be 
required when the fill has been completed and operations have ceased, 
unless the landfill area is to be used for immediate development 
purposes. A sanitary landfill, for the purposes of this part, is a 
method of disposing of refuse on land without creating a nuisance or 
hazards to public health or safety by utilizing the principles of 
engineering to confine the refuse to the smallest practical area, to 
reduce it to the smallest practical volume, and to cover it with a layer 
of earth at the conclusion of each day's operation or at such more 
frequent intervals as may be necessary.
    (c) The State shall have laws, rules, and procedures sufficient to 
provide effective control, to discover illegally established or 
maintained junkyards shortly after such occurrence, and to cause the 
compliance or removal of same promptly in accordance with State legal 
procedures.



Sec.  751.11  Nonconforming junkyards.

    Subject to the provisions of Sec.  751.9 of this part, the following 
requirements for the maintenance and continuance of a nonconforming 
junkyard apply:
    (a) The junkyard must have been actually in existence at the time 
the State law or regulations became effective as distinguished from a 
contemplated use, except where a permit or similar specific State 
governmental action was granted for the establishment of a junkyard 
prior to the effective date of the State law or regulations, and the 
junkyard owner acted in good faith and expended sums in reliance 
thereon.
    (b) There must be existing property rights in the junkyard or junk 
affected by the State law or regulation. Abandoned junk and junkyards, 
worthless junk, and the like are not similarly protected.
    (c) If the location of a nonconforming junkyard is changed as a 
result of a right-of-way taking or for any other reason, it ceases to be 
a nonconforming junkyard, and shall be treated as a new junkyard at a 
new location.
    (d) The nonconforming junkyard must have been lawful on the 
effective date of the State law or regulations and must continue to be 
lawfully maintained.
    (e) The nonconforming junkyard may continue as long as it is not 
extended, enlarged, or changed in use. Once a junkyard has been made 
conforming, the placement of junk so that it may be seen above or beyond 
a screen, or otherwise becomes visible, shall be treated the same as the 
establishment of a new junkyard.
    (f) The nonconforming junkyard may continue as long as it is not 
abandoned, destroyed, or voluntarily discontinued. Each State should 
develop criteria to define these terms.

[[Page 517]]



Sec.  751.13  Control measures.

    (a) Consistent with the goals of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4321), recycling of junk and scrap is to be 
encouraged to the greatest extent practicable in the implementation of 
the junkyard control program. Recycling should be considered in 
conjunction with other control measures. To facilitate recycling, junk 
or scrap should be moved to an automobile wrecker, or a scrap processor, 
or put to some other useful purpose.
    (b) Every effort shall be made to screen where the junkyard is to 
continue as an ongoing business. Screening may be accomplished by use of 
natural objects, landscaping plantings, fences, and other appropriate 
means, including relocating inventory on site to utilize an existing 
natural screen or a screenable portion of the site.
    (c) Where screening is used, it must, upon completion of the 
screening project, effectively screen the junkyard from the main 
traveled way of the highway on a year-round basis, and be compatible 
with the surroundings. Each State shall establish criteria governing the 
location, design, construction, maintenance, and materials used in 
fencing or screening.
    (d) A junkyard should be relocated only when other control measures 
are not feasible. Junkyards should be relocated to a site not visible 
from the highway or to an industrial area, and should not be relocated 
to residential, commercial, or other areas where foreseeable 
environmental problems may develop.
    (e) The State may develop and use other methods of operation to 
carry out the purposes of this directive, subject to prior FHWA 
approval.



Sec.  751.15  Just compensation.

    (a) Just compensation shall be paid the owner for the relocation, 
removal, or disposal of junkyards lawfully established under State law, 
which are required to be removed, relocated, or disposed of pursuant to 
23 U.S.C. 136.
    (b) No rights to compensation accrue until a taking or removal has 
occurred. The conditions which establish a right to maintain and 
continue a nonconforming junkyard as provided in Sec.  751.11 must 
pertain at the time of the taking or removal in order to establish a 
right to just compensation.



Sec.  751.17  Federal participation.

    (a) Federal funds may participate in 75 percent of the costs of 
control measures incurred in carrying out the provisions of this part 
including necessary studies for particular projects, and the employment 
of fee landscape architects and other qualified consultants.
    (b) Where State control standards are more stringent than Federal 
control requirements along Interstate and primary highways, the FHWA may 
approve Federal participation in the costs of applying the State 
standards on a statewide basis. Where State standards require control of 
junkyards in zoned or unzoned industrial areas, Federal funds may 
participate only if such action will make an effective contribution to 
the character of the area as a whole and the cost is reasonable, but 
such projects should be deferred until the work in the areas where 
control is required has progressed well toward completion.
    (c) Generally, only costs associated with the acquisition of minimal 
real property interests, such as easements or temporary rights of entry, 
necessary to accomplish the purposes of this part are eligible for 
Federal participation. The State may request, on a case-by-case basis, 
participation in costs of other interests beyond the minimum necessary, 
including fee title.
    (d) Federal funds may participate in costs to correct the 
inadequacies of screening in prior control projects where the inadequacy 
is due to higher screening standards established in this part or due to 
changed conditions.
    (e) Federal funds may participate in the costs of moving junk or 
scrap to a recycling place of business, or in the case of junk with 
little or no recycling potential, to a site for permanent disposal. In 
the latter case, reasonable land rehabilitation costs or fees connected 
with the use of such a disposal site are also eligible. In a case where 
the acquisition of a permanent disposal site by the State would be the 
most economical method of disposal, Federal funds may participate in the 
net cost (cost of acquisition less a credit after

[[Page 518]]

disposal) of a site obtained for this purpose.
    (f) Federal funds may participate in control measure costs involved 
in any junkyard lawfully established or maintained under State law which 
is reclassified from conforming to nonconforming under revised State 
regulations and policy pursuant to this part.
    (g) Federal funds may participate in the costs of acquisition of a 
dwelling in exceptional cases where such acquisition is found necessary 
and in the public interest, and where acquisition of the dwelling can be 
accomplished without resort to eminent domain.
    (h) Federal funds shall not participate in:
    (1) Costs associated with the control of illegal junkyards except 
for removal by State personnel on a force account basis or by contract, 
or in costs of controlling junkyards established after the effective 
date of the State's compliance law except where a conforming junkyard 
later becomes nonconforming due to changed conditions;
    (2) Any costs associated with the acquisition of any dwelling or its 
related buildings if acquired through eminent domain in connection with 
the junkyard control program;
    (3) Costs of acquisition of interests or rights as a measure for 
prohibition or control of the establishment of future junkyards;
    (4) Costs of maintaining screening devices after they have been 
erected; or
    (5) Costs of screening junk which has been or will be removed as a 
part of a junkyard control project.



Sec.  751.19  Documentation for Federal participation.

    The following information concerning each eligible junkyard must be 
available in the States' files to be eligible for Federal participation 
in the costs thereof:
    (a) Satisfactory evidence of ownership of the junk or junkyard or 
both.
    (b) Value or cost documentation (including separate interests if 
applicable) including proof of obligation or payment of funds.
    (c) Evidence that the necessary property interests have passed to 
the State and that the junk has been screened, relocated, removed or 
disposed of in accordance with the provisions of this part.
    (d) If a dwelling has been acquired by condemnation, evidence that 
the costs involved are not included in the State's claim for 
participation.

[40 FR 8551, Feb. 28, 1975; 40 FR 12260, Mar. 18, 1975]



Sec.  751.21  Relocation assistance.

    Relocation assistance benefits pursuant to 49 CFR part 24 are 
available for:
    (a) The actual reasonable moving expenses of the junk, actual direct 
loss of tangible personal property and actual reasonable expenses in 
searching for a replacement business or, if the eligibility requirements 
are met, a payment in lieu of such expenses.
    (b) Relocation assistance in locating a replacement business.
    (c) Moving costs of personal property from a dwelling and relocation 
assistance in locating a replacement dwelling, provided the acquisition 
of the real property used for the business causes a person to vacate a 
dwelling.
    (d) Replacement housing payments if the acquisition of the dwelling 
is found by FHWA to be necessary for the federally assisted junkyard 
control project.

[40 FR 8551, Feb. 28, 1975, as amended at 50 FR 34094, Aug. 23, 1985; 54 
FR 47076, Nov. 9, 1989]



Sec.  751.23  Concurrent junkyard control and right-of-way projects.

    The State is encouraged to coordinate junkyard control and highway 
right-of-way projects. Expenses incurred in furtherance of concurrent 
projects shall be prorated between projects.



Sec.  751.25  Programming and authorization.

    (a) Junkyard control projects shall be programmed in accordance with 
the provisions of part 630, subpart A of this chapter. Such projects may 
include one or more junkyards.
    (b) Authorization to proceed with a junkyard control project may be 
given when the State submits a written request to FHWA which includes 
the following:
    (1) The zoning and validation of the legal status of each junkyard 
on the project;

[[Page 519]]

    (2) The control measures proposed for each junkyard including, where 
applicable, information relative to permanent disposal sites to be 
acquired by the State;
    (3) The real property interest to be acquired in order to implement 
the control measures;
    (4) Plans or graphic displays indicating the location of the 
junkyard relative to the highway, the 1,000 foot control lines, property 
ownership boundaries, the general location of the junk or scrap 
material, and any buildings, structures, or improvement involved; and
    (5) Where screening is to be utilized, the type of screening, and 
adequately detailed plans and cross sections, or other adequate graphic 
displays which illustrate the relationship of the motorist, the screen, 
and the material to be screened at critical points of view.

[40 FR 8551, Feb. 28, 1975, as amended at 41 FR 9321, Mar. 4, 1976]



PART 752_LANDSCAPE AND ROADSIDE DEVELOPMENT--Table of Contents



Sec.
752.1 Purpose.
752.2 Policy.
752.3 Definitions.
752.4 Landscape development.
752.5 Safety rest areas.
752.6 Scenic overlooks.
752.7 Information centers and systems.
752.8 Privately operated information centers and systems.
752.9 Scenic lands.
752.10 Abandoned vehicles.
752.11 Federal participation.

    Authority: 23 U.S.C. 131, 315, 319; 42 U.S.C. 4321 et seq.; 49 CFR 
1.48(b), unless otherwise noted.

    Source: 43 FR 19390, May 5, 1978, unless otherwise noted.



Sec.  752.1  Purpose.

    The purpose of this part is to furnish guidelines and prescribe 
policies regarding landscaping and scenic enhancement programs, safety 
rest areas, and scenic overlooks under 23 U.S.C. 319; information 
centers and systems under 23 U.S.C. 131(i); and vending machines in 
safety rest areas under 23 U.S.C. 111.

[48 FR 38610, Aug. 25, 1983]



Sec.  752.2  Policy.

    (a) Highway esthetics is a most important consideration in the 
Federal-aid highway program. Highways must not only blend with our 
natural social, and cultural environment, but also provide pleasure and 
satisfaction in their use.
    (b) The FHWA will cooperate with State and local agencies and 
organizations to provide opportunities for the display of original works 
of art within the highway rights-of-way.
    (c) The development of the roadside to include landscape 
development, safety rest areas, and the preservation of valuable 
adjacent scenic lands is a necessary component of highway development. 
Planning and development of the roadside should be concurrent with or 
closely follow that of the highway. Further, the development of travel 
information centers and systems is encouraged as an effective method of 
providing necessary information to the traveling public.



Sec.  752.3  Definitions.

    (a) Safety rest area. A roadside facility safely removed from the 
traveled way with parking and such facilities for the motorist deemed 
necessary for his rest, relaxation, comfort and information needs. The 
term is synonymous with ``rest and recreation areas.''
    (b) Scenic overlook. A roadside improvement for parking and other 
facilities to provide the motorist with a safe opportunity to stop and 
enjoy a view.
    (c) Information centers. Facilities located at safety rest areas 
which provide information of interest to the traveling public.
    (d) Information systems. Facilities located within the right-of-way 
which provide information of interest to the traveling public. An 
information system is not a sign, display or device otherwise permitted 
under 23 U.S.C. 131 or prohibited by any local, State or Federal law or 
regulation.
    (e) Landscape project. Any action taken as part of a highway 
construction project or as a separate action to enhance the esthetics of 
a highway through the placement of plant materials consistent with a 
landscape design plan. Seeding undertaken for erosion control and 
planting vegetation

[[Page 520]]

for screening purposes shall not constitute a landscaping project.

[43 FR 19390, May 5, 1978, as amended at 52 FR 34638, Sept. 14, 1987]



Sec.  752.4  Landscape development.

    (a) Landscape development, which includes landscaping projects and 
other highway planting programs within the right-of-way of all federally 
funded highways or on adjoining scenic lands, shall be in general 
comformity with accepted concepts and principles of highway landscaping 
and environmental design.
    (b) Landscape development should have provisions for plant 
establishment periods of a duration sufficient for expected survival in 
the highway environment. Normal 1-year plant establishment periods may 
be extended to 3-year periods where survival is considered essential to 
their function, such as junkyard screening or urban landscaping 
projects.
    (c) In urban areas new and major reconstructed highways and 
completed Interstate and expressway sections are to be landscaped as 
appropriate for the adjacent existing or planned environment.
    (d) In rural areas new and major reconstructed highways should be 
landscaped as appropriate for the adjacent environment. Planning should 
include the opportunity for natural regeneration of native growth and 
the management of that growth.
    (e) Landscaping projects shall include the planting of native 
wildflower seeds or seedlings or both, unless a waiver is granted as 
provided in Sec.  752.11(b).

[43 FR 19390, May 5, 1978, as amended at 52 FR 34638, Sept. 14, 1987]



Sec.  752.5  Safety rest areas.

    (a) Safety rest areas should provide facilities reasonably necessary 
for the comfort, convenience, relaxation, and information needs of the 
motorist. Caretakers' quarters may be provided in conjunction with a 
safety rest area at such locations where accommodations are deemed 
necessary. All facilities within the rest area are to provide full 
consideration and accommodation for the handicapped.
    (b) The State may permit the placement of vending machines in 
existing or new safety rest areas located on the rights-of-way of the 
Interstate system for the purpose of dispensing such food, drink, or 
other articles as the State determines are appropriate and desirable, 
except that the dispensing by any means, of petroleum products or motor 
vehicle replacement parts shall not be allowed. Such vending machines 
shall be operated by the State.
    (c) The State may operate the vending machines directly or may 
contract with a vendor for the installation, operation, and maintenance 
of the vending machines. In permitting the placement of vending machines 
the State shall give priority to vending machines which are operated 
through the State licensing agency designated pursuant to section 
2(a)(5) of the Randolph-Sheppard Act, U.S.C. 107(a)(5).
    (d) Access from the safety rest areas to adjacent publicly owned 
conservation and recreation areas may be permitted if access to these 
areas is only available through the rest area and if these areas or 
their usage does not adversely affect the facilities of the safety rest 
area.
    (e) The scenic quality of the site, its accessibility and 
adaptability, and the availability of utilities are the prime 
considerations in the selection of rest area sites. A statewide safety 
rest area system plan should be maintained. This plan should include 
development priorities to ensure safety rest areas will be constructed 
first at locations most needed by the motorist. Proposals for safety 
rest areas or similar facilities on Federal-aid highways in suburban or 
urban areas shall be special case and must be fully justified before 
being authorized by the FHWA Regional Administrator.
    (f) Facilities within newly constructed safety rest areas should 
meet the forecast needs of the design year. Expansion and modernization 
of older existing rest areas that do not provide adequate service should 
be considered.
    (g) No charge to the public may be made for goods and services at 
safety rest areas except for telephone and articles dispensed by vending 
machines.

[43 FR 19390, May 5, 1978, as amended at 48 FR 38611, Aug. 25, 1983]

[[Page 521]]



Sec.  752.6  Scenic overlooks.

    Scenic overlooks shall be located and designed as appropriate to the 
site and the scenic view with consideration for safety, access, and 
convenience of the motorist. Scenic overlooks may provide facilities 
equivalent to those provided in safety rest area.



Sec.  752.7  Information centers and systems.

    (a) The State may establish at existing or new safety rest areas 
information centers for the purpose of providing specific information to 
the motorist as to services, as to places of interest within the State 
and such other information as the State may consider desirable.
    (b) The State may construct and operate the facilities, may 
construct and lease the operation of information facilities, or may 
lease the construction and operation of information facilities.
    (c) Where the information center or system includes an enclosed 
building, the identification of the operator and all advertising must be 
restricted to the interior of the building. Where a facility is in the 
nature of a bulletin board or partial enclosure, none of the 
advertising, including the trade name, logo, or symbol of the operator 
shall be legible from the main traveled way.
    (d) Subject to FHWA approval, States may establish or permit 
information systems within the right-of-way of federally funded highways 
which provide information of specific interest to the traveling public 
which do not visually intrude upon the main-traveled way of the highway 
in a manner violating 23 U.S.C. 131 and other applicable local, State, 
and Federal laws, rules, and regulations.



Sec.  752.8  Privately operated information centers and systems.

    (a) Subject to the FHWA Regional Administrator's approval of the 
lease or agreement, the State may permit privately operated information 
centers and systems which conform with the standards of this directive.
    (b) There shall be no violation of control of access, and no adverse 
effect on traffic in the main traveled way.
    (c) The agreement between the State and the private operator shall 
provide that:
    (1) The State shall have title to the information center or system 
upon completion of construction or termination of the lease.
    (2) Advertising must be limited to matters relating to and of 
interest to the traveling public.
    (3) Equal access must be provided at reasonable rates to all 
advertisers considered qualified by the State.
    (4) Forty percent or more of all display areas and audible 
communications shall be devoted free of charge to providing information 
to the traveling public and public service announcements.
    (5) No charge to the public may be made for goods or services except 
telephone and articles dispensed by vending machines.
    (6) Nondiscrimination provisions must be included in accordance with 
the State assurance with regard to 42 U.S.C. 2000d--2000d-5 (Civil 
Rights Act of 1964). The private operator may not permit advertising 
from advertisers who do not provide their services without regard to 
race, color, or national origin.
    (7) The center or system shall be adequately maintained and kept 
clean and sanitary.
    (8) The State may promulgate reasonable rules and regulations on the 
conduct of the information center or system in the interests of the 
public.
    (9) The State may terminate the lease or agreement for violation of 
its terms or for other cause.

[43 FR 19390, May 5, 1978, as amended at 48 FR 38611, Aug. 25, 1983]



Sec.  752.9  Scenic lands.

    (a) Acquisition of interests in and improvement of strips of land or 
water areas adjacent to Federal-aid highways may be made as necessary 
for restoration, preservation, and enhancement of scenic beauty.
    (b) Scenic strip interests may be acquired in urban or rural areas, 
combined in one or more projects, authorized separately whether or not 
there is or has been a Federal-aid project on the adjoining Federal-aid 
highway.

[[Page 522]]

    (c) Approval of acquisition and development of scenic strips on 
completed Interstate should be conditioned on a showing that the 
acquisition of scenic strips was considered under the Highway 
Beautification Program for that particular section of Interstate.



Sec.  752.10  Abandoned vehicles.

    (a) Abandoned motor vehicles may be removed from the right-of-way 
and from private lands adjacent to Federal-aid highways for the 
restoration, preservation, or enhancement of scenic beauty as seen from 
the traveled way of the highway as a landscape or roadside development 
project.
    (b) The State shall obtain permission or sufficient legal authority 
to go on private land to carry out this program. Where feasible, an 
agreement should be made with the owner that he will not in the future 
place junk, or allow junk to be placed, on his land so as to create an 
eyesore to the traveling public. The permission or authority and the 
agreement may be informal.
    (c) The collection of abandoned motor vehicles from within the 
right-of-way must be a development project and not a maintenance 
operation. Once a State completes a development project for the removal 
of abandoned motor vehicles from within the highway right-of-way, it is 
obligated to continue the removal of future abandoned motor vehicles 
from within the development project limits without further 
participation.



Sec.  752.11  Federal participation.

    (a) Federal-aid highway funds, but generally excluding Interstate 
construction funds, are available for landscape development; for the 
acquisition and development of safety rest areas, scenic overlooks, and 
scenic lands; for the development of information centers and systems; 
and for the removal of abandoned motor vehicles.
    (b) Federal-aid highway funds may participate in any landscaping 
project undertaken pursuant to paragraph (a) of this section provided 
that at least one-quarter of one percent of funds expended for such 
landscaping project is used to plant native wildflower seeds or 
seedlings or both. The Administrator may, upon the request of a State 
highway agency, grant a waiver to this requirement provided the State 
certifies that:
    (1) Native wildflowers or seedlings cannot be grown satisfactorily; 
or
    (2) There is a scarcity of available planting areas; or
    (3) The available planting areas will be used for agricultural 
purposes.
    (c) Subject to the requirement of paragraph (b) of this section, 
Federal-aid highway funds may participate in plant establishment periods 
in or associated with landscape development.
    (d) Notwithstanding the provisions of paragraph (b) of this section, 
Federal-aid highway funds may participate in the planting of flowering 
materials, including native wildflowers, donated by garden clubs and 
other organizations or individuals.
    (e) The value of donated plant materials shall not count toward the 
one-quarter of one percent minimum expenditure required by paragraph (b) 
of this section.
    (f) Federal-aid funds may not be used for assemblage, printing, or 
distribution of information materials; for temporary or portable 
information facilities; or for installation, operation, or maintenance 
of vending machines.

[52 FR 34638, Sept. 14, 1987]



PART 771_ENVIRONMENTAL IMPACT AND RELATED PROCEDURES--Table of Contents



Sec.
771.101 Purpose.
771.103 [Reserved]
771.105 Policy.
771.107 Definitions.
771.109 Applicability and responsibilities.
771.111 Early coordination, public involvement, and project development.
771.113 Timing of Administration activities.
771.115 Classes of actions.
771.116 FRA categorical exclusions.
771.117 FHWA categorical exclusions.
771.118 FTA categorical exclusions.
771.119 Environmental assessments.
771.121 Findings of no significant impact.
771.123 Draft environmental impact statements.
771.124 Final environmental impact statement/record of decision 
          document.
771.125 Final environmental impact statements.
771.127 Record of decision.
771.129 Re-evaluations.

[[Page 523]]

771.130 Supplemental environmental impact statements.
771.131 Emergency action procedures.
771.133 Compliance with other requirements.
771.137 International actions.
771.139 Limitations on actions.

    Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 
139, 315, 325, 326, and 327; 49 U.S.C. 303; 49 U.S.C. 24201; 40 CFR 
parts 1500-1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 
1144, Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, Sections 
1315, 1316, 1317, 1318, and 1319; and Public Law 114-94, 129 Stat. 1312, 
Sections 1304 and 1432.

    Source: 83 FR 54493, Oct. 29, 2018, unless otherwise noted.



Sec.  771.101  Purpose.

    This part prescribes the policies and procedures of the Federal 
Highway Administration (FHWA), the Federal Railroad Administration 
(FRA), and the Federal Transit Administration (FTA) for implementing the 
National Environmental Policy Act of 1969 as amended (NEPA), and 
supplements the NEPA regulations of the Council on Environmental Quality 
(CEQ), 40 CFR parts 1500 through 1508 (CEQ regulations). Together these 
regulations set forth all FHWA, FRA, FTA, and U.S. Department of 
Transportation (DOT) requirements under NEPA for the processing of 
highway, public transportation, and railroad actions. This part also 
sets forth procedures to comply with 23 U.S.C. 109(h), 128, 138, 139, 
325, 326, and 327; 49 U.S.C. 303; 49 U.S.C. 24201; and 5323(q); Public 
Law 112-141, 126 Stat. 405, section 1301 as applicable; and Public Law 
114-94, 129 Stat. 1312, section 1304.



Sec.  771.103  [Reserved]



Sec.  771.105  Policy.

    It is the policy of the Administration that:
    (a) To the maximum extent practicable and consistent with Federal 
law, all environmental investigations, reviews, and consultations be 
coordinated as a single process, and compliance with all applicable 
environmental requirements be reflected in the environmental review 
document required by this part.\1\
---------------------------------------------------------------------------

    \1\ FHWA, FRA, and FTA have supplementary guidance on environmental 
documents and procedures for their programs available on the internet at 
http://www.fhwa.dot.gov, http://www.fra.dot.gov, and http://
www.fta.dot.gov, or in hardcopy by request.
---------------------------------------------------------------------------

    (b) Programmatic approaches be developed for compliance with 
environmental requirements (including the requirements found at 23 
U.S.C. 139(b)(3)), coordination among agencies and/or the public, or to 
otherwise enhance and accelerate project development.
    (c) Alternative courses of action be evaluated and decisions be made 
in the best overall public interest based upon a balanced consideration 
of the need for safe and efficient transportation; of the social, 
economic, and environmental impacts of the proposed transportation 
improvement; and of national, State, and local environmental protection 
goals.
    (d) Public involvement and a systematic interdisciplinary approach 
be essential parts of the development process for proposed actions.
    (e) Measures necessary to mitigate adverse impacts be incorporated 
into the action. Measures necessary to mitigate adverse impacts are 
eligible for Federal funding when the Administration determines that:
    (1) The impacts for which the mitigation is proposed actually result 
from the Administration action; and
    (2) The proposed mitigation represents a reasonable public 
expenditure after considering the impacts of the action and the benefits 
of the proposed mitigation measures. In making this determination, the 
Administration will consider, among other factors, the extent to which 
the proposed measures would assist in complying with a Federal statute, 
executive order, or Administration regulation or policy.
    (f) Costs incurred by the applicant for the preparation of 
environmental documents requested by the Administration be eligible for 
Federal assistance.
    (g) No person, because of handicap, age, race, color, sex, or 
national origin, be excluded from participating in, or denied benefits 
of, or be subject to discrimination under any Administration

[[Page 524]]

program or procedural activity required by or developed pursuant to this 
part.



Sec.  771.107  Definitions.

    The definitions contained in the CEQ regulations and in titles 23 
and 49 of the United States Code are applicable. In addition, the 
following definitions apply to this part.
    Action. A highway, transit, or railroad project proposed for U.S. 
DOT funding. It also can include activities such as joint and multiple 
use permits, changes in access control, or rulemakings, which may or may 
not involve a commitment of Federal funds.
    Administration. The FHWA, FRA, or FTA, whichever is the designated 
Federal lead agency for the proposed action. A reference herein to the 
Administration means the FHWA, FRA, or FTA, or a State when the State is 
functioning as the FHWA, FRA, or FTA in carrying out responsibilities 
delegated or assigned to the State in accordance with 23 U.S.C. 325, 
326, or 327, or other applicable law. A reference herein to the FHWA, 
FRA, or FTA means the State when the State is functioning as the FHWA, 
FRA, or FTA respectively in carrying out responsibilities delegated or 
assigned to the State in accordance with 23 U.S.C. 325, 326, or 327, or 
other applicable law. Nothing in this definition alters the scope of any 
delegation or assignment made by FHWA, FRA, or FTA.
    Administration action. FHWA, FRA, or FTA approval of the applicant's 
request for Federal funds for construction. It also can include approval 
of activities, such as joint and multiple use permits, changes in access 
control, rulemakings, etc., that may or may not involve a commitment of 
Federal funds.
    Applicant. Any Federal, State, local, or federally recognized Indian 
Tribal governmental unit that requests funding approval or other action 
by the Administration and that the Administration works with to conduct 
environmental studies and prepare environmental review documents. When 
another Federal agency, or the Administration itself, is implementing 
the action, then the lead agencies (as defined in this section) may 
assume the responsibilities of the applicant in this part. If there is 
no applicant, then the Federal lead agency will assume the 
responsibilities of the applicant in this part.
    Environmental studies. The investigations of potential environmental 
impacts to determine the environmental process to be followed and to 
assist in the preparation of the environmental document.
    Lead agencies. The Administration and any other agency designated to 
serve as a joint lead agency with the Administration under 23 U.S.C. 
139(c)(3) or under the CEQ regulations.
    Participating agency. A Federal, State, local, or federally 
recognized Indian Tribal governmental unit that may have an interest in 
the proposed project and has accepted an invitation to be a 
participating agency or, in the case of a Federal agency, has not 
declined the invitation in accordance with 23 U.S.C. 139(d)(3).
    Programmatic approaches. An approach that reduces the need for 
project-by-project reviews, eliminates repetitive discussion of the same 
issue, or focuses on the actual issues ripe for analyses at each level 
of review, consistent with NEPA and other applicable law.
    Project sponsor. The Federal, State, local, or federally recognized 
Indian Tribal governmental unit, or other entity, including any private 
or public-private entity that seeks Federal funding or an Administration 
action for a project. Where it is not the applicant, the project sponsor 
may conduct some of the activities on the applicant's behalf.
    Section 4(f). Refers to 49 U.S.C. 303 and 23 U.S.C. 138 (as 
implemented by 23 CFR part 774).



Sec.  771.109  Applicability and responsibilities.

    (a)(1) The provisions of this part and the CEQ regulations apply to 
actions where the Administration exercises sufficient control to 
condition the permit, project, or other approvals. Steps taken by the 
applicant that do not require Federal approvals, such as preparation of 
a regional transportation plan, are not subject to this part.

[[Page 525]]

    (2) This part does not apply to or alter approvals by the 
Administration made prior to November 28, 2018.
    (3) For FHWA and FTA, environmental documents accepted or prepared 
after November 28, 2018 must be developed in accordance with this part.
    (4) FRA will apply this part to actions initiated after November 28, 
2018.
    (b)(1) The project sponsor, in cooperation with the Administration, 
is responsible for implementing those mitigation measures stated as 
commitments in the environmental documents prepared pursuant to this 
part unless the Administration approves of their deletion or 
modification in writing. The FHWA will ensure that this is accomplished 
as a part of its stewardship and oversight responsibilities. The FRA and 
FTA will ensure implementation of committed mitigation measures through 
incorporation by reference in the grant agreement, followed by reviews 
of designs and construction inspections.
    (2) When entering into Federal-aid project agreements pursuant to 23 
U.S.C. 106, FHWA must ensure that the State highway agency constructs 
the project in accordance with and incorporates all committed 
environmental impact mitigation measures listed in approved 
environmental review documents.
    (c) The following roles and responsibilities apply during the 
environmental review process:
    (1) The lead agencies are responsible for managing the environmental 
review process and the preparation of the appropriate environmental 
review documents.
    (2) Any State or local governmental entity applicant that is or is 
expected to be a direct recipient of funds under title 23, U.S. Code or 
chapter 53 of title 49, U.S. Code for the action, or is or is expected 
to be a direct recipient of financial assistance for which FRA is 
responsible (e.g., Subtitle V of Title 49, U.S. Code) must serve as a 
joint lead agency with the Administration in accordance with 23 U.S.C. 
139, and may prepare environmental review documents if the 
Administration furnishes guidance and independently evaluates the 
documents.
    (3) The Administration may invite other Federal, State, local, or 
federally recognized Indian Tribal governmental units to serve as joint 
lead agencies in accordance with the CEQ regulations. If the applicant 
is serving as a joint lead agency under 23 U.S.C. 139(c)(3), then the 
Administration and the applicant will decide jointly which other 
agencies to invite to serve as joint lead agencies.
    (4) When the applicant seeks an Administration action other than the 
approval of funds, the Administration will determine the role of the 
applicant in accordance with the CEQ regulations and 23 U.S.C. 139.
    (5) Regardless of its role under paragraphs (c)(2) through (c)(4) of 
this section, a public agency that has statewide jurisdiction (for 
example, a State highway agency or a State department of transportation) 
or a local unit of government acting through a statewide agency, that 
meets the requirements of section 102(2)(D) of NEPA, may prepare the EIS 
and other environmental review documents with the Administration 
furnishing guidance, participating in the preparation, and independently 
evaluating the document. All FHWA applicants qualify under this 
paragraph.
    (6) Subject to paragraph (e) of this section, the role of a project 
sponsor that is a private institution or firm is limited to providing 
technical studies and commenting on environmental review documents.
    (7) A participating agency must provide input during the times 
specified in the coordination plan under 23 U.S.C. 139(g) and within the 
agency's special expertise or jurisdiction. Participating agencies 
provide comments and concurrence on the schedule within the coordination 
plan.
    (d) When entering into Federal-aid project agreements pursuant to 23 
U.S.C. 106, the State highway agency must ensure that the project is 
constructed in accordance with and incorporates all committed 
environmental impact mitigation measures listed in approved 
environmental review documents unless the State requests and receives 
written FHWA approval to modify or delete such mitigation features.

[[Page 526]]

    (e) When FRA is the lead Federal agency, the project sponsor is a 
private entity, and there is no applicant acting as a joint-lead agency, 
FRA and the project sponsor may agree to use a qualified third-party 
contractor to prepare an EIS. Under this arrangement, a project sponsor 
retains a contractor to assist FRA in conducting the environmental 
review. FRA selects, oversees, and directs the preparation of the EIS 
and retains ultimate control over the contractor's work. To enter into a 
third-party contract, FRA, the project sponsor, and the contractor will 
enter into a memorandum of understanding (MOU) that outlines at a 
minimum the conditions and procedures to be followed in carrying out the 
MOU and the responsibilities of the parties to the MOU. FRA may require 
use of a third-party contractor for preparation of an EA at its 
discretion.



Sec.  771.111  Early coordination, public involvement, and project development.

    (a)(1) Early coordination with appropriate agencies and the public 
aids in determining the type of environmental review documents an action 
requires, the scope of the document, the level of analysis, and related 
environmental requirements. These activities contribute to reducing or 
eliminating delay, duplicative processes, and conflict, including by 
incorporating planning outcomes that have been reviewed by agencies and 
Indian Tribal partners in project development.
    (2)(i) The information and results produced by or in support of the 
transportation planning process may be incorporated into environmental 
review documents in accordance with 40 CFR parts 1500 through 1508, 23 
CFR part 450, 23 CFR part 450 Appendix A, or 23 U.S.C. 139(f), 168, or 
169, as applicable.
    (ii) The planning process described in paragraph (a)(2)(i) of this 
section may include mitigation actions consistent with a programmatic 
mitigation plan developed pursuant to 23 U.S.C. 169 or from a 
programmatic mitigation plan developed outside of that framework.
    (3) Applicants intending to apply for funds or request 
Administration action should notify the Administration at the time that 
a project concept is identified. When requested, the Administration will 
advise the applicant, insofar as possible, of the probable class of 
action (see Sec.  771.115) and related environmental laws and 
requirements and of the need for specific studies and findings that 
would normally be developed during the environmental review process. A 
lead agency, in consultation with participating agencies, must develop 
an environmental checklist, as appropriate, to assist in resource and 
agency identification.
    (b)(1) The Administration will identify the probable class of action 
as soon as sufficient information is available to identify the probable 
impacts of the action.
    (2) For projects to be evaluated with an EIS, the Administration 
must respond in writing to a project sponsor's formal project 
notification within 45 days of receipt.
    (c) When the FHWA, FRA, or FTA are jointly involved in the 
development of an action, or when the FHWA, FRA, or FTA act as a joint 
lead agency with another Federal agency, a mutually acceptable process 
will be established on a case-by-case basis. A project sponsor may 
request the Secretary to designate the lead Federal agency when project 
elements fall within the expertise of multiple U.S. DOT agencies.
    (d) During early coordination, the lead agencies may invite other 
agencies that may have an interest in the action to participate. The 
lead agencies must, however, invite such agencies if the action is 
subject to the project development procedures in 23 U.S.C. 139 within 45 
days from publication of the notice of intent.\2\ Any such agencies with 
special expertise concerning the action may also be invited to become 
cooperating agencies. Any such agencies with jurisdiction by law 
concerning the action must be invited to become cooperating agencies.
---------------------------------------------------------------------------

    \2\ The Administration has guidance on 23 U.S.C. 139 available at 
http://www.fhwa.dot.gov or in hard copy upon request.
---------------------------------------------------------------------------

    (e) Other States and Federal land management entities that may be 
significantly affected by the action or by any of the alternatives must 
be notified early and their views solicited by

[[Page 527]]

the applicant in cooperation with the Administration. The Administration 
will provide direction to the applicant on how to approach any 
significant unresolved issues as early as possible during the 
environmental review process.
    (f) Any action evaluated under NEPA as a categorical exclusion (CE), 
environmental assessment (EA), or environmental impact statement (EIS) 
must:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or independent significance, i.e., be 
usable and be a reasonable expenditure even if no additional 
transportation improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    (g) For major transportation actions, the tiering of EISs as 
discussed in the CEQ regulation (40 CFR 1502.20) may be appropriate. The 
first tier EIS would focus on broad issues such as general location, 
mode choice, and areawide air quality and land use implications of the 
major alternatives. The second tier would address site-specific details 
on project impacts, costs, and mitigation measures.
    (h) For the Federal-aid highway program:
    (1) Each State must have procedures approved by the FHWA to carry 
out a public involvement/public hearing program pursuant to 23 U.S.C. 
128 and 139 and CEQ regulations.
    (2) State public involvement/public hearing procedures must provide 
for:
    (i) Coordination of public involvement activities and public 
hearings with the entire NEPA process;
    (ii) Early and continuing opportunities during project development 
for the public to be involved in the identification of social, economic, 
and environmental impacts, as well as impacts associated with relocation 
of individuals, groups, or institutions;
    (iii) One or more public hearings or the opportunity for hearing(s) 
to be held by the State highway agency at a convenient time and place 
for any Federal-aid project that requires significant amounts of right-
of-way, substantially changes the layout or functions of connecting 
roadways or of the facility being improved, has a substantial adverse 
impact on abutting property, otherwise has a significant social, 
economic, environmental or other effect, or for which the FHWA 
determines that a public hearing is in the public interest;
    (iv) Reasonable notice to the public of either a public hearing or 
the opportunity for a public hearing. Such notice will indicate the 
availability of explanatory information. The notice must also provide 
information required to comply with public involvement requirements of 
other laws, executive orders, and regulations;
    (v) Explanation at the public hearing of the following information, 
as appropriate:
    (A) The project's purpose, need, and consistency with the goals and 
objectives of any local urban planning,
    (B) The project's alternatives and major design features,
    (C) The social, economic, environmental, and other impacts of the 
project,
    (D) The relocation assistance program and the right-of-way 
acquisition process, and
    (E) The State highway agency's procedures for receiving both oral 
and written statements from the public;
    (vi) Submission to the FHWA of a transcript of each public hearing 
and a certification that a required hearing or hearing opportunity was 
offered. The transcript will be accompanied by copies of all written 
statements from the public, both submitted at the public hearing or 
during an announced period after the public hearing;
    (vii) An opportunity for public involvement in defining the purpose 
and need and the range of alternatives, for any action subject to the 
project development procedures in 23 U.S.C. 139; and
    (viii) Public notice and an opportunity for public review and 
comment on a Section 4(f) de minimis impact finding, in accordance with 
23 CFR 774.5(b)(2)(i).
    (i) Applicants for FRA programs or the FTA capital assistance 
program:
    (1) Achieve public participation on proposed actions through 
activities that engage the public, including public hearings, town 
meetings, and

[[Page 528]]

charrettes, and seek input from the public through scoping for the 
environmental review process. Project milestones may be announced to the 
public using electronic or paper media (e.g., newsletters, note cards, 
or emails) pursuant to 40 CFR 1506.6. For actions requiring EISs, an 
early opportunity for public involvement in defining the purpose and 
need for the action and the range of alternatives must be provided, and 
a public hearing will be held during the circulation period of the draft 
EIS.
    (2) May participate in early scoping as long as enough project 
information is known so the public and other agencies can participate 
effectively. Early scoping constitutes initiation of NEPA scoping while 
local planning efforts to aid in establishing the purpose and need and 
in evaluating alternatives and impacts are underway. Notice of early 
scoping must be made to the public and other agencies. If early scoping 
is the start of the NEPA process, the early scoping notice must include 
language to that effect. After development of the proposed action at the 
conclusion of early scoping, FRA or FTA will publish the notice of 
intent if it is determined at that time that the proposed action 
requires an EIS. The notice of intent will establish a 30-day period for 
comments on the purpose and need, alternatives, and the scope of the 
NEPA analysis.
    (3) Are encouraged to post and distribute materials related to the 
environmental review process, including, environmental documents (e.g., 
EAs and EISs), environmental studies (e.g., technical reports), public 
meeting announcements, and meeting minutes, through publicly-accessible 
electronic means, including project websites. Applicants should keep 
these materials available to the public electronically until the project 
is constructed and open for operations.
    (4) Should post all findings of no significant impact (FONSIs), 
combined final environmental impact statements (final EISs)/records of 
decision (RODs), and RODs on a project website until the project is 
constructed and open for operation.
    (j) Information on the FHWA environmental process may be obtained 
from: FHWA Director, Office of Project Development and Environmental 
Review, Federal Highway Administration, Washington, DC 20590, or 
www.fhwa.dot.gov. Information on the FRA environmental process may be 
obtained from: FRA Chief, Environmental and Corridor Planning Division, 
Office of Program Delivery, Federal Railroad Administration, Washington, 
DC 20590, or www.fra.dot.gov. Information on the FTA environmental 
process may be obtained from: FTA Director, Office of Environmental 
Programs, Federal Transit Administration, Washington, DC 20590 or 
www.fta.dot.gov.



Sec.  771.113  Timing of Administration activities.

    (a) The lead agencies, in cooperation with the applicant and project 
sponsor, as appropriate, will perform the work necessary to complete the 
environmental review process. This work includes drafting environmental 
documents and completing environmental studies, related engineering 
studies, agency coordination, public involvement, and identification of 
mitigation measures. Except as otherwise provided in law or in paragraph 
(d) of this section, final design activities, property acquisition, 
purchase of construction materials or rolling stock, or project 
construction must not proceed until the following have been completed:
    (1)(i) The Administration has classified the action as a CE;
    (ii) The Administration has issued a FONSI; or
    (iii) The Administration has issued a combined final EIS/ROD or a 
final EIS and ROD;
    (2) For actions proposed for FHWA funding, the Administration has 
received and accepted the certifications and any required public hearing 
transcripts required by 23 U.S.C. 128;
    (3) For activities proposed for FHWA funding, the programming 
requirements of 23 CFR part 450, subpart B, and 23 CFR part 630, subpart 
A, have been met.
    (b) For FHWA actions, completion of the requirements set forth in 
paragraphs (a)(1) and (2) of this section is considered acceptance of 
the general project location and concepts described

[[Page 529]]

in the environmental review documents unless otherwise specified by the 
approving official.
    (c) Letters of Intent issued under the authority of 49 U.S.C. 
5309(g) are used by FTA to indicate an intention to obligate future 
funds for multi-year capital transit projects. Letters of Intent will 
not be issued by FTA until the NEPA process is completed.
    (d) The prohibition in paragraph (a)(1) of this section is limited 
by the following exceptions:
    (1) Early acquisition, hardship and protective acquisitions of real 
property in accordance with 23 CFR part 710, subpart E for FHWA. 
Exceptions for the acquisitions of real property are addressed in 
paragraphs (c)(6) and (d)(3) of Sec.  771.118 for FTA.
    (2) The early acquisition of right-of-way for future transit use in 
accordance with 49 U.S.C. 5323(q) and FTA guidance.
    (3) A limited exception for rolling stock is provided in 49 U.S.C. 
5309(l)(6).
    (4) FRA may make exceptions on a case-by-case basis for purchases of 
railroad components or materials that can be used for other projects or 
resold.



Sec.  771.115  Classes of actions.

    There are three classes of actions that prescribe the level of 
documentation required in the NEPA process. A programmatic approach may 
be used for any class of action.
    (a) EIS (Class I). Actions that significantly affect the environment 
require an EIS (40 CFR 1508.27). The following are examples of actions 
that normally require an EIS:
    (1) A new controlled access freeway.
    (2) A highway project of four or more lanes on a new location.
    (3) Construction or extension of a fixed transit facility (e.g., 
rapid rail, light rail, commuter rail, bus rapid transit) that will not 
be located primarily within an existing transportation right-of-way.
    (4) New construction or extension of a separate roadway for buses or 
high occupancy vehicles not located within an existing transportation 
right-of-way.
    (5) New construction or extension of a separate roadway for buses 
not located primarily within an existing transportation right-of-way.
    (6) New construction of major railroad lines or facilities (e.g., 
terminal passenger stations, freight transfer yards, or railroad 
equipment maintenance facilities) that will not be located within an 
existing transportation right-of-way.
    (b) CE (Class II). Actions that do not individually or cumulatively 
have a significant environmental effect are excluded from the 
requirement to prepare an EA or EIS. A specific list of CEs normally not 
requiring NEPA documentation is set forth in Sec.  771.117(c) for FHWA 
actions or pursuant to Sec.  771.118(c) for FTA actions. When 
appropriately documented, additional projects may also qualify as CEs 
pursuant to Sec.  771.117(d) for FHWA actions or pursuant to Sec.  
771.118(d) for FTA actions. FRA's CEs are listed in Sec.  771.116.
    (c) EA (Class III). Actions for which the Administration has not 
clearly established the significance of the environmental impact. All 
actions that are not EISs or CEs are EAs. All actions in this class 
require the preparation of an EA to determine the appropriate 
environmental document required.



Sec.  771.116  FRA categorical exclusions.

    (a) CEs are actions that meet the definition contained in 40 CFR 
1508.4, and, based on FRA's past experience with similar actions, do not 
involve significant environmental impacts. They are actions that do not 
induce significant impacts to planned growth or land use for the area; 
do not require the relocation of significant numbers of people; do not 
have a significant impact on any natural, cultural, recreational, 
historic or other resource; do not involve significant air, noise, or 
water quality impacts; do not have significant impacts on travel 
patterns; or do not otherwise, either individually or cumulatively, have 
any significant environmental impacts.
    (b) Any action that normally would be classified as a CE but could 
involve unusual circumstances will require FRA, in cooperation with the 
applicant, to conduct appropriate environmental studies to determine if 
the CE classification is proper. Such unusual circumstances include:

[[Page 530]]

    (1) Significant environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by Section 4(f) 
requirements or Section 106 of the National Historic Preservation Act; 
or
    (4) Inconsistencies with any Federal, State, or local law, 
requirement or administrative determination relating to the 
environmental aspects of the action.
    (c) Actions that FRA determines fall within the following categories 
of FRA CEs and that meet the criteria for CEs in the CEQ regulation (40 
CFR 1508.4) and paragraph (a) of this section may be designated as CEs 
only after FRA approval. FRA may request the applicant or project 
sponsor submit documentation to demonstrate that the specific conditions 
or criteria for these CEs are satisfied and that significant 
environmental effects will not result.
    (1) Administrative procurements (e.g., for general supplies) and 
contracts for personal services, and training.
    (2) Personnel actions.
    (3) Planning or design activities that do not commit to a particular 
course of action affecting the environment.
    (4) Localized geotechnical and other investigations to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (5) Internal orders, policies, and procedures not required to be 
published in the Federal Register under the Administrative Procedure 
Act, 5 U.S.C. 552(a)(1).
    (6) Rulemakings issued under section 17 of the Noise Control Act of 
1972, 42 U.S.C. 4916.
    (7) Financial assistance to an applicant where the financial 
assistance funds an activity that is already completed, such as 
refinancing outstanding debt.
    (8) Hearings, meetings, or public affairs activities.
    (9) Maintenance or repair of existing railroad facilities, where 
such activities do not change the existing character of the facility, 
including equipment; track and bridge structures; electrification, 
communication, signaling, or security facilities; stations; tunnels; 
maintenance-of-way and maintenance-of-equipment bases.
    (10) Emergency repair or replacement, including reconstruction, 
restoration, or retrofitting, of an essential rail facility damaged by 
the occurrence of a natural disaster or catastrophic failure. Such 
repair or replacement may include upgrades to meet existing codes and 
standards as well as upgrades warranted to address conditions that have 
changed since the rail facility's original construction.
    (11) Operating assistance to a railroad to continue existing service 
or to increase service to meet demand, where the assistance will not 
significantly alter the traffic density characteristics of existing rail 
service.
    (12) Minor rail line additions, including construction of side 
tracks, passing tracks, crossovers, short connections between existing 
rail lines, and new tracks within existing rail yards or right-of-way, 
provided that such additions are not inconsistent with existing zoning, 
do not involve acquisition of a significant amount of right-of-way, and 
do not significantly alter the traffic density characteristics of the 
existing rail lines or rail facilities.
    (13) Acquisition or transfer of real property or existing railroad 
facilities, including track and bridge structures; electrification, 
communication, signaling or security facilities; stations; and 
maintenance of way and maintenance of equipment bases or the right to 
use such real property and railroad facilities, for the purpose of 
conducting operations of a nature and at a level of use similar to those 
presently or previously existing on the subject properties or 
facilities.
    (14) Research, development, or demonstration activities on existing 
railroad lines or facilities, such as advances in signal communication 
or train control systems, equipment, or track, provided that such 
activities do not require the acquisition of a significant amount of 
right-of-way and do not significantly alter the traffic density

[[Page 531]]

characteristics of the existing rail line or facility.
    (15) Promulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly increased 
emissions of air or water pollutants or noise.
    (16) Alterations to existing facilities, locomotives, stations, and 
rail cars in order to make them accessible for the elderly and persons 
with disabilities, such as modifying doorways, adding or modifying 
lifts, constructing access ramps and railings, modifying restrooms, and 
constructing accessible platforms.
    (17) The rehabilitation, reconstruction or replacement of bridges, 
the rehabilitation or maintenance of the rail elements of docks or piers 
for the purposes of intermodal transfers, and the construction of 
bridges, culverts, or grade separation projects that are predominantly 
within existing right-of-way and that do not involve extensive in-water 
construction activities, such as projects replacing bridge components 
including stringers, caps, piles, or decks, the construction of roadway 
overpasses to replace at-grade crossings, construction or reconstruction 
of approaches or embankments to bridges, or construction or replacement 
of short span bridges.
    (18) Acquisition (including purchase or lease), rehabilitation, 
transfer, or maintenance of vehicles or equipment, including 
locomotives, passenger coachers, freight cars, trainsets, and 
construction, maintenance or inspection equipment, that does not 
significantly alter the traffic density characteristics of an existing 
rail line.
    (19) Installation, repair and replacement of equipment and small 
structures designed to promote transportation safety, security, 
accessibility, communication or operational efficiency that take place 
predominantly within the existing right-of-way and do not result in a 
major change in traffic density on the existing rail line or facility, 
such as the installation, repair or replacement of surface treatments or 
pavement markings, small passenger shelters, passenger amenities, 
benches, signage, sidewalks or trails, equipment enclosures, and 
fencing, railroad warning devices, train control systems, signalization, 
electric traction equipment and structures, electronics, photonics, and 
communications systems and equipment, equipment mounts, towers and 
structures, information processing equipment, and security equipment, 
including surveillance and detection cameras.
    (20) Environmental restoration, remediation, pollution prevention, 
and mitigation activities conducted in conformance with applicable laws, 
regulations and permit requirements, including activities such as noise 
mitigation, landscaping, natural resource management activities, 
replacement or improvement to storm water oil/water separators, 
installation of pollution containment systems, slope stabilization, and 
contaminated soil removal or remediation activities.
    (21) Assembly or construction of facilities or stations that are 
consistent with existing land use and zoning requirements, do not result 
in a major change in traffic density on existing rail or highway 
facilities, and result in approximately less than ten acres of surface 
disturbance, such as storage and maintenance facilities, freight or 
passenger loading and unloading facilities or stations, parking 
facilities, passenger platforms, canopies, shelters, pedestrian 
overpasses or underpasses, paving, or landscaping.
    (22) Track and track structure maintenance and improvements when 
carried out predominantly within the existing right-of-way that do not 
cause a substantial increase in rail traffic beyond existing or historic 
levels, such as stabilizing embankments, installing or reinstalling 
track, re-grading, replacing rail, ties, slabs and ballast, installing, 
maintaining, or restoring drainage ditches, cleaning ballast, 
constructing minor curve realignments, improving or replacing 
interlockings, and the installation or maintenance of ancillary 
equipment.
    (d) Any action qualifying as a CE under Sec.  771.117 or Sec.  
771.118 may be approved by FRA when the applicable requirements of those 
sections have been met. FRA may consult with FHWA or FTA to ensure the 
CE is applicable to the proposed action.

[[Page 532]]



Sec.  771.117  FHWA categorical exclusions.

    (a) CEs are actions that meet the definition contained in 40 CFR 
1508.4, and, based on FHWA's past experience with similar actions, do 
not involve significant environmental impacts. They are actions that: Do 
not induce significant impacts to planned growth or land use for the 
area; do not require the relocation of significant numbers of people; do 
not have a significant impact on any natural, cultural, recreational, 
historic or other resource; do not involve significant air, noise, or 
water quality impacts; do not have significant impacts on travel 
patterns; or do not otherwise, either individually or cumulatively, have 
any significant environmental impacts.
    (b) Any action that normally would be classified as a CE but could 
involve unusual circumstances will require the FHWA, in cooperation with 
the applicant, to conduct appropriate environmental studies to determine 
if the CE classification is proper. Such unusual circumstances include:
    (1) Significant environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by Section 4(f) 
requirements or Section 106 of the National Historic Preservation Act; 
or
    (4) Inconsistencies with any Federal, State, or local law, 
requirement or administrative determination relating to the 
environmental aspects of the action.
    (c) The following actions meet the criteria for CEs in the CEQ 
regulations (40 CFR 1508.4) and paragraph (a) of this section and 
normally do not require any further NEPA approvals by the FHWA:
    (1) Activities that do not involve or lead directly to construction, 
such as planning and research activities; grants for training; 
engineering to define the elements of a proposed action or alternatives 
so that social, economic, and environmental effects can be assessed; and 
Federal-aid system revisions that establish classes of highways on the 
Federal-aid highway system.
    (2) Approval of utility installations along or across a 
transportation facility.
    (3) Construction of bicycle and pedestrian lanes, paths, and 
facilities.
    (4) Activities included in the State's highway safety plan under 23 
U.S.C. 402.
    (5) Transfer of Federal lands pursuant to 23 U.S.C. 107(d) and/or 23 
U.S.C. 317 when the land transfer is in support of an action that is not 
otherwise subject to FHWA review under NEPA.
    (6) The installation of noise barriers or alterations to existing 
publicly owned buildings to provide for noise reduction.
    (7) Landscaping.
    (8) Installation of fencing, signs, pavement markings, small 
passenger shelters, traffic signals, and railroad warning devices where 
no substantial land acquisition or traffic disruption will occur.
    (9) The following actions for transportation facilities damaged by 
an incident resulting in an emergency declared by the Governor of the 
State and concurred in by the Secretary, or a disaster or emergency 
declared by the President pursuant to the Robert T. Stafford Act (42 
U.S.C. 5121):
    (i) Emergency repairs under 23 U.S.C. 125; and
    (ii) The repair, reconstruction, restoration, retrofitting, or 
replacement of any road, highway, bridge, tunnel, or transit facility 
(such as a ferry dock or bus transfer station), including ancillary 
transportation facilities (such as pedestrian/bicycle paths and bike 
lanes), that is in operation or under construction when damaged and the 
action:
    (A) Occurs within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and location 
as the original (which may include upgrades to meet existing codes and 
standards as well as upgrades warranted to address conditions that have 
changed since the original construction); and
    (B) Is commenced within a 2-year period beginning on the date of the 
declaration.
    (10) Acquisition of scenic easements.

[[Page 533]]

    (11) Determination of payback under 23 U.S.C. 156 for property 
previously acquired with Federal-aid participation.
    (12) Improvements to existing rest areas and truck weigh stations.
    (13) Ridesharing activities.
    (14) Bus and rail car rehabilitation.
    (15) Alterations to facilities or vehicles in order to make them 
accessible for elderly and handicapped persons.
    (16) Program administration, technical assistance activities, and 
operating assistance to transit authorities to continue existing service 
or increase service to meet routine changes in demand.
    (17) The purchase of vehicles by the applicant where the use of 
these vehicles can be accommodated by existing facilities or by new 
facilities that themselves are within a CE.
    (18) Track and railbed maintenance and improvements when carried out 
within the existing right-of-way.
    (19) Purchase and installation of operating or maintenance equipment 
to be located within the transit facility and with no significant 
impacts off the site.
    (20) Promulgation of rules, regulations, and directives.
    (21) Deployment of electronics, photonics, communications, or 
information processing used singly or in combination, or as components 
of a fully integrated system, to improve the efficiency or safety of a 
surface transportation system or to enhance security or passenger 
convenience. Examples include, but are not limited to, traffic control 
and detector devices, lane management systems, electronic payment 
equipment, automatic vehicle locaters, automated passenger counters, 
computer-aided dispatching systems, radio communications systems, 
dynamic message signs, and security equipment including surveillance and 
detection cameras on roadways and in transit facilities and on buses.
    (22) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. Existing 
operational right-of-way means all real property interests acquired for 
the construction, operation, or mitigation of a project. This area 
includes the features associated with the physical footprint of the 
project including but not limited to the roadway, bridges, interchanges, 
culverts, drainage, clear zone, traffic control signage, landscaping, 
and any rest areas with direct access to a controlled access highway. 
This also includes fixed guideways, mitigation areas, areas maintained 
or used for safety and security of a transportation facility, parking 
facilities with direct access to an existing transportation facility, 
transportation power substations, transportation venting structures, and 
transportation maintenance facilities.
    (23) Federally funded projects:
    (i) That receive less than $5,000,000 (as adjusted annually by the 
Secretary to reflect any increases in the Consumer Price Index prepared 
by the Department of Labor, see www.fhwa.dot.gov or www.fta.dot.gov) of 
Federal funds; or
    (ii) With a total estimated cost of not more than $30,000,000 (as 
adjusted annually by the Secretary to reflect any increases in the 
Consumer Price Index prepared by the Department of Labor, see 
www.fhwa.dot.gov or www.fta.dot.gov) and Federal funds comprising less 
than 15 percent of the total estimated project cost.
    (24) Localized geotechnical and other investigation to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (25) Environmental restoration and pollution abatement actions to 
minimize or mitigate the impacts of any existing transportation facility 
(including retrofitting and construction of stormwater treatment systems 
to meet Federal and State requirements under sections 401 and 402 of the 
Federal Water Pollution Control Act (33 U.S.C. 1341; 1342)) carried out 
to address water pollution or environmental degradation.
    (26) Modernization of a highway by resurfacing, restoration, 
rehabilitation, reconstruction, adding shoulders, or adding auxiliary 
lanes (including

[[Page 534]]

parking, weaving, turning, and climbing lanes), if the action meets the 
constraints in paragraph (e) of this section.
    (27) Highway safety or traffic operations improvement projects, 
including the installation of ramp metering control devices and 
lighting, if the project meets the constraints in paragraph (e) of this 
section.
    (28) Bridge rehabilitation, reconstruction, or replacement or the 
construction of grade separation to replace existing at-grade railroad 
crossings, if the actions meet the constraints in paragraph (e) of this 
section.
    (29) Purchase, construction, replacement, or rehabilitation of ferry 
vessels (including improvements to ferry vessel safety, navigation, and 
security systems) that would not require a change in the function of the 
ferry terminals and can be accommodated by existing facilities or by new 
facilities that themselves are within a CE.
    (30) Rehabilitation or reconstruction of existing ferry facilities 
that occupy substantially the same geographic footprint, do not result 
in a change in their functional use, and do not result in a substantial 
increase in the existing facility's capacity. Example actions include 
work on pedestrian and vehicle transfer structures and associated 
utilities, buildings, and terminals.
    (d) Additional actions that meet the criteria for a CE in the CEQ 
regulations (40 CFR 1508.4) and paragraph (a) of this section may be 
designated as CEs only after Administration approval unless otherwise 
authorized under an executed agreement pursuant to paragraph (g) of this 
section. The applicant must submit documentation that demonstrates that 
the specific conditions or criteria for these CEs are satisfied, and 
that significant environmental effects will not result. Examples of such 
actions include but are not limited to:
    (1)-(3) [Reserved]
    (4) Transportation corridor fringe parking facilities.
    (5) Construction of new truck weigh stations or rest areas.
    (6) Approvals for disposal of excess right-of-way or for joint or 
limited use of right-of-way, where the proposed use does not have 
significant adverse impacts.
    (7) Approvals for changes in access control.
    (8) Construction of new bus storage and maintenance facilities in 
areas used predominantly for industrial or transportation purposes where 
such construction is not inconsistent with existing zoning and located 
on or near a street with adequate capacity to handle anticipated bus and 
support vehicle traffic.
    (9) Rehabilitation or reconstruction of existing rail and bus 
buildings and ancillary facilities where only minor amounts of 
additional land are required, and there is not a substantial increase in 
the number of users.
    (10) Construction of bus transfer facilities (an open area 
consisting of passenger shelters, boarding areas, kiosks and related 
street improvements) when located in a commercial area or other high 
activity center in which there is adequate street capacity for projected 
bus traffic.
    (11) Construction of rail storage and maintenance facilities in 
areas used predominantly for industrial or transportation purposes where 
such construction is not inconsistent with existing zoning, and where 
there is no significant noise impact on the surrounding community.
    (12) Acquisition of land for hardship or protective purposes. 
Hardship and protective buying will be permitted only for a particular 
parcel or a limited number of parcels. These types of land acquisition 
qualify for a CE only where the acquisition will not limit the 
evaluation of alternatives, including shifts in alignment for planned 
construction projects, which may be required in the NEPA process. No 
project development on such land may proceed until the NEPA process has 
been completed.
    (i) Hardship acquisition is early acquisition of property by the 
applicant at the property owner's request to alleviate particular 
hardship to the owner, in contrast to others, because of an inability to 
sell his property. This is justified when the property owner can 
document on the basis of health, safety or financial reasons that 
remaining in the property poses an undue hardship compared to others.

[[Page 535]]

    (ii) Protective acquisition is done to prevent imminent development 
of a parcel that may be needed for a proposed transportation corridor or 
site. Documentation must clearly demonstrate that development of the 
land would preclude future transportation use and that such development 
is imminent. Advance acquisition is not permitted for the sole purpose 
of reducing the cost of property for a proposed project.
    (13) Actions described in paragraphs (c)(26), (c)(27), and (c)(28) 
of this section that do not meet the constraints in paragraph (e) of 
this section.
    (e) Actions described in (c)(26), (c)(27), and (c)(28) of this 
section may not be processed as CEs under paragraph (c) if they involve:
    (1) An acquisition of more than a minor amount of right-of-way or 
that would result in any residential or non-residential displacements;
    (2) An action that needs a bridge permit from the U.S. Coast Guard, 
or an action that does not meet the terms and conditions of a U.S. Army 
Corps of Engineers nationwide or general permit under section 404 of the 
Clean Water Act and/or section 10 of the Rivers and Harbors Act of 1899;
    (3) A finding of ``adverse effect'' to historic properties under the 
National Historic Preservation Act, the use of a resource protected 
under 23 U.S.C. 138 or 49 U.S.C. 303 (section 4(f)) except for actions 
resulting in de minimis impacts, or a finding of ``may affect, likely to 
adversely affect'' threatened or endangered species or critical habitat 
under the Endangered Species Act;
    (4) Construction of temporary access or the closure of existing 
road, bridge, or ramps that would result in major traffic disruptions;
    (5) Changes in access control;
    (6) A floodplain encroachment other than functionally dependent uses 
(e.g., bridges, wetlands) or actions that facilitate open space use 
(e.g., recreational trails, bicycle and pedestrian paths); or 
construction activities in, across or adjacent to a river component 
designated or proposed for inclusion in the National System of Wild and 
Scenic Rivers.
    (f) Where a pattern emerges of granting CE status for a particular 
type of action, the FHWA will initiate rulemaking proposing to add this 
type of action to the list of categorical exclusions in paragraph (c) or 
(d) of this section, as appropriate.
    (g) FHWA may enter into programmatic agreements with a State to 
allow a State DOT to make a NEPA CE certification or determination and 
approval on FHWA's behalf, for CEs specifically listed in paragraphs (c) 
and (d) of this section and that meet the criteria for a CE under 40 CFR 
1508.4, and are identified in the programmatic agreement. Such 
agreements must be subject to the following conditions:
    (1) The agreement must set forth the State DOT's responsibilities 
for making CE determinations, documenting the determinations, and 
achieving acceptable quality control and quality assurance;
    (2) The agreement may not have a term of more than five years, but 
may be renewed;
    (3) The agreement must provide for FHWA's monitoring of the State 
DOT's compliance with the terms of the agreement and for the State DOT's 
execution of any needed corrective action. FHWA must take into account 
the State DOT's performance when considering renewal of the programmatic 
CE agreement; and
    (4) The agreement must include stipulations for amendment, 
termination, and public availability of the agreement once it has been 
executed.
    (h) Any action qualifying as a CE under Sec.  771.116 or Sec.  
771.118 may be approved by FHWA when the applicable requirements of 
those sections have been met. FHWA may consult with FRA or FTA to ensure 
the CE is applicable to the proposed action.



Sec.  771.118  FTA categorical exclusions.

    (a) CEs are actions that meet the definition contained in 40 CFR 
1508.4, and, based on FTA's past experience with similar actions, do not 
involve significant environmental impacts. They are actions that: Do not 
induce significant impacts to planned growth or land use for the area; 
do not require the relocation of significant numbers of people; do not 
have a significant impact on any natural, cultural, recreational, 
historic or other resource; do not involve

[[Page 536]]

significant air, noise, or water quality impacts; do not have 
significant impacts on travel patterns; or do not otherwise, either 
individually or cumulatively, have any significant environmental 
impacts.
    (b) Any action that normally would be classified as a CE but could 
involve unusual circumstances will require FTA, in cooperation with the 
applicant, to conduct appropriate environmental studies to determine if 
the CE classification is proper. Such unusual circumstances include:
    (1) Significant environmental impacts;
    (2) Substantial controversy on environmental grounds;
    (3) Significant impact on properties protected by Section 4(f) 
requirements or Section 106 of the National Historic Preservation Act; 
or
    (4) Inconsistencies with any Federal, State, or local law, 
requirement or administrative determination relating to the 
environmental aspects of the action.
    (c) Actions that FTA determines fall within the following categories 
of FTA CEs and that meet the criteria for CEs in the CEQ regulation (40 
CFR 1508.4) and paragraph (a) of this section normally do not require 
any further NEPA approvals by FTA.
    (1) Acquisition, installation, operation, evaluation, replacement, 
and improvement of discrete utilities and similar appurtenances 
(existing and new) within or adjacent to existing transportation right-
of-way, such as: Utility poles, underground wiring, cables, and 
information systems; and power substations and utility transfer 
stations.
    (2) Acquisition, construction, maintenance, rehabilitation, and 
improvement or limited expansion of stand-alone recreation, pedestrian, 
or bicycle facilities, such as: A multiuse pathway, lane, trail, or 
pedestrian bridge; and transit plaza amenities.
    (3) Activities designed to mitigate environmental harm that cause no 
harm themselves or to maintain and enhance environmental quality and 
site aesthetics, and employ construction best management practices, such 
as: Noise mitigation activities; rehabilitation of public transportation 
buildings, structures, or facilities; retrofitting for energy or other 
resource conservation; and landscaping or re-vegetation.
    (4) Planning and administrative activities that do not involve or 
lead directly to construction, such as: Training, technical assistance 
and research; promulgation of rules, regulations, directives, or program 
guidance; approval of project concepts; engineering; and operating 
assistance to transit authorities to continue existing service or 
increase service to meet routine demand.
    (5) Activities, including repairs, replacements, and 
rehabilitations, designed to promote transportation safety, security, 
accessibility and effective communication within or adjacent to existing 
right-of-way, such as: The deployment of Intelligent Transportation 
Systems and components; installation and improvement of safety and 
communications equipment, including hazard elimination and mitigation; 
installation of passenger amenities and traffic signals; and 
retrofitting existing transportation vehicles, facilities or structures, 
or upgrading to current standards.
    (6) Acquisition or transfer of an interest in real property that is 
not within or adjacent to recognized environmentally sensitive areas 
(e.g., wetlands, non-urban parks, wildlife management areas) and does 
not result in a substantial change in the functional use of the property 
or in substantial displacements, such as: Acquisition for scenic 
easements or historic sites for the purpose of preserving the site. This 
CE extends only to acquisitions and transfers that will not limit the 
evaluation of alternatives for future FTA-assisted projects that make 
use of the acquired or transferred property.
    (7) Acquisition, installation, rehabilitation, replacement, and 
maintenance of vehicles or equipment, within or accommodated by existing 
facilities, that does not result in a change in functional use of the 
facilities, such as: equipment to be located within existing facilities 
and with no substantial off-site impacts; and vehicles, including buses, 
rail cars, trolley cars, ferry boats and people movers that can be 
accommodated by existing facilities or

[[Page 537]]

by new facilities that qualify for a categorical exclusion.
    (8) Maintenance, rehabilitation, and reconstruction of facilities 
that occupy substantially the same geographic footprint and do not 
result in a change in functional use, such as: Improvements to bridges, 
tunnels, storage yards, buildings, stations, and terminals; construction 
of platform extensions, passing track, and retaining walls; and 
improvements to tracks and railbeds.
    (9) Assembly or construction of facilities that is consistent with 
existing land use and zoning requirements (including floodplain 
regulations) and uses primarily land disturbed for transportation use, 
such as: Buildings and associated structures; bus transfer stations or 
intermodal centers; busways and streetcar lines or other transit 
investments within areas of the right-of-way occupied by the physical 
footprint of the existing facility or otherwise maintained or used for 
transportation operations; and parking facilities.
    (10) Development of facilities for transit and non-transit purposes, 
located on, above, or adjacent to existing transit facilities, that are 
not part of a larger transportation project and do not substantially 
enlarge such facilities, such as: Police facilities, daycare facilities, 
public service facilities, amenities, and commercial, retail, and 
residential development.
    (11) The following actions for transportation facilities damaged by 
an incident resulting in an emergency declared by the Governor of the 
State and concurred in by the Secretary, or a disaster or emergency 
declared by the President pursuant to the Robert T. Stafford Act (42 
U.S.C. 5121):
    (i) Emergency repairs under 49 U.S.C. 5324; and
    (ii) The repair, reconstruction, restoration, retrofitting, or 
replacement of any road, highway, bridge, tunnel, or transit facility 
(such as a ferry dock or bus transfer station), including ancillary 
transportation facilities (such as pedestrian/bicycle paths and bike 
lanes), that is in operation or under construction when damaged and the 
action:
    (A) Occurs within the existing right-of-way and in a manner that 
substantially conforms to the preexisting design, function, and location 
as the original (which may include upgrades to meet existing codes and 
standards as well as upgrades warranted to address conditions that have 
changed since the original construction); and
    (B) Is commenced within a 2-year period beginning on the date of the 
declaration.
    (12) Projects, as defined in 23 U.S.C. 101, that would take place 
entirely within the existing operational right-of-way. Existing 
operational right-of-way means all real property interests acquired for 
the construction, operation, or mitigation of a project. This area 
includes the features associated with the physical footprint of the 
project including but not limited to the roadway, bridges, interchanges, 
culverts, drainage, clear zone, traffic control signage, landscaping, 
and any rest areas with direct access to a controlled access highway. 
This also includes fixed guideways, mitigation areas, areas maintained 
or used for safety and security of a transportation facility, parking 
facilities with direct access to an existing transportation facility, 
transportation power substations, transportation venting structures, and 
transportation maintenance facilities.
    (13) Federally funded projects:
    (i) That receive less than $5,000,000 (as adjusted annually by the 
Secretary to reflect any increases in the Consumer Price Index prepared 
by the Department of Labor, see www.fhwa.dot.gov or www.fta.dot.gov) of 
Federal funds; or
    (ii) With a total estimated cost of not more than $30,000,000 (as 
adjusted annually by the Secretary to reflect any increases in the 
Consumer Price Index prepared by the Department of Labor, see 
www.fhwa.dot.gov or www.fta.dot.gov) and Federal funds comprising less 
than 15 percent of the total estimated project cost.
    (14) Bridge removal and bridge removal related activities, such as 
in-channel work, disposal of materials and debris in accordance with 
applicable regulations, and transportation facility realignment.
    (15) Preventative maintenance, including safety treatments, to 
culverts and channels within and adjacent to

[[Page 538]]

transportation right-of-way to prevent damage to the transportation 
facility and adjoining property, plus any necessary channel work, such 
as restoring, replacing, reconstructing, and rehabilitating culverts and 
drainage pipes; and, expanding existing culverts and drainage pipes.
    (16) Localized geotechnical and other investigations to provide 
information for preliminary design and for environmental analyses and 
permitting purposes, such as drilling test bores for soil sampling; 
archeological investigations for archeology resources assessment or 
similar survey; and wetland surveys.
    (d) Additional actions that meet the criteria for a CE in the CEQ 
regulations (40 CFR 1508.4) and paragraph (a) of this section may be 
designated as CEs only after FTA approval. The applicant must submit 
documentation that demonstrates that the specific conditions or criteria 
for these CEs are satisfied and that significant environmental effects 
will not result. Examples of such actions include but are not limited 
to:
    (1) Modernization of a highway by resurfacing, restoring, 
rehabilitating, or reconstructing shoulders or auxiliary lanes (e.g., 
lanes for parking, weaving, turning, climbing).
    (2) Bridge replacement or the construction of grade separation to 
replace existing at-grade railroad crossings.
    (3) Acquisition of land for hardship or protective purposes. 
Hardship and protective buying will be permitted only for a particular 
parcel or a limited number of parcels. These types of land acquisition 
qualify for a CE only where the acquisition will not limit the 
evaluation of alternatives, including shifts in alignment for planned 
construction projects, which may be required in the NEPA process. No 
project development on such land may proceed until the NEPA process has 
been completed.
    (i) Hardship acquisition is early acquisition of property by the 
applicant at the property owner's request to alleviate particular 
hardship to the owner, in contrast to others, because of an inability to 
sell his property. This is justified when the property owner can 
document on the basis of health, safety or financial reasons that 
remaining in the property poses an undue hardship compared to others.
    (ii) Protective acquisition is done to prevent imminent development 
of a parcel that may be needed for a proposed transportation corridor or 
site. Documentation must clearly demonstrate that development of the 
land would preclude future transportation use and that such development 
is imminent. Advance acquisition is not permitted for the sole purpose 
of reducing the cost of property for a proposed project.
    (4) Acquisition of right-of-way. No project development on the 
acquired right-of-way may proceed until the NEPA process for such 
project development, including the consideration of alternatives, has 
been completed.
    (5) [Reserved]
    (6) Facility modernization through construction or replacement of 
existing components.
    (7) Minor transportation facility realignment for rail safety 
reasons, such as improving vertical and horizontal alignment of railroad 
crossings, and improving sight distance at railroad crossings.
    (8) Modernization or minor expansions of transit structures and 
facilities outside existing right-of-way, such as bridges, stations, or 
rail yards.
    (e) Any action qualifying as a CE under Sec.  771.116 or Sec.  
771.117 may be approved by FTA when the applicable requirements of those 
sections have been met. FTA may consult with FHWA or FRA to ensure the 
CE is applicable to the proposed action.
    (f) Where a pattern emerges of granting CE status for a particular 
type of action, FTA will initiate rulemaking proposing to add this type 
of action to the appropriate list of categorical exclusions in this 
section.



Sec.  771.119  Environmental assessments.

    (a)(1) The applicant must prepare an EA in consultation with the 
Administration for each action that is not a CE and does not clearly 
require the preparation of an EIS, or where the Administration concludes 
an EA would assist in determining the need for an EIS.
    (2) When FTA or the applicant, as joint lead agency, select a 
contractor to prepare the EA, then the contractor

[[Page 539]]

must execute an FTA conflict of interest disclosure statement. The 
statement must be maintained in the FTA Regional Office and with the 
applicant. The contractor's scope of work for the preparation of the EA 
should not be finalized until the early coordination activities or 
scoping process found in paragraph (b) of this section is completed 
(including FTA approval, in consultation with the applicant, of the 
scope of the EA content).
    (3) When FRA or the applicant, as joint lead agency, select a 
contractor to prepare the EA, then the contractor must execute an FRA 
conflict of interest disclosure statement. In the absence of an 
applicant, FRA may require private project sponsors to provide a third-
party contractor to prepare the EA as described in 771.109(e).
    (b) For actions that require an EA, the applicant, in consultation 
with the Administration, must, at the earliest appropriate time, begin 
consultation with interested agencies and others to advise them of the 
scope of the project and to achieve the following objectives: Determine 
which aspects of the proposed action have potential for social, 
economic, or environmental impact; identify alternatives and measures 
that might mitigate adverse environmental impacts; and identify other 
environmental review and consultation requirements that should be 
performed concurrently with the EA. The applicant must accomplish this 
through early coordination activities or through a scoping process. The 
applicant must summarize the public involvement process and include the 
results of agency coordination in the EA.
    (c) The Administration must approve the EA before it is made 
available to the public as an Administration document.
    (d) The applicant does not need to circulate the EA for comment, but 
the document must be made available for public inspection at the 
applicant's office and at the appropriate Administration field offices 
or, for FRA at Headquarters, for 30 days and in accordance with 
paragraphs (e) and (f) of this section. The applicant must send the 
notice of availability of the EA, which briefly describes the action and 
its impacts, to the affected units of Federal, Tribal, State and local 
government. The applicant must also send notice to the State 
intergovernmental review contacts established under Executive Order 
12372. To minimize hardcopy requests and printing costs, the 
Administration encourages the use of project websites or other publicly 
accessible electronic means to make the EA available.
    (e) When a public hearing is held as part of the environmental 
review process for an action, the EA must be available at the public 
hearing and for a minimum of 15 days in advance of the public hearing. 
The applicant must publish a notice of the public hearing in local 
newspapers that announces the availability of the EA and where it may be 
obtained or reviewed. Any comments must be submitted in writing to the 
applicant or the Administration during the 30-day availability period of 
the EA unless the Administration determines, for good cause, that a 
different period is warranted. Public hearing requirements are as 
described in Sec.  771.111.
    (f) When a public hearing is not held, the applicant must place a 
notice in a newspaper(s) similar to a public hearing notice and at a 
similar stage of development of the action, advising the public of the 
availability of the EA and where information concerning the action may 
be obtained. The notice must invite comments from all interested 
parties. Any comments must be submitted in writing to the applicant or 
the Administration during the 30-day availability period of the EA 
unless the Administration determines, for good cause, that a different 
period is warranted.
    (g) If no significant impacts are identified, the applicant must 
furnish the Administration a copy of the revised EA, as appropriate; the 
public hearing transcript, where applicable; copies of any comments 
received and responses thereto; and recommend a FONSI. The EA should 
also document compliance, to the extent possible, with all applicable 
environmental laws and executive orders, or provide reasonable assurance 
that their requirements can be met.
    (h) When the FHWA expects to issue a FONSI for an action described 
in Sec.  771.115(a), copies of the EA must be

[[Page 540]]

made available for public review (including the affected units of 
government) for a minimum of 30 days before the FHWA makes its final 
decision (See 40 CFR 1501.4(e)(2)). This public availability must be 
announced by a notice similar to a public hearing notice.
    (i) If, at any point in the EA process, the Administration 
determines that the action is likely to have a significant impact on the 
environment, the preparation of an EIS will be required.
    (j) If the Administration decides to apply 23 U.S.C. 139 to an 
action involving an EA, then the EA must be prepared in accordance with 
the applicable provisions of that statute.



Sec.  771.121  Findings of no significant impact.

    (a) The Administration will review the EA, comments submitted on the 
EA (in writing or at a public hearing or meeting), and other supporting 
documentation, as appropriate. If the Administration agrees with the 
applicant's recommendations pursuant to Sec.  771.119(g), it will issue 
a separate written FONSI incorporating by reference the EA and any other 
appropriate environmental documents.
    (b) After the Administration issues a FONSI, a notice of 
availability of the FONSI must be sent by the applicant to the affected 
units of Federal, State and local government, and the document must be 
available from the applicant and the Administration upon request by the 
public. Notice must also be sent to the State intergovernmental review 
contacts established under Executive Order 12372. To minimize hardcopy 
requests and printing costs, the Administration encourages the use of 
project websites or other publicly accessible electronic means to make 
the FONSI available.
    (c) If another Federal agency has issued a FONSI on an action that 
includes an element proposed for Administration funding or approval, the 
Administration will evaluate the other agency's EA/FONSI. If the 
Administration determines that this element of the project and its 
environmental impacts have been adequately identified and assessed and 
concurs in the decision to issue a FONSI, the Administration will issue 
its own FONSI incorporating the other agency's EA/FONSI. If 
environmental issues have not been adequately identified and assessed, 
the Administration will require appropriate environmental studies.



Sec.  771.123  Draft environmental impact statements.

    (a) A draft EIS must be prepared when the Administration determines 
that the action is likely to cause significant impacts on the 
environment. When the applicant, after consultation with any project 
sponsor that is not the applicant, has notified the Administration in 
accordance with 23 U.S.C. 139(e), and the decision has been made by the 
Administration to prepare an EIS, the Administration will issue a notice 
of intent (40 CFR 1508.22) for publication in the Federal Register. 
Applicants are encouraged to announce the intent to prepare an EIS by 
appropriate means at the State or local level.
    (b)(1) After publication of the notice of intent, the lead agencies, 
in cooperation with the applicant (if not a lead agency), will begin a 
scoping process that may take into account any planning work already 
accomplished, in accordance with 23 CFR 450.212, 450.318, 23 CFR part 
450 Appendix A, or any applicable provisions of the CEQ regulations at 
40 CFR parts 1500-1508. The scoping process will be used to identify the 
purpose and need, the range of alternatives and impacts, and the 
significant issues to be addressed in the EIS and to achieve the other 
objectives of 40 CFR 1501.7. Scoping is normally achieved through public 
and agency involvement procedures required by Sec.  771.111. If a 
scoping meeting is to be held, it should be announced in the 
Administration's notice of intent and by appropriate means at the State 
or local level.
    (2) The lead agencies must establish a coordination plan, including 
a schedule, within 90 days of notice of intent publication.
    (c) The draft EIS must be prepared by the lead agencies, in 
cooperation with the applicant (if not a lead agency). The draft EIS 
must evaluate all reasonable alternatives to the action and

[[Page 541]]

document the reasons why other alternatives, which may have been 
considered, were eliminated from detailed study. The range of 
alternatives considered for further study must be used for all Federal 
environmental reviews and permit processes, to the maximum extent 
practicable and consistent with Federal law, unless the lead and 
participating agencies agree to modify the alternatives in order to 
address significant new information and circumstances or to fulfill NEPA 
responsibilities in a timely manner, in accordance with 23 U.S.C. 
139(f)(4)(B). The draft EIS must also summarize the studies, reviews, 
consultations, and coordination required by environmental laws or 
executive orders to the extent appropriate at this stage in the 
environmental process.
    (d) Any of the lead agencies may select a consultant to assist in 
the preparation of an EIS in accordance with applicable contracting 
procedures and with 40 CFR 1506.5(c). When FTA or the applicant, as 
joint lead agency, select a contractor to prepare the EIS, then the 
contractor must execute an FTA conflict of interest disclosure 
statement. The statement must be maintained in the FTA Regional Office 
and with the applicant. The contractor's scope of work for the 
preparation of the EIS will not be finalized until the early 
coordination activities or scoping process found in paragraph (b) of 
this section is completed (including FTA approval, in consultation with 
the applicant, of the scope of the EIS content). When FRA or the 
applicant, as joint lead agency, select a contractor to prepare the EIS, 
then the contractor must execute an FRA conflict of interest disclosure 
statement.
    (e) The draft EIS should identify the preferred alternative to the 
extent practicable. If the draft EIS does not identify the preferred 
alternative, the Administration should provide agencies and the public 
with an opportunity after issuance of the draft EIS to review the 
impacts of the preferred alternative.
    (f) At the discretion of the lead agency, the preferred alternative 
(or portion thereof) for a project, after being identified, may be 
developed to a higher level of detail than other alternatives in order 
to facilitate the development of mitigation measures or compliance with 
other legal requirements, including permitting. The development of such 
higher level of detail must not prevent the lead agency from making an 
impartial decision as to whether to accept another alternative that is 
being considered in the environmental review process.\3\
---------------------------------------------------------------------------

    \3\ FHWA Order 6640.1A clarifies the Federal Highway 
Administration's (FHWA) policy regarding the permissible project related 
activities that may be advanced prior to the conclusion of the NEPA 
process.
---------------------------------------------------------------------------

    (g) The Administration, when satisfied that the draft EIS complies 
with NEPA requirements, will approve the draft EIS for circulation by 
signing and dating the cover sheet. The cover sheet should include a 
notice that after circulation of the draft EIS and consideration of the 
comments received, the Administration will issue a combined final EIS/
ROD document unless statutory criteria or practicability considerations 
preclude issuance of the combined document.
    (h) A lead, joint lead, or a cooperating agency must be responsible 
for publication and distribution of the EIS. Normally, copies will be 
furnished free of charge. However, with Administration concurrence, the 
party requesting the draft EIS may be charged a fee that is not more 
than the actual cost of reproducing the copy or may be directed to the 
nearest location where the statement may be reviewed. To minimize 
hardcopy requests and printing costs, the Administration encourages the 
use of project websites or other publicly accessible electronic means to 
make the draft EIS available.
    (i) The applicant, on behalf of the Administration, must circulate 
the draft EIS for comment. The draft EIS must be made available to the 
public and transmitted to agencies for comment no later than the time 
the document is filed with the Environmental Protection Agency in 
accordance with 40 CFR 1506.9. The draft EIS must be transmitted to:
    (1) Public officials, interest groups, and members of the public 
known to have an interest in the proposed action or the draft EIS;

[[Page 542]]

    (2) Cooperating and participating agencies. The draft EIS must also 
be transmitted directly to appropriate State and local agencies, and to 
the State intergovernmental review contacts established under Executive 
Order 12372; and
    (3) States and Federal land management entities that may be 
significantly affected by the proposed action or any of the 
alternatives. These transmittals must be accompanied by a request that 
such State or entity advise the Administration in writing of any 
disagreement with the evaluation of impacts in the statement. The 
Administration will furnish the comments received to the applicant along 
with a written assessment of any disagreements for incorporation into 
the final EIS.
    (j) When a public hearing on the draft EIS is held (if required by 
Sec.  771.111), the draft EIS must be available at the public hearing 
and for a minimum of 15 days in advance of the public hearing. The 
availability of the draft EIS must be mentioned, and public comments 
requested, in any public hearing notice and at any public hearing 
presentation. If a public hearing on an action proposed for FHWA funding 
is not held, a notice must be placed in a newspaper similar to a public 
hearing notice advising where the draft EIS is available for review, how 
copies may be obtained, and where the comments should be sent.
    (k) The Federal Register public availability notice (40 CFR 1506.10) 
must establish a period of not fewer than 45 days nor more than 60 days 
for the return of comments on the draft EIS unless a different period is 
established in accordance with 23 U.S.C. 139(g)(2)(A). The notice and 
the draft EIS transmittal letter must identify where comments are to be 
sent.



Sec.  771.124  Final environmental impact statement/record 
of decision document.

    (a)(1) After circulation of a draft EIS and consideration of 
comments received, the lead agencies, in cooperation with the applicant 
(if not a lead agency), must combine the final EIS and ROD, to the 
maximum extent practicable, unless:
    (i) The final EIS makes substantial changes to the proposed action 
that are relevant to environmental or safety concerns; or
    (ii) There are significant new circumstances or information relevant 
to environmental concerns that bear on the proposed action or the 
impacts of the proposed action.
    (2) When the combined final EIS/ROD is a single document, it must 
include the content of a final EIS presented in Sec.  771.125 and 
present the basis for the decision as specified in 40 CFR 1505.2, 
summarize any mitigation measures that will be incorporated in the 
project, and document any required Section 4(f) approval in accordance 
with part 774 of this chapter.
    (3) If the comments on the draft EIS are minor and confined to 
factual corrections or explanations that do not warrant additional 
agency response, an errata sheet may be attached to the draft statement 
pursuant to 23 U.S.C. 139(n)(1) and 40 CFR 1503.4(c), which together 
must then become the combined final EIS/ROD.
    (4) A combined final EIS/ROD will be reviewed for legal sufficiency 
prior to issuance by the Administration.
    (5) The Administration must indicate approval of the combined final 
EIS/ROD by signing the document. The provision on Administration's 
Headquarters prior concurrence in Sec.  771.125(c) applies to the 
combined final EIS/ROD.
    (b) The Federal Register public availability notice published by EPA 
(40 CFR 1506.10) will not establish a waiting period or a period of time 
for the return of comments on a combined final EIS/ROD. When filed with 
EPA, the combined final EIS/ROD must be available at the applicant's 
offices and at appropriate Administration offices. A copy should also be 
made available at institutions such as local government offices, 
libraries, and schools, as appropriate. To minimize hardcopy requests 
and printing costs, the Administration encourages the use of project 
websites or other publicly accessible electronic means to make the 
combined final EIS/ROD available.

[[Page 543]]



Sec.  771.125  Final environmental impact statements.

    (a)(1) After circulation of a draft EIS and consideration of 
comments received, a final EIS must be prepared by the lead agencies, in 
cooperation with the applicant (if not a lead agency). The final EIS 
must identify the preferred alternative and evaluate all reasonable 
alternatives considered. It must also discuss substantive comments 
received on the draft EIS and responses thereto, summarize public 
involvement, and describe the mitigation measures that are to be 
incorporated into the proposed action. Mitigation measures presented as 
commitments in the final EIS will be incorporated into the project as 
specified in paragraphs (b) and (d) of Sec.  771.109. The final EIS 
should also document compliance, to the extent possible, with all 
applicable environmental laws and executive orders, or provide 
reasonable assurance that their requirements can be met.
    (2) Every reasonable effort must be made to resolve interagency 
disagreements on actions before processing the final EIS. If significant 
issues remain unresolved, the final EIS must identify those issues and 
the consultations and other efforts made to resolve them.
    (b) The final EIS will be reviewed for legal sufficiency prior to 
Administration approval.
    (c) The Administration will indicate approval of the EIS for an 
action by signing and dating the cover page. Final EISs prepared for 
actions in the following categories will be submitted to the 
Administration's Headquarters for prior concurrence:
    (1) Any action for which the Administration determines that the 
final EIS should be reviewed at the Headquarters office. This would 
typically occur when the Headquarters office determines that:
    (i) Additional coordination with other Federal, State or local 
governmental agencies is needed;
    (ii) The social, economic, or environmental impacts of the action 
may need to be more fully explored;
    (iii) The impacts of the proposed action are unusually great; (iv) 
major issues remain unresolved; or
    (iv) The action involves national policy issues.
    (2) Any action to which a Federal, State or local government agency 
has indicated opposition on environmental grounds (which has not been 
resolved to the written satisfaction of the objecting agency).
    (d) Approval of the final EIS is not an Administration action as 
defined in Sec.  771.107 and does not commit the Administration to 
approve any future request for financial assistance to fund the 
preferred alternative.
    (e) The initial publication of the final EIS must be in sufficient 
quantity to meet the request for copies that can be reasonably expected 
from agencies, organizations, and individuals. Normally, copies will be 
furnished free of charge. However, with Administration concurrence, the 
party requesting the final EIS may be charged a fee that is not more 
than the actual cost of reproducing the copy or may be directed to the 
nearest location where the statement may be reviewed.
    (f) The final EIS must be transmitted to any persons, organizations, 
or agencies that made substantive comments on the draft EIS or requested 
a copy, no later than the time the document is filed with EPA. In the 
case of lengthy documents, the agency may provide alternative 
circulation processes in accordance with 40 CFR 1502.19. The applicant 
must also publish a notice of availability in local newspapers and make 
the final EIS available through the mechanism established pursuant to 
DOT Order 4600.13, which implements Executive Order 12372. When filed 
with EPA, the final EIS must be available for public review at the 
applicant's offices and at appropriate Administration offices. A copy 
should also be made available for public review at institutions such as 
local government offices, libraries, and schools, as appropriate. To 
minimize hardcopy requests and printing costs, the Administration 
encourages the use of project websites or other publicly accessible 
electronic means to make the final EIS available.
    (g) The final EIS may take the form of an errata sheet pursuant to 
23 U.S.C. 139(n)(1) and 40 CFR 1503.4(c).

[[Page 544]]



Sec.  771.127  Record of decision.

    (a) When the final EIS is not combined with the ROD, the 
Administration will complete and sign a ROD no sooner than 30 days after 
publication of the final EIS notice in the Federal Register or 90 days 
after publication of a notice for the draft EIS, whichever is later. The 
ROD will present the basis for the decision as specified in 40 CFR 
1505.2, summarize any mitigation measures that will be incorporated in 
the project, and document any required Section 4(f) approval in 
accordance with part 774 of this chapter. To minimize hardcopy requests 
and printing costs, the Administration encourages the use of project 
websites or other publicly accessible electronic means to make the ROD 
available.
    (b) If the Administration subsequently wishes to approve an 
alternative that was not identified as the preferred alternative but was 
fully evaluated in the draft EIS, combined FEIS/ROD, or final EIS, or 
proposes to make substantial changes to the mitigation measures or 
findings discussed in the ROD, a revised or amended ROD must be subject 
to review by those Administration offices that reviewed the final EIS 
under Sec.  771.124(a) or Sec.  771.125(c). To the extent practicable, 
the approved revised or amended ROD must be provided to all persons, 
organizations, and agencies that received a copy of the final EIS.



Sec.  771.129  Re-evaluations.

    The Administration must determine, prior to granting any new 
approval related to an action or amending any previously approved aspect 
of an action, including mitigation commitments, whether an approved 
environmental document remains valid as described in this section.
    (a) The applicant must prepare a written evaluation of the draft 
EIS, in cooperation with the Administration, if an acceptable final EIS 
is not submitted to the Administration within three years from the date 
of the draft EIS circulation. The purpose of this evaluation is to 
determine whether or not a supplement to the draft EIS or a new draft 
EIS is needed.
    (b) The applicant must prepare a written evaluation of the final EIS 
before the Administration may grant further approvals if major steps to 
advance the action (e.g., authority to undertake final design, authority 
to acquire a significant portion of the right-of-way, or approval of the 
plans, specifications and estimates) have not occurred within three 
years after the approval of the final EIS, final EIS supplement, or the 
last major Administration approval or grant.
    (c) After the Administration issues a combined final EIS/ROD, ROD, 
FONSI, or CE designation, the applicant must consult with the 
Administration prior to requesting any major approvals or grants to 
establish whether or not the approved environmental document or CE 
designation remains valid for the requested Administration action. These 
consultations will be documented when determined necessary by the 
Administration.



Sec.  771.130  Supplemental environmental impact statements.

    (a) A draft EIS, final EIS, or supplemental EIS may be supplemented 
at any time. An EIS must be supplemented whenever the Administration 
determines that:
    (1) Changes to the proposed action would result in significant 
environmental impacts that were not evaluated in the EIS; or
    (2) New information or circumstances relevant to environmental 
concerns and bearing on the proposed action or its impacts would result 
in significant environmental impacts not evaluated in the EIS.
    (b) However, a supplemental EIS will not be necessary where:
    (1) The changes to the proposed action, new information, or new 
circumstances result in a lessening of adverse environmental impacts 
evaluated in the EIS without causing other environmental impacts that 
are significant and were not evaluated in the EIS; or
    (2) The Administration decides to approve an alternative fully 
evaluated in an approved final EIS but not identified as the preferred 
alternative. In such a case, a revised ROD must be prepared and 
circulated in accordance with Sec.  771.127(b).
    (c) Where the Administration is uncertain of the significance of the 
new

[[Page 545]]

impacts, the applicant will develop appropriate environmental studies 
or, if the Administration deems appropriate, an EA to assess the impacts 
of the changes, new information, or new circumstances. If, based upon 
the studies, the Administration determines that a supplemental EIS is 
not necessary, the Administration must so indicate in the project file.
    (d) A supplement is to be developed using the same process and 
format (i.e., draft EIS, final EIS, and ROD) as an original EIS, except 
that scoping is not required.
    (e) In some cases, an EA or supplemental EIS may be required to 
address issues of limited scope, such as the extent of proposed 
mitigation or the evaluation of location or design variations for a 
limited portion of the overall project. Where this is the case, the 
preparation of a supplemental document must not necessarily:
    (1) Prevent the granting of new approvals;
    (2) Require the withdrawal of previous approvals; or
    (3) Require the suspension of project activities, for any activity 
not directly affected by the supplement. If the changes in question are 
of such magnitude to require a reassessment of the entire action, or 
more than a limited portion of the overall action, the Administration 
must suspend any activities that would have an adverse environmental 
impact or limit the choice of reasonable alternatives, until the 
supplemental document is completed.



Sec.  771.131  Emergency action procedures.

    Responses to some emergencies and disasters are categorically 
excluded under Sec.  771.117 for FHWA, Sec.  771.118 for FTA, or Sec.  
771.116 for FRA. Otherwise, requests for deviations from the procedures 
in this part because of emergency circumstances (40 CFR 1506.11) must be 
referred to the Administration's Headquarters for evaluation and 
decision after consultation with CEQ.



Sec.  771.133  Compliance with other requirements.

    (a) The combined final EIS/ROD, final EIS or FONSI should document 
compliance with requirements of all applicable environmental laws, 
executive orders, and other related requirements. If full compliance is 
not possible by the time the combined final EIS/ROD, final EIS or FONSI 
is prepared, the combined final EIS/ROD, final EIS or FONSI should 
reflect consultation with the appropriate agencies and provide 
reasonable assurance that the requirements will be met. Approval of the 
environmental document constitutes adoption of any Administration 
findings and determinations that are contained therein. The FHWA's 
approval of an environmental document constitutes its finding of 
compliance with the report requirements of 23 U.S.C. 128.
    (b) In consultation with the Administration and subject to 
Administration approval, an applicant may develop a programmatic 
approach for compliance with the requirements of any law, regulation, or 
executive order applicable to the project development process.



Sec.  771.137  International actions.

    (a) The requirements of this part apply to:
    (1) Administration actions significantly affecting the environment 
of a foreign nation not participating in the action or not otherwise 
involved in the action.
    (2) Administration actions outside the U.S., its territories, and 
possessions that significantly affect natural resources of global 
importance designated for protection by the President or by 
international agreement.
    (b) If communication with a foreign government concerning 
environmental studies or documentation is anticipated, the 
Administration must coordinate such communication with the Department of 
State through the Office of the Secretary of Transportation.



Sec.  771.139  Limitations on actions.

    Notices announcing decisions by the Administration or by other 
Federal agencies on a transportation project may be published in the 
Federal Register indicating that such decisions are final within the 
meaning of 23 U.S.C. 139(l). Claims arising under Federal law seeking 
judicial review of any such decisions are time barred unless filed 
within 150 days after the date of

[[Page 546]]

publication of the limitations on claims notice by FHWA or FTA. Claims 
arising under Federal law seeking judicial review of any such decisions 
are time barred unless filed within 2 years after the date of 
publication of the limitations on claims notice by FRA. These time 
periods do not lengthen any shorter time period for seeking judicial 
review that otherwise is established by the Federal law under which 
judicial review is allowed.\5\ This provision does not create any right 
of judicial review or place any limit on filing a claim that a person 
has violated the terms of a permit, license, or approval.
---------------------------------------------------------------------------

    \5\The FHWA published a detailed discussion of the Department's 
interpretation of 23 U.S.C. 139(l), in appendix E to the 'SAFETEA-LU 
Environmental Review Process: Final Guidance,' dated November 15, 2006. 
The implementation procedures in appendix E apply only to FHWA projects. 
The setion 6002 guidance, including appendix E, is available at http://
www.fhwa.dot.gov/, or in hard copy by request.
---------------------------------------------------------------------------



PART 772_PROCEDURES FOR ABATEMENT OF HIGHWAY TRAFFIC NOISE 
AND CONSTRUCTION NOISE--Table of Contents



Sec.
772.1 Purpose.
772.3 Noise standards.
772.5 Definitions.
772.7 Applicability.
772.9 Traffic noise prediction.
772.11 Analysis of traffic noise impacts.
772.13 Analysis of noise abatement.
772.15 Federal participation.
772.17 Information for local officials.
772.19 Construction noise.

Table 1 to Part 772--Noise Abatement Criteria

    Authority: 23 U.S.C. 109(h) and (i); 42 U.S.C. 4331, 4332; sec. 
339(b), Pub. L. 104-59, 109 Stat. 568, 605; 49 CFR 1.48(b).

    Source: 75 FR 39834, July 13, 2010, unless otherwise noted.



Sec.  772.1  Purpose.

    To provide procedures for noise studies and noise abatement measures 
to help protect the public's health, welfare and livability, to supply 
noise abatement criteria, and to establish requirements for information 
to be given to local officials for use in the planning and design of 
highways approved pursuant to title 23 U.S.C.



Sec.  772.3  Noise standards.

    The highway traffic noise prediction requirements, noise analyses, 
noise abatement criteria, and requirements for informing local officials 
in this regulation constitute the noise standards mandated by 23 U.S.C. 
109(1). All highway projects which are developed in conformance with 
this regulation shall be deemed to be in accordance with the FHWA noise 
standards.



Sec.  772.5  Definitions.

    Benefited receptor. The recipient of an abatement measure that 
receives a noise reduction at or above the minimum threshold of 5 dB(A), 
but not to exceed the highway agency's reasonableness design goal.
    Common Noise Environment. A group of receptors within the same 
Activity Category in Table 1 that are exposed to similar noise sources 
and levels; traffic volumes, traffic mix, and speed; and topographic 
features. Generally, common noise environments occur between two 
secondary noise sources, such as interchanges, intersections, cross-
roads.
    Date of public knowledge. The date of approval of the Categorical 
Exclusion (CE), the Finding of No Significant Impact (FONSI), or the 
Record of Decision (ROD), as defined in 23 CFR part 771.
    Design year. The future year used to estimate the probable traffic 
volume for which a highway is designed.
    Existing noise levels. The worst noise hour resulting from the 
combination of natural and mechanical sources and human activity usually 
present in a particular area.
    Feasibility. The combination of acoustical and engineering factors 
considered in the evaluation of a noise abatement measure.
    Impacted Receptor. The recipient that has a traffic noise impact.
    L10. The sound level that is exceeded 10 percent of the time (the 
90th percentile) for the period under consideration, with L10(h) being 
the hourly value of L10.
    Leq. The equivalent steady-state sound level which in a stated 
period of

[[Page 547]]

time contains the same acoustic energy as the time-varying sound level 
during the same time period, with Leq(h) being the hourly value of Leq.
    Multifamily dwelling. A residential structure containing more than 
one residence. Each residence in a multifamily dwelling shall be counted 
as one receptor when determining impacted and benefited receptors.
    Noise barrier. A physical obstruction that is constructed between 
the highway noise source and the noise sensitive receptor(s) that lowers 
the noise level, including stand alone noise walls, noise berms (earth 
or other material), and combination berm/wall systems.
    Noise reduction design goal. The optimum desired dB(A) noise 
reduction determined from calculating the difference between future 
build noise levels with abatement, to future build noise levels without 
abatement. The noise reduction design goal shall be at least 7 dB(A), 
but not more than 10 dB(A).
    Permitted. A definite commitment to develop land with an approved 
specific design of land use activities as evidenced by the issuance of a 
building permit.
    Property owner. An individual or group of individuals that holds a 
title, deed, or other legal documentation of ownership of a property or 
a residence.
    Reasonableness. The combination of social, economic, and 
environmental factors considered in the evaluation of a noise abatement 
measure.
    Receptor. A discrete or representative location of a noise sensitive 
area(s), for any of the land uses listed in Table 1.
    Residence. A dwelling unit. Either a single family residence or each 
dwelling unit in a multifamily dwelling.
    Statement of likelihood. A statement provided in the environmental 
clearance document based on the feasibility and reasonableness analysis 
completed at the time the environmental document is being approved.
    Substantial construction. The granting of a building permit, prior 
to right-of-way acquisition or construction approval for the highway.
    Substantial noise increase. One of two types of highway traffic 
noise impacts. For a Type I project, an increase in noise levels of 5 to 
15 dB(A) in the design year over the existing noise level.
    Traffic noise impacts. Design year build condition noise levels that 
approach or exceed the NAC listed in Table 1 for the future build 
condition; or design year build condition noise levels that create a 
substantial noise increase over existing noise levels.
    Type I project. (1) The construction of a highway on new location; 
or,
    (2) The physical alteration of an existing highway where there is 
either:
    (i) Substantial Horizontal Alteration. A project that halves the 
distance between the traffic noise source and the closest receptor 
between the existing condition to the future build condition; or,
    (ii) Substantial Vertical Alteration. A project that removes 
shielding therefore exposing the line-of-sight between the receptor and 
the traffic noise source. This is done by either altering the vertical 
alignment of the highway or by altering the topography between the 
highway traffic noise source and the receptor; or,
    (3) The addition of a through-traffic lane(s). This includes the 
addition of a through-traffic lane that functions as a HOV lane, High-
Occupancy Toll (HOT) lane, bus lane, or truck climbing lane; or,
    (4) The addition of an auxiliary lane, except for when the auxiliary 
lane is a turn lane; or,
    (5) The addition or relocation of interchange lanes or ramps added 
to a quadrant to complete an existing partial interchange; or,
    (6) Restriping existing pavement for the purpose of adding a 
through-traffic lane or an auxiliary lane; or,
    (7) The addition of a new or substantial alteration of a weigh 
station, rest stop, ride-share lot or toll plaza.
    (8) If a project is determined to be a Type I project under this 
definition then the entire project area as defined in the environmental 
document is a Type I project.
    Type II project. A Federal or Federal-aid highway project for noise 
abatement on an existing highway. For a Type II project to be eligible 
for Federal-aid funding, the highway agency must develop and implement a 
Type II

[[Page 548]]

program in accordance with section 772.7(e).
    Type III project. A Federal or Federal-aid highway project that does 
not meet the classifications of a Type I or Type II project. Type III 
projects do not require a noise analysis.



Sec.  772.7  Applicability.

    (a) This regulation applies to all Federal or Federal-aid Highway 
Projects authorized under title 23, United States Code. Therefore, this 
regulation applies to any highway project or multimodal project that:
    (1) Requires FHWA approval regardless of funding sources, or
    (2) Is funded with Federal-aid highway funds.
    (b) In order to obtain FHWA approval, the highway agency shall 
develop noise policies in conformance with this regulation and shall 
apply these policies uniformly and consistently statewide.
    (c) This regulation applies to all Type I projects unless the 
regulation specifically indicates that a section only applies to Type II 
or Type III projects.
    (d) The development and implementation of Type II projects are not 
mandatory requirements of section 109(i) of title 23, United States 
Code.
    (e) If a highway agency chooses to participate in a Type II program, 
the highway agency shall develop a priority system, based on a variety 
of factors, to rank the projects in the program. This priority system 
shall be submitted to and approved by FHWA before the highway agency is 
allowed to use Federal-aid funds for a project in the program. The 
highway agency shall re-analyze the priority system on a regular 
interval, not to exceed 5 years.
    (f) For a Type III project, a highway agency is not required to 
complete a noise analysis or consider abatement measures.



Sec.  772.9  Traffic noise prediction.

    (a) Any analysis required by this subpart must use the FHWA Traffic 
Noise Model (TNM), which is described in ``FHWA Traffic Noise Model'' 
Report No. FHWA-PD-96-010, including Revision No. 1, dated April 14, 
2004, or any other model determined by the FHWA to be consistent with 
the methodology of the FHWA TNM. These publications are incorporated by 
reference in accordance with section 552(a) of title 5, U.S.C. and part 
51 of title 1, CFR, and are on file at the National Archives and Record 
Administration (NARA). For information on the availability of this 
material at NARA, call (202) 741-6030 or go to http://www.archives.gov/
federal_register/code_of_federal_regulations/ibr_locations.html. These 
documents are available for copying and inspection at the Federal 
Highway Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590, as provided in part 7 of title 49, CFR. These documents are also 
available on the FHWA's Traffic Noise Model Web site at the following 
URL: http://www.fhwa.dot.gov/environment/noise/index.htm.
    (b) Average pavement type shall be used in the FHWA TNM for future 
noise level prediction unless a highway agency substantiates the use of 
a different pavement type for approval by the FHWA.
    (c) Noise contour lines may be used for project alternative 
screening or for land use planning to comply with Sec.  772.17 of this 
part, but shall not be used for determining highway traffic noise 
impacts.
    (d) In predicting noise levels and assessing noise impacts, traffic 
characteristics that would yield the worst traffic noise impact for the 
design year shall be used.



Sec.  772.11  Analysis of traffic noise impacts.

    (a) The highway agency shall determine and analyze expected traffic 
noise impacts.
    (1) For projects on new alignments, determine traffic noise impacts 
by field measurements.
    (2) For projects on existing alignments, predict existing and design 
year traffic noise impacts.
    (b) In determining traffic noise impacts, a highway agency shall 
give primary consideration to exterior areas where frequent human use 
occurs.
    (c) A traffic noise analysis shall be completed for:
    (1) Each alternative under detailed study;

[[Page 549]]

    (2) Each Activity Category of the NAC listed in Table 1 that is 
present in the study area;
    (i) Activity Category A. This activity category includes the 
exterior impact criteria for lands on which serenity and quiet are of 
extraordinary significance and serve an important public need, and where 
the preservation of those qualities is essential for the area to 
continue to serve its intended purpose. Highway agencies shall submit 
justifications to the FHWA on a case-by-case basis for approval of an 
Activity Category A designation.
    (ii) Activity Category B. This activity category includes the 
exterior impact criteria for single-family and multifamily residences.
    (iii) Activity Category C. This activity category includes the 
exterior impact criteria for a variety of land use facilities. Each 
highway agency shall adopt a standard practice for analyzing these land 
use facilities that is consistent and uniformly applied statewide.
    (iv) Activity Category D. This activity category includes the 
interior impact criteria for certain land use facilities listed in 
Activity Category C that may have interior uses. A highway agency shall 
conduct an indoor analysis after a determination is made that exterior 
abatement measures will not be feasible and reasonable. An indoor 
analysis shall only be done after exhausting all outdoor analysis 
options. In situations where no exterior activities are to be affected 
by the traffic noise, or where the exterior activities are far from or 
physically shielded from the roadway in a manner that prevents an impact 
on exterior activities, the highway agency shall use Activity Category D 
as the basis of determining noise impacts. Each highway agency shall 
adopt a standard practice for analyzing these land use facilities that 
is consistent and uniformly applied statewide.
    (v) Activity Category E. This activity category includes the 
exterior impact criteria for developed lands that are less sensitive to 
highway noise. Each highway agency shall adopt a standard practice for 
analyzing these land use facilities that is consistent and uniformly 
applied statewide.
    (vi) Activity Category F. This activity category includes developed 
lands that are not sensitive to highway traffic noise. There is no 
impact criteria for the land use facilities in this activity category 
and no analysis of noise impacts is required.
    (vii) Activity Category G. This activity includes undeveloped lands.
    (A) A highway agency shall determine if undeveloped land is 
permitted for development. The milestone and its associated date for 
acknowledging when undeveloped land is considered permitted shall be the 
date of issuance of a building permit by the local jurisdiction or by 
the appropriate governing entity.
    (B) If undeveloped land is determined to be perrmitted, then the 
highway agency shall assign the land to the appropriate Activity 
Category and analyze it in the same manner as developed lands in that 
Activity Category.
    (C) If undeveloped land is not permitted for development by the date 
of public knowledge, the highway agency shall determine noise levels in 
accordance with 772.17(a) and document the results in the project's 
environmental clearance documents and noise analysis documents. Federal 
participation in noise abatement measures will not be considered for 
lands that are not permitted by the date of public knowledge.
    (d) The analysis of traffic noise impacts shall include:
    (1) Identification of existing activities, developed lands, and 
undeveloped lands, which may be affected by noise from the highway;
    (2) For projects on new or existing alignments, validate predicted 
noise level through comparison between measured and predicted levels;
    (3) Measurement of noise levels. Use an ANSI Type I or Type II 
integrating sound level meter;
    (4) Identification of project limits to determine all traffic noise 
impacts for the design year for the build alternative. For Type II 
projects, traffic noise impacts shall be determined from current year 
conditions;
    (e) Highway agencies shall establish an approach level to be used 
when determining a traffic noise impact. The approach level shall be at 
least 1 dB(A)

[[Page 550]]

less than the Noise Abatement Criteria for Activity Categories A to E 
listed in Table 1 to part 772;
    (f) Highway agencies shall define substantial noise increase between 
5 dB(A) to 15 dB(A) over existing noise levels. The substantial noise 
increase criterion is independent of the absolute noise level.
    (g) A highway agency proposing to use Federal-aid highway funds for 
a Type II project shall perform a noise analysis in accordance with 
Sec.  772.11 of this part in order to provide information needed to make 
the determination required by Sec.  772.13(a) of this part.



Sec.  772.13  Analysis of noise abatement.

    (a) When traffic noise impacts are identified, noise abatement shall 
be considered and evaluated for feasibility and reasonableness. The 
highway agency shall determine and analyze alternative noise abatement 
measures to abate identified impacts by giving weight to the benefits 
and costs of abatement and the overall social, economic, and 
environmental effects by using feasible and reasonable noise abatement 
measures for decision-making.
    (b) In abating traffic noise impacts, a highway agency shall give 
primary consideration to exterior areas where frequent human use occurs.
    (c) If a noise impact is identified, a highway agency shall consider 
abatement measures. The abatement measures listed in Sec.  772.15(c) of 
this part are eligible for Federal funding.
    (1) At a minimum, the highway agency shall consider noise abatement 
in the form of a noise barrier.
    (2) If a highway agency chooses to use absorptive treatments as a 
functional enhancement, the highway agency shall adopt a standard 
practice for using absorptive treatment that is consistent and uniformly 
applied statewide.
    (d) Examination and evaluation of feasible and reasonable noise 
abatement measures for reducing the traffic noise impacts. Each highway 
agency, with FHWA approval, shall develop feasibility and reasonableness 
factors.
    (1) Feasibility: (i) Achievement of at least a 5 dB(A) highway 
traffic noise reduction at impacted receptors. The highway agency shall 
define, and receive FHWA approval for, the number of receptors that must 
achieve this reduction for the noise abatement measure to be 
acoustically feasible and explain the basis for this determination; and
    (ii) Determination that it is possible to design and construct the 
noise abatement measure. Factors to consider are safety, barrier height, 
topography, drainage, utilities, and maintenance of the abatement 
measure, maintenance access to adjacent properties, and access to 
adjacent properties (i.e. arterial widening projects).
    (2) Reasonableness:--(i) Consideration of the viewpoints of the 
property owners and residents of the benefited receptors. The highway 
agency shall solicit the viewpoints of all of the benefited receptors 
and obtain enough responses to document a decision on either desiring or 
not desiring the noise abatement measure. The highway agency shall 
define, and receive FHWA approval for, the number of receptors that are 
needed to constitute a decision and explain the basis for this 
determination.
    (ii) Cost effectiveness of the highway traffic noise abatement 
measures. Each highway agency shall determine, and receive FHWA approval 
for, the allowable cost of abatement by determining a baseline cost 
reasonableness value. This determination may include the actual 
construction cost of noise abatement, cost per square foot of abatement, 
the maximum square footage of abatement/benefited receptor and either 
the cost/benefited receptor or cost/benefited receptor/dB(A) reduction. 
The highway agency shall re-analyze the allowable cost for abatement on 
a regular interval, not to exceed 5 years. A highway agency has the 
option of justifying, for FHWA approval, different cost allowances for a 
particular geographic area(s) within the State, however, the highway 
agancy must use the same cost reasonableness/construction cost ratio 
statewide.
    (iii) Noise reduction design goals for highway traffic noise 
abatement measures. When noise abatement measure(s) are being 
considered, a highway agency shall achieve a noise reduction design 
goal. The highway agency shall define,

[[Page 551]]

and receive FHWA approval for, the design goal of at least 7 dB(A) but 
not more than 10 dB(A), and shall define the number of benefited 
receptors that must achieve this design goal and explain the basis for 
this determination.
    (iv) The reasonableness factors listed in Sec.  772.13(d)(5)(i), 
(ii) and (iii), must collectively be achieved in order for a noise 
abatement measure to be deemed reasonable. Failure to achieve Sec.  
772.13(d)(5)(i), (ii) or (iii), will result in the noise abatement 
measure being deemed not reasonable.
    (v) In addition to the required reasonableness factors listed in 
Sec.  772.13(d)(5)(i), (ii), and (iii), a highway agency has the option 
to also include the following reasonableness factors: Date of 
development, length of time receivers have been exposed to highway 
traffic noise impacts, exposure to higher absolute highway traffic noise 
levels, changes between existing and future build conditions, percentage 
of mixed zoning development, and use of noise compatible planning 
concepts by the local government. No single optional reasonableness 
factor can be used to determine reasonableness.
    (e) Assessment of Benefited Receptors. Each highway agency shall 
define the threshold for the noise reduction which determines a 
benefited receptor as at or above the 5 dB(A), but not to exceed the 
highway agency's reasonableness design goal.
    (f) Abatement measure reporting: Each highway agency shall maintain 
an inventory of all constructed noise abatement measures. The inventory 
shall include the following parameters: type of abatement; cost (overall 
cost, unit cost per/sq. ft.); average height; length; area; location 
(State, county, city, route); year of construction; average insertion 
loss/noise reduction as reported by the model in the noise analysis; NAC 
category(s) protected; material(s) used (precast concrete, berm, block, 
cast in place concrete, brick, metal, wood, fiberglass, combination, 
plastic (transparent, opaque, other); features (absorptive, reflective, 
surface texture); foundation (ground mounted, on structure); project 
type (Type I, Type II, and optional project types such as State funded, 
county funded, tollway/turnpike funded, other, unknown). The FHWA will 
collect this information, in accordance with OMB's Information 
Collection requirements.
    (g) Before adoption of a CE, FONSI, or ROD, the highway agency shall 
identify:
    (1) Noise abatement measures which are feasible and reasonable, and 
which are likely to be incorporated in the project; and
    (2) Noise impacts for which no noise abatement measures are feasible 
and reasonable.
    (3) Documentation of highway traffic noise abatement: The 
environmental document shall identify locations where noise impacts are 
predicted to occur, where noise abatement is feasible and reasonable, 
and locations with impacts that have no feasible or reasonable noise 
abatement alternative. For environmental clearance, this analysis shall 
be completed to the extent that design information on the alterative(s) 
under study in the environmental document is available at the time the 
environmental clearance document is completed. A statement of likelihood 
shall be included in the environmental document since feasibility and 
reasonableness determinations may change due to changes in project 
design after approval of the environmental document. The statement of 
likelihood shall include the preliminary location and physical 
description of noise abatement measures determined feasible and 
reasonable in the preliminary analysis. The statement of likelihood 
shall also indicate that final recommendations on the construction of an 
abatement measure(s) is determined during the completion of the 
project's final design and the public involvement processes.
    (h) The FHWA will not approve project plans and specifications 
unless feasible and reasonable noise abatement measures are incorporated 
into the plans and specifications to reduce the noise impact on existing 
activities, developed lands, or undeveloped lands for which development 
is permitted.
    (i) For design-build projects, the preliminary technical noise study 
shall document all considered and proposed noise abatement measures for 
inclusion in the NEPA document. Final design of design-build noise 
abatement measures

[[Page 552]]

shall be based on the preliminary noise abatement design developed in 
the technical noise analysis. Noise abatement measures shall be 
considered, developed, and constructed in accordance with this standard 
and in conformance with the provisions of 40 CFR 1506.5(c) and 23 CFR 
636.109.
    (j) Third party funding is not allowed on a Federal or Federal-aid 
Type I or Type II project if the noise abatement measure would require 
the additional funding from the third party to be considered feasible 
and/or reasonable. Third party funding is acceptable on a Federal or 
Federal-aid highway Type I or Type II project to make functional 
enhancements, such as absorptive treatment and access doors or aesthetic 
enhancements, to a noise abatement measure already determined feasible 
and reasonable.
    (k) On a Type I or Type II projects, a highway agency has the option 
to cost average noise abatement among benefited receptors within common 
noise environments if no single common noise environment exceeds two 
times the highway agency's cost reasonableness criteria and collectively 
all common noise environments being averaged do not exceed the highway 
agency's cost reasonableness criteria.



Sec.  772.15  Federal participation.

    (a) Type I and Type II projects. Federal funds may be used for noise 
abatement measures when:
    (1) Traffic noise impacts have been identified; and
    (2) Abatement measures have been determined to be feasible and 
reasonable pursuant to Sec.  772.13(d) of this chapter.
    (b) For Type II projects. (1) No funds made available out of the 
Highway Trust Fund may be used to construct Type II noise barriers, as 
defined by this regulation, if such noise barriers were not part of a 
project approved by the FHWA before the November 28, 1995.
    (2) Federal funds are available for Type II noise barriers along 
lands that were developed or were under substantial construction before 
approval of the acquisition of the rights-of-ways for, or construction 
of, the existing highway.
    (3) FHWA will not approve noise abatement measures for locations 
where such measures were previously determined not to be feasible and 
reasonable for a Type I project.
    (c) Noise abatement measures. The following noise abatement measures 
may be considered for incorporation into a Type I or Type II project to 
reduce traffic noise impacts. The costs of such measures may be included 
in Federal-aid participating project costs with the Federal share being 
the same as that for the system on which the project is located.
    (1) Construction of noise barriers, including acquisition of 
property rights, either within or outside the highway right-of-way. 
Landscaping is not a viable noise abatement measure.
    (2) Traffic management measures including, but not limited to, 
traffic control devices and signing for prohibition of certain vehicle 
types, time-use restrictions for certain vehicle types, modified speed 
limits, and exclusive lane designations.
    (3) Alteration of horizontal and vertical alignments.
    (4) Acquisition of real property or interests therein (predominantly 
unimproved property) to serve as a buffer zone to preempt development 
which would be adversely impacted by traffic noise. This measure may be 
included in Type I projects only.
    (5) Noise insulation of Activity Category D land use facilities 
listed in Table 1. Post-installation maintenance and operational costs 
for noise insulation are not eligible for Federal-aid funding.



Sec.  772.17  Information for local officials.

    (a) To minimize future traffic noise impacts on currently 
undeveloped lands of Type I projects, a highway agency shall inform 
local officials within whose jurisdiction the highway project is located 
of:
    (1) Noise compatible planning concepts;
    (2) The best estimation of the future design year noise levels at 
various distances from the edge of the nearest travel lane of the 
highway improvement where the future noise levels meet the highway 
agency's definition of ``approach'' for undeveloped lands or

[[Page 553]]

properties within the project limits. At a minimum, identify the 
distance to the exterior noise abatement criteria in Table 1;
    (3) Non-eligibility for Federal-aid participation for a Type II 
project as described in Sec.  772.15(b).
    (b) If a highway agency chooses to participate in a Type II noise 
program or to use the date of development as one of the factors in 
determining the reasonableness of a Type I noise abatement measure, the 
highway agency shall have a statewide outreach program to inform local 
officials and the public of the items in Sec.  772.17(a)(1) through (3).



Sec.  772.19  Construction noise.

    For all Type I and II projects, a highway agency shall:
    (a) Identify land uses or activities that may be affected by noise 
from construction of the project. The identification is to be performed 
during the project development studies.
    (b) Determine the measures that are needed in the plans and 
specifications to minimize or eliminate adverse construction noise 
impacts to the community. This determination shall include a weighing of 
the benefits achieved and the overall adverse social, economic, and 
environmental effects and costs of the abatement measures.
    (c) Incorporate the needed abatement measures in the plans and 
specifications.



           Sec. Table 1 to Part 772--Noise Abatement Criteria

                             [Hourly A-Weighted Sound Level __ decibels (dB(A)) \1\]
----------------------------------------------------------------------------------------------------------------
    Activity         Activity      Criteria \2\
    category          Leq(h)          L10(h)        Evaluation location             Activity description
----------------------------------------------------------------------------------------------------------------
A...............              57              60  Exterior...............  Lands on which serenity and quiet are
                                                                            of extraordinary significance and
                                                                            serve an important public need and
                                                                            where the preservation of those
                                                                            qualities is essential if the area
                                                                            is to continue to serve its intended
                                                                            purpose.
B \3\...........              67              70  Exterior...............  Residential.
C \3\...........              67              70  Exterior...............  Active sport areas, amphitheaters,
                                                                            auditoriums, campgrounds,
                                                                            cemeteries, day care centers,
                                                                            hospitals, libraries, medical
                                                                            facilities, parks, picnic areas,
                                                                            places of worship, playgrounds,
                                                                            public meeting rooms, public or
                                                                            nonprofit institutional structures,
                                                                            radio studios, recording studios,
                                                                            recreation areas, Section 4(f)
                                                                            sites, schools, television studios,
                                                                            trails, and trail crossings.
D...............              52              55  Interior...............  Auditoriums, day care centers,
                                                                            hospitals, libraries, medical
                                                                            facilities, places of worship,
                                                                            public meeting rooms, public or
                                                                            nonprofit institutional structures,
                                                                            radio studios, recording studios,
                                                                            schools, and television studios.
E \3\...........              72              75  Exterior...............  Hotels, motels, offices, restaurants/
                                                                            bars, and other developed lands,
                                                                            properties or activities not
                                                                            included in A-D or F.
F...............  ..............  ..............  .......................  Agriculture, airports, bus yards,
                                                                            emergency services, industrial,
                                                                            logging, maintenance facilities,
                                                                            manufacturing, mining, rail yards,
                                                                            retail facilities, shipyards,
                                                                            utilities (water resources, water
                                                                            treatment, electrical), and
                                                                            warehousing.
G...............  ..............  ..............  .......................  Undeveloped lands that are not
                                                                            permitted.
----------------------------------------------------------------------------------------------------------------
\1\ Either Leq(h) or L10(h) (but not both) may be used on a project.
\2\ The Leq(h) and L10(h) Activity Criteria values are for impact determination only, and are not design
  standards for noise abatement measures.
\3\ Includes undeveloped lands permitted for this activity category.



PART 773_SURFACE TRANSPORTATION PROJECT DELIVERY PROGRAM 
APPLICATION REQUIREMENTS AND TERMINATION--Table of Contents



Sec.
773.101 Purpose.
773.103 Definitions.
773.105 Eligibility.
773.107 Pre-application requirements.
773.109 Application requirements.
773.111 Application review and approval.
773.113 Application amendments.
773.115 Renewals.
773.117 Termination.

[[Page 554]]


Appendix A to Part 773--Example List of the Secretary's Environmental 
          Review Responsibilities That May Be Assigned Under 23 U.S.C. 
          327.

    Authority: 23 U.S.C. 315 and 327; 49 CFR 1.81(a)(4)-(6); 49 CFR 1.85

    Source: 79 FR 55398, Sept. 16, 2014, unless otherwise noted.



Sec.  773.101  Purpose.

    The purpose of this part is to establish the requirements for an 
application by a State to participate in the Surface Transportation 
Project Delivery Program (Program). The Program allows, under certain 
circumstances, the Secretary to assign and a State to assume the 
responsibilities under the National Environmental Policy Act of 1969 
(NEPA) and for environmental review, consultation, or other action 
required under certain Federal environmental laws with respect to one or 
more highway, railroad, public transportation, or multimodal projects 
within the State.



Sec.  773.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and 49 U.S.C., are applicable to this part. As used in 
this part:
    Classes of projects means either a defined group of projects or all 
projects to which Federal environmental laws apply.
    Federal environmental law means any Federal law, regulation, or 
Executive Order (E.O.) under which the Secretary of the U.S. Department 
of Transportation (DOT) has responsibilities for environmental review, 
consultation, or other action with respect to the review or approval of 
a highway, railroad, public transportation, or multimodal project. The 
Federal environmental laws for which a State may assume the 
responsibilities of the Secretary under this Program include the list of 
laws contained in Appendix A to this part.
    Highway project means any undertaking that is eligible for financial 
assistance under title 23 U.S.C. and for which the Federal Highway 
Administration has primary responsibility. A highway project may include 
an undertaking that involves a series of contracts or phases, such as a 
corridor, and also may include anything that may be constructed in 
connection with a highway, bridge, or tunnel. The term highway project 
does not include any project authorized under 23 U.S.C. 202, 203, or 204 
unless the State will design and construct the project.
    MOU means a Memorandum of Understanding, a written agreement that 
complies with 23 U.S.C. 327(b)(4)(C) and (c), and this part.
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.).
    Operating Administration means any agency established within the 
DOT, including the Federal Aviation Administration, Federal Highway 
Administration (FHWA), Federal Motor Carrier Safety Administration, 
Federal Railroad Administration (FRA), Federal Transit Administration 
(FTA), Maritime Administration, National Highway Traffic Safety 
Administration, Office of the Secretary of Transportation, Pipeline and 
Hazardous Materials Safety Administration, and Saint Lawrence Seaway 
Development Corporation.
    Program means the ``Surface Transportation Project Delivery 
Program'' established under 23 U.S.C. 327.
    Public transportation project means a capital project or operating 
assistance for ``public transportation,'' as defined in chapter 53 of 
title 49 U.S.C.
    Railroad project means any undertaking eligible for financial 
assistance from FRA to construct (including initial construction, 
reconstruction, replacement, rehabilitation, restoration, or other 
improvements) a railroad, as that term is defined in 49 U.S.C. 20102, 
including: environmental mitigation activities; an undertaking that 
involves a series of contracts or phases, such as a railroad corridor; 
and anything that may be constructed in connection with a railroad. The 
term railroad project does not include any undertaking in which FRA 
provides financial assistance to Amtrak or private entities.
    State means any agency under the direct jurisdiction of the Governor 
of any of the 50 States or Puerto Rico, or the mayor in the District of 
Columbia, which is responsible for implementing highway, public 
transportation, or railroad projects eligible for assignment. The term 
``State'' does not include

[[Page 555]]

agencies of local governments, transit authorities or commissions under 
their own board of directors, or State-owned corporations.



Sec.  773.105  Eligibility.

    (a) Applicants. A State must comply with the following conditions to 
be eligible and to retain eligibility for the Program.
    (1) For highway projects:
    (i) The State must act by and through the State Department of 
Transportation (State DOT) established and maintained in conformity with 
23 U.S.C. 302 and 23 CFR 1.3;
    (ii) The State expressly consents to accept the jurisdiction of the 
Federal courts for compliance, discharge, and enforcement of any 
responsibility assumed by the State;
    (iii) The State has laws in effect that authorize the State to take 
the actions necessary to carry out the responsibilities it is assuming;
    (iv) The State has laws in effect that are comparable to the Freedom 
of Information Act (FOIA) (5 U.S.C. 552), including laws providing that 
any decision regarding the public availability of a document under those 
State laws is reviewable by a court of competent jurisdiction; and
    (v) The State has the financial and personnel resources necessary to 
carry out the responsibilities it is assuming.
    (2) For railroad or public transportation projects:
    (i) The State must comply with paragraphs (a)(1)(ii) through (v) of 
this section; and
    (ii) The State must have assumed the responsibilities of the 
Secretary under this part with respect to one or more highway projects.
    (b) Responsibilities. Responsibilities eligible for Program 
assignment and State assumption include all NEPA responsibilities and 
all or part of the reviews, consultations, and other actions required 
under other environmental laws, regulations, and E.O.s. Appendix A to 
this part contains an example list of other environmental laws, 
regulations, and E.O.s that may be assigned to and assumed by the State. 
These may include the environmental review responsibilities for the 
elements of a multimodal project that are within an applicable Operating 
Administration's jurisdiction. The following responsibilities are 
ineligible for Program assignment and State assumption:
    (1) Conformity determinations required under section 176 of the 
Clean Air Act (42 U.S.C. 7506);
    (2) The Secretary's responsibilities under 23 U.S.C. 134 and 135;
    (3) The Secretary's responsibilities under 49 U.S.C. 5303 and 5304;
    (4) The Secretary's responsibilities for government-to-government 
consultation with Indian tribes;
    (5) The Secretary's responsibilities for approvals that are not 
considered to be part of the environmental review of a project, such as 
project approvals, Interstate access approvals, and safety approvals; 
and
    (6) The Secretary's responsibilities under NEPA and for reviews, 
consultations, and other actions required under other Federal 
environmental laws for actions of Operating Administrations other than 
FHWA, FRA, and FTA.
    (c) Projects. Environmental reviews ineligible for assignment and 
State assumption under the Program include reviews for the following 
types of projects:
    (1) Projects that cross State boundaries, and
    (2) Projects adjacent to or that cross international boundaries.
    (d) Discretion retained. Nothing in this section limits an Operating 
Administration's discretion to withhold approval of assignment of 
eligible responsibilities or projects under this Program.



Sec.  773.107  Pre-application requirements.

    (a) Coordination meeting. The State must request and participate in 
a pre-application coordination meeting with the appropriate Division or 
Regional, and Headquarters office of the applicable Operating 
Administration(s) before soliciting public comment on its application.
    (b) Public comment. The State must give notice of its intention to 
participate in the Program and must solicit public comment by publishing 
the complete application in accordance with the appropriate State public 
notice laws not later than 30 days prior to

[[Page 556]]

submitting its application to the appropriate Operating 
Administration(s). If allowed under State law, publishing a statewide 
notice of availability of the application rather than the application 
itself may satisfy the requirements of this provision so long as the 
complete application is made available on the internet and is reasonably 
available to the public for inspection. Solicitation of public comment 
must include solicitation of the views of other State agencies, tribal 
agencies, and Federal agencies that may have consultation or approval 
responsibilities associated with the project(s) within State boundaries.
    (1) The State requesting FTA's responsibilities with respect to 
public transportation projects must identify and solicit public comment 
from potential recipients of assistance under chapter 53 of title 49 
U.S.C. These comments may include requests for the Secretary to maintain 
the environmental review responsibilities with respect to one or more 
public transportation projects.
    (2) The State must submit copies of all comments received as a 
result of the publication of the respective application(s). The State 
must summarize the comments received, develop responses to substantive 
comments, and note any revisions or actions taken in response to the 
public comment.
    (c) Sovereign immunity waiver. The State must identify and complete 
the process required by State law for consenting and accepting exclusive 
Federal court jurisdiction with respect to compliance, discharge, and 
enforcement of any of the responsibilities being sought.
    (d) Comparable State laws. The State must determine that it has laws 
that are in effect that authorize the State to take actions necessary to 
carry out the responsibilities the State is seeking and a public records 
access law that is comparable to FOIA. The State must ensure that it 
cures any deficiency in applicable State laws before submitting its 
application.



Sec.  773.109  Application requirements.

    (a) Highway project responsibilities. An eligible State DOT may 
submit an application to FHWA to participate in the Program for one or 
more highway projects or classes of highway projects. The application 
must include:
    (1) The highway projects or classes of highway projects for which 
the State is requesting assumption of Federal environmental review 
responsibilities under NEPA. The State must specifically identify in its 
application each highway project for which a draft environmental impact 
statement has been issued and for which a final environmental impact 
statement is pending, prior to the submission of its application;
    (2) Each Federal environmental law, review, consultation, or other 
environmental responsibility the State seeks to assume under this 
Program. The State must indicate whether it proposes to phase-in the 
assumption of these responsibilities, i.e., initially assuming only some 
responsibilities with a plan to assume additional responsibilities at 
specific future times;
    (3) For each responsibility requested in paragraphs (a)(1) and (2) 
of this section, the State must describe how it intends to carry out 
these responsibilities. Such description must include:
    (i) A summary of State procedures currently in place to guide the 
development of documents, analyses, and consultations required to 
fulfill the environmental review responsibilities requested. For States 
that have comparable State environmental review procedures, the 
discussion should describe the differences, if any, between the State 
environmental review process and the Federal environmental review 
process, focusing on any standard that is mandated by State law, 
regulation, executive order, or policy that is not applicable to the 
Federal environmental review. The State must submit a copy of the 
procedures with the application unless these are available 
electronically. The State may submit the procedures electronically, 
either through email or by providing a hyperlink;
    (ii) Any changes that the State has made or will make in the 
management of its environmental program to provide the additional staff 
and training necessary for quality control and assurance, appropriate 
levels of analysis, adequate expertise in areas where the State is 
requesting responsibilities,

[[Page 557]]

and expertise in management of the NEPA process and reviews under other 
Federal environmental laws;
    (iii) A discussion of how the State will conduct legal reviews for 
the environmental documents it produces, including legal sufficiency 
reviews where required by law, policy, or guidance;
    (iv) A discussion of how the State will identify and address those 
projects that without assignment would have required FHWA Headquarters' 
prior concurrence of the final environmental impact statement under 23 
CFR 771.125(c); and
    (v) A discussion of otherwise permissible project delivery methods 
the State intends to pursue, and the process it will use to decide 
whether pursuing those project delivery methods and being responsible 
for the environmental review meet the objectivity and integrity 
requirements of NEPA.
    (4) A verification of the personnel necessary to carry out the 
authority that the State may assume under the Program. The verification 
must contain the following information:
    (i) A description of the staff positions, including management, that 
will be dedicated to fulfilling the additional functions needed to 
perform the assigned responsibilities;
    (ii) A description of any changes to the State's organizational 
structure that would be necessary to provide for efficient 
administration of the responsibilities assumed; and
    (iii) A discussion of personnel needs that may be met by the State's 
use of outside consultants, including legal counsel provided by the 
State Attorney General or private counsel;
    (5) A summary of the anticipated financial resources available to 
meet the activities and staffing needs identified in paragraphs (a)(3) 
and (4) of this section, and a commitment to make adequate financial 
resources available to meet these needs;
    (6) Certification and explanation by the State's Attorney General, 
or other State official legally empowered by State law to issue legal 
opinions that bind the State, that the State has legal authority to 
assume the responsibilities of the Secretary for the Federal 
environmental laws and projects requested, and that the State consents 
to exclusive Federal court jurisdiction with respect to the 
responsibilities the State is requesting to assume. Such consent must be 
broad enough to include future changes in relevant Federal policies and 
procedures or allow for its amendment to include such future changes;
    (7) Certification by the State's Attorney General, or other State 
official legally empowered by State law to issue legal opinions that 
bind the State, that the State has laws that are comparable to FOIA, 
including laws that allow for any decision regarding the public 
availability of a document under those laws to be reviewed by a court of 
competent jurisdiction;
    (8) Evidence that the required notice and solicitation of public 
comment by the State relating to participation in the Program has taken 
place and copies of the State's responses to the comments;
    (9) A point of contact for questions regarding the application and a 
point of contact regarding the implementation of the Program (if 
different); and
    (10) The State Governor's (or in the case of District of Columbia, 
the Mayor's) signature approving the application. For the Secretary's 
responsibilities with respect to highway projects, the top ranking 
transportation official in the State who is charged with responsibility 
for highway construction may sign the application instead of the 
Governor.
    (b) Public transportation project responsibilities. An eligible 
State may submit an application to FTA to participate in the Program for 
one or more public transportation projects or classes of public 
transportation projects. The application must provide the information 
required by paragraphs (a)(1) through (10) of this section, but with 
respect to FTA's program and the public transportation project(s) at 
issue. In addition, the application must include:
    (1) Evidence that FHWA has assigned to the State, or the State has 
requested assignment of the responsibilities of, FHWA with respect to 
one or more highway projects within the State under NEPA; and
    (2) Evidence that any potential recipients of assistance under 
chapter 53

[[Page 558]]

of title 49 U.S.C. for any public transportation project or classes of 
public transportation projects in the State being sought for Program 
assignment have received written notice of the application with adequate 
time to provide comments on the application.
    (c) Railroad project responsibilities. An eligible State may submit 
an application to FRA to participate in the Program for one or more 
railroad projects or classes of railroad projects. The application must 
provide the information required by paragraphs (a)(1) through (10) of 
this section, but with respect to the railroad project(s) at issue. In 
addition, the application must include evidence that FHWA has assigned 
to the State, or the State has requested assignment of, the 
responsibilities of FHWA with respect to one or more highway projects 
within the State under NEPA.
    (d) Multimodal project responsibilities. The Operating 
Administration(s) will presume that the responsibilities sought by the 
State include the Secretary's environmental review responsibilities for 
multimodal projects' elements that would otherwise fall under the 
Operating Administration's authority. These responsibilities include 
establishing appropriate relationships with the other Operating 
Administration(s) involved in the multimodal project, including 
cooperating agency, participating agency, and lead or co-lead agency 
relationships under NEPA. The State must affirmatively reject multimodal 
environmental review responsibilities in its application if it intends 
to have the responsibilities remain with the Operating Administration 
when a multimodal project is involved. In addition, States may:
    (1) Request the Secretary's environmental review responsibilities 
with respect to the highway, railroad, and/or public transportation 
elements of one or more particular multimodal projects by submitting an 
application with the information required in paragraphs (a)(1) through 
(10) of this section, but with respect to the multimodal project(s) at 
issue. The application must either request highway responsibilities for 
the multimodal project or include evidence that FHWA has assigned to the 
State, or the State has requested assignment of, the responsibilities of 
FHWA with respect to one or more highway projects within the State under 
NEPA; and
    (2) Request, at the same time the State applies for assignment of 
one of the Operating Administration's environmental review 
responsibilities, the general multimodal environmental review 
responsibilities of the other Operating Administration(s).
    (e) Electronic submissions. Applications may be submitted 
electronically to the appropriate Operating Administration.
    (f) Joint application. A State may submit joint applications for 
multiple Operating Administrations' responsibilities. A joint 
application should avoid redundancies and duplication of information to 
the maximum extent practicable. In its application, the State must 
distinguish the projects or classes of projects it seeks to assume by 
transportation mode. A joint application must provide all of the 
information required by each Operating Administration for which a State 
is seeking assignment. A State must submit joint applications to FHWA.
    (g) Requests for additional information. The appropriate Operating 
Administration(s) may request that the State provide additional 
information to address any deficiencies in the application or 
clarifications that may be needed prior to determining that the 
application is complete.



Sec.  773.111  Application review and approval.

    (a) The Operating Administration(s) must solicit public comment on 
the pending request and must consider comments received before rendering 
a decision on the State's application. Materials made available for this 
public review must include the State's application, a draft of the MOU, 
and a list of responsibilities sought by the State that the Operating 
Administration(s) proposes to retain. The notification may be a joint 
notification if two or more Operating Administrations are involved in 
the assignment for a project or a class of projects.
    (b) If the Operating Administration(s) approves the application of a

[[Page 559]]

State, then the Operating Administration(s) will invite the State to 
execute the MOU.
    (c) The Administrator for the appropriate Operating Administration 
will be responsible for approving the application and executing the MOU 
on behalf of the Operating Administration.
    (d) The State's participation in the Program is effective upon full 
execution of the MOU. The Operating Administration's responsibilities 
under NEPA and any other environmental laws may not be assigned to or 
assumed by the State prior to execution of the MOU with the exception of 
renewal situations under Sec.  773.115(g) of this part.
    (e) The MOU must have a term of not more than 5 years that may be 
renewed pursuant to Sec.  773.115 of this part.
    (f) The State must publish the MOU and approved application on its 
Web site and other relevant State Web sites and make it reasonably 
available to the public for inspection and copying.



Sec.  773.113  Application amendments.

    (a) After a State submits its application to the appropriate 
Operating Administration(s), but prior to the execution of the MOU(s), 
the State may amend its application at any time to request the addition 
or withdrawal of projects, classes of projects, or environmental review 
responsibilities consistent with the requirements of this part.
    (1) Prior to submitting any such amendment, the State must 
coordinate with the appropriate Operating Administration(s) to determine 
if the amendment represents a substantial change in the application to 
such an extent that additional notice and opportunity for public comment 
is needed. The Operating Administration is responsible for making the 
final decision on whether notice and public comment is needed and 
whether to provide one opportunity (pursuant to Sec.  773.107(b)) or two 
opportunities (pursuant to Sec.  773.107(b) and Sec.  773.111(a)) for 
public comment. The Operating Administration will make this 
determination based on the magnitude of the changes.
    (2) If the Operating Administration determines that notice and 
solicitation of public comment is needed pursuant to Sec.  773.107(b), 
the State must include copies of all comments received, responses to 
substantive comments, and note the changes, if any, that were made in 
response to the comments.
    (b) After the execution of the MOU(s) or renewal MOU(s), a State may 
amend its application to the appropriate Operating Administration(s) to 
request additional projects, classes of projects, or more environmental 
review responsibilities consistent with the requirements of this part.
    (1) Prior to requesting any such amendment, the State must 
coordinate with the appropriate Operating Administration(s) to determine 
if the amendment represents a substantial change in the application 
information to the extent that additional notice and opportunity for 
public comment is needed. The Operating Administration is responsible 
for making the final decision on whether notice and public comment are 
needed and whether to provide one opportunity (pursuant to Sec.  
773.107(b) or Sec.  773.111(a)) or two opportunities (pursuant to Sec.  
773.107(b) and Sec.  773.111(a)) for public comment. The Operating 
Administration will make this determination based on the magnitude of 
the changes.
    (2) If the Operating Administration determines that notice and 
solicitation of public comment is required pursuant to Sec.  773.107(b), 
the State must include copies of all comments received, responses to 
substantive comments, and note the changes, if any, that were made in 
response to the comments.
    (3) The Operating Administration is responsible for making the final 
decision on whether to accept the amendment and whether an amendment to 
the MOU is required. Amendments do not change the expiration date of the 
initial or renewal MOU.



Sec.  773.115  Renewals.

    (a) A State that intends to renew its participation in the Program 
must notify the appropriate Operating Administration(s) at least 12 
months before the expiration of the MOU.
    (b) Prior to requesting renewal, the State must coordinate with the 
appropriate Operating Administration(s) to determine if significant 
changes have

[[Page 560]]

occurred or new assignment responsibilities are being sought that would 
warrant statewide notice and opportunity for public comment prior to the 
State's submission of the renewal package. The Operating Administration 
is responsible for making the final decision on whether the State should 
engage in statewide notification prior to its submittal. The Operating 
Administration will make this determination based on the magnitude of 
the change(s) in the information and/or circumstances.
    (c) The renewal package must:
    (1) Describe changes to the information submitted in the initial 
Program application;
    (2) Provide up-to-date certifications required in Sec.  
773.109(a)(6) and (7) of this part for the applicable Operating 
Administration(s), if up-to-date certifications are needed or if the 
necessary State laws have termination dates that would occur before the 
end of a renewal period;
    (3) Provide evidence of the statewide public notification, if one 
was required under paragraph (b) of this section, and include copies of 
all comments received, responses to substantive comments, and note the 
changes, if any, that were made to the renewal package in response to 
the comments; and
    (4) Include the State Governor's (or in the case of District of 
Columbia, the Mayor's) signature approving the renewal package. For the 
Secretary's responsibilities with respect to highway projects, the top 
ranking transportation official in the State who is charged with 
responsibility for highway construction may sign the renewal package 
instead of the Governor.
    (d) A State must submit a renewal package no later than 180 days 
prior to the expiration of the MOU.
    (e) The Operating Administration(s) may request that the State 
provide additional information to address any deficiencies in the 
renewal application or to provide clarifications.
    (f) The Operating Administration(s) must provide Federal Register 
notification and solicit public comment on the renewal request and must 
consider comments received before approving the State's renewal 
application. Materials made available for this public review will 
include the State's original application, the renewal package, a draft 
of the renewal MOU, a list of responsibilities sought by the State that 
the Operating Administration proposes to retain, and auditing and 
monitoring reports developed as part of the Program. The notification 
may be a joint notification if two or more Operating Administrations are 
involved in the assignment for a project or a class of projects.
    (g) In determining whether to approve the State's renewal request, 
the Operating Administration will take into account the renewal package, 
comments received if an opportunity for public comments was provided in 
accordance with paragraph (f) of this section, the auditing and 
monitoring reports, and the State's overall performance in the Program. 
If the Operating Administration(s) approves the renewal request, then 
the Operating Administration(s) will invite the State to execute the 
renewal MOU. The Administrator for the appropriate Operating 
Administration will be responsible for approving the application and 
executing the renewal MOU on behalf of the Operating Administration. The 
renewal MOU must have a term of not more than 5 years, and the State 
must publish it on the State's DOT Web site and other relevant State Web 
site(s).
    (h) At the discretion of the Operating Administration, a State may 
retain temporarily its assigned and assumed responsibilities under a MOU 
after the expiration of the MOU, where the relevant Operating 
Administration(s) determines that:
    (1) The State made a timely submission of a complete renewal 
application in accordance with the provisions of this section;
    (2) The Operating Administration(s) determines that all reasonable 
efforts have been made to achieve a timely execution of the renewal; and
    (3) The Operating Administration(s) determines that it is in the 
best interest of the public to grant the continuance.

[[Page 561]]



Sec.  773.117  Termination.

    (a) Termination by the Operating Administration. An Operating 
Administration(s) that approved the State's participation in the Program 
may terminate the State's participation if the Operating 
Administration(s) determines that the State is not adequately carrying 
out the responsibilities assigned to the State. Examples of situations 
where such a finding may be made include: persistent neglect of, or 
noncompliance with, any Federal laws, regulations, and policies; failure 
to address deficiencies identified during the audit or monitoring 
process; failure to secure or maintain adequate personnel and/or 
financial resources to carry out the responsibilities assumed; 
intentional noncompliance with the terms of the MOU(s); and persistent 
failure to adequately consult, coordinate, and/or take into account the 
concerns of other Operating Administrations, when applicable, and 
appropriate Federal, State, tribal, and local agencies with oversight, 
consulting, or coordination responsibilities under Federal environmental 
laws and regulations.
    (1) The Operating Administration(s) may rely on the auditing and 
monitoring reports as sources for a finding that the State is not 
adequately carrying out its responsibilities. The Operating 
Administration(s) may also rely on information on noncompliance obtained 
outside the auditing and monitoring process.
    (2) The Operating Administration(s) may not terminate a State's 
participation without providing the State with notification of the 
noncompliance issue that could give rise to the termination, and without 
affording the State an opportunity to take corrective action to address 
the noncompliance issue. The Operating Administration(s) must provide 
the State a period of no less than 120 days to take corrective actions. 
The Operating Administration(s) is responsible for making the final 
decision on whether the corrective action is satisfactory.
    (3) On the request of the Governor of the State (or in the case of 
the District of Columbia, the Mayor), the Operating Administration(s) 
shall provide a detailed description of each responsibility in need of 
corrective action regarding an inadequacy identified by the Operating 
Administration(s).
    (b) Termination by the State. The State may terminate its 
participation at any time by notifying the Secretary no later than 90 
days prior to the proposed termination date. The notice must include a 
draft transition plan detailing how the State will transfer the projects 
and responsibilities to the appropriate Operating Administration(s). 
Termination will not take effect until the State and the Operating 
Administration(s) agree, and the Operating Administration(s) approve a 
final transition plan. Transition plans must include:
    (1) A list of projects and their status in the environmental review 
process that the State will return to the Operating Administration(s);
    (2) A process for transferring files on pending projects;
    (3) A process for notifying the public that the State will terminate 
its participation in the Program and a projected date upon which this 
termination will take effect;
    (4) Points of contacts for pending projects; and
    (5) Any other information required by the Operating 
Administration(s) to ensure the smooth transition of environmental 
review responsibilities and prevent disruption in the environmental 
reviews of projects to the maximum extent possible.
    (c) Termination by mutual agreement. The State and the Operating 
Administration(s) may agree to terminate assignment on a specific date 
before the expiration of the MOU. Termination will not take effect until 
the State and the Operating Administration(s) agree, and the Operating 
Administration(s) approve a final transition plan. Transition plans must 
include the information outlined in paragraphs (b)(1)-(5) of this 
section.
    (d) Effect of termination of highway responsibilities. Termination 
of the assignment of the Secretary's environmental review 
responsibilities with respect to highway projects will result in the 
termination of assignment of environmental responsibilities for 
railroad,

[[Page 562]]

public transportation, and multimodal projects.

[79 FR 55398, Sept. 16, 2014, as amended at 85 FR 84226, Dec. 28, 2020]



      Sec. Appendix A to Part 773--Example List of the Secretary's 
  Environmental Review Responsibilities That May Be Assigned Under 23 
                               U.S.C. 327

                           Federal Procedures

    NEPA, 42 U.S.C. 4321 et seq.
    Regulations for Implementing the Procedural Provisions of NEPA at 40 
CFR parts 1500-1508.
    FHWA/FTA environmental regulations at 23 CFR part 771.
    FRA's Procedures for Considering Environmental Impacts, 64 FR 28545, 
May 26, 1999 and 78 FR 2713, Jan. 14, 2013.
    Clean Air Act, 42 U.S.C. 7401-7671q. Any determinations that do not 
involve conformity.
    Efficient Environmental Reviews for Project Decisionmaking, 23 
U.S.C. 139.

                                  Noise

    Noise Control Act of 1972, 42 U.S.C. 4901-4918.
    Airport Noise and Capacity Act of 1990, 49 U.S.C. 47521-47534.
    FHWA noise regulations at 23 CFR part 772.

                                Wildlife

    Endangered Species Act of 1973, 16 U.S.C. 1531-1544.
    Marine Mammal Protection Act, 16 U.S.C. 1361-1423h.
    Anadromous Fish Conservation Act, 16 U.S.C. 757a-757f.
    Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d.
    Migratory Bird Treaty Act, 16 U.S.C. 703-712.
    Magnuson-Stevens Fishery Conservation and Management Act of 1976, as 
amended, 16 U.S.C. 1801-1891d.

                     Historic and Cultural Resources

    National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.
    Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa-
470mm.
    Archeological and Historic Preservation Act, 16 U.S.C. 469-469c.
    Native American Graves Protection and Repatriation Act, 25 U.S.C. 
3001-3013; 18 U.S.C. 1170.

                       Social and Economic Impacts

    American Indian Religious Freedom Act, 42 U.S.C. 1996.
    Farmland Protection Policy Act, 7 U.S.C. 4201-4209.

                      Water Resources and Wetlands

    Clean Water Act, 33 U.S.C. 1251-1387.

Section 404, 33 U.S.C. 1344
Section 401, 33 U.S.C. 1341
Section 319, 33 U.S.C. 1329

    Coastal Barrier Resources Act, 16 U.S.C. 3501-3510.
    Coastal Zone Management Act, 16 U.S.C. 1451-1466.
    Safe Drinking Water Act, 42 U.S.C. 300f--300j-26.
    Rivers and Harbors Act of 1899, 33 U.S.C. 403.
    Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287.
    Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921.
    Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14).
    FHWA wetland and natural habitat mitigation regulations at 23 CFR 
part 777.
    Flood Disaster Protection Act, 42 U.S.C. 4001-4130.

                                Parklands

    Section 4(f), 49 U.S.C. 303; 23 U.S.C. 138.
    FHWA/FTA Section 4(f) regulations at 23 CFR part 774.
    Land and Water Conservation Fund, 16 U.S.C. 460l-4-460l-11.

                           Hazardous Materials

    Comprehensive Environmental Response, Compensation, and Liability 
Act, 42 U.S.C. 9601-9675.
    Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 
9671-9675.
    Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k.

             Executive Orders Relating to Eligible Projects

    E.O. 11990, Protection of Wetlands
    E.O. 11988, Floodplain Management
    E.O. 12898, Federal Actions to Address Environmental Justice in 
Minority Populations and Low Income Populations
    E.O. 13112, Invasive Species



PART 774_PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES, 
AND HISTORIC SITES (SECTION 4(f))--Table of Contents



Sec.
774.1 Purpose.
774.3 Section 4(f) approvals.
774.5 Coordination.
774.7 Documentation.
774.9 Timing.
774.11 Applicability.
774.13 Exceptions.

[[Page 563]]

774.15 Constructive use determinations.
774.17 Definitions.

    Authority: 23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 
204(h)(2); 49 U.S.C. 303; Section 6009 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. 
L. 109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.81 and 1.91; and, 
Pub. L. 114-94, 129 Stat. 1312, Sections 1303 and 11502.

    Source: 73 FR 13395, Mar. 12, 2008, unless otherwise noted.



Sec.  774.1  Purpose.

    The purpose of this part is to implement 23 U.S.C. 138 and 49 U.S.C. 
303, which were originally enacted as Section 4(f) of the Department of 
Transportation Act of 1966 and are still commonly referred to as 
``Section 4(f).''



Sec.  774.3  Section 4(f) approvals.

    The Administration may not approve the use, as defined in Sec.  
774.17, of Section 4(f) property unless a determination is made under 
paragraph (a) or (b) of this section.
    (a) The Administration determines that:
    (1) There is no feasible and prudent avoidance alternative, as 
defined in Sec.  774.17, to the use of land from the property; and
    (2) The action includes all possible planning, as defined in Sec.  
774.17, to minimize harm to the property resulting from such use; or
    (b) The Administration determines that the use of the property, 
including any measure(s) to minimize harm (such as any avoidance, 
minimization, mitigation, or enhancement measures) committed to by the 
applicant, will have a de minimis impact, as defined in Sec.  774.17, on 
the property.
    (c) If the analysis in paragraph (a)(1) of this section concludes 
that there is no feasible and prudent avoidance alternative, then the 
Administration may approve, from among the remaining alternatives that 
use Section 4(f) property, only the alternative that:
    (1) Causes the least overall harm in light of the statute's 
preservation purpose. The least overall harm is determined by balancing 
the following factors:
    (i) The ability to mitigate adverse impacts to each Section 4(f) 
property (including any measures that result in benefits to the 
property);
    (ii) The relative severity of the remaining harm, after mitigation, 
to the protected activities, attributes, or features that qualify each 
Section 4(f) property for protection;
    (iii) The relative significance of each Section 4(f) property;
    (iv) The views of the official(s) with jurisdiction over each 
Section 4(f) property;
    (v) The degree to which each alternative meets the purpose and need 
for the project;
    (vi) After reasonable mitigation, the magnitude of any adverse 
impacts to resources not protected by Section 4(f); and
    (vii) Substantial differences in costs among the alternatives.
    (2) The alternative selected must include all possible planning, as 
defined in Sec.  774.17, to minimize harm to Section 4(f) property.
    (d) Programmatic Section 4(f) evaluations are a time-saving 
procedural alternative to preparing individual Section 4(f) evaluations 
under paragraph (a) of this section for certain minor uses of Section 
4(f) property. Programmatic Section 4(f) evaluations are developed by 
the Administration based on experience with a specific set of conditions 
that includes project type, degree of use and impact, and evaluation of 
avoidance alternatives. \1\ An approved programmatic Section 4(f) 
evaluation may be relied upon to cover a particular project only if the 
specific conditions in the programmatic evaluation are met
---------------------------------------------------------------------------

    \1\ FHWA Section 4(f) Programmatic Evaluations can be found at 
www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.
---------------------------------------------------------------------------

    (1) The determination whether a programmatic Section 4(f) evaluation 
applies to the use of a specific Section 4(f) property shall be 
documented as specified in the applicable programmatic Section 4(f) 
evaluation.
    (2) The Administration may develop additional programmatic Section 
4(f) evaluations. Proposed new or revised programmatic Section 4(f) 
evaluations will be coordinated with the Department of Interior, 
Department of Agriculture, and Department of Housing

[[Page 564]]

and Urban Development, and published in the Federal Register for comment 
prior to being finalized. New or revised programmatic Section 4(f) 
evaluations shall be reviewed for legal sufficiency and approved by the 
Headquarters Office of the Administration.
    (e) The coordination requirements in Sec.  774.5 must be completed 
before the Administration may make Section 4(f) approvals under this 
section. Requirements for the documentation and timing of Section 4(f) 
approvals are located in Sec. Sec.  774.7 and 774.9, respectively.

[73 FR 13395, Mar. 12, 2008, as amended at 73 FR 31610, June 3, 2008; 83 
FR 54506, Oct. 29, 2018]



Sec.  774.5  Coordination.

    (a) Prior to making Section 4(f) approvals under Sec.  774.3(a), the 
Section 4(f) evaluation shall be provided for coordination and comment 
to the official(s) with jurisdiction over the Section 4(f) resource and 
to the Department of the Interior, and as appropriate to the Department 
of Agriculture and the Department of Housing and Urban Development. The 
Administration shall provide a minimum of 45 days for receipt of 
comments. If comments are not received within 15 days after the comment 
deadline, the Administration may assume a lack of objection and proceed 
with the action.
    (b) Prior to making de minimis impact determinations under Sec.  
774.3(b), the following coordination shall be undertaken:
    (1) For historic properties:
    (i) The consulting parties identified in accordance with 36 CFR part 
800 must be consulted; and
    (ii) The Administration must receive written concurrence from the 
pertinent State Historic Preservation Officer (SHPO) or Tribal Historic 
Preservation Officer (THPO), and from the Advisory Council on Historic 
Preservation (ACHP) if participating in the consultation process, in a 
finding of ``no adverse effect'' or ``no historic properties affected'' 
in accordance with 36 CFR part 800. The Administration shall inform 
these officials of its intent to make a de minimis impact determination 
based on their concurrence in the finding of ``no adverse effect'' or 
``no historic properties affected.''
    (iii) Public notice and comment, beyond that required by 36 CFR part 
800, is not required.
    (2) For parks, recreation areas, and wildlife and waterfowl refuges:
    (i) Public notice and an opportunity for public review and comment 
concerning the effects on the protected activities, features, or 
attributes of the property must be provided. This requirement can be 
satisfied in conjunction with other public involvement procedures, such 
as a comment period provided on a NEPA document.
    (ii) The Administration shall inform the official(s) with 
jurisdiction of its intent to make a de minimis impact finding. 
Following an opportunity for public review and comment as described in 
paragraph (b)(2)(i) of this section, the official(s) with jurisdiction 
over the Section 4(f) resource must concur in writing that the project 
will not adversely affect the activities, features, or attributes that 
make the property eligible for Section 4(f) protection. This concurrence 
may be combined with other comments on the project provided by the 
official(s).
    (c) The application of a programmatic Section 4(f) evaluation to the 
use of a specific Section 4(f) property under Sec.  774.3(d)(1) shall be 
coordinated as specified in the applicable programmatic Section 4(f) 
evaluation.
    (d) When Federal encumbrances on Section 4(f) property are 
identified, coordination with the appropriate Federal agency is required 
to ascertain the agency's position on the proposed impact, as well as to 
determine if any other Federal requirements may apply to converting the 
Section 4(f) land to a different function. Any such requirements must be 
satisfied, independent of the Section 4(f) approval.



Sec.  774.7  Documentation.

    (a) A Section 4(f) evaluation prepared under Sec.  774.3(a) shall 
include sufficient supporting documentation to demonstrate why there is 
no feasible and prudent avoidance alternative and shall summarize the 
results of all possible planning to minimize harm to the Section 4(f) 
property.
    (b) A de minimis impact determination under Sec.  774.3(b) shall 
include sufficient supporting documentation to

[[Page 565]]

demonstrate that the impacts, after avoidance, minimization, mitigation, 
or enhancement measures are taken into account, are de minimis as 
defined in Sec.  774.17; and that the coordination required in Sec.  
774.5(b) has been completed.
    (c) If there is no feasible and prudent avoidance alternative the 
Administration may approve only the alternative that causes the least 
overall harm in accordance with Sec.  774.3(c). This analysis must be 
documented in the Section 4(f) evaluation.
    (d) The Administration shall review all Section 4(f) approvals under 
Sec. Sec.  774.3(a) and 774.3(c) for legal sufficiency.
    (e) A Section 4(f) approval may involve different levels of detail 
where the Section 4(f) involvement is addressed in a tiered EIS under 
Sec.  771.111(g) of this chapter.
    (1) When the first-tier, broad-scale EIS is prepared, the detailed 
information necessary to complete the Section 4(f) approval may not be 
available at that stage in the development of the action. In such cases, 
the documentation should address the potential impacts that a proposed 
action will have on Section 4(f) property and whether those impacts 
could have a bearing on the decision to be made. A preliminary Section 
4(f) approval may be made at this time as to whether the impacts 
resulting from the use of a Section 4(f) property are de minimis or 
whether there are feasible and prudent avoidance alternatives. This 
preliminary approval shall include all possible planning to minimize 
harm to the extent that the level of detail available at the first-tier 
EIS stage allows. It is recognized that such planning at this stage may 
be limited to ensuring that opportunities to minimize harm at subsequent 
stages in the development process have not been precluded by decisions 
made at the first-tier stage. This preliminary Section 4(f) approval is 
then incorporated into the first-tier EIS.
    (2) The Section 4(f) approval will be finalized in the second-tier 
study. If no new Section 4(f) use, other than a de minimis impact, is 
identified in the second-tier study and if all possible planning to 
minimize harm has occurred, then the second-tier Section 4(f) approval 
may finalize the preliminary approval by reference to the first-tier 
documentation. Re-evaluation of the preliminary Section 4(f) approval is 
only needed to the extent that new or more detailed information 
available at the second-tier stage raises new Section 4(f) concerns not 
already considered.
    (3) The final Section 4(f) approval may be made in the second-tier 
CE, EA, final EIS, ROD or FONSI.
    (f) In accordance with Sec. Sec.  771.105(a) and 771.133 of this 
chapter, the documentation supporting a Section 4(f) approval should be 
included in the EIS, EA, or for a project classified as a CE, in a 
separate document. If the Section 4(f) documentation cannot be included 
in the NEPA document, then it shall be presented in a separate document. 
The Section 4(f) documentation shall be developed by the applicant in 
cooperation with the Administration.



Sec.  774.9  Timing.

    (a) The potential use of land from a Section 4(f) property shall be 
evaluated as early as practicable in the development of the action when 
alternatives to the proposed action are under study.
    (b) Except as provided in paragraph (c) of this section, for actions 
processed with EISs the Administration will make the Section 4(f) 
approval either in the final EIS or in the ROD. Where the Section 4(f) 
approval is documented in the final EIS, the Administration will 
summarize the basis for its Section 4(f) approval in the ROD. Actions 
requiring the use of Section 4(f) property, and proposed to be processed 
with a FONSI or classified as a CE, shall not proceed until notification 
by the Administration of Section 4(f) approval.
    (c) After the CE, FONSI, or ROD has been processed, a separate 
Section 4(f) approval will be required, except as provided in Sec.  
774.13, if:
    (1) A proposed modification of the alignment or design would require 
the use of Section 4(f) property; or
    (2) The Administration determines that Section 4(f) applies to the 
use of a property; or
    (3) A proposed modification of the alignment, design, or measures to 
minimize harm (after the original Section

[[Page 566]]

4(f) approval) would result in a substantial increase in the amount of 
Section 4(f) property used, a substantial increase in the adverse 
impacts to Section 4(f) property, or a substantial reduction in the 
measures to minimize harm.
    (d) A separate Section 4(f) approval required under paragraph (c) of 
this section will not necessarily require the preparation of a new or 
supplemental NEPA document. If a new or supplemental NEPA document is 
also required under Sec.  771.130 of this chapter, then it should 
include the documentation supporting the separate Section 4(f) approval. 
Where a separate Section 4(f) approval is required, any activity not 
directly affected by the separate Section 4(f) approval can proceed 
during the analysis, consistent with Sec.  771.130(f) of this chapter.
    (e) Section 4(f) may apply to archeological sites discovered during 
construction, as set forth in Sec.  774.11(f). In such cases, the 
Section 4(f) process will be expedited and any required evaluation of 
feasible and prudent avoidance alternatives will take account of the 
level of investment already made. The review process, including the 
consultation with other agencies, will be shortened as appropriate.



Sec.  774.11  Applicability.

    (a) The Administration will determine the applicability of Section 
4(f) in accordance with this part.
    (b) When another Federal agency is the Federal lead agency for the 
NEPA process, the Administration shall make any required Section 4(f) 
approvals unless the Federal lead agency is another U.S. DOT agency.
    (c) Consideration under Section 4(f) is not required when the 
official(s) with jurisdiction over a park, recreation area, or wildlife 
and waterfowl refuge determine that the property, considered in its 
entirety, is not significant. In the absence of such a determination, 
the Section 4(f) property will be presumed to be significant. The 
Administration will review a determination that a park, recreation area, 
or wildlife and waterfowl refuge is not significant to assure its 
reasonableness.
    (d) Where Federal lands or other public land holdings (e.g., State 
forests) are administered under statutes permitting management for 
multiple uses, and, in fact, are managed for multiple uses, Section 4(f) 
applies only to those portions of such lands which function for, or are 
designated in the plans of the administering agency as being for, 
significant park, recreation, or wildlife and waterfowl refuge purposes. 
The determination of which lands so function or are so designated, and 
the significance of those lands, shall be made by the official(s) with 
jurisdiction over the Section 4(f) resource. The Administration will 
review this determination to assure its reasonableness.
    (e) In determining the applicability of Section 4(f) to historic 
sites, the Administration, in cooperation with the applicant, will 
consult with the official(s) with jurisdiction to identify all 
properties on or eligible for the National Register of Historic Places 
(National Register). The Section 4(f) requirements apply to historic 
sites on or eligible for the National Register unless the Administration 
determines that an exception under Sec.  774.13 applies.
    (1) The Section 4(f) requirements apply only to historic sites on or 
eligible for the National Register unless the Administration determines 
that the application of Section 4(f) is otherwise appropriate.
    (2) The Interstate System is not considered to be a historic site 
subject to Section 4(f), with the exception of those individual elements 
of the Interstate System formally identified by FHWA for Section 4(f) 
protection on the basis of national or exceptional historic 
significance.
    (f) Section 4(f) applies to all archeological sites on or eligible 
for inclusion on the National Register, including those discovered 
during construction, except as set forth in Sec.  774.13(b).
    (g) Section 4(f) applies to those portions of federally designated 
Wild and Scenic Rivers that are otherwise eligible as historic sites, or 
that are publicly owned and function as, or are designated in a 
management plan as, a significant park, recreation area, or wildlife and 
waterfowl refuge. All other applicable requirements of the Wild and 
Scenic Rivers Act, 16 U.S.C. 1271-1287, must be satisfied, independent 
of the Section 4(f) approval.

[[Page 567]]

    (h) When a property formally reserved for a future transportation 
facility temporarily functions for park, recreation, or wildlife and 
waterfowl refuge purposes in the interim, the interim activity, 
regardless of duration, will not subject the property to Section 4(f).
    (i) When a property is formally reserved for a future transportation 
facility before or at the same time a park, recreation area, or wildlife 
and waterfowl refuge is established, and concurrent or joint planning or 
development of the transportation facility and the Section 4(f) resource 
occurs, then any resulting impacts of the transportation facility will 
not be considered a use as defined in Sec.  774.17.
    (1) Formal reservation of a property for a future transportation use 
can be demonstrated by a document of public record created prior to or 
contemporaneously with the establishment of the park, recreation area, 
or wildlife and waterfowl refuge. Examples of an adequate document to 
formally reserve a future transportation use include:
    (i) A map of public record that depicts a transportation facility on 
the property;
    (ii) A land use or zoning plan depicting a transportation facility 
on the property; or
    (iii) A fully executed real estate instrument that references a 
future transportation facility on the property.
    (2) Concurrent or joint planning or development can be demonstrated 
by a document of public record created after, contemporaneously with, or 
prior to the establishment of the Section 4(f) property. Examples of an 
adequate document to demonstrate concurrent or joint planning or 
development include:
    (i) A document of public record that describes or depicts the 
designation or donation of the property for both the potential 
transportation facility and the Section 4(f) property; or
    (ii) A map of public record, memorandum, planning document, report, 
or correspondence that describes or depicts action taken with respect to 
the property by two or more governmental agencies with jurisdiction for 
the potential transportation facility and the Section 4(f) property, in 
consultation with each other.

[73 FR 13395, Mar. 12, 2008, as amended at 83 FR 54506, Oct. 29, 2018]



Sec.  774.13  Exceptions.

    The Administration has identified various exceptions to the 
requirement for Section 4(f) approval. These exceptions include, but are 
not limited to:
    (a) The use of historic transportation facilities in certain 
circumstances:
    (1) Common post-1945 concrete or steel bridges and culverts that are 
exempt from individual review under 54 U.S.C. 306108.
    (2) Improvement of railroad or rail transit lines that are in use or 
were historically used for the transportation of goods or passengers, 
including, but not limited to, maintenance, preservation, 
rehabilitation, operation, modernization, reconstruction, and 
replacement of railroad or rail transit line elements, except for:
    (i) Stations;
    (ii) Bridges or tunnels on railroad lines that have been abandoned, 
or transit lines not in use, over which regular service has never 
operated, and that have not been railbanked or otherwise reserved for 
the transportation of goods or passengers; and
    (iii) Historic sites unrelated to the railroad or rail transit 
lines.
    (3) Maintenance, preservation, rehabilitation, operation, 
modernization, reconstruction, or replacement of historic transportation 
facilities, if the Administration concludes, as a result of the 
consultation under 36 CFR 800.5, that:
    (i) Such work will not adversely affect the historic qualities of 
the facility that caused it to be on or eligible for the National 
Register, or this work achieves compliance with Section 106 through a 
program alternative under 36 CFR 800.14; and
    (ii) The official(s) with jurisdiction over the Section 4(f) 
resource have not objected to the Administration conclusion that the 
proposed work does not adversely affect the historic qualities of the 
facility that caused it to be on or eligible for the National Register, 
or the Administration concludes this work achieves compliance with 54 
U.S.C. 306108 (Section 106) through a

[[Page 568]]

program alternative under 36 CFR 800.14.
    (b) Archeological sites that are on or eligible for the National 
Register when:
    (1) The Administration concludes that the archeological resource is 
important chiefly because of what can be learned by data recovery and 
has minimal value for preservation in place. This exception applies both 
to situations where data recovery is undertaken and where the 
Administration decides, with agreement of the official(s) with 
jurisdiction, not to recover the resource; and
    (2) The official(s) with jurisdiction over the Section 4(f) resource 
have been consulted and have not objected to the Administration finding 
in paragraph (b)(1) of this section.
    (c) Designations of park and recreation lands, wildlife and 
waterfowl refuges, and historic sites that are made, or determinations 
of significance that are changed, late in the development of a proposed 
action. With the exception of the treatment of archeological resources 
in Sec.  774.9(e), the Administration may permit a project to proceed 
without consideration under Section 4(f) if the property interest in the 
Section 4(f) land was acquired for transportation purposes prior to the 
designation or change in the determination of significance and if an 
adequate effort was made to identify properties protected by Section 
4(f) prior to acquisition. However, if it is reasonably foreseeable that 
a property would qualify as eligible for the National Register prior to 
the start of construction, then the property should be treated as a 
historic site for the purposes of this section.
    (d) Temporary occupancies of land that are so minimal as to not 
constitute a use within the meaning of Section 4(f). The following 
conditions must be satisfied:
    (1) Duration must be temporary, i.e., less than the time needed for 
construction of the project, and there should be no change in ownership 
of the land;
    (2) Scope of the work must be minor, i.e., both the nature and the 
magnitude of the changes to the Section 4(f) property are minimal;
    (3) There are no anticipated permanent adverse physical impacts, nor 
will there be interference with the protected activities, features, or 
attributes of the property, on either a temporary or permanent basis;
    (4) The land being used must be fully restored, i.e., the property 
must be returned to a condition which is at least as good as that which 
existed prior to the project; and
    (5) There must be documented agreement of the official(s) with 
jurisdiction over the Section 4(f) resource regarding the above 
conditions.
    (e) Projects for the Federal lands transportation facilities 
described in 23 U.S.C. 101(a)(8).
    (f) Certain trails, paths, bikeways, and sidewalks, in the following 
circumstances:
    (1) Trail-related projects funded under the Recreational Trails 
Program, 23 U.S.C. 206(h)(2);
    (2) National Historic Trails and the Continental Divide National 
Scenic Trail, designated under the National Trails System Act, 16 U.S.C. 
1241-1251, with the exception of those trail segments that are historic 
sites as defined in Sec.  774.17;
    (3) Trails, paths, bikeways, and sidewalks that occupy a 
transportation facility right-of-way without limitation to any specific 
location within that right-of-way, so long as the continuity of the 
trail, path, bikeway, or sidewalk is maintained; and
    (4) Trails, paths, bikeways, and sidewalks that are part of the 
local transportation system and which function primarily for 
transportation.
    (g) Transportation enhancement activities, transportation 
alternatives projects, and mitigation activities, where:
    (1) The use of the Section 4(f) property is solely for the purpose 
of preserving or enhancing an activity, feature, or attribute that 
qualifies the property for Section 4(f) protection; and
    (2) The official(s) with jurisdiction over the Section 4(f) resource 
agrees in writing to paragraph (g)(1) of this section.

[73 FR 13395, Mar. 12, 2008, as amended at 83 FR 54507, Oct. 29, 2018]

[[Page 569]]



Sec.  774.15  Constructive use determinations.

    (a) A constructive use occurs when the transportation project does 
not incorporate land from a Section 4(f) property, but the project's 
proximity impacts are so severe that the protected activities, features, 
or attributes that qualify the property for protection under Section 
4(f) are substantially impaired. Substantial impairment occurs only when 
the protected activities, features, or attributes of the property are 
substantially diminished.
    (b) If the project results in a constructive use of a nearby Section 
4(f) property, the Administration shall evaluate that use in accordance 
with Sec.  774.3(a).
    (c) The Administration shall determine when there is a constructive 
use, but the Administration is not required to document each 
determination that a project would not result in a constructive use of a 
nearby Section 4(f) property. However, such documentation may be 
prepared at the discretion of the Administration.
    (d) When a constructive use determination is made, it will be based 
upon the following:
    (1) Identification of the current activities, features, or 
attributes of the property which qualify for protection under Section 
4(f) and which may be sensitive to proximity impacts;
    (2) An analysis of the proximity impacts of the proposed project on 
the Section 4(f) property. If any of the proximity impacts will be 
mitigated, only the net impact need be considered in this analysis. The 
analysis should also describe and consider the impacts which could 
reasonably be expected if the proposed project were not implemented, 
since such impacts should not be attributed to the proposed project; and
    (3) Consultation, on the foregoing identification and analysis, with 
the official(s) with jurisdiction over the Section 4(f) property.
    (e) The Administration has reviewed the following situations and 
determined that a constructive use occurs when:
    (1) The projected noise level increase attributable to the project 
substantially interferes with the use and enjoyment of a noise-sensitive 
facility of a property protected by Section 4(f), such as:
    (i) Hearing the performances at an outdoor amphitheater;
    (ii) Sleeping in the sleeping area of a campground;
    (iii) Enjoyment of a historic site where a quiet setting is a 
generally recognized feature or attribute of the site's significance;
    (iv) Enjoyment of an urban park where serenity and quiet are 
significant attributes; or
    (v) Viewing wildlife in an area of a wildlife and waterfowl refuge 
intended for such viewing.
    (2) The proximity of the proposed project substantially impairs 
esthetic features or attributes of a property protected by Section 4(f), 
where such features or attributes are considered important contributing 
elements to the value of the property. Examples of substantial 
impairment to visual or esthetic qualities would be the location of a 
proposed transportation facility in such proximity that it obstructs or 
eliminates the primary views of an architecturally significant 
historical building, or substantially detracts from the setting of a 
Section 4(f) property which derives its value in substantial part due to 
its setting;
    (3) The project results in a restriction of access which 
substantially diminishes the utility of a significant publicly owned 
park, recreation area, or a historic site;
    (4) The vibration impact from construction or operation of the 
project substantially impairs the use of a Section 4(f) property, such 
as projected vibration levels that are great enough to physically damage 
a historic building or substantially diminish the utility of the 
building, unless the damage is repaired and fully restored consistent 
with the Secretary of the Interior's Standards for the Treatment of 
Historic Properties, i.e., the integrity of the contributing features 
must be returned to a condition which is substantially similar to that 
which existed prior to the project; or
    (5) The ecological intrusion of the project substantially diminishes 
the value of wildlife habitat in a wildlife and waterfowl refuge 
adjacent to the

[[Page 570]]

project, substantially interferes with the access to a wildlife and 
waterfowl refuge when such access is necessary for established wildlife 
migration or critical life cycle processes, or substantially reduces the 
wildlife use of a wildlife and waterfowl refuge.
    (f) The Administration has reviewed the following situations and 
determined that a constructive use does not occur when:
    (1) Compliance with the requirements of 36 CFR 800.5 for proximity 
impacts of the proposed action, on a site listed on or eligible for the 
National Register, results in an agreement of ``no historic properties 
affected'' or ``no adverse effect;''
    (2) For projected noise levels:
    (i) The impact of projected traffic noise levels of the proposed 
highway project on a noise-sensitive activity do not exceed the FHWA 
noise abatement criteria as contained in Table 1 in part 772 of this 
chapter; or
    (ii) The projected operational noise levels of the proposed transit 
or railroad project do not exceed the noise impact criteria for a 
Section 4(f) activity in the FTA guidelines for transit noise and 
vibration impact assessment or the moderate impact criteria in the FRA 
guidelines for high-speed transportation noise and vibration impact 
assessment;
    (3) The projected noise levels exceed the relevant threshold in 
paragraph (f)(2) of this section because of high existing noise, but the 
increase in the projected noise levels if the proposed project is 
constructed, when compared with the projected noise levels if the 
project is not built, is barely perceptible (3 dBA or less);
    (4) There are proximity impacts to a Section 4(f) property, but a 
governmental agency's right-of-way acquisition or adoption of project 
location, or the Administration's approval of a final environmental 
document, established the location for the proposed transportation 
project before the designation, establishment, or change in the 
significance of the property. However, if it is reasonably foreseeable 
that a property would qualify as eligible for the National Register 
prior to the start of construction, then the property should be treated 
as a historic site for the purposes of this section; or
    (5) Overall (combined) proximity impacts caused by a proposed 
project do not substantially impair the activities, features, or 
attributes that qualify a property for protection under Section 4(f);
    (6) Proximity impacts will be mitigated to a condition equivalent 
to, or better than, that which would occur if the project were not 
built, as determined after consultation with the official(s) with 
jurisdiction;
    (7) Change in accessibility will not substantially diminish the 
utilization of the Section 4(f) property; or
    (8) Vibration levels from project construction activities are 
mitigated, through advance planning and monitoring of the activities, to 
levels that do not cause a substantial impairment of protected 
activities, features, or attributes of the Section 4(f) property.

[73 FR 13395, Mar. 12, 2008, as amended at 83 FR 54507, Oct. 29, 2018]



Sec.  774.17  Definitions.

    The definitions contained in 23 U.S.C. 101(a) are applicable to this 
part. In addition, the following definitions apply:
    Administration. The FHWA, FRA, or FTA, whichever is approving the 
transportation program or project at issue. A reference herein to the 
Administration means the State when the State is functioning as the 
FHWA, FRA, or FTA in carrying out responsibilities delegated or assigned 
to the State in accordance with 23 U.S.C. 325, 326, 327, or other 
applicable law.
    All possible planning. All possible planning means that all 
reasonable measures identified in the Section 4(f) evaluation to 
minimize harm or mitigate for adverse impacts and effects must be 
included in the project.
    (1) With regard to public parks, recreation areas, and wildlife and 
waterfowl refuges, the measures may include (but are not limited to): 
design modifications or design goals; replacement of land or facilities 
of comparable value and function; or monetary compensation to enhance 
the remaining property or to mitigate the adverse impacts of the project 
in other ways.
    (2) With regard to historic sites, the measures normally serve to 
preserve

[[Page 571]]

the historic activities, features, or attributes of the site as agreed 
by the Administration and the official(s) with jurisdiction over the 
Section 4(f) resource in accordance with the consultation process under 
36 CFR part 800.
    (3) In evaluating the reasonableness of measures to minimize harm 
under Sec.  774.3(a)(2), the Administration will consider the 
preservation purpose of the statute and:
    (i) The views of the official(s) with jurisdiction over the Section 
4(f) property;
    (ii) Whether the cost of the measures is a reasonable public 
expenditure in light of the adverse impacts of the project on the 
Section 4(f) property and the benefits of the measure to the property, 
in accordance with Sec.  771.105(d) of this chapter; and
    (iii) Any impacts or benefits of the measures to communities or 
environmental resources outside of the Section 4(f) property.
    (4) All possible planning does not require analysis of feasible and 
prudent avoidance alternatives, since such analysis will have already 
occurred in the context of searching for feasible and prudent 
alternatives that avoid Section 4(f) properties altogether under Sec.  
774.3(a)(1), or is not necessary in the case of a de minimis impact 
determination under Sec.  774.3(b).
    (5) A de minimis impact determination under Sec.  774.3(b) subsumes 
the requirement for all possible planning to minimize harm by reducing 
the impacts on the Section 4(f) property to a de minimis level.
    Applicant. The Federal, State, or local government authority, 
proposing a transportation project, that the Administration works with 
to conduct environmental studies and prepare environmental documents. 
For transportation actions implemented by the Federal government on 
Federal lands, the Administration or the Federal land management agency 
may take on the responsibilities of the applicant described herein.
    CE. Refers to a categorical exclusion, which is an action with no 
individual or cumulative significant environmental effect pursuant to 40 
CFR 1508.4 and Sec.  771.116, Sec.  771.117, or Sec.  771.118 of this 
chapter; unusual circumstances are taken into account in making 
categorical exclusion determinations.
    De minimis impact. (1) For historic sites, de minimis impact means 
that the Administration has determined, in accordance with 36 CFR part 
800 that no historic property is affected by the project or that the 
project will have ``no adverse effect'' on the historic property in 
question.
    (2) For parks, recreation areas, and wildlife and waterfowl refuges, 
a de minimis impact is one that will not adversely affect the features, 
attributes, or activities qualifying the property for protection under 
Section 4(f).
    EA. Refers to an Environmental Assessment, which is a document 
prepared pursuant to 40 CFR parts 1500-1508 and Sec.  771.119 of this 
title for a proposed project that is not categorically excluded but for 
which an EIS is not clearly required.
    EIS. Refers to an Environmental Impact Statement, which is a 
document prepared pursuant to NEPA, 40 CFR parts 1500-1508, and 
Sec. Sec.  771.123 and 771.125 of this chapter for a proposed project 
that is likely to cause significant impacts on the environment.
    Feasible and prudent avoidance alternative. (1) A feasible and 
prudent avoidance alternative avoids using Section 4(f) property and 
does not cause other severe problems of a magnitude that substantially 
outweighs the importance of protecting the Section 4(f) property. In 
assessing the importance of protecting the Section 4(f) property, it is 
appropriate to consider the relative value of the resource to the 
preservation purpose of the statute.
    (2) An alternative is not feasible if it cannot be built as a matter 
of sound engineering judgment.
    (3) An alternative is not prudent if:
    (i) It compromises the project to a degree that it is unreasonable 
to proceed with the project in light of its stated purpose and need;
    (ii) It results in unacceptable safety or operational problems;
    (iii) After reasonable mitigation, it still causes:
    (A) Severe social, economic, or environmental impacts;
    (B) Severe disruption to established communities;

[[Page 572]]

    (C) Severe disproportionate impacts to minority or low income 
populations; or
    (D) Severe impacts to environmental resources protected under other 
Federal statutes;
    (iv) It results in additional construction, maintenance, or 
operational costs of an extraordinary magnitude;
    (v) It causes other unique problems or unusual factors; or
    (vi) It involves multiple factors in paragraphs (3)(i) through 
(3)(v) of this definition, that while individually minor, cumulatively 
cause unique problems or impacts of extraordinary magnitude.
    FONSI. Refers to a Finding of No Significant Impact prepared 
pursuant to 40 CFR 1508.13 and Sec.  771.121 of this chapter.
    Historic site. For purposes of this part, the term ``historic site'' 
includes any prehistoric or historic district, site, building, 
structure, or object included in, or eligible for inclusion in, the 
National Register. The term includes properties of traditional religious 
and cultural importance to an Indian tribe or Native Hawaiian 
organization that are included in, or are eligible for inclusion in, the 
National Register.
    Official(s) with jurisdiction. (1) In the case of historic 
properties, the official with jurisdiction is the SHPO for the State 
wherein the property is located or, if the property is located on tribal 
land, the THPO. If the property is located on tribal land but the Indian 
tribe has not assumed the responsibilities of the SHPO as provided for 
in the National Historic Preservation Act, then a representative 
designated by such Indian tribe shall be recognized as an official with 
jurisdiction in addition to the SHPO. When the ACHP is involved in a 
consultation concerning a property under Section 106 of the NHPA, the 
ACHP is also an official with jurisdiction over that resource for 
purposes of this part. When the Section 4(f) property is a National 
Historic Landmark, the National Park Service is also an official with 
jurisdiction over that resource for purposes of this part.
    (2) In the case of public parks, recreation areas, and wildlife and 
waterfowl refuges, the official(s) with jurisdiction are the official(s) 
of the agency or agencies that own or administer the property in 
question and who are empowered to represent the agency on matters 
related to the property.
    (3) In the case of portions of Wild and Scenic Rivers to which 
Section 4(f) applies, the official(s) with jurisdiction are the 
official(s) of the Federal agency or agencies that own or administer the 
affected portion of the river corridor in question. For State 
administered, federally designated rivers (section 2(a)(ii) of the Wild 
and Scenic Rivers Act, 16 U.S.C. 1273(a)(ii)), the officials with 
jurisdiction include both the State agency designated by the respective 
Governor and the Secretary of the Interior.
    Railroad or rail transit line elements. Railroad or rail transit 
line elements include the elements related to the operation of the 
railroad or rail transit line, such as the railbed, rails, and track; 
tunnels; elevated support structures and bridges; substations; signal 
and communication devices; maintenance facilities; and railway-highway 
crossings.
    ROD. Refers to a record of decision prepared pursuant to 40 CFR 
1505.2 and Sec. Sec.  771.124 or 771.127 of this chapter.
    Section 4(f) evaluation. Refers to the documentation prepared to 
support the granting of a Section 4(f) approval under Sec.  774.3(a), 
unless preceded by the word ``programmatic.'' A ``programmatic Section 
4(f) evaluation'' is the documentation prepared pursuant to Sec.  
774.3(d) that authorizes subsequent project-level Section 4(f) approvals 
as described therein.
    Section 4(f) Property. Section 4(f) property means publicly owned 
land of a public park, recreation area, or wildlife and waterfowl refuge 
of national, State, or local significance, or land of an historic site 
of national, State, or local significance.
    Station. A station is a platform and the associated building or 
structure such as a depot, shelter, or canopy used by intercity or 
commuter rail transportation passengers for the purpose of boarding and 
alighting a train. A station does not include tracks, railyards, or 
electrification, communications or signal systems, or equipment. A 
platform alone is not considered a station.

[[Page 573]]

    Use. Except as set forth in Sec. Sec.  774.11 and 774.13, a ``use'' 
of Section 4(f) property occurs:
    (1) When land is permanently incorporated into a transportation 
facility;
    (2) When there is a temporary occupancy of land that is adverse in 
terms of the statute's preservation purpose as determined by the 
criteria in Sec.  774.13(d); or
    (3) When there is a constructive use of a Section 4(f) property as 
determined by the criteria in Sec.  774.15.

[73 FR 13395, Mar. 12, 2008, as amended at 83 FR 54507, Oct. 29, 2018]



PART 777_MITIGATION OF IMPACTS TO WETLANDS AND NATURAL HABITAT--
Table of Contents



Sec.
777.1 Purpose.
777.2 Definitions.
777.3 Background.
777.5 Federal participation.
777.7 Evaluation of impacts.
777.9 Mitigation of impacts.
777.11 Other considerations.

    Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C. 101(a), 
103, 109(h), 133(b)(1), (b)(11), and (d)(2), 138, 315; E.O. 11990; DOT 
Order 5660.1A; 49 CFR 1.48(b).

    Source: 65 FR 82924, Dec. 29, 2000, unless otherwise noted.



Sec.  777.1  Purpose.

    To provide policy and procedures for the evaluation and mitigation 
of adverse environmental impacts to wetlands and natural habitat 
resulting from Federal-aid projects funded pursuant to provisions of 
title 23, U.S. Code. These policies and procedures shall be applied by 
the Federal Highway Administration (FHWA) to projects under the Federal 
Lands Highway Program to the extent such application is deemed 
appropriate by the FHWA.



Sec.  777.2  Definitions.

    In addition to those contained in 23 U.S.C. 101(a), the following 
definitions shall apply as used in this part:
    Biogeochemical transformations means those changes in chemical 
compounds and substances which naturally occur in ecosystems. Examples 
are the carbon, nitrogen, and phosphorus cycles in nature, in which 
these elements are incorporated from inorganic substances into organic 
matter and recycled on a continuing basis.
    Compensatory mitigation means restoration, enhancement, creation, 
and under exceptional circumstances, preservation, of wetlands, wetland 
buffer areas, and other natural habitats, carried out to replace or 
compensate for the loss of wetlands or natural habitat area or 
functional capacity resulting from Federal-aid projects funded pursuant 
to provisions of title 23, U.S. Code. Compensatory mitigation usually 
occurs in advance of or concurrent with the impacts to be mitigated, but 
may occur after such impacts in special circumstances.
    Mitigation bank means a site where wetlands and/or other aquatic 
resources or natural habitats are restored, created, enhanced, or in 
exceptional circumstances, preserved, expressly for the purpose of 
providing compensatory mitigation in advance of authorized impacts to 
similar resources. For purposes of the Clean Water Act, Section 404 (33 
U.S.C. 1344), use of a mitigation bank can only be authorized when 
impacts are unavoidable.
    Natural habitat means a complex of natural, primarily native or 
indigenous vegetation, not currently subject to cultivation or 
artificial landscaping, a primary purpose of which is to provide habitat 
for wildlife, either terrestrial or aquatic. For purposes of this part, 
habitat has the same meaning as natural habitat. This definition 
excludes rights-of-way that are acquired with Federal transportation 
funds specifically for highway purposes.
    Net gain of wetlands means a wetland resource conservation and 
management principle under which, over the long term, unavoidable losses 
of wetlands area or functional capacity due to highway projects are 
offset by gains at a ratio greater than 1:1, through restoration, 
enhancement, preservation, or creation of wetlands or associated areas 
critical to the protection or conservation of wetland functions. This 
definition specifically excludes natural habitat, as defined in this 
section, other than wetlands.

[[Page 574]]

    On-site, in-kind mitigation means compensatory mitigation which 
replaces wetlands or natural habitat area or functions lost as a result 
of a highway project with the same or like wetland or habitat type and 
functions adjacent or contiguous to the site of the impact.
    Practicable means available and capable of being done after taking 
into consideration cost, existing technology, and logistics, in light of 
overall project purposes.
    Service area of a mitigation bank means that the service area of a 
wetland or natural habitat mitigation bank shall be consistent with that 
in the Federal Guidance for the Establishment, Use and Operation of 
Mitigation Banks (60 FR 58605, November 28, 1995), i.e., the designated 
area (e.g., watershed, county) wherein a bank can be expected to provide 
appropriate compensation for impacts to wetlands and/or other aquatic or 
natural habitat resources.
    Wetland or habitat enhancement means activities conducted in 
existing wetlands or other natural habitat to achieve specific 
management objectives or provide conditions which previously did not 
exist, and which increase one or more ecosystem functions. Enhancement 
may involve tradeoffs between the resource structure, function, and 
values; a positive change in one may result in negative effects to other 
functions. Examples of activities which may be carried out to enhance 
wetlands or natural habitats include, but are not limited to, alteration 
of hydrologic regime, vegetation management, erosion control, fencing, 
integrated pest management and control, and fertilization.
    Wetland or habitat establishment period means a period of time 
agreed to by the FHWA, State DOT, and U.S. Army Corps of Engineers, as 
necessary to establish wetland or natural habitat functional capacity in 
a compensatory mitigation project sufficient to compensate wetlands or 
habitat losses due to impacts of Federal-aid highway projects. The 
establishment period may vary depending on the specific wetland or 
habitat type being developed.
    Wetland or habitat functional capacity means the ability of a 
wetland or natural habitat to perform natural functions, such as provide 
wildlife habitat, support biodiversity, store surface water, or perform 
biogeochemical transformations, as determined by scientific functional 
assessment. Natural functions of wetlands include, but are not limited 
to, those listed by the U.S. Army Corps of Engineers at 33 CFR 
320.4(b)(2)(i) through (viii).
    Wetland or habitat preservation means the protection of ecologically 
important wetlands, other aquatic resources, or other natural habitats 
in perpetuity through the implementation of appropriate legal and 
physical mechanisms. Preservation of wetlands for compensatory 
mitigation purposes may include protection of upland areas adjacent to 
wetlands as necessary to ensure protection and/or enhancement of the 
aquatic ecosystem.
    Wetland or habitat restoration means the reestablishment of wetlands 
or natural habitats on a site where they formerly existed or exist in a 
substantially degraded state.
    Wetland or wetlands means those areas that are inundated or 
saturated by surface or ground water at a frequency and duration to 
support, and that under normal circumstances do support, a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include swamps, marshes, bogs and similar areas.
    Wetlands or habitat mitigation credit means a unit of wetlands or 
habitat mitigation, defined either by area or a measure of functional 
capacity through application of scientific functional assessment. With 
respect to mitigation banks, this definition means the same as that in 
the Federal Guidance for the Establishment, Use, and Operation of 
Mitigation Banks.



Sec.  777.3  Background.

    (a) Executive Order 11990 (42 FR 26961, 3 CFR, 1977 Comp., p. 121) 
Protection of Wetlands, and DOT Order 5660.1A, \1\ Preservation of the 
Nation's Wetlands, emphasize the important functions and

[[Page 575]]

values inherent in the Nation's wetlands. Federal agencies are directed 
to avoid new construction in wetlands unless the head of the agency 
determines that:
---------------------------------------------------------------------------

    \1\ DOT Order 5660.1A is available for inspection and copying from 
FHWA headquarters and field offices as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------

    (1) There is no practicable alternative to such construction, and
    (2) The proposed action includes all practicable measures to 
minimize harm to wetlands which may result from such use.
    (b) Sections 103 and 133 of title 23, U.S. Code, identify additional 
approaches for mitigation and management of impacts to wetlands and 
natural habitats which result from projects funded pursuant to title 23, 
U.S. Code, as eligible for participation with title 23, U.S. Code, 
funds.
    (c) 33 CFR parts 320 through 330, Regulatory Program, U.S. Army 
Corps of Engineers; Section 404, Clean Water Act and 40 CFR part 230, 
Section 404(b)(1) Guidelines for the Specification of Disposal Sites for 
Dredged or Fill Material, establish requirements for the permitting of 
discharge of dredge or fill material in wetlands and other waters of the 
United States.
    (d) Federal Guidance for the Establishment, Use, and Operation of 
Mitigation Banks presents guidance for the use of ecological mitigation 
banks as compensatory mitigation in the Section 404 Regulatory Program 
for unavoidable impacts to wetlands and other aquatic resources.
    (e) Interagency Cooperation--Endangered Species Act of 1973, as 
amended (50 CFR part 402), presents regulations establishing interagency 
consultation procedures relative to impacts to species listed under the 
authority of the Act and their habitats as required by Section 7, 
Interagency Coordination, of the Endangered Species Act of 1973 (16 
U.S.C. 1536).



Sec.  777.5  Federal participation.

    (a) Those measures which the FHWA and a State DOT find appropriate 
and necessary to mitigate adverse environmental impacts to wetlands and 
natural habitats are eligible for Federal participation where the 
impacts are the result of projects funded pursuant to title 23, U.S. 
Code. The justification for the cost of proposed mitigation measures 
should be considered in the same context as any other public 
expenditure; that is, the proposed mitigation represents a reasonable 
public expenditure when weighed against other social, economic, and 
environmental values, and the benefit realized is commensurate with the 
proposed expenditure. Mitigation measures shall give like consideration 
to traffic needs, safety, durability, and economy of maintenance of the 
highway.
    (b) It is FHWA policy to permit, consistent with the limits set 
forth in this part, the expenditure of title 23, U.S. Code, funds for 
activities required for the planning, design, construction, monitoring, 
and establishment of wetlands and natural habitat mitigation projects, 
and acquisition of land or interests therein.



Sec.  777.7  Evaluation of impacts.

    (a) The reasonableness of the public expenditure and extent of 
Federal participation with title 23, U.S. Code, funds shall be directly 
related to:
    (1) The importance of the impacted wetlands and natural habitats;
    (2) The extent of highway impacts on the wetlands and natural 
habitats, as determined through an appropriate, interdisciplinary, 
impact assessment; and
    (3) Actions necessary to comply with the Clean Water Act, Section 
404, the Endangered Species Act of 1973, and other relevant Federal 
statutes.
    (b) Evaluation of the importance of the impacted wetlands and 
natural habitats shall consider:
    (1) Wetland and natural habitat functional capacity;
    (2) Relative importance of these functions to the total wetland or 
natural habitat resource of the area;
    (3) Other factors such as uniqueness, esthetics, or cultural values; 
and
    (4) Input from the appropriate resource management agencies through 
interagency coordination.
    (c) A determination of the highway impact should focus on both the 
short-and long-term affects of the project on wetland or natural habitat 
functional capacity, consistent with 40 CFR part 1500, 40 CFR 1502.16, 
33 CFR 320.4, and the FHWA's environmental compliance regulations, found 
at 23 CFR part 771.

[[Page 576]]



Sec.  777.9  Mitigation of impacts.

    (a) Actions eligible for Federal funding. There are a number of 
actions that can be taken to minimize the impact of highway projects on 
wetlands or natural habitats. The following actions qualify for Federal-
aid highway funding:
    (1) Avoidance and minimization of impacts to wetlands or natural 
habitats through realignment and special design, construction features, 
or other measures.
    (2) Compensatory mitigation alternatives, either inside or outside 
of the right-of-way. This includes, but is not limited to, such measures 
as on-site mitigation, when that alternative is determined to be the 
preferred approach by the appropriate regulatory agency; improvement of 
existing degraded or historic wetlands or natural habitats through 
restoration or enhancement on or off site; creation of new wetlands; and 
under exceptional circumstances, preservation of existing wetlands or 
natural habitats on or off site. Restoration of wetlands is generally 
preferable to enhancement or creation of new wetlands.
    (3) Improvements to existing wetlands or natural habitats. Such 
activities may include, but are not limited to, construction or 
modification of water level control structures or ditches, establishment 
of natural vegetation, re-contouring of a site, installation or removal 
of irrigation, drainage, or other water distribution systems, integrated 
pest management, installation of fencing, monitoring, and other measures 
to protect, enhance, or restore the wetland or natural habitat character 
of a site.
    (4) Mitigation banks. In accordance with all applicable Federal law 
(including regulations), with respect to participation in compensatory 
mitigation related to a project funded under title 23, U.S. Code, that 
has an impact on wetlands or natural habitat occurring within the 
service area of a mitigation bank, preference shall be given, to the 
maximum extent practicable, to the use of the mitigation bank, if the 
bank contains sufficient available credits to offset the impact and the 
bank is approved in accordance with the Federal Guidance for the 
Establishment, Use, and Operation of Mitigation Banks, or other 
agreement between appropriate agencies.
    (b) Mitigation banking alternatives eligible for participation with 
Federal-aid funds including such measures as the following:
    (1) Mitigation banks in which mitigation credits are purchased by 
State DOTs to mitigate impacts to wetlands or natural habitats due to 
projects funded under title 23, U.S. Code, including privately owned 
banks or those established with private funds to mitigate wetland or 
natural habitat losses.
    (2) Single purpose banks established by and for the use of a State 
DOT with Federal-aid participation; or multipurpose publicly owned 
banks, established with public, non-title 23 Federal highway funds, in 
which credits may be purchased by highway agencies using title 23 
highway funds on a per-credit basis.
    (c) Contributions to statewide and regional efforts to conserve, 
restore, enhance and create wetlands or natural habitats. Federal-aid 
funds may participate in the development of statewide and regional 
wetlands conservation plans, including any efforts and plans authorized 
pursuant to the Water Resources Development Act of 1990 (Pub. L. 101-
640, 104 Stat. 4604). Contributions to these efforts may occur in 
advance of project construction only if such efforts are consistent with 
all applicable requirements of Federal law and regulations and State 
transportation planning processes.
    (d) Mitigation or restoration of historic impacts to wetlands and 
natural habitats caused by past highway projects funded pursuant to 
title 23, U.S. Code, even if there is no current federally funded 
highway project in the immediate vicinity. These impacts must be related 
to transportation projects funded under the authority of title 23, U.S. 
Code.



Sec.  777.11  Other considerations.

    (a) The development of measures proposed to mitigate impacts to 
wetlands or natural habitats shall include consultation with appropriate 
State and Federal agencies.
    (b) Federal-aid funds shall not participate in the replacement of 
wetlands

[[Page 577]]

or natural habitats absent sufficient assurances, such as, but not 
limited to, deed restrictions, fee ownership, permanent easement, or 
performance bond, that the area will be maintained as a wetland or 
natural habitat.
    (c) The acquisition of proprietary interests in replacement wetlands 
or natural habitats as a mitigation measure may be in fee simple, by 
easement, or by other appropriate legally recognized instrument, such as 
a banking instrument legally approved by the appropriate regulatory 
agency. The acquisition of mitigation credits in wetland or natural 
habitat mitigation banks shall be accomplished through a legally 
recognized instrument, such as permanent easement, deed restriction, or 
legally approved mitigation banking instrument, which provides for the 
protection and permanent continuation of the wetland or natural habitat 
nature of the mitigation.
    (d) A State DOT may acquire privately owned lands in cooperation 
with another public agency or third party. Such an arrangement may 
accomplish greater benefits than would otherwise be accomplished by the 
individual agency acting alone.
    (e) A State DOT may transfer the title to, or enter into an 
agreement with, an appropriate public natural resource management agency 
to manage lands acquired outside the right-of-way without requiring a 
credit to Federal funds. Any such transfer of title or agreement shall 
require the continued use of the lands for the purpose for which they 
were acquired. In the event the purpose is no longer served, the lands 
and interests therein shall immediately revert to the State DOT for 
proper disposition.
    (f) The reasonable costs of acquiring lands or interests therein to 
provide replacement lands with equivalent wetlands or natural habitat 
area or functional capacity associated with these areas are eligible for 
Federal participation.
    (g) The objective in mitigating impacts to wetlands in the Federal-
aid highway program is to implement the policy of a net gain of wetlands 
on a program wide basis.
    (h) Certain activities to ensure the viability of compensatory 
mitigation wetlands or natural habitats during the period of 
establishment are eligible for Federal-aid participation. These include, 
but are not limited to, such activities as repair or adjustment of water 
control structures, pest control, irrigation, fencing modifications, 
replacement of plantings, and mitigation site monitoring. The 
establishment period should be specifically determined by the mitigation 
agreement among the mitigation planners prior to beginning any 
compensatory mitigation activities.



PART 778_PILOT PROGRAM FOR ELIMINATING DUPLICATION OF ENVIRONMENTAL REVIEWS--
Table of Contents



Sec.
778.101 Purpose.
778.103 Eligibility and Certain Limitations.
778.105 Application requirements for participation in the Pilot Program.
778.107 Application review and approval.
778.109 Criteria for Determining Stringency.
778.111 Review and Termination.
778.113 Program Termination and Regulations Sunset

    Authority: 23 U.S.C. 330; 49 CFR 1.81.

    Source: 85 FR 84226, Dec. 28, 2020, unless otherwise noted.



Sec.  778.101  Purpose.

    The purpose of this part is to establish the requirements for a 
State to participate in the Pilot Program for eliminating duplication of 
environmental reviews (``Pilot Program''), authorized under 23 U.S.C. 
330. The Pilot Program allows States to conduct environmental reviews 
and make approvals for projects under State environmental laws and 
regulations instead of the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.).



Sec.  778.103  Eligibility and Certain Limitations.

    (a) Applicants. To be eligible for the Pilot Program, a State must:
    (1) Act by and through the Governor or top-ranking State 
transportation official who is charged with responsibility for highway 
construction;
    (2) Consent to a waiver of its sovereign immunity for the 
compliance, discharge, and enforcement of any responsibility under this 
Pilot Program;

[[Page 578]]

    (3) Have previously assumed the responsibilities of the Secretary 
under 23 U.S.C. 327 related to environmental review, consultation, or 
other actions required under certain Federal environmental laws; and
    (4) Identify laws authorizing the State to take the actions 
necessary to carry out the alternative environmental review and approval 
procedures under State laws and regulations.
    (b) Certain Limitations. (1) State environmental laws and 
regulations may only be substituted as a means of complying with:
    (i) NEPA;
    (ii) Procedures governing the implementation of NEPA and related 
procedural laws under the authority of the Secretary, including 23 
U.S.C. 109, 128, and 139; anded regulations and executive 
orders.P(2) Compliance with State environmental laws and 
regulations may not substitute for the Secretary's responsibilities 
regarding compliance with any other Federal environmental laws other 
than those set forth in (b)(1).



Sec.  778.105  Application requirements for participation in the Pilot Program.

    (a) To apply to participate in the Pilot Program, a State must 
submit an application to the applicable Operating Administration(s) 
(i.e., FHWA, FRA, or FTA).
    (b) Each application submitted must contain the following 
information:
    (1) A full and complete description of the alternative environmental 
review and approval procedures, including:
    (i) The procedures the State uses to engage the public and consider 
alternatives to the proposed action; and
    (ii) The extent to which the State considers environmental 
consequences or impacts on resources potentially impacted by the 
proposed actions (such as air, water, or species).
    (2) Each Federal environmental requirement the State is seeking to 
substitute, within the limitations of Sec.  778.103(b);
    (3) Each State environmental law and regulation the State intends to 
substitute for a Federal environmental requirement, within the 
limitations of Sec.  778.103(b);
    (4) A detailed explanation (with supporting documentation, 
incorporated by reference where appropriate and reasonably available) of 
the basis for concluding the State environmental law or regulation 
intended to substitute for a Federal environmental requirement is at 
least as stringent as that requirement;
    (5) A description of the projects or classes of projects (defined as 
either a defined group of projects or all projects to which NEPA, the 
procedures governing the implementation of NEPA and related procedural 
laws under the authority of the Secretary, including 23 U.S.C. 109 and 
139, and related regulations and Executive orders would apply) for which 
the State would exercise the authority that may be granted under the 
Pilot Program;
    (6) Verification that the State has the financial and personnel 
resources necessary to fulfill its obligations under the Pilot Program;
    (7) Evidence that the State has sought public comments on its 
application prior to the submittal and the State's response to any 
comments it received;
    (8) A point of contact for questions regarding the application and a 
point of contact regarding potential implementation of the Pilot Program 
(if different);
    (9) Certification and explanation by the State's Attorney General or 
other State official empowered by State law to issue legal opinions that 
bind the State:
    (i) That the State has legal authority to enter into the Pilot 
Program;
    (ii) That the State waives its sovereign immunity to the extent 
necessary to consent to exclusive Federal court jurisdiction for the 
compliance, discharge, and enforcement of any responsibility under this 
Pilot Program;
    (iii) That the State has laws that are comparable to the Freedom of 
Information Act, 5 U.S.C. 552 (FOIA), including laws that allow for any 
decision regarding the public availability of a document under those 
laws to be reviewed by a court of competent jurisdiction;
    (iv) Identifying within the State's laws the jurisdictional 
requirements and standards of review applicable to

[[Page 579]]

judicial review of decisions under the environmental laws proposed for 
substitution under the Pilot Program; and
    (10) The State Governor's (or in the case of the District of 
Columbia, the Mayor's) or the State's top-ranking transportation 
official's signature approving the application.



Sec.  778.107  Application review and approval.

    (a) The Operating Administration must solicit public comments on the 
application and must consider comments received before making a decision 
to approve or disapprove the application. Materials made available for 
this public review must include the State's application and supporting 
materials.
    (b) After receiving an application the Operating Administration 
deems complete, the Operating Administration must make a decision on 
whether to approve or disapprove the application within 120 calendar 
days. The Operating Administration must transmit the decision in writing 
to the State with a statement explaining the decision.
    (c) The Operating Administration will approve an application only if 
it determines the following conditions are satisfied:
    (1) The State is party to an agreement with the Operating 
Administration under 23 U.S.C. 327;
    (2) The Operating Administration has determined, after considering 
any public comments received, the State has the capacity, including 
financial and personnel, to undertake the alternative environmental 
review and approval procedures; and
    (3) The Operating Administration, in consultation with the Office of 
the Secretary, with the concurrence of the Chair of CEQ, and after 
considering public comments received, has determined that the State 
environmental laws and regulations described in the State's application 
are at least as stringent as the Federal requirements for which they 
substitute.
    (d) The State must enter into a written agreement with the Operating 
Administration.
    (e) The written agreement must:
    (1) Be executed by the Governor (or in the case of the District of 
Columbia, the Mayor) or top-ranking transportation official in the State 
charged with responsibility for highway construction;
    (2) Provide that the State agrees to assume the responsibilities of 
the Pilot Program, as identified by the Operating Administration;
    (3) Provide that the State, in accordance with the sovereign 
immunity waiver process required by State law, expressly consents to and 
accepts Federal court jurisdiction with respect to compliance, 
discharge, and enforcement of any responsibility undertaken as part of 
the Pilot Program;
    (4) Certify that State laws and regulations exist that authorize the 
State to carry out the responsibilities of the Pilot Program;
    (5) Certify that State laws and regulations exist that are 
comparable to FOIA (5 U.S.C. 552), including a provision that any 
decision regarding the public availability of a document under the State 
laws and regulations is reviewable by a court of competent jurisdiction;
    (6) Contain a commitment that the State will maintain the personnel 
and financial resources necessary to carry out its responsibilities 
under the Pilot Program;
    (7) Have a term of not more than 5 years, the term of a State's 
agreement with the Operating Administration in accordance with 23 U.S.C. 
327, or a term ending on December 4, 2027, whichever is sooner; and
    (8) Be renewable.
    (f) The State must execute the agreement before the Operating 
Administration executes the agreement. The Operating Administration's 
execution of the agreement and transmittal to the State will constitute 
approval of the application.
    (g) The agreement may be renewed at the end of its term, but may not 
extend beyond December 4, 2027.
    (h) A State approved to participate in the Pilot Program may apply 
the approved alternative environmental review and approval procedures to 
locally administered projects, for up to 25 local governments at the 
request of those

[[Page 580]]

local governments. For such locally administered projects, the State 
shall be responsible for ensuring that the requirements of the approved 
alternative State procedures are met.



Sec.  778.109  Criteria for determining stringency.

    To be considered at least as stringent as a Federal requirement 
under this Pilot Program, the State laws and regulations, must, at a 
minimum:
    (a) Define the types of actions that normally require an assessment 
of environmental impacts, including government-sponsored projects such 
as those receiving Federal financial assistance or permit approvals. (42 
U.S.C. 4332(2)(C); 40 CFR 1501.1(a)(4), 1501.3, 1507.3(e)(2)(i), 
1508.1(q);
    (b) Ensure an early process for determining the scope of the action 
and issues that need to be addressed, identifying the significant 
issues, and for the classification of the appropriate assessment of 
environmental impacts in accordance with the significance of the likely 
impacts. For actions that may result in significant impacts on the 
environment, the scoping process must be an open and public process. (23 
U.S.C. 139(e); 40 CFR 1501.5, 1501.9, 1506.6, 1507.3(c), 1507.3(e), 
1508.1(y), and 1508.1(cc));
    (c) Prohibit agencies and nongovernmental proponents from taking 
action concerning the proposal until the environmental impact evaluation 
is complete when such action would:
    (1) Have adverse environmental impacts or
    (2) Limit the choice of reasonable alternatives. (40 CFR 1506.1 and 
1506.11(b)).
    (d) Protect the integrity and objectivity of the analysis by 
requiring the agency to take responsibility for the scope and content of 
the analysis, and by preventing conflicts of interest among the parties 
developing the analysis and the parties with financial or other interest 
in the outcome of the project. (42 U.S.C. 4332(2)(D); 40 CFR 1506.5);
    (e) Based on a proposed action's purpose and need, require objective 
evaluation of reasonable alternatives to the proposed action (including 
the alternative of not taking the action) if it may result in 
significant impacts to the environment or, for those actions that may 
not result in significant impacts, consideration of alternatives if they 
will involve unresolved conflicts concerning alternative uses of 
available resources (42 U.S.C. 4332(2)(C)(iii); 42U.S.C. 4332(2)(E); 23 
U.S.C. 330(b)(1)(A); 40 CFR 1502.13, and 1502.14);
    (f) Using procedures that ensure professional and scientific 
integrity of the discussions and analysis, require an assessment of the 
changes to the human environment from the proposed action or 
alternatives that are reasonably foreseeable and have a reasonably close 
causal relationship to the proposed action or alternatives. (42 U.S.C. 
4332(2)(C); 23 U.S.C. 330(b)(1)(B); 40 CFR 1501.5(c)(2), 1502.16, 
1502.23, and 1508.1(g);
    (g) Require the consideration of appropriate mitigation for the 
impacts associated with a proposal and reasonable alternatives 
(including avoiding, minimizing, rectifying, reducing or eliminating the 
impact over time, and compensating for the impact) (40 CFR 1502.14(e), 
1502.16(a)(9), and 1508.1(s));
    (h) Provide for adequate interagency participation, including 
appropriate coordination and consultation with State, Federal, Tribal, 
and local agencies with jurisdiction by law, special expertise, or an 
interest with respect to any environmental impact associated with the 
proposal, and for collaboration that would eliminate duplication of 
reviews. For actions that may result in significant impacts to the 
environment, the process should allow for the development of plans for 
interagency coordination and public involvement, and the setting of 
timetables for the review process (42 U.S.C. 4332(2)(C); 23 U.S.C. 
139(d) and 139(g); 40 CFR 1500.5(g), 1501.8, 1501.9(b), 1502.174, and 
part 1503);
    (i) Provide an opportunity for public participation and comment that 
is commensurate with the significance of the proposal's impacts on the 
environment, and require public access to the documentation developed 
during the environmental review and a process to respond to public 
comments (42 U.S.C. 4332(2)(C); 23 U.S.C. 330(b)(1)(A); FAST Act, Sec. 
1309(c)(2)(B)(ii); 40 CFR 1502.20, part 1503, and 1506.6; and Executive 
Order 11514, Sec.1(b));

[[Page 581]]

    (j) Provide for public access to the documentation necessary to 
review the potential impacts of projects;
    (k) Include procedures for the elevation, resolution, and referral 
of interagency disputes prior to a final decision on the proposed 
project (23 U.S.C. 139(h); 40 CFR part 1504);
    (l) For the conclusion of the environmental review process, require 
a concise documentation of findings (for actions that would not likely 
result in significant impacts to the environment) or, for actions that 
may result in significant impacts, a concise record that states the 
agency decision that:
    (1) Identifies all alternatives considered (specifying which were 
environmentally preferable),
    (2) Identifies and discusses all factors that were balanced by the 
agency in making its decision and states how those considerations 
entered into the decision,
    (3) States whether all practicable means to avoid or minimize 
environmental harm have been adopted, and if not, why they were not; and
    (4) Describes the monitoring and enforcement program that is 
adopted, where applicable, for any mitigation (40 CFR 1501.6(c), 1505.2, 
and 1505.3).
    (m) Require the agency to supplement assessments of environmental 
impacts if there are substantial changes in the proposal that are 
relevant to environmental concerns or significant new circumstances or 
information relevant to environmental concerns and have a bearing on the 
proposed action or its impacts. (23 U.S.C. 330(e)(3); 40 CFR 1502.9(d)); 
and
    (n) Allow for the use of procedures to facilitate process 
efficiency, such as tiering, programmatic approaches, adoption, 
incorporation by reference, approaches to eliminate duplication with 
other Federal requirements, and special procedures to address emergency 
situations. Where the procedures allow for the identification and 
establishment of categories of actions that normally do not have a 
significant impact on the environment and are therefore excluded from 
further review, ensure that the procedures require the consideration of 
extraordinary circumstances that would warrant a higher level of 
analysis in which a normally excluded action may have a significant 
environmental effect. (23 U.S.C. 139(b)(3); 40 CFR 1500.4, 1500.5, 
1501.4, 1501.11, 1501.12, 1502.24, 1506.2, 1506.3, and 1506.4).



Sec.  778.111  Review and termination.

    (a) Review. The Operating Administration must review each 
participating State's performance in implementing the requirements of 
the Pilot Program at least once every 5 years.
    (1) The Operating Administration must provide notice and an 
opportunity for public comment during the review.
    (2) At the conclusion of its last review prior to the expiration of 
the term, the Operating Administration may extend a State's 
participation in the Pilot Program for an additional term of not more 
than 5 years (as long as such term does not extend beyond the 
termination date of the Pilot Program) or terminate the State's 
participation in the Pilot Program.
    (b) Early Termination. (1) If the Operating Administration, in 
consultation with the Office of the Secretary and the Chair of CEQ, 
determines that a State is not administering the Pilot Program 
consistent with the terms of its written agreement, or the requirements 
of this part or 23 U.S.C. 330, the Operating Administration must provide 
the State notification of that determination.
    (2) After notifying the State of its determination under paragraph 
(c)(1), the Operating Administration must provide the State a maximum of 
90 days to take the appropriate corrective action. If the State fails to 
take such corrective action, the Operating Administration may terminate 
the State's participation in the Pilot Program.



Sec.  778.113  Program termination and regulations sunset.

    (a) In General. The Pilot Program shall terminate December 4, 2027, 
unless Congress extends the authority under 23 U.S.C. 330.
    (b) Sunset. Unless Congress extends the authority for the Pilot 
Program that sunsets 12 years after the date of enactment, this rule 
shall expire on December 4, 2027.

[[Page 582]]



                   SUBCHAPTER I_PUBLIC TRANSPORTATION





PART 810_MASS TRANSIT AND SPECIAL USE HIGHWAY PROJECTS--Table of Contents



                            Subpart A_General

Sec.
810.2 Purpose.
810.4 Definitions.
810.6 Prerequisites for projects authorized by 23 U.S.C. 137, 142, or 
          149.
810.8 Coordination.

Subpart B_Highway Public Transportation Projects and Special Use Highway 
                               Facilities

810.100 Purpose.
810.102 Eligible projects.
810.104 Applicability of other provisions.
810.106 Approval of fringe and transportation corridor parking 
          facilities.
810.108 Designation of existing facilities.

   Subpart C_Making Highway Rights-of-Way Available for Mass Transit 
                                Projects

810.200 Purpose.
810.202 Applicability.
810.204 Application by mass transit authority.
810.206 Review by the State Highway Agency.
810.208 Action by the Federal Highway Administrator.
810.210 Authorization for use and occupancy by mass transit.
810.212 Use without charge.

   Subpart D_Federal-Aid Urban System Nonhighway Public Mass Transit 
                                Projects

810.300 Purpose.
810.302 Eligible projects.
810.304 Submission of projects.
810.306 Reservation of funds.
810.308 Approval of urban system nonhighway public mass transit 
          projects.
810.310 Applicability of other provisions.

    Authority: 23 U.S.C. 137, 142, 149 and 315; sec. 4 of Pub. L. 97-
134, 95 Stat. 1699; secs. 118, 120, and 163 of Pub. L. 97-424, 96 Stat. 
2097; 49 CFR 1.48(b) and 1.51(f).

    Source: 50 FR 33917, Aug. 22, 1985, unless otherwise noted.



                            Subpart A_General



Sec.  810.2  Purpose.

    The purpose of this regulation is to implement sections 137, 142, 
and 149 of title 23, U.S.C.



Sec.  810.4  Definitions.

    (a) Except as otherwise provided terms defined in 23 U.S.C. 101(a) 
are used in this subpart as so defined.
    (b) The following terms, where used in the regulations in this 
subpart have the following meanings:
    (1) Exclusive or preferential high occupancy vehicle, truck, or 
emergency vehicle lanes-one or more lanes of a highway facility or an 
entire highway facility where high occupancy vehicles, trucks or 
emergency vehicles or any combination thereof, are given, at all times 
or at any regularly scheduled times, a priority or preference over some 
or all other vehicles moving in the general stream of mixed highway 
traffic. Carpool lane(s)--is any high occupancy vehicle lane which 
allows use by carpools.
    (2) Fringe and transportation corridor parking facilities--those 
facilities which are intended to be used for the temporary storage of 
vehicles and which are located and designed so as to facilitate the safe 
and convenient transfer of persons traveling in such vehicles to and 
from high occupancy vehicles and/or public mass transportation systems 
including rail. The term parking facilities includes but is not limited 
to access roads, buildings, structures, equipment, improvements and 
interests in land.
    (3) High occupancy vehicle--a bus or other motorized passenger 
vehicle such as a carpool or vanpool vehicle used for ridesharing 
purposes and occupied by a specified minimum number of persons.
    (4) Highway traffic control devices--traffic control devices as 
defined by the currently approved ``Manual on Uniform Traffic Control 
Devices for Streets and Highways.'' \1\
---------------------------------------------------------------------------

    \1\ The MUTCD is incorporated by reference at 23 CFR part 655, 
subpart F.

---------------------------------------------------------------------------

[[Page 583]]

    (5) Metropolitan Planning Organization--that organization designated 
as being responsible, together with the State, for carrying out the 
provisions of 23 U.S.C. 134, as required by 23 U.S.C. 104(f)(3), and 
capable of meeting the requirements of sections 3(e)(1), 5(1), 8 (a) and 
(c) and 9(e)(3)(G) of the Urban Mass Transportation Act of 1964, as 
amended, 49 U.S.C. 1602(e)(1), 1604(1), 1607 (a) and (c) and 
1607a(e)(3)(G). This organization shall be the forum for cooperative 
transportation decisionmaking.
    (6) Nonhighway public mass transit project--a project to develop or 
improve public mass transit facilities or equipment. A project need not 
be physically located or operated on a route designated as part of the 
Federal-aid urban system, but must be included in and related to a 
program for the development or improvement of an urban public mass 
transit system which includes the purchase and rehabilitation of 
passenger buses and rolling stock for fixed rail facilities, and the 
purchase, construction, reconstruction or improvement of fixed rail 
passenger operating facilities. Such projects may also include the 
construction, reconstruction or rehabilitation of passenger loading and 
unloading facilities for either bus or rail passengers.
    (7) Passenger loading areas and facilities (including shelters)--
areas and facilities located at or near passenger loading points for 
safety, protection, comfort, or convenience of high occupancy vehicle 
passengers. The term areas and facilities includes but is not limited to 
access roads, buildings, structures, equipment, improvements, and 
interest in land.
    (8) Responsible local officials--(i) In areas under 50,000 
population, the principal elected officials of general purpose local 
governments; or (ii) In urbanized areas, the principal elected officials 
of general purpose local governments acting through the Metropolitan 
Planning Organization.

[50 FR 33917, Aug. 22, 1985, as amended at 51 FR 16834, May 7, 1986]



Sec.  810.6  Prerequisites for projects authorized 
by 23 U.S.C. 137, 142, or 149.

    (a) Projects in an urbanized area must be based on a continuing 
comprehensive transportation planning process, carried on in accordance 
with 23 U.S.C. 134 as prescribed in 23 CFR part 450, subpart A and 
included in the transportation improvement program required by 23 CFR 
part 450, subpart B.
    (b) Except as otherwise provided by 23 CFR 450.202, projects under 
this subpart located outside the urbanized area boundaries should be 
coordinated with the appropriate local officials of the urbanized area 
as necessary to insure compatibility with the area's urban 
transportation plan.
    (c) All proposed projects must be included in a program of projects 
approved pursuant to 23 CFR part 630, subpart A (Federal-Aid Program 
Approval and Authorization).



Sec.  810.8  Coordination.

    The Federal Highway Administrator and the Urban Mass Transportation 
Administrator shall coordinate with each other on any projects involving 
public mass transit to facilitate project selection, approval and 
completion.



Subpart B_Highway Public Transportation Projects and Special Use Highway 
                               Facilities



Sec.  810.100  Purpose.

    The purpose of the regulations in this subpart is to implement 23 
U.S.C. 137, 142(a)(1), 142(b), and 149, which authorize various highway 
public mass transportation improvements and special use highway 
facilities as Federal-aid highway projects.



Sec.  810.102  Eligible projects.

    Under this subpart the Federal Highway Administrator may approve on 
any Federal-aid system projects which facilitate the use of high 
occupancy vehicles and public mass transportation systems so as to 
increase the traffic capacity of the Federal-aid system for the movement 
of persons. Eligible projects include:
    (a) Construction of exclusive or preferential high occupancy 
vehicle, truck, or emergency vehicle lanes, except the

[[Page 584]]

construction of exclusive or preferential lanes limited to use by 
emergency vehicles can be approved only on the Federal-aid Interstate 
System;
    (b) Highway traffic control devices;
    (c) Passenger loading areas and facilities (including shelters) that 
are on or serve a Federal-aid system; and
    (d) Construction or designation of fringe and transportation 
corridor parking facilities. For parking facilities located in the 
central business district the Federal-aid project must be limited to 
space reserved exclusively for the parking of high occupancy vehicles 
used for carpools or vanpools.



Sec.  810.104  Applicability of other provisions.

    (a) Projects authorized under Sec.  810.102 shall be deemed to be 
highway projects for all purposes of title 23 U.S.C., and shall be 
subject to all regulations of title 23 CFR.
    (b) Projects approved under this subpart on the Federal-aid 
Interstate System for exclusive or preferential high occupancy vehicle, 
truck, and emergency vehicle lanes are excepted from the minimum four-
lane requirement of 23 U.S.C. 109(b).
    (c) Exclusive or preferential lanes on the Interstate System, 
including approaches and directly related facilities, can be constructed 
with Interstate construction funds only if they were approved in the 
1981 Interstate Cost Estimate.
    (d) The Federal proportional share of a project approved under this 
subpart shall be as provided in 23 U.S.C. 120 for the class of funds 
involved. The Federal share for Interstate substitution projects is 85 
percent except for signalization projects which may be 100 percent as 
provided by 23 U.S.C. 120(d). The provisions of section 120(d) title 23 
U.S.C. may also be applied to regularly funded projects under Sec.  
810.102 of this subpart as follows:
    (1) Signalization projects.
    (2) Passenger loading area and facilities which principally serve 
carpools and vanpools.
    (3) Fringe and transportation corridor parking facilities or 
portions thereof which are reserved exclusively for use by carpool and 
vanpool passengers and vehicles.
    (e) As required by section 163 of the Surface Transportation 
Assistance Act of 1982, approval of Federal-aid highway funding for a 
physical construction or resurfacing project having a carpool lane(s) 
within the project limits may not be granted unless the project allows 
the use of the carpool lane(s) by motorcycles or it is certified by the 
State that such use will create a safety hazard. This requirement does 
not apply to high occupancy vehicle lanes which exclude carpools or to 
carpool lanes constructed by the State without the use of Federal-aid 
Highway funds. The issue of the extent of utilization of these 
facilities including those constructed prior to January 6, 1982 with 
Federal-aid Highway funds is a matter for individual determination by 
the State Highway Agency.



Sec.  810.106  Approval of fringe and transportation corridor 
parking facilities.

    (a) In approving fringe and transportation corridor parking 
facilities, the Federal Highway Administrator:
    (1) Shall make a determination that the proposed parking facility 
will benefit the Federal-aid systems by improving its traffic capacity 
for the movement of persons;
    (2) May approve acquisition of land proximate to the right-of-way of 
a Federal-aid highway;
    (3) May approve construction of publicly-owned parking facilities on 
land within the right-of-way of any Federal-aid highway, including the 
use of the airspace above and below the established gradeline of the 
highway pavement, and on land, acquired with or without Federal-aid 
funds which is not within the right-of-way of any Federal-aid highway 
but which was acquired in accordance with the Uniform Relocation 
Assistance and Land Acquisition Policies Act of 1970 (84 Stat. 1894, 42 
U.S.C. 4601 et seq.);
    (4) May permit the charging of fees for the use of the facility, 
except that the rate of the fee shall not be in excess of that required 
for maintenance and operation and the cost of providing shuttle service 
to and from the facility (including compensation to any person for 
operating such facility and for providing such shuttle service);

[[Page 585]]

    (5) Shall determine that the State, or the political subdivision 
thereof, where the project is to be located, or any agency or 
instrumentality of such State or political subdivision, has the 
authority and capability of constructing, maintaining, and operating the 
facility.
    (6) Shall receive assurance from the State that the facility will 
remain in public ownershp as long as the facility is needed and that any 
change in ownership shall have prior FHWA approval;
    (7) Shall enter into an agreement with the State, political 
subdivision, agency, or instrumentality governing the financing, 
maintenance, and operation of the parking facility; and
    (8) Shall approve design standards for constructing the facility as 
developed in cooperation with the State highway agency.
    (b) A State political subdivision, agency, or instrumentality 
thereof may contract with any person to operate any parking facility 
constructed under this section.
    (c) In authorizing projects involving fringe and transportation 
corridor parking facilities, the class of Federal-aid funds (primary, 
secondary, or urban system) used for projects under this subpart may be 
either funds designated for the Federal-aid system on which the facility 
is located or the Federal-aid system substantially benefited. For 
Interstate funds to be used for such eligible projects the Federal-aid 
Interstate system must be the system which substantially benefits. The 
benefiting system is that system which would have otherwise carried the 
high occupancy vehicle or rail passengers to their destination. 
Interstate construction funds may be used only where the parking 
facility was approved in the 1981 Interstate Cost Estimate and is 
constructed in conjunction with a high occupancy vehicle lane approved 
in the 1981 Interstate Cost Estimate.



Sec.  810.108  Designation of existing facilities.

    (a) In accordance with the provisions of 23 CFR 810.102, the Federal 
Highway Administrator may approve on any Federal-aid system the work 
necessary to designate existing parking facilities (such as at shopping 
centers or other public or private locations) for fringe and 
transportation corridor parking.
    (1) Eligible activities include the acquisition of or the initial 
and renewal costs for leasing existing parking space, signing of and 
modifications to existing facilities, trail blazer signs, and passenger 
loading areas and facilities.
    (2) The approval criteria in 23 CFR 810.106 (a)(1), (4), (5), (7) 
and (8) apply to these parking facilities.
    (b) In accordance with the provisions of 23 CFR 810.102, the Federal 
Highway Administrator may approve on any Federal-aid system the work 
necessary to designate existing highway lanes as high occupancy vehicle 
lanes.
    (1) Eligible activities include preliminary engineering, signing, 
pavement marking, traffic control devices, minor physical modifications 
and initial inspection or monitoring of use.
    (2) Such improvements may be approved on any public road if they 
facilitate more efficient use of any Federal-aid highway.
    (c) Interstate construction funds may be used only where the 
proposed projects were approved in the 1981 Interstate Cost Estimate.



   Subpart C_Making Highway Rights-of-Way Available for Mass Transit 
                                Projects



Sec.  810.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 142(g), which 
permits the Federal Highway Administrator to authorize a State to make 
available to a publicly-owned mass transit authority existing highway 
rights-of-way for rail or other non-highway public mass transit 
facilities.



Sec.  810.202  Applicability.

    (a) The provisions of this subpart are applicable to the rights-of-
way of all Federal-aid highways in which Federal-aid highway funds have 
participated or will participate in any part of the cost of the highway.
    (b) The provisions of this subpart do not preclude acquisition of 
rights-of-way for use involving mass transit facilities under the 
provisions of subparts B and D of this part. Rights-of-way made 
available under this subpart

[[Page 586]]

may be used in combination with rights-of-way acquired under subparts B 
and D of this part.



Sec.  810.204  Application by mass transit authority.

    A publicly-owned mass transit authority desiring to utilize land 
existing within the publicly acquired right-of-way of any Federal-aid 
highway for a rail or other nonhighway public mass transit facility may 
submit an application therefor to the State highway agency.



Sec.  810.206  Review by the State Highway Agency.

    The State highway agency, after reviewing the application, may 
request the Federal Highway Administrator to authorize the State to make 
available to the publicly-owned mass transit authority the land needed 
for the proposed facility. A request shall be accompanied by evidence 
that utilization of the land for the proposed purposes will not impair 
future highway improvements or the safety of highway users.



Sec.  810.208  Action by the Federal Highway Administrator.

    The Federal Highway Administrator may authorize the State to make 
available to the publicly-owned mass transit authority the land needed 
for the proposed facility, if it is determined that:
    (a) The evidence submitted by the State highway agency under Sec.  
810.206 is satisfactory;
    (b) The public interest will be served thereby; and
    (c) The proposed action in urbanized areas is based on a continuing, 
comprehensive transportation planning process carried on in accordance 
with 23 U.S.C. 134 as described under 23 CFR part 450, subpart A.



Sec.  810.210  Authorization for use and occupancy by mass transit.

    (a) Upon being authorized by the Federal Highway Administrator, the 
State shall enter into a written agreement with the publicly-owned mass 
transit authority relating to the use and occupancy of highway right-of-
way subject to the following conditions:
    (1) That any significant revision in the design, construction, or 
use of the facility for which the land was made available shall receive 
prior review and approval by the State highway agency.
    (2) The use of the lands made available to the publicly-owned mass 
transit authority shall not be transferred to another party without the 
prior approval of the State highway agency.
    (3) That, if the publicly-owned mass transit authority fails within 
a reasonable or agreed time to use the land for the purpose for which it 
was made available, or if it abandons the land or the facility 
developed, such use shall terminate. Any abandoned facility developed or 
under development by the publicly-owned mass transit authority which was 
financed all or in part with Federal funds shall be disposed of in a 
manner prescribed by OMB Circular A-102, Attachment N. The land shall 
revert to the State for its original intended highway purpose.
    (b) A copy of the use and occupancy agreement and any modification 
under paragraphs (a) (1), (2), and (3) of this section shall be 
forwarded to the Federal Highway Administrator.



Sec.  810.212  Use without charge.

    The use and occupancy of the lands made available by the State to 
the publicly owned transit authority may be without charge. Costs 
incidental to making the lands available for mass transit shall be borne 
by the publicly owned mass transit authority.

[81 FR 57741, Aug. 23, 2016]



   Subpart D_Federal-Aid Urban System Nonhighway Public Mass Transit 
                                Projects



Sec.  810.300  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 142(a)(2), 
which allows the Urban Mass Transportation Administrator, by delegation 
of the Secretary, to approve nonhighway public mass transit projects as 
Federal-aid urban system projects.



Sec.  810.302  Eligible projects.

    (a) Eligible projects are those defined as nonhighway public mass 
transit projects in Sec.  810.4 of this part subject to

[[Page 587]]

the limitations in paragraph (b) of this section.
    (b) All projects under this subpart for the construction, 
reconstruction, or improvement of fixed rail facilities shall be located 
within the urban boundaries established under 23 U.S.C. 101(a).



Sec.  810.304  Submission of projects.

    (a) An application for an urban system nonhighway public mass 
transit project shall be developed by a public body as defined under the 
UMTA Discretionary Capital Assistance Program and shall be prepared in 
accordance with procedures for the same Discretionary Capital Assistance 
program.
    (b) The application shall be submitted concurrently to the State 
highway agency and to the UMTA Administrator. The State highway agency, 
if it concurs, shall submit a request to the FHWA Administrator for a 
reservation of apportioned Federal-aid urban system funds. The State 
shall include in its submission advice that such reservation of funds 
will not impair its ability to comply with the provisions of section 
105(d) of Pub. L. 97-424 (if a State certifies it does not need forty 
percent of its Federal-aid urban system funds for 4R work, and the 
Secretary accepts such certification, the State may spend that unneeded 
amount for other eligible FAUS purpose, including nonhighway public mass 
transit projects).



Sec.  810.306  Reservation of funds.

    (a) The FHWA Administrator shall review the State request, determine 
whether sufficient Federal-aid urban system funds are available, and 
notify the State highway agency and the UMTA Administrator of the 
reservation of funds.
    (b) The apportioned funds reserved for the proposed project under 
paragraph (a) of this section shall remain available for obligation 
unless the FHWA Administrator is notified that the application has been 
disapproved by the UMTA Administrator, or unless the responsible local 
officials in whose jurisdiction the project is to be located and the 
State highway agency jointly request the withdrawal of the project 
application.



Sec.  810.308  Approval of urban system nonhighway public 
mass transit projects.

    (a) An urban system public mass transit project may be approved by 
the UMTA Administrator when it is determined that:
    (1) The application and project are in accordance with the current 
UMTA procedures relating to discretionary capital assistance grants; and
    (2) Notification has been received from the FHWA Administrator that 
sufficient apportioned Federal-aid urban system funds are available to 
finance the Federal share of the cost of the proposed project.
    (b) Approval of the plans, specifications, and estimates of a 
nonhighway public mass transit project shall be deemed to occur on the 
date the UMTA Administrator approves the project application. This 
approval which is subject to the availability of obligation authority at 
the time of approval, will obligate the United States to pay its 
proportional share of the cost of the project.
    (c) Upon approval of an urban system nonhighway public mass transit 
project, the UMTA Administrator will execute a grant contract covering 
implementation of the project.



Sec.  810.310  Applicability of other provisions.

    The Federal proportional share of the cost of an urban system 
nonhighway public mass transit project approved under this subpart shall 
be equal to the Federal share which would have been paid if the project 
were a highway project as determined under 23 U.S.C. 120(a).

[[Page 588]]



                       SUBCHAPTER J_HIGHWAY SAFETY





PART 924_HIGHWAY SAFETY IMPROVEMENT PROGRAM--Table of Contents



Sec.
924.1 Purpose.
924.3 Definitions.
924.5 Policy.
924.7 Program structure.
924.9 Planning.
924.11 Implementation.
924.13 Evaluation.
924.15 Reporting.
924.17 MIRE fundamental data elements.

    Authority: 23 U.S.C. 104(b)(3), 130, 148, 150, and 315; 49 CFR 1.85.

    Source: 81 FR 13739, Mar. 15, 2016, unless otherwise noted.



Sec.  924.1  Purpose.

    The purpose of this regulation is to prescribe requirements for the 
development, implementation, and evaluation of a highway safety 
improvement program (HSIP) in each State.



Sec.  924.3  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. In addition, the following 
definitions apply:
    Hazard index formula means any safety or crash prediction formula 
used for determining the relative risk at railway-highway crossings, 
taking into consideration weighted factors, and severity of crashes.
    Highway means:
    (1) A road, street, or parkway and all associated elements such as a 
right-of-way, bridge, railway-highway crossing, tunnel, drainage 
structure, sign, markings, guardrail, protective structure, etc.;
    (2) A roadway facility as may be required by the United States 
Customs and Immigration Services in connection with the operation of an 
international bridge or tunnel; and
    (3) A facility that serves pedestrians and bicyclists pursuant to 23 
U.S.C. 148(e)(1)(A).
    Highway Safety Improvement Program (HSIP) means a State safety 
program with the purpose to reduce fatalities and serious injuries on 
all public roads through the implementation of the provisions of 23 
U.S.C. 130, 148, and 150, including the development of a data-driven 
Strategic Highway Safety Plan (SHSP), Railway-Highway Crossings Program, 
and program of highway safety improvement projects.
    Highway safety improvement project means strategies, activities, or 
projects on a public road that are consistent with a State SHSP and that 
either correct or improve a hazardous road segment, location, or 
feature, or addresses a highway safety problem. Examples of projects are 
described in 23 U.S.C. 148(a).
    MIRE Fundamental data elements mean the minimum subset of the 
roadway and traffic data elements from the FHWA's Model Inventory of 
Roadway Elements (MIRE) that are used to support a State's data-driven 
safety program.
    Public railway-highway crossing means a railway-highway crossing 
where the roadway (including associated sidewalks, pathways, and shared 
use paths) is under the jurisdiction of and maintained by a public 
authority and open to public travel, including non-motorized users. All 
roadway approaches must be under the jurisdiction of a public roadway 
authority, and no roadway approach may be on private property.
    Public road means any highway, road, or street under the 
jurisdiction of and maintained by a public authority and open to public 
travel, including non-State-owned public roads and roads on tribal land.
    Reporting year means a 1-year period defined by the State, unless 
noted otherwise in this section. It may be the Federal fiscal year, 
State fiscal year, or calendar year.
    Railway-highway crossing protective devices means those traffic 
control devices in the Manual on Uniform Traffic Control Devices (MUTCD) 
specified for use at such crossings; and system components associated 
with such traffic control devices, such as track circuit improvements 
and interconnections with highway traffic signals.
    Road safety audit means a formal safety performance examination of 
an

[[Page 589]]

existing or future road or intersection by an independent 
multidisciplinary audit team for improving road safety for all users.
    Safety data includes, but are not limited to, crash, roadway 
characteristics, and traffic data on all public roads. For railway-
highway crossings, safety data also includes the characteristics of 
highway and train traffic, licensing, and vehicle data.
    Safety stakeholder means, but is not limited to:
    (1) A highway safety representative of the Governor of the State;
    (2) Regional transportation planning organizations and metropolitan 
planning organizations, if any;
    (3) Representatives of major modes of transportation;
    (4) State and local traffic enforcement officials;
    (5) A highway-rail grade crossing safety representative of the 
Governor of the State;
    (6) Representatives conducting a motor carrier safety program under 
section 31102, 31106, or 31309 of title 49, U.S.C.;
    (7) Motor vehicle administration agencies;
    (8) County transportation officials;
    (9) State representatives of non-motorized users; and
    (10) Other Federal, State, tribal, and local safety stakeholders.
    Spot safety improvement means an improvement or set of improvements 
that is implemented at a specific location on the basis of location-
specific crash experience or other data-driven means.
    Strategic highway safety plan (SHSP) means a comprehensive, 
multiyear, data-driven plan developed by a State department of 
transportation (DOT) in accordance with 23 U.S.C. 148.
    Systemic safety improvement means a proven safety countermeasure(s) 
that is widely implemented based on high-risk roadway features that are 
correlated with particular severe crash types.



Sec.  924.5  Policy.

    (a) Each State shall develop, implement, and evaluate on an annual 
basis a HSIP that has the objective to significantly reduce fatalities 
and serious injuries resulting from crashes on all public roads.
    (b) HSIP funds shall be used for highway safety improvement projects 
that are consistent with the State's SHSP. HSIP funds should be used to 
maximize opportunities to advance highway safety improvement projects 
that have the greatest potential to reduce the State's roadway 
fatalities and serious injuries.
    (c) Safety improvements should also be incorporated into projects 
funded by other Federal-aid programs, such as the National Highway 
Performance Program (NHPP) and the Surface Transportation Program (STP). 
Safety improvements that are provided as part of a broader Federal-aid 
project should be funded from the same source as the broader project.
    (d) Eligibility for Federal funding of projects for traffic control 
devices under this part is subject to a State or local/tribal 
jurisdiction's substantial conformance with the National MUTCD or FHWA-
approved State MUTCDs and supplements in accordance with part 655, 
subpart F, of this chapter.



Sec.  924.7  Program structure.

    (a) The HSIP shall include:
    (1) A SHSP;
    (2) A Railway-Highway Crossing Program; and
    (3) A program of highway safety improvement projects.
    (b) The HSIP shall address all public roads in the State and include 
separate processes for the planning, implementation, and evaluation of 
the HSIP components described in paragraph (a) of this section. These 
processes shall be developed by the States in cooperation with the FHWA 
Division Administrator in accordance with this section and the 
requirements of 23 U.S.C. 148. Where appropriate, the processes shall be 
developed in consultation with other safety stakeholders and officials 
of the various units of local and Tribal governments.



Sec.  924.9  Planning.

    (a) The HSIP planning process shall incorporate:
    (1) A process for collecting and maintaining safety data on all 
public roads.

[[Page 590]]

Roadway data shall include, at a minimum, the MIRE Fundamental Data 
Elements as established in Sec.  924.17. Railway-highway crossing data 
shall include all fields from the U.S. DOT National Highway-Rail 
Crossing Inventory.
    (2) A process for advancing the State's capabilities for safety data 
collection and analysis by improving the timeliness, accuracy, 
completeness, uniformity, integration, and accessibility of their safety 
data on all public roads.
    (3) A process for updating the SHSP that identifies and analyzes 
highway safety problems and opportunities in accordance with 23 
U.S.C.148. A SHSP update shall:
    (i) Be completed no later than 5 years from the date of the previous 
approved version;
    (ii) Be developed by the State DOT in consultation with safety 
stakeholders;
    (iii) Provide a detailed description of the update process. The 
update process must be approved by the FHWA Division Administrator;
    (iv) Be approved by the Governor of the State or a responsible State 
agency official that is delegated by the Governor;
    (v) Adopt performance-based goals that:
    (A) Are consistent with safety performance measures established by 
FHWA in accordance with 23 U.S.C. 150; and
    (B) Are coordinated with other State highway safety programs;
    (vi) Analyze and make effective use of safety data to address safety 
problems and opportunities on all public roads and for all road users;
    (vii) Identify key emphasis areas and strategies that have the 
greatest potential to reduce highway fatalities and serious injuries and 
focus resources on areas of greatest need;
    (viii) Address engineering, management, operations, education, 
enforcement, and emergency services elements of highway safety as key 
features when determining SHSP strategies;
    (ix) Consider the results of State, regional, local, and tribal 
transportation and highway safety planning processes and demonstrate 
mutual consultation among partners in the development of transportation 
safety plans;
    (x) Provide strategic direction for other State and local/tribal 
transportation plans, such as the HSIP, the Highway Safety Plan, and the 
Commercial Vehicle Safety Plan; and
    (xi) Describe the process and potential resources for implementing 
strategies in the emphasis areas.
    (4) A process for analyzing safety data to:
    (i) Develop a program of highway safety improvement projects, in 
accordance with 23 U.S.C. 148(c)(2), to reduce fatalities and serious 
injuries on all public roads through the implementation of a 
comprehensive program of systemic and spot safety improvement projects.
    (ii) Develop a Railway-Highway Crossings program that:
    (A) Considers the relative risk of public railway-highway crossings 
based on a hazard index formula;
    (B) Includes onsite inspection of public railway-highway crossings; 
and
    (C) Results in a program of highway safety improvement projects at 
railway-highway crossings giving special emphasis to the statutory 
requirement that all public crossings be provided with standard signing 
and markings.
    (5) A process for conducting engineering studies (such as road 
safety audits and other safety assessments or reviews) to develop 
highway safety improvement projects.
    (6) A process for establishing priorities for implementing highway 
safety improvement projects that considers:
    (i) The potential reduction in fatalities and serious injuries;
    (ii) The cost effectiveness of the projects and the resources 
available; and
    (iii) The priorities in the SHSP.
    (b) The planning process of the HSIP may be financed with funds made 
available through 23 U.S.C. 104(b)(3) and 505, and, where applicable in 
metropolitan planning areas, 23 U.S.C. 104(d). The eligible use of the 
program funding categories listed for HSIP planning efforts is subject 
to that program's eligibility requirements and cost allocation 
procedures as per 2 CFR part 200.

[[Page 591]]

    (c) Highway safety improvement projects, including non-
infrastructure safety projects, to be funded under 23 U.S.C. 104(b)(3) 
shall be carried out as part of the Statewide and Metropolitan 
Transportation Planning Process consistent with the requirements of 23 
U.S.C. 134 and 135 and 23 CFR part 450.



Sec.  924.11  Implementation.

    (a) The HSIP shall be implemented in accordance with the 
requirements of Sec.  924.9.
    (b) States shall incorporate specific quantifiable and measurable 
anticipated improvements for the collection of MIRE fundamental data 
elements into their Traffic Records Strategic Plan by July 1, 2017. 
States shall have access to a complete collection of the MIRE 
fundamental data elements on all public roads by September 30, 2026.
    (c) The SHSP shall include or be accompanied by actions that address 
how the SHSP emphasis area strategies will be implemented.
    (d) Funds set-aside for the Railway-Highway Crossings Program under 
23 U.S.C. 130 shall be used to implement railway-highway crossing safety 
projects on any public road. If a State demonstrates that it has met its 
needs for the installation of railway-highway crossing protective 
devices to the satisfaction of the FHWA Division Administrator, the 
State may use funds made available under 23 U.S.C. 130 for other types 
of highway safety improvement projects pursuant to the special rule in 
23 U.S.C. 130(e)(2).
    (e) Highway safety improvement projects may also be implemented with 
other funds apportioned under 23 U.S.C. 104(b) subject to the 
eligibility requirements applicable to each program.
    (f) Award of contracts for highway safety improvement projects shall 
be in accordance with 23 CFR parts 635 and 636, where applicable, for 
highway construction projects, 23 CFR part 172 for engineering and 
design services contracts related to highway construction projects, or 2 
CFR part 200 for non-highway construction projects.
    (g) Except as provided in 23 U.S.C. 120 and 130, the Federal share 
of the cost of a highway safety improvement project carried out with 
funds apportioned to a State under 23 U.S.C. 104(b)(3) shall be 90 
percent.



Sec.  924.13  Evaluation.

    (a) The HSIP evaluation process shall include:
    (1) A process to analyze and assess the results achieved by the 
program of highway safety improvement projects in terms of contributions 
to improved safety outcomes and the attainment of safety performance 
targets established as per 23 U.S.C. 150.
    (2) An evaluation of the SHSP as part of the regularly recurring 
update process to:
    (i) Confirm the validity of the emphasis areas and strategies based 
on analysis of current safety data; and
    (ii) Identify issues related to the SHSP's process, implementation, 
and progress that should be considered during each subsequent SHSP 
update.
    (b) The information resulting from paragraph (a)(1) of this section 
shall be used:
    (1) To update safety data used in the planning process in accordance 
with Sec.  924.9;
    (2) For setting priorities for highway safety improvement projects;
    (3) For assessing the overall effectiveness of the HSIP; and
    (4) For reporting required by Sec.  924.15.
    (c) The evaluation process may be financed with funds made available 
under 23 U.S.C. 104(b)(3) and 505, and, for metropolitan planning areas, 
23 U.S.C. 104(d). The eligible use of the program funding categories 
listed for HSIP evaluation efforts is subject to that program's 
eligibility requirements and cost allocation procedures as per 2 CFR 
part 200.



Sec.  924.15  Reporting.

    (a) For the period of the previous reporting year, each State shall 
submit, via FHWA's HSIP online reporting tool, to the FHWA Division 
Administrator no later than August 31 of each year, the following 
reports related to the HSIP in accordance with 23 U.S.C. 148(h) and 
130(g):
    (1) A report describing the progress being made to implement the 
HSIP that:
    (i) Describes the structure of the HSIP. This section shall:

[[Page 592]]

    (A) Describe how HSIP funds are administered in the State; and
    (B) Provide a summary of the methodology used to develop the 
programs and projects being implemented under the HSIP on all public 
roads.
    (ii) Describes the progress in implementing highway safety 
improvement projects. This section shall:
    (A) Compare the funds programmed in the STIP for highway safety 
improvement projects and those obligated during the reporting year; and
    (B) Provide a list of highway safety improvement projects that were 
obligated during the reporting year, including non-infrastructure 
projects. Each project listed shall identify how it relates to the State 
SHSP.
    (iii) Describes the progress in achieving safety outcomes and 
performance targets. This section shall:
    (A) Provide an overview of general highway safety trends. General 
highway safety trends shall be presented by number and rate of 
fatalities and serious injuries on all public roads by calendar year, 
and to the maximum extent practicable, shall also be presented by 
functional classification and roadway ownership. General highway safety 
trends shall also be presented for the total number of fatalities and 
serious injuries for non-motorized users;
    (B) Document the safety performance targets established in 
accordance with 23 U.S.C. 150 for the following calendar year. 
Documentation shall also include a discussion of the basis for each 
established target, and how the established target supports SHSP goals. 
In future years, documentation shall also include a discussion of any 
reasons for differences in the actual outcomes and targets; and
    (C) Present information related to the applicability of the special 
rules defined in 23 U.S.C. 148(g).
    (iv) Assesses the effectiveness of the improvements. This section 
shall describe the effectiveness of groupings or similar types of 
highway safety improvement projects previously implemented under the 
HSIP.
    (v) Is compatible with the requirements of 29 U.S.C. 794(d), Section 
508 of the Rehabilitation Act.
    (2) A report describing progress being made to implement railway-
highway crossing improvements in accordance with 23 U.S.C. 130(g) and 
the effectiveness of these improvements.
    (b) The preparation of the State's annual reports may be financed 
with funds made available through 23 U.S.C. 104(b)(3).



Sec.  924.17  MIRE fundamental data elements.

    The MIRE fundamental data elements shall be collected on all public 
roads, as listed in Tables 1, 2, and 3 of this section. For the purpose 
of MIRE fundamental data elements applicability, the term open to public 
travel is consistent with 23 CFR 460.2(c).

     Table 1--MIRE Fundamental Data Elements for Non-Local (Based on
                 Functional Classification) Paved Roads
------------------------------------------------------------------------
                        MIRE name (MIRE No.) \1\
-------------------------------------------------------------------------
            Roadway segment                        Intersection
------------------------------------------------------------------------
Segment Identifier (12)................  Unique Junction Identifier
                                          (120).
Route Number (8) \2\...................  Location Identifier for Road 1
                                          Crossing Point (122).
Route/street Name (9) \2\..............  Location Identifier for Road 2
                                          Crossing Point (123).
Federal Aid/Route Type (21) \2\........  Intersection/Junction Geometry
                                          (126).
Rural/Urban Designation (20) \2\.......  Intersection/Junction Traffic
                                          Control (131).
Surface Type (23) \2\..................  AADT (79) [for Each
                                          Intersecting Road].
Begin Point Segment Descriptor (10) \2\  AADT Year (80) [for Each
                                          Intersecting Road].
End Point Segment Descriptor (11) \2\
Segment Length (13) \2\
Direction of Inventory (18)............  Unique Approach Identifier
                                          (139).
Functional Class (19) \2\
Median Type (54)
Access Control (22) \2\
One/Two-Way Operations (91) \2\........  Interchange/Ramp.
Number of Through Lanes (31) \2\.......  Unique Interchange Identifier
                                          (178).
Average Annual Daily Traffic (79) \2\..  Location Identifier for Roadway
                                          at Beginning Ramp Terminal
                                          (197).

[[Page 593]]

 
AADT Year (80) \2\.....................  Location Identifier for Roadway
                                          at Ending Ramp Terminal (201).
Type of Governmental Ownership (4) \2\.  Ramp Length (187).
                                         Roadway Type at Beginning Ramp
                                          Terminal (195).
                                         Roadway Type at Ending Ramp
                                          Terminal (199).
                                         Interchange Type (182).
                                         Ramp AADT (191).\2\
                                         Year of Ramp AADT (192).\2\
                                         Functional Class (19).\2\
                                         Type of Governmental Ownership
                                          (4).\2\
------------------------------------------------------------------------
\1\ Model Inventory of Roadway Elements--MIRE, Version 1.0, Report No.
  FHWA-SA-10-018, October 2010, http://safety.fhwa.dot.gov/tools/
  data_'tools/mirereport/mirereport.pdf.
\2\ Highway Performance Monitoring System full extent elements are
  required on all Federal-aid highways and ramps located within grade-
  separated interchanges, i.e., National Highway System (NHS) and all
  functional systems excluding rural minor collectors and locals.


 Table 2--MIRE Fundamental Data Elements for Local (Based on Functional
                       Classification) Paved Roads
------------------------------------------------------------------------
                        MIRE name (MIRE No.) \1\
-------------------------------------------------------------------------
Roadway segment:
  Segment Identifier (12).
  Functional Class (19).\2\
  Surface Type (23).\2\
  Type of Governmental Ownership (4).\2\
  Number of Through Lanes (31).\2\
  Average Annual Daily Traffic (79).\2\
  Begin Point Segment Descriptor (10).\2\
  End Point Segment Descriptor (11).\2\
  Rural/Urban Designation (20).\2\
------------------------------------------------------------------------
\1\ Model Inventory of Roadway Elements--MIRE, Version 1.0, Report No.
  FHWA-SA-10-018, October 2010, http://safety.fhwa.dot.gov/tools/
  data_tools/mirereport/mirereport.pdf.
\2\ Highway Performance Monitoring System full extent elements are
  required on all Federal-aid highways and ramps located within grade-
  separated interchanges, i.e., National Highway System (NHS) and all
  functional systems excluding rural minor collectors and locals.


        Table 3--MIRE Fundamental Data Elements for Unpaved Roads
------------------------------------------------------------------------
                        MIRE name (MIRE No.) \1\
-------------------------------------------------------------------------
Roadway segment:
  Segment Identifier (12).
  Functional Class (19).\2\
  Type of Governmental Ownership (4).\2\
  Begin Point Segment Descriptor (10).\2\
  End Point Segment Descriptor (11).\2\
------------------------------------------------------------------------
\1\ Model Inventory of Roadway Elements--MIRE, Version 1.0, Report No.
  FHWA-SA-10-018, October 2010, http://safety.fhwa.dot.gov/tools/
  data_tools/mirereport/mirereport.pdf.
\2\ Highway Performance Monitoring System full extent elements are
  required on all Federal-aid highways and ramps located within grade-
  separated interchanges, i.e., National Highway System (NHS) and all
  functional systems excluding rural minor collectors and locals.


[[Page 594]]



             SUBCHAPTER K_INTELLIGENT TRANSPORTATION SYSTEMS





PART 940_INTELLIGENT TRANSPORTATION SYSTEM ARCHITECTURE AND STANDARDS--
Table of Contents



Sec.
940.1 Purpose.
940.3 Definitions.
940.5 Policy.
940.7 Applicability.
940.9 Regional ITS architecture.
940.11 Project implementation.
940.13 Project administration.

    Authority: 23 U.S.C. 101, 106, 109, 133, 315, and 508; sec 5206(e), 
Public Law 105-178, 112 Stat. 457 (23 U.S.C. 502 note); and 49 CFR 1.48.

    Source: 66 FR 1453, Jan. 8, 2001, unless otherwise noted.



Sec.  940.1  Purpose.

    This regulation provides policies and procedures for implementing 
section 5206(e) of the Transportation Equity Act for the 21st Century 
(TEA-21), Public Law 105-178, 112 Stat. 457, pertaining to conformance 
with the National Intelligent Transportation Systems Architecture and 
Standards.



Sec.  940.3  Definitions.

    Intelligent Transportation System (ITS) means electronics, 
communications, or information processing used singly or in combination 
to improve the efficiency or safety of a surface transportation system.
    ITS project means any project that in whole or in part funds the 
acquisition of technologies or systems of technologies that provide or 
significantly contribute to the provision of one or more ITS user 
services as defined in the National ITS Architecture.
    Major ITS project means any ITS project that implements part of a 
regional ITS initiative that is multi-jurisdictional, multi-modal, or 
otherwise affects regional integration of ITS systems.
    National ITS Architecture (also ``national architecture'') means a 
common framework for ITS interoperability. The National ITS Architecture 
comprises the logical architecture and physical architecture which 
satisfy a defined set of user services. The National ITS Architecture is 
maintained by the United States Department of Transportation (DOT) and 
is available on the DOT web site at http://www.its.dot.gov.
    Project level ITS architecture is a framework that identifies the 
institutional agreement and technical integration necessary to interface 
a major ITS project with other ITS projects and systems.
    Region is the geographical area that identifies the boundaries of 
the regional ITS architecture and is defined by and based on the needs 
of the participating agencies and other stakeholders. In metropolitan 
areas, a region should be no less than the boundaries of the 
metropolitan planning area.
    Regional ITS architecture means a regional framework for ensuring 
institutional agreement and technical integration for the implementation 
of ITS projects or groups of projects.
    Systems engineering is a structured process for arriving at a final 
design of a system. The final design is selected from a number of 
alternatives that would accomplish the same objectives and considers the 
total life-cycle of the project including not only the technical merits 
of potential solutions but also the costs and relative value of 
alternatives.



Sec.  940.5  Policy.

    ITS projects shall conform to the National ITS Architecture and 
standards in accordance with the requirements contained in this part. 
Conformance with the National ITS Architecture is interpreted to mean 
the use of the National ITS Architecture to develop a regional ITS 
architecture, and the subsequent adherence of all ITS projects to that 
regional ITS architecture. Development of the regional ITS architecture 
should be consistent with the transportation planning process for 
Statewide and Metropolitan Transportation Planning.



Sec.  940.7  Applicability.

    (a) All ITS projects that are funded in whole or in part with the 
highway

[[Page 595]]

trust fund, including those on the National Highway System (NHS) and on 
non-NHS facilities, are subject to these provisions.
    (b) The Secretary may authorize exceptions for:
    (1) Projects designed to achieve specific research objectives 
outlined in the National ITS Program Plan under section 5205 of the TEA-
21, or the Surface Transportation Research and Development Strategic 
Plan developed under 23 U.S.C. 508; or
    (2) The upgrade or expansion of an ITS system in existence on the 
date of enactment of the TEA-21, if the Secretary determines that the 
upgrade or expansion:
    (i) Would not adversely affect the goals or purposes of Subtitle C 
(Intelligent Transportation Systems Act of 1998) of the TEA-21;
    (ii) Is carried out before the end of the useful life of such 
system; and
    (iii) Is cost-effective as compared to alternatives that would meet 
the conformity requirement of this rule.
    (c) These provisions do not apply to funds used for operations and 
maintenance of an ITS system in existence on June 9, 1998.



Sec.  940.9  Regional ITS architecture.

    (a) A regional ITS architecture shall be developed to guide the 
development of ITS projects and programs and be consistent with ITS 
strategies and projects contained in applicable transportation plans. 
The National ITS Architecture shall be used as a resource in the 
development of the regional ITS architecture. The regional ITS 
architecture shall be on a scale commensurate with the scope of ITS 
investment in the region. Provision should be made to include 
participation from the following agencies, as appropriate, in the 
development of the regional ITS architecture: Highway agencies; public 
safety agencies (e.g., police, fire, emergency/medical); transit 
operators; Federal lands agencies; State motor carrier agencies; and 
other operating agencies necessary to fully address regional ITS 
integration.
    (b) Any region that is currently implementing ITS projects shall 
have a regional ITS architecture by April 8, 2005.
    (c) All other regions not currently implementing ITS projects shall 
have a regional ITS architecture within four years of the first ITS 
project for that region advancing to final design.
    (d) The regional ITS architecture shall include, at a minimum, the 
following:
    (1) A description of the region;
    (2) Identification of participating agencies and other stakeholders;
    (3) An operational concept that identifies the roles and 
responsibilities of participating agencies and stakeholders in the 
operation and implementation of the systems included in the regional ITS 
architecture;
    (4) Any agreements (existing or new) required for operations, 
including at a minimum those affecting ITS project interoperability, 
utilization of ITS related standards, and the operation of the projects 
identified in the regional ITS architecture;
    (5) System functional requirements;
    (6) Interface requirements and information exchanges with planned 
and existing systems and subsystems (for example, subsystems and 
architecture flows as defined in the National ITS Architecture);
    (7) Identification of ITS standards supporting regional and national 
interoperability; and
    (8) The sequence of projects required for implementation.
    (e) Existing regional ITS architectures that meet all of the 
requirements of paragraph (d) of this section shall be considered to 
satisfy the requirements of paragraph (a) of this section.
    (f) The agencies and other stakeholders participating in the 
development of the regional ITS architecture shall develop and implement 
procedures and responsibilities for maintaining it, as needs evolve 
within the region.

[66 FR 1453, Jan. 8, 2001, as amended at 66 FR 19856, Apr. 18, 2001]



Sec.  940.11  Project implementation.

    (a) All ITS projects funded with highway trust funds shall be based 
on a systems engineering analysis.
    (b) The analysis should be on a scale commensurate with the project 
scope.
    (c) The systems engineering analysis shall include, at a minimum:

[[Page 596]]

    (1) Identification of portions of the regional ITS architecture 
being implemented (or if a regional ITS architecture does not exist, the 
applicable portions of the National ITS Architecture);
    (2) Identification of participating agencies roles and 
responsibilities;
    (3) Requirements definitions;
    (4) Analysis of alternative system configurations and technology 
options to meet requirements;
    (5) Procurement options;
    (6) Identification of applicable ITS standards and testing 
procedures; and
    (7) Procedures and resources necessary for operations and management 
of the system.
    (d) Upon completion of the regional ITS architecture required in 
Sec. Sec.  940.9(b) or 940.9(c), the final design of all ITS projects 
funded with highway trust funds shall accommodate the interface 
requirements and information exchanges as specified in the regional ITS 
architecture. If the final design of the ITS project is inconsistent 
with the regional ITS architecture, then the regional ITS architecture 
shall be updated as provided in the process defined in Sec.  940.9(f) to 
reflect the changes.
    (e) Prior to the completion of the regional ITS architecture, any 
major ITS project funded with highway trust funds that advances to final 
design shall have a project level ITS architecture that is coordinated 
with the development of the regional ITS architecture. The final design 
of the major ITS project shall accommodate the interface requirements 
and information exchanges as specified in this project level ITS 
architecture. If the project final design is inconsistent with the 
project level ITS architecture, then the project level ITS architecture 
shall be updated to reflect the changes. The project level ITS 
architecture is based on the results of the systems engineering 
analysis, and includes the following:
    (1) A description of the scope of the ITS project;
    (2) An operational concept that identifies the roles and 
responsibilities of participating agencies and stakeholders in the 
operation and implementation of the ITS project;
    (3) Functional requirements of the ITS project;
    (4) Interface requirements and information exchanges between the ITS 
project and other planned and existing systems and subsystems; and
    (5) Identification of applicable ITS standards.
    (f) All ITS projects funded with highway trust funds shall use 
applicable ITS standards and interoperability tests that have been 
officially adopted through rulemaking by the DOT.
    (g) Any ITS project that has advanced to final design by April 8, 
2001 is exempt from the requirements of paragraphs (d) through (f) of 
this section.

[66 FR 1453, Jan. 8, 2001, as amended at 66 FR 19856, Apr. 18, 2001]



Sec.  940.13  Project administration.

    (a) Prior to authorization of highway trust funds for construction 
or implementation of ITS projects, compliance with Sec.  940.11 shall be 
demonstrated.
    (b) Compliance with this part will be monitored under Federal-aid 
oversight procedures as provided under 23 U.S.C. 106 and 133.



PART 950_ELECTRONIC TOLL COLLECTION--Table of Contents



Sec.
950.1 Purpose.
950.3 Definitions.
950.5 Requirement to use electronic toll collection technology.
950.7 Interoperability requirements.
950.9 Enforcement.

    Authority: 23 U.S.C. 109, 315; sec. 1604(b)(5) and (b)(6), Pub. L. 
109-59, 119 Stat. 1144; 49 CFR 1.48.

    Source: 74 FR 51771, Oct. 8, 2009, unless otherwise noted.



Sec.  950.1  Purpose.

    The purpose of this part is to establish interoperability 
requirements for toll facilities that are tolled under section 1604 of 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; 119 Stat. 1144) that use 
electronic toll collection.



Sec.  950.3  Definitions.

    As used in this part:

[[Page 597]]

    1604 toll program refers to any of the tolling programs authorized 
under section 1604 of SAFETEA-LU. These programs include the Value 
Pricing Pilot Program, the Express Lanes Demonstration Program, and the 
Interstate System Construction Toll Pilot Program.
    Electronic toll collection means the ability for vehicle operators 
to pay tolls automatically without slowing down from normal highway 
speeds.
    Toll agency means the relevant public or private entity or entities 
to which toll authority has been granted for a facility under a 1604 
toll program.



Sec.  950.5  Requirement to use electronic toll collection technology.

    (a) Any toll agency operating a toll facility pursuant to authority 
under a 1604 toll program shall use an electronic toll collection system 
as the method for collecting tolls from vehicle operators for the use of 
the facility unless the toll agency can demonstrate to the FHWA that 
some other method is either more economically efficient or will make the 
facility operate more safely. If a facility is collecting tolls pursuant 
to section 1604(b) of SAFETEA-LU, the toll agency shall only use 
electronic toll collection systems. Nothing in this subsection shall 
prevent a toll agency from using cash payment methods, such as toll 
booths, in areas that are not located in the toll facility's lanes of 
travel if the location and use of such methods do not create unsafe 
operating conditions on the toll facility.
    (b) A toll agency using electronic toll collection technology must 
develop and implement reasonable methods to enable vehicle operators 
that are not enrolled in a toll collection program that is interoperable 
with the toll collection system of the relevant toll facility to use the 
facility.
    (c) A toll agency using electronic toll collection technology must 
develop, implement, and make publicly available privacy policies to 
safeguard the disclosure of any data that may be collected through such 
technology concerning any user of a toll facility operating pursuant to 
authority under a 1604 toll program, but is not required to submit such 
policies to FHWA for approval.



Sec.  950.7  Interoperability requirements.

    (a) For any toll facility operating pursuant to authority under a 
1604 toll program, the toll agency shall--
    (1) Identify the projected users of the facility;
    (2) Identify the predominant toll collection systems likely utilized 
by the users of the facility; and
    (3) Identify the noncash electronic technology likely to be in use 
within the next five years in that area.
    (b) Based on the identification conducted under subsection (a), the 
toll agency shall receive the FHWA's concurrence that the facility's 
toll collection system's standards and design meet the requirements of 
this part.
    (c) In requesting the FHWA's concurrence, the toll agency shall 
demonstrate to the FHWA that the selected toll collection system and 
technology achieves the highest reasonable degree of interoperability 
both with technology currently in use at other existing toll facilities 
and with technology likely to be in use at toll facilities within the 
next five years in that area. The toll agency shall explain to the FHWA 
how the toll collection system takes into account both the use of 
noncash electronic technology currently deployed within an appropriate 
geographic area of travel (as defined by the toll agency) and the 
noncash electronic technology likely to be in use within the next five 
years in that area. FHWA, in determining whether to concur in the toll 
agency's proposal, will give appropriate weight to current and future 
interoperability with toll facilities in that area. The facility's toll 
collection system design shall include the communications requirements 
between roadside equipment and toll transponders, as well as accounting 
compatibility requirements in order to ensure that users of the toll 
facilities are properly identified and tolls are charged to the 
appropriate account of the user.
    (d) A toll agency that operates any toll facility pursuant to 
authority under a 1604 toll program must upgrade its toll collection 
system to meet any

[[Page 598]]

applicable standards and interoperability tests that have been 
officially adopted through rulemaking by the FHWA.
    (e) With respect to facilities that are tolled pursuant to the Value 
Pricing Pilot Program, this part only applies if tolls are imposed on a 
facility after the effective date of this rule. However, such facility 
is subject to this part if the facility's toll collection system's 
method or technology used to collect tolls from vehicle operators is 
changed or upgraded after the effective date of the regulations in this 
part.
    (f) Nothing in this part shall be construed as requiring the use of 
any particular type of electronic toll collection technology. However, 
any such toll collection technology must meet the interoperability 
requirement of this section.



Sec.  950.9  Enforcement.

    (a) The tolling authority of any facility operating pursuant to 
authority under a 1604 toll program shall be suspended in the event the 
relevant toll agency is not in compliance with this part within six (6) 
months of receiving a written notice of non-compliance from FHWA. If the 
toll agency demonstrates that it is taking the necessary steps to come 
into compliance within a reasonable period of time, FHWA shall extend 
such tolling authority.
    (b) The FHWA may take other action as may be appropriate, including 
action pursuant to Sec.  1.36 of this title.

[[Page 599]]



                   SUBCHAPTER L_FEDERAL LANDS HIGHWAYS





PART 970_NATIONAL PARK SERVICE MANAGEMENT SYSTEMS--Table of Contents



                          Subpart A_Definitions

Sec.
970.100 Purpose.
970.102 Applicability.
970.104 Definitions.

           Subpart B_National Park Service Management Systems

970.200 Purpose.
970.202 Applicability.
970.204 Management systems requirements.
970.206 Funds for establishment, development, and implementation of the 
          systems.
970.208 Federal lands pavement management system (PMS).
970.210 Federal lands bridge management system (BMS).
970.212 Federal lands safety management system (SMS).
970.214 Federal lands congestion management system (CMS).

    Authority: 23 U.S.C. 204 and 315; 42 U.S.C. 7410 et seq.; 49 CFR 
1.48.

    Source: 69 FR 9473, Feb. 27, 2004, unless otherwise noted.



                          Subpart A_Definitions



Sec.  970.100  Purpose.

    The purpose of this subpart is to provide definitions for terms used 
in this part.



Sec.  970.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.



Sec.  970.104  Definitions.

    Alternative transportation systems means modes of transportation 
other than private vehicles, including methods to improve system 
performance such as transportation demand management, congestion 
management, and intelligent transportation systems. These mechanisms 
help reduce the use of private vehicles and thus improve overall 
efficiency of transportation systems and facilities.
    Elements means the components of a bridge important from a 
structural, user, or cost standpoint. Examples are decks, joints, 
bearings, girders, abutments, and piers.
    Federal lands bridge management system (BMS) means a systematic 
process used by the Forest Service (FS), the Fish and Wildlife Service 
(FWS) and the National Park Service (NPS) for collecting and analyzing 
bridge data to make forecasts and recommendations, and provides the 
means by which bridge maintenance, rehabilitation, and replacement 
programs and policies may be efficiently and effectively considered.
    Federal lands congestion management system (CMS) means a systematic 
process used by the NPS, the FWS and the FS for managing congestion that 
provides information on transportation system performance, and 
alternative strategies for alleviating congestion and enhancing the 
mobility of persons and goods to levels that meet Federal, State and 
local needs.
    Federal Lands Highway Program (FLHP) means a federally funded 
program established in 23 U.S.C. 204 to address transportation needs of 
Federal and Indian lands.
    Federal lands pavement management system (PMS) means a systematic 
process used by the NPS, the FWS and the FS that provides information 
for use in implementing cost-effective pavement reconstruction, 
rehabilitation, and preventive maintenance programs and policies, and 
that results in pavement designed to accommodate current and forecasted 
traffic in a safe, durable, and cost-effective manner.
    Federal lands safety management system (SMS) means a systematic 
process used by the NPS, the FWS and the FS with the goal of reducing 
the number and severity of traffic accidents by ensuring that all 
opportunities to improve roadway safety are identified, considered, 
implemented, and evaluated, as appropriate, during all phases of highway 
planning, design, construction, operation and maintenance, by providing 
information for selecting and implementing effective highway safety 
strategies and projects.

[[Page 600]]

    Highway safety means the reduction of traffic accidents on public 
roads, including reductions in deaths, injuries, and property damage.
    Intelligent transportation system (ITS) means electronics, 
communications, or information processing used singly or in combination 
to improve the efficiency and safety of a surface transportation system.
    Life-cycle cost analysis means an evaluation of costs incurred over 
the life of a project allowing a comparative analysis between or among 
various alternatives. Life-cycle cost analysis promotes consideration of 
total cost, including maintenance and operation expenditures. 
Comprehensive life-cycle cost analysis includes all economic variables 
essential to the evaluation, including user costs such as delay, safety 
costs associated with maintenance and rehabilitation projects, agency 
capital costs, and life-cycle maintenance costs.
    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process required by 23 U.S.C. 134 
and 49 U.S.C. 5303-5306 must be carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decision-making for the metropolitan planning 
area pursuant to 23 U.S.C. 134 and 49 U.S.C. 5303.
    National Park Service transportation plan means an official NPS 
multimodal transportation plan that is developed through the NPS 
transportation planning process pursuant to 23 U.S.C. 204.
    Operations means those activities associated with managing, 
controlling, and regulating highway and pedestrian traffic.
    Park road means a public road, including a bridge built primarily 
for pedestrian use, but with capacity for use by emergency vehicles, 
that is located within, or provides access to, an area in the National 
Park System with title and maintenance responsibilities vested in the 
United States.
    Park Road Program transportation improvement program (PRPTIP) means 
a staged, multi-year, multimodal program of NPS transportation projects 
in a State area. The PRPTIP is consistent with the NPS transportation 
plan and developed through the NPS planning processes pursuant to 23 
U.S.C. 204.
    Park roads and parkways program means a program that is authorized 
in 23 U.S.C. 204 with funds allocated to the NPS by the Federal Highway 
Administration (FHWA) for each fiscal year as provided in 23 U.S.C. 
202(c) and 23 U.S.C. 204.
    Parkway means a parkway authorized by Act of Congress on lands to 
which title is vested in the United States.
    Secretary means the Secretary of Transportation.
    Serviceability means the degree to which a bridge provides 
satisfactory service from the point of view of its users.
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation facilities means roads, streets, bridges, parking 
areas, transit vehicles, and other related transportation 
infrastructure.
    Transportation Management Area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials), and officially designated by the 
Administrators of the FHWA and the Federal Transit Administration (FTA). 
The TMA designation applies to the entire metropolitan planning area(s).



           Subpart B_National Park Service Management Systems



Sec.  970.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 204, which 
requires the Secretary and the Secretary of each appropriate Federal 
land management agency, to the extent appropriate, to develop by rule 
safety, bridge, pavement, and congestion management systems for roads 
funded under the FLHP. These management systems serve to guide the 
National Park Service (NPS) in developing transportation plans and 
making resource allocation decisions for the PRPTIP.

[[Page 601]]



Sec.  970.202  Applicability.

    The provisions in this subpart are applicable to the NPS and the 
Federal Highway Administration (FHWA) that are responsible for 
satisfying these requirements for management systems pursuant to 23 
U.S.C. 204.



Sec.  970.204  Management systems requirements.

    (a) The NPS shall develop, establish and implement the management 
systems as described in this subpart. The NPS may tailor all management 
systems to meet the NPS goals, policies, and needs using professional 
engineering and planning judgment to determine the required nature and 
extent of systems coverage consistent with the intent and requirements 
of this rule. The management systems also shall be developed so they 
assist in meeting the goals and measures that were jointly developed by 
the FHWA and the NPS in response to the Government Performance and 
Results Act of 1993 (Pub. L. 103-62, 107 Stat. 285).
    (b) The NPS and the FHWA shall develop an implementation plan for 
each of the management systems. These plans will include, but are not 
limited to, the following: Overall goals and policies concerning the 
management systems, each agency's responsibilities for developing and 
implementing the management systems, implementation schedule, data 
sources, and cost estimate. The FHWA will provide the NPS ongoing 
technical engineering support for the development, implementation, and 
maintenance of the management systems.
    (c) The NPS shall develop and implement procedures for the 
development, establishment, implementation and operation of management 
systems. The procedures shall include:
    (1) A process for ensuring the outputs of the management systems are 
considered in the development of NPS transportation plans and PRPTIPs 
and in making project selection decisions under 23 U.S.C. 204;
    (2) A process for the analysis and coordination of all management 
system outputs to systematically operate, maintain, and upgrade existing 
transportation assets cost-effectively;
    (3) A description of each management system;
    (4) A process to operate and maintain the management systems and 
their associated databases; and
    (5) A process for data collection, processing, analysis and updating 
for each management system.
    (d) All management systems will use databases with a geographical 
reference system that can be used to geolocate all database information.
    (e) Existing data sources may be used by the NPS to the maximum 
extent possible to meet the management system requirements.
    (f) The NPS shall develop an appropriate means to evaluate the 
effectiveness of the management systems in enhancing transportation 
investment decision-making and improving the overall efficiency of the 
affected transportation systems and facilities. This evaluation is to be 
conducted periodically, preferably as part of the NPS planning process.
    (g) The management systems shall be operated so investment decisions 
based on management system outputs can be considered at the national, 
regional, and park levels.



Sec.  970.206  Funds for establishment, development, 
and implementation of the systems.

    The Park Roads and Parkways program funds may be used for 
development, establishment, and implementation of the management 
systems. These funds are to be administered in accordance with the 
procedures and requirements applicable to the funds.



Sec.  970.208  Federal lands pavement management system (PMS).

    In addition to the requirements provided in Sec.  970.204, the PMS 
must meet the following requirements:
    (a) The NPS shall have PMS coverage of all paved park roads, 
parkways, parking areas and other associated facilities, as appropriate, 
that are funded under the FLHP.
    (b) The PMS may be utilized at various levels of technical 
complexity depending on the nature of the transportation network. These 
different levels may depend on mileage, functional

[[Page 602]]

classes, volumes, loading, usage, surface type, or other criteria the 
NPS deems appropriate.
    (c) The PMS shall be designed to fit the NPS goals, policies, 
criteria, and needs using the following components, at a minimum, as a 
basic framework for a PMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the PMS. The minimum PMS database shall include:
    (i) An inventory of the physical pavement features including the 
number of lanes, length, width, surface type, functional classification, 
and shoulder information;
    (ii) A history of project dates and types of construction, 
reconstruction, rehabilitation, and preventive maintenance. If some of 
the inventory or historic data is difficult to establish, it may be 
collected when preservation or reconstruction work is performed;
    (iii) Condition data that includes roughness, distress, rutting, and 
surface friction (as appropriate);
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) Data for estimating the costs of actions.
    (2) A system for applying network level analytical procedures that 
are capable of analyzing data for all park roads, parkways and other 
appropriate associated facilities in the inventory or any subset. The 
minimum analyses shall include:
    (i) A pavement condition analysis that includes roughness, distress, 
rutting, and surface friction (as appropriate);
    (ii) A pavement performance analysis that includes present and 
predicted performance and an estimate of the remaining service life 
(performance and remaining service life to be developed with time); and
    (iii) An investment analysis that:
    (A) Identifies alternative strategies to improve pavement 
conditions;
    (B) Estimates costs of any pavement improvement strategy;
    (C) Determines maintenance, repair, and rehabilitation strategies 
for pavements using life-cycle cost analysis or a comparable procedure;
    (D) Provides for short and long term budget forecasting; and
    (E) Recommends optimal allocation of limited funds by developing a 
prioritized list of candidate projects over a predefined planning 
horizon (both short and long term).
    (d) For any park roads, parkways and other appropriate associated 
facilities in the inventory or subset thereof, PMS reporting 
requirements shall include, but are not limited to, percentage of roads 
in good, fair, and poor condition.

[69 FR 9473, Feb. 27, 2004; 69 FR 16793, Mar. 31, 2004]



Sec.  970.210  Federal lands bridge management system (BMS).

    In addition to the requirements provided in Sec.  970.204, the BMS 
must meet the following requirements:
    (a) The NPS shall have a BMS for the bridges which are under the NPS 
jurisdiction, funded under the FLHP, and required to be inventoried and 
inspected as prescribed by 23 U.S.C. 144.
    (b) The BMS shall be designed to fit the NPS goals, policies, 
criteria, and needs using, as a minimum, the following components:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the BMS. The minimum BMS database shall include:
    (i) Data described by the inventory section of the National Bridge 
Inspection Standards (23 CFR part 650, subpart C);
    (ii) Data characterizing the severity and extent of deterioration of 
bridge elements;
    (iii) Data for estimating the cost of improvement actions;
    (iv) Traffic information including volumes and other pertinent 
information; and
    (v) A history of conditions and actions taken on each bridge, 
excluding minor or incidental maintenance.
    (2) A system for applying network level analytical procedures that 
are capable of analyzing data for all bridges in the inventory or any 
subset. The minimum analyses shall include:

[[Page 603]]

    (i) A prediction of performance and estimate of the remaining 
service life of structural and other key elements of each bridge, both 
with and without intervening actions; and
    (ii) A recommendation for optimal allocation of limited funds 
through development of a prioritized list of candidate projects over 
predefined short and long term planning horizons.
    (c) The BMS may include the capability to perform an investment 
analysis as appropriate, considering size of structure, traffic volume, 
and structural condition. The investment analysis may:
    (1) Identify alternative strategies to improve bridge condition, 
safety and serviceability;
    (2) Estimate the costs of any strategies ranging from maintenance of 
individual elements to full bridge replacement;
    (3) Determine maintenance, repair, and rehabilitation strategies for 
bridge elements using life cycle cost analysis or a comparable 
procedure;
    (4) Provide short and long term budget forecasting; and
    (5) Evaluate the cultural and historical values of the structure.
    (d) For any bridge in the inventory or subset thereof, BMS reporting 
requirements shall include, but are not limited to, percentage of non-
deficient bridges.



Sec.  970.212  Federal lands safety management system (SMS).

    In addition to the requirements provided in Sec.  970.204, the SMS 
must meet the following requirements:
    (a) The NPS shall have an SMS for all transportation systems serving 
NPS facilities, as appropriate, funded under the FLHP.
    (b) The NPS shall use the SMS to ensure that safety is considered 
and implemented, as appropriate, in all phases of transportation system 
planning, design, construction, maintenance, and operations.
    (c) The SMS shall be designed to fit the NPS goals, policies, 
criteria, and needs and shall contain the following components: (1) An 
ongoing program for the collection, maintenance and reporting of a data 
base that includes:
    (i) Accident records with details for analysis such as accident 
type, using standard reporting descriptions (e.g., right-angle, rear-
end, head-on, pedestrian-related), location, description of event, 
severity, weather and cause;
    (ii) An inventory of safety appurtenances such as signs, 
delineators, and guardrails (including terminals);
    (iii) Traffic information including volume, speed, and vehicle 
classification, as appropriate.
    (iv) Accident rates by customary criteria such as location, roadway 
classification, and vehicle miles of travel.
    (2) Development, establishment, and implementation of procedures 
for:
    (i) Routinely maintaining and upgrading safety appurtenances 
including highway-rail crossing warning devices, signs, highway 
elements, and operational features, where appropriate;
    (ii) Identifying and investigating hazardous or potentially 
hazardous transportation elements and systems, transit vehicles and 
facilities, roadway locations and features;
    (iii) Establishing countermeasures and setting priorities to address 
identified needs.
    (3) A process for communication, coordination, and cooperation among 
the organizations responsible for the roadway, human, and vehicle safety 
elements;
    (d) While the SMS applies to appropriate transportation systems 
serving NPS facilities funded under the FLHP, the extent of system 
requirements (e.g., data collection, analyses, and standards) for low 
volume roads may be tailored to be consistent with the functional 
classification of the road and number and types of transit and other 
vehicles operated by the NPS.



Sec.  970.214  Federal lands congestion management system (CMS).

    (a) For purposes of this section, congestion means the level at 
which transportation system performance is no longer acceptable due to 
traffic interference. For portions of the NPS transportation system 
outside the boundaries of TMAs, the NPS shall:
    (1) Develop criteria to determine when a CMS is to be implemented 
for a specific transportation system; and

[[Page 604]]

    (2) Have CMS coverage for all transportation systems serving NPS 
facilities that meet minimum CMS needs criteria, as appropriate, funded 
through the FLHP.
    (b) The NPS shall consider the results of the CMS when selecting 
congestion mitigation strategies that are the most time efficient and 
cost effective and that add value (protection/rejuvenation of resources, 
improved visitor experience) to the park and adjacent communities.
    (c) In addition to the requirements provided in Sec.  970.204, the 
CMS must meet the following requirements:
    (1) For those NPS transportation systems that require a CMS, in both 
metropolitan and non-metropolitan areas, consideration shall be given to 
strategies that promote alternative transportation systems, reduce 
private automobile travel, and best integrate private automobile travel 
with other transportation modes.
    (2) For portions of the NPS transportation system within 
transportation management areas (TMAs), the NPS transportation planning 
process shall include a CMS that meets the requirements of this section. 
By agreement between the TMA and the NPS, the TMA's CMS coverage may 
include the transportation systems serving NPS facilities, as 
appropriate. Through this agreement(s), the NPS may meet the 
requirements of this section.
    (3) If congestion exists at a NPS facility within the boundaries of 
a TMA, and the TMA's CMS does not provide coverage of the portions of 
the NPS transportation facilities experiencing congestion, the NPS shall 
develop a separate CMS to cover those facilities. Approaches may include 
the use of alternate mode studies and implementation plans as components 
of the CMS.
    (4) A CMS will:
    (i) Identify and document measures for congestion (e.g., level of 
service);
    (ii) Identify the causes of congestion;
    (iii) Include processes for evaluating the cost and effectiveness of 
alternative strategies;
    (iv) Identify the anticipated benefits of appropriate alternative 
traditional and nontraditional congestion management strategies;
    (v) Determine methods to monitor and evaluate the performance of the 
multi-modal transportation system; and
    (vi) Appropriately consider strategies, or combinations of 
strategies for each area, such as:
    (A) Transportation demand management measures;
    (B) Traffic operational improvements;
    (C) Public transportation improvements;
    (D) ITS technologies; and
    (E) Additional system capacity.



PART 971_FOREST SERVICE MANAGEMENT SYSTEMS--Table of Contents



                          Subpart A_Definitions

Sec.
971.100 Purpose.
971.102 Applicability.
971.104 Definitions.

           Subpart B_Forest Highway Program Management Systems

971.200 Purpose.
971.202 Applicability.
971.204 Management systems requirements.
971.206 Funds for establishment, development, and implementation of the 
          systems.
971.208 Federal lands pavement management system (PMS).
971.210 Federal lands bridge management system (BMS).
971.212 Federal lands safety management system (SMS).
971.214 Federal lands congestion management system (CMS).

    Authority: 23 U.S.C. 204, 315; 42 U.S.C. 7410 et seq.; 49 CFR 1.48.

    Source: 69 FR 9480, Feb. 27, 2004, unless otherwise noted.



                          Subpart A_Definitions



Sec.  971.100  Purpose.

    The purpose of this subpart is to provide definitions for terms used 
in this part.



Sec.  971.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.

[[Page 605]]



Sec.  971.104  Definitions.

    Alternative transportation systems means modes of transportation 
other than private vehicles, including methods to improve system 
performance such as transportation demand management, congestion 
management, and intelligent transportation systems. These mechanisms 
help reduce the use of private vehicles and thus, improve overall 
efficiency of transportation systems and facilities.
    Elements mean the components of a bridge that are important from a 
structural, user, or cost standpoint. Examples are decks, joints, 
bearings, girders, abutments, and piers.
    Federal lands bridge management system (BMS) means a systematic 
process used by the Forest Service (FS), the Fish and Wildlife Service 
(FWS), and the National Park Service (NPS) for collecting and analyzing 
bridge data to make forecasts and recommendations, and that provides the 
means by which bridge maintenance, rehabilitation, and replacement 
programs and policies may be efficiently and effectively considered.
    Federal lands congestion management system (CMS) means a systematic 
process used by the FS, FWS, and NPS for managing congestion that 
provides information on transportation system performance, and 
alternative strategies for alleviating congestion and enhancing the 
mobility of persons and goods to levels that meet Federal, State, and 
local needs.
    Federal Lands Highway Program (FLHP) means a federally funded 
program established in 23 U.S.C. 204 to address transportation needs of 
Federal and Indian lands.
    Federal lands pavement management system (PMS) means a systematic 
process used by the FS, FWS, and NPS that provides information for use 
in implementing cost-effective pavement reconstruction, rehabilitation, 
and preventive maintenance programs and policies, and that results in 
pavement designed to accommodate current and forecasted traffic in a 
safe, durable, and cost-effective manner.
    Federal lands safety management system (SMS) means a systematic 
process used by the FS, FWS, and NPS with the goal of reducing the 
number and severity of traffic accidents by ensuring that all 
opportunities to improve roadway safety are identified, considered, 
implemented, and evaluated as appropriate, during all phases of highway 
planning, design, construction, operation and maintenance, by providing 
information for selecting and implementing effective highway safety 
strategies and projects.
    Forest highway (FH) means a forest road under the jurisdiction of, 
and maintained by, a public authority and open to public travel.
    Forest Highway Program means the public lands highway funds 
allocated each fiscal year, as is provided in 23 U.S.C. 202, for 
projects that provide access to and within the National Forest system, 
as described in 23 U.S.C. 202(b) and 23 U.S.C. 204.
    Forest Highway Program transportation improvement program (FHTIP) 
means a staged, multiyear, multimodal program of transportation projects 
in a State area consistent with the FH transportation plan and developed 
through the tri-party FH planning processes pursuant to 23 U.S.C. 204, 
and 23 CFR 660 subpart A.
    Forest Service transportation plan means the official FH multimodal, 
transportation plan that is developed through the tri-party FH 
transportation planning process pursuant to 23 U.S.C. 204.
    Highway safety means the reduction of traffic accidents on public 
roads, including reductions in deaths, injuries, and property damage.
    Intelligent transportation system (ITS) means electronics, 
communications, or information processing, used singly or in 
combination, to improve the efficiency and safety of a surface 
transportation system.
    Life-cycle cost analysis means an evaluation of costs incurred over 
the life of a project allowing a comparative analysis between or among 
various alternatives. Life-cycle cost analysis promotes consideration of 
total cost, including maintenance and operation expenditures. 
Comprehensive life-cycle cost analysis includes all economic variables 
essential to the evaluation including user costs such as delay, safety 
costs associated with maintenance and rehabilitation projects,

[[Page 606]]

agency capital costs, and life-cycle maintenance costs.
    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process, required by 23 U.S.C. 134 
and 49 U.S.C. 5303-5306, must be carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decision-making for the metropolitan planning 
area pursuant to 23 U.S.C. 134 and 49 U.S.C. 5303.
    National Forest System means all the lands and waters reported by 
the FS as being part of the National Forest System, including those 
generally known as National Forests and National Grasslands.
    Operations means those activities associated with managing, 
controlling, and regulating highway traffic.
    Secretary means the Secretary of Transportation.
    Serviceability means the degree to which a bridge provides 
satisfactory service from the point of view of its users.
    State means any one of the 50 States, the District of Columbia, or 
Puerto Rico.
    Transportation facilities mean roads, streets, bridges, parking 
areas, transit vehicles, and other related transportation 
infrastructure.
    Transportation Management Area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials). It also must be officially designated 
by the Administrators of the Federal Highway Administration (FHWA) and 
the Federal Transit Administration (FTA). The TMA designation applies to 
the entire metropolitan planning area(s).
    Tri-party means the joint, cooperative, shared partnership among the 
Federal Lands Highway Division (FLHD), State Department of 
Transportation (State DOT), and the FS to carry out the FH program.



           Subpart B_Forest Highway Program Management Systems



Sec.  971.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 204, which 
requires the Secretary and the Secretary of each appropriate Federal 
land management agency, to the extent appropriate, to develop by rule 
safety, bridge, pavement, and congestion management systems for roads 
funded under the FLHP.



Sec.  971.202  Applicability.

    The provisions in this subpart are applicable to the FS, the Federal 
Highway Administration, and the State DOTs that are responsible for 
satisfying these requirements for management systems pursuant to 23 
U.S.C. 204.



Sec.  971.204  Management systems requirements.

    (a) The tri-party partnership shall develop, establish, and 
implement the management systems as described in this subpart. If the 
State has established a management system for FH that fulfills the 
requirements in 23 U.S.C. 303, that management system, to the extent 
applicable, can be used to meet the requirements of this subpart 
consistent with 23 CFR 660.105(b). The management systems may be 
tailored to meet the FH program goals, policies, and needs using 
professional engineering and planning judgment to determine the nature 
and extent of systems coverage consistent with the intent and 
requirements of this rule.
    (b) The tri-party partnership shall develop and implement procedures 
for the acceptance of the existing, or the development, establishment, 
implementation, and operation of new management systems. The procedures 
shall include:
    (1) A process for ensuring the output of the management systems is 
considered in the development of the FH program transportation plans and 
transportation improvement programs, and in making project selection 
decisions under 23 U.S.C. 204;
    (2) A process for the analyses and coordination of all management 
systems outputs to systematically operate,

[[Page 607]]

maintain, and upgrade existing transportation assets cost-effectively;
    (3) A description of each management system;
    (4) A process to operate and maintain the management systems and 
their associated databases; and
    (5) A process for data collection, processing, analysis, and 
updating for each management system.
    (c) All management systems will use databases with a common or 
coordinated reference system, that can be used to geolocate all database 
information, to ensure that data across management systems are 
comparable.
    (d) Existing data sources may be used by the tri-party partnership 
to meet the management system requirements.
    (e) The tri-party partnership shall develop an appropriate means to 
evaluate the effectiveness of the management systems in enhancing 
transportation investment decision-making and improving the overall 
efficiency of the affected transportation systems and facilities. This 
evaluation is to be conducted periodically, preferably as part of the FS 
planning process.
    (f) The management systems shall be operated so investment decisions 
based on management system outputs can be accomplished at the State 
level.



Sec.  971.206  Funds for establishment, development, 
and implementation of the systems.

    The FH program funds may be used for development, establishment, and 
implementation of the management systems. These funds are to be 
administered in accordance with the procedures and requirements 
applicable to the funds.



Sec.  971.208  Federal lands pavement management system (PMS).

    In addition to the requirements provided in Sec.  971.204, the PMS 
must meet the following requirements:
    (a) The tri-party partnership shall have PMS coverage of all FHs and 
other associated facilities, as appropriate, funded under the FLHP.
    (b) The PMS may be based on the concepts described in the AASHTO's 
``Pavement Management Guide.'' \1\
---------------------------------------------------------------------------

    \1\ ``Pavement Management Guide,'' AASHTO, 2001, is available for 
inspection as prescribed at 49 CFR part 7. It is also available from the 
American Association of State Highway and Transportation Officials 
(AASHTO), Publication Order Dept., P.O. Box 96716, Washington, DC 20090-
6716 or online at http://www.transportation.org/publications/
bookstore.nsf.
---------------------------------------------------------------------------

    (c) The PMS may be utilized at various levels of technical 
complexity depending on the nature of the transportation network. These 
different levels may depend on mileage, functional classes, volumes, 
loading, usage, surface type, or other criteria the tri-party 
partnership deems appropriate.
    (d) The PMS shall be designed to fit the FH program goals, policies, 
criteria, and needs using the following components, at a minimum, as a 
basic framework for a PMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the PMS. The minimum PMS database shall include:
    (i) An inventory of the physical pavement features including the 
number of lanes, length, width, surface type, functional classification, 
and shoulder information;
    (ii) A history of project dates and types of construction, 
reconstruction, rehabilitation, and preventive maintenance. If some of 
the inventory or historic data is difficult to establish, it may be 
collected when preservation or reconstruction work is performed;
    (iii) A condition survey that includes ride, distress, rutting, and 
surface friction (as appropriate);
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) Data for estimating the costs of actions.
    (2) A system for applying network level analytical procedures that 
are capable of analyzing data for all FHs and other appropriate 
associated facilities in the inventory or any subset. The minimum 
analyses shall include:

[[Page 608]]

    (i) A pavement condition analysis that includes ride, distress, 
rutting, and surface friction (as appropriate);
    (ii) A pavement performance analysis that includes present and 
predicted performance and an estimate of the remaining service life. 
Performance and remaining service life may be developed with time; and
    (iii) An investment analysis that:
    (A) Identifies alternative strategies to improve pavement 
conditions;
    (B) Estimates costs of any pavement improvement strategy;
    (C) Determines maintenance, repair, and rehabilitation strategies 
for pavements using life cycle cost analysis or a comparable procedure;
    (D) Provides for short and long term budget forecasting; and
    (E) Recommends optimal allocation of limited funds by developing a 
prioritized list of candidate projects over a predefined planning 
horizon (both short and long term).
    (e) For any FHs and other appropriate associated facilities in the 
inventory or subset thereof, PMS reporting requirements shall include, 
but are not limited to, percentage of roads in good, fair, and poor 
condition.



Sec.  971.210  Federal lands bridge management system (BMS).

    In addition to the requirements provided in Sec.  971.204, the BMS 
must meet the following requirements:
    (a) The tri-party partnership shall have a BMS for the FH bridges 
funded under the FLHP and required to be inventoried and inspected under 
23 CFR 650, subpart C, National Bridge Inspection Standards (NBIS).
    (b) The BMS may be based on the concepts described in the AASHTO's 
``Guidelines for Bridge Management Systems.'' \2\
---------------------------------------------------------------------------

    \2\ ``Guidelines for Bridge Management Systems,'' AASHTO, 1993, is 
available for inspection as prescribed at 49 CFR part 7. It is also 
available from the American Association of State Highway and 
Transportation Officials (AASHTO), Publication Order Dept., P.O. Box 
96716, Washington, DC 20090-6716 or online at http://
www.transportation.org/publications/bookstore.nsf.
---------------------------------------------------------------------------

    (c) The BMS shall be designed to fit the FH program goals, policies, 
criteria, and needs using the following components, as a minimum, as a 
basic framework for a BMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the BMS. The minimum BMS database shall include:
    (i) The inventory data required by the NBIS (23 CFR 650, subpart C);
    (ii) Data characterizing the severity and extent of deterioration of 
bridge elements;
    (iii) Data for estimating the cost of improvement actions;
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) A history of conditions and actions taken on each bridge, 
excluding minor or incidental maintenance.
    (2) A system for applying network level analytical procedures at the 
State or local area level, as appropriate, and capable of analyzing data 
for all bridges in the inventory or any subset. The minimum analyses 
shall include:
    (i) A prediction of performance and estimate of the remaining 
service life of structural and other key elements of each bridge, both 
with and without intervening actions; and
    (ii) A recommendation for optimal allocation of limited funds 
through development of a prioritized list of candidate projects over 
predefined short and long-term planning horizons.
    (d) The BMS may include the capability to perform an investment 
analysis, as appropriate, considering size of structure, traffic volume, 
and structural condition. The investment analysis may:
    (1) Identify alternative strategies to improve bridge condition, 
safety, and serviceability;
    (2) Estimate the costs of any strategies ranging from maintenance of 
individual elements to full bridge replacement;
    (3) Determine maintenance, repair, and rehabilitation strategies for 
bridge elements using life cycle cost analysis or a comparable 
procedure; and
    (4) Provide short and long-term budget forecasting.

[[Page 609]]

    (e) For any bridge in the inventory or subset thereof, BMS reporting 
requirements shall include, but are not limited to, percentage of non-
deficient bridges.



Sec.  971.212  Federal lands safety management system (SMS).

    In addition to the requirements provided in Sec.  971.204, the SMS 
must meet the following requirements:
    (a) The tri-party partnership shall have an SMS for transportation 
systems providing access to and within National Forests and Grasslands, 
and funded under the FLHP.
    (b) The SMS may be based on the guidance in ``Safety Management 
Systems: Good Practices for Development and Implementation.''\3\
---------------------------------------------------------------------------

    \3\ ``Safety Management Systems: Good Practices for Development and 
Implementation,'' FHWA and NHTSA, May 1996, may be obtained at the FHWA, 
Office of Safety, 1200 New Jersey Avenue, SE., Washington, DC 20590, or 
electronically at http://safety.fhwa.dot.gov/media/documents.htm. It is 
available for inspection and copying as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------

    (c) The tri-party partnership shall utilize SMS to ensure that 
safety is considered and implemented, as appropriate, in all phases of 
transportation system planning, design, construction, maintenance, and 
operations.
    (d) The SMS may be utilized at various levels of complexity 
depending on the nature of the facility and/or network involved.
    (e) The SMS shall be designed to fit the FH program goals, policies, 
criteria, and needs and shall contain the following components:
    (1) An ongoing program for the collection, maintenance, and 
reporting of a database that includes:
    (i) Accident records with detail for analysis such as accident type 
using standard reporting descriptions (e.g., right-angle, rear-end, 
head-on, pedestrian-related, etc.), location, description of event, 
severity, weather, and cause;
    (ii) An inventory of safety appurtenances such as signs, 
delineators, and guardrails (including terminals);
    (iii) Traffic information including volume and vehicle 
classification (as appropriate); and
    (iv) Accident rates by customary criteria such as location, roadway 
classification, and vehicle miles of travel.
    (2) Development, establishment, and implementation of procedures 
for:
    (i) Where appropriate, routine maintenance and upgrading of safety 
appurtenances including highway rail crossing safety devices, signs, 
highway elements, and operational features,
    (ii) Identifying, investigating, and analyzing hazardous or 
potentially hazardous transportation system safety problems, roadway 
locations, and features;
    (iii) Establishing countermeasures and setting priorities to correct 
the identified hazards and potential hazards.
    (3) Identification of focal points for all contacts at State, 
regional, tribal, and local levels to coordinate, develop, establish, 
and implement the SMS among the agencies.
    (f) While the SMS applies to appropriate transportation systems 
providing access to and within National Forests and Grasslands funded 
under the FLHP, the extent of system requirements (e.g., data 
collection, analyses, and standards) for low volume roads may be 
tailored to be consistent with the functional classification of the 
roads. However, adequate requirements should be included for each 
roadway to provide for effective inclusion of safety decisions in the 
administration of the FH program.

[69 FR 9480, Feb. 27, 2004, as amended at 74 FR 28442, June 16, 2009]



Sec.  971.214  Federal lands congestion management system (CMS).

    (a) For purposes of this section, congestion means the level at 
which transportation system performance is no longer acceptable due to 
traffic interference. For portions of the FH network outside the 
boundaries of TMAs, the tri-party partnership shall:
    (1) Develop criteria to determine when a CMS is to be implemented 
for a specific FH; and
    (2) Have CMS coverage for the transportation systems providing 
access to and within National Forests, as appropriate, that meet minimum 
CMS criteria.

[[Page 610]]

    (b) The tri-party partnership shall consider the results of the CMS 
when selecting the implementation of strategies that provide the most 
efficient and effective use of existing and future transportation 
facilities.
    (c) In addition to the requirements provided in Sec.  971.204, the 
CMS must meet the following requirements:
    (1) For those FH transportation systems that require a CMS, in both 
metropolitan and non-metropolitan areas, consideration shall be given to 
strategies that reduce private automobile travel and improve existing 
transportation efficiency. Approaches may include the use of alternative 
mode studies and implementation plans as components of the CMS.
    (2) A CMS will:
    (i) Identify and document measures for congestion (e.g., level of 
service);
    (ii) Identify the causes of congestion;
    (iii) Include processes for evaluating the cost and effectiveness of 
alternative strategies to manage congestion;
    (iv) Identify the anticipated benefits of appropriate alternative 
traditional and nontraditional congestion management strategies;
    (v) Determine methods to monitor and evaluate the performance of the 
multi-modal transportation system; and
    (vi) Appropriately consider the following example categories of 
strategies, or combinations of strategies for each area:
    (A) Transportation demand management measures;
    (B) Traffic operational improvements;
    (C) Public transportation improvements;
    (D) ITS technologies; and
    (E) Additional system capacity.



PART 972_FISH AND WILDLIFE SERVICE MANAGEMENT SYSTEMS--Table of Contents



                          Subpart A_Definitions

Sec.
972.100 Purpose.
972.102 Applicability.
972.104 Definitions.

         Subpart B_Fish and Wildlife Service Management Systems

972.200 Purpose.
972.202 Applicability.
972.204 Management systems requirements.
972.206 Funds for establishment, development, and implementation of the 
          systems.
972.208 Federal lands pavement management system (PMS).
972.210 Federal lands bridge management system (BMS).
972.212 Federal lands safety management system (SMS).
972.214 Federal lands congestion management system (CMS).

    Authority: 23 U.S.C. 204, 315; 42 U.S.C. 7410 et seq.; 49 CFR 1.48.

    Source: 69 FR 9487, Feb. 27, 2004, unless otherwise noted.



                          Subpart A_Definitions



Sec.  972.100  Purpose.

    The purpose of this subpart is to provide definitions for terms used 
in this part.



Sec.  972.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.



Sec.  972.104  Definitions.

    Alternative transportation systems means modes of transportation 
other than private vehicles, including methods to improve system 
performance such as transportation demand management, congestion 
management, and intelligent transportation systems. These mechanisms 
help reduce the use of private vehicles and thus improve overall 
efficiency of transportation systems and facilities.
    Elements mean the components of a bridge important from a 
structural, user, or cost standpoint. Examples are decks, joints, 
bearings, girders, abutments, and piers.
    Federal lands bridge management system (BMS) means a systematic 
process used by the Forest Service (FS), the Fish and Wildlife Service 
(FWS) and the National Park Service (NPS) for

[[Page 611]]

analyzing bridge data to make forecasts and recommendations, and 
provides the means by which bridge maintenance, rehabilitation, and 
replacement programs and policies may be effectively considered.
    Federal lands congestion management system (CMS) means a systematic 
process used by the FS, FWS and NPS for managing congestion that 
provides information on transportation system performance and 
alternative strategies for alleviating congestion and enhancing the 
mobility of persons and goods to levels that meet Federal, State and 
local needs.
    Federal Lands Highway Program (FLHP) means a federally funded 
program established in 23 U.S.C. 204 to address transportation needs of 
Federal and Indian lands.
    Federal lands pavement management system (PMS) means a systematic 
process used by the FS, FWS and NPS that provides information for use in 
implementing cost-effective pavement reconstruction, rehabilitation, and 
preventive maintenance programs and policies and that results in 
pavement designed to accommodate current and forecasted traffic in a 
safe, durable, and cost-effective manner.
    Federal lands safety management system (SMS) means a systematic 
process used by the FS, FWS and NPS with the goal of reducing the number 
and severity of traffic accidents by ensuring that all opportunities to 
improve roadway safety are identified, considered, implemented and 
evaluated as appropriate, during all phases of highway planning, design, 
construction, operation and maintenance, by providing information for 
selecting and implementing effective highway safety strategies and 
projects.
    Fish and Wildlife Service transportation plan means the official 
Fish and Wildlife Service-wide multimodal transportation plan that is 
developed through the Fish and Wildlife Service transportation planning 
process pursuant to 23 U.S.C. 204.
    Highway safety means the reduction of traffic accidents, and deaths, 
injuries, and property damage resulting therefrom, on public roads.
    Intelligent transportation system (ITS) means electronics, 
communications, or information processing used singly or in combination 
to improve the efficiency and safety of a surface transportation system.
    Life-cycle cost analysis means an evaluation of costs incurred over 
the life of a project allowing a comparative analysis between or among 
various alternatives. Life-cycle cost analysis promotes consideration of 
total cost, to include maintenance and operation expenditures. 
Comprehensive life-cycle costs analysis includes all economic variables 
essential to the evaluation: User costs such as delay and safety costs 
associated with maintenance and rehabilitation projects, agency capital 
cost, and life-cycle maintenance costs.
    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process required by 23 U.S.C. 134 
and 49 U.S.C. 5303-5306 must be carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decision-making for the metropolitan planning 
area pursuant to 23 U.S.C. 134 and 49 U.S.C. 5303.
    National Wildlife Refuge System (Refuge System) means all the lands 
and waters reported by the FWS as being part of the National Wildlife 
Refuge System in the annual ``Report of Lands Under Control of the U.S. 
FWS.'' \1\ Included in the Refuge System are those lands that are 
generally known as refuges, waterfowl production areas, wetland 
management districts, and coordination areas.
---------------------------------------------------------------------------

    \1\ ``Report of Lands under Control of the U.S. FWS,'' U.S. FWS, 
(published annually on September 30). A free copy is available from the 
U.S. FWS, Division of Realty, 4401 N. Fairfax Drive, Suite 622, 
Arlington, VA 22203; telephone: (703) 358-1713.
---------------------------------------------------------------------------

    Operations means those activities associated with managing, 
controlling, and regulating highway traffic.
    Refuge road means a public road that provides access to or is 
located within a unit of the National Wildlife Refuge System and for 
which title and maintenance responsibilities are vested in the United 
States Government.
    Refuge Roads Program means the funds allocated each fiscal year, as 
described in 23 U.S.C. 202(e) and 23 U.S.C. 204(k).

[[Page 612]]

    Refuge Roads transportation improvement program (RRTIP) means a 
staged, multiyear, multimodal program of transportation projects for the 
Refuge Roads Program consistent with the Fish and Wildlife Service 
transportation plan and planning processes pursuant to 23 U.S.C. 204(a) 
and (k).
    Secretary means the Secretary of Transportation.
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation facilities means roads, streets, bridges, parking 
areas, transit vehicles, and other related transportation 
infrastructure.
    Transportation Management Area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials), and officially designated by the 
Administrators of the Federal Highway Administration and the Federal 
Transit Administration. The TMA designation applies to the entire 
metropolitan planning area(s).



         Subpart B_Fish and Wildlife Service Management Systems



Sec.  972.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 204 which 
requires the Secretary and the Secretary of each appropriate Federal 
land management agency, to the extent appropriate, to develop by rule 
safety, bridge, pavement, and congestion management systems for roads 
funded under the FLHP.



Sec.  972.202  Applicability.

    The provisions in this subpart are applicable to the Fish and 
Wildlife Service (FWS) and the Federal Highway Administration (FHWA) 
that are responsible for satisfying these requirements for management 
systems pursuant to 23 U.S.C. 204.



Sec.  972.204  Management systems requirements.

    (a) The FWS shall develop, establish and implement the management 
systems as described in this subpart. The FWS may tailor the management 
systems to meet the FWS goals, policies, and needs using professional 
engineering and planning judgment to determine the required nature and 
extent of systems coverage consistent with the intent and requirements 
of this rule.
    (b) The FWS and the FHWA shall develop an implementation plan for 
each of the management systems. These plans will include, but are not 
limited to, the following: Overall goals and policies concerning the 
management systems, each agency's responsibilities for developing and 
implementing the management systems, implementation schedule, data 
sources, and cost estimate. The FHWA will provide the FWS ongoing 
technical engineering support for the development, implementation, and 
maintenance of the management systems.
    (c) The FWS shall develop and implement procedures for the 
development, establishment, implementation and operation of management 
systems. The procedures shall include:
    (1) A process for ensuring the results of any of the management 
systems are considered in the development of FWS transportation plans 
and transportation improvement programs and in making project selection 
decisions under 23 U.S.C. 204;
    (2) A process for the analyses and coordination of all management 
system outputs to systematically operate, maintain, and upgrade existing 
transportation assets cost-effectively;
    (3) A description of each management system;
    (4) A process to operate and maintain the management systems and 
their associated databases; and
    (5) A process for data collection, processing, analysis and updating 
for each management system.
    (d) All management systems will use databases with a geographical 
reference system that can be used to geolocate all database information.
    (e) Existing data sources may be used by the FWS to the maximum 
extent possible to meet the management system requirements.

[[Page 613]]

    (f) The FWS shall develop an appropriate means to evaluate the 
effectiveness of the management systems in enhancing transportation 
decision-making and improving the overall efficiency of the affected 
federally owned transportation systems and facilities. This evaluation 
is to be conducted periodically, preferably as part of the comprehensive 
resource conservation planning process.
    (g) The management systems shall be operated so investment decisions 
based on management system outputs can be accomplished at the regional 
level.



Sec.  972.206  Funds for establishment, development, 
and implementation of the systems.

    The Refuge Roads program funds may be used for development, 
establishment, and implementation of the management systems. These funds 
are to be administered in accordance with the procedures and 
requirements applicable to the funds.



Sec.  972.208  Federal lands pavement management system (PMS).

    In addition to the requirements provided in Sec.  972.204, the PMS 
must meet the following requirements:
    (a) The FWS shall, at a minimum, have PMS coverage of all paved 
refuge roads and other associated facilities, as appropriate, funded 
under the FLHP.
    (b) The PMS may be based on the concepts described in the AASHTO's 
``Pavement Management Guide.''\2\
---------------------------------------------------------------------------

    \2\ ``Pavement Management Guide,'' AASHTO, 2001, is available for 
inspection as prescribed at 49 CFR part 7. It is also available from the 
American Association of State Highway and Transportation Officials 
(AASHTO), Publication Order Dept., P.O. Box 96716, Washington, DC 20090-
6716 or online at http://www.transportation.org/publications/
bookstore.nsf.
---------------------------------------------------------------------------

    (c) The PMS may be utilized at various levels of technical 
complexity depending on the nature of the pavement network. These 
different levels may depend on mileages, functional classes, volumes, 
loadings, usage, surface type, or other criteria the FWS deems 
appropriate.
    (d) The PMS shall be designed to fit the FWS goals, policies, 
criteria, and needs using the following components, at a minimum, as a 
basic framework for a PMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the PMS. The minimum PMS database shall include:
    (i) An inventory of the physical pavement features including the 
number of lanes, length, width, surface type, functional classification, 
and shoulder information;
    (ii) A history of project dates and types of construction, 
reconstruction, rehabilitation, and preventive maintenance. If some of 
the inventory or historic data are difficult to establish, it may be 
collected when preservation or reconstruction work is performed;
    (iii) A condition survey that includes ride, distress, rutting, and 
surface friction (as appropriate);
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) Data for estimating the costs of actions.
    (2) A system for applying network level analytical procedures that 
are capable of analyzing data for all FWS managed transportation 
facilities in the inventory or any subset. The minimum analyses shall 
include:
    (i) A pavement condition analysis that includes ride, distress, 
rutting, and surface friction (as appropriate);
    (ii) A pavement performance analysis that includes present and 
predicted performance and an estimate of the remaining service life 
(performance and remaining service life to be developed with time); and
    (iii) An investment analysis that:
    (A) Identifies alternative strategies to improve pavement 
conditions;
    (B) Estimates costs of any pavement improvement strategy;
    (C) Determines maintenance, repair, and rehabilitation strategies 
for pavements using life-cycle cost analysis or a comparable procedure;
    (D) Provides short and long term budget forecasting; and
    (E) Recommends optimal allocation of limited funds by developing a 
prioritized list of candidate projects over a predefined planning 
horizon (both short and long term).

[[Page 614]]

    (e) For any FWS managed transportation facilities in the inventory 
or subset thereof, PMS reporting requirements shall include, but are not 
limited to, percentage of roads in good, fair, and poor condition.



Sec.  972.210  Federal lands bridge management system (BMS).

    In addition to the requirements provided in Sec.  972.204, the BMS 
must meet the following requirements:
    (a) The FWS shall have a BMS for bridges which are under the FWS 
jurisdiction, funded under the FLHP, and required to be inventoried and 
inspected under 23 CFR 650, subpart C, National Bridge Inspection 
Standards (NBIS).
    (b) The BMS shall be designed to fit the FWS goals, policies, 
criteria, and needs using the following components, as a minimum, as a 
basic framework for a BMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the BMS. The minimum BMS database shall include:
    (i) The inventory data required by the NBIS (23 CFR 650, subpart C);
    (ii) Data characterizing the severity and extent of deterioration of 
bridge elements;
    (iii) Data for estimating the cost of improvement actions;
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) A history of conditions and actions taken on each bridge, 
excluding minor or incidental maintenance.
    (2) Analytical procedures that are capable of analyzing data for all 
bridges in the inventory or any subset. These procedures include, as 
appropriate, such factors as bridge condition, recommended repairs/
replacement and estimated costs, prediction of the estimated remaining 
life of the bridge, development of a prioritized list of candidate 
projects over a specified planning horizon, and budget forecasting.
    (c) For any bridge in the inventory or subset thereof, BMS reporting 
requirements shall include, but are not limited to, percentage of non-
deficient bridges.



Sec.  972.212  Federal lands safety management system (SMS).

    In addition to the requirements provided in Sec.  972.204, the SMS 
must meet the following requirements:
    (a) The FWS shall have an SMS for all transportation facilities 
serving the Refuge System, as appropriate, funded under the FLHP.
    (b) The FWS SMS may be based on the guidance in ``Safety Management 
Systems: Good Practices for Development and Implementation.''\3\
---------------------------------------------------------------------------

    \3\ ``Safety Management Systems: Good Practices for Development and 
Implementation,'' FHWA and NHTSA, May 1996, may be obtained at the FHWA, 
Office of Safety, 1200 New Jersey Avenue, SE., Washington, DC 20590, or 
electronically at http://safety.fhwa.dot.gov/media/documents.htm. It is 
available for inspection and copying as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------

    (c) The FWS shall utilize the SMS to ensure that safety is 
considered and implemented as appropriate in all phases of 
transportation system planning, design, construction, maintenance, and 
operations.
    (d) The SMS may be utilized at various levels of complexity 
depending on the nature of the transportation facility involved.
    (e) The SMS shall be designed to fit the FWS goals, policies, 
criteria, and needs using, as a minimum, the following components as a 
basic framework for a SMS:
    (1) An ongoing program for the collection, maintenance and reporting 
of a database that includes:
    (i) Accident records with sufficient detail for analysis such as 
accident type using standard reporting descriptions (e.g., right-angle, 
rear-end, head-on, pedestrian-related, etc.), location, description of 
event, severity, weather and cause;
    (ii) An inventory of safety appurtenances such as signs, 
delineators, and guardrails (including terminals);
    (iii) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (iv) Accident rates by customary criteria such as location, roadway 
classification, and vehicle miles of travel.
    (2) Development, establishment and implementation of procedures for:

[[Page 615]]

    (i) Routinely maintaining and upgrading safety appurtenances 
including highway-rail crossing warning devices, signs, highway 
elements, and operational features where appropriate; and
    (ii) Identifying and investigating hazardous or potentially 
hazardous transportation system safety problems, roadway locations and 
features, then establishing countermeasures and setting priorities to 
correct the identified hazards and potential hazards.
    (3) A process for communication, coordination, and cooperation among 
the organizations responsible for the roadway, human, and vehicle safety 
elements; and
    (4) Development and implementation of public information and 
education activities on safety needs, programs, and countermeasures 
which affect safety on the FWS transportation systems.
    (f) While the SMS applies to appropriate transportation facilities 
serving the Refuge System funded under the FLHP, the extent of system 
requirements (e.g., data collection, analyses, and standards) for low 
volume roads may be tailored to be consistent with the functional 
classification of the roads. However, sufficient detail should be 
included for each functional classification to provide adequate 
information for use in making safety decisions in the RR program.

[69 FR 9487, Feb. 27, 2004, as amended at 74 FR 28442, June 16, 2009]



Sec.  972.214  Federal lands congestion management system (CMS).

    (a) For purposes of this section, congestion means the level at 
which transportation system performance is no longer acceptable due to 
traffic interference. For those FWS transportation systems that require 
a CMS, in both metropolitan and non-metropolitan areas, consideration 
shall be given to strategies that reduce private automobile travel and 
improve existing transportation system efficiency. Approaches may 
include the use of alternate mode studies and implementation plans as 
components of the CMS. The FWS shall consider the results of the CMS 
when selecting the implementation of strategies that provide the most 
efficient and effective use of existing and future transportation 
facilities, and alleviate congestion.
    (b) In addition to the requirements provided in Sec.  972.204, the 
CMS must meet the following requirements:
    (1) For portions of the FWS transportation system within TMAs, the 
FWS transportation planning process shall include a CMS that meets the 
requirements of this section. By agreement between the TMA and the FWS, 
the TMA's CMS coverage may include the transportation facilities serving 
the Refuge System, as appropriate. Through this agreement(s), the FWS 
may meet the requirements of this section.
    (2) If congestion exists at a FWS facility within the boundaries of 
a TMA, and the TMA's CMS does not provide coverage of the portions of 
the FWS transportation facilities experiencing congestion, the FWS shall 
develop a separate CMS to cover those facilities.
    (3) For portions of the FWS transportation system outside the 
boundaries of TMAs, the FWS shall:
    (i) Develop criteria to determine when a CMS is to be implemented 
for a specific transportation system; and
    (ii) Have CMS coverage for all transportation facilities serving the 
Refuge System, as appropriate, funded through the FLHP that meet minimum 
CMS needs criteria.
    (4) A CMS will:
    (i) Identify and document measures for congestion (e.g., level of 
service);
    (ii) Identify the causes of congestion;
    (iii) Include processes for evaluating the cost and effectiveness of 
alternative strategies to manage congestion;
    (iv) Identify the anticipated benefits of appropriate alternative 
traditional and nontraditional congestion management strategies;
    (v) Determine methods to monitor and evaluate the performance of the 
multi-modal transportation system;
    (vi) Appropriately consider the following example categories of 
strategies, or combinations of strategies for each area:
    (A) Transportation demand management measures;
    (B) Traffic operational improvements;

[[Page 616]]

    (C) Public transportation improvements;
    (D) ITS technologies;
    (E) Additional system capacity; and
    (vii) Provide information supporting the implementation of actions.



PART 973_MANAGEMENT SYSTEMS PERTAINING TO THE BUREAU OF INDIAN AFFAIRS 
AND THE INDIAN RESERVATION ROADS PROGRAM--Table of Contents



                          Subpart A_Definitions

Sec.
973.100 Purpose.
973.102 Applicability.
973.104 Definitions.

          Subpart B_Bureau of Indian Affairs Management Systems

973.200 Purpose.
973.202 Applicability.
973.204 Management systems requirements.
973.206 Funds for establishment, development, and implementation of the 
          systems.
973.208 Indian lands pavement management system (PMS).
973.210 Indian lands bridge management system (BMS).
973.212 Indian lands safety management system (SMS).
973.214 Indian lands congestion management system (CMS).

    Authority: 23 U.S.C. 204, 315, 42 U.S.C. 7410 et seq.; 49 CFR 1.48.

    Source: 69 FR 9499, Feb. 27, 2004, unless otherwise noted.



                          Subpart A_Definitions



Sec.  973.100  Purpose.

    The purpose of this subpart is to provide definitions for terms used 
in this part.



Sec.  973.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.



Sec.  973.104  Definitions.

    Alternative transportation systems means modes of transportation 
other than private vehicles, including methods to improve system 
performance such as transportation demand management, congestion 
management, and intelligent transportation systems. These mechanisms 
help reduce the use of private vehicles and thus improve overall 
efficiency of transportation systems and facilities.
    Elements means the components of a bridge important from a 
structural, user, or cost standpoint. Examples are decks, joints, 
bearings, girders, abutments, and piers.
    Federal Lands Highway Program (FLHP) means a federally funded 
program established in 23 U.S.C. 204 to address transportation needs of 
Federal and Indian lands.
    Indian lands bridge management system (BMS) means a systematic 
process used by the Bureau of Indian Affairs (BIA) or Indian Tribal 
Governments (ITGs) for analyzing bridge data to make forecasts and 
recommendations, and provides the means by which bridge maintenance, 
rehabilitation, and replacement programs and policies may be efficiently 
considered.
    Indian lands congestion management system (CMS) means a systematic 
process used by the BIA or ITGs for managing congestion that provides 
information on transportation system performance and alternative 
strategies for alleviating congestion and enhancing the mobility of 
persons and goods to levels that meet Federal, State and local needs.
    Indian lands pavement management system (PMS) means a systematic 
process used by the BIA or ITGs that provides information for use in 
implementing cost-effective pavement reconstruction, rehabilitation, and 
preventive maintenance programs and policies, and that results in 
pavement designed to accommodate current and forecasted traffic in a 
safe, durable, and cost-effective manner.
    Indian lands safety management system (SMS) means a systematic 
process used by the BIA or ITGs with the goal of reducing the number and 
severity of traffic accidents by ensuring that all opportunities to 
improve roadway safety are identified, considered, implemented and 
evaluated, as appropriate, during all phases of highway planning, 
design, construction, operation and maintenance by providing information 
for selecting and implementing effective highway safety strategies and 
projects.

[[Page 617]]

    Indian reservation road (IRR) means a public road that is located 
within or provides access to an Indian reservation or Indian trust land 
or restricted Indian land that is not subject to fee title alienation 
without the approval of the Federal government, or Indian and Alaska 
Native villages, groups, or communities in which Indians and Alaskan 
Natives reside, whom the Secretary of the Interior has determined are 
eligible for services generally available to Indians under Federal laws 
specifically applicable to Indians.
    Indian Reservation Roads (IRR) Program means a part of the FLHP 
established in 23 U.S.C. 204 to address the transportation needs of 
federally recognized ITGs.
    Indian Reservation Roads transportation improvement program (IRRTIP) 
means a multi-year, financially constrained list by year, State, and 
tribe of IRR-funded projects selected by ITGs that are programmed for 
construction in the next 3 to 5 years.
    Indian Reservation Roads transportation plan means a document 
setting out a tribe's long-range transportation priorities and needs. 
The IRR transportation plan, which can be developed by either the tribe 
or the BIA on behalf of that tribe, is developed through the IRR 
transportation planning process pursuant to 23 U.S.C. 204 and 25 CFR 
part 170.
    Indian Tribal Government (ITG) means a duly formed governing body of 
an Indian or Alaska Native Tribe, Band, Nation, Pueblo, Village, or 
Community that the Secretary of the Interior acknowledges to exist as an 
Indian tribe pursuant to the Federally Recognized Indian Tribe List Act 
of 1994, 25 U.S.C. 479a.
    Indian tribe (tribe) means any Indian tribe, nation, band, pueblo, 
rancheria, colony, or community, including any Alaska Native Village, or 
regional or village corporation as defined or established under the 
Alaska Native Claims Settlement Act which is federally recognized by the 
U.S. government for special programs and services provided by the 
Secretary of the Interior to Indians because of their status as Indians.
    Intelligent transportation system (ITS) means electronics, 
communications, or information processing used singly or in combination 
to improve the efficiency and safety of a surface transportation system.
    Life-cycle cost analysis means an evaluation of costs incurred over 
the life of a project allowing a comparative analysis between or among 
various alternatives. Life-cycle cost analysis promotes consideration of 
total cost, to include maintenance and operation expenditures. 
Comprehensive life-cycle cost analysis includes all economic variables 
essential to the evaluation: Safety costs associated with maintenance 
and rehabilitation projects, agency capital cost, and life-cycle 
maintenance costs.
    Operations means those activities associated with managing, 
controlling, and regulating highway traffic.
    Secretary means the Secretary of Transportation.
    Serviceability means the degree to which a bridge provides 
satisfactory service from the point of view of its users.
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation facilities means roads, streets, bridges, parking 
areas, transit vehicles, and other related transportation 
infrastructure.



          Subpart B_Bureau of Indian Affairs Management Systems



Sec.  973.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 204 which 
requires the Secretary and the Secretary of each appropriate Federal 
land management agency to the extent appropriate, to develop by rule 
safety, bridge, pavement, and congestion management systems for roads 
funded under the FLHP.



Sec.  973.202  Applicability.

    The provisions in this subpart are applicable to the Bureau of 
Indian Affairs (BIA), the Federal Highway Administration (FHWA), and the 
Indian Tribal Governments (ITGs) that are responsible for satisfying 
these requirements for management systems pursuant to 23 U.S.C. 204.

[[Page 618]]



Sec.  973.204  Management systems requirements.

    (a) The BIA, in consultation with the tribes, shall develop, 
establish and implement nationwide pavement, bridge, and safety 
management systems for federally and tribally owned IRRs. The BIA may 
tailor the nationwide management systems to meet the agency's goals, 
policies, and needs, after considering the input from the tribes, and 
using professional engineering and planning judgment to determine the 
required nature and extent of systems coverage consistent with the 
intent and requirements of this rule.
    (b) The BIA and the FHWA, in consultation with the tribes, shall 
develop an implementation plan for each of the nationwide management 
systems. These plans will include, but are not limited to, the 
following: Overall goals and policies concerning the nationwide 
management systems, each agency's responsibilities for developing and 
implementing the nationwide management systems, implementation schedule, 
data sources, including the need to accommodate State and local data, 
and cost estimate.
    (c) Indian tribes may develop, establish, and implement tribal 
management systems under a self-determination contract or self-
governance annual funding agreement. The tribe may tailor the management 
systems to meet its goals, policies, and needs, using professional 
engineering and planning judgment to determine the required nature and 
extent of systems coverage consistent with the intent and requirements 
of this rule.
    (d) The BIA, in consultation with the tribes, shall develop criteria 
for cases in which tribal management systems are not appropriate.
    (e) The BIA, in consultation with the tribes, or the tribes under a 
self-determination contract or self-governance annual funding agreement, 
may incorporate data provided by States and local governments into the 
nationwide or tribal management systems, as appropriate, for State and 
locally owned IRRs.
    (f) The BIA, in consultation with the tribes, shall develop and 
implement procedures for the development, establishment, implementation 
and operation of nationwide management systems. If a tribe develops 
tribal management systems, the tribe shall develop and implement 
procedures for the development, establishment, implementation and 
operation of tribal management systems. The procedures shall include:
    (1) A description of each management system;
    (2) A process to operate and maintain the management systems and 
their associated databases;
    (3) A process for data collection, processing, analysis and updating 
for each management system;
    (4) A process for ensuring the results of the management systems are 
considered in the development of IRR transportation plans and 
transportation improvement programs and in making project selection 
decisions under 23 U.S.C. 204; and
    (5) A process for the analysis and coordination of all management 
systems outputs to systematically operate, maintain, and upgrade 
existing transportation assets cost-effectively;
    (g) All management systems shall use databases with a common or 
coordinated reference system that can be used to geolocate all database 
information.
    (h) Existing data sources may be used by the BIA and the tribes to 
the maximum extent possible to meet the management system requirements.
    (i) A nationwide congestion management system is not required. The 
BIA and the FHWA, in consultation with the tribes, shall develop 
criteria for determining when congestion management systems are required 
for BIA or tribal transportation facilities providing access to and 
within the Indian reservations. Either the tribes or the BIA, in 
consultation with the tribes, shall develop, establish and implement 
congestion management systems for the transportation facilities that 
meet the criteria.
    (j) The BIA shall develop an appropriate means to evaluate the 
effectiveness of the nationwide management systems in enhancing 
transportation investment decisions and improving the overall efficiency 
of the affected transportation systems and facilities.

[[Page 619]]

This evaluation is to be conducted periodically, preferably as part of 
the BIA planning process to assist the FHWA in evaluating the efficiency 
and effectiveness of the management systems as a component of the IRR 
program, and may include consultation with the tribes, as appropriate.
    (k) The management systems shall be operated so investment decisions 
based on management system outputs can be accomplished at the BIA region 
and tribal level and can be utilized throughout the transportation 
planning process.



Sec.  973.206  Funds for establishment, development, 
and implementation of the systems.

    The IRR program management funds may be used to accomplish 
nationwide management system activities. For tribal management system 
activities, the IRR two percent tribal transportation planning or 
construction funds may be used. (Refer to 23 U.S.C. 204(b) and 204(j)). 
These funds are to be administered in accordance with the procedures and 
requirements applicable to the funds.



Sec.  973.208  Indian lands pavement management system (PMS).

    In addition to the requirements provided in Sec.  973.204, the PMS 
must meet the following requirements:
    (a) The BIA shall have PMS coverage for all federally and tribally 
owned, paved IRRs included in the IRR inventory.
    (b) Where a tribe collects data for the tribe's PMS, the tribe shall 
provide the data to the BIA to be used in the nationwide PMS.
    (c) The nationwide and tribal PMSs may be based on the concepts 
described in the AASHTO's ``Pavement Management Guide.'' \1\
---------------------------------------------------------------------------

    \1\ ``Pavement Management Guide,'' AASHTO, 2001, is available for 
inspection as prescribed at 49 CFR part 7. It is also available from the 
American Association of State Highway and Transportation Officials 
(AASHTO), Publication Order Dept., P.O. Box 96716, Washington, DC 20090-
6716 or online at http://www.transportation.org/publications/
bookstore.nsf.
---------------------------------------------------------------------------

    (d) The nationwide and tribal PMSs may be utilized at various levels 
of technical complexity depending on the nature of the pavement network. 
These different levels may depend on mileage, functional classes, 
volumes, loading, usage, surface type, or other criteria the BIA and 
ITGs deem appropriate.
    (e) A PMS shall be designed to fit the BIA's or tribes' goals, 
policies, criteria, and needs using the following components, at a 
minimum, as a basic framework for a PMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the PMS. The minimum PMS database shall include:
    (i) An inventory of the physical pavement features including the 
number of lanes, length, width, surface type, functional classification, 
and shoulder information;
    (ii) A history of project dates and types of construction, 
reconstruction, rehabilitation, and preventive maintenance. If some of 
the inventory or historic data is difficult to establish, it may be 
collected when preservation or reconstruction work is performed;
    (iii) A condition survey that includes ride, distress, rutting, and 
surface friction (as appropriate);
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) Data for estimating the costs of actions.
    (2) A system for applying network level analytical procedures that 
are capable of analyzing data for all federally and tribally owned IRR 
in the inventory or any subset. The minimum analyses shall include:
    (i) A pavement condition analysis that includes ride, distress, 
rutting, and surface friction (as appropriate);
    (ii) A pavement performance analysis that includes present and 
predicted performance and an estimate of the remaining service life 
(performance and remaining service life to be developed with time); and
    (iii) An investment analysis that:
    (A) Identifies alternative strategies to improve pavement 
conditions;
    (B) Estimates costs of any pavement improvement strategy;

[[Page 620]]

    (C) Determines maintenance, repair, and rehabilitation strategies 
for pavements using life cycle cost analysis or a comparable procedure;
    (D) Performs short and long term budget forecasting; and
    (E) Recommends optimal allocation of limited funds by developing a 
prioritized list of candidate projects over a predefined planning 
horizon (both short and long term).
    (f) For any roads in the inventory or subset thereof, PMS reporting 
requirements shall include, but are not limited to, percentage of roads 
in good, fair, and poor condition.



Sec.  973.210  Indian lands bridge management system (BMS).

    In addition to the requirements provided in Sec.  973.204, the BMS 
must meet the following requirements:
    (a) The BIA shall have a nationwide BMS for the federally and 
tribally owned IRR bridges that are funded under the FLHP and required 
to be inventoried and inspected under 23 CFR 650, subpart C, National 
Bridge Inspection Standards (NBIS).
    (b) Where a tribe collects data for the tribe's BMS, the tribe shall 
provide the data to the BIA to be used in the nationwide BMS.
    (c) The nationwide and tribal BMSs may be based on the concepts 
described in the AASHTO's ``Guidelines for Bridge Management Systems.'' 
\2\
---------------------------------------------------------------------------

    \2\ ``Guidelines for Bridge Management Systems,'' AASHTO, 1993, is 
available for inspection as prescribed at 49 CFR part 7. It is also 
available from the American Association of State Highway and 
Transportation Officials (AASHTO), Publication Order Dept., P.O. Box 
96716, Washington, DC 20090-6716 or online at http://
www.transportation.org/publications/bookstore.nsf.
---------------------------------------------------------------------------

    (d) A BMS shall be designed to fit the BIA's or tribe's goals, 
policies, criteria, and needs using the following components, as a 
minimum, as a basic framework for a BMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the BMS. The minimum BMS database shall include:
    (i) The inventory data described by the NBIS (23 CFR part 650, 
subpart C);
    (ii) Data characterizing the severity and extent of deterioration of 
bridge components;
    (iii) Data for estimating the cost of improvement actions;
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) A history of conditions and actions taken on each bridge, 
excluding minor or incidental maintenance.
    (2) A systematic procedure for applying network level analytical 
procedures that are capable of analyzing data for all bridges in the 
inventory or any subset. The minimum analyses shall include:
    (i) A prediction of performance and estimate of the remaining 
service life of structural and other key elements of each bridge, both 
with and without intervening actions; and
    (ii) A recommendation for optimal allocation of limited funds by 
developing a prioritized list of candidate projects over a predefined 
planning horizon (both short and long term).
    (e) The BMS may include the capability to perform an investment 
analysis (as appropriate, considering size of structure, traffic volume, 
and structural condition). The investment analysis may include the 
ability to:
    (1) Identify alternative strategies to improve bridge condition, 
safety and serviceability;
    (2) Estimate the costs of any strategies ranging from maintenance of 
individual elements to full bridge replacement;
    (3) Determine maintenance, repair, and rehabilitation strategies for 
bridge elements using life cycle cost analysis or a comparable 
procedure; and
    (4) Perform short and long term budget forecasting.
    (f) For any bridge in the inventory or subset thereof, BMS reporting 
requirements shall include, but are not limited to, percentage of non-
deficient bridges.



Sec.  973.212  Indian lands safety management system (SMS).

    In addition to the requirements provided in Sec.  973.204, the SMS 
must meet the following requirements:
    (a) The BIA shall have a nationwide SMS for all federally and 
tribally

[[Page 621]]

owned IRR and public transit facilities included in the IRR inventory.
    (b) Where a tribe collects data for the tribe's SMS, the tribe shall 
provide the data to the BIA to be used in the nationwide SMS.
    (c) The nationwide and tribal SMS may be based on the guidance in 
``Safety Management Systems: Good Practices for Development and 
Implementation.'' \3\
---------------------------------------------------------------------------

    \3\ ``Safety Management Systems: Good Practices for Development and 
Implementation,'' FHWA and NHTSA, May 1996, may be obtained at the FHWA, 
Office of Safety, 1200 New Jersey Avenue, SE., Washington, DC 20590, or 
electronically at http://safety.fhwa.dot.gov/media/documents.htm. It is 
available for inspection and copying as prescribed at 49 CFR part 7.
---------------------------------------------------------------------------

    (d) The BIA and ITGs shall utilize the SMSs to ensure that safety is 
considered and implemented as appropriate in all phases of 
transportation system planning, design, construction, maintenance, and 
operations.
    (e) The nationwide and tribal SMSs may be utilized at various levels 
of complexity depending on the nature of the IRR facility involved.
    (f) An SMS shall be designed to fit the BIA's or ITG's goals, 
policies, criteria, and needs using, as a minimum, the following 
components as a basic framework for an SMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the SMS. The minimum SMS database shall include:
    (i) Accident records;
    (ii) An inventory of safety hardware including signs, guardrails, 
and lighting appurtenances (including terminals); and
    (iii) Traffic information including volume and vehicle 
classification (as appropriate).
    (2) Development, establishment and implementation of procedures for:
    (i) Routinely maintaining and upgrading safety appurtenances 
including highway-rail crossing warning devices, signs, highway 
elements, and operational features where appropriate;
    (ii) Routinely maintaining and upgrading safety features of transit 
facilities;
    (iii) Identifying and investigating hazardous or potentially 
hazardous transportation system safety problems, roadway locations and 
features; and
    (iv) Establishing countermeasures and setting priorities to correct 
the identified hazards and potential hazards.
    (3) A process for communication, coordination, and cooperation among 
the organizations responsible for the roadway, human, and vehicle safety 
elements;
    (4) Development and implementation of public information and 
education activities on safety needs, programs, and countermeasures 
which affect safety on the BIA's and ITG's transportation systems; and
    (5) Identification of skills, resources and training needs to 
implement safety programs for highway and transit facilities and the 
development of a program to carry out necessary training.
    (g) While the SMS applies to all federally and tribally owned IRRs 
in the IRR inventory, the extent of system requirements (e.g., data 
collection, analyses, and standards) for low volume roads may be 
tailored to be consistent with the functional classification of the 
roads. However, adequate requirements should be included for each BIA 
functional classification to provide for effective inclusion of safety 
decisions in the administration of transportation by the BIA and ITGs.
    (h) For any transportation facilities in the IRR inventory or subset 
thereof, SMS reporting requirements shall include, but are not limited 
to, the following:
    (1) Accident types such as right-angle, rear-end, left turn, head-
on, sideswipe, pedestrian-related, run-off-road, fixed object, and 
parked vehicle;
    (2) Accident severity per year measured as number of accidents with 
fatalities, injuries, and property damage only; and
    (3) Accident rates measured as number of accidents (fatalities, 
injuries, and property damage only) per 100 million vehicle miles of 
travel, number of accidents (fatalities, injuries, and property damage 
only) per 1000 vehicles, or

[[Page 622]]

number of accidents (fatalities, injuries, and property damage only) per 
mile.

[69 FR 9499, Feb. 27, 2004, as amended at 74 FR 28442, June 16, 2009]



Sec.  973.214  Indian lands congestion management system (CMS).

    (a) For purposes of this section, congestion means the level at 
which transportation system performance is no longer acceptable due to 
traffic interference. The BIA and the FHWA, in consultation with the 
tribes, shall develop criteria to determine when a CMS is to be 
implemented for a specific federally or tribally owned IRR 
transportation system that is experiencing congestion. Either the tribe 
or the BIA, in consultation with the tribe, shall consider the results 
of the CMS in the development of the IRR transportation plan and the 
IRRTIP, when selecting strategies for implementation that provide the 
most efficient and effective use of existing and future transportation 
facilities to alleviate congestion and enhance mobility.
    (b) In addition to the requirements provided in Sec.  973.204, the 
CMS must meet the following requirements:
    (1) For those BIA or tribal transportation systems that require a 
CMS, consideration shall be given to strategies that reduce private 
automobile travel and improve existing transportation system efficiency. 
Approaches may include the use of alternate mode studies and 
implementation plans as components of the CMS.
    (2) A CMS will:
    (i) Identify and document measures for congestion (e.g., level of 
service);
    (ii) Identify the causes of congestion;
    (iii) Include processes for evaluating the cost and effectiveness of 
alternative strategies;
    (iv) Identify the anticipated benefits of appropriate alternative 
traditional and nontraditional congestion management strategies;
    (v) Determine methods to monitor and evaluate the performance of the 
multi-modal transportation system; and
    (vi) Appropriately consider the following example categories of 
strategies, or combinations of strategies for each area:
    (A) Transportation demand management measures;
    (B) Traffic operational improvements;
    (C) Public transportation improvements;
    (D) ITS technologies; and
    (E) Additional system capacity.

                        PARTS 974	999 [RESERVED]

[[Page 623]]



 CHAPTER II--NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION AND FEDERAL 
          HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------

       SUBCHAPTER A--PROCEDURES FOR STATE HIGHWAY SAFETY PROGRAMS
Part                                                                Page
1200            Uniform procedures for State highway safety 
                    grant programs..........................         624
                        SUBCHAPTER B--GUIDELINES
1204-1206

 [Reserved]

1208            National minimum drinking age...............         664
1210            Operation of motor vehicles by intoxicated 
                    minors..................................         665
1215            Use of safety belts--compliance and 
                    transfer-of-funds procedures............         667
1225            Operation of motor vehicles by intoxicated 
                    persons.................................         669
1235            Uniform system for parking for persons with 
                    disabilities............................         673
1240            Safety incentive grants for use of seat 
                    belts--allocations based on seat belt 
                    use rates...............................         678
                    SUBCHAPTER C--GENERAL PROVISIONS
1250-1252

 [Reserved]

              SUBCHAPTER D--TRANSFER AND SANCTION PROGRAMS
1270            Open container laws.........................         684
1275            Repeat intoxicated driver laws..............         686
1276-1299

 [Reserved]

[[Page 624]]



        SUBCHAPTER A_PROCEDURES FOR STATE HIGHWAY SAFETY PROGRAMS





PART 1200_UNIFORM PROCEDURES FOR STATE HIGHWAY SAFETY GRANT PROGRAMS--
Table of Contents



                            Subpart A_General

Sec.
1200.1 Purpose.
1200.2 Applicability.
1200.3 Definitions.
1200.4 State Highway Safety Agency--Authority and functions.
1200.5 Due dates--Interpretation.

                      Subpart B_Highway Safety Plan

1200.10 General.
1200.11 Contents.
1200.12 Due date for submission.
1200.13 Special funding conditions for Section 402 grants.
1200.14 Review and approval procedures.
1200.15 Apportionment and obligation of Federal funds.

            Subpart C_National Priority Safety Program Grants

1200.20 General.
1200.21 Occupant protection grants.
1200.22 State traffic safety information system improvements grants.
1200.23 Impaired driving countermeasures grants.
1200.24 Distracted driving grants.
1200.25 Motorcyclist safety grants.
1200.26 State graduated driver licensing grants.

          Subpart D_Administration of the Highway Safety Grants

1200.30 General.
1200.31 Equipment.
1200.32 Changes--Approval of the Approving Official.
1200.33 Vouchers and project agreements.
1200.34 Program income.
1200.35 Annual report.
1200.36 Appeals of written decision by Approving Official.

                     Subpart E_Annual Reconciliation

1200.40 Expiration of the Highway Safety Plan.
1200.41 Disposition of unexpended balances.
1200.42 Post-grant adjustments.
1200.43 Continuing requirements.

                         Subpart F_Noncompliance

1200.50 General.
1200.51 Sanctions--Reduction of apportionment.

Subpart G_Special Provisions for Fiscal Year 2013 Highway Safety Grants 
          and Highway Safety Grants Under Prior Authorizations

1200.60 Fiscal year 2013 Section 402 grants.
1200.61 Fiscal year 2013 Section 405 grants.
1200.62 Pre-2013 fiscal year grants.

Appendix A to Part 1200--Certification and Assurances for Highway Safety 
          Grants (23 U.S.C. Chapter 4)
Appendix B to Part 1200--Highway Safety Program Cost Summary (HS-217)
Appendix C to Part 1200--Assurances for Teen Traffic Safety Program
Appendix D to Part 1200--Certification and Assurances for National 
          Priority Safety Program Grants (23 U.S.C. 405)
Appendix E to Part 1200--Participation by Political Subdivisions
Appendix F to Part 1200--Planning and Administration (P&A) Costs

    Authority: 23 U.S.C. 402; 23 U.S.C. 405; delegation of authority at 
49 CFR 1.95.

    Source: 78 FR 5010, Jan. 23, 2013, unless otherwise noted.



                            Subpart A_General



Sec.  1200.1  Purpose.

    This part establishes uniform procedures for State highway safety 
programs authorized under Chapter 4, Title 23, United States Code.



Sec.  1200.2  Applicability.

    The provisions of this part apply to highway safety programs 
authorized under 23 U.S.C. 402 beginning fiscal year 2014 and, except as 
specified in Sec.  1200.24(a), to national priority safety programs 
authorized under 23 U.S.C. 405 beginning fiscal year 2013.



Sec.  1200.3  Definitions.

    As used in this part--
    Approving Official means a Regional Administrator of the National 
Highway Traffic Safety Administration.

[[Page 625]]

    Carry-forward funds means those funds that a State has not expended 
on projects in the fiscal year in which they were apportioned or 
allocated, that are being brought forward and made available for 
expenditure in a subsequent fiscal year.
    Contract authority means the statutory language that authorizes an 
agency to incur an obligation without the need for a prior appropriation 
or further action from Congress and which, when exercised, creates a 
binding obligation on the United States for which Congress must make 
subsequent liquidating appropriations.
    Fiscal year means the Federal fiscal year, consisting of the 12 
months beginning each October 1 and ending the following September 30.
    Governor means the Governor of any of the fifty States, Puerto Rico, 
the U.S. Virgin Islands, Guam, American Samoa, or the Commonwealth of 
the Northern Mariana Islands, the Mayor of the District of Columbia, or, 
for the application of this part to Indian Country as provided in 23 
U.S.C. 402(h), the Secretary of the Interior.
    Governor's Representative for Highway Safety means the official 
appointed by the Governor to implement the State's highway safety 
program or, for the application of this part to Indian Country as 
provided in 23 U.S.C. 402(h), an official of the Bureau of Indian 
Affairs or other Department of Interior official who is duly designated 
by the Secretary of the Interior to implement the Indian highway safety 
program.
    Highway Safety Plan (HSP) means the document, coordinated with the 
State strategic highway safety plan as defined in 23 U.S.C. 148(a), that 
the State submits each fiscal year as its application for highway safety 
grants, which describes the strategies and projects the State plans to 
implement and the resources from all sources it plans to use to achieve 
its highway safety performance targets.
    Highway safety program means the planning, strategies and 
performance measures, and general oversight and management of highway 
safety strategies and projects by the State either directly or through 
sub-recipients to address highway safety problems in the State. A State 
highway safety program is defined in the annual Highway Safety Plan and 
any amendments.
    MAP-21 or ``Moving Ahead for Progress in the 21st Century Act'' 
means Public Law 112-141.
    NHTSA means the National Highway Traffic Safety Administration.
    Program area means any of the national priority safety program areas 
identified in 23 U.S.C. 405 or a program area identified by the State in 
the highway safety plan as encompassing a major highway safety problem 
in the State and for which documented effective or projected by analysis 
to be effective countermeasures have been identified.
    Project means any undertaking or activity proposed or implemented 
with grant funds under 23 U.S.C. Chapter 4.
    Project agreement means a written agreement at the State level or 
between the State and a subgrantee or contractor under which the State 
agrees to provide 23 U.S.C. Chapter 4 funds in exchange for the 
subgrantee's or contractor's performance of one or more undertakings or 
activities supporting the highway safety program.
    Project number means a unique identifier assigned by a State to each 
project in the HSP.
    Public road means any road under the jurisdiction of and maintained 
by a public authority and open to public travel.
    Section 402 means section 402 of title 23 of the United States Code.
    Section 405 means section 405 of title 23 of the United States Code.
    State means, except as provided in Sec.  1200.25(b), any of the 
fifty States of the United States, the District of Columbia, Puerto 
Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of 
the Northern Mariana Islands, or, for the application of this part to 
Indian Country as provided in 23 U.S.C. 402(h), the Secretary of the 
Interior.
    State highway safety improvement program means the program defined 
in section 148(a)(11) of title 23 of the United States Code.
    State strategic highway safety plan means the plan defined in 
section 148(a)(12) of title 23, United States Code.

[[Page 626]]



Sec.  1200.4  State Highway Safety Agency--Authority and functions.

    (a) Policy. In order for a State to receive grant funds under this 
part, the Governor shall exercise responsibility for the highway safety 
program through a State Highway Safety Agency that has adequate powers 
and is suitably equipped and organized to carry out the State's highway 
safety program.
    (b) Authority. Each State Highway Safety Agency shall be authorized 
to--
    (1) Develop and execute the Highway Safety Plan and highway safety 
program in the State;
    (2) Obtain information about programs to improve highway safety and 
projects administered by other State and local agencies;
    (3) Maintain or have ready access to information contained in State 
highway safety data systems, including crash, citation, adjudication, 
emergency medical services/injury surveillance, roadway and vehicle 
record keeping systems, and driver license data;
    (4) Periodically review and comment to the Governor on the 
effectiveness of programs to improve highway safety in the State from 
all funding sources that the State plans to use for such purposes;
    (5) Provide financial and technical assistance to other State 
agencies and political subdivisions to develop and carry out highway 
safety strategies and projects; and
    (6) Establish and maintain adequate staffing to effectively plan, 
manage, and provide oversight of highway safety projects approved in the 
Highway Safety Plan.
    (c) Functions. Each State Highway Safety Agency shall--
    (1) Develop and prepare the Highway Safety Plan based on evaluation 
of highway safety data, including crash fatalities and injuries, 
roadway, driver and other data sources to identify safety problems 
within the State;
    (2) Establish highway safety projects to be funded within the State 
under 23 U.S.C. Chapter 4 based on identified safety problems and 
priorities;
    (3) Provide direction, information and assistance to sub-grantees 
concerning highway safety grants, procedures for participation, and 
development of projects;
    (4) Encourage and assist sub-grantees to improve their highway 
safety planning and administration efforts;
    (5) Review and approve, and evaluate the implementation and 
effectiveness of State and local highway safety programs and projects 
from all funding sources that the State plans to use under the HSP, and 
approve and monitor the expenditure of grant funds awarded under 23 
U.S.C. Chapter 4;
    (6) Assess program performance through analysis of highway safety 
data and data-driven performance measures;
    (7) Ensure that the State highway safety program meets the 
requirements of 23 U.S.C. Chapter 4 and applicable Federal and State 
laws, including but not limited to the standards for financial 
management systems required under 49 CFR 18.20;
    (8) Ensure that all legally required audits of the financial 
operations of the State Highway Safety Agency and of the use of highway 
safety grant funds are conducted;
    (9) Track and maintain current knowledge of changes in State statute 
or regulation that could affect State qualification for highway safety 
grants or fund transfer programs; and
    (10) Coordinate the Highway Safety Plan and highway safety data 
collection and information systems activities with other federally and 
non-federally supported programs relating to or affecting highway 
safety, including the State strategic highway safety plan as defined in 
23 U.S.C. 148(a).



Sec.  1200.5  Due dates--Interpretation.

    If any deadline or due date in this part falls on a Saturday, Sunday 
or Federal holiday, the applicable deadline or due date shall be the 
next business day.



                      Subpart B_Highway Safety Plan



Sec.  1200.10  General.

    Beginning with grants authorized in fiscal year 2014, to apply for 
any highway safety grant under 23 U.S.C. Chapter 4, a State shall submit 
a Highway Safety Plan meeting the requirements of this subpart.

[[Page 627]]



Sec.  1200.11  Contents.

    Each fiscal year, the State's Highway Safety Plan shall consist of 
the following components:
    (a) Highway safety planning process. (1) A brief description of the 
data sources and processes used by the State to identify its highway 
safety problems, describe its highway safety performance measures and 
define its performance targets, develop and select evidence-based 
countermeasure strategies and projects to address its problems and 
achieve its performance targets. In describing these data sources and 
processes, the State shall identify the participants in the processes 
(e.g., highway safety committees, program stakeholders, community and 
constituent groups), discuss the strategies for project selection (e.g., 
constituent outreach, public meetings, solicitation of proposals), and 
list the information and data sources consulted (e.g., Countermeasures 
That Work, Sixth Edition, 2011).
    (2) A description of the efforts to coordinate and the outcomes from 
the coordination of the highway safety plan, data collection, and 
information systems with the State strategic highway safety plan (as 
defined in 23 U.S.C. 148(a)).
    (b) Performance plan. A performance plan containing the following 
elements:
    (1) A list of annual quantifiable and measurable highway safety 
performance targets that is data-driven, consistent with the Uniform 
Guidelines for Highway Safety Program and based on highway safety 
problems identified by the State during the planning process conducted 
under paragraph (a) of this section.
    (2) Performance measures developed by DOT in collaboration with the 
Governor's Highway Safety Association and others, beginning with the 
MAP-21 directed ``Traffic Safety Performance Measures for States and 
Federal Agencies'' (DOT HS 811 025), which are used as a minimum in 
developing the performance targets identified in paragraph (b)(1) of 
this section. Beginning with grants awarded after fiscal year 2014, the 
performance measures common to the State's HSP and the State highway 
safety improvement program (fatalities, fatality rate, and serious 
injuries) shall be defined identically, as coordinated through the State 
strategic highway safety plan. At least one performance measure and 
performance target that is data driven shall be provided for each 
program area that enables the State to track progress, from a specific 
baseline, toward meeting the target (e.g., a target to ``increase seat 
belt use from X percent in Year 1 to Y percent in Year 2,'' using a 
performance measure of ``percent of restrained occupants in front 
outboard seating positions in passenger motor vehicles''). For each 
performance measure, the State shall provide:
    (i) Documentation of current safety levels;
    (ii) Quantifiable annual performance targets; and
    (iii) Justification for each performance target that explains why 
the target is appropriate and data-driven.
    (3) Additional performance measures, not included under paragraph 
(b)(2) of this section. For program areas where performance measures 
have not been jointly developed, a State shall develop its own 
performance measures and performance targets that are data-driven (e.g., 
distracted driving, bicycles). The State shall provide the same 
information as required under paragraph (b)(2) of this section.
    (c) Highway safety strategies and projects. A description of--
    (1) Each countermeasure strategy and project the State plans to 
implement to reach the performance targets identified in paragraph (b) 
of this section. At a minimum, the State shall describe one year of 
Section 402 and 405 countermeasure strategies and projects (which should 
include countermeasure strategies identified in the State strategic 
highway safety plan) and shall identify funds from other sources, 
including Federal, State, local, and private sector funds, that the 
State plans to use for such projects or use to achieve program area 
performance targets.
    (2) The State's process for selecting the countermeasure strategies 
and projects described in paragraph (c)(1) of this section to allow the 
State to meet the highway safety performance targets described in 
paragraph (b) of this

[[Page 628]]

section. At a minimum, the State shall provide an assessment of the 
overall traffic safety impacts of the strategies chosen and proposed or 
approved projects to be funded.
    (3) The data and data analysis or other documentation supporting the 
effectiveness of proposed countermeasure strategies described in 
paragraph (c)(1) of this section (e.g., the State may include 
information on the cost effectiveness of proposed countermeasure 
strategies, if such information is available).
    (4) The evidence-based traffic safety enforcement program to prevent 
traffic violations, crashes, and crash fatalities and injuries in areas 
most at risk for such incidents. At a minimum, the State shall provide 
for--
    (i) An analysis of crashes, crash fatalities, and injuries in areas 
of highest risk;
    (ii) Deployment of resources based on that analysis; and
    (iii) Continuous follow-up and adjustment of the enforcement plan.
    (5) The planned high visibility enforcement strategies to support 
national mobilizations.
    (d) Performance report. A program-area-level report on the State's 
success in meeting State performance targets from the previous fiscal 
year's Highway Safety Plan.
    (e) Program cost summary and list of projects. (1) HS Form 217, 
meeting the requirements of Appendix B, completed to reflect the State's 
proposed allocations of funds (including carry-forward funds) by program 
area. The funding level used shall be an estimate of available funding 
for the upcoming fiscal year based on amounts authorized for the fiscal 
year and projected carry-forward funds.
    (2) For each program area, an accompanying list of projects that the 
State proposes to conduct for that fiscal year and an estimated amount 
of Federal funds for each such project.
    (f) Certifications and assurances. Appendix A--Certifications and 
Assurances for Section 402 Grants, signed by the Governor's 
Representative for Highway Safety, certifying the HSP application 
contents and providing assurances that the State will comply with 
applicable laws and regulations, financial and programmatic 
requirements, and, in accordance with Sec.  1200.13 of this part, the 
special funding conditions for the Section 402 program.
    (g) Teen Traffic Safety Program. If the State elects to include the 
Teen Traffic Safety Program authorized under 23 U.S.C. 402(m), a 
description of projects that the State will conduct as part of the Teen 
Traffic Safety Program--a statewide program to improve traffic safety 
for teen drivers--and the assurances in Appendix C, signed by the 
Governor's Representative for Highway Safety.
    (h) Section 405 grant application. Application for any of the 
national priority safety program grants, in accordance with the 
requirements of subpart C, including Appendix D--Certifications and 
Assurances for Section 405 Grants, signed by the Governor's 
Representative for Highway Safety.



Sec.  1200.12  Due date for submission.

    (a) Except as specified under Sec.  1200.61(a), a State shall submit 
its Highway Safety Plan electronically to the NHTSA regional office no 
later than July 1 preceding the fiscal year to which the Highway Safety 
Plan applies.
    (b) Failure to meet this deadline may result in delayed approval and 
funding of a State's Section 402 grant or disqualification from 
receiving Section 405 grants.



Sec.  1200.13  Special funding conditions for Section 402 grants.

    The State's highway safety program under Section 402 shall be 
subject to the following conditions, and approval under Sec.  1200.14 of 
this part shall be deemed to incorporate these conditions:
    (a) Planning and administration costs. (1) Federal participation in 
P&A activities shall not exceed 50 percent of the total cost of such 
activities, or the applicable sliding scale rate in accordance with 23 
U.S.C. 120. The Federal contribution for P&A activities shall not exceed 
13 percent of the total funds the State receives under 23 U.S.C. 402. In 
accordance with 23 U.S.C. 120(i), the Federal share payable for projects 
in the U.S. Virgin Islands, Guam, American Samoa and the Commonwealth of 
the Northern Mariana Islands shall be

[[Page 629]]

100 percent. The Indian Country, as defined by 23 U.S.C. 402(h), is 
exempt from the provisions of P&A requirements. NHTSA funds shall be 
used only to finance P&A activities attributable to NHTSA programs. 
Determinations of P&A shall be in accordance with the provisions of 
Appendix F.
    (2) P&A tasks and related costs shall be described in the P&A module 
of the State's Highway Safety Plan. The State's matching share shall be 
determined on the basis of the total P&A costs in the module.
    (b) Automated traffic enforcement systems prohibition. The State may 
not expend funds apportioned to the State under 23 U.S.C. 402 to carry 
out a program to purchase, operate, or maintain an automated traffic 
enforcement system. The term ``automated traffic enforcement system'' 
includes any camera which captures an image of a vehicle for the 
purposes only of red light and speed enforcement, and does not include 
hand held radar and other devices operated by law enforcement officers 
to make an on-the-scene traffic stop, issue a traffic citation, or other 
enforcement action at the time of the violation.



Sec.  1200.14  Review and approval procedures.

    (a) General. Upon receipt and initial review of the Highway Safety 
Plan, NHTSA may request additional information from a State to ensure 
compliance with the requirements of this part. Failure to respond 
promptly to a request for additional information concerning the Section 
402 grant application may result in delayed approval and funding of a 
State's Section 402 grant. Failure to respond promptly to a request for 
additional information concerning any of the Section 405 grant 
applications may result in a State's disqualification from consideration 
for a Section 405 grant.
    (b) Approval and disapproval of Highway Safety Plan. Within 60 days 
after receipt of the Highway Safety Plan under this subpart--
    (1) For Section 402 grants, the Approving Official shall issue--
    (i) A letter of approval with conditions, if any, to the Governor 
and the Governor's Representative for Highway Safety; or
    (ii)(A) A letter of disapproval to the Governor and the Governor's 
Representative for Highway Safety informing the State of the reasons for 
disapproval and requiring resubmission of the Highway Safety Plan with 
proposed modifications necessary for approval; and
    (B) A letter of approval or disapproval upon resubmission of the 
Highway Safety Plan within 30 days after NHTSA receives the revised 
Highway Safety Plan.
    (2) For Section 405 grants--
    (i) The NHTSA Administrator shall notify States in writing of 
Section 405 grant awards and specify any conditions or limitations 
imposed by law on the use of funds; or
    (ii) The Approving Official shall notify States in writing if a 
State's application does not meet the qualification requirements for any 
of the Section 405 grants.



Sec.  1200.15  Apportionment and obligation of Federal funds.

    (a) Except as provided in paragraph (b) of this section, on October 
1 of each fiscal year, or soon thereafter, the NHTSA Administrator 
shall, in writing, distribute funds available for obligation under 23 
U.S.C. Chapter 4 to the States and specify any conditions or limitations 
imposed by law on the use of the funds.
    (b) In the event that authorizations exist but no applicable 
appropriation act has been enacted by October 1 of a fiscal year the 
NHTSA Administrator may, in writing, distribute a part of the funds 
authorized under 23 U.S.C. Chapter 4 contract authority to the States to 
ensure program continuity, and in that event shall specify any 
conditions or limitations imposed by law on the use of the funds. Upon 
appropriation of grant funds, the NHTSA Administrator shall, in writing, 
promptly adjust the obligation limitation, and specify any conditions or 
limitations imposed by law on the use of the funds.
    (c) Funds distributed under paragraph (a) or (b) of this section 
shall be available for expenditure by the States to satisfy the Federal 
share of expenses under the approved Highway Safety

[[Page 630]]

Plan, and shall constitute a contractual obligation of the Federal 
Government, subject to any conditions or limitations identified in the 
distributing document. Such funds shall be available for expenditure by 
the States as provided in Sec.  1200.41(b), after which the funds shall 
lapse.
    (d) Notwithstanding the provisions of paragraph (c) of this 
section--
    (1) Reimbursement of State expenses for Section 402 grant funds 
shall be contingent upon the submission of an updated HS Form 217 and an 
updated project list that includes project numbers for each project 
within 30 days after the beginning of the fiscal year or the date of the 
written approval provided under Sec.  1200.14(b)(1) of this part, 
whichever is later, and approval of the updated HS Form 217 by the 
Approving Official.
    (2) Reimbursement of State expenses for Section 405 grant funds 
shall be contingent upon the submission of an updated Highway Safety 
Plan, HS Form 217, and project list to address the grant funds awarded 
under subpart C, within 30 days after the beginning of the fiscal year 
or the date of the grant award notice provided under Sec.  
1200.14(b)(2), whichever is later, and approval of the updated Highway 
Safety Plan and HS Form 217 by the Approving Official. Submitting the 
updated Highway Safety Plan and HS Form 217 is a precondition to 
reimbursement of grant expenses.
    (3) The updated HS Form 217 required under paragraphs (d)(1) and 
(d)(2) of this section shall reflect the State's allocation of grant 
funds made available for expenditure during the fiscal year, including 
carry-forward funds. Within each program area, the State shall provide a 
project list to be conducted during the fiscal year.



            Subpart C_National Priority Safety Program Grants



Sec.  1200.20  General.

    (a) Scope. This subpart establishes criteria, in accordance with 23 
U.S.C. 405, for awarding grants to States that adopt and implement 
programs and laws to address national priorities for reducing highway 
deaths and injuries.
    (b) Definitions. As used in this subpart--
    Blood alcohol concentration or BAC means grams of alcohol per 
deciliter or 100 milliliters blood, or grams of alcohol per 210 liters 
of breath.
    FARS means NHTSA's Fatality Analysis Reporting System.
    Majority means greater than 50 percent.
    Passenger motor vehicle means a passenger car, pickup truck, van, 
minivan or sport utility vehicle with a gross vehicle weight rating of 
less than 10,000 pounds.
    Personal wireless communications device means a device through which 
personal wireless services (commercial mobile services, unlicensed 
wireless services, and common carrier wireless exchange access services) 
are transmitted, but does not include a global navigation satellite 
system receiver used for positioning, emergency notification, or 
navigation purposes.
    Primary offense means an offense for which a law enforcement officer 
may stop a vehicle and issue a citation in the absence of evidence of 
another offense.
    (c) Eligibility. Except as provided in Sec.  1200.25(c), the 50 
States, the District of Columbia, Puerto Rico, American Samoa, the 
Commonwealth of the Northern Mariana Islands, Guam and the U.S. Virgin 
Islands are each eligible to apply for national priority safety program 
grants under this subpart.
    (d) Qualification based on State statutes. Whenever a State statute 
is the basis for a grant award under this subpart, such statute shall 
have been enacted by the application due date and be in effect and 
enforced, without interruption, by the beginning of and throughout the 
fiscal year of the grant award.
    (e) Award determinations and transfer of funds. (1) Except as in 
provided Sec.  1200.26(d), the amount of a grant award to a State in a 
fiscal year under this subpart shall be determined by applying the 
apportionment formula under 23 U.S.C. 402(c) for fiscal year 2009 to all 
qualifying States, in proportion to the amount each such State received 
under 23 U.S.C. 402(c) for fiscal year 2009, so that all available 
amounts

[[Page 631]]

are distributed to qualifying States to the maximum extent practicable.
    (2) Notwithstanding paragraph (e)(1) of this section, and except as 
provided in Sec.  1200.25(k), a grant awarded to a State in a fiscal 
year under this subpart may not exceed 10 percent of the total amount 
made available for that section for that fiscal year.
    (3) If it is determined after review of applications that funds for 
a grant program under this subpart will not all be distributed, such 
funds shall be transferred to other programs authorized under 23 U.S.C. 
402 and 405 to ensure, to the maximum extent practicable, that each 
State receives the maximum funding for which it qualifies.
    (f) Matching. The Federal share of the costs of activities or 
programs funded using amounts from grants awarded under this subpart may 
not exceed 80 percent.



Sec.  1200.21  Occupant protection grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(b), for awarding grants to States that adopt and implement 
effective occupant protection programs to reduce highway deaths and 
injuries resulting from individuals riding unrestrained or not properly 
restrained in motor vehicles.
    (b) Definitions. As used in this section--
    Child restraint means any device (including a child safety seat, 
booster seat used in conjunction with 3-point belts, or harness, but 
excluding seat belts) that is designed for use in a motor vehicle to 
restrain, seat, or position a child who weighs 65 pounds (30 kilograms) 
or less and that meets the Federal motor vehicle safety standard 
prescribed by the National Highway Traffic Safety Administration for 
child restraints.
    High seat belt use rate State means a State that has an observed 
seat belt use rate of 90.0 percent or higher (not rounded) based on 
validated data from the State survey of seat belt use conducted during 
the previous calendar year, in accordance with the Uniform Criteria for 
State Observational Surveys of Seat Belt Use, 23 CFR Part 1340 (e.g., 
for a grant application submitted on July 1, 2014, the ``previous 
calendar year'' would be 2013).
    Lower seat belt use rate State means a State that has an observed 
seat belt use rate below 90.0 percent (not rounded) based on validated 
data from the State survey of seat belt use conducted during the 
previous calendar year, in accordance with the Uniform Criteria for 
State Observational Surveys of Seat Belt Use, 23 CFR Part 1340 (e.g., 
for a grant application submitted on July 1, 2014, the ``previous 
calendar year'' would be 2013).
    Seat belt means, with respect to open-body motor vehicles, including 
convertibles, an occupant restraint system consisting of a lap belt or a 
lap belt and a detachable shoulder belt, and with respect to other motor 
vehicles, an occupant restraint system consisting of integrated lap and 
shoulder belts.
    Problem identification means the data collection and analysis 
process for identifying areas of the State, types of crashes, or types 
of populations (e.g., high-risk populations) that present specific 
safety or usage challenges in efforts to improve occupant protection.
    (c) Eligibility determination. A State is eligible to apply for a 
grant under this section as a high seat belt use rate State or as a 
lower seat belt use rate State, in accordance with paragraph (d) or (e) 
of this section, as applicable.
    (d) Qualification criteria for a high seat belt use rate State. To 
qualify for an occupant protection grant in a fiscal year, a high seat 
belt use rate State (as determined by NHTSA) shall submit an executed 
Part 1 of Appendix D and the following documentation:
    (1) Occupant protection plan. (i) For a first fiscal year award, a 
copy of the State occupant protection program area plan to be included 
in the State HSP that describes the programs the State will implement to 
achieve reductions in traffic crashes, fatalities, and injuries on 
public roads.
    (ii) For subsequent fiscal year awards, an update of the State's 
occupant protection plan provided in paragraph (d)(1)(i) of this 
section.
    (2) Participation in Click-it-or-Ticket national mobilization. A 
description of the State's planned participation, and

[[Page 632]]

the assurance provided in Part 1 of Appendix D, signed by the Governor's 
Highway Safety Representative, that the State will participate in the 
Click it or Ticket national mobilization during the fiscal year of the 
grant;
    (3) Child restraint inspection stations. Documentation that the 
State has an active network of child inspection stations and/or 
inspection events that are--
    (i) Located in areas that service the majority of the State's 
population and show evidence of outreach to underserved areas; and
    (ii) Staffed with at least one current nationally Certified Child 
Passenger Safety Technician during official posted hours.
    (4) Child passenger safety technicians. A copy of the State's plan 
to recruit, train and retain nationally Certified Child Passenger Safety 
Technicians to staff each child inspection station and inspection events 
located in the State.
    (5) Maintenance of effort. The assurance provided in Part 1 of 
Appendix D, signed by the Governor's Highway Safety Representative, that 
the State shall maintain its aggregate expenditures from all State and 
local sources for occupant protection programs at or above the average 
level of such expenditure in fiscal years 2010 and 2011.
    (e) Qualification criteria for a lower seat belt use rate State. To 
qualify for an occupant protection grant in a fiscal year, a lower seat 
belt use rate State (as determined by NHTSA) shall satisfy all the 
requirements of and submit all the documentation required under 
paragraph (d) of this section, and submit documentation demonstrating 
that it meets at least three of the following additional criteria:
    (1) Primary enforcement seat belt use law. The assurance provided in 
Part 1 of Appendix D, signed by the Governor's Highway Safety 
Representative, providing legal citations to the State statute or 
statutes demonstrating that the State has enacted and is enforcing 
occupant protection laws that make a violation of the requirement to be 
secured in a seat belt or child restraint a primary offense.
    (2) Occupant protection laws. The assurance provided in Part 1 of 
Appendix D, signed by the Governor's Highway Safety Representative, 
providing legal citations to State statute or statutes demonstrating 
that the State has enacted and is enforcing occupant protection laws 
that require--
    (i) Each occupant riding in a passenger motor vehicle who is under 
eight years of age, weighs less than 65 pounds and is less than four 
feet, nine inches in height to be secured in an age-appropriate child 
restraint;
    (ii) Each occupant riding in a passenger motor vehicle other than an 
occupant identified in paragraph (e)(2)(i) of this section to be secured 
in a seat belt or appropriate child restraint;
    (iii) A minimum fine of $25 per unrestrained occupant for a 
violation of the occupant protection laws described in paragraphs 
(e)(2)(i) and (ii) of this section.
    (iv) No exemption from coverage, except the following:
    (A) Drivers, but not passengers, of postal, utility, and commercial 
vehicles that make frequent stops in the course of their business;
    (B) Persons who are unable to wear a seat belt or child restraint 
because of a medical condition, provided there is written documentation 
from a physician;
    (C) Persons who are unable to wear a seat belt or child restraint 
because all other seating positions are occupied by persons properly 
restrained in seat belts or child restraints;
    (D) Emergency vehicle operators and passengers in emergency vehicles 
during an emergency;
    (E) Persons riding in seating positions or vehicles not required by 
Federal Motor Vehicle Safety Standards to be equipped with seat belts;
    (F) Passengers in public and livery conveyances.
    (3) Seat belt enforcement. Documentation of the State's plan to 
conduct ongoing and periodic seat belt and child restraint enforcement 
during the fiscal year of the grant involving--
    (i) At least 70 percent of the State's population as shown by the 
latest available Federal census; or
    (ii) Law enforcement agencies responsible for seat belt enforcement 
in geographic areas in which at least 70

[[Page 633]]

percent of the State's unrestrained passenger vehicle occupant 
fatalities occurred (reported in the HSP).
    (4) High risk population countermeasure programs. Documentation that 
the State has implemented data-driven programs to improve seat belt and 
child restraint use for at least two of the following at-risk 
populations:
    (i) Drivers on rural roadways;
    (ii) Unrestrained nighttime drivers;
    (iii) Teenage drivers;
    (iv) Other high-risk populations identified in the occupant 
protection plan required under paragraph (d)(1) of this section.
    (5) Comprehensive occupant protection program. Documentation 
demonstrating that the State has--
    (i) Conducted a NHTSA-facilitated program assessment that evaluates 
the program for elements designed to increase seat belt usage in the 
State;
    (ii) Developed a multi-year strategic plan based on input from 
statewide stakeholders (task force) under which the State developed--
    (A) A program management strategy that provides leadership, training 
and technical assistance to other State agencies and local occupant 
protection programs and projects;
    (B) A program evaluation strategy that assesses performance in 
achieving the State's measurable goals and objectives for increasing 
seat belt and child restraint usage for adults and children;
    (C) A communication and education program strategy that has as its 
cornerstone the high visibility enforcement model that combines use of 
media, both paid and earned, and education to support enforcement 
efforts at the State and community level aimed at increasing seat belt 
use and correct usage of age appropriate child restraint systems; and
    (D) An enforcement strategy that includes activities such as 
encouraging seat belt use policies for law enforcement agencies, 
vigorous enforcement of seat belt and child safety seat laws, and 
accurate reporting of occupant protection system information on police 
accident report forms.
    (iii) designated an occupant protection coordinator; and
    (iv) established a statewide occupant protection task force that 
includes agencies and organizations that can help develop, implement, 
enforce and evaluate occupant protection programs.
    (6) Occupant protection program assessment. (i) A NHTSA-facilitated 
assessment of all elements of its occupant protection program within the 
three years prior to October 1 of the grant year; or
    (ii) For the first year of the grant, the assurance provided in Part 
1 of Appendix D, signed by the Governor's Representative for Highway 
Safety, that the State will conduct a NHTSA-facilitated assessment by 
September 1 of the grant year. The agency will require the return of 
grant funds awarded under this section if the State fails to conduct 
such an assessment by the deadline and will redistribute any such grant 
funds in accordance with Sec.  1200.20(e) to other qualifying States 
under this section.
    (f) Use of grant funds--(1) Eligible uses. Except as provided in 
paragraph (f)(2) of this section, use of grant funds awarded under this 
section shall be limited to the following programs or purposes:
    (i) To support high-visibility enforcement mobilizations, including 
paid media that emphasizes publicity for the program, and law 
enforcement;
    (ii) To train occupant protection safety professionals, police 
officers, fire and emergency medical personnel, educators, and parents 
concerning all aspects of the use of child restraints and occupant 
protection;
    (iii) To educate the public concerning the proper use and 
installation of child restraints, including related equipment and 
information systems;
    (iv) To provide community child passenger safety services, including 
programs about proper seating positions for children and how to reduce 
the improper use of child restraints;
    (v) To establish and maintain information systems containing data 
concerning occupant protection, including the collection and 
administration of child passenger safety and occupant protection 
surveys; and
    (vi) To purchase and distribute child restraints to low-income 
families, provided that not more than five percent

[[Page 634]]

of the funds received in a fiscal year are used for such purpose.
    (2) Eligible uses for high seat belt use rate States. 
Notwithstanding paragraph (f)(1) of this section, a State that qualifies 
for grant funds as a high seat belt use rate State may use up to 75 
percent of such funds for any project or activity eligible for funding 
under 23 U.S.C. 402.



Sec.  1200.22  State traffic safety information system improvements grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(c), for grants to States to develop and implement 
effective programs that improve the timeliness, accuracy, completeness, 
uniformity, integration, and accessibility of State safety data needed 
to identify priorities for Federal, State, and local highway and traffic 
safety programs, evaluate the effectiveness of such efforts, link State 
data systems, including traffic records and systems that contain 
medical, roadway, and economic data, improve the compatibility and 
interoperability of State data systems with national data systems and 
the data systems of other States, and enhance the agency's ability to 
observe and analyze national trends in crash occurrences, rates, 
outcomes, and circumstances.
    (b) Requirement for traffic records coordinating committee (TRCC)--
(1) Structure and composition. The State shall have a traffic records 
coordinating committee that--
    (i) Is chartered or legally mandated;
    (ii) Meets at least three times annually;
    (iii) Has a multidisciplinary membership that includes owners, 
operators, collectors and users of traffic records and public health and 
injury control data systems, highway safety, highway infrastructure, law 
enforcement and adjudication officials, and public health, emergency 
medical services, injury control, driver licensing, and motor carrier 
agencies and organizations; and
    (iv) Has a designated TRCC coordinator.
    (2) Functions. The traffic records coordinating committee shall--
    (i) Have authority to review any of the State's highway safety data 
and traffic records systems and any changes to such systems before the 
changes are implemented;
    (ii) Consider and coordinate the views of organizations in the State 
that are involved in the collection, administration, and use of highway 
safety data and traffic records systems, and represent those views to 
outside organizations;
    (iii) Review and evaluate new technologies to keep the highway 
safety data and traffic records system current; and
    (iv) Approve annually the membership of the TRCC, the TRCC 
coordinator, any change to the State's multi-year Strategic Plan 
required under paragraph (c) of this section, and performance measures 
to be used to demonstrate quantitative progress in the accuracy, 
completeness, timeliness, uniformity, accessibility or integration of a 
core highway safety database.
    (c) Requirement for a state traffic records strategic plan. The 
State shall have a Strategic Plan, approved by the TRCC, that--
    (1) Describes specific, quantifiable and measurable improvements 
anticipated in the State's core safety databases, including crash, 
citation or adjudication, driver, emergency medical services or injury 
surveillance system, roadway, and vehicle databases;
    (2) For any identified performance measure, uses the formats set 
forth in the Model Performance Measures for State Traffic Records 
Systems collaboratively developed by NHTSA and the Governors Highway 
Safety Association (GHSA);
    (3) Includes a list of all recommendations from its most recent 
highway safety data and traffic records system assessment;
    (4) Identifies which such recommendations the State intends to 
implement and the performance measures to be used to demonstrate 
quantifiable and measurable progress; and
    (5) For recommendations that the State does not intend to implement, 
provides an explanation.
    (d) Requirement for quantitative improvement. A State shall 
demonstrate quantitative improvement in the data attributes of accuracy, 
completeness, timeliness, uniformity, accessibility

[[Page 635]]

and integration in a core database by demonstrating an improved 
consistency within the State's record system or by achieving a higher 
level of compliance with a national model inventory of data elements, 
such as the Model Minimum Uniform Crash Criteria (MMUCC), the Model 
Impaired Driving Records Information System (MIDRIS), the Model 
Inventory of Roadway Elements (MIRE) or the National Emergency Medical 
Services Information System (NEMSIS).
    (e) Requirement for assessment. The State shall have conducted or 
updated, within the five years prior to the application due date, an in-
depth, formal assessment of its highway safety data and traffic records 
system accurately performed by a group knowledgeable about highway 
safety data and traffic records systems that complies with the 
procedures and methodologies outlined in NHTSA's Traffic Records Highway 
Safety Program Advisory (DOT HS 811 644).
    (f) Requirement for maintenance of effort. The State shall maintain 
its aggregate expenditures from all State and local sources for State 
traffic safety information system programs at or above the average level 
of such expenditure in fiscal years 2010 and 2011, as provided in Part 2 
of Appendix D, signed by the Governor's Highway Safety Representative.
    (g) Qualification criteria. To qualify for a grant under this 
section in a fiscal year, a State shall submit an executed Part 2 of 
Appendix D and the following documentation:
    (1) Either the TRCC charter or legal citation(s) to the statute or 
regulation legally mandating a TRCC with the functions required by 
paragraph (b)(2) of this section;
    (2) Meeting schedule, all reports and data system improvement and 
policy guidance documents promulgated by the TRCC during the 12 months 
immediately preceding the grant application due date;
    (3) A list of the TRCC membership and the organizations and 
functions they represent;
    (4) The name and title of the State's Traffic Records Coordinator.
    (5) A copy of the Strategic Plan required under paragraph (c) of 
this section, including any updates to the Strategic Plan.
    (6) Either a written description of the performance measures, and 
all supporting data, that the State is relying on to demonstrate 
quantitative improvement in the preceding 12 months of the grant 
application due date in one or more of the significant data program 
attributes or the location where this information is detailed in the 
Strategic Plan.
    (7) The certification provided in Part 2 of Appendix D, signed by 
the Governor's Representative for Highway Safety, that an assessment of 
the State's highway safety data and traffic records system was conducted 
or updated within the five years prior to the application due date as 
provided in paragraph (e) of this section.
    (h) Use of grant funds. Grant funds awarded under this section shall 
be used to make quantifiable, measureable progress improvements in the 
accuracy, completeness, timeliness, uniformity, accessibility or 
integration of data in a core highway safety database.



Sec.  1200.23  Impaired driving countermeasures grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(d), for awarding grants to States that adopt and implement 
effective programs to reduce traffic safety problems resulting from 
individuals driving motor vehicles while under the influence of alcohol, 
drugs, or the combination of alcohol and drugs or that enact alcohol 
ignition interlock laws.
    (b) Definitions. As used in this section--
    24-7 sobriety program means a State law or program that authorizes a 
State court or a State agency, as a condition of sentence, probation, 
parole, or work permit, to require an individual who pleads guilty to or 
was convicted of driving under the influence of alcohol or drugs to--
    (1) Abstain totally from alcohol or drugs for a period of time; and

[[Page 636]]

    (2) Be subject to testing for alcohol or drugs at least twice per 
day by continuous transdermal alcohol monitoring via an electronic 
monitoring device, or by an alternative method approved by NHTSA.
    Alcohol means wine, beer and distilled spirits.
    Average impaired driving fatality rate means the number of 
fatalities in motor vehicle crashes involving a driver with a blood 
alcohol concentration of at least 0.08 percent for every 100,000,000 
vehicle miles traveled, based on the most recently reported three 
calendar years of final data from the FARS.
    Assessment means a NHTSA-facilitated process that employs a team of 
subject matter experts to conduct a comprehensive review of a specific 
highway safety program in a State.
    Driving under the influence of alcohol, drugs, or a combination of 
alcohol and drugs means operating a vehicle while the alcohol and/or 
drug concentration in the blood or breath, as determined by chemical or 
other tests, equals or exceeds the level established by the State or is 
equivalent to the standard offense for driving under the influence of 
alcohol or drugs in the State.
    Driving While Intoxicated (DWI) Court means a court that specializes 
in cases involving driving while intoxicated and abides by the Ten 
Guiding Principles of DWI Courts in effect on the date of the grant, as 
established by the National Center for DWI Courts.
    Drugs means controlled substances as that term is defined under 
section 102(6) of the Controlled Substances Act, 21 U.S.C. 802(6).
    High visibility enforcement efforts means participation in national 
impaired driving law enforcement campaigns organized by NHTSA, 
participation in impaired driving law enforcement campaigns organized by 
the State, or the use of sobriety checkpoints and/or saturation patrols, 
conducted in a highly visible manner and supported by publicity through 
paid or earned media.
    High-range State means a State that has an average impaired driving 
fatality rate of 0.60 or higher.
    Low-range State means a State that has an average impaired driving 
fatality rate of 0.30 or lower.
    Mid-range State means a State that has an average impaired driving 
fatality rate that is higher than 0.30 and lower than 0.60.
    Saturation patrol means a law enforcement activity during which 
enhanced levels of law enforcement are conducted in a concentrated 
geographic area (or areas) for the purpose of detecting drivers 
operating motor vehicles while impaired by alcohol and/or other drugs.
    Sobriety checkpoint means a law enforcement activity during which 
law enforcement officials stop motor vehicles on a non-discriminatory, 
lawful basis for the purpose of determining whether the operators of 
such motor vehicles are driving while impaired by alcohol and/or other 
drugs.
    Standard offense for driving under the influence of alcohol or drugs 
means the offense described in a State's law that makes it a criminal 
offense to operate a motor vehicle while under the influence of alcohol 
or drugs, but does not require a measurement of alcohol or drug content.
    (c) Eligibility determination. A State is eligible to apply for a 
grant under this section as a low-range State, a mid-range State or a 
high-range State, in accordance with paragraphs (d), (e) or (f) of this 
section, as applicable. Independent of this range determination, a State 
may also qualify for a separate grant under this section as an ignition 
interlock State, as provided in paragraph (g) of this section.
    (d) Qualification criteria for a low-range State. To qualify for an 
impaired driving countermeasures grant in a fiscal year, a low-range 
State (as determined by NHTSA) shall submit an executed Part 3 of 
Appendix D providing assurances, signed by the Governor's Representative 
for Highway Safety, that the State will--
    (1) Use the funds awarded under 23 U.S.C. 405(d)(1) only for the 
implementation and enforcement of programs authorized in paragraph (i) 
of this section; and
    (2) Maintain its aggregate expenditures from all State and local 
sources for impaired driving programs at or

[[Page 637]]

above the average level of such expenditure in fiscal years 2010 and 
2011, as provided in Part 3 of Appendix D.
    (e) Qualification criteria for a mid-range State. To qualify for an 
impaired driving countermeasures grant in a fiscal year, a mid-range 
State (as determined by NHTSA) shall submit the information required in 
paragraph (d) of this section and the following additional 
documentation:
    (1) Statewide impaired driving plan. If the State has not received a 
grant under this section for a previously submitted statewide impaired 
driving plan, the State shall submit a copy of a statewide impaired 
driving plan that--
    (i) Has been developed within the three years prior to the 
application due date;
    (ii) Has been approved by a statewide impaired driving task force 
that meets the requirements of paragraph (e)(2) of this section;
    (iii) Provides a comprehensive strategy that uses data and problem 
identification to identify measurable goals and objectives for 
preventing and reducing impaired driving behavior and impaired driving 
crashes; and
    (iv) Covers general areas that include program management and 
strategic planning, prevention, the criminal justice system, 
communication programs, alcohol and other drug misuse, and program 
evaluation and data.
    (2) Statewide impaired driving task force. The State shall submit a 
copy of information describing its statewide impaired driving task force 
that--
    (i) Provides the basis for the operation of the task force, 
including any charter or establishing documents;
    (ii) Includes a schedule of all meetings held in the 12 months 
preceding the application due date and any reports or documents produced 
during that time period; and
    (iii) Includes a list of membership and the organizations and 
functions represented and includes, at a minimum, key stakeholders from 
the State Highway Safety Office and the areas of law enforcement and 
criminal justice system (e.g., prosecution, adjudication, probation), 
and, as appropriate, stakeholders from the areas of driver licensing, 
treatment and rehabilitation, ignition interlock programs, data and 
traffic records, public health, and communication.
    (3) Assurances. For the first year of the grant as a mid-range 
State, if the State is not able to meet the requirements of paragraph 
(e)(1) of this section, the State may provide the assurances provided in 
Part 3 of Appendix D, signed by the Governor's Representative for 
Highway Safety, that the State will convene a statewide impaired driving 
task force to develop a statewide impaired driving plan that meets the 
requirements of paragraph (e)(1) of this section and submit the 
statewide impaired driving plan by September 1 of the grant year. The 
agency will require the return of grant funds awarded under this section 
if the State fails to submit the plan by the deadline and will 
redistribute any such grant funds in accordance with Sec.  1200.20(e) to 
other qualifying States under this section.
    (f) Qualification criteria for a high-range State. To qualify for an 
impaired driving countermeasures grant in a fiscal year, a high-range 
State (as determined by NHTSA) shall submit the information required in 
paragraph (d) of this section and the following additional 
documentation:
    (1) Impaired driving program assessment. (i) The assurances provided 
in Part 3 of Appendix D, signed by the Governor's Representative for 
Highway Safety, providing the date of the NHTSA-facilitated assessment 
of the State's impaired driving program conducted within the three years 
prior to the application due date; or
    (ii) For the first year of the grant as a high-range State, the 
assurances provided in Part 3 of Appendix D, signed by the Governor's 
Representative for Highway Safety, that the State will conduct a NHTSA-
facilitated assessment by September 1 of the grant year.
    (2) Statewide impaired driving plan. (i) First year compliance. For 
the first year of the grant as a high-range State, the assurances 
provided in Part 3 of Appendix D, signed by the Governor's 
Representative for Highway Safety, that the State will convene a 
statewide impaired driving task force to develop a statewide impaired 
driving plan, which will be submitted to NHTSA for review

[[Page 638]]

and approval by September 1 of the grant year that--
    (A) Meets the requirements of paragraph (e)(1) of this section;
    (B) Addresses any recommendations from the assessment of the State's 
impaired driving program required in paragraph (f)(1) of this section;
    (C) Includes a detailed plan for spending any grant funds provided 
for high visibility enforcement efforts; and
    (D) Describes how the spending supports the State's impaired driving 
program and achievement of its performance goals and targets;
    (ii) Subsequent year compliance. For subsequent years of the grant 
as a high-range State, the State shall submit for NHTSA review and 
comment a statewide impaired driving plan that meets the requirements of 
paragraph (f)(2)(i)(A) through (D) of this section or an update to its 
statewide impaired driving plan, as part of its application for a grant.
    (g) Ignition interlock State. To qualify for a separate grant as an 
ignition interlock State in a fiscal year, a State shall submit the 
assurances in Part 3 of Appendix D, signed by the Governor's 
Representative for Highway Safety, providing legal citation(s) to the 
State statute demonstrating that the State has enacted and is enforcing 
a law that requires all individuals convicted of driving under the 
influence of alcohol or of driving while intoxicated to drive only 
vehicles with alcohol ignition interlocks for a period of not less than 
30 days.
    (h) Award. (1) The amount available for grants under paragraphs (d), 
(e) and (f) of this section shall be determined based on the total 
amount of eligible States for these grants and after deduction of the 
amount necessary to fund grants under paragraph (g) of this section.
    (2) The amount available for grants under paragraph (g) of this 
section shall not exceed 15 percent of the total amount made available 
to States under this section for the fiscal year.
    (i) Use of grant funds. (1) Low-range States may use grant funds 
awarded under this section for the following authorized programs:
    (i) High visibility enforcement efforts;
    (ii) Hiring a full-time or part-time impaired driving coordinator of 
the State's activities to address the enforcement and adjudication of 
laws regarding driving while impaired by alcohol;
    (iii) Court support of high visibility enforcement efforts, training 
and education of criminal justice professionals (including law 
enforcement, prosecutors, judges, and probation officers) to assist such 
professionals in handling impaired driving cases, hiring traffic safety 
resource prosecutors, hiring judicial outreach liaisons, and 
establishing driving while intoxicated courts;
    (iv) Alcohol ignition interlock programs;
    (v) Improving blood-alcohol concentration testing and reporting;
    (vi) Paid and earned media in support of high visibility enforcement 
of impaired driving laws, and conducting standardized field sobriety 
training, advanced roadside impaired driving evaluation training, and 
drug recognition expert training for law enforcement, and equipment and 
related expenditures used in connection with impaired driving 
enforcement;
    (vii) Training on the use of alcohol screening and brief 
intervention;
    (viii) Developing impaired driving information systems; and
    (ix) Costs associated with a 24-7 sobriety program.
    (x) Programs designed to reduce impaired driving based on problem 
identification.
    (2) Mid-range States may use grant funds awarded under this section 
for any of the authorized uses described in paragraph (i)(1) of this 
section, provided that use of grant funds for programs described in 
paragraph (i)(1)(x) of this section requires advance approval from 
NHTSA.
    (3) High-range States may use grant funds awarded under this section 
for high visibility enforcement efforts and any of the authorized uses 
described in paragraph (i)(1) of this section, provided the proposed 
uses are described in a statewide impaired driving plan submitted to and 
approved by NHTSA in accordance with paragraph (f)(2) of this section 
and subject to the conditions in paragraph (j) of this section.

[[Page 639]]

    (4) Ignition interlock States may use grant funds awarded under this 
section for any of the authorized uses described under paragraph (i)(1) 
of this section and for eligible activities under 23 U.S.C. 402.
    (j) Special conditions for use of funds by high-range States. No 
expenses incurred or vouchers submitted by a high-range State shall be 
approved for reimbursement until such State submits for NHTSA review and 
approval a statewide impaired driving plan as provided in paragraph 
(f)(2) of this section. If a high-range State fails to timely provide 
the statewide impaired driving plan required under paragraph (f)(2) of 
this section, the agency will redistribute any grant funds in accordance 
with Sec.  1200.20(e) to other qualifying States under this section.



Sec.  1200.24  Distracted driving grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(e), for awarding grants to States that enact and enforce 
laws prohibiting distracted driving, beginning with fiscal year 2014 
grants.
    (b) Definitions. As used in this section--
    Driving means operating a motor vehicle on a public road, including 
operation while temporarily stationary because of traffic, a traffic 
light or stop sign, or otherwise, but does not include operating a motor 
vehicle when the vehicle has pulled over to the side of, or off, an 
active roadway and has stopped in a location where it can safely remain 
stationary.
    Texting means reading from or manually entering data into a personal 
wireless communications device, including doing so for the purpose of 
SMS texting, emailing, instant messaging, or engaging in any other form 
of electronic data retrieval or electronic data communication.
    (c) Qualification criteria. To qualify for a distracted driving 
grant in a fiscal year, a State shall submit the assurances in Part 4 of 
Appendix D, signed by the Governor's Representative for Highway Safety, 
providing legal citations to the State statute or statutes demonstrating 
compliance with the following requirements:
    (1) Prohibition on texting while driving. The statute shall--
    (i) Prohibit drivers from texting through a personal wireless 
communications device while driving;
    (ii) Make a violation of the law a primary offense; and
    (iii) Establish--
    (A) A minimum fine of $25 for a first violation of the law; and
    (B) Increased fines for repeat violations within five years of the 
previous violation.
    (2) Prohibition on youth cell phone use while driving. The statute 
shall--
    (i) Prohibit a driver who is younger than 18 years of age from using 
a personal wireless communications device while driving;
    (ii) Make a violation of the law a primary offense;
    (iii) Require distracted driving issues to be tested as part of the 
State's driver's license examination; and
    (iv) Establish--
    (A) A minimum fine of $25 for a first violation of the law; and
    (B) Increased fines for repeat violations within five years of the 
previous violation.
    (3) Permitted exceptions. A State statute providing for the 
following exceptions, and no others, shall not be deemed out of 
compliance with the requirements of this section:
    (i) A driver who uses a personal wireless communications device to 
contact emergency services;
    (ii) Emergency services personnel who use a personal wireless 
communications device while operating an emergency services vehicle and 
engaged in the performance of their duties as emergency services 
personnel; and
    (iii) An individual employed as a commercial motor vehicle driver or 
a school bus driver who uses a personal wireless communications device 
within the scope of such individual's employment if such use is 
permitted under the regulations promulgated pursuant to 49 U.S.C. 31136.
    (d) Use of grant funds. (1) At least 50 percent of the grant funds 
awarded under this section shall be used to educate the public through 
advertising containing information about the dangers of texting or using 
a cell phone

[[Page 640]]

while driving, for traffic signs that notify drivers about the 
distracted driving law of the State, or for law enforcement costs 
related to the enforcement of the distracted driving law;
    (2) Not more than 50 percent of the grant funds awarded under this 
section may be used for any eligible project or activity under 23 U.S.C. 
402.



Sec.  1200.25  Motorcyclist safety grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(b), for awarding grants to States that adopt and implement 
effective programs to reduce the number of single-vehicle and multiple-
vehicle crashes involving motorcyclists.
    (b) Definitions. As used in this section--
    Impaired means alcohol-impaired or drug-impaired as defined by State 
law, provided that the State's legal alcohol-impairment level does not 
exceed .08 BAC.
    Motorcycle means a motor vehicle with motive power having a seat or 
saddle for the use of the rider and designed to travel on not more than 
three wheels in contact with the ground.
    Motorcyclist awareness means individual or collective awareness of 
the presence of motorcycles on or near roadways and of safe driving 
practices that avoid injury to motorcyclists.
    Motorcyclist awareness program means an informational or public 
awareness or education program designed to enhance motorcyclist 
awareness that is developed by or in coordination with the designated 
State authority having jurisdiction over motorcyclist safety issues, 
which may include the State motorcycle safety administrator or a 
motorcycle advisory council appointed by the Governor of the State.
    Motorcyclist safety training or Motorcycle rider training means a 
formal program of instruction that is approved for use in a State by the 
designated State authority having jurisdiction over motorcyclist safety 
issues, which may include the State motorcycle safety administrator or a 
motorcycle advisory council appointed by the governor of the State.
    State means any of the 50 States, the District of Columbia, and 
Puerto Rico.
    (c) Eligibility. The 50 States, the District of Columbia and Puerto 
Rico are eligible to apply for a motorcyclist safety grant.
    (d) Qualification criteria. To qualify for a motorcyclist safety 
grant in a fiscal year, a State shall submit an executed Part 5 of 
Appendix D, signed by the Governor's Representative for Highway Safety, 
and submit documentation demonstrating compliance with at least two of 
the criteria in paragraphs (e) through (j) of this section.
    (e) Motorcycle rider training course. (1) To satisfy this criterion, 
a State shall have an effective motorcycle rider training course that is 
offered throughout the State and that provides a formal program of 
instruction in accident avoidance and other safety-oriented operational 
skills to motorcyclists. The program shall--
    (i) Use a training curriculum that--
    (A) Is approved by the designated State authority having 
jurisdiction over motorcyclist safety issues;
    (B) Includes a formal program of instruction in crash avoidance and 
other safety-oriented operational skills for both in-class and on-the-
motorcycle training to motorcyclists; and
    (C) May include innovative training opportunities to meet unique 
regional needs;
    (ii) Offer at least one motorcycle rider training course either--
    (A) In a majority of the State's counties or political subdivisions; 
or
    (B) In counties or political subdivisions that account for a 
majority of the State's registered motorcycles;
    (iii) Use motorcycle rider training instructors to teach the 
curriculum who are certified by the designated State authority having 
jurisdiction over motorcyclist safety issues or by a nationally 
recognized motorcycle safety organization with certification capability; 
and
    (iv) Use quality control procedures to assess motorcycle rider 
training courses and instructor training courses conducted in the State.
    (2) To demonstrate compliance with this criterion, the State shall 
submit--
    (i) A copy of the official State document (e.g., law, regulation, 
binding policy directive, letter from the Governor)

[[Page 641]]

identifying the designated State authority over motorcyclist safety 
issues;
    (ii) Document(s) demonstrating that the training curriculum is 
approved by the designated State authority having jurisdiction over 
motorcyclist safety issues and includes a formal program of instruction 
in crash avoidance and other safety-oriented operational skills for both 
in-class and on-the-motorcycle training to motorcyclists;
    (iii) Either:
    (A) A list of the counties or political subdivisions in the State, 
noting in which counties or political subdivisions and when motorcycle 
rider training courses were offered in the 12 months preceding the due 
date of the grant application, if the State seeks to qualify under this 
criterion by showing that it offers at least one motorcycle rider 
training course in a majority of counties or political subdivisions in 
the State; or
    (B) A list of the counties or political subdivisions in the State, 
noting in which counties or political subdivisions and when motorcycle 
rider training courses were offered in the 12 months preceding the due 
date of the grant application and the corresponding number of registered 
motorcycles in each county or political subdivision according to 
official State motor vehicle records, if the State seeks to qualify 
under this criterion by showing that it offers at least one motorcycle 
rider training course in counties or political subdivisions that account 
for a majority of the State's registered motorcycles;
    (iv) Document(s) demonstrating that the State uses motorcycle rider 
training instructors to teach the curriculum who are certified by the 
designated State authority having jurisdiction over motorcyclist safety 
issues or by a nationally recognized motorcycle safety organization with 
certification capability; and
    (v) A brief description of the quality control procedures to assess 
motorcycle rider training courses and instructor training courses used 
in the State (e.g., conducting site visits, gathering student feedback) 
and the actions taken to improve the courses based on the information 
collected.
    (f) Motorcyclist awareness program. (1) To satisfy this criterion, a 
State shall have an effective statewide program to enhance motorist 
awareness of the presence of motorcyclists on or near roadways and safe 
driving practices that avoid injuries to motorcyclists. The program 
shall--
    (i) Be developed by, or in coordination with, the designated State 
authority having jurisdiction over motorcyclist safety issues;
    (ii) Use State data to identify and prioritize the State's 
motorcyclist awareness problem areas;
    (iii) Encourage collaboration among agencies and organizations 
responsible for, or impacted by, motorcycle safety issues; and
    (iv) Incorporate a strategic communications plan that--
    (A) Supports the State's overall safety policy and countermeasure 
program;
    (B) Is designed, at a minimum, to educate motorists in those 
jurisdictions where the incidence of motorcycle crashes is highest or in 
those jurisdictions that account for a majority of the State's 
registered motorcycles;
    (C) Includes marketing and educational efforts to enhance 
motorcyclist awareness; and
    (D) Uses a mix of communication mechanisms to draw attention to the 
problem.
    (2) To demonstrate compliance with this criterion, the State shall 
submit--
    (i) A copy of the State document identifying the designated State 
authority having jurisdiction over motorcyclist safety issues;
    (ii) A letter from the Governor's Highway Safety Representative 
stating that the State's motorcyclist awareness program was developed by 
or in coordination with the designated State authority having 
jurisdiction over motorcyclist safety issues;
    (iii) Data used to identify and prioritize the State's motorcycle 
safety problem areas, including either--
    (A) A list of counties or political subdivisions in the State ranked 
in order of the highest to lowest number of motorcycle crashes per 
county or political subdivision, if the State seeks to qualify under 
this criterion by showing that it identifies and prioritizes the State's 
motorcycle safety problem

[[Page 642]]

areas based on motorcycle crashes. Such data shall be from the most 
recent calendar year for which final State crash data is available, but 
data no older than two calendar years prior to the application due date 
(e.g., for a grant application submitted on July 1, 2013, a State shall 
provide calendar year 2012 data, if available, and may not provide data 
older than calendar year 2011); or
    (B) A list of counties or political subdivisions in the State and 
the corresponding number of registered motorcycles for each county or 
political subdivision according to official State motor vehicle records, 
if the State seeks to qualify under this criterion by showing that it 
identifies and prioritizes the State's motorcycle safety problem areas 
based on motorcycle registrations;
    (iv) A brief description of how the State has achieved collaboration 
among agencies and organizations responsible for, or impacted by, 
motorcycle safety issues; and
    (v) A copy of the strategic communications plan showing that it--
    (A) Supports the State's overall safety policy and countermeasure 
program;
    (B) Is designed to educate motorists in those jurisdictions where 
the incidence of motorcycle crashes is highest (i.e., the majority of 
counties or political subdivisions in the State with the highest numbers 
of motorcycle crashes) or is designed to educate motorists in those 
jurisdictions that account for a majority of the State's registered 
motorcycles (i.e., the counties or political subdivisions that account 
for a majority of the State's registered motorcycles as evidenced by 
State motor vehicle records);
    (C) Includes marketing and educational efforts to enhance 
motorcyclist awareness; and
    (D) Uses a mix of communication mechanisms to draw attention to the 
problem (e.g., newspapers, billboard advertisements, email, posters, 
flyers, mini-planners, or instructor-led training sessions).
    (g) Reduction of fatalities and crashes involving motorcycles. (1) 
To satisfy this criterion, a State shall demonstrate a reduction for the 
preceding calendar year in the number of motorcyclist fatalities and in 
the rate of motor vehicle crashes involving motorcycles in the State 
(expressed as a function of 10,000 registered motorcycle registrations), 
as computed by NHTSA. The State shall--
    (i) Experience a reduction of at least one in the number of 
motorcyclist fatalities for the most recent calendar year for which 
final FARS data is available as compared to the final FARS data for the 
calendar year immediately prior to that year; and
    (ii) Based on State crash data expressed as a function of 10,000 
motorcycle registrations (using FHWA motorcycle registration data), 
experience at least a whole number reduction in the rate of crashes 
involving motorcycles for the most recent calendar year for which final 
State crash data is available, but data no older than two calendar years 
prior to the application due date, as compared to the calendar year 
immediately prior to that year.
    (2) To demonstrate compliance with this criterion, the State shall 
submit--
    (i) State data showing the total number of motor vehicle crashes 
involving motorcycles in the State for the most recent calendar year for 
which final State crash data is available, but data no older than two 
calendar years prior to the application due date and the same type of 
data for the calendar year immediately prior to that year (e.g., for a 
grant application submitted on July 1, 2013, the State shall submit 
calendar year 2012 data and 2011 data, if both data are available, and 
may not provide data older than calendar year 2011 and 2010, to 
determine the rate); and
    (ii) A description of the State's methods for collecting and 
analyzing data submitted in paragraph (g)(2)(i) of this section, 
including a description of the State's efforts to make reporting of 
motor vehicle crashes involving motorcycles as complete as possible.
    (h) Impaired driving program. (1) To satisfy this criterion, a State 
shall implement a statewide program to reduce impaired driving, 
including specific measures to reduce impaired motorcycle operation. The 
program shall--
    (i) Use State data to identify and prioritize the State's impaired 
driving

[[Page 643]]

and impaired motorcycle operation problem areas; and
    (ii) Include specific countermeasures to reduce impaired motorcycle 
operation with strategies designed to reach motorcyclists and motorists 
in those jurisdictions where the incidence of motorcycle crashes 
involving an impaired operator is highest.
    (2) To demonstrate compliance with this criterion, the State shall 
submit--
    (i) State data used to identify and prioritize the State's impaired 
driving and impaired motorcycle operation problem areas, including a 
list of counties or political subdivisions in the State ranked in order 
of the highest to lowest number of motorcycle crashes involving an 
impaired operator per county or political subdivision. Such data shall 
be from the most recent calendar year for which final State crash data 
is available, but data no older than two calendar years prior to the 
application due date (e.g., for a grant application submitted on July 1, 
2013, a State shall provide calendar year 2012 data, if available, and 
may not provide data older than calendar year 2011);
    (ii) A detailed description of the State's impaired driving program 
as implemented, including a description of each countermeasure 
established and proposed by the State to reduce impaired motorcycle 
operation, the amount of funds allotted or proposed for each 
countermeasure and a description of its specific strategies that are 
designed to reach motorcyclists and motorists in those jurisdictions 
where the incidence of motorcycle crashes involving an impaired operator 
is highest (i.e., the majority of counties or political subdivisions in 
the State with the highest numbers of motorcycle crashes involving an 
impaired operator); and
    (iii) The legal citation(s) to the State statute or regulation 
defining impairment. (A State is not eligible for a grant under this 
criterion if its legal alcohol-impairment level exceeds .08 BAC.)
    (i) Reduction of fatalities and accidents involving impaired 
motorcyclists. (1) To satisfy this criterion, a State shall demonstrate 
a reduction for the preceding calendar year in the number of fatalities 
and in the rate of reported crashes involving alcohol-impaired and drug-
impaired motorcycle operators (expressed as a function of 10,000 
motorcycle registrations), as computed by NHTSA. The State shall--
    (i) Experience a reduction of at least one in the number of 
fatalities involving alcohol-and drug-impaired motorcycle operators for 
the most recent calendar year for which final FARS data is available as 
compared to the final FARS data for the calendar year immediately prior 
to that year; and
    (ii) Based on State crash data expressed as a function of 10,000 
motorcycle registrations (using FHWA motorcycle registration data), 
experience at least a whole number reduction in the rate of reported 
crashes involving alcohol-and drug-impaired motorcycle operators for the 
most recent calendar year for which final State crash data is available, 
but data no older than two calendar years prior to the application due 
date, as compared to the calendar year immediately prior to that year.
    (2) To demonstrate compliance with this criterion, the State shall 
submit--
    (i) State data showing the total number of reported crashes 
involving alcohol- and drug-impaired motorcycle operators in the State 
for the most recent calendar year for which final State crash data is 
available, but data no older than two calendar years prior to the 
application due date and the same type of data for the calendar year 
immediately prior to that year (e.g., for a grant application submitted 
on July 1, 2013, the State shall submit calendar year 2012 and 2011 
data, if both data are available, and may not provide data older than 
calendar year 2011 and 2010, to determine the rate); and
    (ii) A description of the State's methods for collecting and 
analyzing data submitted in paragraph (i)(2)(i) of this section, 
including a description of the State's efforts to make reporting of 
crashes involving alcohol-impaired and drug-impaired motorcycle 
operators as complete as possible; and
    (iii) The legal citation(s) to the State statute or regulation 
defining alcohol-impaired and drug-impairment. (A State is not eligible 
for a grant under this criterion if its legal alcohol-impairment level 
exceeds .08 BAC.)

[[Page 644]]

    (j) Use of fees collected from motorcyclists for motorcycle 
programs. (1) To satisfy this criterion, a State shall have a process 
under which all fees collected by the State from motorcyclists for the 
purposes of funding motorcycle training and safety programs are used for 
motorcycle training and safety programs. A State may qualify under this 
criterion as either a Law State or a Data State.
    (i) A Law State is a State that has a statute or regulation 
requiring that all fees collected by the State from motorcyclists for 
the purposes of funding motorcycle training and safety programs are to 
be used for motorcycle training and safety programs.
    (ii) A Data State is a State that does not have a statute or 
regulation requiring that all fees collected by the State from 
motorcyclists for the purposes of funding motorcycle training and safety 
programs are to be used for motorcycle training and safety programs but 
can show through data and/or documentation from official records that 
all fees collected by the State from motorcyclists for the purposes of 
funding motorcycle training and safety programs were, in fact, used for 
motorcycle training and safety programs, without diversion.
    (2)(i) To demonstrate compliance as a Law State, the State shall 
submit the legal citation(s) to the statute or regulation requiring that 
all fees collected by the State from motorcyclists for the purposes of 
funding motorcycle training and safety programs are to be used for 
motorcycle training and safety programs and the legal citation(s) to the 
State's current fiscal year appropriation (or preceding fiscal year 
appropriation, if the State has not enacted a law at the time of the 
State's application) appropriating all such fees to motorcycle training 
and safety programs.
    (ii) To demonstrate compliance as a Data State, a State shall submit 
data or documentation from official records from the previous State 
fiscal year showing that all fees collected by the State from 
motorcyclists for the purposes of funding motorcycle training and safety 
programs were, in fact, used for motorcycle training and safety 
programs. Such data or documentation shall show that revenues collected 
for the purposes of funding motorcycle training and safety programs were 
placed into a distinct account and expended only for motorcycle training 
and safety programs.
    (k) Award limitation. A grant awarded under the procedures described 
in Sec.  1200.20(e)(1) may not exceed the amount of a grant made to 
State for fiscal year 2003 under 23 U.S.C. 402.
    (l) Use of grant funds. (1) Eligible uses. A State may use grant 
funds awarded under this section for motorcyclist safety training and 
motorcyclist awareness programs, including--
    (i) Improvements to motorcyclist safety training curricula;
    (ii) Improvements in program delivery of motorcycle training to both 
urban and rural areas, including--
    (A) Procurement or repair of practice motorcycles;
    (B) Instructional materials;
    (C) Mobile training units; and
    (D) Leasing or purchasing facilities for closed-course motorcycle 
skill training;
    (iii) Measures designed to increase the recruitment or retention of 
motorcyclist safety training instructors; and
    (iv) Public awareness, public service announcements, and other 
outreach programs to enhance driver awareness of motorcyclists, such as 
the ``share-the-road'' safety messages developed using Share-the-Road 
model language available on NHTSA's Web site at http://
www.trafficsafetymarketing.gov.
    (2) Suballocation of funds. A State that receives a grant under this 
section may suballocate funds from the grant to a nonprofit organization 
incorporated in that State to carry out grant activities under this 
section.



Sec.  1200.26  State graduated driver licensing incentive grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(g), for awarding grants to States that adopt and implement 
graduated driver's licensing laws that require novice drivers younger 
than 21 years of age to comply with a 2-stage licensing process prior to 
receiving a full driver's license.
    (b) Definitions. As used in this section--

[[Page 645]]

    Conviction-free means that, during the term of the permit or license 
covered by the program, the driver has not been convicted of any offense 
under State or local law relating to the use or operation of a motor 
vehicle, including but not limited to driving while intoxicated, 
reckless driving, driving without wearing a seat belt, speeding, 
prohibited use of a personal wireless communications device, and 
violation of the driving-related restrictions applicable to the stages 
of the graduated driver's licensing process set forth in paragraph (c) 
of this section, as well as misrepresentation of a driver's true age.
    Driving, for purposes of paragraph (c)(2)(iii) of this section, 
means operating a motor vehicle on a public road, including operation 
while temporarily stationary because of traffic, a traffic light or stop 
sign, or otherwise, but does not include operating a motor vehicle when 
the vehicle has pulled over to the side of, or off, an active roadway 
and has stopped in a location where it can safely remain stationary.
    Full driver's license means a license to operate a passenger motor 
vehicle on public roads at all times.
    Licensed driver means a driver who possesses a valid full driver's 
license.
    Novice driver means a driver who has not been issued by a State an 
intermediate license or full driver's license.
    (c) Qualification criteria. (1) General. To qualify for a grant 
under this section, a State shall submit the assurances in Part 6 of 
Appendix D, signed by the Governor's Representative for Highway Safety, 
providing legal citations to the State statute or statutes demonstrating 
compliance with the requirements of paragraph (c)(2) of this section, 
and provide legal citation(s) to the statute or regulation or provide 
documentation demonstrating compliance with the requirements of 
paragraph (c)(3) of this section.
    (2) Graduated driver's licensing law. A State's graduated driver's 
licensing law shall include a learner's permit stage and an intermediate 
stage meeting the following minimum requirements:
    (i) The learner's permit stage shall--
    (A) Apply to any novice driver who is younger than 21 years of age 
prior to the receipt by such driver from the State of any other permit 
or license to operate a motor vehicle;
    (B) Commence only after an applicant for a leaner's permit passes 
vision and knowledge tests, including tests about the rules of the road, 
signs, and signals;
    (C) Subject to paragraph (c)(2)(iii)(B), be in effect for a period 
of at least six months, but may not expire until the driver reaches at 
least 16 years of age; and
    (D) Require the learner's permit holder to--
    (1) Be accompanied and supervised by a licensed driver who is at 
least 21 years of age at all times while the learner's permit holder is 
operating a motor vehicle;
    (2) Receive not less than 40 hours of behind-the-wheel training with 
a licensed driver who is at least 21 years of age;
    (3) Complete a driver education or training course that has been 
certified by the State; and
    (4) Pass a driving skills test prior to entering the intermediate 
stage or being issued another permit, license or endorsement.
    (ii) The intermediate stage shall--
    (A) Apply to any driver who has completed the learner's permit stage 
and who is younger than 18 years of age;
    (B) Commence immediately after the expiration of the learner's 
permit stage;
    (C) Subject to paragraph (c)(2)(iii)(B), be in effect for a period 
of at least six months, but may not expire until the driver reaches at 
least 18 years of age;
    (D) Require the intermediate license holder to be accompanied and 
supervised by a licensed driver who is at least 21 years of age during 
the period of time between the hours of 10:00 p.m. and 5:00 a.m., except 
in case of emergency; and
    (E) Prohibit the intermediate license holder from operating a motor 
vehicle with more than one nonfamilial passenger younger than 21 years 
of age unless a licensed driver who is at least 21 years of age is in 
the motor vehicle.
    (iii) During both the learner's permit and intermediate stages, the 
State shall--
    (A) Impose a prohibition enforced as a primary offense on use of a 
cellular

[[Page 646]]

telephone or any communications device by the driver while driving, 
except in case of emergency; and
    (B) Require that the driver who possesses a learner's permit or 
intermediate license remain conviction-free for a period of not less 
than six consecutive months immediately prior to the expiration of that 
stage.
    (3) Requirement for license distinguishability. The State learner's 
permit, intermediate license, and full driver's license shall be 
distinguishable from each other. A State may satisfy this requirement by 
submitting--
    (i) Legal citations to the State statute or regulation requiring 
that the State learner's permit, intermediate license, and full driver's 
license be visually distinguishable:
    (ii) Sample permits and licenses that contain visual features that 
would enable a law enforcement officer to distinguish between the State 
learner's permit, intermediate license, and full driver's license; or
    (iii) A description of the State's system that enables law 
enforcement officers in the State during traffic stops to distinguish 
between the State learner's permit, intermediate license, and full 
driver's license.
    (4) Exceptions. A State that otherwise meets the minimum 
requirements set forth in paragraph (c)(2) of this section will not be 
deemed ineligible for a grant under this section if--
    (i) The State enacted a law prior to January 1, 2011, establishing a 
class of permit or license that allows drivers younger than 18 years of 
age to operate a motor vehicle--
    (A) In connection with work performed on, or for the operation of, a 
farm owned by family members who are directly related to the applicant 
or licensee; or
    (B) If demonstrable hardship would result from the denial of a 
license to the licensees or applicants, provided that the State requires 
the applicant or licensee to affirmatively and adequately demonstrate 
unique undue hardship to the individual; and
    (ii) Drivers who possess only the permit or license permitted under 
paragraph (c)(4)(i) of this section are treated as novice drivers 
subject to the graduated driver's licensing requirements of paragraph 
(c)(2) of this section as a pre-condition of receiving any other permit, 
license or endorsement.
    (d) Award. (1) Grant Amount. Subject to paragraph (d)(2) of this 
section, grant funds for a fiscal year under this section shall be 
allocated among States that meet the qualification criteria on the basis 
of the apportionment formula under 23 U.S.C. 402 for that fiscal year.
    (2) Limitation. Amount of grant award to a State under this section 
may not exceed 10 percent of the total amount made available for Section 
405(g) for that fiscal year.
    (e) Use of grant funds. A State may use grant funds awarded under 
this section as follows:
    (1) At least 25 percent of the grant funds shall be used, in 
connection with the State's graduated driver's licensing law that 
complies with the minimum requirements set forth in paragraph (c) of 
this section, to:
    (i) Enforce the graduated driver's licensing process;
    (ii) Provide training for law enforcement personnel and other 
relevant State agency personnel relating to the enforcement of the 
graduated driver's licensing process;
    (iii) Publish relevant educational materials that pertain directly 
or indirectly to the State graduated driver's licensing law;
    (iv) Carry out administrative activities to implement the State's 
graduated driver's licensing process; or
    (v) Carry out a teen traffic safety program described in 23 U.S.C. 
402(m);
    (2) No more than 75 percent may be used for any eligible project or 
activity under 23 U.S.C. 402.



          Subpart D_Administration of the Highway Safety Grants



Sec.  1200.30  General.

    Subject to the provisions of this subpart, the requirements of 49 
CFR part 18 and applicable cost principles govern the implementation and 
management of State highway safety programs and projects carried out 
under 23 U.S.C. Chapter 4. Cost principles include those referenced in 
49 CFR 18.22.

[[Page 647]]



Sec.  1200.31  Equipment.

    (a) Title. Except as provided in paragraphs (e) and (f) of this 
section, title to equipment acquired under 23 U.S.C. Chapter 4 will vest 
upon acquisition in the State or its subgrantee, as appropriate.
    (b) Use. All equipment shall be used for the originally authorized 
grant purposes for as long as needed for those purposes, as determined 
by the Approving Official, and neither the State nor any of its 
subgrantees or contractors shall encumber the title or interest while 
such need exists.
    (c) Management and disposition. Subject to the requirement of 
paragraphs (b), (d), (e) and (f) of this section, States and their 
subgrantees and contractors shall manage and dispose of equipment 
acquired under 23 U.S.C. Chapter 4 in accordance with State laws and 
procedures.
    (d) Major purchases and dispositions. Equipment with a useful life 
of more than one year and an acquisition cost of $5,000 or more shall be 
subject to the following requirements--
    (1) Purchases shall receive prior written approval from the 
Approving Official;
    (2) Dispositions shall receive prior written approval from the 
Approving Official unless the age of the equipment has exceeded its 
useful life as determined under State law and procedures.
    (e) Right to transfer title. The Approving Official may reserve the 
right to transfer title to equipment acquired under 23 U.S.C. Chapter 4 
to the Federal Government or to a third party when such third party is 
eligible under Federal statute. Any such transfer shall be subject to 
the following requirements:
    (1) The equipment shall be identified in the grant or otherwise made 
known to the State in writing;
    (2) The Approving Official shall issue disposition instructions 
within 120 calendar days after the equipment is determined to be no 
longer needed for highway safety purposes, in the absence of which the 
State shall follow the applicable procedures in 49 CFR part 18.
    (f) Federally-owned equipment. In the event a State or its 
subgrantee is provided Federally-owned equipment:
    (1) Title shall remain vested in the Federal Government;
    (2) Management shall be in accordance with Federal rules and 
procedures, and an annual inventory listing shall be submitted;
    (3) The State or its subgrantee shall request disposition 
instructions from the Approving Official when the item is no longer 
needed for highway safety purposes.



Sec.  1200.32  Changes--Approval of the Approving Official.

    States shall provide documentary evidence of any reallocation of 
funds between program areas by submitting to the NHTSA regional office 
an amended HS Form 217, reflecting the changed allocation of funds and 
updated list of projects under each program area, as provided in Sec.  
1200.11(e), within 30 days of implementing the change. The amended HS 
Form 217 and list of projects is subject to the approval of the 
Approving Official.



Sec.  1200.33  Vouchers and project agreements.

    (a) General. Each State shall submit official vouchers for expenses 
incurred to the Approving Official.
    (b) Content of vouchers. At a minimum, each voucher shall provide 
the following information for expenses claimed in each program area:
    (1) Program Area for which expenses were incurred and an itemization 
of project numbers and amount of Federal funds expended for each project 
for which reimbursement is being sought;
    (2) Federal funds obligated;
    (3) Amount of Federal funds allocated to local benefit (provided no 
less than mid-year (by March 31) and with the final voucher);
    (4) Cumulative Total Cost to Date;
    (5) Cumulative Federal Funds Expended;
    (6) Previous Amount Claimed;
    (7) Amount Claimed this Period;
    (8) Matching rate (or special matching writeoff used, i.e., sliding 
scale rate authorized under 23 U.S.C. 120).
    (c) Project agreements. Copies of each project agreement for which 
expenses

[[Page 648]]

are being claimed under the voucher (and supporting documentation for 
the vouchers) shall be made promptly available for review by the 
Approving Official upon request. Each project agreement shall bear the 
project number to allow the Approving Official to match the voucher to 
the corresponding activity.
    (d) Submission requirements. At a minimum, vouchers shall be 
submitted to the Approving Official on a quarterly basis, no later than 
15 working days after the end of each quarter, except that where a State 
receives funds by electronic transfer at an annualized rate of one 
million dollars or more, vouchers shall be submitted on a monthly basis, 
no later than 15 working days after the end of each month. A final 
voucher shall be submitted to the Approving Official no later than 90 
days after the end of the fiscal year, and all unexpended balances shall 
be carried forward to the current fiscal year.
    (e) Reimbursement. (1) Failure to provide the information specified 
in paragraph (b) of this section shall result in rejection of the 
voucher.
    (2) Failure to meet the deadlines specified in paragraph (d) of this 
section may result in delayed reimbursement.
    (3) Vouchers that request reimbursement for projects whose project 
numbers or amounts claimed do not match the list of projects or exceed 
the estimated amount of Federal funds provided under Sec.  1200.11(e), 
or exceed the allocation of funds to a program area in the HS Form 217, 
shall be rejected, in whole or in part, until an amended list of 
projects and/or estimated amount of Federal funds and an amended HS Form 
217 is submitted to and approved by the Approving Official in accordance 
with Sec.  1200.32.



Sec.  1200.34  Program income.

    (a) Definition. Program income means gross income received by the 
grantee or subgrantee directly generated by a program supported 
activity, or earned only as a result of the grant agreement during the 
period of time between the effective date of the grant award and the 
expiration date of the grant award.
    (b) Inclusions. Program income includes income from fees for 
services performed, from the use or rental of real or personal property 
acquired with grant funds, from the sale of commodities or items 
fabricated under the grant agreement, and from payments of principal and 
interest on loans made with grant funds.
    (c) Exclusions. Program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, taxes, special assessments, 
levies, fines, proceeds from the sale of real property or equipment, 
income from royalties and license fees for copyrighted material, 
patents, and inventions, or interest on any of these.
    (d) Use of program income. (1) Addition. Program income shall 
ordinarily be added to the funds committed to the Highway Safety Plan. 
Such program income shall be used to further the objectives of the 
program area under which it was generated.
    (2) Cost sharing or matching. Program income may be used to meet 
cost sharing or matching requirements only upon written approval of the 
Approving Official. Such use shall not increase the commitment of 
Federal funds.



Sec.  1200.35  Annual Report.

    Within 90 days after the end of the fiscal year, each State shall 
submit an Annual Report describing--
    (a) A general assessment of the State's progress in achieving 
highway safety performance measure targets identified in the Highway 
Safety Plan;
    (b) A general description of the projects and activities funded and 
implemented under the Highway Safety Plan;
    (c) The amount of Federal funds expended on projects from the 
Highway Safety Plan; and
    (d) How the projects funded during the fiscal year contributed to 
meeting the State's highway safety targets. Where data becomes 
available, a State should report progress from prior year projects that 
have contributed to meeting current State highway safety targets.

[[Page 649]]



Sec.  1200.36  Appeals of written decision by Approving Official.

    Review of any written decision regarding the administration of the 
grants by an Approving Official under this subpart may be obtained by 
submitting a written appeal of such decision, signed by the Governor's 
Representative for Highway Safety, to the Approving Official. Such 
appeal shall be forwarded promptly to the NHTSA Associate Administrator, 
Regional Operations and Program Delivery. The decision of the NHTSA 
Associate Administrator shall be final and shall be transmitted to the 
Governor's Representative for Highway Safety through the cognizant 
Approving Official.



                     Subpart E_Annual Reconciliation



Sec.  1200.40  Expiration of the Highway Safety Plan.

    (a) The State's Highway Safety Plan for a fiscal year and the 
State's authority to incur costs under that Highway Safety Plan shall 
expire on the last day of the fiscal year.
    (b) Except as provided in paragraph (c) of this section, each State 
shall submit a final voucher which satisfies the requirements of Sec.  
1200.33 within 90 days after the expiration of the State's Highway 
Safety Plan as provided in paragraph (a) of this section. The final 
voucher constitutes the final financial reconciliation for each fiscal 
year.
    (c) The Approving Official may extend the time period to submit a 
final voucher only in extraordinary circumstances. States shall submit a 
written request for an extension describing the extraordinary 
circumstances that necessitate an extension. The approval of any such 
request for extension shall be in writing, shall specify the new 
deadline for submitting the final voucher, and shall be signed by the 
Approving Official.



Sec.  1200.41  Disposition of unexpended balances.

    (a) Carry-forward balances. Except as provided in paragraph (b) of 
this section, grant funds that remain unexpended at the end of a fiscal 
year and the expiration of a Highway Safety Plan shall be credited to 
the State's highway safety account for the new fiscal year, and made 
immediately available for use by the State, provided the following 
requirements are met:
    (1) The State's new Highway Safety Plan has been approved by the 
Approving Official pursuant to Sec.  1200.14 of this part;
    (2) The State has identified Section 402 carry-forward funds by the 
program area from which they are removed and identified by program area 
the manner in which the carry-forward funds will be used under the new 
Highway Safety Plan.
    (3) The State has identified Section 405 carry-forward funds by the 
national priority safety program under which they were awarded (i.e., 
occupant protection, state traffic safety information system 
improvements, impaired driving, ignition interlock, distracted driving, 
motorcyclist safety or graduated driver licensing). These funds shall 
not be used for any other program.
    (4) The State has submitted for approval an updated HS Form 217 for 
funds identified in paragraph (a)(2) or (a)(3) of this section. 
Reimbursement of costs is contingent upon the approval of updated 
Highway Safety Plan and HS Form 217.
    (5) Funds carried forward from grant programs rescinded by MAP-21 
shall be separately identified and shall be subject to the statutory and 
regulatory requirements that were in force at the time of award.
    (b) Deobligation of funds. (1) Except as provided in paragraph 
(b)(2) of this section, unexpended grant funds shall not be available 
for expenditure beyond the period of three years after the last day of 
the fiscal year of apportionment or allocation.
    (2) NHTSA shall notify States of any such unexpended grant funds no 
later than 180 days prior to the end of the period of availability 
specified in paragraph (b)(1) of this section and inform States of the 
deadline for commitment. States may commit such unexpended grant funds 
to a specific project by the specified deadline, and shall provide 
documentary evidence of that commitment, including a copy of an executed 
project agreement, to the Approving Official.

[[Page 650]]

    (3) Grant funds committed to a specific project in accordance with 
paragraph (b)(2) of this section shall remain committed to that project 
and be expended by the end of the succeeding fiscal year. The final 
voucher for that project shall be submitted within 90 days of the end of 
that fiscal year.
    (4) NHTSA shall deobligate unexpended balances at the end of the 
time period in paragraph (b)(1) or (b)(3) of this section, whichever is 
applicable, and the funds shall lapse.



Sec.  1200.42  Post-grant adjustments.

    The expiration of a Highway Safety Plan does not affect the ability 
of NHTSA to disallow costs and recover funds on the basis of a later 
audit or other review or the State's obligation to return any funds due 
as a result of later refunds, corrections, or other transactions.



Sec.  1200.43  Continuing requirements.

    Notwithstanding the expiration of a Highway Safety Plan, the 
provisions for post-award requirements in 49 CFR part 18, including but 
not limited to equipment and audit, continue to apply to the grant funds 
authorized under 23 U.S.C. Chapter 4.



                        Subpart F_Non-Compliance



Sec.  1200.50  General.

    Where a State is found to be in non-compliance with the requirements 
of the grant programs authorized under 23 U.S.C. Chapter 4 or with 
applicable law, the special conditions for high-risk grantees and the 
enforcement procedures of 49 CFR part 18, the sanctions procedures in 
Sec.  1200.51, and any other sanctions or remedies permitted under 
Federal law may be applied as appropriate.



Sec.  1200.51  Sanctions--Reduction of apportionment.

    (a) Determination of sanctions. (1) The Administrator shall not 
apportion any funds under 23 U.S.C. 402 to any State which is not 
implementing an approved highway safety program.
    (2) If the Administrator has apportioned funds to a State and 
subsequently determines that the State is not implementing an approved 
highway safety program, the Administrator shall reduce the funds 
apportioned under 23 U.S.C. 402 to the State by amounts equal to not 
less than 20 percent, until such time as the Administrator determines 
that the State is implementing an approved highway safety program.
    (3) The Administrator shall consider the gravity of the State's 
failure to implement an approved highway safety program in determining 
the amount of the reduction.
    (4) If the Administrator determines that a State has begun 
implementing an approved highway safety program not later than July 31 
of the fiscal year for which the funds were withheld, the Administrator 
shall promptly apportion to the State the funds withheld from its 
apportionment.
    (5) If the Administrator determines that the State did not correct 
its failure by July 31 of the fiscal year for which the funds were 
withheld, the Administrator shall reapportion the withheld funds to the 
other States, in accordance with the formula specified in 23 U.S.C. 
402(c), not later than the last day of the fiscal year.
    (b) Reconsideration of sanctions determination. (1) In any fiscal 
year, if the Administrator determines that a State is not implementing 
an approved highway safety program in accordance with 23 U.S.C. 402 and 
other applicable Federal law, the Administrator shall issue to the State 
an advance notice, advising the State that the Administrator expects to 
either withhold funds from apportionment under 23 U.S.C. 402, or reduce 
the State's apportioned funds under 23 U.S.C. 402. The Administrator 
shall state the amount of the expected withholding or reduction. The 
advance notice will normally be sent not later than 60 days prior to 
final apportionment.
    (2) If the Administrator issues an advance notice to a State, under 
paragraph (b)(1) of this section, the State may, within 30 days of its 
receipt of the advance notice, submit documentation demonstrating that 
it is implementing an approved highway safety program. Documentation 
shall be submitted to the NHTSA Administrator, 1200 New Jersey Avenue 
SE., Washington, DC 20590.

[[Page 651]]

    (3) If the Administrator decides, after reviewing all relevant 
information submitted, that the State is not implementing an approved 
highway safety program in accordance with 23 U.S.C. 402, the 
Administrator shall issue a final notice, advising the State either of 
the funds being withheld from apportionment under 23 U.S.C. 402, or of 
the amount of funds reduced from the apportionment under 23 U.S.C. 402. 
The final notice will normally be issued no later than September 30. The 
final notice of a reduction will be issued at the time of a final 
decision.



Subpart G_Special Provisions for Fiscal Year 2013 Highway Safety Grants 
          and Highway Safety Grants Under Prior Authorizations



Sec.  1200.60  Fiscal year 2013 Section 402 grants.

    Highway safety grants apportioned under 23 U.S.C. 402 for fiscal 
year 2013 shall be governed by the applicable implementing regulations 
at the time of grant award.



Sec.  1200.61  Fiscal year 2013 Section 405 grants.

    (a) For fiscal year 2013 grants authorized under 23 U.S.C. 405(b), 
(c), (d), (f) and (g), a State shall submit electronically its 
application as provided in Sec.  1200.11(h) to [email protected] no 
later than March 25, 2013.
    (b) If a State's application contains incomplete information, NHTSA 
may request additional information from the State prior to making a 
determination of award for each component of the Section 405 grant 
program. Failure to respond promptly for request of additional 
information may result in a State's disqualification from one or more 
Section 405 grants for fiscal year 2013.
    (c) After reviewing applications and making award determinations, 
NHTSA shall, in writing, distribute funds available for obligation under 
Section 405 to qualifying States and specify any conditions or 
limitations imposed by law on the use of the funds.
    (d) Grant awards are subject to the availability of funds. If there 
are insufficient funds to award full grant amounts to qualifying States, 
NHTSA may release interim amounts and release the remainder, up to the 
State's proportionate share of available funds, when it becomes 
available in the fiscal year.
    (e) The administration, reconciliation and noncompliance provisions 
of subparts D through F of this part apply to fiscal year 2013 grants 
awarded to qualifying States.



Sec.  1200.62  Pre-2013 fiscal year grants.

    Highway safety grants rescinded by MAP-21 are governed by the 
applicable implementing regulations at the time of grant award.





 Sec. Appendix A to Part 1200--Certification and Assurances for Highway 
                   Safety Grants (23 U.S.C. Chapter 4)

State:__________________________________________________________________
Fiscal Year:____

    Each fiscal year the State must sign these Certifications and 
Assurances that it complies with all requirements including applicable 
Federal statutes and regulations that are in effect during the grant 
period. (Requirements that also apply to subrecipients are noted under 
the applicable caption.)
    In my capacity as the Governor's Representative for Highway Safety, 
I hereby provide the following certifications and assurances:

                          GENERAL REQUIREMENTS

    To the best of my personal knowledge, the information submitted in 
the Highway Safety Plan in support of the State's application for 
Section 402 and Section 405 grants is accurate and complete. (Incomplete 
or incorrect information may result in the disapproval of the Highway 
Safety Plan.)
    The Governor is the responsible official for the administration of 
the State highway safety program through a State highway safety agency 
that has adequate powers and is suitably equipped and organized (as 
evidenced by appropriate oversight procedures governing such areas as 
procurement, financial administration, and the use, management, and 
disposition of equipment) to carry out the program. (23 U.S.C. 
402(b)(1)(A))
    The State will comply with applicable statutes and regulations, 
including but not limited to:
     23 U.S.C. Chapter 4--Highway Safety Act of 1966, 
as amended

[[Page 652]]

     49 CFR Part 18--Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments
     23 CFR Part 1200--Uniform Procedures for State 
Highway Safety Grant Programs
    The State has submitted appropriate documentation for review to the 
single point of contact designated by the Governor to review Federal 
programs, as required by Executive Order 12372 (Intergovernmental Review 
of Federal Programs).

       FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT (FFATA)

    The State will comply with FFATA guidance, OMB Guidance on FFATA 
Subward and Executive Compensation Reporting, August 27, 2010, (https://
www.fsrs.gov/documents/OMB_ Guidance_ on_FFATA_Subaward_and_ Executive_ 
Compensation_Reporting _08272010.pdf) by reporting to FSRS.gov for each 
sub-grant awarded:
     Name of the entity receiving the award;
     Amount of the award;
     Information on the award including transaction 
type, funding agency, the North American Industry Classification System 
code or Catalog of Federal Domestic Assistance number (where 
applicable), program source;
     Location of the entity receiving the award and 
the primary location of performance under the award, including the city, 
State, congressional district, and country; and an award title 
descriptive of the purpose of each funding action;
     A unique identifier (DUNS);
     The names and total compensation of the five most 
highly compensated officers of the entity if:
    (i) the entity in the preceding fiscal year received--
    (I) 80 percent or more of its annual gross revenues in Federal 
awards;
    (II) $25,000,000 or more in annual gross revenues from Federal 
awards; and
    (ii) the public does not have access to information about the 
compensation of the senior executives of the entity through periodic 
reports filed under section 13(a) or 15(d) of the Securities Exchange 
Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal 
Revenue Code of 1986;
     Other relevant information specified by OMB 
guidance.

                            NONDISCRIMINATION

              (applies to subrecipients as well as States)

    The State highway safety agency will comply with all Federal 
statutes and implementing regulations relating to nondiscrimination. 
These include but are not limited to: (a) Title VI of the Civil Rights 
Act of 1964 (Pub. L. 88-352), which prohibits discrimination on the 
basis of race, color or national origin (and 49 CFR Part 21); (b) Title 
IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683 
and 1685-1686), which prohibits discrimination on the basis of sex; (c) 
Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 
794), and the Americans with Disabilities Act of 1990 (Pub. L. 101-336), 
as amended (42 U.S.C. 12101, et seq.), which prohibits discrimination on 
the basis of disabilities (and 49 CFR Part 27); (d) the Age 
Discrimination Act of 1975, as amended (42 U.S.C. 6101-6107), which 
prohibits discrimination on the basis of age; (e) the Civil Rights 
Restoration Act of 1987 (Pub. L. 100-259), which requires Federal-aid 
recipients and all subrecipients to prevent discrimination and ensure 
nondiscrimination in all of their programs and activities; (f) the Drug 
Abuse Office and Treatment Act of 1972 (Pub. L. 92-255), as amended, 
relating to nondiscrimination on the basis of drug abuse; (g) the 
comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and 
Rehabilitation Act of 1970 (Pub. L. 91-616), as amended, relating to 
nondiscrimination on the basis of alcohol abuse or alcoholism; (h) 
Sections 523 and 527 of the Public Health Service Act of 1912, as 
amended (42 U.S.C. 290dd-3 and 290ee-3), relating to confidentiality of 
alcohol and drug abuse patient records; (i) Title VIII of the Civil 
Rights Act of 1968, as amended (42 U.S.C. 3601, et seq.), relating to 
nondiscrimination in the sale, rental or financing of housing; (j) any 
other nondiscrimination provisions in the specific statute(s) under 
which application for Federal assistance is being made; and (k) the 
requirements of any other nondiscrimination statute(s) which may apply 
to the application.

          THE DRUG-FREE WORKPLACE ACT OF 1988 (41 U.S.C. 8103)

    The State will provide a drug-free workplace by:
     Publishing a statement notifying employees that 
the unlawful manufacture, distribution, dispensing, possession or use of 
a controlled substance is prohibited in the grantee's workplace and 
specifying the actions that will be taken against employees for 
violation of such prohibition;
     Establishing a drug-free awareness program to 
inform employees about:
    [cir] The dangers of drug abuse in the workplace.
    [cir] The grantee's policy of maintaining a drug-free workplace.
    [cir] Any available drug counseling, rehabilitation, and employee 
assistance programs.
    [cir] The penalties that may be imposed upon employees for drug 
violations occurring in the workplace.
    [cir] Making it a requirement that each employee engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a).

[[Page 653]]

     Notifying the employee in the statement required 
by paragraph (a) that, as a condition of employment under the grant, the 
employee will--
    [cir] Abide by the terms of the statement.
    [cir] Notify the employer of any criminal drug statute conviction 
for a violation occurring in the workplace no later than five days after 
such conviction.
     Notifying the agency within ten days after 
receiving notice under subparagraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction.
     Taking one of the following actions, within 30 
days of receiving notice under subparagraph (d)(2), with respect to any 
employee who is so convicted--
    [cir] Taking appropriate personnel action against such an employee, 
up to and including termination.
    [cir] Requiring such employee to participate satisfactorily in a 
drug abuse assistance or rehabilitation program approved for such 
purposes by a Federal, State, or local health, law enforcement, or other 
appropriate agency.
     Making a good faith effort to continue to 
maintain a drug-free workplace through implementation of all of the 
paragraphs above.

                             BUY AMERICA ACT

              (applies to subrecipients as well as States)

    The State will comply with the provisions of the Buy America Act (49 
U.S.C. 5323(j)), which contains the following requirements:
    Only steel, iron and manufactured products produced in the United 
States may be purchased with Federal funds unless the Secretary of 
Transportation determines that such domestic purchases would be 
inconsistent with the public interest, that such materials are not 
reasonably available and of a satisfactory quality, or that inclusion of 
domestic materials will increase the cost of the overall project 
contract by more than 25 percent. Clear justification for the purchase 
of non-domestic items must be in the form of a waiver request submitted 
to and approved by the Secretary of Transportation.

                     POLITICAL ACTIVITY (HATCH ACT)

              (applies to subrecipients as well as States)

    The State will comply with provisions of the Hatch Act (5 U.S.C. 
1501-1508) which limits the political activities of employees whose 
principal employment activities are funded in whole or in part with 
Federal funds.

                CERTIFICATION REGARDING FEDERAL LOBBYING

              (applies to subrecipients as well as States)

    Certification for Contracts, Grants, Loans, and Cooperative 
Agreements
    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    1. No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of any agency, a Member 
of Congress, an officer or employee of Congress, or an employee of a 
Member of Congress in connection with the awarding of any Federal 
contract, the making of any Federal grant, the making of any Federal 
loan, the entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    2. If any funds other than Federal appropriated funds have been paid 
or will be paid to any person for influencing or attempting to influence 
an officer or employee of any agency, a Member of Congress, an officer 
or employee of Congress, or an employee of a Member of Congress in 
connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    3. The undersigned shall require that the language of this 
certification be included in the award documents for all sub-award at 
all tiers (including subcontracts, subgrants, and contracts under grant, 
loans, and cooperative agreements) and that all subrecipients shall 
certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

                      RESTRICTION ON STATE LOBBYING

              (applies to subrecipients as well as States)

    None of the funds under this program will be used for any activity 
specifically designed to urge or influence a State or local legislator 
to favor or oppose the adoption of any specific legislative proposal 
pending before any State or local legislative body. Such activities 
include both direct and indirect (e.g., ``grassroots'') lobbying 
activities, with one exception. This does not preclude a State official 
whose salary is supported with NHTSA

[[Page 654]]

funds from engaging in direct communications with State or local 
legislative officials, in accordance with customary State practice, even 
if such communications urge legislative officials to favor or oppose the 
adoption of a specific pending legislative proposal.

            CERTIFICATION REGARDING DEBARMENT AND SUSPENSION

              (applies to subrecipients as well as States)

    Instructions for Primary Certification
    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and coverage 
sections of 49 CFR Part 29. You may contact the department or agency to 
which this proposal is being submitted for assistance in obtaining a 
copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR Part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.
    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR Part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the list of Parties Excluded from Federal 
Procurement and Non-procurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR Part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters-Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them

[[Page 655]]

for commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public (Federal, State 
or local) transaction or contract under a public transaction; violation 
of Federal or State antitrust statutes or commission of embezzlement, 
theft, forgery, bribery, falsification or destruction of record, making 
false statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or Local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State, or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the Statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

                Instructions for Lower Tier Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal government, the department or 
agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or has become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definition and Coverage 
sections of 49 CFR Part 29. You may contact the person to whom this 
proposal is submitted for assistance in obtaining a copy of those 
regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR Part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include the clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion--Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions. (See below)
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR Part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Non-procurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR Part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.
    Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion--Lower Tier Covered Transactions:
    1. The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment, declared ineligible, or 
voluntarily excluded from participation in this transaction by any 
Federal department or agency.
    2. Where the prospective lower tier participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[[Page 656]]

                         POLICY ON SEAT BELT USE

    In accordance with Executive Order 13043, Increasing Seat Belt Use 
in the United States, dated April 16, 1997, the Grantee is encouraged to 
adopt and enforce on-the-job seat belt use policies and programs for its 
employees when operating company-owned, rented, or personally-owned 
vehicles. The National Highway Traffic Safety Administration (NHTSA) is 
responsible for providing leadership and guidance in support of this 
Presidential initiative. For information on how to implement such a 
program, or statistics on the potential benefits and cost-savings to 
your company or organization, please visit the Buckle Up America section 
on NHTSA's Web site at www.nhtsa.dot.gov. Additional resources are 
available from the Network of Employers for Traffic Safety (NETS), a 
public-private partnership headquartered in the Washington, DC 
metropolitan area, and dedicated to improving the traffic safety 
practices of employers and employees. NETS is prepared to provide 
technical assistance, a simple, user-friendly program kit, and an award 
for achieving the President's goal of 90 percent seat belt use. NETS can 
be contacted at 1 (888) 221-0045 or visit its Web site at 
www.trafficsafety.org.

             POLICY ON BANNING TEXT MESSAGING WHILE DRIVING

    In accordance with Executive Order 13513, Federal Leadership On 
Reducing Text Messaging While Driving, and DOT Order 3902.10, Text 
Messaging While Driving, States are encouraged to adopt and enforce 
workplace safety policies to decrease crashed caused by distracted 
driving, including policies to ban text messaging while driving company-
owned or -rented vehicles, Government-owned, leased or rented vehicles, 
or privately-owned when on official Government business or when 
performing any work on or behalf of the Government. States are also 
encouraged to conduct workplace safety initiatives in a manner 
commensurate with the size of the business, such as establishment of new 
rules and programs or re-evaluation of existing programs to prohibit 
text messaging while driving, and education, awareness, and other 
outreach to employees about the safety risks associated with texting 
while driving.

                          ENVIRONMENTAL IMPACT

    The Governor's Representative for Highway Safety has reviewed the 
State's Fiscal Year highway safety planning document and hereby declares 
that no significant environmental impact will result from implementing 
this Highway Safety Plan. If, under a future revision, this Plan is 
modified in a manner that could result in a significant environmental 
impact and trigger the need for an environmental review, this office is 
prepared to take the action necessary to comply with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and the 
implementing regulations of the Council on Environmental Quality (40 CFR 
Parts 1500-1517).

                        SECTION 402 REQUIREMENTS

    The political subdivisions of this State are authorized, as part of 
the State highway safety program, to carry out within their 
jurisdictions local highway safety programs which have been approved by 
the Governor and are in accordance with the uniform guidelines 
promulgated by the Secretary of Transportation. (23 U.S.C. 402(b)(1)(B))
    At least 40 percent (or 95 percent, as applicable) of all Federal 
funds apportioned to this State under 23 U.S.C. 402 for this fiscal year 
will be expended by or for the benefit of the political subdivision of 
the State in carrying out local highway safety programs (23 U.S.C. 
402(b)(1)(C), 402(h)(2)), unless this requirement is waived in writing.
    The State's highway safety program provides adequate and reasonable 
access for the safe and convenient movement of physically handicapped 
persons, including those in wheelchairs, across curbs constructed or 
replaced on or after July 1, 1976, at all pedestrian crosswalks. (23 
U.S.C. 402(b)(1)(D))
    The State will provide for an evidenced-based traffic safety 
enforcement program to prevent traffic violations, crashes, and crash 
fatalities and injuries in areas most at risk for such incidents. (23 
U.S.C. 402(b)(1)(E))
    The State will implement activities in support of national highway 
safety goals to reduce motor vehicle related fatalities that also 
reflect the primary data-related crash factors within the State as 
identified by the State highway safety planning process, including:
     Participation in the National high-visibility law 
enforcement mobilizations;
     Sustained enforcement of statutes addressing 
impaired driving, occupant protection, and driving in excess of posted 
speed limits;
     An annual statewide seat belt use survey in 
accordance with 23 CFR Part 1340 for the measurement of State seat belt 
use rates;
     Development of statewide data systems to provide 
timely and effective data analysis to support allocation of highway 
safety resources;
     Coordination of Highway Safety Plan, data 
collection, and information systems with the State strategic highway 
safety plan, as defined in 23 U.S.C. 148(a).

                        (23 U.S.C. 402(b)(1)(F))

    The State will actively encourage all relevant law enforcement 
agencies in the State to follow the guidelines established for vehicular 
pursuits issued by the International

[[Page 657]]

Association of Chiefs of Police that are currently in effect. (23 U.S.C. 
402(j))
    The State will not expend Section 402 funds to carry out a program 
to purchase, operate, or maintain an automated traffic enforcement 
system. (23 U.S.C. 402(c)(4))
    I understand that failure to comply with applicable Federal statutes 
and regulations may subject State officials to civil or criminal 
penalties and/or place the State in a high risk grantee status in 
accordance with 49 CFR 18.12.
    I sign these Certifications and Assurances based on personal 
knowledge, after appropriate inquiry, and I understand that the 
Government will rely on these representations in awarding grant funds.
________________________________________________________________________
Signature Governor's Representative for Highway Safety Date
________________________________________________________________________
Date
________________________________________________________________________
Printed name of Governor's Representative for Highway Safety



 Sec. Appendix B to Part 1200--Highway Safety Program Cost Summary (HS-
                                  217)

State _____
Number _____
Date _____

----------------------------------------------------------------------------------------------------------------
                                                                    Federally funded programs
                                    Approved      State/   ------------------------------------------   Federal
          Program area               program       local      Previous       Increase/      Current    share to
                                      costs        funds       balance      (Decrease)      Balance      local
----------------------------------------------------------------------------------------------------------------
Total NHTSA                       ............  ..........  ............  ..............  ..........
Total FHWA                        ............  ..........  ............  ..............  ..........
    Total NHTSA & FHWA            ............  ..........  ............  ..............  ..........  ..........
----------------------------------------------------------------------------------------------------------------

                  State Official Authorized Signature:

Name:
Title:
Date:

                 Federal Official Authorized Signature:

NHTSA Name:
Title:
Date:

    Effective Date: This form is to be used to provide funding 
documentation for grant programs under Title 23, United States Code. A 
federal agency may not conduct or sponsor, and a person is not required 
to respond to, nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a current valid OMB Control Number. The OMB Control Number for 
this information collection is _______. Public reporting for this 
collection of information is estimated to be approximately 30 minutes 
per response, including the time for reviewing instructions and 
completing the form. All responses to this collection of information are 
required to obtain or retain benefits. Send comments regarding this 
burden estimate or any other aspect of this collection of information, 
including suggestions for reducing this burden to: Information 
Collection Clearance Officer, National Highway Traffic Safety 
Administration, 1200 New Jersey Avenue SE., Washington DC 20590.

                  INSTRUCTIONS FOR PROGRAM COST SUMMARY

    State--The State submitting the HS Form-217
    Number--Each HS-217 will be in sequential order by fiscal year 
(e.g., 99-01, 99-02, etc.)
    Date--The date of occurrence of the accounting action(s) described.
    Program Area--The code designating a program area (e.g., PT-99, 
where PT represents the Police Traffic Services and 99 represents the 
Federal fiscal year). Funds should be entered only at the program area 
level, not at the task level or lower.
    Approved Program Costs--The current balance of Federal funds 
approved (but not obligated) under the HSP or under any portion of or 
amendment to the HSP.
    State/local Funds--Those funds which the State and its political 
subdivisions are contributing to the program, including both hard and 
soft match.
    Previous Balance--The balance of Federal funds obligated and 
available for expenditure by the State in the current fiscal year, as of 
the last Federally-approved transaction. The total of this column may 
not exceed the sum of the State's current year obligation limitation and 
prior year funds carried forward. (The column is left blank on the 
updated Cost Summary required to be submitted under 23 CFR 1200.11(e). 
For subsequent submissions, the amounts in this column are obtained from 
the ``Current Balance'' column of the immediately preceding Cost 
Summary.)
    Increase/(Decrease)--The amount of change in Federal funding, by 
program area, from

[[Page 658]]

the funding reflected under the ``Previous Balance''.
    Current Balance--The net total of the ``Previous Balance'' and the 
``Increase/(Decrease)'' amounts. The total of this column may not exceed 
the sum of the State's current year obligation limitation and prior year 
funds carried forward.



Sec. Appendix C to Part 1200--Assurances for Teen Traffic Safety Program

State:__________________________________________________________________

Fiscal Year:____________________________________________________________

    The State has elected to implement a Teen Traffic Safety Program--a 
statewide program to improve traffic safety for teen drivers--in 
accordance with 23 U.S.C. 402(m).
    In my capacity as the Governor's Representative for Highway Safety, 
I have verified that--
     The Teen Traffic Safety Program is a separately 
described Program Area in the Highway Safety Plan, including a specific 
description of the strategies and projects, and appears in HSP page 
number(s) _____________.
     as required under 23 U.S.C. 402(m), the statewide 
efforts described in the pages identified above include peer-to-peer 
education and prevention strategies the State will use in schools and 
communities that are designed to--
    [cir] increase seat belt use;
    [cir] reduce speeding;
    [cir] reduce impaired and distracted driving;
    [cir] reduce underage drinking; and
    [cir] reduce other behaviors by teen drivers that lead to injuries 
and fatalities.
________________________________________________________________________
Signature Governor's Representative for Highway Safety
Date __________
________________________________________________________________________
Printed name of Governor's Representative for Highway Safety



Sec. Appendix D to Part 1200--Certifications and Assurances for National 
             Priority Safety Program Grants (23 U.S.C. 405)

State:__________________________________________________________________
Fiscal Year: ___

    Each fiscal year the State must sign these Certifications and 
Assurances that it complies with all requirements, including applicable 
Federal statutes and regulations that are in effect during the grant 
period.
    In my capacity as the Governor's Representative for Highway Safety, 
I:
     certify that, to the best of my personal 
knowledge, the information submitted to the National Highway Traffic 
Safety Administration in support of the State's application for Section 
405 grants below is accurate and complete.
     understand that incorrect, incomplete, or 
untimely information submitted in support of the State's application may 
result in the denial of an award under Section 405.
     agree that, as condition of the grant, the State 
will use these grant funds in accordance with the specific requirements 
of Section 405(b), (c), (d), (e), (f) and (g), as applicable.
     agree that, as a condition of the grant, the 
State will comply with all applicable laws and regulations and financial 
and programmatic requirements for Federal grants.
________________________________________________________________________
Signature Governor's Representative for Highway Safety
________________________________________________________________________
Date
________________________________________________________________________
Printed name of Governor's Representative for Highway Safety

    Instructions: Check the box for each part for which the State is 
applying for a grant, fill in relevant blanks, and identify the 
attachment number or page numbers where the requested information 
appears in the HSP. Attachments may be submitted electronically.

           [squ] Part 1: Occupant Protection (23 CFR 1200.21)

    All States: [Fill in all blanks below.]
     The State will maintain its aggregate 
expenditures from all State and local sources for occupant protection 
programs at or above the average level of such expenditures in fiscal 
years 2010 and 2011. (23 U.S.C. 405(a)(1)(H))
     The State will participate in the Click it or 
Ticket national mobilization in the fiscal year of the grant. The 
description of the State's planned participation is provided as HSP 
attachment or page  __.
     The State's occupant protection plan for the 
upcoming fiscal year is provided as HSP attachment or page  __.
     Documentation of the State's active network of 
child restraint inspection stations is provided as HSP attachment or 
page  __.
     The State's plan for child passenger safety 
technicians is provided as HSP attachment or page  __.
    Lower Seat belt Use States: [Check at least 3 boxes below and fill 
in all blanks under those checked boxes.]
    [squ] The State's primary seat belt use law, requiring all occupants 
riding in a passenger motor vehicle to be restrained in a seat belt or a 
child restraint, was enacted on __/__/__ and last amended on __/__/__, 
is in effect, and will be enforced during the fiscal year of the grant.
Legal citation(s):
________________________________________________________________________

[[Page 659]]

________________________________________________________________________

    [squ] The State's occupant protection law, requiring occupants to be 
secured in a seat belt or age-appropriate child restraint while in a 
passenger motor vehicle and a minimum fine of $25, was enacted on __/__/
__ and last amended on __/__/__, is in effect, and will be enforced 
during the fiscal year of the grant.
    Legal citations:
     __________ Requirement for all occupants to be 
secured in seat belt or age appropriate child restraint
     __________ Coverage of all passenger motor 
vehicles
     __________ Minimum fine of at least $25
     __________ Exemptions from restraint requirements
    [squ] The State's seat belt enforcement plan is provided as HSP 
attachment or page  __.
    [squ] The State's comprehensive occupant protection program is 
provided as HSP attachment  __.
    [Check one box below and fill in any blanks under that checked box.]
    [squ] The State's NHTSA-facilitated occupant protection program 
assessment was conducted on __/__/__;
    OR
    [squ] The State agrees to conduct a NHTSA-facilitated occupant 
protection program assessment by September 1 of the fiscal year of the 
grant. (This option is available only for fiscal year 2013 grants.)

 [squ] Part 2: State Traffic Safety Information System Improvements (23 
                              CFR 1200.22)

     The State will maintain its aggregate 
expenditures from all State and local sources for traffic safety 
information system programs at or above the average level of such 
expenditures in fiscal years 2010 and 2011.
    [Fill in at least one blank for each bullet below.]
     A copy of [check one box only] the [square] TRCC 
charter or the [square] statute legally mandating a State TRCC is 
provided as HSP attachment  __ or submitted electronically through the 
TRIPRS database on __/__/__.
     A copy of meeting schedule and all reports and 
other documents promulgated by the TRCC during the 12 months preceding 
the application due date is provided as HSP attachment  __ or submitted 
electronically through the TRIPRS database on __/__/__.
     A list of the TRCC membership and the 
organization and function they represent is provided as HSP attachment  
__ or submitted electronically through the TRIPRS database on __/__/__.
     The name and title of the State's Traffic Records 
Coordinator is
________________________________________________________________________
________________________________________________________________________
     A copy of the State Strategic Plan, including any 
updates, is provided as HSP attachment  __ or submitted electronically 
through the TRIPRS database on __/__/__.
     [Check one box below and fill in any blanks under 
that checked box.]
    [squ] The following pages in the State's Strategic Plan provides a 
written description of the performance measures, and all supporting 
data, that the State is relying on to demonstrate achievement of the 
quantitative improvement in the preceding 12 months of the application 
due date in relation to one or more of the significant data program 
attributes: pages _____.
    OR
    [squ] If not detailed in the State's Strategic Plan, the written 
description is provided as HSP attachment  __.
     The State's most recent assessment or update of 
its highway safety data and traffic records system was completed on __/
__/__.

     [squ] Part 3: Impaired Driving Countermeasures (23 CFR 1200.23)

    All States:
     The State will maintain its aggregate 
expenditures from all State and local sources for impaired driving 
programs at or above the average level of such expenditures in fiscal 
years 2010 and 2011.
     The State will use the funds awarded under 23 
U.S.C. 405(d) only for the implementation of programs as provided in 23 
CFR 1200.23(i) in the fiscal year of the grant.
    Mid-Range State:
     [Check one box below and fill in any blanks under 
that checked box.]
    [squ] The statewide impaired driving plan approved by a statewide 
impaired driving task force was issued on __/__/__ and is provided as 
HSP attachment  __.
    OR
    [squ] For this first year of the grant as a mid-range State, the 
State agrees to convene a statewide impaired driving task force to 
develop a statewide impaired driving plan and submit a copy of the plan 
to NHTSA by September 1 of the fiscal year of the grant.
     A copy of information describing the statewide 
impaired driving task force is provided as HSP attachment  __.
    High-Range State:
    [Check one box below and fill in any blanks under that checked box.]
    [squ] A NHTSA-facilitated assessment of the State's impaired driving 
program was conducted on __/__/__;
    OR
    [squ] For the first year of the grant as a high-range State, the 
State agrees to conduct a NHTSA-facilitated assessment by September 1 of 
the fiscal year of the grant;

[[Page 660]]

     [Check one box below and fill in any blanks under 
that checked box.]
    [squ] For the first year of the grant as a high-range State, the 
State agrees to convene a statewide impaired driving task force to 
develop a statewide impaired driving plan addressing recommendations 
from the assessment and submit the plan to NHTSA for review and approval 
by September 1 of the fiscal year of the grant;
    OR
    [squ] For subsequent years of the grant as a high-range State, the 
statewide impaired driving plan developed or updated on __/__/__ is 
provided as HSP attachment  __.
     A copy of the information describing the 
statewide impaired driving task force is provided as HSP attachment  
__.
    Ignition Interlock Law: [Fill in all blanks below.]
     The State's ignition interlock law was enacted on 
__/__/__ and last amended on __/__/__, is in effect, and will be 
enforced during the fiscal year of the grant.
    Legal citation(s):
._______________________________________________________________________

            [squ] Part 4: Distracted Driving (23 CFR 1200.24)

    [Fill in all blanks below.]
    Prohibition on Texting While Driving
    The State's texting ban statute, prohibiting texting while driving, 
a minimum fine of at least $25, and increased fines for repeat offenses, 
was enacted on __/__/__ and last amended on __/__/__, is in effect, and 
will be enforced during the fiscal year of the grant.
    Legal citations:
     __________ Prohibition on texting while driving
     __________ Definition of covered wireless 
communication devices
     __________ Minimum fine of at least $25 for first 
offense
     __________ Increased fines for repeat offenses
     __________ Exemptions from texting ban

            Prohibition on Youth Cell Phone Use While Driving

    The State's youth cell phone use ban statute, prohibiting youth cell 
phone use while driving, driver license testing of distracted driving 
issues, a minimum fine of at least $25, increased fines for repeat 
offenses, was enacted on __/__/__ and last amended on __/__/__, is in 
effect, and will be enforced during the fiscal year of the grant.
    Legal citations:
     __________ Prohibition on youth cell phone use 
while driving
     __________ Driver license testing of distracted 
driving issues
     __________ Minimum fine of at least $25 for first 
offense
     __________ Increased fines for repeat offenses
     __________ Exemptions from youth cell phone use 
ban

           [squ] Part 5: Motorcyclist Safety (23 CFR 1200.25)

    [Check at least 2 boxes below and fill in any blanks under those 
checked boxes.]
    [squ] Motorcycle riding training course:
     Copy of official State document (e.g., law, 
regulation, binding policy directive, letter from the Governor) 
identifying the designated State authority over motorcyclist safety 
issues is provided as HSP attachment  __.
     Document(s) showing the designated State 
authority approving the training curriculum that includes instruction in 
crash avoidance and other safety-oriented operational skills for both 
in-class and on-the-motorcycle is provided as HSP attachment  __.
     Document(s) regarding locations of the motorcycle 
rider __.
     Document showing that certified motorcycle rider 
training instructors teach the motorcycle riding training course is 
provided as HSP attachment  __.
     Description of the quality control procedures to 
assess motorcycle rider training courses and instructor training courses 
and actions taken to improve courses is provided as HSP attachment  __.
    [ballot] Motorcyclist awareness program:
     Copy of official State document (e.g., law, 
regulation, binding policy directive, letter from the Governor) 
identifying the designated State authority over motorcyclist safety 
issues is provided as HSP attachment  __.
     Letter from the Governor's Representative for 
Highway Safety regarding the development of the motorcyclist awareness 
program is provided as HSP attachment  __.
     Data used to identify and prioritize the State's 
motorcyclist safety program areas is provided as HSP attachment or page 
 __.
     Description of how the State achieved 
collaboration among agencies and organizations regarding motorcycle 
safety issues is provided as HSP attachment  or page __.
     Copy of the State strategic communications plan 
is provided as HSP attachment  __.
    [ballot] Reduction of fatalities and crashes involving motorcycles:
     Data showing the total number of motor vehicle 
crashes involving motorcycles is provided as HSP attachment or page  
__.
     Description of the State's methods for collecting 
and analyzing data is provided as HSP attachment or page  __.
    [ballot] Impaired driving program:

[[Page 661]]

     Data used to identify and prioritize the State's 
impaired driving and impaired motorcycle operation problem areas is 
provided as HSP attachment or page  __.
     Detailed description of the State's impaired 
driving program is provided as HSP attachment or page  __.
     The State law or regulation defines impairment. 
Legal citation(s):
________________________________________________________________________
    [ballot] Reduction of fatalities and accidents involving impaired 
motorcyclists:
     Data showing the total number of reported crashes 
involving alcohol-impaired and drug-impaired motorcycle operators is 
provided as HSP attachment or page  __.
     Description of the State's methods for collecting 
and analyzing data is provided as HSP attachment or page  __.
     The State law or regulation defines impairment. 
Legal citation(s):
________________________________________________________________________
    [ballot] Use of fees collected from motorcyclists for motorcycle 
programs: [Check one box below and fill in any blanks under the checked 
box.]
    [ballot] Applying as a Law State--
     The State law or regulation requires all fees 
collected by the State from motorcyclists for the purpose of funding 
motorcycle training and safety programs are to be used for motorcycle 
training and safety programs. Legal citation(s):
________________________________________________________________________
    AND
     The State's law appropriating funds for FY __ 
requires all fees collected by the State from motorcyclists for the 
purpose of funding motorcycle training and safety programs be spent on 
motorcycle training and safety programs. Legal citation(s):
________________________________________________________________________
    [ballot] Applying as a Data State--
     Data and/or documentation from official State 
records from the previous fiscal year showing that all fees collected by 
the State from motorcyclists for the purpose of funding motorcycle 
training and safety programs were used for motorcycle training and 
safety programs is provided as HSP attachment  __.

 [ballot] Part 6: State Graduated Driver Licensing Laws (23 CFR 1200.26)

    [Fill in all applicable blanks below.]
    The State's graduated driver licensing statute, requiring both a 
learner's permit stage and intermediate stage prior to receiving a full 
driver's license, was enacted on __/__/__ and last amended on __/__/__, 
is in effect, and will be enforced during the fiscal year of the grant.
    Learner's Permit Stage--requires testing and education, driving 
restrictions, minimum duration, and applicability to novice drivers 
younger than 21 years of age.
    Legal citations:
     __________ Testing and education requirements
     __________ Driving restrictions
     __________ Minimum duration
     __________ Applicability to notice drivers 
younger than 21 years of age
     __________ Exemptions from graduated driver 
licensing law
    Intermediate Stage--requires driving restrictions, minimum duration, 
and applicability to any driver who has completed the learner's permit 
stage and who is younger than 18 years of age.
    Legal citations:
     __________ Driving restrictions
     __________ Minimum duration
     __________ Applicability to any driver who has 
completed the learner's permit stage and is younger than 18 years of age
     __________ Exemptions from graduated driver 
licensing law

 Additional Requirements During Both Learner's Permit and Intermediate 
                                 Stages

    Prohibition enforced as a primary offense on use of a cellular 
telephone or any communications device by the driver while driving, 
except in case of emergency. Legal citation(s):
________________________________________________________________________
    Requirement that the driver who possesses a learner's permit or 
intermediate license remain conviction-free for a period of not less 
than six consecutive months immediately prior to the expiration of that 
stage. Legal citation(s):
________________________________________________________________________
    License Distinguishability (Check one box below and fill in any 
blanks under that checked box.)
    [ballot] Requirement that the State learner's permit, intermediate 
license, and full driver's license are visually distinguishable. Legal 
citation(s):
________________________________________________________________________
________________________________________________________________________
    OR
    [ballot] Sample permits and licenses containing visual features that 
would enable a law enforcement officer to distinguish between the State 
learner's permit, intermediate license, and full driver's license, are 
provided as HSP attachment ____.
    OR
    [ballot] Description of the State's system that enables law 
enforcement officers in the State during traffic stops to distinguish 
between the State learner's permit, intermediate license, and full 
driver's license, are provided as HSP attachment ____.



  Sec. Appendix E to Part 1200--Participation by Political Subdivisions

    (a) Policy. To ensure compliance with the provisions of 23 U.S.C. 
402(b)(1)(C) and 23

[[Page 662]]

U.S.C. 402(h)(2), which require that at least 40 percent or 95 percent 
of all Federal funds apportioned under Section 402 to the State or the 
Secretary of Interior, respectively, will be expended by political 
subdivisions of the State, including Indian tribal governments, in 
carrying out local highway safety programs, the NHTSA Approving Official 
will determine if the political subdivisions had an active voice in the 
initiation, development and implementation of the programs for which 
funds apportioned under 23 U.S.C. 402 are expended.
    (b) Terms.
    Local participation refers to the minimum 40 percent or 95 percent 
(Indian Nations) that must be expended by or for the benefit of 
political subdivisions.
    Political subdivision includes Indian tribes, for purpose and 
application to the apportionment to the Secretary of Interior.
    (c) Determining local share.
    (1) In determining whether a State meets the local share requirement 
in a fiscal year, NHTSA will apply the requirement sequentially to each 
fiscal year's apportionments, treating all apportionments made from a 
single fiscal year's authorizations as a single entity for this purpose. 
Therefore, at least 40 percent of each State's apportionments (or at 
least 95 percent of the apportionment to the Secretary of Interior) from 
each year's authorizations must be used in the highway safety programs 
of its political subdivisions prior to the period when funds would 
normally lapse. The local participation requirement is applicable to the 
State's total federally funded safety program irrespective of Standard 
designation or Agency responsibility.
    (2) When Federal funds apportioned under 23 U.S.C. 402 are expended 
by a political subdivision, such expenditures are clearly part of the 
local share. Local highway safety-project-related expenditures and 
associated indirect costs, which are reimbursable to the grantee local 
governments, are classifiable as local share. Illustrations of such 
expenditures are the costs incurred by a local government in planning 
and administration of highway safety project-related activities, such as 
occupant protection, traffic records system improvements, emergency 
medical services, pedestrian and bicycle safety activities, police 
traffic services, alcohol and other drug countermeasures, motorcycle 
safety, and speed control.
    (3) When Federal funds apportioned under 23 U.S.C. 402 are expended 
by a State agency for the benefit of a political subdivision, such funds 
may be considered as part of the local share, provided that the 
political subdivision has had an active voice in the initiation, 
development, and implementation of the programs for which such funds are 
expended. A State may not arbitrarily ascribe State agency expenditures 
as ``benefitting local government.'' Where political subdivisions have 
had an active voice in the initiation, development, and implementation 
of a particular program or activity, and a political subdivision which 
has not had such active voice agrees in advance of implementation to 
accept the benefits of the program, the Federal share of the cost of 
such benefits may be credited toward meeting the local participation 
requirement. Where no political subdivisions have had an active voice in 
the initiation, development, and implementation of a particular program, 
but a political subdivision requests the benefits of the program as part 
of the local government's highway safety program, the Federal share of 
the cost of such benefits may be credited toward meeting the local 
participation requirement. Evidence of consent and acceptance of the 
work, goods or services on behalf of the local government must be 
established and maintained on file by the State until all funds 
authorized for a specific year are expended and audits completed.
    (4) State agency expenditures which are generally not classified as 
local are within such areas as vehicle inspection, vehicle registration 
and driver licensing. However, where these areas provide funding for 
services such as driver improvement tasks administered by traffic 
courts, or where they furnish computer support for local government 
requests for traffic record searches, these expenditures are 
classifiable as benefitting local programs.
    (d) Waivers. While the local participation requirement may be waived 
in whole or in part by the NHTSA Administrator, it is expected that each 
State program will generate political subdivision participation to the 
extent required by the Act so that requests for waivers will be 
minimized. Where a waiver is requested, however, it must be documented 
at least by a conclusive showing of the absence of legal authority over 
highway safety activities at the political subdivision levels of the 
State and must recommend the appropriate percentage participation to be 
applied in lieu of the local share.



  Sec. Appendix F to Part 1200--Planning and Administration (P&A) Costs

    (a) Policy. Federal participation in P&A activities shall not exceed 
50 percent of the total cost of such activities, or the applicable 
sliding scale rate in accordance with 23 U.S.C. 120. The Federal 
contribution for P&A activities shall not exceed 13 percent of the total 
funds the State receives under 23 U.S.C. 402. In accordance with 23 
U.S.C. 120(i), the Federal share payable for projects in the U.S. Virgin 
Islands, Guam, American Samoa and the Commonwealth of the Northern 
Mariana Islands shall be 100 percent. The Indian country, as defined by 
23 U.S.C. 402(h), is exempt from these provisions. NHTSA funds

[[Page 663]]

shall be used only to finance P&A activities attributable to NHTSA 
programs.
    (b) Terms.
    Direct costs are those costs identified specifically with a 
particular planning and administration activity or project. The salary 
of an accountant on the State Highway Safety Agency staff is an example 
of a direct cost attributable to P&A. The salary of a DWI (Driving While 
Intoxicated) enforcement officer is an example of direct cost 
attributable to a project.
    Indirect costs are those costs (1) incurred for a common or joint 
purpose benefiting more than one cost objective within a governmental 
unit and (2) not readily assignable to the project specifically 
benefited. For example, centralized support services such as personnel, 
procurement, and budgeting would be indirect costs.
    Planning and administration (P&A) costs are those direct and 
indirect costs that are attributable to the management of the Highway 
Safety Agency. Such costs could include salaries, related personnel 
benefits, travel expenses, and rental costs specific to the Highway 
Safety Agency.
    Program management costs are those costs attributable to a program 
area (e.g., salary and travel expenses of an impaired driving program 
manager/coordinator of a State Highway Safety Agency).
    (c) Procedures. (1) P&A activities and related costs shall be 
described in the P&A module of the State's Highway Safety Plan. The 
State's matching share shall be determined on the basis of the total P&A 
costs in the module. Federal participation shall not exceed 50 percent 
(or the applicable sliding scale) of the total P&A costs. A State shall 
not use NHTSA funds to pay more than 50 percent of the P&A costs 
attributable to NHTSA programs. In addition, the Federal contribution 
for P&A activities shall not exceed 13 percent of the total funds in the 
State received under 23 U.S.C. 402 each fiscal year.
    (2) A State at its option may allocate salary and related costs of 
State highway safety agency employees to one of the following:
    (i) P&A
    (ii) Program management of one or more program areas contained in 
the HSP; or
    (iii) Combination of P&A activities and the program management 
activities in one or more program areas.
    (3) If an employee works solely performing P&A activities, the total 
salary and related costs may be programmed to P&A. If the employee works 
performing program management activities in one or more program areas, 
the total salary and related costs may be charged directly to the 
appropriate area(s). If an employee is working time on a combination of 
P&A and program management activities, the total salary and related 
costs may be charged to P&A and the appropriate program area(s) based on 
the actual time worked under each area(s). If the State Highway Safety 
Agency elects to allocate costs based on actual time spent on an 
activity, the State Highway Safety Agency must keep accurate time 
records showing the work activities for each employee. The State's 
recordkeeping system must be approved by the appropriate NHTSA Approving 
Official.

[[Page 664]]



                         SUBCHAPTER B_GUIDELINES



                       PARTS 1204	1206 [RESERVED]



PART 1208_NATIONAL MINIMUM DRINKING AGE--Table of Contents



Sec.
1208.1 Scope.
1208.2 Purpose.
1208.3 Definitions.
1208.4 Adoption of National Minimum Drinking Age.
1208.5 Unavailability of withheld funds.
1208.6 Procedures affecting States in noncompliance.

    Authority: 23 U.S.C. 158; delegation of authority at 49 CFR 1.48 and 
1.50.

    Source: 51 FR 10380, Mar. 26, 1986, unless otherwise noted.



Sec.  1208.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. 158, which establishes the National Minimum Drinking Age.



Sec.  1208.2  Purpose.

    The purpose of this part is to clarify the provisions which a State 
must have incorporated into its laws in order to prevent the withholding 
of Federal-aid highway funds for noncompliance with the National Minimum 
Drinking Age.



Sec.  1208.3  Definitions.

    As used in this part:
    Alcoholic beverage means beer, distilled spirits and wine containing 
one-half of one percent or more of alcohol by volume. Beer includes, but 
is not limited to, ale, lager, porter, stout, sake, and other similar 
fermented beverages brewed or produced from malt, wholly or in part or 
from any substitute therefor. Distilled spirits include alcohol, ethanol 
or spirits or wine in any form, including all dilutions and mixtures 
thereof from whatever process produced.
    Public possession means the possession of any alcoholic beverage for 
any reason, including consumption on any street or highway or in any 
public place or in any place open to the public (including a club which 
is de facto open to the public). The term does not apply to the 
possession of alcohol for an established religious purpose; when 
accompanied by a parent, spouse or legal guardian age 21 or older; for 
medical purposes when prescribed or administered by a licensed 
physician, pharmacist, dentist, nurse, hospital or medical institution; 
in private clubs or establishments; or to the sale, handling, transport, 
or service in dispensing of any alcoholic beverage pursuant to lawful 
employment of a person under the age of twenty-one years by a duly 
licensed manufacturer, wholesaler, or retailer of alcoholic beverages.
    Purchase means to acquire by the payment of money or other 
consideration.



Sec.  1208.4  Adoption of National Minimum Drinking Age.

    The Secretary shall withhold ten percent of the amount required to 
be apportioned to any State under each of Sec. Sec.  104(b)(1), 
104(b)(2), 104(b)(5) and 104(b)(6) of title 23 U.S.C. on the first day 
of each fiscal year in which the purchase or public possession in such 
State of any alcoholic beverage by a person who is less than twenty-one 
years of age is lawful.

[60 FR 66076, Dec. 21, 1995]



Sec.  1208.5  Unavailability of withheld funds.

    Funds withheld under Sec.  1208.4 from apportionment to any State 
will not be available for apportionment to the State.

[60 FR 66076, Dec. 21, 1995]



Sec.  1208.6  Procedures affecting States in noncompliance.

    (a) Every fiscal year, each State determined to be in noncompliance 
with the National Minimum Drinking Age, based on NHTSA's and FHWA's 
preliminary review of its statutes for compliance or non-compliance, 
will be advised of the funds expected to be withheld under Sec.  1208.4 
from apportionment, as part of the advance notice of apportionments 
required under 23 U.S.C. 104(e), normally not later than ninety days 
prior to final apportionment.

[[Page 665]]

    (b) If NHTSA and FHWA determine that the State is in noncompliance 
with the National Minimum Drinking Age based on their preliminary 
review, the State may, within 30 days of its receipt of the advance 
notice of apportionments, submit documentation showing why it is in 
compliance. Documentation shall be submitted to the National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, 
DC 20590.
    (c) Every fiscal year, each State determined to be in noncompliance 
with the National Minimum Drinking Age, based on NHTSA's and FHWA's 
final determination of compliance or noncompliance, will receive notice 
of the funds being withheld under Sec.  1208.4 from apportionment, as 
part of the certification of apportionments required under 23 U.S.C. 
104(e), which normally occurs on October 1 of each fiscal year.

[53 FR 31322, Aug. 18, 1988. Redesignated at 60 FR 66076, Dec. 21, 1995, 
as amended at 74 FR 28442, June 16, 2009]



PART 1210_OPERATION OF MOTOR VEHICLES BY INTOXICATED MINORS--Table of Contents



Sec.
1210.1 Scope.
1210.2 Purpose.
1210.3 Definitions.
1210.4 Adoption of zero tolerance law.
1210.5 Certification requirements.
1210.6 Period of availability of withheld funds.
1210.7 Apportionment of withheld funds after compliance.
1210.8 Period of availability of subsequently apportioned funds.
1210.9 Effect of noncompliance.
1210.10 Procedures affecting states in noncompliance.

    Authority: 23 U.S.C. 161; delegation of authority at 49 CFR 1.48 and 
1.50.

    Source: 61 FR 55217, Oct. 25, 1996, unless otherwise noted.



Sec.  1210.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. 161, which encourages States to enact and enforce zero tolerance 
laws.



Sec.  1210.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to avoid the withholding of Federal-aid highway funds for 
noncompliance with 23 U.S.C. 161.



Sec.  1210.3  Definitions.

    As used in this part:
    (a) Alcohol concentration means either grams of alcohol per 100 
milliliters of blood or grams of alcohol per 210 liters of breath.
    (b) BAC means either blood or breath alcohol concentration.
    (c) Operating a motor vehicle means driving or being in actual 
physical control of a motor vehicle.



Sec.  1210.4  Adoption of zero tolerance law.

    (a) The Secretary shall withhold five percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1), 
104(b)(3) and 104(b)(5) of title 23, United States Code, on the first 
day of fiscal year 1999 if the State does not meet the requirements of 
this part on that date.
    (b) The Secretary shall withhold ten percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1), 
104(b)(3) and 104(b)(5) of title 23, United States Code, on the first 
day of fiscal year 2000 and any subsequent fiscal year if the State does 
not meet the requirements of this part on that date.
    (c) A State meets the requirements of this section if the State has 
enacted and is enforcing a law that considers an individual under the 
age of 21 who has a BAC of 0.02 percent or greater while operating a 
motor vehicle in the State to be driving while intoxicated or driving 
under the influence of alcohol. The law must:
    (1) Apply to all individuals under the age of 21;
    (2) Set a BAC of not higher than 0.02 percent as the legal limit;
    (3) Make operating a motor vehicle by an individual under age 21 
above the legal limit a per se offense;
    (4) Provide for primary enforcement; and
    (5) Provide that license suspensions or revocations are authorized 
for any violation of the State zero tolerance law.

[[Page 666]]



Sec.  1210.5  Certification requirements.

    (a) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 161, to avoid the withholding of funds in any 
fiscal year, beginning with FY 1999, the State shall certify to the 
Secretary of Transportation, before the last day of the previous fiscal 
year, that it meets the requirements of 23 U.S.C. 161, and this part.
    (b) The certification shall contain:
    (1) A copy of the State zero tolerance law, regulation, or binding 
policy directive implementing or interpreting such law or regulation, 
that conforms to 23 U.S.C. 161 and Sec.  1210.4(c); and
    (2) A statement by an appropriate State official, that the State has 
enacted and is enforcing a conforming zero tolerance law. The certifying 
statement shall be worded as follows:

I, (Name of certifying official), (position title), of the (State or 
Commonwealth) of ____, do hereby certify that the (State or 
Commonwealth) of ____, has enacted and is enforcing a zero tolerance law 
that conforms to the requirements of 23 U.S.C. 161 and 23 CFR 1210.4(c).

    (c) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each Regional 
Administrator will forward the certifications he or she receives to 
appropriate NHTSA and FHWA offices.
    (d) Once a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 161, it is not required to submit additional 
certifications, except that the State shall promptly submit an amendment 
or supplement to its certification provided under paragraphs (a) and (b) 
of this section if the State's zero tolerance legislation changes.



Sec.  1210.6  Period of availability of withheld funds.

    (a) Funds withheld under Sec.  1210.4 from apportionment to any 
State on or before September 30, 2000, will remain available for 
apportionment until the end of the third fiscal year following the 
fiscal year for which the funds are authorized to be appropriated.
    (b) Funds withheld under Sec.  1210.4 from apportionment to any 
State after September 30, 2000 will not be available for apportionment 
to the State.



Sec.  1210.7  Apportionment of withheld funds after compliance.

    Funds withheld from a State from apportionment under Sec.  1210.4, 
which remain available for apportionment under Sec.  1210.6(a), will be 
made available to the State if it conforms to the requirements of 
Sec. Sec.  1210.4 and 1210.5 before the last day of the period of 
availability as defined in Sec.  1210.6(a).



Sec.  1210.8  Period of availability of subsequently apportioned funds.

    Funds apportioned pursuant to Sec.  1210.7 will remain available for 
expenditure until the end of the third fiscal year following the fiscal 
year in which the funds are apportioned.



Sec.  1210.9  Effect of noncompliance.

    If a State has not met the requirements of 23 U.S.C. 161 and this 
part at the end of the period for which funds withheld under Sec.  
1210.4 are available for apportionment to a State under Sec.  1210.6, 
then such funds shall lapse.



Sec.  1210.10  Procedures affecting states in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 161 and this part, based on NHTSA's and FHWA's 
preliminary review of its law, will be advised of the funds expected to 
be withheld under Sec.  1210.4 from apportionment, as part of the 
advance notice of apportionments required under 23 U.S.C. 104(e), 
normally not later than ninety days prior to final apportionment.
    (b) If NHTSA and FHWA determine that the State is not in compliance 
with 23 U.S.C. 161 and this part, based on the agencies' preliminary 
review, the State may, within 30 days of its receipt of the advance 
notice of apportionments, submit documentation showing why it is in 
compliance. Documentation shall be submitted to the National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, 
D.C. 20590.
    (c) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 161 and this part, based on

[[Page 667]]

NHTSA's and FHWA's final determination, will receive notice of the funds 
being withheld under Sec.  1210.4 from apportionment, as part of the 
certification of apportionments required under 23 U.S.C. 104(e), which 
normally occurs on October 1 of each fiscal year.

[61 FR 55217, Oct. 25, 1996, as amended at 74 FR 28442, June 16, 2009]



PART 1215_USE OF SAFETY BELTS_COMPLIANCE AND TRANSFER-OF-FUNDS PROCEDURES--
Table of Contents



Sec.
1215.1 Scope.
1215.2 Purpose.
1215.3 Definitions.
1215.4 Compliance criteria.
1215.5 Exemptions.
1215.6 Review and notification of compliance status.
1215.7 Transfer of funds.
1215.8 Use of transferred funds.

    Authority: 23 U.S.C. 153; Secs. 205(e) and 355, Pub. L. 104-59; 
delegations of authority at 49 CFR 1.48 and 1.50.

    Source: 58 FR 44759, Aug. 25, 1993, unless otherwise noted.



Sec.  1215.1  Scope.

    This part establishes criteria, in accordance with 23 U.S.C. 153, as 
amended, and Section 355 of the National Highway System Designation Act 
of 1995, for determining compliance with the requirement that States not 
having safety belt use laws be subject to a transfer of Federal-aid 
highway apportionments under 23 U.S.C. 104 (b)(1), (b)(2), and (b)(3) to 
the highway safety program apportionment under 23 U.S.C. 402.

[61 FR 28749, June 6, 1996]



Sec.  1215.2  Purpose.

    This part clarifies the provisions which a State must incorporate 
into its safety belt law to prevent the transfer of a portion of its 
Federal-aid highway funds to the section 402 highway safety program 
apportionment, describes notification and transfer procedures, 
establishes parameters for the use of transferred funds, and provides 
alternate compliance criteria for New Hampshire and Maine.

[61 FR 28749, June 6, 1996]



Sec.  1215.3  Definitions.

    As used in this part:
    FHWA means the Federal Highway Administration.
    Motor vehicle means any vehicle driven or drawn by mechanical power 
manufactured primarily for use on public highways, except any vehicle 
operated exclusively on a rail or rails.
    NHTSA means the National Highway Traffic Safety Administration.
    Passenger vehicle means a motor vehicle which is designed for 
transporting 10 individuals or less, including the driver, except that 
such term does not include a vehicle which is constructed on a truck 
chassis, a motorcycle, a trailer, or any motor vehicle which is not 
required on the date of the enactment of this section under a Federal 
motor vehicle safety standard to be equipped with a belt system.
    Safety belt means, with respect to open-body passenger vehicles, 
including convertibles, an occupant restraint system consisting of a lap 
belt or a lap belt and a detachable shoulder belt; and with respect to 
other passenger vehicles, an occupant restraint system consisting of 
integrated lap shoulder belts.
    Secretary means the Secretary of Transportation.

[58 FR 44759, Aug. 25, 1993, as amended at 61 FR 28749, June 6, 1996]



Sec.  1215.4  Compliance criteria.

    (a) Except as provided in paragraphs (c) or (d) of this section, in 
order to avoid the transfer or reservation (as applicable) specified in 
Sec.  1215.7, a State must have and continue in effect at all times 
during the fiscal year a law which makes unlawful throughout the State 
the operation of a passenger vehicle whenever an individual in a front 
seat of the vehicle (other than a child who is secured in a child 
restraint system) does not have a safety belt properly fastened about 
the individual's body.
    (b) A State that enacts the law specified in paragraph (a) of this 
section will be determined to comply with 23 U.S.C. 153, provided that 
any exemptions are consistent with Sec.  1215.5.
    (c) If New Hampshire or Maine enacts a law described in paragraph 
(a) of this

[[Page 668]]

section by January 27, 1996, the State shall be deemed as having that 
law in effect on September 30, 1995.
    (d)(1) If the Secretary certifies in a fiscal year that New 
Hampshire or Maine has achieved the safety belt use rate specified in 
paragraph (d)(2) of this section, the State shall be considered as 
complying with the provisions of paragraph (a) of this section.
    (2) The safety belt use rate must be not less than 50 percent in 
each of fiscal years 1995 and 1996, and not less than the national 
average as determined by the Secretary in each fiscal year thereafter.

[61 FR 28749, June 6, 1996]



Sec.  1215.5  Exemptions.

    (a) Safety belt use laws exempting persons with medical excuses, 
persons in emergency vehicles, persons in the custody of police, persons 
in public and livery conveyances, persons in parade vehicles, persons in 
positions not equipped with safety belts, and postal, utility and other 
commercial drivers who make frequent stops in the course of their 
business shall be deemed to comply with 23 U.S.C. 153.
    (b) Safety belt use laws exempting vehicles equipped with air bags 
shall be deemed not to comply with 23 U.S.C. 153.
    (c) An exemption not identified in paragraph (a) of this section 
shall be deemed to comply with 23 U.S.C. 153 only if NHTSA and FHWA 
determine that it is consistent with the intent of Sec.  1215.4(a), and 
applies to situations in which the risk to occupants is very low or in 
which there are exigent justifications.

[61 FR 28749, June 6, 1996]



Sec.  1215.6  Review and notification of compliance status.

    Review of each State's laws and notification of compliance status 
shall occur each fiscal year, in accordance with the following 
procedures:
    (a) NHTSA and FHWA will review appropriate State laws for compliance 
with 23 U.S.C. 153. States initially found to be in non-compliance will 
be notified of such finding and of funds expected to be transferred or 
reserved (as applicable) under Sec.  1215.7, through the advance notice 
of apportionments required under 23 U.S.C. 104(e), normally not later 
than ninety days prior to final apportionment.
    (b) A State notified of non-compliance under paragraph (a) of this 
section may, within 30 days after its receipt of the advance notice of 
apportionments, submit documentation showing why it is in compliance to 
the Associate Administrator for State and Community Services, NHTSA, 
1200 New Jersey Avenue, SE., Washington, D.C., 20950.
    (c) Each fiscal year, States determined to be in non-compliance with 
23 U.S.C. 153 will receive notice of the funds being transferred or 
reserved (as applicable) under Sec.  1215.7, through the certification 
of apportionments required under 23 U.S.C. 104(e), normally on October 
1.

[61 FR 28749, June 6, 1996, as amended at 74 FR 28442, June 16, 2009]



Sec.  1215.7  Transfer of funds.

    (a) Except as provided in paragraph (b) of this section, if at any 
time in a fiscal year beginning after September 30, 1994, a State does 
not have in effect a law described in Sec.  1215.4(a), the Secretary 
shall transfer 3 percent of the funds apportioned to the State for the 
succeeding fiscal year under 23 U.S.C. 104 (b)(1), (b)(2) and (b)(3) to 
the apportionment of the State under 23 U.S.C. 402.
    (b) For New Hampshire or Maine, except as provided in Sec.  
1215.4(c), if at any time in a fiscal year beginning after September 30, 
1994, the State does not have in effect a law described in Sec.  
1215.4(a), the Secretary shall reserve 3 percent of the funds to be 
apportioned to the State for the succeeding fiscal year under 23 U.S.C. 
104 (b)(1), (b)(2) and (b)(3) if the Secretary has not certified, in 
accordance with Sec.  1215.4(d), that the State has achieved the 
applicable safety belt use rate.
    (c) If, at the end of a fiscal year in which the funds are reserved 
for New Hampshire or Maine under paragraph (b) of this section, the 
Secretary has not certified that the State achieved the applicable 
safety belt use rate, the Secretary shall transfer the funds reserved 
from the State to the apportionment of the State under 23 U.S.C. 402.

[[Page 669]]

    (d) Any obligation limitation existing on transferred funds prior to 
the transfer will apply, proportionately, to those funds after transfer.

[61 FR 28749, June 6, 1996]



Sec.  1215.8  Use of transferred funds.

    (a) Any funds transferred under Sec.  1215.7 may be used for 
approved projects in any section 402 program area.
    (b) Any funds transferred under Sec.  1215.7 shall not be subject to 
Federal earmarking of any amounts or percentages for specific program 
activities.
    (c) The Federal share of the cost of any project carried out under 
section 402 with the transferred funds shall be 100 percent.
    (d) In the event of a transfer of funds under Sec.  1215.7, the 40 
percent political subdivision participation in State highway safety 
programs and the 10 percent limitation on the Federal contribution for 
Planning and Administration activities carried out under section 402 
shall be based upon the sum of the funds transferred and amounts 
otherwise available for expenditure under section 402.



PART 1225_OPERATION OF MOTOR VEHICLES BY INTOXICATED PERSONS--Table of Contents



Sec.
1225.1 Scope.
1225.2 Purpose.
1225.3 Definitions.
1225.4 Adoption of 0.08 BAC per se law.
1225.5 General requirements for incentive grant program.
1225.6 Award procedures for incentive grant program.
1225.7 Certification requirements for sanction program.
1225.8 Funds withheld from apportionment.
1225.9 Period of availability of withheld funds.
1225.10 Apportionment of withheld funds after compliance.
1225.11 Notification of compliance.
1225.12 Procedures affecting States in noncompliance.

Appendix A to Part 1225--Effects of the 0.08 BAC Sanction Program on 
          Non-Complying States

    Authority: 23 U.S.C. 163; sec. 351, Pub. L. 106-346--Appendix, 114 
Stat. 1356A-34, 35; delegation of authority at 49 CFR 1.48 and 1.50.

    Source: 68 FR 50708, Aug. 22, 2003, unless otherwise noted.



Sec.  1225.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. 163, which encourages States to enact and enforce 0.08 BAC per se 
laws through the use of incentive grants and Section 351 of Public Law 
106-346--Appendix, which requires the withholding of Federal-aid highway 
funds from any State that has not enacted and is not enforcing a 0.08 
BAC per se law as described in 23 U.S.C. 163.



Sec.  1225.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to qualify for incentive grant funds in accordance with 23 U.S.C. 
163; and the steps that States must take to avoid the withholding of 
funds as required by Section 351 of Public Law 106-346--Appendix.



Sec.  1225.3  Definitions.

    As used in this part:
    (a) Alcohol concentration means either grams of alcohol per 100 
milliliters of blood or grams of alcohol per 210 liters of breath.
    (b) ALR means either administrative license revocation or 
administrative license suspension.
    (c) BAC means either blood or breath alcohol concentration.
    (d) BAC per se law means a law that makes it an offense, in and of 
itself, to operate a motor vehicle with an alcohol concentration at or 
above a specified level.
    (e) Citations to State law means citations to all sections of the 
State's law relied on to demonstrate compliance with 23 U.S.C. 163, 
including all applicable definitions and provisions of the State's 
criminal code and, if the State has an ALR law, all applicable 
provisions of the State's ALR law.
    (f) Has enacted and is enforcing means the State's law is in effect 
and the State has begun to implement the law.
    (g) Operating a motor vehicle means driving or being in actual 
physical control of a motor vehicle.

[[Page 670]]

    (h) Standard driving while intoxicated offense means the non-BAC per 
se driving while intoxicated offense in the State.
    (i) State means any one of the 50 States, the District of Columbia, 
or Puerto Rico.



Sec.  1225.4  Adoption of 0.08 BAC per se law.

    In order to avoid the withholding of funds as specified in Sec.  
1225.8 of this part, and to qualify for an incentive grant under Sec.  
1225.5 of this part, a State must demonstrate that it has enacted and is 
enforcing a law that provides that any person with a blood or breath 
alcohol concentration (BAC) of 0.08 percent or greater while operating a 
motor vehicle in the State shall be deemed to have committed a per se 
offense of driving while intoxicated or an equivalent per se offense. 
The law must:
    (a) Apply to all persons;
    (b) Set a BAC of not higher than 0.08 percent as the legal limit;
    (c) Make operating a motor vehicle by an individual at or above the 
legal limit a per se offense;
    (d) Provide for primary enforcement;
    (e) Apply the 0.08 BAC legal limit to the State's criminal code and, 
if the State has an administrative license suspension or revocation 
(ALR) law, to its ALR law; and
    (f) Be deemed to be or be equivalent to the standard driving while 
intoxicated offense in the State.



Sec.  1225.5  General requirements for incentive grant program.

    (a) Certification requirements. (1) To qualify for a first-year 
grant under 23 U.S.C. 163, a State must submit a certification by an 
appropriate State official, that the State has enacted and is enforcing 
a 0.08 BAC per se law that conforms to 23 U.S.C. 163 and Sec.  1225.4 of 
this part and that the funds will be used for eligible projects and 
programs.
    (i) If the State's 0.08 BAC per se law is currently in effect and is 
being enforced, the certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or 
Commonwealth) of ____, do hereby certify that the (State or 
Commonwealth) of ___ has enacted and is enforcing a 0.08 BAC per se law 
that conforms to 23 U.S.C. 163 and 23 CFR 1225.4, (citations to State 
law), and that the funds received by the (State or Commonwealth) of ____ 
under 23 U.S.C. 163 will be used for projects eligible for assistance 
under title 23 of the United States Code, which include highway 
construction as well as highway safety projects and programs.

    (ii) If the State's 0.08 BAC per se law is not currently in effect, 
but will become effective and be enforced before the end of the current 
fiscal year, the certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or 
Commonwealth) of ____, do hereby certify that the (State or 
Commonwealth) of ____ has enacted a 0.08 BAC per se law that conforms to 
23 U.S.C. 163 and 23 CFR 1225.4, (citations to State law), and will 
become effective and be enforced as of (effective date of the law), and 
that the funds received by the (State or Commonwealth) of ____ under 23 
U.S.C. 163 will be used for projects eligible for assistance under title 
23 of the United States Code, which include highway construction as well 
as highway safety projects and programs.

    (2) To qualify for a subsequent-year grant under 23 U.S.C. 163, a 
State must submit a certification by an appropriate State official.
    (i) If the State's 0.08 BAC per se law has not changed since the 
State last qualified for grant funds under this program, the 
certification shall be worded as follows:

(Name of certifying official), (position title), of the (State or 
Commonwealth) of ____, do hereby certify that the (State or 
Commonwealth) of ____ has not changed and is enforcing a 0.08 BAC per se 
law, which conforms to 23 U.S.C. 163 and 23 CFR 1225.4, and that the 
funds received by the (State or Commonwealth) of ____ under 23 U.S.C. 
163 will be used for projects eligible for assistance under title 23 of 
the United States Code, which include highway construction as well as 
highway safety projects and programs.

    (ii) If the State's 0.08 BAC per se law has changed since the State 
last qualified for grant funds under this program, the certification 
shall be worded as follows:

(Name of certifying official), (position title), of the (State or 
Commonwealth) of ____, do hereby certify that the (State or 
Commonwealth) of ____ has amended and is enforcing a 0.08 BAC per se law 
that conforms to 23 U.S.C. 163 and 23 CFR 1225.4, (citations


[[Page 671]]

to State law), and that the funds received by the (State or 
Commonwealth) of ____, under 23 U.S.C. 163 will be used for projects 
eligible for assistance under title 23 of the United States Code, which 
include highway construction as well as highway safety projects and 
programs.

    (3) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each Regional 
Administrator will forward the certifications it receives to appropriate 
NHTSA and FHWA offices.
    (4) Each State that submits a certification will be informed by the 
agencies whether or not it qualifies for funds.
    (5) To qualify for grant funds in a fiscal year, certifications must 
be received by the agencies not later than July 15 of that fiscal year.
    (b) Limitation on grants. A State may receive grant funds, subject 
to the following limitations:
    (1) The amount of a grant apportioned to a State under Sec.  1225.4 
of this part shall be determined by multiplying:
    (i) The amount authorized to carry out section 163 of 23 U.S.C. for 
the fiscal year; by
    (ii) The ratio that the amount of funds apportioned to each such 
State under section 402 for such fiscal year bears to the total amount 
of funds apportioned to all such States under section 402 for such 
fiscal year.
    (2) A State may obligate grant funds apportioned under this Part for 
any project eligible for assistance under title 23 of the United States 
Code.
    (3) The Federal share of the cost of a project funded with grant 
funds awarded under this part shall be 100 percent.



Sec.  1225.6  Award procedures for incentive grant program.

    (a) In each Federal fiscal year, grant funds will be apportioned to 
eligible States upon submission and approval of the documentation 
required by Sec.  1225.5(a) and subject to the limitations in Sec.  
1225.5(b). The obligation authority associated with these funds is 
subject to the limitation on obligation pursuant to section 1102 of the 
Transportation Equity Act for the 21st Century (TEA-21).
    (b) As soon as practicable after the apportionment in a fiscal year, 
but in no event later than September 30 of the fiscal year, the 
Governor's Representative for Highway Safety and the Secretary of the 
State's Department of Transportation for each State that receives an 
apportionment shall jointly identify, in writing to the appropriate 
NHTSA Regional Administrator, the amounts of the State's apportionment 
that will be obligated to highway safety program areas and to Federal-
aid highway projects. Each NHTSA Regional Administrator will forward 
copies of the joint letters to the appropriate NHTSA and FHWA offices.
    (c) Apportionments will not be made by the NHTSA and FHWA unless 
this letter from the State is received.



Sec.  1225.7  Certification requirements for sanction program.

    (a) Beginning with FY 2004, to avoid the withholding of funds, each 
State shall certify to the Secretary of Transportation, before the last 
day of the previous fiscal year, that it meets all the requirements of 
23 U.S.C. 163 and this part.
    (b) The certification shall contain a statement from an appropriate 
State official that the State has enacted and is enforcing a 0.08 BAC 
per se law that conforms to 23 U.S.C. 163 and 23 CFR part 1225.
    (1) If the State's 0.08 BAC per se law is currently in effect and is 
being enforced, the certification shall be worded as follows:

I, (name of certifying official), (position title), of the (State or 
Commonwealth) of ____, do hereby certify that the (State or 
Commonwealth) of ____, has enacted and is enforcing a 0.08 BAC per se 
law that conforms to the requirements of 23 U.S.C. 163 and 23 CFR 
1225.4, (citations to State law).

    (2) If the State's 0.08 BAC per se law is not currently in effect, 
but will become effective and be enforced before the end of the current 
fiscal year, the certification shall be worded as follows:

I, (name of certifying official), (position title), of the (State or 
Commonwealth) of ____, do hereby certify that the (State or 
Commonwealth) of ____, has enacted a 0.08 BAC per se law that conforms 
to the requirements of 23 U.S.C. 163 and 23 CFR 1225.4,

[[Page 672]]

(citations to State law), and will become effective and be enforced as 
of (effective date of the law).

    (c) An original and four copies of the certification shall be 
submitted to the appropriate NHTSA Regional Administrator. Each NHTSA 
Regional Administrator will forward copies of the certifications 
received to the appropriate NHTSA and FHWA offices.
    (d) Once a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 163 and this part, it is not required to 
submit additional certifications, except that the State shall promptly 
submit an amendment or supplement to its certification provided under 
this section if the State's 0.08 BAC per se law changes.
    (e) Certifications submitted in FY 2003. (1) Any State that submits 
a certification of compliance under Sec.  1225.5 of this part, in 
conformance with the requirements of 23 U.S.C. 163, on or before July 
15, 2003, will qualify for an incentive grant in FY 2003 and will avoid 
the withholding of funds in FY 2004. All certifications submitted in 
conformance with the incentive grant program will meet the certification 
requirements of the sanction program.
    (2) Any State that submits a certification of compliance under this 
section, in conformance with the requirements of 23 U.S.C. 163, between 
July 16, 2003 and September 30, 2003, will not qualify for an incentive 
grant in FY 2003, but will meet the certification requirements of the 
sanction program, thereby avoiding the withholding of funds in FY 2004.
    (f) Certifications submitted in FY 2004 or thereafter. Any State 
that has been in noncompliance with the requirements of 23 U.S.C. 163 
and this part, in or after FY 2004, will initially be subject to a 
withholding of funds in accordance with Sec.  1225.8 of this part. 
Following the submission of a conforming certification of compliance by 
such States, all withheld funds will be restored to a States' 
appropriate apportionment categories in accordance with Sec.  1225.9 of 
this part.



Sec.  1225.8  Funds withheld from apportionment.

    (a) Beginning in fiscal year 2004, the Secretary shall withhold 2 
percent of the amount required to be apportioned for Federal-aid 
highways to any State under each of paragraphs (1), (3), and (4) of 
section 104(b) of title 23, United States Code, if a State has not 
enacted and is not enforcing a law that meets the requirements of 23 
U.S.C. 163 and Sec.  1225.4 of this part.
    (b) In fiscal year 2005, the Secretary shall withhold 4 percent of 
the amount required to be apportioned for Federal-aid highways to any 
State under each of paragraphs (1), (3), and (4) of section 104(b) of 
title 23, United States Code, if a State has not enacted and is not 
enforcing a law that meets the requirements of 23 U.S.C. 163 and Sec.  
1225.4 of this part.
    (c) In fiscal year 2006, the Secretary shall withhold 6 percent of 
the amount required to be apportioned for Federal-aid highways to any 
State under each of paragraphs (1), (3), and (4) of section 104(b) of 
title 23, United States Code, if a State has not enacted and is not 
enforcing a law that meets the requirements of 23 U.S.C. 163 and Sec.  
1225.4 of this part.
    (d) In fiscal year 2007, and in each fiscal year thereafter, the 
Secretary shall withhold 8 percent of the amount required to be 
apportioned for Federal-aid highways to any State under each of 
paragraphs (1), (3), and (4) of section 104(b) of title 23, United 
States Code, if a State has not enacted and is not enforcing a law that 
meets the requirements of 23 U.S.C. 163 and Sec.  1225.4 of this part.



Sec.  1225.9  Period of availability of withheld funds.

    If a State meets the requirements of 23 U.S.C. 163 and Sec.  1225.4 
of this part within 4 years from the date that a State's apportionment 
is reduced under Sec.  1225.8, the apportionment for such State shall be 
increased by an amount equal to the reduction, as illustrated by 
appendix A of this part. The restored apportionment will be available to 
a State, as quickly as possible, upon a determination by NHTSA that the 
State is in conformance and notification to the FHWA.

[[Page 673]]



Sec.  1225.10  Apportionment of withheld funds after compliance.

    If a State has not met the requirements of 23 U.S.C. 163 and Sec.  
1225.4 of this part by October 1, 2007, the funds withheld under Sec.  
1225.8 shall begin to lapse and will no longer be available for 
apportionment to the State, in accordance with appendix A of this part.



Sec.  1225.11  Notification of compliance.

    (a) Beginning with FY 2004, NHTSA and FHWA will notify States of 
their compliance or noncompliance with the statutory and regulatory 
requirements of 23 U.S.C. 163 and this part, based on a review of 
certifications received. States will be required to submit their 
certifications on or before September 30, to avoid the withholding of 
funds in a fiscal year.
    (b) This notification of compliance will take place through FHWA's 
normal certification of apportionments process. If the agencies do not 
receive a certification from a State, by June 15 of any fiscal year, or 
if the certification does not conform to the requirements of 23 U.S.C. 
163 and this part, the agencies will make an initial determination that 
the State is not in compliance.



Sec.  1225.12  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 163 and this part, based on NHTSA and FHWA's preliminary 
review of its certification, will be advised of the amount of funds 
expected to be withheld under Sec.  1225.8 from apportionment, as part 
of the advance notice of apportionments required under 23 U.S.C. 104(e), 
which is ordinarily issued on July 1 of each fiscal year.
    (b) If NHTSA and FHWA determine that any State is not in compliance 
with 23 U.S.C. 163 and this part, based on the agencies' preliminary 
review, the State may submit documentation showing why it is in 
compliance. States will have until September 30 to rebut the initial 
determination or to come into compliance with 23 U.S.C. and this part. 
Documentation shall be submitted through NHTSA's Regional 
Administrators, who will refer the requests to appropriate NHTSA and 
FHWA offices for review.
    (c) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 163 and this part, based on NHTSA's and FHWA's final 
determination, will receive notice of the funds being withheld under 
Sec.  1225.8 from apportionment, as part of the certification of 
apportionments required under 23 U.S.C. 104(e), which normally occurs on 
October 1 of each fiscal year.



 Sec. Appendix A to Part 1225--Effects of the 0.08 BAC Sanction Program 
                         on Non-Complying States

    Effects of the 0.08 BAC Sanction Program on Non-Complying States
------------------------------------------------------------------------
        Fiscal year          Withhold                 Lapse
------------------------------------------------------------------------
2004......................          2%
2005......................           4
2006......................           6
2007......................           8
2008......................           8  2% withheld in FY04.
2009......................           8  4% withheld in FY05.
2010......................           8  6% withheld in FY06.
2011......................           8  8% withheld in FY07.
2012......................           8  8% withheld in FY08.
------------------------------------------------------------------------



PART 1235_UNIFORM SYSTEM FOR PARKING FOR PERSONS WITH DISABILITIES--
Table of Contents



Sec.
1235.1 Purpose.
1235.2 Definitions.
1235.3 Special license plates.
1235.4 Removable windshield placards.
1235.5 Temporary removable windshield placards.
1235.6 Parking.
1235.7 Parking space design, construction, and designation.
1235.8 Reciprocity.

Appendix A to Part 1235--Sample Removable Windshield Placard
Appendix B to Part 1235--Sample Temporary Removable Windshield Placard

    Authority: Pub. L. 100-641, 102 Stat. 3335 (1988); 23 U.S.C. 101(a), 
104, 105, 109(d), 114(a), 135, 217, 307, 315, and 402(a); 23 CFR 1.32 
and 1204.4; and 49 CFR 1.48(b).

    Source: 56 FR 10329, Mar. 11, 1991, unless otherwise noted.

[[Page 674]]



Sec.  1235.1  Purpose.

    The purpose of this part is to provide guidelines to States for the 
establishment of a uniform system for handicapped parking for persons 
with disabilities to enhance access and the safety of persons with 
disabilities which limit or impair the ability to walk.



Sec.  1235.2  Definitions.

    Terms used in this part are defined as follows:
    (a) International Symbol of Access means the symbol adopted by 
Rehabilitation International in 1969 at its Eleventh World Congress on 
Rehabilitation of the Disabled.
    (b) Persons with disabilities which limit or impair the ability to 
walk means persons who, as determined by a licensed physician:
    (1) Cannot walk two hundred feet without stopping to rest; or
    (2) Cannot walk without the use of, or assistance from, a brace, 
cane, crutch, another person, prosthetic device, wheelchair, or other 
assistive device; or
    (3) Are restricted by lung disease to such an extent that the 
person's forced (respiratory) expiratory volume for one second, when 
measured by spirometry, is less than one liter, or the arterial oxygen 
tension is less than sixty mm/hg on room air at rest; or
    (4) Use portable oxygen; or
    (5) Have a cardiac condition to the extent that the person's 
functional limitations are classified in severity as Class III or Class 
IV according to standards set by the American Heart Association; or
    (6) Are severely limited in their ability to walk due to an 
arthritic, neurological, or orthopedic condition.
    (c) Special license plate means a license plate that displays the 
International Symbol of Access:
    (1) In a color that contrasts to the background, and
    (2) In the same size as the letters and/or numbers on the plate.
    (d) Removable windshield placard means a two-sided, hanger-style 
placard which includes on each side:
    (1) The International Symbol of Access, which is at least three 
inches in height, centered on the placard, and is white on a blue 
shield;
    (2) An identification number;
    (3) A date of expiration; and
    (4) The seal or other identification of the issuing authority.
    (e) Temporary removable windshield placard means a two-sided, 
hanger-style placard which includes on each side:
    (1) The International Symbol of Access, which is at least three 
inches in height, centered on the placard, and is white on a red shield;
    (2) An identification number;
    (3) A date of expiration; and
    (4) The seal or other identification of the issuing authority.



Sec.  1235.3  Special license plates.

    (a) Upon application of a person with a disability which limits or 
impairs the ability to walk, each State shall issue special license 
plates for the vehicle which is registered in the applicant's name. The 
initial application shall be accompanied by the certification of a 
licensed physician that the applicant meets the Sec.  1235.2(b) 
definition of persons with disabilities which limit or impair the 
ability to walk. The issuance of a special license plate shall not 
preclude the issuance of a removable windshield placard.
    (b) Upon application of an organization, each State shall issue 
special license plates for the vehicle registered in the applicant's 
name if the vehicle is primarily used to transport persons with 
disabilities which limit or impair the ability to walk. The application 
shall include a certification by the applicant, under criteria to be 
determined by the State, that the vehicle is primarily used to transport 
persons with disabilities which limit or impair the ability to walk.
    (c) The fee for the issuance of a special license plate shall not 
exceed the fee charged for a similar license plate for the same class 
vehicle.



Sec.  1235.4  Removable windshield placards.

    (a) The State system shall provide for the issuance and periodic 
renewal of a removable windshield placard, upon the application of a 
person with a disability which limits or impairs the

[[Page 675]]

ability to walk. The State system shall require that the issuing 
authority shall, upon request, issue one additional placard to 
applicants who do not have special license plates.
    (b) The initial application shall be accompanied by the 
certification of a licensed physician that the applicant meets the Sec.  
1235.2(b) definition of persons with disabilities which limit or impair 
the ability to walk.
    (c) The State system shall require that the removable windshield 
placard is displayed in such a manner that it may be viewed from the 
front and rear of the vehicle by hanging it from the front windshield 
rearview mirror of a vehicle utilizing a parking space reserved for 
persons with disabilities. When there is no rearview mirror, the placard 
shall be displayed on the dashboard.



Sec.  1235.5  Temporary removable windshield placards.

    (a) The State system shall provide for the issuance of a temporary 
removable windshield placard, upon the application of a person with a 
disability which limits or impairs the ability to walk. The State system 
shall require that the issuing authority issue, upon request, one 
additional temporary removable windshield placard to applicants.
    (b) The State system shall require that the application shall be 
accompanied by the certification of a licensed physician that the 
applicant meets the Sec.  1235.2(b) definition of persons with 
disabilities which limit or impair the ability to walk. The 
certification shall also include the period of time that the physician 
determines the applicant will have the disability, not to exceed six 
months.
    (c) The State system shall require that the temporary removable 
windshield placard is displayed in such a manner that it may be viewed 
from the front and rear of the vehicle by hanging it from the front 
windshield rearview mirror of a vehicle utilizing a parking space 
reserved for persons with disabilities. When there is no rearview 
mirror, the placard shall be displayed on the dashboard.
    (d) The State system shall require that the temporary removable 
windshield placard shall be valid for a period of time for which the 
physician has determined that the applicant will have the disability, 
not to exceed six months from the date of issuance.



Sec.  1235.6  Parking.

    Special license plates, removable windshield placards, or temporary 
removable windshield placards displaying the International Symbol of 
Access shall be the only recognized means of identifying vehicles 
permitted to utilize parking spaces reserved for persons with 
disabilities which limit or impair the ability to walk.



Sec.  1235.7  Parking space design, construction, and designation.

    (a) Each State shall establish design, construction, and designation 
standards for parking spaces reserved for persons with disabilities, 
under criteria to be determined by the State. These standards shall:
    (1) Ensure that parking spaces are accessible to, and usable by, 
persons with disabilities which limit or impair the ability to walk;
    (2) Ensure the safety of persons with disabilities which limit or 
impair the ability to walk who use these spaces and their accompanying 
accessible routes; and
    (3) Ensure uniform sign standards which comply with those prescribed 
by the ``Manual on Uniform Traffic Control Devices for Streets and 
Highways'' (23 CFR part 655, subpart F) to designate parking spaces 
reserved for persons with disabilities which limit or impair the ability 
to walk.
    (b) The design, construction, and alteration of parking spaces 
reserved for persons with disabilities for which Federal funds 
participate must meet the Uniform Federal Accessibility Standards.



Sec.  1235.8  Reciprocity.

    The State system shall recognize removable windshield placards, 
temporary removable windshield placards and special license plates which 
have been issued by issuing authorities of other States and countries, 
for the purpose of identifying vehicles permitted to utilize parking 
spaces reserved for

[[Page 676]]

persons with disabilities which limit or impair the ability to walk.



    Sec. Appendix A to Part 1235--Sample Removable Windshield Placard
[GRAPHIC] [TIFF OMITTED] TC14OC91.014


[[Page 677]]





  Sec. Appendix B to Part 1235--Sample Temporary Removable Windshield 
                                 Placard
[GRAPHIC] [TIFF OMITTED] TC14OC91.015


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PART 1240_SAFETY INCENTIVE GRANTS FOR USE OF SEAT BELTS_ALLOCATIONS 
BASED ON SEAT BELT USE RATES--Table of Contents



                            Subpart A_General

Sec.
1240.1 Purpose.
1240.2 Applicability.
1240.3 Definitions.

                 Subpart B_Determination of Allocations

1240.10 Identification of eligible States.
1240.11 Determination of State seat belt use rate for calendar years 
          1996 and 1997.
1240.12 Determination of State seat belt use rate for calendar year 1998 
          and beyond.
1240.13 Determination of national average seat belt use rate.
1240.14 Determination of Federal medical savings and notification of 
          proposed allocations.
1240.15 Allocations.

Appendix A to Part 1240--Adjustment Procedures for State-Submitted 
          Information (Calendar Years 1996 and 1997)
Appendix B to Part 1240--Procedures for Missing or Inadequate State-
          Submitted Information (Calendar Years 1996 and 1997)
Appendix C to Part 1240--Certification (Calendar Year 1998 Survey Based 
          on Survey Approved Under 23 U.S.C. 153)
Appendix D to Part 1240--Determination of National Average Seat Belt Use 
          Rate
Appendix E to Part 1240--Determination of Federal Medical Savings

    Authority: 23 U.S.C. 157; delegations of authority at 49 CFR 1.48 
and 1.50.

    Source: 63 FR 57909, Oct 29, 1998, unless otherwise noted.



                            Subpart A_General



Sec.  1240.1  Purpose.

    This part establishes requirements and procedures governing the 
allocation of funds to States made under 23 U.S.C. 157(c), based on seat 
belt use rates.



Sec.  1240.2  Applicability.

    These procedures apply to all allocations of funds to States, based 
on seat belt use rates, beginning with allocations for fiscal year 1999.



Sec.  1240.3  Definitions.

    As used in this part--
    Base seat belt use rate means the highest State seat belt use rate 
for the State for any calendar year during the period from 1996 through 
the calendar year preceding the previous calendar year;
    Federal medical savings means the amount of Federal budget savings 
relating to Federal medical costs (including savings under the Medicare 
and Medicaid programs under titles XVIII and XIX of the Social Security 
Act (42 U.S.C.1395 et seq.)), as determined under this part;
    FHWA means the Federal Highway Administration;
    NHTSA means the National Highway Traffic Safety Administration;
    Passenger motor vehicle means a passenger car, pickup truck, van, 
minivan, or sport utility vehicle;
    State means any of the fifty States, the District of Columbia, or 
Puerto Rico.
    State seat belt use rate means the seat belt use rate for a State, 
rounded to the nearest tenth of one percent, after any required 
weighting, adjustment, or substitution under this part, that is used in 
determining eligibility for and the amount of an allocation under this 
part.



                 Subpart B_Determination of Allocations



Sec.  1240.10  Identification of eligible States.

    (a) On or about September 1, 1998, and each September 1 thereafter, 
NHTSA will identify, on the basis of seat belt use rates determined, as 
applicable, under Sec. Sec.  1240.11, 1240.12, and 1240.13 of this 
part--
    (1) Each State that had a State seat belt use rate during the 
previous calendar year and the year preceding the previous calendar year 
that exceeded the national average seat belt use rate for each of those 
years; and
    (2) Each State that does not meet the requirements of paragraph 
(a)(1) of this section and that had a State seat belt use rate during 
the previous calendar year that exceeded the State's base seat belt use 
rate.
    (b) Any seat belt use rate used in making the determinations under 
this

[[Page 679]]

part shall be rounded to the nearest tenth of one percent.
    (c) A State identified under paragraph (a)(1) or (a)(2) of this 
section, and not ineligible under Sec.  1240.12(a)(2) of this part, 
shall receive an allocation of funds reflecting the Federal medical 
savings, in accordance with the procedures of Sec. Sec.  1240.14 and 
1240.15 of this part.



Sec.  1240.11  Determination of State seat belt use rate 
for calendar years 1996 and 1997.

    (a) Review of State-submitted information. NHTSA will review 
available seat belt use rate information submitted by each State for 
calendar years 1996 and 1997 to determine whether--
    (1) Measurements of seat belt use were based on direct observation;
    (2) At least 70 percent of observation sites were surveyed during 
the calendar year for which the seat belt use rate is reported;
    (3) All passenger motor vehicles were sampled; and
    (4) All front seat outboard occupants in the sampled vehicles were 
counted.
    (b) Determination of State seat belt use rate. Seat belt use rate 
information submitted by a State for calendar year 1996 or 1997 will 
be--
    (1) Accepted as the State seat belt use rate if it satisfies 
paragraphs (a)(1), (a)(2), (a)(3), and (a)(4) of this section.
    (2) Accepted after adjustment in accordance with the procedures of 
appendix A of this part, as the State seat belt use rate, if it 
satisfies paragraphs (a)(1) and (a)(2) of this section, but fails to 
satisfy paragraph (a)(3) or (a)(4) of this section.
    (3) Rejected, and the procedures of appendix B of this part shall 
apply, if it fails to satisfy paragraph (a)(1) or (a)(2) of this 
section.



Sec.  1240.12  Determination of State seat belt use rate 
for calendar year 1998 and beyond.

    (a) State seat belt use survey. (1) Beginning in calendar year 1998, 
State seat belt use rates used for determining allocations under this 
part shall be based on a survey conducted each calendar year by each 
State that satisfies all the requirements of part 1340 of this title 
(the Uniform Criteria for State Observational Surveys of Seat Belt Use).
    (2) A State that does not conduct a survey required under paragraph 
(a)(1) of this section in any calendar year, or that conducts a survey 
that does not satisfy all the requirements of part 1340 of chapter III 
of this title, shall be ineligible for an allocation of funds on the 
basis of both Sec.  1240.10(a)(1) and Sec.  1240.10(a)(2) of this part 
during the second and third succeeding fiscal years (e.g., if a State 
fails to conduct a conforming survey in calendar year 1998, the State is 
ineligible for an allocation of funds during FY 2000 and FY 2001).
    (b) Submission of survey information. (1) Each State shall submit to 
NHTSA, no later than March 1st after the calendar year during which a 
survey required under paragraph (a)(1) of this section is conducted, the 
seat belt use rate determined under the survey, reported as a percentage 
to one decimal place, accompanied by a survey report, consisting of all 
documentation identified in Sec.  1340.5 of chapter III of this title 
and summarizing the results of any analyses conducted under the survey.
    (2) NHTSA will review a survey report submitted under paragraph 
(b)(1) of this section to determine whether the survey complies with all 
the requirements of Sec.  1340 of chapter III of this title. Written 
notice of approval or disapproval of a survey will be sent to the 
Governor's Representative for Highway Safety within 30 days of receipt 
of the survey report. Any notice of disapproval will be accompanied by a 
detailed statement of the reasons for disapproval.
    (3) A State may elect to submit a description of its proposed survey 
methodology, consisting of all documentation identified in Sec.  1340.5 
(a), (b) and (c)(3) of chapter III of this title for advance review, 
prior to conducting the survey.
    (4) NHTSA will review a proposed survey methodology submitted under 
paragraph (b)(3) of this section and inform the Governor's 
Representative for Highway Safety in writing within 30 days of receipt 
of the proposed methodology whether the survey, if conducted in 
accordance with the methodology,

[[Page 680]]

would comply with all the requirements of Sec.  1340 of chapter III of 
this title. Any notice indicating non-compliance will be accompanied by 
a detailed statement of the reasons.
    (5) A State that submits a description of its proposed survey 
methodology under paragraph (b)(3) of this section continues to be 
required to submit all information required under paragraph (b)(1) of 
this section, after the State conducts its survey, for review under 
paragraph (b)(2) of this section.
    (c) Submission of Certification--calendar year 1998 surveys. (1) A 
survey conducted by a State in calendar year 1998 shall be deemed to 
comply with the requirements of Sec.  1340 of chapter III of this title, 
if--
    (i) The survey's design was approved by the agency, in writing, on 
or after June 29, 1992, for the purposes of the grant program authorized 
under 23 U.S.C. 153;
    (ii) The survey design has remained unchanged since the survey was 
approved (except to the extent that the requirements of paragraph 
(c)(1)(iii) constitute a change); and
    (iii) The survey samples all passenger motor vehicles, measures seat 
belt use by all front seat outboard occupants in the sampled vehicles, 
and counts seat belt use only within the calendar year for which the 
seat belt use rate is reported.
    (2) A State that meets the requirements of paragraph (c)(1) of this 
section shall submit a certification signed by the Governor's 
Representative for Highway Safety, in the form prescribed in appendix C 
of this part, accompanied by the information required under paragraph 
(b)(1) of this section.
    (3) Written notice of acceptance or rejection of a certification 
will be sent to the Governor's Representative for Highway Safety within 
30 days of receipt of the information required under paragraph (c)(2) of 
this section. Any notice of rejection will be accompanied by a detailed 
statement of the reasons for rejection.
    (d) Determination of State seat belt use rate. The seat belt use 
rate submitted by the State for a calendar year will be accepted as the 
State seat belt use rate for that calendar year if--
    (1) It was determined under a survey whose survey report was 
approved under paragraph (b)(2) of this section; or
    (2) For calendar year 1998 only, the State satisfies the 
requirements of paragraphs (c)(1) and (c)(2) of this section, and its 
certification is accepted under paragraph (c)(3) of this section.



Sec.  1240.13  Determination of national average seat belt use rate.

    The national average seat belt use rate for a calendar year shall be 
the sum of the individual State seat belt use rates for all the States, 
after weighting each individual State seat belt use rate in accordance 
with the procedures of appendix D of this part.



Sec.  1240.14  Determination of Federal medical savings and notification 
of proposed allocations.

    On or about September 1, 1998, and each September 1 thereafter, 
NHTSA will--
    (a) Calculate, in accordance with the procedures in appendix E of 
this part, the Federal medical savings and each State's share of those 
savings, due to the amount by which the State seat belt use rate for the 
previous calendar year--
    (1) Exceeds the national average seat belt use rate for that 
calendar year, for each State described in Sec.  1240.10(a)(1) of this 
part; or
    (2) Exceeds the State's base seat belt use rate, for each State 
described in Sec.  1240.10(a)(2) of this part; and
    (b) Notify the States described in Sec.  1240.10(c) of this part of 
their proposed allocations, which shall be equal to the amount of the 
Federal medical savings calculated under paragraphs (a)(1) and (a)(2) of 
this section, as applicable, reduced proportionately across all States 
if the allocations would exceed the total amount authorized for 
allocation during the fiscal year.



Sec.  1240.15  Allocations.

    (a) Funds allocated under this part shall be available for any 
projects eligible for assistance under title 23, United States Code.
    (b) Not later than 25 days after notification under Sec.  1240.14(b) 
of this part, the Governor's Representative for

[[Page 681]]

Highway Safety and the Secretary of the State's Department of 
Transportation for each State that receives notification shall jointly 
identify, in writing to the appropriate NHTSA Regional Administrator and 
FHWA Division Administrator, the amounts of the State's proposed 
allocations that will be used in highway safety programs and in Federal-
aid highway programs.
    (c) On or about October 1, 1998, and each October 1 thereafter, the 
funds to which a State is entitled under this part will be allocated in 
the proportions identified by the State under paragraph (b) of this 
section, reduced proportionately across all States if the allocations 
would, in the aggregate, exceed total obligation limitations applicable 
to 23 U.S.C. 157.
    (d) Thereafter, each State shall identify specific NHTSA program 
areas and FHWA projects for which the allocated funds will be used.





Sec. Appendix A to Part 1240--Adjustment Procedures for State-Submitted 
               Information (Calendar Years 1996 and 1997)

    A. In States where State-submitted information on seat belt use 
rates does not include data for Front outboard occupants in passenger 
motor vehicles (FOPV), an adjustment will be made based on the national 
ratio of seat belt use rates for FOPV to the seat belt use rate for the 
group of occupants and vehicles that were included in the State-
submitted information. The national seat belt use rates will be derived 
from the most recent National Occupant Protection Use Survey (NOPUS). 
For each affected State, the adjustment will be made by dividing the 
NOPUS seat belt use rate for FOPV by the NOPUS seat belt use rate for 
the surveyed group, or the seat belt use rate for the closest available 
group to the surveyed group. The NOPUS seat belt use rate for FOPV will 
be derived for each affected State by weighting the NOPUS seat belt use 
rates for passenger cars and for passenger motor vehicles that are not 
passenger cars (hereafter LTVs) by the relative number of registrations 
of passenger cars and LTVs in each State. This method will produce a 
factor which will be multiplied by the State's survey-based seat belt 
use rate to produce an adjusted seat belt use rate reflecting the 
required vehicle and occupant population.
    B. The process may be expressed mathematically as follows:

Ua = Us((Npc * Rpc + 
          Nltv * Rltv) / Ns)

Where:

Ua = the adjusted State seat belt use rate
Us = the State-submitted seat belt use rate
Npc = the national front outboard passenger car seat belt use 
          rate from NOPUS
Nltv = the national front outboard LTV seat belt use rate 
          from NOPUS
Rpc = the portion of State passenger motor vehicle 
          registrations that are passenger cars
Rltv = the portion of State passenger motor vehicle 
          registrations that are LTVs
Ns = the national seat belt use rate for the State-surveyed 
          vehicle and occupant population (or closest available group 
          from NOPUS)



   Sec. Appendix B to Part 1240--Procedures for Missing or Inadequate 
       State-Submitted Information (Calendar Years 1996 and 1997)

    A. If State-submitted seat belt use rate information is unavailable 
or inadequate for both calendar years 1996 and 1997, State seat belt use 
rates for calendars year 1996 and 1997 will be estimated based on seat 
belt use rates of fatally-injured occupants. Data from the Fatality 
Analysis Reporting System (FARS) will be translated into estimated 
observed seat belt use rates using an algorithm that relates historical 
belt use by fatally-injured occupants to observed use. \1\
---------------------------------------------------------------------------

    \1\ Blincoe, L.J. Estimating the Benefits of Increased Safety Belt 
Use. Washington, DC: U.S. Department of Transportation, NHTSA, DOT HS 
808 133, June, 1994.
---------------------------------------------------------------------------

    B. The algorithm is as follows:

u = (-.221794 + [radic].049193 + .410769F) / .456410

Where:

u = the estimated observed seat belt use
F = the seat belt use in potentially fatal crashes

    In the above formula, F is calculated as follows:

F = (f / (1 - e)) / ((f / (1 - e)) + 1 - f)

Where:

F = the seat belt use in potentially fatal crashes
e = State-specific weighted average effectiveness of seat belts in 
          passenger cars and passenger motor vehicles that are not 
          passenger cars
f = State-specific seat belt use rate of fatally-injured occupants of 
          passenger vehicles

    C. If State-submitted seat belt use rate information is available 
for either calendar year 1996 or 1997, but not both, a State seat belt 
use rate for the year for which information is missing will be estimated 
by calculating the percent change in the FARS-based

[[Page 682]]

observed seat belt use rate (derived from the above algorithm) between 
the two years. This factor will then be applied to the seat belt use 
rate from the known year to derive an estimate of the seat belt use rate 
for the unknown year.



 Sec. Appendix C to Part 1240--Certification (Calendar Year 1998 Survey 
              Based on Survey Approved Under 23 U.S.C. 153)

       State Certification-Calendar Year 1998 Seat Belt Use Survey

 State of_______________________________________________________________

    Seat Belt Use Rate Reported for Calendar Year ____ : ____ %.
    In accordance with the provisions of 23 CFR 1240.12(c)(2), I hereby 
certify as follows:
    1. The seat belt use rate reported above is based on a survey whose 
design was approved by NHTSA, in writing, on or after June 29, 1992, 
under the provisions of the grant program authorized by 23 U.S.C. 153.
    2. The survey design has remained unchanged since the survey was 
approved (except to the extent that the requirements of paragraph 3 
constitute a change).
    3. The survey samples all passenger motor vehicles (including cars, 
pickup trucks, vans, minivans, and sport utility vehicles), measures 
seat belt use by all front outboard occupants in the sampled vehicles, 
and counts seat belt use completely within the calendar year for which 
the seat belt use rate is reported.

________________________________________________________________________
Governor's Representative for Highway Safety

________________________________________________________________________
(Date)



  Sec. Appendix D to Part 1240--Determination of National Average Seat 
                              Belt Use Rate

    A. To determine the national average seat belt use rate in a 
calendar year, each State seat belt use rate for the calendar year will 
be weighted to reflect the percentage of total national vehicle miles 
traveled attributable to that State.
    B. If a State seat belt use rate is unavailable for a State during a 
calendar year (either because the State did not conduct a seat belt use 
survey or a survey was conducted but does not comply with the Uniform 
Criteria for State Observational Surveys of Seat Belt Use, 23 CFR Part 
1340), NHTSA will calculate a State seat belt use rate, using the last 
available State seat belt use rate determined under Sec.  1240.11 or 
Sec.  1240.12 of this part, as applicable, along with information on 
seat belt use rates from the FARS, and an algorithm relating FARS seat 
belt use rates to observed seat belt use rates (see Appendix 1, note). 
This procedure will produce an estimated State seat belt use rate for 
the unknown calendar year. The estimated State seat belt use rate will 
then be weighted in the manner described in paragraph A of this 
appendix.
    C. The national average seat belt use rate for the calendar year 
will be determined by adding the weighted State seat belt use rates for 
each of the States (i.e., the national average seat belt use rate is the 
weighted average of all the State seat belt use rates).
    D. NHTSA may elect to use a seat belt use survey that does not 
comply with the Uniform Criteria for State Observational Surveys of Seat 
Belt Use in determining the national average seat belt use rate (even 
though the State that submitted the survey is ineligible to receive an 
allocation of funds), if in NHTSA's judgment, the deficiencies in the 
survey are not so substantial as to render the survey less accurate than 
the FARS estimate.



 Sec. Appendix E to Part 1240--Determination of Federal Medical Savings

    A. To determine the savings to the Federal Government from reduced 
medical costs attributable to seat belt use, NHTSA will first estimate 
the impact of seat belt use on the number of fatalities and injuries, 
using methods described in the report ``Estimating the Benefits from 
Increased Safety Belt Use.'' \1\ These methods establish a relationship 
between the effectiveness of seat belts, current use rates, and existing 
injury levels to determine the impact of increasing seat belt use on 
motor vehicle safety. Using these methods, NHTSA will estimate the 
fatalities prevented and the non-fatal injuries avoided by increased 
seat belt use.
---------------------------------------------------------------------------

    \1\ Blincoe, L.J. Estimating the Benefits of Increased Safety Belt 
Use. Washington, DC: U.S. Department of Transportation, NHTSA, DOT HS 
808 133, June, 1994.
---------------------------------------------------------------------------

    B. In the 1996 report ``The Economic Cost of Motor Vehicle Crashes, 
1994,'' \2\ NHTSA measured both the medical costs and payment sources 
for motor vehicle crashes. NHTSA will adjust the national medical cost 
figures from this report to individual State income levels to reflect 
local cost levels. These per-case costs will be further adjusted for 
inflation, using the most recent annual average Consumer Price Index for 
medical care, and then multiplied by the injuries and fatalities 
prevented in each State to derive

[[Page 683]]

the total medical care savings from increased seat belt use. The Federal 
portion of these costs will be derived from the best available data 
found in the same cost report or in other sources, as they may become 
available.
---------------------------------------------------------------------------

    \2\ Blincoe, L.J. The Economic Cost of Motor Vehicle Crashes, 1994. 
Washington, DC: U.S. Department of Transportation, NHTSA, DOT HS 808 
425, July, 1996.
---------------------------------------------------------------------------



                     SUBCHAPTER C_GENERAL PROVISIONS



                       PARTS 1250	1252 [RESERVED]

[[Page 684]]



               SUBCHAPTER D_TRANSFER AND SANCTION PROGRAMS





PART 1270_OPEN CONTAINER LAWS--Table of Contents



Sec.
1270.1 Scope.
1270.2 Purpose.
1270.3 Definitions.
1270.4 Compliance criteria.
1270.5 [Reserved]
1270.6 Reservation of funds.
1270.7 Use of reserved funds.
1270.8 Procedures affecting States in noncompliance.
1270.9 States' responsibilities regarding compliance.

    Authority: 23 U.S.C. 154; delegation of authority at 49 CFR 1.85 and 
1.95.

    Source: 81 FR 67166, Sept. 30, 2016, unless otherwise noted.



Sec.  1270.1  Scope.

    This part prescribes the requirements necessary to implement Section 
154 of Title 23 of the United States Code which encourages States to 
enact and enforce open container laws.



Sec.  1270.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to avoid the reservation and transfer of Federal-aid highway funds 
for noncompliance with 23 U.S.C. 154.



Sec.  1270.3  Definitions.

    As used in this part:
    (a) Alcoholic beverage means:
    (1) Beer, ale, porter, stout, and other similar fermented beverages 
(including sake or similar products) of any name or description 
containing one-half of 1 percent or more of alcohol by volume, brewed or 
produced from malt, wholly or in part, or from any substitute therefor;
    (2) Wine of not less than one-half of 1 per centum of alcohol by 
volume; or
    (3) Distilled spirits which is that substance known as ethyl 
alcohol, ethanol, or spirits of wine in any form (including all 
dilutions and mixtures thereof from whatever source or by whatever 
process produced).
    (b) FHWA means the Federal Highway Administration.
    (c) Motor vehicle means a vehicle driven or drawn by mechanical 
power and manufactured primarily for use on public highways, but does 
not include a vehicle operated solely on a rail or rails.
    (d) NHTSA means the National Highway Traffic Safety Administration.
    (e) Open alcoholic beverage container means any bottle, can, or 
other receptacle that:
    (1) Contains any amount of alcoholic beverage; and
    (2) Is open or has a broken seal or the contents of which are 
partially removed (regardless of whether it has been closed or 
resealed).
    (f) Open container law means a State law or combination of laws that 
meets the minimum requirements specified in Sec.  1270.4.
    (g) Passenger area means the area designed to seat the driver and 
passengers while the motor vehicle is in operation and any area that is 
readily accessible to the driver or a passenger while in their seating 
positions, including the glove compartment.
    (h) Public highway or right-of-way of a public highway means the 
width between and immediately adjacent to the boundary lines of every 
way publicly maintained when any part thereof is open to the use of the 
public for purposes of vehicular travel; inclusion of the roadway and 
shoulders is sufficient.
    (i) State means any of the 50 States, the District of Columbia, or 
the Commonwealth of Puerto Rico.



Sec.  1270.4  Compliance criteria.

    (a) To avoid the reservation of funds specified in Sec.  1270.6, a 
State must enact and enforce an open container law that prohibits the 
possession of any open alcoholic beverage container, and the consumption 
of any alcoholic beverage, in the passenger area of any motor vehicle 
(including possession or consumption by the driver of the vehicle) 
located on a public highway, or the right-of-way of a public highway, in 
the State.
    (b) The law must apply to:

[[Page 685]]

    (1) The possession of any open alcoholic beverage container and the 
consumption of any alcoholic beverage;
    (2) The passenger area of any motor vehicle;
    (3) All alcoholic beverages;
    (4) All occupants of a motor vehicle; and
    (5) All motor vehicles located on a public highway or the right-of-
way of a public highway.
    (c) The law must provide for primary enforcement.
    (d) Exceptions. (1) If a State has in effect a law that makes 
unlawful the possession of any open alcoholic beverage container and the 
consumption of any alcoholic beverage in the passenger area of any motor 
vehicle, but permits the possession of an open alcoholic beverage 
container in a locked container (such as a locked glove compartment), 
or, in a motor vehicle that is not equipped with a trunk, either behind 
the last upright seat or in an area not normally occupied by the driver 
or a passenger, the State will be deemed to have in effect a law that 
applies to the passenger area of any vehicle, as provided in paragraph 
(b)(2) of this section.
    (2) If a State has in effect a law that makes unlawful the 
possession of any open alcoholic beverage container and the consumption 
of any alcoholic beverage by the driver (but not by a passenger) in the 
passenger area of a motor vehicle designed, maintained, or used 
primarily for the transportation of persons for compensation, or in the 
living quarters of a house coach or house trailer, the State shall be 
deemed to have in effect a law that applies to all occupants of a motor 
vehicle with respect to such motor vehicles, as provided in paragraph 
(b)(4) of this section.



Sec.  1270.5  [Reserved].



Sec.  1270.6  Reservation of funds.

    (a) On October 1 of each fiscal year, if a State has not enacted or 
is not enforcing a law that complies with Sec.  1270.4, FHWA will 
reserve an amount equal to 2.5 percent of the funds apportioned to the 
State for that fiscal year under each of 23 U.S.C. 104(b)(1) and (b)(2).
    (b) The reservation of funds will be made based on proportionate 
amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and 
(b)(2). The State's Department of Transportation will have 30 days from 
the date the funds are reserved under this section to notify FHWA, 
through the appropriate Division Administrator, if it would like to 
change the distribution of the amounts reserved between 23 U.S.C. 
104(b)(1) and (b)(2).



Sec.  1270.7  Use of reserved funds.

    (a) Not later than 60 days after the funds are reserved under Sec.  
1270.6, the Governor's Representative for Highway Safety and the Chief 
Executive Officer of the State's Department of Transportation for each 
State must jointly identify, in writing to the appropriate NHTSA 
Regional Administrator and FHWA Division Administrator, how the funds 
will be programmed between alcohol-impaired driving programs under 
paragraph (c) of this section and highway safety improvement program 
activities under paragraph (d) of this section. Funds will remain 
reserved until this notification is provided by the State.
    (b) As soon as practicable after NHTSA and FHWA receive the 
notification described in paragraph (a) of this section, the Secretary 
will:
    (1) Transfer the reserved funds identified by the State for alcohol-
impaired driving programs under paragraph (c) of this section to the 
apportionment of the State under 23 U.S.C. 402; and
    (2) Release the reserved funds identified by the State for highway 
safety improvement program activities under paragraph (d) of this 
section to the State Department of Transportation.
    (c) Any funds transferred under paragraph (b)(1) of this section 
shall be--
    (1) Used for approved projects for alcohol-impaired driving 
countermeasures; or
    (2) Directed to State and local law enforcement agencies for 
enforcement of laws prohibiting driving while intoxicated or driving 
under the influence and other related laws (including regulations), 
including the purchase of equipment, the training of officers, and

[[Page 686]]

the use of additional personnel for specific alcohol-impaired driving 
countermeasures, dedicated to enforcement of the laws (including 
regulations).
    (d) Any funds released under paragraph (b)(2) of this section shall 
be used for highway safety improvement program activities eligible under 
23 U.S.C. 148.
    (e) Once the funds have been transferred or released under paragraph 
(b) of this section, the State may not revise the notification described 
in paragraph (a) of this section identifying how the funds will be 
programmed between alcohol-impaired driving programs and highway safety 
improvement program activities.
    (f) The Federal share of the cost of any project carried out with 
the funds transferred or released under paragraph (b) of this section is 
100 percent.
    (g)(1) If any funds are transferred under paragraph (b)(1) of this 
section to the apportionment of a State under Section 402 for a fiscal 
year, the amount of obligation authority determined under paragraph 
(g)(2) of this section shall be transferred for carrying out projects 
described in paragraph (c) of this section.
    (2) The obligation authority referred to in paragraph (g)(1) of this 
section shall be transferred from the obligation authority distributed 
for the fiscal year to the State for Federal-aid highways and highway 
safety construction programs, and the amount shall be determined by 
multiplying:
    (i) The amount of funds transferred under paragraph (b)(1) of this 
section to the apportionment of the State under Section 402 for the 
fiscal year; by
    (ii) The ratio that:
    (A) The amount of obligation authority distributed for the fiscal 
year to the State for Federal-aid highways and highway safety 
construction programs; bears to
    (B) The total of the sums apportioned to the State for Federal-aid 
highways and highway safety construction programs (excluding sums not 
subject to any obligation limitation) for the fiscal year.
    (h) Notwithstanding any other provision of law, no limitation on the 
total obligations for highway safety programs under Section 402 shall 
apply to funds transferred under paragraph (b)(1) of this section.



Sec.  1270.8  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 154 and this part will be advised of the funds reserved 
from apportionment under Sec.  1270.6 in the notice of apportionments 
required under 23 U.S.C. 104(e), which normally occurs on October 1.
    (b) Each State whose funds are reserved under Sec.  1270.6 will be 
afforded 30 days from the date the funds are reserved to submit 
documentation showing why it is in compliance. Documentation must be 
submitted to the appropriate NHTSA Regional Administrator. If such 
documentation is provided, a reservation will remain in place on the 
State's affected funds while the agencies consider the information. If 
the agencies affirm the noncompliance determination, the State will be 
notified of the decision and the affected funds will be processed in 
accordance with the requests regarding the derivation and distribution 
of funds provided by the State as required by Sec. Sec.  1270.6(b) and 
1270.7(a).

[81 FR 67166, Sept. 30, 2016, as amended at 84 FR 2734, Feb. 8, 2019]



Sec.  1270.9  States' responsibilities regarding compliance.

    (a) States are responsible for ensuring compliance with 23 U.S.C. 
154 and this part.
    (b) A State that has been determined to be in compliance with the 
requirements of 23 U.S.C. 154 and this part must promptly notify the 
appropriate NHTSA Regional Administrator in writing of any change or 
change in enforcement of the State's open container law, identifying the 
specific change(s).



PART 1275_REPEAT INTOXICATED DRIVER LAWS--Table of Contents



Sec.
1275.1 Scope.
1275.2 Purpose.
1275.3 Definitions.
1275.4 Compliance criteria.

[[Page 687]]

1275.5 ``General practice'' certification option.
1275.6 Reservation of funds.
1275.7 Use of reserved funds.
1275.8 Procedures affecting States in noncompliance.
1275.9 States' responsibilities regarding compliance.

    Authority: 23 U.S.C. 164; delegation of authority at 49 CFR 1.85 and 
1.95.

    Source: 81 FR 67168, Sept. 30, 2016, unless otherwise noted.



Sec.  1275.1  Scope.

    This part prescribes the requirements necessary to implement Section 
164 of Title 23, United States Code, which encourages States to enact 
and enforce repeat intoxicated driver laws.



Sec.  1275.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take to avoid the reservation and transfer of Federal-aid highway funds 
for noncompliance with 23 U.S.C. 164.



Sec.  1275.3  Definitions.

    As used in this part:
    (a) 24-7 sobriety program has the meaning given the term in Sec.  
1300.23(b) of this title.
    (b) Alcohol concentration means grams of alcohol per 100 milliliters 
of blood or grams of alcohol per 210 liters of breath.
    (c) Driving while intoxicated means driving or being in actual 
physical control of a motor vehicle while having an alcohol 
concentration above the permitted limit as established by each State, or 
an equivalent non-BAC intoxicated driving offense.
    (d) Driving under the influence has the same meaning as ``driving 
while intoxicated.''
    (e) FHWA means the Federal Highway Administration.
    (f) Ignition interlock system means a State-certified system 
designed to prevent drivers from starting their car when their breath 
alcohol concentration is at or above a preset level.
    (g) Imprisonment means confinement in a jail, minimum security 
facility, community corrections facility, house arrest with electronic 
monitoring, inpatient rehabilitation or treatment center, or other 
facility, provided the individual under confinement is in fact being 
detained.
    (h) Mandatory sentence means a sentence that cannot be waived, 
suspended, or otherwise reduced by the State.
    (i) Motor vehicle means a vehicle driven or drawn by mechanical 
power and manufactured primarily for use on public highways, but does 
not include a vehicle operated solely on a rail line or a commercial 
vehicle.
    (j) NHTSA means the National Highway Traffic Safety Administration.
    (k) Repeat intoxicated driver means a person who has been convicted 
of driving while intoxicated or driving under the influence of alcohol 
more than once in any five-year period.
    (l) Repeat intoxicated driver law means a State law or combination 
of laws or programs that impose the minimum penalties specified in Sec.  
1275.4 for all repeat intoxicated drivers.
    (m) State means any of the 50 States, the District of Columbia or 
the Commonwealth of Puerto Rico.



Sec.  1275.4  Compliance criteria.

    (a) To avoid the reservation of funds specified in Sec.  1275.6, a 
State must enact and enforce a repeat intoxicated driver law that 
establishes, as a minimum penalty, that all repeat intoxicated drivers:
    (1) Receive, for a period of not less than one year, one or more of 
the following penalties:
    (i) A suspension of all driving privileges;
    (ii) A restriction on driving privileges that limits the individual 
to operating only motor vehicles with an ignition interlock device 
installed, unless a special exception described in paragraph (b) of this 
section applies; or
    (iii) A restriction on driving privileges that limits the individual 
to operating motor vehicles only if participating in, and complying 
with, a 24-7 sobriety program;
    (2) Receive an assessment of their degree of alcohol abuse, and 
treatment as appropriate; and
    (3) Except as provided in Sec.  1275.5, receive a mandatory sentence 
of--
    (i) Not less than five days (120 hours) of imprisonment or 30 days 
(240 hours)

[[Page 688]]

of community service for a second offense; and
    (ii) Not less than ten days (240 hours) of imprisonment or 60 days 
(480 hours) of community service for a third or subsequent offense.
    (b) Special exceptions. As used in paragraph (a)(1)(ii) of this 
section, special exception means an exception under a State alcohol-
ignition interlock law for the following circumstances only:
    (1) The individual is required to operate an employer's motor 
vehicle in the course and scope of employment and the business entity 
that owns the vehicle is not owned or controlled by the individual; or
    (2) The individual is certified in writing by a physician as being 
unable to provide a deep lung breath sample for analysis by an ignition 
interlock device.

[81 FR 67168, Sept. 30, 2016, as amended at 84 FR 2734, Feb. 8, 2019]



Sec.  1275.5  ``General practice'' certification option.

    (a) Notwithstanding Sec.  1275.4(a)(3), a State that otherwise meets 
the requirements of Sec.  1275.4 may comply with 23 U.S.C. 164 and this 
part based on the State's ``general practice'' for incarceration. A 
State electing this option shall--
    (1) If the State law does not comply with the requirements of Sec.  
1275.4(a)(3)(i), submit the following certification signed by the 
Governor's Representative for Highway Safety:

    I, [Name], Governor's Representative for Highway Safety, certify 
that, in [State name], at least 75 percent of repeat intoxicated drivers 
receive a mandatory sentence of imprisonment for a second offense, as 
those terms are defined in 23 CFR 1275.3. This certification is based on 
data from the period of twelve consecutive months of the calendar year 
immediately preceding the date of this certification. I sign this 
certification based on personal knowledge and other appropriate inquiry. 
[Signature of Governor's Representative for Highway Safety] [Date of 
signature]

    (2) If the State law does not comply with the requirements of Sec.  
1275.4(a)(3)(ii), submit the following certification signed by the 
Governor's Representative for Highway Safety:

    I, [Name], Governor's Representative for Highway Safety, certify 
that, in [State name], at least 75 percent of repeat intoxicated drivers 
receive a mandatory sentence of not less than ten days (240 hours) of 
imprisonment for a third or subsequent offense, as those terms are 
defined in 23 CFR 1275.3. This certification is based on data from the 
period of twelve consecutive months of the calendar year immediately 
preceding the date of this certification. I sign this certification 
based on personal knowledge and other appropriate inquiry. [Signature of 
Governor's Representative for Highway Safety] [Date of signature]

    (b) A State electing the option under this section must submit a new 
certification to the appropriate NHTSA Regional Administrator by not 
later than October 1 of each fiscal year to avoid the reservation of 
funds specified in Sec.  1275.6. The State is encouraged to submit the 
certification by August 15 to avoid any delay in release of funds on 
October 1 of that calendar year while NHTSA evaluates its certification.



Sec.  1275.6  Reservation of funds.

    (a) On October 1 of each fiscal year, if a State has not enacted or 
is not enforcing a law that complies with Sec.  1275.4, FHWA will 
reserve an amount equal to 2.5 percent of the funds apportioned to the 
State for that fiscal year under each of 23 U.S.C. 104(b)(1) and (b)(2).
    (b) The reservation of funds will be made based on proportionate 
amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and 
(b)(2). The State's Department of Transportation will have 30 days from 
the date the funds are reserved under this section to notify FHWA, 
through the appropriate Division Administrator, if it would like to 
change the distribution of the amounts reserved between 23 U.S.C. 
104(b)(1) and (b)(2).



Sec.  1275.7  Use of reserved funds.

    (a) Not later than 60 days after the funds are reserved under Sec.  
1275.6, the Governor's Representative for Highway Safety and the Chief 
Executive Officer of the State's Department of Transportation for each 
State must jointly identify, in writing to the appropriate NHTSA 
Regional Administrator and FHWA Division Administrator, how the funds 
will be programmed between alcohol-impaired driving programs under 
paragraph (c) of this section and highway safety improvement program

[[Page 689]]

activities under paragraph (d) of this section. Funds will remain 
reserved until this notification is provided by the State.
    (b) As soon as practicable after NHTSA and FHWA receive the 
notification described in paragraph (a) of this section, the Secretary 
will:
    (1) Transfer the reserved funds identified by the State for alcohol-
impaired driving programs under paragraph (c) of this section to the 
apportionment of the State under 23 U.S.C. 402; and
    (2) Release the reserved funds identified by the State for highway 
safety improvement program activities under paragraph (d) of this 
section to the State Department of Transportation.
    (c) Any funds transferred under paragraph (b)(1) of this section 
shall be--
    (1) Used for approved projects for alcohol-impaired driving 
countermeasures; or
    (2) Directed to State and local law enforcement agencies for 
enforcement of laws prohibiting driving while intoxicated or driving 
under the influence and other related laws (including regulations), 
including the purchase of equipment, the training of officers, and the 
use of additional personnel for specific alcohol-impaired driving 
countermeasures, dedicated to enforcement of the laws (including 
regulations).
    (d) Any funds released under paragraph (b)(2) of this section shall 
be used for highway safety improvement program activities eligible under 
23 U.S.C. 148.
    (e) Once the funds have been transferred or released under paragraph 
(b) of this section, the State may not revise the notification described 
in paragraph (a) of this section identifying how the funds will be 
programmed between alcohol-impaired driving programs and highway safety 
improvement program activities.
    (f) The Federal share of the cost of any project carried out with 
the funds transferred or released under paragraph (b) of this section is 
100 percent.
    (g)(1) If any funds are transferred under paragraph (b)(1) of this 
section to the apportionment of a State under Section 402 for a fiscal 
year, the amount of obligation authority determined under paragraph 
(g)(2) of this section shall be transferred for carrying out projects 
described in paragraph (c) of this section.
    (2) The obligation authority referred to in paragraph (g)(1) of this 
section shall be transferred from the obligation authority distributed 
for the fiscal year to the State for Federal-aid highways and highway 
safety construction programs, and the amount shall be determined by 
multiplying:
    (i) The amount of funds transferred under paragraph (b)(1) of this 
section to the apportionment of the State under Section 402 for the 
fiscal year; by
    (ii) The ratio that:
    (A) The amount of obligation authority distributed for the fiscal 
year to the State for Federal-aid highways and highway safety 
construction programs; bears to
    (B) The total of the sums apportioned to the State for Federal-aid 
highways and highway safety construction programs (excluding sums not 
subject to any obligation limitation) for the fiscal year.
    (h) Notwithstanding any other provision of law, no limitation on the 
total obligations for highway safety programs under Section 402 shall 
apply to funds transferred under paragraph (b)(1) of this section.



Sec.  1275.8  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 164 and this part will be advised of the funds reserved 
from apportionment under Sec.  1275.6 in the notice of apportionments 
required under 23 U.S.C. 104(e), which normally occurs on October 1.
    (b) Each State whose funds are reserved under Sec.  1275.6 will be 
afforded 30 days from the date the funds are reserved to submit 
documentation showing why it is in compliance (which may include a 
``general practice'' certification under Sec.  1275.5). Documentation 
must be submitted to the appropriate NHTSA Regional Administrator. If 
such documentation is provided, a reservation will remain in place on 
the State's affected funds while the agencies consider the information. 
If the agencies affirm the noncompliance determination, the State will 
be notified of the decision and the affected funds

[[Page 690]]

will be processed in accordance with the requests regarding the 
derivation and distribution of funds provided by the State as required 
by Sec. Sec.  1275.6(b) and 1275.7(a).

[81 FR 67168, Sept. 30, 2016, as amended at 84 FR 2734, Feb. 8, 2019]



Sec.  1275.9  States' responsibilities regarding compliance.

    (a) States are responsible for ensuring compliance with 23 U.S.C. 
164 and this part.
    (b) A State that has been determined to be in compliance with the 
requirements of 23 U.S.C. 164 and this part must promptly notify the 
appropriate NHTSA Regional Administrator in writing of any change or 
change in enforcement of the State's repeat intoxicated driver law, 
identifying the specific change(s).

                       PARTS 1276	1299 [RESERVED]

[[Page 691]]



CHAPTER III--NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, DEPARTMENT 
                            OF TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
1300            Uniform procedures for state highway safety 
                    grant programs..........................         693
1301-1313

 [Reserved]

1327            Procedures for participating in and 
                    receiving information from the National 
                    Driver Register Problem Driver Pointer 
                    System..................................         751
1335

[Reserved]

1340            Uniform criteria for State observational 
                    surveys of seat belt use................         764
1345-1399

 [Reserved]

[[Page 693]]



PART 1300_UNIFORM PROCEDURES FOR STATE HIGHWAY SAFETY GRANT PROGRAMS--
Table of Contents



                            Subpart A_General

Sec.
1300.1 Purpose.
1300.2 [Reserved]
1300.3 Definitions.
1300.4 State Highway Safety Agency--authority and functions.
1300.5 Due dates--interpretation.

                      Subpart B_Highway Safety Plan

1300.10 General.
1300.11 Contents.
1300.12 Due date for submission.
1300.13 Special funding conditions for Section 402 Grants.
1300.14 Review and approval procedures.
1300.15 Apportionment and obligation of Federal funds.

  Subpart C_National Priority Safety Program and Racial Profiling Data 
                            Collection Grants

1300.20 General.
1300.21 Occupant protection grants.
1300.22 State traffic safety information system improvements grants.
1300.23 Impaired driving countermeasures grants.
1300.24 Distracted driving grants.
1300.25 Motorcyclist safety grants.
1300.26 State graduated driver licensing incentive grants.
1300.27 Nonmotorized safety grants.
1300.28 Racial profiling data collection grants.

          Subpart D_Administration of the Highway Safety Grants

1300.30 General.
1300.31 Equipment.
1300.32 Amendments to Highway Safety Plans--approval by the Regional 
          Administrator.
1300.33 Vouchers and project agreements.
1300.34 [Reserved]
1300.35 Annual report.
1300.36 Appeals of written decision by a Regional Administrator.

                     Subpart E_Annual Reconciliation

1300.40 Expiration of the Highway Safety Plan.
1300.41 Disposition of unexpended balances.
1300.42 Post-grant adjustments.
1300.43 Continuing requirements.

                        Subpart F_Non-Compliance

1300.50 General.
1300.51 Sanctions--reduction of apportionment.
1300.52 Sanctions--risk assessment and non-compliance.

Appendix A to Part 1300--Certifications and Assurances for Highway 
          Safety Grants (23 U.S.C. Chapter 4; Sec. 1906, Pub. L. 109-59, 
          as Amended by Sec. 4011, Pub. L. 114-94)
Appendix B to Part 1300--Application Requirements for Section 405 and 
          Section 1906 Grants
Appendix C to Part 1300--Participation by Political Subdivisions
Appendix D to Part 1300--Planning and Administration (P & A) Costs

    Authority: 23 U.S.C. 402; 23 U.S.C. 405; Sec. 1906, Pub. L. 109-59, 
119 Stat. 1468, as amended by Sec. 4011, Pub. L. 114-94, 129 Stat. 1512; 
delegation of authority at 49 CFR 1.95.

    Source: 83 FR 3482, Jan. 25, 2018, unless otherwise noted.



                            Subpart A_General



Sec.  1300.1  Purpose.

    This part establishes uniform procedures for State highway safety 
programs authorized under 23 U.S.C. Chapter 4 and Sec. 1906, Public Law 
109-59, as amended by Sec. 4011, Public Law 114-94.



Sec.  1300.2  [Reserved]



Sec.  1300.3  Definitions.

    As used in this part--
    Annual Report File (ARF) means FARS data that are published 
annually, but prior to final FARS data.
    Carry-forward funds means those funds that a State has not expended 
on projects in the fiscal year in which they were apportioned or 
allocated, that are within the period of availability, and that are 
being brought forward and made available for expenditure in a subsequent 
fiscal year.
    Contract authority means the statutory language that authorizes an 
agency to incur an obligation without the need for a prior appropriation 
or further action from Congress and which, when exercised, creates a 
binding obligation on the United States for which Congress must make 
subsequent liquidating appropriations.

[[Page 694]]

    Countermeasure strategy means a proven effective or innovative 
countermeasure proposed or implemented with grant funds under 23 U.S.C. 
Chapter 4 or Section 1906 to address identified problems and meet 
performance targets. Examples of proven effective countermeasures 
include high-visibility occupant protection enforcement, DUI courts, or 
alcohol screening and brief intervention programs.
    Data-driven means informed by a systematic review and analysis of 
quality data sources when making decisions related to planning, target 
establishment, resource allocation and implementation.
    Evidence-based means based on approaches that are proven effective 
with consistent results when making decisions related to countermeasure 
strategies and projects.
    Fatality Analysis Reporting System (FARS) means the nationwide 
census providing yearly public data regarding fatal injuries suffered in 
motor vehicle traffic crashes, as published by NHTSA.
    Fatality rate means the ratio of the number of fatalities (as 
defined in this section) to the number of vehicle miles traveled (VMT) 
(expressed in 100 million VMT) in a calendar year, based on the data 
reported in the FARS database.
    Final FARS means the FARS data that replace the annual report file 
and contain additional cases or updates that became available after the 
annual report file was released.
    Fiscal year means the Federal fiscal year, consisting of the 12 
months beginning each October 1 and ending the following September 30.
    Five-year (5-year) rolling average means the average of five 
individual points of data from five consecutive calendar years (e.g., 
the 5-year rolling average of the annual fatality rate).
    Governor means the Governor of any of the fifty States, Puerto Rico, 
the U.S. Virgin Islands, Guam, American Samoa, or the Commonwealth of 
the Northern Mariana Islands, the Mayor of the District of Columbia, or, 
for the application of this part to Indian Country as provided in 23 
U.S.C. 402(h), the Secretary of the Interior.
    Governor's Representative for Highway Safety means the official 
appointed by the Governor to implement the State's highway safety 
program or, for the application of this part to Indian Country as 
provided in 23 U.S.C. 402(h), an official of the Bureau of Indian 
Affairs or other Department of Interior official who is duly designated 
by the Secretary of the Interior to implement the Indian highway safety 
program.
    Highway Safety Plan (HSP) means the document that the State submits 
each fiscal year as its application for highway safety grants (and 
amends as necessary), which describes the State's performance targets, 
the countermeasure strategies and activities the State plans to 
implement, the resources from all sources the State plans to use to 
achieve its highway safety performance targets.
    Highway safety program means the planning, strategies and 
performance measures, and general oversight and management of highway 
safety strategies and projects by the State either directly or through 
subrecipients to address highway safety problems in the State, as 
defined in the annual Highway Safety Plan and any amendments.
    NHTSA means the National Highway Traffic Safety Administration.
    Number of fatalities means the total number of persons suffering 
fatal injuries in a motor vehicle traffic crash during a calendar year, 
based on data reported in the FARS database.
    Number of serious injuries means the total number of persons 
suffering at least one serious injury for each separate motor vehicle 
traffic crash during a calendar year, as reported by the State, where 
the crash involves a motor vehicle traveling on a public road.
    Performance measure means a metric that is used to establish targets 
and to assess progress toward meeting the established targets.
    Performance target means a quantifiable level of performance or a 
goal, expressed as a value, to be achieved within a specified time 
period.
    Problem identification means the data collection and analysis 
process for identifying areas of the State, types of crashes, or types 
of populations (e.g., high-risk populations) that present

[[Page 695]]

specific safety challenges to efforts to improve a specific program 
area.
    Program area means any of the national priority safety program areas 
identified in 23 U.S.C. 405 or a program area identified by a State in 
the Highway Safety Plan as encompassing a major highway safety problem 
in the State and for which documented effective countermeasure 
strategies have been identified or projected by analysis to be 
effective.
    Project means a discrete effort involving identified subrecipients 
or contractors to be implemented with grant funds under 23 U.S.C. 
Chapter 4 or Section 1906 and that addresses countermeasure strategies 
identified in the Highway Safety Plan.
    Project agreement means a written agreement at the State level or 
between the State and a subrecipient or contractor under which the State 
agrees to perform a project or to provide Federal funds in exchange for 
the subrecipient's or contractor's performance of a project that 
supports the highway safety program.
    Project agreement number means a unique State-generated identifier 
assigned to each project agreement.
    Public road means any road under the jurisdiction of and maintained 
by a public authority and open to public travel.
    Section 402 means section 402 of title 23 of the United States Code.
    Section 405 means section 405 of title 23 of the United States Code.
    Section 1906 means Sec. 1906, Public Law 109-59, as amended by Sec. 
4011, Public Law 114-94.
    Serious injuries means, until April 15, 2019, injuries classified as 
``A'' on the KABCO scale through the use of the conversion tables 
developed by NHTSA, and thereafter, ``suspected serious injury (A)'' as 
defined in the Model Minimum Uniform Crash Criteria (MMUCC) Guideline, 
4th Edition.
    State means, except as provided in Sec.  1300.25(b), any of the 
fifty States of the United States, the District of Columbia, Puerto 
Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of 
the Northern Mariana Islands, or, for the application of this part to 
Indian Country as provided in 23 U.S.C. 402(h), the Secretary of the 
Interior.
    State highway safety improvement program (HSIP) means the program 
defined in 23 U.S.C. 148(a)(10).
    State strategic highway safety plan (SHSP) means the plan defined in 
23 U.S.C. 148(a)(11).



Sec.  1300.4  State Highway Safety Agency--authority and functions.

    (a) In general. In order for a State to receive grant funds under 
this part, the Governor shall exercise responsibility for the highway 
safety program by appointing a Governor's Representative for Highway 
Safety who shall be responsible for a State Highway Safety Agency that 
has adequate powers and is suitably equipped and organized to carry out 
the State's highway safety program.
    (b) Authority. Each State Highway Safety Agency shall be authorized 
to--
    (1) Develop and execute the Highway Safety Plan and highway safety 
program in the State;
    (2) Manage Federal grant funds effectively and efficiently and in 
accordance with all Federal and State requirements;
    (3) Obtain information about highway safety programs and projects 
administered by other State and local agencies;
    (4) Maintain or have access to information contained in State 
highway safety data systems, including crash, citation or adjudication, 
emergency medical services/injury surveillance, roadway and vehicle 
record keeping systems, and driver license data;
    (5) Periodically review and comment to the Governor on the 
effectiveness of programs to improve highway safety in the State from 
all funding sources that the State plans to use for such purposes;
    (6) Provide financial and technical assistance to other State 
agencies and political subdivisions to develop and carry out highway 
safety strategies and projects; and
    (7) Establish and maintain adequate staffing to effectively plan, 
manage, and provide oversight of projects approved in the HSP and to 
properly administer the expenditure of Federal grant funds.

[[Page 696]]

    (c) Functions. Each State Highway Safety Agency shall--
    (1) Develop and prepare the HSP based on evaluation of highway 
safety data, including crash fatalities and injuries, roadway, driver 
and other data sources to identify safety problems within the State;
    (2) Establish projects to be funded within the State under 23 U.S.C. 
Chapter 4 based on identified safety problems and priorities and 
projects under Section 1906;
    (3) Conduct a risk assessment of subrecipients and monitor 
subrecipients based on risk, as provided in 2 CFR 200.331;
    (4) Provide direction, information and assistance to subrecipients 
concerning highway safety grants, procedures for participation, 
development of projects and applicable Federal and State regulations and 
policies;
    (5) Encourage and assist subrecipients to improve their highway 
safety planning and administration efforts;
    (6) Review and approve, and evaluate the implementation and 
effectiveness of, State and local highway safety programs and projects 
from all funding sources that the State plans to use under the HSP, and 
approve and monitor the expenditure of grant funds awarded under 23 
U.S.C. Chapter 4 and Section 1906;
    (7) Assess program performance through analysis of highway safety 
data and data-driven performance measures;
    (8) Ensure that the State highway safety program meets the 
requirements of 23 U.S.C. Chapter 4, Section 1906 and applicable Federal 
and State laws, including but not limited to the standards for financial 
management systems required under 2 CFR 200.302 and internal controls 
required under 2 CFR 200.303;
    (9) Ensure that all legally required audits of the financial 
operations of the State Highway Safety Agency and of the use of highway 
safety grant funds are conducted;
    (10) Track and maintain current knowledge of changes in State 
statutes or regulations that could affect State qualification for 
highway safety grants or transfer programs;
    (11) Coordinate the HSP and highway safety data collection and 
information systems activities with other federally and non-federally 
supported programs relating to or affecting highway safety, including 
the State SHSP as defined in 23 U.S.C. 148(a); and
    (12) Administer Federal grant funds in accordance with Federal and 
State requirements, including 2 CFR parts 200 and 1201.



Sec.  1300.5  Due dates--interpretation.

    If any deadline or due date in this part falls on a Saturday, Sunday 
or Federal holiday, the applicable deadline or due date shall be the 
next business day.



                      Subpart B_Highway Safety Plan



Sec.  1300.10  General.

    To apply for any highway safety grant under 23 U.S.C. Chapter 4 and 
Section 1906, a State shall submit electronically a Highway Safety Plan 
meeting the requirements of this subpart.



Sec.  1300.11  Contents.

    The State's Highway Safety Plan documents a State's highway safety 
program that is data-driven in establishing performance targets and 
selecting the countermeasure strategies, planned activities and projects 
to meet performance targets. Each fiscal year, the State shall submit a 
HSP, consisting of the following components:
    (a) Highway safety planning process. (1) Description of the data 
sources and processes used by the State to identify its highway safety 
problems, describe its highway safety performance measures, establish 
its performance targets, and develop and select evidence-based 
countermeasure strategies and projects to address its problems and 
achieve its performance targets;
    (2) Identification of the participants in the processes (e.g., 
highway safety committees, program stakeholders, community and 
constituent groups);
    (3) Description and analysis of the State's overall highway safety 
problems as identified through an analysis

[[Page 697]]

of data, including but not limited to fatality, injury, enforcement, and 
judicial data, to be used as a basis for setting performance targets, 
selecting countermeasure strategies, and developing projects;
    (4) Discussion of the methods for project selection (e.g., 
constituent outreach, public meetings, solicitation of proposals);
    (5) List of information and data sources consulted; and
    (6) Description of the outcomes from the coordination of the HSP, 
data collection, and information systems with the State SHSP.
    (b) Performance report. A program-area-level report on the State's 
progress towards meeting State performance targets from the previous 
fiscal year's HSP.
    (c) Performance plan. (1) List of quantifiable and measurable 
highway safety performance targets that are data-driven, consistent with 
the Uniform Guidelines for Highway Safety Programs and based on highway 
safety problems identified by the State during the planning process 
conducted under paragraph (a) of this section.
    (2) All performance measures developed by NHTSA in collaboration 
with the Governors Highway Safety Association (``Traffic Safety 
Performance Measures for States and Federal Agencies'' (DOT HS 811 
025)), as revised in accordance with 23 U.S.C. 402(k)(5) and published 
in the Federal Register, which must be used as minimum measures in 
developing the performance targets identified in paragraph (c)(1) of 
this section, provided that--
    (i) At least one performance measure and performance target that is 
data-driven shall be provided for each program area that enables the 
State to track progress toward meeting the quantifiable annual target;
    (ii) For each program area performance measure, the State shall 
provide--
    (A) Quantifiable performance targets; and
    (B) Justification for each performance target that explains how the 
target is data-driven, including a discussion of the factors that 
influenced the performance target selection; and
    (iii) State HSP performance targets are identical to the State DOT 
targets for common performance measures (fatality, fatality rate, and 
serious injuries) reported in the HSIP annual report, as coordinated 
through the State SHSP. These performance measures shall be based on a 
5-year rolling average that is calculated by adding the number of 
fatalities or number of serious injuries as it pertains to the 
performance measure for the most recent 5 consecutive calendar years 
ending in the year for which the targets are established. The ARF may be 
used, but only if final FARS is not yet available. The sum of the 
fatalities or sum of serious injuries is divided by five and then 
rounded to the tenth decimal place for fatality or serious injury 
numbers and rounded to the thousandth decimal place for fatality rates.
    (3) Additional performance measures not included under paragraph 
(c)(2) of this section. For program areas where performance measures 
have not been jointly developed (e.g., distracted driving, drug-impaired 
driving) for which States are using HSP funds, the State shall develop 
its own performance measures and performance targets that are data-
driven, and shall provide the same information as required under 
paragraph (c)(2) of this section.
    (d) Highway safety program area problem identification, 
countermeasure strategies, planned activities and funding. (1) 
Description of each program area countermeasure strategy that will help 
the State complete its program and achieve specific performance targets 
described in paragraph (c) of this section, including, at a minimum--
    (i) An assessment of the overall projected traffic safety impacts of 
the countermeasure strategies chosen and of the planned activities to be 
funded; and
    (ii) A description of the linkage between program area problem 
identification data, performance targets, identified countermeasure 
strategies and allocation of funds to planned activities.
    (2) Description of each planned activity within the countermeasure 
strategies in paragraph (d)(1) of this section that the State plans to 
implement to reach the performance targets identified in paragraph (c) 
of this section, including, at a minimum--

[[Page 698]]

    (i) A list and description of the planned activities that the State 
will conduct to support the countermeasure strategies within each 
program area to address its problems and achieve its performance 
targets; and
    (ii) For each planned activity (i.e., types of projects the State 
plans to conduct), a description, including intended subrecipients, 
Federal funding source, eligible use of funds, and estimates of funding 
amounts, amount for match and local benefit.
    (3) Rationale for selecting the countermeasure strategy and funding 
allocation for each planned activity described in paragraph (d)(2) of 
this section (e.g., program assessment recommendations, participation in 
national mobilizations, emerging issues). The State may also include 
information on the cost effectiveness of proposed countermeasure 
strategies, if such information is available.
    (4) For innovative countermeasure strategies (i.e., countermeasure 
strategies that are not evidence-based), justification supporting the 
countermeasure strategy, including research, evaluation and/or 
substantive anecdotal evidence, that supports the potential of the 
proposed innovative countermeasure strategy.
    (5) Evidence-based traffic safety enforcement program (TSEP) to 
prevent traffic violations, crashes, and crash fatalities and injuries 
in areas most at risk for such incidents, provided that--
    (i) The State shall identify the planned activities that 
collectively constitute a data-driven TSEP and include--
    (A) An analysis of crashes, crash fatalities, and injuries in areas 
of highest risk; and
    (B) An explanation of the deployment of resources based on that 
analysis.
    (ii) The State shall describe how it plans to monitor the 
effectiveness of enforcement activities, make ongoing adjustments as 
warranted by data, and update the countermeasure strategies and planned 
activities in the HSP, as applicable, in accordance with this part.
    (6) The planned high-visibility enforcement (HVE) strategies to 
support national mobilizations. The State shall implement activities in 
support of national highway safety goals to reduce motor-vehicle-related 
fatalities that also reflect the primary data-related crash factors 
within the State, as identified by the State highway safety planning 
process, including participation in the national high-visibility law 
enforcement mobilizations in accordance with 23 U.S.C. 404. The planned 
high-visibility enforcement strategies to support the national 
mobilizations shall include not less than three mobilization campaigns 
in each fiscal year to reduce alcohol-impaired or drug-impaired 
operation of motor vehicles and increase use of seatbelts by occupants 
of motor vehicles.
    (e) Teen Traffic Safety Program. If the State elects to include the 
Teen Traffic Safety Program authorized under 23 U.S.C. 402(m), a 
description of planned activities, including the amount and types of 
Federal funding requested, the State match, local benefit as applicable, 
appropriate eligible use of funds, and applicable performance target 
that the State will conduct as part of the Teen Traffic Safety Program--
a Statewide program to improve traffic safety for teen drivers. Planned 
activities must meet the eligible use requirements of 23 U.S.C. 
402(m)(2).
    (f) Certifications and assurances. The Certifications and Assurances 
for 23 U.S.C. Chapter 4 and Section 1906 grants contained in appendix A, 
signed by the Governor's Representative for Highway Safety, certifying 
to the HSP application contents and performance conditions and providing 
assurances that the State will comply with applicable laws, and 
financial and programmatic requirements.
    (g) Section 405 grant and racial profiling data collection grant 
application. Application for any of the national priority safety program 
grants and the racial profiling data collection grant, in accordance 
with the requirements of subpart C and as provided in Appendix B, signed 
by the Governor's Representative for Highway Safety.



Sec.  1300.12  Due date for submission.

    (a) A State shall submit its Highway Safety Plan electronically to 
NHTSA no later than 11:59 p.m. EDT on July 1 preceding the fiscal year 
to which the HSP applies.

[[Page 699]]

    (b) Failure to meet this deadline may result in delayed approval and 
funding of a State's Section 402 grant or disqualification from 
receiving a Section 405 or racial profiling data collection grant.



Sec.  1300.13  Special funding conditions for Section 402 Grants.

    The State's highway safety program under Section 402 shall be 
subject to the following conditions, and approval under Sec.  1300.14 of 
this part shall be deemed to incorporate these conditions:
    (a) Planning and administration (P & A) costs. (1) Federal 
participation in P & A activities shall not exceed 50 percent of the 
total cost of such activities, or the applicable sliding scale rate in 
accordance with 23 U.S.C. 120. The Federal contribution for P & A 
activities shall not exceed 15 percent of the total funds the State 
receives under Section 402. In accordance with 23 U.S.C. 120(i), the 
Federal share payable for projects in the U.S. Virgin Islands, Guam, 
American Samoa and the Commonwealth of the Northern Mariana Islands 
shall be 100 percent. The Indian Country, as defined by 23 U.S.C. 
402(h), is exempt from the provisions of P & A requirements. NHTSA funds 
shall be used only to fund P & A activities attributable to NHTSA 
programs. Determinations of P & A shall be in accordance with the 
provisions of Appendix D.
    (2) P & A tasks and related costs shall be described in the P & A 
module of the State's Highway Safety Plan. The State's matching share 
shall be determined on the basis of the total P & A costs in the module.
    (b) Prohibition on use of grant funds to check for helmet usage. 
Grant funds under this part shall not be used for programs to check 
helmet usage or to create checkpoints that specifically target 
motorcyclists.
    (c) Prohibition on use of grant funds for automated traffic 
enforcement systems. The State may not expend funds apportioned to the 
State under Section 402 to carry out a program to purchase, operate, or 
maintain an automated traffic enforcement system. The term ``automated 
traffic enforcement system'' includes any camera that captures an image 
of a vehicle for the purposes only of red light and speed enforcement, 
and does not include hand held radar and other devices operated by law 
enforcement officers to make an on-the-scene traffic stop, issue a 
traffic citation, or other enforcement action at the time of the 
violation.
    (d) Biennial survey of State automated traffic enforcement systems. 
(1) Beginning with fiscal year 2018 Highway Safety Plans and biennially 
thereafter, the State must either--
    (i) Certify, as provided in Appendix A, that automated traffic 
enforcement systems are not used on any public road in the State; or
    (ii)(A) Conduct a survey during the fiscal year of the grant meeting 
the requirements of paragraph (d)(2) of this section and provide 
assurances, as provided in Appendix A, that it will do so; and
    (B) Submit the survey results to the NHTSA Regional Office no later 
than March 1 of the fiscal year of the grant.
    (2) Survey contents. The survey shall include information about 
automated traffic enforcement systems installed in the State. The survey 
shall include:
    (i) List of automated traffic enforcement systems in the State;
    (ii) Adequate data to measure the transparency, accountability, and 
safety attributes of each automated traffic enforcement system; and
    (iii) Comparison of each automated traffic enforcement system with--
    (A) ``Speed Enforcement Camera Systems Operational Guidelines'' (DOT 
HS 810 916); and
    (B) ``Red Light Camera Systems Operational Guidelines'' (FHWA-SA-05-
002).



Sec.  1300.14  Review and approval procedures.

    (a) General. Upon receipt and initial review of the Highway Safety 
Plan, NHTSA may request additional information from a State to ensure 
compliance with the requirements of this part. Failure to respond 
promptly to a request for additional information concerning the Section 
402 grant application may result in delayed approval and funding of a 
State's Section 402 grant. Failure to respond promptly to a

[[Page 700]]

request for additional information concerning a Section 405 or Section 
1906 grant application may result in a State's disqualification from 
consideration for a Section 405 or Section 1906 grant.
    (b) Approval or disapproval of Highway Safety Plan. Within 45 days 
after receipt of the HSP under this subpart--
    (1) For Section 402 grants, the Regional Administrator shall issue--
    (i) A letter of approval, with conditions, if any, to the Governor's 
Representative for Highway Safety; or
    (ii) A letter of disapproval to the Governor's Representative for 
Highway Safety informing the State of the reasons for disapproval and 
requiring resubmission of the HSP with proposed revisions necessary for 
approval.
    (2) For Section 405 and Section 1906 grants, the NHTSA Administrator 
shall notify States in writing of grant awards and specify any 
conditions or limitations imposed by law on the use of funds.
    (c) Resubmission of disapproved Highway Safety Plan. The Regional 
Administrator shall issue a letter of approval or disapproval within 30 
days after receipt of a revised HSP resubmitted as provided in paragraph 
(b)(1)(ii) of this section.



Sec.  1300.15  Apportionment and obligation of Federal funds.

    (a) Except as provided in paragraph (b) of this section, on October 
1 of each fiscal year, or soon thereafter, the NHTSA Administrator 
shall, in writing, distribute funds available for obligation under 23 
U.S.C. Chapter 4 and Section 1906 to the States and specify any 
conditions or limitations imposed by law on the use of the funds.
    (b) In the event that authorizations exist but no applicable 
appropriation act has been enacted by October 1 of a fiscal year, the 
NHTSA Administrator may, in writing, distribute a part of the funds 
authorized under 23 U.S.C. Chapter 4 and Section 1906 contract authority 
to the States to ensure program continuity, and in that event shall 
specify any conditions or limitations imposed by law on the use of the 
funds. Upon appropriation of grant funds, the NHTSA Administrator shall, 
in writing, promptly adjust the obligation limitation and specify any 
conditions or limitations imposed by law on the use of the funds.
    (c) Funds distributed under paragraph (a) or (b) of this section 
shall be available for expenditure by the States to satisfy the Federal 
share of expenses under the approved Highway Safety Plan, and shall 
constitute a contractual obligation of the Federal Government, subject 
to any conditions or limitations identified in the distributing 
document. Such funds shall be available for expenditure by the States as 
provided in Sec.  1300.41(b), after which the funds shall lapse.
    (d) Notwithstanding the provisions of paragraph (c) of this section, 
payment of State expenses of 23 U.S.C. Chapter 4 or Section 1906 funds 
shall be contingent upon the State's submission of up-to-date 
information about approved projects in the HSP, in accordance with 
Sec. Sec.  1300.11(d) and 1300.32.



  Subpart C_National Priority Safety Program and Racial Profiling Data 
                            Collection Grants



Sec.  1300.20  General.

    (a) Scope. This subpart establishes criteria, in accordance with 
Section 405 for awarding grants to States that adopt and implement 
programs and statutes to address national priorities for reducing 
highway deaths and injuries and, in accordance with Section 1906, for 
awarding grants to States that maintain and allow public inspection of 
race and ethnic information on motor vehicle stops.
    (b) Definitions. As used in this subpart--
    Blood alcohol concentration or BAC means grams of alcohol per 
deciliter or 100 milliliters blood, or grams of alcohol per 210 liters 
of breath.
    Majority means greater than 50 percent.
    Passenger motor vehicle means a passenger car, pickup truck, van, 
minivan or sport utility vehicle with a gross vehicle weight rating of 
less than 10,000 pounds.
    Personal wireless communications device means a device through which 
personal wireless services (commercial mobile services, unlicensed 
wireless services, and common carrier wireless

[[Page 701]]

exchange access services) are transmitted, but does not include a global 
navigation satellite system receiver used for positioning, emergency 
notification, or navigation purposes.
    Primary offense means an offense for which a law enforcement officer 
may stop a vehicle and issue a citation in the absence of evidence of 
another offense.
    (c) Eligibility and application--(1) Eligibility. Except as provided 
in Sec.  1300.25(c), the 50 States, the District of Columbia, Puerto 
Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, 
Guam and the U.S. Virgin Islands are each eligible to apply for grants 
identified under this subpart.
    (2) Application. For all grants under Section 405 and Section 1906--
    (i) The Governor's Representative for Highway Safety, on behalf of 
the State, shall sign and submit with the Highway Safety Plan, the 
information required under Appendix B--Application Requirements for 
Section 405 and Section 1906 Grants.
    (ii) If the State is relying on specific elements of the HSP as part 
of its application materials for grants under this subpart, the State 
shall identify the specific location in the HSP.
    (d) Qualification based on State statutes. Whenever a qualifying 
State statute is the basis for a grant awarded under this subpart, such 
statute shall have been enacted by the application due date and be in 
effect and enforced, without interruption, by the beginning of and 
throughout the fiscal year of the grant award.
    (e) Award determinations and transfer of funds. (1) Except as 
provided in Sec.  1300.26(h), the amount of a grant awarded to a State 
in a fiscal year under Section 405 or Section 1906 shall be in 
proportion to the amount each such State received under Section 402 for 
fiscal year 2009.
    (2) Notwithstanding paragraph (e)(1) of this section, and except as 
provided in Sec. Sec.  1300.25(k) and 1300.28(c)(2), a grant awarded to 
a State in a fiscal year under Section 405 may not exceed 10 percent of 
the total amount made available for that subsection for that fiscal 
year.
    (3) If it is determined after review of applications that funds for 
a grant program under Section 405 will not all be distributed, such 
funds shall be transferred to Section 402 and shall be distributed in 
proportion to the amount each State received under Section 402 for 
fiscal year 2009 to ensure, to the maximum extent practicable, that all 
funding is distributed.
    (f) Matching. (1) Except as provided in paragraph (f)(2) of this 
section, the Federal share of the costs of activities or programs funded 
with grants awarded under this subpart may not exceed 80 percent.
    (2) The Federal share of the costs of activities or programs funded 
with grants awarded to the U.S. Virgin Islands, Guam, American Samoa and 
the Commonwealth of the Northern Mariana Islands shall be 100 percent.



Sec.  1300.21  Occupant protection grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(b), for awarding grants to States that adopt and implement 
effective occupant protection programs to reduce highway deaths and 
injuries resulting from individuals riding unrestrained or improperly 
restrained in motor vehicles.
    (b) Definitions. As used in this section--
    Child restraint means any device (including a child safety seat, 
booster seat used in conjunction with 3-point belts, or harness, but 
excluding seat belts) that is designed for use in a motor vehicle to 
restrain, seat, or position a child who weighs 65 pounds (30 kilograms) 
or less and that meets the Federal motor vehicle safety standard 
prescribed by NHTSA for child restraints.
    High seat belt use rate State means a State that has an observed 
seat belt use rate of 90.0 percent or higher (not rounded) based on 
validated data from the State survey of seat belt use conducted during 
the previous calendar year, in accordance with the Uniform Criteria for 
State Observational Surveys of Seat Belt Use, 23 CFR part 1340 (e.g., 
for a grant application submitted on July 1, 2016, the ``previous 
calendar year'' would be 2015).
    Lower seat belt use rate State means a State that has an observed 
seat belt use rate below 90.0 percent (not rounded) based on validated 
data from the

[[Page 702]]

State survey of seat belt use conducted during the previous calendar 
year, in accordance with the Uniform Criteria for State Observational 
Surveys of Seat Belt Use, 23 CFR part 1340 (e.g., for a grant 
application submitted on July 1, 2016, the ``previous calendar year'' 
would be 2015).
    Seat belt means, with respect to open-body motor vehicles, including 
convertibles, an occupant restraint system consisting of a lap belt or a 
lap belt and a detachable shoulder belt, and with respect to other motor 
vehicles, an occupant restraint system consisting of integrated lap and 
shoulder belts.
    (c) Eligibility determination. A State is eligible to apply for a 
grant under this section as a high seat belt use rate State or as a 
lower seat belt use rate State, in accordance with paragraph (d) or (e) 
of this section, as applicable.
    (d) Qualification criteria for a high seat belt use rate State. To 
qualify for an Occupant Protection Grant in a fiscal year, a high seat 
belt use rate State (as determined by NHTSA) shall submit as part of its 
HSP the following documentation, in accordance with Part 1 of Appendix 
B:
    (1) Occupant protection plan. State occupant protection program area 
plan that identifies the safety problems to be addressed, performance 
measures and targets, and the countermeasure strategies and planned 
activities the State will implement to address those problems, at the 
level of detail required under Sec.  1300.11(c) and (d).
    (2) Participation in Click-it-or-Ticket national mobilization. 
Description of the State's planned participation in the Click it or 
Ticket national mobilization, including a list of participating agencies 
during the fiscal year of the grant, as required under Sec.  
1300.11(d)(6);
    (3) Child restraint inspection stations. (i) Countermeasure 
strategies and planned activities, at the level of detail required under 
Sec.  1300.11(d), demonstrating an active network of child passenger 
safety inspection stations and/or inspection events based on the State's 
problem identification. The description must include estimates for the 
following requirements in the upcoming fiscal year:
    (A) The total number of planned inspection stations and/or events in 
the State; and
    (B) Within the total in paragraph (d)(3)(i)(A) of this section, the 
number of planned inspection stations and/or inspection events serving 
each of the following population categories: urban, rural, and at-risk.
    (ii) Certification, signed by the Governor's Representative for 
Highway Safety, that the inspection stations/events are staffed with at 
least one current nationally Certified Child Passenger Safety 
Technician.
    (4) Child passenger safety technicians. Countermeasure strategies 
and planned activities, at the level of detail required under Sec.  
1300.11(d), for recruiting, training and maintaining a sufficient number 
of child passenger safety technicians based on the State's problem 
identification. The description must include, at a minimum, an estimate 
of the total number of classes and the estimated total number of 
technicians to be trained in the upcoming fiscal year to ensure coverage 
of child passenger safety inspection stations and inspection events by 
nationally Certified Child Passenger Safety Technicians.
    (5) Maintenance of effort. The assurance in Part 1 of Appendix B 
that the lead State agency responsible for occupant protection programs 
shall maintain its aggregate expenditures for occupant protection 
programs at or above the average level of such expenditures in fiscal 
years 2014 and 2015.
    (e) Qualification criteria for a lower seat belt use rate State. To 
qualify for an Occupant Protection Grant in a fiscal year, a lower seat 
belt use rate State (as determined by NHTSA) shall satisfy all the 
requirements of paragraph (d) of this section, and submit as part of its 
HSP documentation demonstrating that it meets at least three of the 
following additional criteria, in accordance with Part 1 of Appendix B:
    (1) Primary enforcement seat belt use statute. The State shall 
provide legal citations to the State law demonstrating that the State 
has enacted and is enforcing occupant protection statutes that make a 
violation of the requirement to be secured in a seat belt or child 
restraint a primary offense.

[[Page 703]]

    (2) Occupant protection statute. The State shall provide legal 
citations to State law demonstrating that the State has enacted and is 
enforcing occupant protection statutes that:
    (i) Require--
    (A) Each occupant riding in a passenger motor vehicle who is under 
eight years of age, weighs less than 65 pounds and is less than four 
feet, nine inches in height to be secured in an age-appropriate child 
restraint;
    (B) Each occupant riding in a passenger motor vehicle other than an 
occupant identified in paragraph (e)(2)(i)(A) of this section to be 
secured in a seat belt or age-appropriate child restraint;
    (C) A minimum fine of $25 per unrestrained occupant for a violation 
of the occupant protection statutes described in paragraph (e)(2)(i) of 
this section.
    (ii) Notwithstanding paragraph (e)(2)(i) of this section, permit no 
exception from coverage except for--
    (A) Drivers, but not passengers, of postal, utility, and commercial 
vehicles that make frequent stops in the course of their business;
    (B) Persons who are unable to wear a seat belt or child restraint 
because of a medical condition, provided there is written documentation 
from a physician;
    (C) Persons who are unable to wear a seat belt or child restraint 
because all other seating positions are occupied by persons properly 
restrained in seat belts or child restraints;
    (D) Emergency vehicle operators and passengers in emergency vehicles 
during an emergency;
    (E) Persons riding in seating positions or vehicles not required by 
Federal Motor Vehicle Safety Standards to be equipped with seat belts; 
or
    (F) Passengers in public and livery conveyances.
    (3) Seat belt enforcement. The State shall identify the 
countermeasure strategies and planned activities, at the level of detail 
required under Sec.  1300.11(d)(5), demonstrating that the State 
conducts sustained enforcement (i.e., a program of recurring efforts 
throughout the fiscal year of the grant to promote seat belt and child 
restraint enforcement), and that based on the State's problem 
identification, involves law enforcement agencies responsible for seat 
belt enforcement in geographic areas in which at least 70 percent of 
either the State's unrestrained passenger vehicle occupant fatalities 
occurred or combined fatalities and serious injuries occurred.
    (4) High risk population countermeasure programs. The State shall 
identify the countermeasure strategies and planned activities, at the 
level of detail required under Sec.  1300.11(d), demonstrating that the 
State will implement data-driven programs to improve seat belt and child 
restraint use for at least two of the following at-risk populations:
    (i) Drivers on rural roadways;
    (ii) Unrestrained nighttime drivers;
    (iii) Teenage drivers;
    (iv) Other high-risk populations identified in the occupant 
protection program area plan required under paragraph (d)(1) of this 
section.
    (5) Comprehensive occupant protection program. The State shall 
submit the following:
    (i) Date of NHTSA-facilitated program assessment that was conducted 
within five years prior to the application due date that evaluates the 
occupant protection program for elements designed to increase seat belt 
use in the State;
    (ii) Multi-year strategic plan based on input from Statewide 
stakeholders (task force) under which the State developed--
    (A) Data-driven performance targets to improve occupant protection 
in the State, at the level of detail required under Sec.  1300.11(c);
    (B) Countermeasure strategies (such as enforcement, education, 
communication, policies/legislation, partnerships/outreach) designed to 
achieve the performance targets of the strategic plan, at the level of 
detail required under Sec.  1300.11(d);
    (C) A program management strategy that provides leadership and 
identifies the State official responsible for implementing various 
aspects of the multi-year strategic plan; and
    (D) An enforcement strategy that includes activities such as 
encouraging seat belt use policies for law enforcement agencies, 
vigorous enforcement

[[Page 704]]

of seat belt and child safety seat statutes, and accurate reporting of 
occupant protection system information on police accident report forms, 
at the level of detail required under Sec.  1300.11(d)(5).
    (iii) The name and title of the State's designated occupant 
protection coordinator responsible for managing the occupant protection 
program in the State, including developing the occupant protection 
program area of the HSP and overseeing the execution of the projects 
designated in the HSP; and
    (iv) A list that contains the names, titles and organizations of the 
Statewide occupant protection task force membership that includes 
agencies and organizations that can help develop, implement, enforce and 
evaluate occupant protection programs.
    (6) Occupant protection program assessment. The State shall identify 
the date of the NHTSA-facilitated assessment of all elements of its 
occupant protection program, which must have been conducted within three 
years prior to the application due date.
    (f) Use of grant funds--(1) Eligible uses. Except as provided in 
paragraph (f)(2) of this section, a State may use grant funds awarded 
under 23 U.S.C. 405(b) for the following programs or purposes only:
    (i) To support high-visibility enforcement mobilizations, including 
paid media that emphasizes publicity for the program, and law 
enforcement;
    (ii) To train occupant protection safety professionals, police 
officers, fire and emergency medical personnel, educators, and parents 
concerning all aspects of the use of child restraints and occupant 
protection;
    (iii) To educate the public concerning the proper use and 
installation of child restraints, including related equipment and 
information systems;
    (iv) To provide community child passenger safety services, including 
programs about proper seating positions for children and how to reduce 
the improper use of child restraints;
    (v) To establish and maintain information systems containing data 
about occupant protection, including the collection and administration 
of child passenger safety and occupant protection surveys; or
    (vi) To purchase and distribute child restraints to low-income 
families, provided that not more than five percent of the funds received 
in a fiscal year are used for such purpose.
    (2) Special rule--high seat belt use rate States. Notwithstanding 
paragraph (f)(1) of this section, a State that qualifies for grant funds 
as a high seat belt use rate State may elect to use up to 100 percent of 
grant funds awarded under this section for any eligible project or 
activity under Section 402.



Sec.  1300.22  State Traffic safety information system improvements grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(c), for grants to States to develop and implement 
effective programs that improve the timeliness, accuracy, completeness, 
uniformity, integration, and accessibility of State safety data needed 
to identify priorities for Federal, State, and local highway and traffic 
safety programs; evaluate the effectiveness of such efforts; link State 
data systems, including traffic records and systems that contain 
medical, roadway, and economic data; improve the compatibility and 
interoperability of State data systems with national data systems and 
the data systems of other States; and enhance the agency's ability to 
observe and analyze national trends in crash occurrences, rates, 
outcomes, and circumstances.
    (b) Qualification criteria. To qualify for a grant under this 
section in a fiscal year, a State shall submit as part of its HSP the 
following documentation, in accordance with part 2 of appendix B:
    (1) Traffic records coordinating committee (TRCC). The State shall 
submit--
    (i) At least three meeting dates of the TRCC during the 12 months 
immediately preceding the application due date;
    (ii) Name and title of the State's Traffic Records Coordinator;
    (iii) List of TRCC members by name, title, home organization and the 
core safety database represented, provided that at a minimum, at least 
one member represents each of the following core safety databases:
    (A) Crash;
    (B) Citation or adjudication;

[[Page 705]]

    (C) Driver;
    (D) Emergency medical services or injury surveillance system;
    (E) Roadway; and
    (F) Vehicle.
    (2) State traffic records strategic plan. The State shall submit a 
Strategic Plan, approved by the TRCC, that--
    (i) Describes specific, quantifiable and measurable improvements, as 
described in paragraph (b)(3) of this section, that are anticipated in 
the State's core safety databases, including crash, citation or 
adjudication, driver, emergency medical services or injury surveillance 
system, roadway, and vehicle databases;
    (ii) Includes a list of all recommendations from its most recent 
highway safety data and traffic records system assessment;
    (iii) Identifies which recommendations identified under paragraph 
(b)(2)(ii) of this section the State intends to address in the fiscal 
year, the countermeasure strategies and planned activities, at the level 
of detail required under Sec.  1300.11(d), that implement each 
recommendation, and the performance measures to be used to demonstrate 
quantifiable and measurable progress; and
    (iv) Identifies which recommendations identified under paragraph 
(b)(2)(ii) of this section the State does not intend to address in the 
fiscal year and explains the reason for not implementing the 
recommendations.
    (3) Quantitative improvement. The State shall demonstrate 
quantitative improvement in the data attribute of accuracy, 
completeness, timeliness, uniformity, accessibility or integration of a 
core database by providing--
    (i) A written description of the performance measures that clearly 
identifies which performance attribute for which core database the State 
is relying on to demonstrate progress using the methodology set forth in 
the ``Model Performance Measures for State Traffic Records Systems'' 
(DOT HS 811 441), as updated; and
    (ii) Supporting documentation covering a contiguous 12-month 
performance period starting no earlier than April 1 of the calendar year 
prior to the application due date, that demonstrates quantitative 
improvement when compared to the comparable 12-month baseline period.
    (4) State highway safety data and traffic records system assessment. 
The State shall identify the date of the assessment of the State's 
highway safety data and traffic records system that was conducted or 
updated within the five years prior to the application due date and that 
complies with the procedures and methodologies outlined in NHTSA's 
``Traffic Records Highway Safety Program Advisory'' (DOT HS 811 644), as 
updated.
    (c) Requirement for maintenance of effort. The State shall submit 
the assurance in part 2 of appendix B that the lead State agency 
responsible for State traffic safety information system improvements 
programs shall maintain its aggregate expenditures for State traffic 
safety information system improvements programs at or above the average 
level of such expenditures in fiscal years 2014 and 2015.
    (d) Use of grant funds. A State may use grant funds awarded under 23 
U.S.C. 405(c) to make quantifiable, measurable progress improvements in 
the accuracy, completeness, timeliness, uniformity, accessibility or 
integration of data in a core highway safety database.



Sec.  1300.23  Impaired driving countermeasures grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(d), for awarding grants to States that adopt and implement 
effective programs to reduce traffic safety problems resulting from 
individuals driving motor vehicles while under the influence of alcohol, 
drugs, or the combination of alcohol and drugs; that enact alcohol-
ignition interlock laws; or that implement 24-7 sobriety programs.
    (b) Definitions. As used in this section--
    24-7 sobriety program means a State law or program that authorizes a 
State court or an agency with jurisdiction, as a condition of bond, 
sentence, probation, parole, or work permit, to require an individual 
who was arrested for, pleads guilty to or was convicted of driving under 
the influence of alcohol or drugs to--

[[Page 706]]

    (i) Abstain totally from alcohol or drugs for a period of time; and
    (ii) Be subject to testing for alcohol or drugs at least twice per 
day at a testing location, by continuous transdermal alcohol monitoring 
via an electronic monitoring device, by drug patch, by urinalysis, by 
ignition interlock monitoring (provided the interlock is able to require 
tests twice a day without vehicle operation), by other types of 
electronic monitoring, or by an alternative method approved by NHTSA.
    Alcohol means wine, beer, and distilled spirits.
    Average impaired driving fatality rate means the number of 
fatalities in motor vehicle crashes involving a driver with a blood 
alcohol concentration of at least 0.08 percent for every 100,000,000 
vehicle miles traveled, based on the most recently reported three 
calendar years of final data from the FARS.
    Assessment means a NHTSA-facilitated process that employs a team of 
subject matter experts to conduct a comprehensive review of a specific 
highway safety program in a State.
    Driving under the influence of alcohol, drugs, or a combination of 
alcohol and drugs means operating a vehicle while the alcohol and/or 
drug concentration in the blood or breath, as determined by chemical or 
other tests, equals or exceeds the level established by the State, or is 
equivalent to the standard offense, for driving under the influence of 
alcohol or drugs in the State.
    Driving While Intoxicated (DWI) Court means a court that specializes 
in cases involving driving while intoxicated and abides by the Ten 
Guiding Principles of DWI Courts in effect on the date of the grant, as 
established by the National Center for DWI Courts.
    Drugs means controlled substances, as that term is defined under 
section 102(6) of the Controlled Substances Act, 21 U.S.C. 802(6).
    High-range State means a State that has an average impaired driving 
fatality rate of 0.60 or higher.
    High-visibility enforcement efforts means participation in national 
impaired driving law enforcement campaigns organized by NHTSA, 
participation in impaired driving law enforcement campaigns organized by 
the State, or the use of sobriety checkpoints and/or saturation patrols 
conducted in a highly visible manner and supported by publicity through 
paid or earned media.
    Low-range State means a State that has an average impaired driving 
fatality rate of 0.30 or lower.
    Mid-range State means a State that has an average impaired driving 
fatality rate that is higher than 0.30 and lower than 0.60.
    Restriction on driving privileges means any type of State-imposed 
limitation, such as a license revocation or suspension, location 
restriction, alcohol-ignition interlock device, or alcohol use 
prohibition.
    Saturation patrol means a law enforcement activity during which 
enhanced levels of law enforcement are conducted in a concentrated 
geographic area (or areas) for the purpose of detecting drivers 
operating motor vehicles while impaired by alcohol and/or other drugs.
    Sobriety checkpoint means a law enforcement activity during which 
law enforcement officials stop motor vehicles on a non-discriminatory, 
lawful basis for the purpose of determining whether the operators of 
such motor vehicles are driving while impaired by alcohol and/or other 
drugs.
    Standard offense for driving under the influence of alcohol or drugs 
means the offense described in a State's statute that makes it a 
criminal offense to operate a motor vehicle while under the influence of 
alcohol or drugs, but does not require a measurement of alcohol or drug 
content.
    (c) Eligibility determination. A State is eligible to apply for a 
grant under this section as a low-range State, a mid-range State or a 
high-range State, in accordance with paragraph (d), (e), or (f) of this 
section, as applicable. Independent of qualification on the basis of 
range, a State may also qualify for separate grants under this section 
as a State with an alcohol-ignition interlock law, as provided in 
paragraph (g) of this section, or as a State with a 24-7 sobriety 
program, as provided in paragraph (h) of this section.
    (d) Qualification criteria for a low-range State. To qualify for an 
Impaired

[[Page 707]]

Driving Countermeasures Grant in a fiscal year, a low-range State (as 
determined by NHTSA) shall submit as part of its HSP the assurances in 
part 3 of Appendix B that--
    (1) The State shall use the funds awarded under 23 U.S.C. 405(d)(1) 
only for the implementation and enforcement of programs authorized in 
paragraph (j) of this section; and
    (2) The lead State agency responsible for impaired driving programs 
shall maintain its aggregate expenditures for impaired driving programs 
at or above the average level of such expenditures in fiscal years 2014 
and 2015.
    (e) Qualification criteria for a mid-range State. (1) To qualify for 
an Impaired Driving Countermeasures Grant in a fiscal year, a mid-range 
State (as determined by NHTSA) shall submit as part of its HSP the 
assurances required in paragraph (d) of this section and a copy of a 
Statewide impaired driving plan that contains the following information, 
in accordance with part 3 of appendix B:
    (i) Section that describes the authority and basis for the operation 
of the Statewide impaired driving task force, including the process used 
to develop and approve the plan and date of approval;
    (ii) List that contains names, titles and organizations of all task 
force members, provided that the task force includes key stakeholders 
from the State highway safety agency, law enforcement and the criminal 
justice system (e.g., prosecution, adjudication, probation) and, as 
determined appropriate by the State, representatives from areas such as 
24-7 sobriety programs, driver licensing, treatment and rehabilitation, 
ignition interlock programs, data and traffic records, public health and 
communication;
    (iii) Strategic plan based on the most recent version of Highway 
Safety Program Guideline No. 8--Impaired Driving, which, at a minimum, 
covers the following--
    (A) Prevention;
    (B) Criminal justice system;
    (C) Communication programs;
    (D) Alcohol and other drug misuse, including screening, treatment, 
assessment and rehabilitation; and
    (E) Program evaluation and data.
    (2) Previously submitted plan. A mid-range State that has received a 
grant for a previously submitted Statewide impaired driving plan under 
paragraph (e)(1) or (f)(1) of this section that was developed and 
approved within three years prior to the application due date may, in 
lieu of submitting the plan required under paragraph (e)(1) of this 
section, submit the assurances required in paragraph (d) of this section 
and a separate assurance that the State continues to use the previously 
submitted plan.
    (f) Qualification criteria for a high-range State. (1) To qualify 
for an Impaired Driving Countermeasures Grant in a fiscal year, a high-
range State (as determined by NHTSA) shall submit as part of its HSP the 
assurances required in paragraph (d) of this section, the date of a 
NHTSA-facilitated assessment of the State's impaired driving program 
conducted within three years prior to the application due date, a copy 
of a Statewide impaired driving plan that contains the information 
required in paragraphs (e)(1)(i) through (iii) of this section and that 
includes the following additional information, in accordance with part 3 
of appendix B:
    (i) Review that addresses in each plan area any related 
recommendations from the assessment of the State's impaired driving 
program;
    (ii) Planned activities, in detail, for spending grant funds on 
impaired driving activities listed in paragraph (j)(4) of this section 
that must include high-visibility enforcement efforts, at the level of 
detail required under Sec.  1300.11(d); and
    (iii) Description of how the spending supports the State's impaired 
driving program and achievement of its performance targets, at the level 
of detail required under Sec.  1300.11(d).
    (2) Previously submitted plans. If a high-range State has received a 
grant for a previously submitted Statewide impaired driving plan under 
paragraph (f)(1) of this section, in order to receive a grant, the State 
may submit the assurances required in paragraph (d) of this section, and 
provide updates to its Statewide impaired driving plan that meet the 
requirements of paragraphs (e)(1)(i) through (iii) of this section and

[[Page 708]]

updates to its assessment review and spending plan that meet the 
requirements of paragraphs (f)(1)(i) through (iii) of this section.
    (g) Grants to States with Alcohol-Ignition Interlock Laws. (1) To 
qualify for an alcohol-ignition interlock law grant, a State shall 
submit as part of its HSP legal citation(s), in accordance with part 4 
of appendix B, to State statute demonstrating that the State has enacted 
and is enforcing a statute that requires all individuals convicted of 
driving under the influence of alcohol or of driving while intoxicated 
to drive only motor vehicles with alcohol-ignition interlocks for an 
authorized period of not less than 6 months.
    (2) Permitted exceptions. A State statute providing for the 
following exceptions, and no others, shall not be deemed out of 
compliance with the requirements of paragraph (g)(1) of this section:
    (i) The individual is required to operate an employer's motor 
vehicle in the course and scope of employment and the business entity 
that owns the vehicle is not owned or controlled by the individual;
    (ii) The individual is certified in writing by a physician as being 
unable to provide a deep lung breath sample for analysis by an ignition 
interlock device; or
    (iii) A State-certified ignition interlock provider is not available 
within 100 miles of the individual's residence.
    (h) Grants to States with a 24-7 Sobriety Program. To qualify for a 
24-7 Sobriety program grant, a State shall submit the following as part 
of its HSP, in accordance with part 5 of appendix B:
    (1) Legal citation(s) to State statute demonstrating that the State 
has enacted and is enforcing a statute that requires all individuals 
convicted of driving under the influence of alcohol or of driving while 
intoxicated to receive a restriction on driving privileges, unless an 
exception in paragraph (g)(2) of this section applies, for a period of 
not less than 30 days; and
    (2) Legal citation(s) to State statute or submission of State 
program information that authorizes a Statewide 24-7 sobriety program.
    (i) Award. (1) The amount available for grants under paragraphs (d) 
through (f) of this section shall be determined based on the total 
amount of eligible States for these grants and after deduction of the 
amounts necessary to fund grants under 23 U.S.C. 405(d)(6).
    (2) The amount available for grants under 23 U.S.C. 405(d)(6)(A) 
shall not exceed 12 percent of the total amount made available to States 
under 23 U.S.C. 405(d) for the fiscal year.
    (3) The amount available for grants under 23 U.S.C. 405(d)(6)(B) 
shall not exceed 3 percent of the total amount made available to States 
under 23 U.S.C. 405(d) for the fiscal year.
    (j) Use of grant funds--(1) Eligible uses. Except as provided in 
paragraphs (j)(2) through (5) of this section, a State may use grant 
funds awarded under 23 U.S.C. 405(d) only for the following programs:
    (i) High-visibility enforcement efforts;
    (ii) Hiring a full-time or part-time impaired driving coordinator of 
the State's activities to address the enforcement and adjudication of 
laws regarding driving while impaired by alcohol, drugs or the 
combination of alcohol and drugs;
    (iii) Court support of high-visibility enforcement efforts, training 
and education of criminal justice professionals (including law 
enforcement, prosecutors, judges, and probation officers) to assist such 
professionals in handling impaired driving cases, hiring traffic safety 
resource prosecutors, hiring judicial outreach liaisons, and 
establishing driving while intoxicated courts;
    (iv) Alcohol ignition interlock programs;
    (v) Improving blood-alcohol concentration testing and reporting;
    (vi) Paid and earned media in support of high-visibility enforcement 
of impaired driving laws, and conducting standardized field sobriety 
training, advanced roadside impaired driving evaluation training, and 
drug recognition expert training for law enforcement, and equipment and 
related expenditures used in connection with impaired driving 
enforcement;
    (vii) Training on the use of alcohol and drug screening and brief 
intervention;

[[Page 709]]

    (viii) Training for and implementation of impaired driving 
assessment programs or other tools designed to increase the probability 
of identifying the recidivism risk of a person convicted of driving 
under the influence of alcohol, drugs, or a combination of alcohol and 
drugs and to determine the most effective mental health or substance 
abuse treatment or sanction that will reduce such risk;
    (ix) Developing impaired driving information systems; or
    (x) Costs associated with a 24-7 sobriety program.
    (2) Special rule--low-range States. Notwithstanding paragraph (j)(1) 
of this section, a State that qualifies for grant funds as a low-range 
State may elect to use--
    (i) Grant funds awarded under 23 U.S.C. 405(d) for programs designed 
to reduce impaired driving based on problem identification, in 
accordance with Sec.  1300.11; and
    (ii) Up to 50 percent of grant funds awarded under 23 U.S.C. 405(d) 
for any eligible project or activity under Section 402.
    (3) Special rule--mid-range States. Notwithstanding paragraph (j)(1) 
of this section, a State that qualifies for grant funds as a mid-range 
State may elect to use grant funds awarded under 23 U.S.C. 405(d) for 
programs designed to reduce impaired driving based on problem 
identification in accordance with Sec.  1300.11, provided the State 
receives advance approval from NHTSA.
    (4) Special rule--high-range States. Notwithstanding paragraph 
(j)(1) of this section, a high-range State may use grant funds awarded 
under 23 U.S.C. 405(d) only for--
    (i) High-visibility enforcement efforts; and
    (ii) Any of the eligible uses described in paragraph (j)(1) of this 
section or programs designed to reduce impaired driving based on problem 
identification, in accordance with Sec.  1300.11, if all proposed uses 
are described in a Statewide impaired driving plan submitted to and 
approved by NHTSA in accordance with paragraph (f) of this section.
    (5) Special rule--States with Alcohol-Ignition Interlock Laws or 24-
7 Sobriety Programs. Notwithstanding paragraph (j)(1) of this section, a 
State may elect to use grant funds awarded under 23 U.S.C. 405(d)(6) for 
any eligible project or activity under Section 402.



Sec.  1300.24  Distracted driving grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(e), for awarding grants to States that enact and enforce a 
statute prohibiting distracted driving.
    (b) Definitions. As used in this section--
    Driving means operating a motor vehicle on a public road, and does 
not include operating a motor vehicle when the vehicle has pulled over 
to the side of, or off, an active roadway and has stopped in a location 
where it can safely remain stationary.
    Texting means reading from or manually entering data into a personal 
wireless communications device, including doing so for the purpose of 
SMS texting, e-mailing, instant messaging, or engaging in any other form 
of electronic data retrieval or electronic data communication.
    (c) Qualification criteria for a Comprehensive Distracted Driving 
Grant. To qualify for a Comprehensive Distracted Driving Grant in a 
fiscal year, a State shall submit as part of its HSP, in accordance with 
Part 6 of Appendix B--
    (1) Sample distracted driving questions from the State's driver's 
license examination; and
    (2) Legal citations to the State statute demonstrating compliance 
with the following requirements:
    (i) Prohibition on texting while driving. The State statute shall--
    (A) Prohibit all drivers from texting through a personal wireless 
communications device while driving;
    (B) Make a violation of the statute a primary offense;
    (C) Establish a minimum fine of $25 for a violation of the statute; 
and
    (D) Not include an exemption that specifically allows a driver to 
text through a personal wireless communication device while stopped in 
traffic.
    (ii) Prohibition on youth cell phone use while driving. The State 
statute shall--
    (A) Prohibit a driver who is younger than 18 years of age or in the 
learner's permit or intermediate license stage set forth in Sec.  
1300.26(d) and (e) from

[[Page 710]]

using a personal wireless communications device while driving;
    (B) Make a violation of the statute a primary offense;
    (C) Establish a minimum fine of $25 for a violation of the statute; 
and
    (D) Not include an exemption that specifically allows a driver to 
text through a personal wireless communication device while stopped in 
traffic.
    (iii) Permitted exceptions. A State statute providing for the 
following exceptions, and no others, shall not be deemed out of 
compliance with the requirements of this section:
    (A) A driver who uses a personal wireless communications device to 
contact emergency services;
    (B) Emergency services personnel who use a personal wireless 
communications device while operating an emergency services vehicle and 
engaged in the performance of their duties as emergency services 
personnel; or
    (C) An individual employed as a commercial motor vehicle driver or a 
school bus driver who uses a personal wireless communications device 
within the scope of such individual's employment if such use is 
permitted under the regulations promulgated pursuant to 49 U.S.C. 31136.
    (d) Use of funds for Comprehensive Distracted Driving Grants--(1) 
Eligible uses. Except as provided in paragraphs (d)(2) and (3) of this 
section, a State may use grant funds awarded under 23 U.S.C. 405(e)(1) 
only to educate the public through advertising that contains information 
about the dangers of texting or using a cell phone while driving, for 
traffic signs that notify drivers about the distracted driving law of 
the State, or for law enforcement costs related to the enforcement of 
the distracted driving law.
    (2) Special rule. Notwithstanding paragraph (d)(1) of this section, 
a State may elect to use up to 50 percent of the grant funds awarded 
under 23 U.S.C. 405(e)(1) for any eligible project or activity under 
Section 402.
    (3) Special rule--MMUCC conforming States. Notwithstanding 
paragraphs (d)(1) and (2) of this section, a State may use up to 75 
percent of amounts received under 23 U.S.C. 405(e)(1) for any eligible 
project or activity under Section 402 if the State has conformed its 
distracted driving data to the most recent Model Minimum Uniform Crash 
Criteria (MMUCC). To demonstrate conformance with MMUCC, the State shall 
submit within 30 days after notification of award, the NHTSA-developed 
MMUCC Mapping spreadsheet, as described in ``Mapping to MMUCC: A process 
for comparing police crash reports and state crash databases to the 
Model Minimum Uniform Crash Criteria'' (DOT HS 812 184), as updated.
    (e)-(f) [Reserved]



Sec.  1300.25  Motorcyclist safety grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(f), for awarding grants to States that adopt and implement 
effective programs to reduce the number of single-vehicle and multiple-
vehicle crashes involving motorcyclists.
    (b) Definitions. As used in this section--
    Data State means a State that does not have a statute or regulation 
requiring that all fees collected by the State from motorcyclists for 
the purposes of funding motorcycle training and safety programs are to 
be used for motorcycle training and safety programs but can show through 
data and/or documentation from official records that all fees collected 
by the State from motorcyclists for the purposes of funding motorcycle 
training and safety programs were, in fact, used for motorcycle training 
and safety programs, without diversion.
    Impaired means alcohol-impaired or drug-impaired as defined by State 
law, provided that the State's legal alcohol-impairment level does not 
exceed .08 BAC.
    Law State means a State that has a statute or regulation requiring 
that all fees collected by the State from motorcyclists for the purposes 
of funding motorcycle training and safety programs are to be used for 
motorcycle training and safety programs and no statute or regulation 
diverting any of those fees.
    Motorcycle means a motor vehicle with motive power having a seat or 
saddle for the use of the rider and designed to travel on not more than 
three wheels in contact with the ground.

[[Page 711]]

    State means any of the 50 States, the District of Columbia, and 
Puerto Rico.
    (c) Eligibility. The 50 States, the District of Columbia and Puerto 
Rico are eligible to apply for a Motorcyclist Safety Grant.
    (d) Qualification criteria. To qualify for a Motorcyclist Safety 
Grant in a fiscal year, a State shall submit as part of its HSP 
documentation demonstrating compliance with at least two of the criteria 
in paragraphs (e) through (j) of this section.
    (e) Motorcycle rider training course. A State shall have an 
effective motorcycle rider training course that is offered throughout 
the State and that provides a formal program of instruction in accident 
avoidance and other safety-oriented operational skills to motorcyclists. 
To demonstrate compliance with this criterion, the State shall submit, 
in accordance with part 7 of appendix B--
    (1) A certification identifying the head of the designated State 
authority over motorcyclist safety issues and stating that the head of 
the designated State authority over motorcyclist safety issues has 
approved and the State has adopted one of the following introductory 
rider curricula:
    (i) Motorcycle Safety Foundation Basic Rider Course;
    (ii) TEAM OREGON Basic Rider Training;
    (iii) Idaho STAR Basic I;
    (iv) California Motorcyclist Safety Program Motorcyclist Training 
Course;
    (v) A curriculum that has been approved by the designated State 
authority and NHTSA as meeting NHTSA's Model National Standards for 
Entry-Level Motorcycle Rider Training; and
    (2) A list of the counties or political subdivisions in the State 
where motorcycle rider training courses will be conducted during the 
fiscal year of the grant and the number of registered motorcycles in 
each such county or political subdivision according to official State 
motor vehicle records, provided the State must offer at least one 
motorcycle rider training course in counties or political subdivisions 
that collectively account for a majority of the State's registered 
motorcycles.
    (f) Motorcyclist awareness program. A State shall have an effective 
Statewide program to enhance motorist awareness of the presence of 
motorcyclists on or near roadways and safe driving practices that avoid 
injuries to motorcyclists. To demonstrate compliance with this 
criterion, the State shall submit, in accordance with part 7 of appendix 
B--
    (1) A certification identifying head of the designated State 
authority over motorcyclist safety issues and stating that the State's 
motorcyclist awareness program was developed by or in coordination with 
the designated State authority over motorcyclist safety issues; and
    (2) One or more performance measures and corresponding performance 
targets developed for motorcycle awareness at the level of detail 
required under Sec.  1300.11(c) that identifies, using State crash data, 
the counties or political subdivisions within the State with the highest 
number of motorcycle crashes involving a motorcycle and another motor 
vehicle. Such data shall be from the most recent calendar year for which 
final State crash data are available, but data no older than three 
calendar years prior to the application due date (e.g., for a grant 
application submitted on July 1, 2016, a State shall provide calendar 
year 2015 data, if available, and may not provide data older than 
calendar year 2013); and
    (3) Countermeasure strategies and planned activities, at the level 
of detail required under Sec.  1300.11(d), demonstrating that the State 
will implement data-driven programs in a majority of counties or 
political subdivisions where the incidence of crashes involving a 
motorcycle and another motor vehicle is highest. The State shall submit 
a list of counties or political subdivisions in the State ranked in 
order of the highest to lowest number of crashes involving a motorcycle 
and another motor vehicle per county or political subdivision. Such data 
shall be from the most recent calendar year for which final State crash 
data are available, but data no older than three calendar years prior to 
the application due date (e.g., for a grant application submitted on 
July 1, 2016, a State shall provide calendar year 2015 data, if 
available, and may not provide data older than calendar year 2013). The

[[Page 712]]

State shall select countermeasure strategies and planned activities to 
address the State's motorcycle safety problem areas in order to meet the 
performance targets identified in paragraph (f)(2) of this section.
    (g) Reduction of fatalities and crashes involving motorcycles. A 
State shall demonstrate a reduction for the preceding calendar year in 
the number of motorcyclist fatalities and in the rate of motor vehicle 
crashes involving motorcycles in the State (expressed as a function of 
10,000 registered motorcycle registrations), as computed by NHTSA. To 
demonstrate compliance a State shall, in accordance with part 7 of 
appendix B--
    (1) Submit in its HSP, State data and a description of the State's 
methods for collecting and analyzing the data, showing the total number 
of motor vehicle crashes involving motorcycles in the State for the most 
recent calendar year for which final State crash data are available, but 
data no older than three calendar years prior to the application due 
date and the same type of data for the calendar year immediately prior 
to that calendar year (e.g., for a grant application submitted on July 
1, 2016, the State shall submit calendar year 2015 data and 2014 data, 
if both data are available, and may not provide data older than calendar 
year 2013 and 2012, to determine the rate);
    (2) Experience a reduction of at least one in the number of 
motorcyclist fatalities for the most recent calendar year for which 
final FARS data are available as compared to the final FARS data for the 
calendar year immediately prior to that year; and
    (3) Based on State crash data expressed as a function of 10,000 
motorcycle registrations (using FHWA motorcycle registration data), 
experience at least a whole number reduction in the rate of crashes 
involving motorcycles for the most recent calendar year for which final 
State crash data are available, but data no older than three calendar 
years prior to the application due date, as compared to the calendar 
year immediately prior to that year.
    (h) Impaired driving program. A State shall implement a Statewide 
program to reduce impaired driving, including specific measures to 
reduce impaired motorcycle operation. The State shall submit, in 
accordance with part 7 of appendix B--
    (1) One or more performance measures and corresponding performance 
targets developed to reduce impaired motorcycle operation at the level 
of detail required under Sec.  1300.11(c). Each performance measure and 
performance target shall identify the impaired motorcycle operation 
problem area to be addressed. Problem identification must include an 
analysis of motorcycle crashes involving an impaired operator by county 
or political subdivision in the State; and
    (2) Countermeasure strategies and planned activities, at the level 
of detail required under Sec.  1300.11(d), demonstrating that the State 
will implement data-driven programs designed to reach motorcyclists in 
those jurisdictions where the incidence of motorcycle crashes involving 
an impaired operator is highest (i.e., the majority of counties or 
political subdivisions in the State with the highest numbers of 
motorcycle crashes involving an impaired operator) based upon State 
data. Such data shall be from the most recent calendar year for which 
final State crash data are available, but data no older than three 
calendar years prior to the application due date (e.g., for a grant 
application submitted on July 1, 2016, a State shall provide calendar 
year 2015 data, if available, and may not provide data older than 
calendar year 2013). Countermeasure strategies and planned activities 
shall prioritize the State's impaired motorcycle problem areas to meet 
the performance targets identified in paragraph (h)(1).
    (i) Reduction of fatalities and accidents involving impaired 
motorcyclists. A State shall demonstrate a reduction for the preceding 
calendar year in the number of fatalities and in the rate of reported 
crashes involving alcohol-impaired and drug-impaired motorcycle 
operators (expressed as a function of 10,000 motorcycle registrations), 
as computed by NHTSA. The State shall, in accordance with part 7 of 
appendix B--
    (1) Submit in its HSP, State data and a description of the State's 
methods for collecting and analyzing the data, showing the total number 
of reported

[[Page 713]]

crashes involving alcohol-and drug-impaired motorcycle operators in the 
State for the most recent calendar year for which final State crash data 
are available, but data no older than three calendar years prior to the 
application due date and the same type of data for the calendar year 
immediately prior to that year (e.g., for a grant application submitted 
on July 1, 2016, the State shall submit calendar year 2015 data and 2014 
data, if both data are available, and may not provide data older than 
calendar year 2013 and 2012, to determine the rate);
    (2) Experience a reduction of at least one in the number of 
fatalities involving alcohol-impaired and drug-impaired motorcycle 
operators for the most recent calendar year for which final FARS data 
are available as compared to the final FARS data for the calendar year 
immediately prior to that year; and
    (3) Based on State crash data expressed as a function of 10,000 
motorcycle registrations (using FHWA motorcycle registration data), 
experience at least a whole number reduction in the rate of reported 
crashes involving alcohol- and drug-impaired motorcycle operators for 
the most recent calendar year for which final State crash data are 
available, but data no older than three calendar years prior to the 
application due date, as compared to the calendar year immediately prior 
to that year.
    (j) Use of fees collected from motorcyclists for motorcycle 
programs. A State shall have a process under which all fees collected by 
the State from motorcyclists for the purposes of funding motorcycle 
training and safety programs are used for motorcycle training and safety 
programs. A State may qualify under this criterion as either a Law State 
or a Data State.
    (1) To demonstrate compliance as a Law State, the State shall 
submit, in accordance with part 7 of appendix B, the legal citation to 
the statutes or regulations requiring that all fees collected by the 
State from motorcyclists for the purposes of funding motorcycle training 
and safety programs are to be used for motorcycle training and safety 
programs and the legal citations to the State's current fiscal year 
appropriation (or preceding fiscal year appropriation, if the State has 
not enacted a law at the time of the State's application) appropriating 
all such fees to motorcycle training and safety programs.
    (2) To demonstrate compliance as a Data State, the State shall 
submit, in accordance with part 7 of appendix B, data or documentation 
from official records from the previous State fiscal year showing that 
all fees collected by the State from motorcyclists for the purposes of 
funding motorcycle training and safety programs were, in fact, used for 
motorcycle training and safety programs. Such data or documentation 
shall show that revenues collected for the purposes of funding 
motorcycle training and safety programs were placed into a distinct 
account and expended only for motorcycle training and safety programs.
    (k) Award limitation. A grant awarded under 23 U.S.C. 405(f) may not 
exceed 25 percent of the amount apportioned to the State for fiscal year 
2009 under Section 402.
    (l) Use of grant funds--(1) Eligible uses. Except as provided in 
paragraph (l)(2) of this section, a State may use grant funds awarded 
under 23 U.S.C. 405(f) only for motorcyclist safety training and 
motorcyclist awareness programs, including--
    (i) Improvements to motorcyclist safety training curricula;
    (ii) Improvements in program delivery of motorcycle training to both 
urban and rural areas, including--
    (A) Procurement or repair of practice motorcycles;
    (B) Instructional materials;
    (C) Mobile training units; and
    (D) Leasing or purchasing facilities for closed-course motorcycle 
skill training;
    (iii) Measures designed to increase the recruitment or retention of 
motorcyclist safety training instructors; or
    (iv) Public awareness, public service announcements, and other 
outreach programs to enhance driver awareness of motorcyclists, 
including ``share-the-road'' safety messages developed using Share-the-
Road model language available on NHTSA's website at http://
www.trafficsafetymarketing.gov.
    (2) Special rule--low fatality States. Notwithstanding paragraph 
(l)(1) of

[[Page 714]]

this section, a State may elect to use up to 50 percent of grant funds 
awarded under 23 U.S.C. 405(f) for any eligible project or activity 
under Section 402 if the State is in the lowest 25 percent of all States 
for motorcycle deaths per 10,000 motorcycle registrations (using FHWA 
motorcycle registration data) based on the most recent calendar year for 
which final FARS data are available, as determined by NHTSA.
    (3) Suballocation of funds. A State that receives a grant under this 
section may suballocate funds from the grant to a nonprofit organization 
incorporated in that State to carry out grant activities under this 
section.



Sec.  1300.26  State graduated driver licensing incentive grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(g), for awarding grants to States that adopt and implement 
a graduated driver's licensing statute that requires novice drivers 
younger than 18 years of age to comply with a 2-stage licensing process 
prior to receiving an unrestricted driver's license.
    (b) Definitions. As used in this section--
    Driving-related offense means any offense under State or local law 
relating to the use or operation of a motor vehicle, including but not 
limited to driving while intoxicated, misrepresentation of the 
individual's age, reckless driving, driving without wearing a seat belt, 
child restraint violation, speeding, prohibited use of a personal 
wireless communications device, violation of the driving-related 
restrictions applicable to the stages of the graduated driver's 
licensing process set forth in paragraphs (d) and (e) of this section, 
and moving violations. The term does not include offenses related to 
motor vehicle registration, insurance, parking, or the presence or 
functionality of motor vehicle equipment.
    Licensed driver means an individual who possesses a valid 
unrestricted driver's license.
    Unrestricted driver's license means full, non-provisional driver's 
licensure to operate a motor vehicle on public roadways.
    (c) Qualification criteria--General. To qualify for a State 
Graduated Driver Licensing Incentive Grant in a fiscal year, a State 
shall provide as part of its HSP legal citations to State statute 
demonstrating compliance with the requirements provided in paragraphs 
(d), (e), and (f) of this section, in accordance with part 8 of appendix 
B.
    (d) Learner's permit stage. A State's graduated driver's licensing 
statute shall include a learner's permit stage that--
    (1) Applies to any driver, prior to being issued by the State any 
permit, license, or endorsement to operate a motor vehicle on public 
roadways other than a learner's permit, who--
    (i) Is younger than 18 years of age; and
    (ii) Has not been issued an intermediate license or unrestricted 
driver's license by any State;
    (2) Commences only after an applicant for a learner's permit passes 
a vision test and a knowledge assessment (e.g., written or computerized) 
covering the rules of the road, signs, and signals;
    (3) Is in effect for a period of at least 6 months, and remains in 
effect until the learner's permit holder--
    (i) Reaches at least 16 years of age and enters the intermediate 
stage; or
    (ii) Reaches 18 years of age;
    (4) Requires the learner's permit holder to be accompanied and 
supervised, at all times while operating a motor vehicle, by a licensed 
driver who is at least 21 years of age or is a State-certified driving 
instructor;
    (5) Requires the learner's permit holder to either--
    (i) Complete a State-certified driver education or training course; 
or
    (ii) Receive at least 50 hours of behind-the-wheel training, with at 
least 10 of those hours at night, with a licensed driver who is at least 
21 years of age or is a State-certified driving instructor;
    (6) Prohibits the learner's permit holder from using a personal 
wireless communications device while driving (as defined in Sec.  
1300.24(b)), except as permitted under Sec.  1300.24(c)(2)(iii), 
provided that the State's statute does not include an exemption that 
specifically allows a driver to text through a personal wireless 
communication device while stopped in traffic; and

[[Page 715]]

    (7) Requires that, in addition to any other penalties imposed by 
State statute, the duration of the learner's permit stage be extended if 
the learner's permit holder is convicted of a driving-related offense 
during the first 6 months of that stage.
    (e) Intermediate stage. A State's graduated driver's licensing 
statute shall include an intermediate stage that--
    (1) Commences--
    (i) After an applicant younger than 18 years of age successfully 
completes the learner's permit stage;
    (ii) Prior to the applicant being issued by the State another 
permit, license, or endorsement to operate a motor vehicle on public 
roadways other than an intermediate license; and
    (iii) Only after the applicant passes a behind-the-wheel driving 
skills assessment;
    (2) Is in effect for a period of at least 6 months, and remains in 
effect until the intermediate license holder reaches at least 17 years 
of age;
    (3) Requires the intermediate license holder to be accompanied and 
supervised, while operating a motor vehicle between the hours of 10:00 
p.m. and 5:00 a.m. during the first 6 months of the intermediate stage, 
by a licensed driver who is at least 21 years of age or is a State-
certified driving instructor, except when operating a motor vehicle for 
the purposes of work, school, religious activities, or emergencies;
    (4) Prohibits the intermediate license holder from operating a motor 
vehicle with more than 1 nonfamilial passenger younger than 21 years of 
age unless a licensed driver who is at least 21 years of age or is a 
State-certified driving instructor is in the motor vehicle;
    (5) Prohibits the intermediate license holder from using a personal 
wireless communications device while driving (as defined in Sec.  
1300.24(b)), except as permitted under Sec.  1300.24(c)(2)(iii), 
provided that the State's statute does not include an exemption that 
specifically allows a driver to text through a personal wireless 
communication device while stopped in traffic; and
    (6) Requires that, in addition to any other penalties imposed by 
State statute, the duration of the intermediate stage be extended if the 
intermediate license holder is convicted of a driving-related offense 
during the first 6 months of that stage.
    (f) Enforcement. The minimum requirements described in paragraphs 
(d) and (e) of this section shall be enforced as primary offenses.
    (g) Exceptions. A State that otherwise meets the minimum 
requirements set forth in paragraphs (d), (e), and (f) of this section 
will not be deemed ineligible for a grant under this section if--
    (1) The State enacted a statute prior to January 1, 2011, 
establishing a class of permit or license that allows drivers younger 
than 18 years of age to operate a motor vehicle--
    (i) In connection with work performed on, or for the operation of, a 
farm owned by family members who are directly related to the applicant 
or licensee; or
    (ii) If demonstrable hardship would result from the denial of a 
license to the licensee or applicant, provided that the State requires 
the applicant or licensee to affirmatively and adequately demonstrate 
unique undue hardship to the individual; and
    (2) A driver younger than 18 years of age who possesses only the 
permit or license described in paragraph (g)(1) of this section and 
applies for any other permit, license, or endorsement to operate a motor 
vehicle is subject to the graduated driver's licensing requirements of 
paragraphs (d), (e), and (f) of this section.
    (h) Award determination. Subject to Sec.  1300.20(e)(2), the amount 
of a grant award to a State in a fiscal year under 23 U.S.C. 405(g) 
shall be in proportion to the amount each such State received under 
Section 402 for that fiscal year.
    (i) Use of grant funds--(1) Eligible uses. Except as provided in 
paragraphs (i)(2) and (3) of this section, a State may use grant funds 
awarded under 23 U.S.C. 405(g) only as follows:
    (i) To enforce the State's graduated driver's licensing process;
    (ii) To provide training for law enforcement personnel and other 
relevant State agency personnel relating to the enforcement of the 
State's graduated driver's licensing process;
    (iii) To publish relevant educational materials that pertain 
directly or indirectly to the State's graduated driver's licensing law;

[[Page 716]]

    (iv) To carry out administrative activities to implement the State's 
graduated driver's licensing process; or
    (v) To carry out a teen traffic safety program described in 23 
U.S.C. 402(m).
    (2) Special rule. Notwithstanding paragraph (i)(1) of this section, 
a State may elect to use up to 75 percent of the grant funds awarded 
under 23 U.S.C. 405(g) for any eligible project or activity under 
Section 402.
    (3) Special rule--low fatality States. Notwithstanding paragraphs 
(i)(1) and (2) of this section, a State may elect to use up to 100 
percent of the grant funds awarded under 23 U.S.C. 405(g) for any 
eligible project or activity under Section 402 if the State is in the 
lowest 25 percent of all States for the number of drivers under age 18 
involved in fatal crashes in the State as a percentage of the total 
number of drivers under age 18 in the State, as determined by NHTSA.



Sec.  1300.27  Nonmotorized safety grants.

    (a) Purpose. This section establishes criteria, in accordance with 
23 U.S.C. 405(h), for awarding grants to States for the purpose of 
decreasing pedestrian and bicyclist fatalities and injuries that result 
from crashes involving a motor vehicle.
    (b) Eligibility determination. A State is eligible for a grant under 
this section if the State's annual combined pedestrian and bicyclist 
fatalities exceed 15 percent of the State's total annual crash 
fatalities based on the most recent calendar year for which final FARS 
data are available, as determined by NHTSA.
    (c) Qualification criteria. To qualify for a Nonmotorized Safety 
Grant in a fiscal year, a State meeting the eligibility requirements of 
paragraph (b) of this section shall submit as part of its HSP the 
assurances that the State shall use the funds awarded under 23 U.S.C. 
405(h) only for the authorized uses identified in paragraph (d) of this 
section, in accordance with part 9 of appendix B.
    (d) Use of grant funds. A State may use grant funds awarded under 23 
U.S.C. 405(h) onlyfor--
    (1) Training of law enforcement officials on State laws applicable 
to pedestrian and bicycle safety;
    (2) Enforcement mobilizations and campaigns designed to enforce 
State traffic laws applicable to pedestrian and bicycle safety; or
    (3) Public education and awareness programs designed to inform 
motorists, pedestrians, and bicyclists of State traffic laws applicable 
to pedestrian and bicycle safety.



Sec.  1300.28  Racial profiling data collection grants.

    (a) Purpose. This section establishes criteria, in accordance with 
Section 1906, for incentive grants to encourage States to maintain and 
allow public inspection of statistical information on the race and 
ethnicity of the driver for all motor vehicle stops made on all public 
roads except those classified as local or minor rural roads.
    (b) Qualification criteria. To qualify for a Racial Profiling Data 
Collection Grant in a fiscal year, a State shall submit as part of its 
HSP, in accordance with part 10 of appendix B--
    (1) Official documents (i.e., a law, regulation, binding policy 
directive, letter from the Governor or court order) that demonstrate 
that the State maintains and allows public inspection of statistical 
information on the race and ethnicity of the driver for each motor 
vehicle stop made by a law enforcement officer on all public roads 
except those classified as local or minor rural roads; or
    (2) The assurances that the State will undertake activities during 
the fiscal year of the grant to comply with the requirements of 
paragraph (b)(1) of this section, and countermeasure strategies and 
planned activities, at the level of detail required under Sec.  
1300.11(d), supporting the assurances.
    (c) Limitation. (1) On or after October 1, 2015, a State may not 
receive a grant under paragraph (b)(2) of this section in more than 2 
fiscal years.
    (2) Notwithstanding Sec.  1300.20(e)(2), the total amount of a grant 
awarded to a State under this section in a fiscal year may not exceed 5 
percent of the funds available under this section in the fiscal year.
    (d) Use of grant funds. A State may use grant funds awarded under 
Section 1906 only for the costs of--

[[Page 717]]

    (1) Collecting and maintaining data on traffic stops; or
    (2) Evaluating the results of the data.



          Subpart D_Administration of the Highway Safety Grants



Sec.  1300.30  General.

    Subject to the provisions of this subpart, the requirements of 2 CFR 
parts 200 and 1201 govern the implementation and management of State 
highway safety programs and projects carried out under 23 U.S.C. Chapter 
4 and Section 1906.



Sec.  1300.31  Equipment.

    (a) Title. Except as provided in paragraphs (e) and (f) of this 
section, title to equipment acquired under 23 U.S.C. Chapter 4 and 
Section 1906 will vest upon acquisition in the State or its 
subrecipient, as appropriate, subject to the conditions in paragraphs 
(b) through (d) of this section.
    (b) Use. All equipment shall be used for the originally authorized 
grant purposes for as long as needed for those purposes, as determined 
by the Regional Administrator, and neither the State nor any of its 
subrecipients or contractors shall encumber the title or interest while 
such need exists.
    (c) Management and disposition. Subject to the requirements of 
paragraphs (b), (d), (e), and (f) of this section, States and their 
subrecipients and contractors shall manage and dispose of equipment 
acquired under 23 U.S.C. Chapter 4 and Section 1906 in accordance with 
State laws and procedures.
    (d) Major purchases and dispositions. Equipment with a useful life 
of more than one year and an acquisition cost of $5,000 or more shall be 
subject to the following requirements--
    (1) Purchases shall receive prior written approval from the Regional 
Administrator;
    (2) Dispositions shall receive prior written approval from the 
Regional Administrator unless the equipment has exceeded its useful life 
as determined under State law and procedures.
    (e) Right to transfer title. The Regional Administrator may reserve 
the right to transfer title to equipment acquired under this part to the 
Federal Government or to a third party when such third party is eligible 
under Federal statute. Any such transfer shall be subject to the 
following requirements:
    (1) The equipment shall be identified in the grant or otherwise made 
known to the State in writing;
    (2) The Regional Administrator shall issue disposition instructions 
within 120 calendar days after the equipment is determined to be no 
longer needed for highway safety purposes, in the absence of which the 
State shall follow the applicable procedures in 2 CFR parts 200 and 
1201.
    (f) Federally-owned equipment. In the event a State or its 
subrecipient is provided federally-owned equipment:
    (1) Title shall remain vested in the Federal Government;
    (2) Management shall be in accordance with Federal rules and 
procedures, and an annual inventory listing shall be submitted by the 
State;
    (3) The State or its subrecipient shall request disposition 
instructions from the Regional Administrator when the item is no longer 
needed for highway safety purposes.



Sec.  1300.32  Amendments to Highway Safety Plans--
approval by the Regional Administrator.

    (a) During the fiscal year of the grant, States may amend the HSP, 
except performance targets, after approval under Sec.  1300.14. States 
shall document changes to the HSP electronically.
    (b) The State shall amend the HSP, prior to beginning project 
performance, to provide the following information about each project 
agreement it enters into:
    (1) Project agreement number;
    (2) Subrecipient;
    (3) Amount of Federal funds; and
    (4) Eligible use of funds.
    (c) Amendments and changes to the HSP are subject to approval by the 
Regional Administrator before approval of vouchers for payment. Regional 
Administrators will disapprove changes and projects that are 
inconsistent with the HSP or that do not constitute an appropriate use 
of Federal funds.

[[Page 718]]



Sec.  1300.33  Vouchers and project agreements.

    (a) General. Each State shall submit official vouchers for expenses 
incurred to the Regional Administrator.
    (b) Content of vouchers. At a minimum, each voucher shall provide 
the following information, broken down by individual project agreement:
    (1) Project agreement number for which work was performed and 
payment is sought;
    (2) Amount of Federal funds sought, up to the amount identified in 
Sec.  1300.32(b);
    (3) Amount of Federal funds allocated to local benefit (provided no 
less than mid-year (by March 31) and with the final voucher); and
    (4) Matching rate (or special matching writeoff used, i.e., sliding 
scale rate authorized under 23 U.S.C. 120).
    (c) Project agreements. Copies of each project agreement for which 
expenses are being claimed under the voucher (and supporting 
documentation for the vouchers) shall be made promptly available for 
review by the Regional Administrator upon request. Each project 
agreement shall bear the project agreement number to allow the Regional 
Administrator to match the voucher to the corresponding project.
    (d) Submission requirements. At a minimum, vouchers shall be 
submitted to the Regional Administrator on a quarterly basis, no later 
than 15 working days after the end of each quarter, except that where a 
State receives funds by electronic transfer at an annualized rate of one 
million dollars or more, vouchers shall be submitted on a monthly basis, 
no later than 15 working days after the end of each month. A final 
voucher for the fiscal year shall be submitted to the Regional 
Administrator no later than 90 days after the end of the fiscal year, 
and all unexpended balances shall be carried forward to the next fiscal 
year unless they have lapsed in accordance with Sec.  1300.41.
    (e) Payment. (1) Failure to provide the information specified in 
paragraph (b) of this section shall result in rejection of the voucher.
    (2) Vouchers that request payment for projects whose project 
agreement numbers or amounts claimed do not match the projects or exceed 
the estimated amount of Federal funds provided under Sec.  1300.32, 
shall be rejected, in whole or in part, until an amended project and/or 
estimated amount of Federal funds is submitted to and approved by the 
Regional Administrator in accordance with Sec.  1300.32.
    (3) Failure to meet the deadlines specified in paragraph (d) of this 
section may result in delayed payment.



Sec.  1300.34  [Reserved]



Sec.  1300.35  Annual report.

    Within 90 days after the end of the fiscal year, each State shall 
submit electronically an Annual Report providing--
    (a) An assessment of the State's progress in achieving performance 
targets identified in the prior year HSP, and a description of how the 
State will adjust its upcoming HSP to better meet performance targets if 
a State has not met its performance targets;
    (b) A description of the projects and activities funded and 
implemented along with the amount of Federal funds obligated and 
expended under the prior year HSP;
    (c) A description of the State's evidence-based enforcement program 
activities;
    (d) Submission of information regarding mobilization participation 
(e.g., participating and reporting agencies, enforcement activity, 
citation information, paid and earned media information);
    (e) An explanation of reasons for planned activities that were not 
implemented; and
    (f) A description of how the projects funded under the prior year 
HSP contributed to meeting the State's highway safety performance 
targets.



Sec.  1300.36  Appeals of written decision by a Regional Administrator.

    The State shall submit an appeal of any written decision by a 
Regional Administrator regarding the administration of the grants in 
writing, signed by the Governor's Representative for

[[Page 719]]

Highway Safety, to the Regional Administrator. The Regional 
Administrator shall promptly forward the appeal to the NHTSA Associate 
Administrator, Regional Operations and Program Delivery. The decision of 
the NHTSA Associate Administrator shall be final and shall be 
transmitted to the Governor's Representative for Highway Safety through 
the Regional Administrator.



                     Subpart E_Annual Reconciliation



Sec.  1300.40  Expiration of the Highway Safety Plan.

    (a) The State's Highway Safety Plan for a fiscal year and the 
State's authority to incur costs under that HSP shall expire on the last 
day of the fiscal year.
    (b) Except as provided in paragraph (c) of this section, each State 
shall submit a final voucher which satisfies the requirements of Sec.  
1300.33(b) within 90 days after the expiration of the HSP. The final 
voucher constitutes the final financial reconciliation for each fiscal 
year.
    (c) The Regional Administrator may extend the time period for no 
more than 30 days to submit a final voucher only in extraordinary 
circumstances. States shall submit a written request for an extension 
describing the extraordinary circumstances that necessitate an 
extension. The approval of any such request for extension shall be in 
writing, shall specify the new deadline for submitting the final 
voucher, and shall be signed by the Regional Administrator.



Sec.  1300.41  Disposition of unexpended balances.

    (a) Carry-forward balances. Except as provided in paragraph (b) of 
this section, grant funds that remain unexpended at the end of a fiscal 
year and the expiration of an HSP shall be credited to the State's 
highway safety account for the new fiscal year, and made immediately 
available for use by the State, provided the State's new HSP has been 
approved by the Regional Administrator pursuant to Sec.  1300.14 of this 
part, including any amendments to the HSP pursuant to Sec.  1300.32.
    (b) Deobligation of funds. (1) Except as provided in paragraph 
(b)(2) of this section, unexpended grant funds shall not be available 
for expenditure beyond the period of three years after the last day of 
the fiscal year of apportionment or allocation.
    (2) NHTSA shall notify States of any such unexpended grant funds no 
later than 180 days prior to the end of the period of availability 
specified in paragraph (b)(1) of this section and inform States of the 
deadline for commitment. States may commit such unexpended grant funds 
to a specific project by the specified deadline, and shall provide 
documentary evidence of that commitment, including a copy of an executed 
project agreement, to the Regional Administrator.
    (3) Grant funds committed to a specific project in accordance with 
paragraph (b)(2) of this section shall remain committed to that project 
and must be expended by the end of the succeeding fiscal year. The final 
voucher for that project shall be submitted within 90 days after the end 
of that fiscal year.
    (4) NHTSA shall deobligate unexpended balances at the end of the 
time period in paragraph (b)(1) or (3) of this section, whichever is 
applicable, and the funds shall lapse.



Sec.  1300.42  Post-grant adjustments.

    The expiration of an HSP does not affect the ability of NHTSA to 
disallow costs and recover funds on the basis of a later audit or other 
review or the State's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions.



Sec.  1300.43  Continuing requirements.

    Notwithstanding the expiration of an HSP, the provisions in 2 CFR 
parts 200 and 1201 and 23 CFR part 1300, including but not limited to 
equipment and audit, continue to apply to the grant funds authorized 
under 23 U.S.C. Chapter 4 and Section 1906.



                        Subpart F_Non-Compliance



Sec.  1300.50  General.

    Where a State is found to be in non-compliance with the requirements 
of the grant programs authorized under 23 U.S.C. Chapter 4 or Section 
1906, or

[[Page 720]]

with other applicable law, the sanctions in Sec. Sec.  1300.51 and 
1300.52, and any other sanctions or remedies permitted under Federal 
law, including the specific conditions of 2 CFR 200.207 and 200.338, may 
be applied as appropriate.



Sec.  1300.51  Sanctions--reduction of apportionment.

    (a) Determination of sanctions. (1) The Administrator shall not 
apportion any funds under Section 402 to any State that does not have or 
is not implementing an approved highway safety program.
    (2) If the Administrator has apportioned funds under Section 402 to 
a State and subsequently determines that the State is not implementing 
an approved highway safety program, the Administrator shall reduce the 
apportionment by an amount equal to not less than 20 percent, until such 
time as the Administrator determines that the State is implementing an 
approved highway safety program. The Administrator shall consider the 
gravity of the State's failure to implement an approved highway safety 
program in determining the amount of the reduction.
    (i) When the Administrator determines that a State is not 
implementing an approved highway safety program, the Administrator shall 
issue to the State an advance notice, advising the State that the 
Administrator expects to withhold funds from apportionment or reduce the 
State's apportionment under Section 402. The Administrator shall state 
the amount of the expected withholding or reduction.
    (ii) The State may, within 30 days after its receipt of the advance 
notice, submit documentation demonstrating that it is implementing an 
approved highway safety program. Documentation shall be submitted to the 
NHTSA Administrator, 1200 New Jersey Avenue SE, Washington, DC 20590.
    (b) Apportionment of withheld funds. (1) If the Administrator 
concludes that a State has begun implementing an approved highway safety 
program, the Administrator shall promptly apportion to the State the 
funds withheld from its apportionment, but not later than July 31 of the 
fiscal year for which the funds were withheld.
    (2)(i) If the Administrator concludes, after reviewing all relevant 
documentation submitted by the State or if the State has not responded 
to the advance notice, that the State did not correct its failure to 
have or implement an approved highway safety program, the Administrator 
shall issue a final notice, advising the State of the funds being 
withheld from apportionment or of the reduction of apportionment under 
Section 402 by July 31 of the fiscal year for which the funds were 
withheld.
    (ii) The Administrator shall reapportion the withheld funds to the 
other States, in accordance with the formula specified in 23 U.S.C. 
402(c), not later than the last day of the fiscal year.



Sec.  1300.52  Sanctions--risk assessment and non-compliance.

    (a) Risk assessment. (1) All States receiving funds under the grant 
programs authorized under 23 U.S.C. Chapter 4 and Section 1906 shall be 
subject to an assessment of risk by NHTSA. In evaluating risks of a 
State highway safety program, NHTSA may consider, but is not limited to 
considering, the following for each State:
    (i) Financial stability;
    (ii) Quality of management systems and ability to meet management 
standards prescribed in this part and in 2 CFR part 200;
    (iii) History of performance. The applicant's record in managing 
funds received for grant programs under this part, including findings 
from Management Reviews;
    (iv) Reports and findings from audits performed under 2 CFR part 
200, subpart F, or from the reports and findings of any other available 
audits; and
    (v) The State's ability to effectively implement statutory, 
regulatory, and other requirements imposed on non-Federal entities.
    (2) If a State is determined to pose risk, NHTSA may increase 
monitoring activities and may impose any of the specific conditions of 2 
CFR 200.207, as appropriate.
    (b) Non-compliance. If at any time a State is found to be in non-
compliance with the requirements of the grant programs under this part, 
the requirements of 2 CFR parts 200 and 1201, or

[[Page 721]]

with any other applicable law, the actions permitted under 2 CFR 200.207 
and 200.338 may be applied as appropriate.
      

[[Page 722]]



Sec. Appendix A to Part 1300--Certifications and Assurances for Highway 
   Safety Grants (23 U.S.C. Chapter 4; Sec. 1906, Pub. L. 109-59, as 
                  Amended by Sec. 4011, Pub. L. 114-94)
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 Sec. Appendix B to Part 1300--Application Requirements for Section 405 
                         and Section 1906 Grants
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  Sec. Appendix C to Part 1300--Participation by Political Subdivisions
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 Sec. Appendix D to Part 1300--Planning and Administration (P & A) Costs
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                       PARTS 1301	1313 [RESERVED]



PART 1327_PROCEDURES FOR PARTICIPATING IN AND RECEIVING INFORMATION FROM 
THE NATIONAL DRIVER REGISTER PROBLEM DRIVER POINTER SYSTEM--Table of Contents



Sec.
1327.1 Scope.
1327.2 Purpose.
1327.3 Definitions.
1327.4 Certification, termination and reinstatement procedures.
1327.5 Conditions for becoming a participating State.
1327.6 Conditions and procedures for other authorized users of the NDR.
1327.7 Procedures for NDR information requests.

Appendix A to Part 1327--Abridged Listing of the American Association of 
          Motor Vehicle Administrators Violations Exchange Code, Used by 
          the NDR for Recording Driver License Denials, Withdrawals, and 
          Convictions of Motor Vehicle-Related Offenses
Appendix B to Part 1327--OMB Clearance

    Authority: Pub.L. 97-364, 96 Stat. 1740, as amended (49 U.S.C. 30301 
et seq.); delegation of authority at 49 CFR 1.50.

    Source: 56 FR 41403, Aug. 20, 1991, unless otherwise noted.



Sec.  1327.1  Scope.

    This part provides procedures for States to participate in the 
National Driver Register (NDR) Problem Driver Pointer System (PDPS) and 
for other authorized parties to receive information from the NDR. It 
includes, in accordance with section 204(c) of the NDR Act of 1982 (Pub. 
L. 97-364), procedures for a State to notify the Secretary of 
Transportation of its intention to be bound by the requirements of 
section 205 of the Act (i.e., requirements for reporting by chief driver 
licensing officials) and for a State to notify the Secretary in the 
event it becomes necessary to withdraw from participation. The rule also 
contains the conditions for becoming a participating State as well as 
conditions and procedures for other authorized users of the NDR.



Sec.  1327.2  Purpose.

    The purpose of this part is to implement the NDR Act of 1982, as 
amended.



Sec.  1327.3  Definitions.

    (a) Any officer, chief warrant officer, or enlisted member of the 
Coast Guard or Coast Guard Reserve includes a cadet or an applicant for 
appointment or enlistment of any of the foregoing and any member of a 
uniformed service who is assigned to the Coast Guard.
    (b) Driver history record means a detailed description of an 
individual's driver record, used in the American Association of Motor 
Vehicle Administrators' Commercial Driver's License Information System 
(CDLIS).
    (c) Driver improvement purposes means information requests made by 
chief driver licensing officials in connection with the control and 
rehabilitation of drivers who are, based on their records, suspected of 
being or known to be problem drivers.
    (d) Driver license abstract means the complete driver history of a 
driver's convictions, revocations, suspensions, denials, cancellations, 
accidents and interactions with the driver control and driver 
improvement authorities. Also known as Motor Vehicle Record (MVR) or 
Transcript.

[[Page 752]]

    (e) Driver licensing purposes means information requests made by 
chief driver licensing officials to determine if individuals applying 
for original, renewal, temporary, or duplicate licenses have had their 
driving privileges withdrawn in some other State.
    (f) Driver status response means a response which indicates whether 
a driver currently holds a valid license.
    (g) Employers or prospective employers of motor vehicle operators 
means persons that hire one or more individuals to operate motor 
vehicles on a regular basis during their normal course of employment.
    (h) For cause as used in Sec.  1327.5(a) means that an adverse 
action taken by a State against an individual was based on a violation 
listed in Appendix A, Part I, an Abridged Listing of the American 
Association of Motor Vehicle Administrators (AAMVA) Violations Exchange 
Code, which is used by the NDR for recording license denials and 
withdrawals.
    (i) Fully electronic register system means an NDR system in which 
all States that are participating in the NDR have been certified by the 
agency as participating States.
    (j) Interactive communication means an active two-way computer 
connection which allows requesters to receive a response from the NDR 
almost immediately.
    (k) Match means the occurrence when the personal identifying 
information in an inquiry compares with the personal identifying 
information on a record in the NDR file such that there is a high 
probability that the individual identified on both records is the same 
person. See Probable Identification.
    (l) Non-minimum age driver license applicant means a driver license 
applicant who is past the minimum age to apply for a license in the 
State making an NDR inquiry.
    (m) Non-PDPS State means a State which operates under the old NDR by 
submitting complete substantive adverse driver licensing data to the 
NDR.
    (n) Participating State means a State that has notified the agency 
of its intention to participate in the PDPS and has been certified by 
the agency as being in compliance with the requirements of Section 30304 
of Title 49, United States Code and Sec.  1327.5 of this part.
    (o) Personnel security investigation means an investigation of an 
individual for the purpose of assisting in the determination of the 
eligibility of the individual for access to national security 
information under the authority of Executive Order No. 12968, or any 
successor Executive order, or for Federal employment in a position 
requiring access to national security information under the authority of 
Executive Order No. 10450, or any successor Executive order.
    (p) Pointer record means a report containing the following data:
    (1) The legal name, date of birth (including month, day, and year), 
sex, (and if the State collects such data) height, weight, and color of 
eyes;
    (2) The name of the State transmitting such information; and
    (3) The social security account number, if used by the reporting 
State for driver record or motor vehicle license purposes, and the motor 
vehicle operator's license number of such individual (if that number is 
different from the operator's social security account number).
    (q) Probable identification means the occurrence when the personal 
identifying information in an inquiry compares with the identifying 
information on a record in the NDR file such that there is a high 
probability that the individual identified on both records is the same 
person. See Match.
    (r) Problem Driver Pointer System (PDPS) means a system whereby the 
NDR causes information regarding the motor vehicle driving records of 
individuals to be exchanged between the State which took adverse action 
against a driver (State of Record) and the State requesting the 
information (State of Inquiry).
    (s) PDPS State means a State which participates in the PDPS by 
submitting pointer records for inclusion in the NDR file and by 
providing information to States of Inquiry as a State of Record.
    (t) Rapid Response System means an interactive inquiry capability of 
the NDR system used by non-PDPS States.
    (u) Remote job entry means an automated communication method in

[[Page 753]]

which information is transmitted in batches (usually a large number of 
records) and responses are also transmitted in batches, all within a 24-
hour period.
    (v) State of inquiry means the State submitting an inquiry to the 
NDR to determine if it contains information regarding a driver license 
applicant.
    (w) State of record means the State which took an adverse action 
against a driver and transmitted identification data regarding the 
driver to the NDR, in accordance with Sec.  1327.5(a) of this part.
    (x) Substantive adverse action data, substantive adverse driver 
licensing data and substantive data mean data which give the details 
regarding a State's revocation, suspension, denial or cancellation of a 
driver's license, or the conviction of a driver, such as date, reason, 
eligible/restoration date, etc.
    (y) Transportation safety purposes means information requests 
submitted on behalf of other parties authorized by the NDR Act of 1982, 
as amended, to receive NDR information.
    (z) Transition period means the period which began on July 11, 1985 
and will continue until a fully electronic register system is 
established, but not later than April 30, 1995.

[56 FR 41403, Aug. 20, 1991, as amended at 62 FR 63657, Dec. 2, 1997; 70 
FR 43755, July 29, 2005; 70 FR 52298, Sept. 2, 2005]



Sec.  1327.4  Certification, termination and reinstatement procedures.

    (a) Certification requirement. Only States that have been certified 
by NHTSA as participating States under PDPS may participate in the NDR. 
NHTSA will remove all records on file and will not accept any inquiries 
or reports from a State that has not been certified as a participating 
State.
    (b) Termination or cancellation. (1) If a State finds it necessary 
to discontinue participation, the chief driver licensing official of the 
participating State shall notify NHTSA in writing, providing the reason 
for terminating its participation.
    (2) The effective date of termination will be no less than 30 days 
after notification of termination.
    (3) NHTSA will notify any participating State that changes its 
operations such that it no longer meets statutory and regulatory 
requirements, that its certification to participate in the NDR will be 
withdrawn if it does not come back into compliance within 30 days from 
the date of notification.
    (4) If a participating State does not come back into compliance with 
statutory and regulatory requirements within the 30-day period, NHTSA 
will send a letter to the chief driver licensing official cancelling its 
certification to participate in the NDR.
    (5) NHTSA will remove all records on file and will not accept any 
inquiries or reports from a State whose participation in the NDR has 
been terminated or cancelled.
    (6) To be reinstated as a participating State after being terminated 
or cancelled, the chief driver licensing official shall follow the 
notification procedures in paragraphs (c)(1) and (3) of this section and 
must be re-certified by NHTSA as a participating State under PDPS, upon 
a determination by NHTSA that the State complies with the statutory and 
regulatory requirements for participation, in accordance with paragraphs 
(c)(2) and (4) of this section.
    (c) Reinstatement. (1) The chief driver licensing official of a 
State that wishes to be reinstated as a participating State in the NDR 
under the PDPS shall send a letter notifying NHTSA that the State wishes 
to be reinstated as a participating State and certifying that the State 
intends to be bound by the requirements of Section 30304 of Title 49, 
United States Code and Sec.  1327.5. The letter shall also describe the 
changes necessary to meet the statutory and regulatory requirements of 
PDPS.
    (2) NHTSA will acknowledge receipt of the State's notification 
within 20 days after receipt.
    (3) The chief driver licensing official of a State that has notified 
NHTSA of its intention to be reinstated as a participating State will, 
at such time as it has completed all changes necessary to meet the 
statutory and regulatory requirements of PDPS, certify this fact to the 
agency.
    (4) Upon receipt, review and approval of certification from the 
State, NHTSA will recertify the State as a participating State under 
PDPS.

[[Page 754]]

    (d) New notification. (1) NHTSA may, in its discretion, require in 
writing that a participating State submit a new notification, certifying 
that it intends to be bound by the requirements of Section 30304 of 
Title 49, United States Code and Sec.  1327.5. The agency will exercise 
its discretion to require this notification when statutory changes have 
altered a participating State's reporting or inquiry requirements under 
Section 30304 of Title 49, United States Code.
    (2) After receiving a written request from NHTSA under paragraph 
(d)(1) of this section, a participating State will have 90 days to 
submit the requested notification. If a participating State does not 
submit the requested notification within the 90-day time period, NHTSA 
will send a letter to the chief driver licensing official of a State 
canceling its status as a participating State.

[65 FR 45716, July 25, 2000, as amended at 70 FR 43755, July 29, 2005]



Sec.  1327.5  Conditions for becoming a participating State.

    (a) Reporting requirements. (1) The chief driver licensing official 
in each participating State shall transmit to the NDR a report regarding 
any individual--
    (i) Who is denied a motor vehicle operator's license by such State 
for cause;
    (ii) Whose motor vehicle operator's license is canceled, revoked, or 
suspended by such State for cause; or
    (iii) Who is convicted under the laws of such State of the following 
motor vehicle-related offenses or comparable offenses--
    (A) Operation of a motor vehicle while under the influence of, or 
impaired by, alcohol or a controlled substance;
    (B) A traffic violation arising in connection with a fatal traffic 
accident, reckless driving, or racing on the highways;
    (C) Failure to render aid or provide identification when involved in 
an accident which results in a fatality or personal injury; or
    (D) Perjury or the knowledgeable making of a false affidavit or 
statement to officials in connection with activities governed by a law 
or regulation relating to the operation of a motor vehicle.
    (2) A report shall not be transmitted by the chief driver licensing 
official of a participating State, regarding an individual, unless that 
individual has had his or her motor vehicle operator's license denied, 
canceled, revoked, or suspended for cause as represented by the codes in 
appendix A, part I, of this part, or been convicted of a motor vehicle-
related offense as represented by the codes in appendix A, part II, of 
this part. Unless the report transmitted to the NDR is based on these 
codes, NHTSA will contact the participating State responsible for the 
record and request its removal from the NDR.
    (3) Any report regarding any individual which is transmitted by a 
chief driver licensing official pursuant to this requirement shall 
contain the following data:
    (i) The legal name, date of birth (including day, month, and year), 
sex, (and if the State collects such data) height, weight, and color of 
eyes;
    (ii) The name of the State transmitting such information; and
    (iii) The social security account number, if used by the reporting 
State for driver record or motor vehicle license purposes, and the motor 
vehicle operator's license number of such individual (if that number is 
different from the operator's social security account number); except 
that
    (iv) Any report concerning an occurrence identified in paragraph 
(a)(1) of this section which occurs during the two-year period preceding 
the date on which such State becomes a participating State shall be 
sufficient if it contains all such information as is available to the 
chief driver licensing official on such date.
    (4) These records, defined as pointer records, shall be transmitted 
by the chief driver licensing official to the NDR not later than 31 days 
after the adverse action information is received by the motor vehicle 
department or 6 months after the date on which such State becomes a 
participating State.
    (5) No State will be required to report information concerning an 
occurrence

[[Page 755]]

which happened before the two-year period preceding the date on which 
the State becomes a participating State.
    (b) State of inquiry function for driver licensing and driver 
improvement purposes. (1) The chief driver licensing official of a 
participating State shall submit an inquiry to both the NDR and the 
Commercial Driver's License Information System for each driver license 
applicant before issuing a license to that applicant. The issuance of a 
license includes but is not limited to any original, renewal, temporary, 
or duplicate license that results in a grant or extension of driving 
privileges in a participating State.
    (2) The chief driver licensing official of a participating State may 
submit inquiries for other driver licensing and driver improvement 
purposes.
    (c) State of inquiry function for transportation safety purposes (on 
behalf of other authorized users). The chief driver licensing official 
of a participating State shall provide for and establish routine 
procedures and forms to accept requests for NDR file checks from the 
following groups which are authorized to receive information from the 
NDR file through participating States:
    (1) National Transportation Safety Board (NTSB) and Federal Highway 
Administration (FHWA) for accident investigation purposes. The Chairman 
of the NTSB and/or the Administrator of the FHWA shall submit requests 
for NDR searches in writing through the participating State with which 
previous arrangements have been made to process these requests. The 
chief driver licensing official shall provide to the requesting agency 
the NDR response indicating either Probable Identification (match) or No 
Record Found. In the case of a probable identification, the State of 
Record will also be identified in the response so that the NTSB or FHWA 
may obtain additional information regarding the individual's driving 
record.
    (2) Employers and Prospective Employers of individuals licensed to 
drive a motor vehicle in the State (including Federal Agencies); Federal 
Aviation Administration regarding any individual who has applied for or 
received an airman's certificate; the Federal Railroad Administration 
and employers/prospective employers regarding individuals who are 
employed or seeking employment as railroad locomotive operators; and the 
U.S. Coast Guard regarding any individual who holds or who has applied 
for a license or certificate of registry under section 7101 of title 46 
of the U.S. Code, or a merchant mariner's document under section 7302 of 
that title, or regarding any officer, chief warrant officer, or enlisted 
member of the Coast Guard or Coast Guard Reserve. Information may not be 
obtained from the National Driver Register under this paragraph (c) if 
the information was entered in the Register more than three years before 
the date of the request unless the information is about a revocation or 
suspension still in effect on the date of the request.
    (i) The procedures or forms developed by the chief driver licensing 
official to facilitate NDR searches for these authorized users shall 
provide for the request to be made by the individual or by the 
authorized user if the individual first consented to the search in 
writing. Any request to the chief driver licensing official and any 
written consent by the individual shall:
    (A) State that NDR records are to be released:
    (B) Specifically state who is authorized to receive the records;
    (C) Be signed and dated by the individual or the individual's legal 
representative;
    (D) Specifically state that the authorization is valid for only one 
search of the NDR; and
    (E) Specifically state that the NDR identifies probable matches that 
require further inquiry for verification; that it is recommended, but 
not required, that the authorized recipient of the information verify 
matches with the State of Record; and that individuals have the right to 
request records regarding themselves from the NDR to verify their 
accuracy.
    (ii) Any request made by an authorized user may include, in lieu of 
the actual information described in paragraphs (c)(2)(i) (C) through (E) 
of this section, a certification that a written consent was signed and 
dated by the individual or the individual's legal representative, 
specifically stated that the authorization is valid for only one

[[Page 756]]

search of the NDR, and specifically stated that the NDR identifies 
probable matches that require further inquiry for verification; that it 
is recommended, but not required, that the authorized recipient of the 
information verify matches with the State of Record; and that 
individuals have the right to request records regarding themselves from 
the NDR to verify their accuracy.
    (iii) The chief driver licensing official shall provide to the 
authorized user a response indicating either Probable Identification 
(match) or No Record Found. In the case of probable identification, the 
State of Record will also be included in the response so that the 
authorized user may obtain additional information regarding the 
individual's driving record.
    (3) The head of a Federal department or agency that issues motor 
vehicle operator's licenses about an individual applicant for a motor 
vehicle operator's license from such department or agency. The head of 
the department or agency may request NDR information through the chief 
driver licensing official of a State and may receive the information, 
provided the requesting Federal department or agency participates in the 
NDR as a reporting agency.
    (i) A reporting agency is an agency that transmits to the NDR a 
report regarding any individual who has been denied a motor vehicle 
operator's license for cause; whose motor vehicle operator's license is 
revoked, suspended, or canceled by that department or agency for cause; 
or about whom the department or agency has been notified of a conviction 
of any of the motor vehicle related offenses listed in paragraph 
(a)(1)(iii) of this section and Appendix A to this part and over whom 
the department or agency has licensing authority.
    (ii) All reports transmitted by a reporting agency shall contain the 
following data:
    (A) The legal name, date of birth (including day, month, and year), 
sex, and, if available to the agency, height, weight, and eye color;
    (B) The name of the agency transmitting such information; and
    (C) The social security account number, if used by the reporting 
agency for driver record or motor vehicle license purposes, and the 
motor vehicle operator's license number of such individual (if that 
number is different from the operator's social security account number); 
except that
    (D) Any report concerning an occurrence identified in paragraph 
(c)(3)(i) of this section which occurs during the two-year period 
preceding the date on which the agency becomes a participating agency 
shall be sufficient if it contains all such information as is available 
to the agency on such date.
    (4) Individuals who wish to learn what information about themselves, 
if any, is in the NDR file, or whether and to whom such information has 
been disclosed.
    (i) Upon receiving a request for an NDR search from an individual 
for information concerning himself or herself, the chief driver 
licensing official shall inform the individual of the procedure for 
conducting such a search and provide the individual a request form 
which, when properly completed, will be forwarded to the NDR either by 
the chief driver licensing official or by the individual.
    (ii) The request form provided by the chief driver licensing 
official to the individual must provide for the following:
    (A) Full legal name;
    (B) Other names used (nicknames, professional name, maiden name, 
etc.);
    (C) Month, day and year of birth;
    (D) Sex;
    (E) Height;
    (F) Weight;
    (G) Color of eyes;
    (H) Social Security Number (SSN) and/or driver license number 
(provision of SSN is voluntary);
    (I) Individual's full address;
    (J) Home and office telephone number (provision of telephone number 
is voluntary);
    (K) Signature;
    (L) Proof of identification--Acceptable forms of identification are 
driver's license, birth certificate, credit card, employee 
identification card, and other forms of identification normally accepted 
by the State; and

[[Page 757]]

    (M) Notarization--This is required only if the individual chooses to 
mail the request directly to the NDR.
    (iii) Upon receipt of the individual's request for a NDR file check, 
NHTSA will search its computer file and mail the results (i.e., 
notification of no record found or copies of any records found) directly 
to the individual.
    (iv) The chief driver licensing official shall advise the requesting 
individual to contact the Chief, National Driver Register by mail or 
telephone for guidance regarding the procedure for alteration or 
correction of NDR-maintained records in the event he or she believes 
they are incorrect.
    (d) Personnel security investigations. The chief driver licensing 
official of a participating State shall provide for and establish 
routine procedures and forms to accept requests for NDR file checks from 
individuals subject to personnel security investigations and from 
Federal departments or agencies that are authorized to perform personnel 
security investigations. These authorized users may receive information 
from the NDR file through participating States.
    (1) The procedures or forms developed by the chief driver licensing 
official to facilitate NDR searches for these authorized users shall 
provide for the request to be made by the individual or by the Federal 
department or agency if the individual first consented to the search in 
writing. Any request to the chief driver licensing official and any 
written consent by the individual shall:
    (i) State that NDR records are to be released;
    (ii) Specifically state who is authorized to receive the records;
    (iii) Be signed and dated by the individual or individual's legal 
representative;
    (iv) Specifically state that the authorization is valid only for the 
duration of the personnel security investigation; and
    (v) Specifically state that it is recommended, but not required, 
that the authorized recipient of the information verify matches with the 
State of Record.
    (2) Any request made by a Federal department or agency may include, 
in lieu of the actual information described in paragraphs (d)(1)(iii) 
through (v) of this section, a certification that a written consent was 
signed and dated by the individual or the individual's legal 
representative, specifically stated that the authorization is valid only 
for the duration of the personnel security investigation, and 
specifically stated that it is recommended, but not required, that the 
authorized recipient of the information verify matches with the State of 
Record.
    (3) The chief driver licensing official shall provide to the 
authorized user a response indicating either Probable Identification 
(match) or No Record Found. In the case of probable identification, the 
State of Record will also be included in the response so that the 
Federal department or agency may obtain additional information regarding 
the individual's driving record.
    (e) State of record functions. The chief driver licensing official 
of a participating State shall implement the necessary computer system 
and procedures to respond to requests for driver record information. 
When a request to the NDR results in a match, the chief driver licensing 
official of a participating State shall also:
    (1) Provide a driver status response interactively to the State of 
Inquiry or the NDR upon receipt of a request for this response from the 
NDR;
    (2) Provide a Driver History Record from its file to the State of 
Inquiry upon receipt of a request for this record from the State of 
Inquiry; and
    (3) Forward a driver license abstract (full motor vehicle record) to 
the State of Inquiry upon receipt of a request for this record either 
from the NDR or directly from the State of Inquiry, and to other 
authorized users upon receipt of a request directly from the user.

[56 FR 41403, Aug. 20, 1991, as amended at 62 FR 63657, Dec. 2, 1997; 64 
FR 19271, Apr. 20, 1999; 70 FR 43755, July 29, 2005; 70 FR 52299, Sept. 
2, 2005; 71 FR 19826, Apr. 18, 2006]



Sec.  1327.6  Conditions and procedures for other authorized users of the NDR.

    (a) NTSB and FHWA. To initiate an NDR file check before a fully 
electronic Register system has been established, the National 
Transportation Safety Board or the Federal Highway

[[Page 758]]

Administration (Office of Motor Carriers) shall submit a request for 
such check to the State with which previous arrangements have been made, 
in accordance with procedures established by that State for this 
purpose. To initiate an NDR file check once a fully electronic Register 
system has been established, the NTSB or FHWA shall submit a request for 
such check to the participating State with which previous arrangements 
have been made, in accordance with procedures established by that State 
for this purpose. The NTSB or FHWA may also submit a request for an NDR 
file check to the NDR directly.
    (b) Federal departments or agencies that issue motor vehicle 
operator's licenses. To initiate an NDR file check, a Federal department 
or agency that issues motor vehicle operator's licenses shall submit a 
request for such check to a participating State, in accordance with 
procedures established by that State for this purpose. The Federal 
department or agency that issues motor vehicle operator's licenses may 
also submit a request for an NDR file check to the NDR directly, in 
accordance with procedures established by the NDR for that purpose.
    (c) Employers or prospective employers of motor vehicle operators 
(including Federal Agencies). (1) To initiate an NDR file check, the 
individual who is employed or seeking employment as a motor vehicle 
operator shall follow the procedures specified in Sec.  1327.7.
    (2) Upon receipt of the NDR response, the employer/prospective 
employer shall make the information available to the employee/
prospective employee.
    (3) In the case of a match (probable identification), the employer/
prospective employer should obtain the substantive data relating to the 
record from the State of Record and verify that the person named on the 
probable identification is in fact the employee/prospective employee 
before using the information as the basis for any action against the 
individual.
    (d) Federal Aviation Administration. (1) To initiate an NDR file 
check, the individual who has applied for or received an airman's 
certificate shall follow the procedures specified in Sec.  1327.7.
    (2) Upon receipt of the NDR response, the FAA shall make the 
information available to the airman for review and written comment.
    (3) In the case of a match (probable identification), the FAA should 
obtain the substantive data relating to the record from the State of 
Record and verify that the person named on the probable identification 
is in fact the airman concerned before using the information as the 
basis of any action against the individual.
    (e) Federal Railroad Administration and/or employers or prospective 
employers of railroad locomotive operators. (1) To initiate an NDR file 
check, the individual employed or seeking employment as a locomotive 
operator shall follow the procedures specified in Sec.  1327.7.
    (2) Upon receipt of the NDR response, the FRA or the employer/
prospective employer, as applicable, shall make the information 
available to the individual.
    (3) In the case of a match (probable identification), the FRA or the 
employer/prospective employer, as applicable, should obtain the 
substantive data relating to the record from the State of Record and 
verify that the person named on the probable identification is in fact 
the individual concerned before using the information as the basis of 
any action against the individual.
    (f) U.S. Coast Guard. (1) To initiate an NDR file check, the 
individual who holds or who has applied for a license, certificate of 
registry, or a merchant mariner's document or the officer, chief warrant 
officer, or enlisted member of the Coast Guard or Coast Guard Reserve 
shall follow the procedures specified in Sec.  1327.7.
    (2) Upon receipt of the NDR response, the U.S. Coast Guard shall 
make the information available to the individual for review and written 
comment before denying, suspending or revoking the license, certificate 
of registry, or merchant mariner's document of the individual based on 
that information and before using that information in any action taken 
under chapter 77 of title 46, U.S. Code.
    (3) In the case of a match (probable identification), the U.S. Coast 
Guard

[[Page 759]]

should obtain the substantive data relating to the record from the State 
of Record and verify that the person named on the probable 
identification is in fact the individual concerned before using the 
information as the basis of any action against the individual.
    (g) Air carriers. (1) To initiate an NDR file check, the individual 
seeking employment as a pilot with an air carrier shall follow the 
procedures specified in Sec.  1327.7 and also must specifically state 
that, pursuant to Section 502 of the Pilot Records Improvement Act of 
1996, Public Law 104-264, 110 Stat. 3259 (49 U.S.C. 30305), the request 
(or written consent) serves as notice of a request for NDR information 
concerning the individual's motor vehicle driving record and of the 
individual's right to receive a copy of such information.
    (2) Air carriers that maintain, or request and receive NDR 
information about an individual must provide the individual a reasonable 
opportunity to submit written comments to correct any inaccuracies 
contained in the records before making a final hiring decision with 
respect to the individual.
    (3) In the case of a match (probable identification), the air 
carrier should obtain the substantive data relating to the record from 
the State of Record and verify that the person named on the probable 
identification is in fact the individual concerned before using the 
information as the basis of any action against the individual.
    (h) Federal departments or agencies conducting personnel security 
investigations. (1) To initiate an NDR file check, an individual who has 
or is seeking access to national security information for purposes of 
Executive Order No. 12968, or any successor Executive order, or an 
individual who is being investigated for Federal employment under 
authority of Executive Order No. 10450, or any successor Executive order 
shall follow the procedures specified in Sec.  1327.7
    (2) Upon receipt of the NDR information, the Federal department or 
agency should make information from the State of Record available to the 
individual for review and comment.
    (3) In the case of a match (probable identification), the Federal 
department or agency conducting the personnel security investigation 
should obtain the substantive data relating to the record from the State 
of Record and verify that the person named on the probable 
identification is in fact the individual concerned before using the 
information as the basis for any action against the individual.
    (4) A Federal department or agency that receives information about 
an individual under this section may use such information only for 
purposes of the authorized investigation and only in accordance with 
applicable law.
    (i) Third parties. If a third party is used by any of the above 
authorized users to request the NDR check, both the individual concerned 
and an authorized representative of the authorized user organization 
shall sign a written consent authorizing the third party to act in this 
role. The written consent must:
    (1) State that NDR records are to be released;
    (2) State as specifically as possible who is authorized to request 
the records, and that such party is not authorized to receive NDR 
information;
    (3) Be signed and dated by the individual (or legal representative 
as appropriate) and an authorized representative of the authorized user 
organization;
    (4) Specifically state that the request authorization is valid for 
only one search of the NDR; and
    (5) Specifically state that the NDR identifies probable matches that 
require further inquiry for verification; that it is recommended, but 
not required, that the authorized recipient of the information verify 
matches with the State of Record; and that individuals have the right to 
request records regarding themselves from the NDR to verify their 
accuracy. The third party may not, however, receive the NDR response to 
a file search.
    (j) Individuals. (1) When a check of the NDR is desired by any 
individual in order to determine whether the NDR is disclosing any data 
regarding him or her or the accuracy of such data, or to obtain a copy 
of the data regarding him or her, the individual shall submit his or her 
request to a participating

[[Page 760]]

State in accordance with the procedures established by that State for 
this purpose.
    (2) The individual will be asked to provide the following 
information to the chief driver licensing official in order to establish 
positive identification:
    (i) Full legal name;
    (ii) Other names used (nickname, professional name, maiden name, 
etc.);
    (iii) Month, day and year of birth;
    (iv) Sex;
    (v) Height;
    (vi) Weight;
    (vii) Color of eyes;
    (viii) Driver license number and/or Social Security Number (SSN) 
(provision of SSN is optional);
    (ix) Full address;
    (x) Signature;
    (xi) Proof of identification (acceptable forms of identification are 
driver's license, birth certificate, credit card, employee 
identification card, and other forms of identification normally accepted 
by the State); and
    (xii) Notarization (this is required only if the individual chooses 
to mail the request directly to the NDR).
    (3) Individuals are authorized also, under the Privacy Act of 1974, 
to request such information directly from the NDR.
    (4) Individuals seeking to correct an NDR-maintained record should 
address their request to the chief of the National Driver Register. When 
any information contained in the Register is confirmed by the State of 
Record to be in error, the NDR will correct the record accordingly and 
advise all previous recipients of the information that a correction has 
been made.

[56 FR 41403, Aug. 20, 1991; 56 FR 57255, 57374, Nov. 8, 1991; 62 FR 
27195, May 19, 1997; 62 FR 63657, Dec. 2, 1997; 63 FR 153, Jan. 5, 1998; 
64 FR 19272, Apr. 20, 1999; 70 FR 52299, Sept. 2, 2005]



Sec.  1327.7  Procedures for NDR information requests.

    (a) To initiate an NDR file check, an individual who is employed or 
seeking employment as a motor vehicle operator; who has applied for or 
received an airman's certificate; who is employed or seeking employment 
as a locomotive operator; who holds or has applied for a license, 
certificate of registry, or a merchant mariner's document or is an 
officer, chief warrant officer, or enlisted member of the U.S. Coast 
Guard or Coast Guard Reserve; or who is seeking employment as pilot with 
an air carrier; or an individual subject to a personnel security 
investigation; shall either:
    (1) Complete, sign and submit a request for an NDR file check 
directly to the chief driver licensing official of a participating State 
in accordance with procedures established by that State for this 
purpose; or
    (2) Authorize, by completing and signing a written consent, the 
authorized NDR user to request a file check through the chief driver 
licensing official of a participating State in accordance with the 
procedures established by that State for this purpose.
    (b) If the authorized NDR user is an employer or prospective 
employer of a motor vehicle operator, the request for an NDR file check 
must be submitted through the chief driver licensing official of the 
State in which the individual is licensed to operate a motor vehicle.
    (c) If the authorized NDR user is the head of a Federal department 
or agency, the request for an NDR file check may be submitted instead 
directly to the NDR in accordance with procedures established by the NDR 
for this purpose.
    (d) The request for an NDR file check or the written consent, 
whichever is used, must:
    (1) State that the NDR records are to be released;
    (2) State as specifically as possible who is authorized to receive 
the records;
    (3) Be signed and dated by the individual (or the individual's legal 
representative as appropriate);
    (4) Specifically state that the authorization is valid for only one 
search of the NDR (or in the case of a personnel security investigation 
state that the authorization is valid only for the duration of the 
investigation); and
    (5) Except for inquiries concerning personnel security 
investigations, specifically state that the NDR identifies probable 
matches that require further

[[Page 761]]

inquiry for verification; that it is recommended, but not required, that 
the employer/prospective employer verify matches with the State of 
Record; and that individuals have the right to request records regarding 
themselves from the NDR to verify their accuracy.

[64 FR 19273, Apr. 20, 1999, as amended at 70 FR 52299, Sept. 2, 2005]



     Sec. Appendix A to Part 1327--Abridged Listing of the American 
 Association of Motor Vehicle Administrators Violations Exchange Code, 
 Used by the NDR for Recording Driver License Denials, Withdrawals, and 
              Convictions of Motor Vehicle-Related Offenses

                                  Code

                      Part I--For Cause Withdrawals

A04 Driving under the influence of alcohol with BAC at or over .04
A08 Driving under the influence of alcohol with BAC at or over .08
A10 Driving under the influence of alcohol with BAC at or over .10
A11 Driving under the influence of alcohol with BAC at or over __ 
(detail field required)
A12 Refused to submit to test for alcohol--Implied Consent Law
A20 Driving under the influence of alcohol or drugs
A21 Driving under the influence of alcohol
A22 Driving under the influence of drugs
A23 Driving under the influence of alcohol and drugs
A24 Driving under the influence of medication not intended to intoxicate
A25 Driving while impaired
A26 Drinking alcohol while operating a vehicle
A31 Illegal possession of alcohol
A33 Illegal possession of drugs (controlled substances)
A35 Possession of open alcohol container
A41 Driver violation of ignition interlock or immobilization device
A50 Motor vehicle used in the commission of a felony involving the 
manufacturing, distributing, or dispensing of a controlled substance
A60 Underage Convicted of Drinking and Driving at .02 or higher BAC
A61 Underage Administrative Per Se--Drinking and Driving at .02 or 
higher BAC
A90 Administrative Per Se for .10 BAC
A94 Administrative Per Se for .04 BAC
A98 Administrative Per Se for .08 BAC
B01 Hit and run--failure to stop and render aid after accident
B02 Hit and run--failure to stop and render aid after accident--Fatal 
accident
B03 Hit and run--failure to stop and render aid after accident--Personal 
injury accident
B04 Hit and run--failure to stop and render aid after accident--Property 
damage accident
B05 Leaving accident scene before police arrive
B06 Leaving accident scene before police arrive--Fatal accident
B07 Leaving accident scene before police arrive--Personal injury 
accident
B08 Leaving accident scene before police arrive--Property damage 
accident
B14 Failure to reveal identity after fatal or personal injury accident
B19 Driving while out of service order is in effect and transporting 16 
or more passengers including the driver and/or transporting hazardous 
materials that require a placard
B20 Driving while license withdrawn
B21 Driving while license barred
B22 Driving while license canceled
B23 Driving while license denied
B24 Driving while license disqualified
B25 Driving while license revoked
B26 Driving while license suspended
B27 General, driving while an out of service order is in effect (for 
violations not covered by B19)
B41 Possess or provide counterfeit or altered driver license (includes 
DL, CDL, and Instruction Permit) or ID
B51 Expired or no driver license (includes DL, CDL, and Instruction 
Permit)
B56 Driving a CMV without obtaining a CDL
B63 Failed to file future proof of financial responsibility
B91 Improper classification or endorsement on driver license (includes 
DL, CDL, and Instruction Permit)
D02 Misrepresentation of identity or other facts on application for 
driver license (includes DL, CDL, and Instruction Permit)
D06 Misrepresentation of identity or other facts to obtain alcohol
D07 Possess multiple driver licenses (includes DL, CDL, and Instruction 
Permit)
D16 Show or use improperly--Driver license (includes DL, CDL, and 
Instruction Permit)
D27 Violate limited license conditions
D29 Violate restrictions of driver license (includes DL, CDL, and 
Instruction Permit)
D35 Failure to comply with financial responsibility law
D38 Failure to post security or obtain release from liability
D39 Unsatisfied judgment
D45 Failure to appear for trial or court appearance

[[Page 762]]

D53 Failure to make required payment of fine and costs
D56 Failure to answer a citation, pay fines, penalties and/or costs 
related to the original violation
D72 Inability to control vehicle
D74 Operating a motor vehicle improperly because of drowsiness
D75 Operating a motor vehicle improperly due to physical or mental 
disability
D78 Perjury about the operation of a motor vehicle
E03 Operating without HAZMAT safety equipment as required by law
F02 Child or youth restraint not used properly as required
F03 Motorcycle safety equipment not used properly as required
F04 Seat belt not used properly as required
F05 Carrying unsecured passengers in open area of vehicle
F06 Improper operation of or riding on a motorcycle
M09 Failure to obey railroad crossing restrictions
M10 For all drivers, failure to obey a traffic control device or the 
directions of an enforcement official at a railroad-highway grade 
crossing
M20 For drivers who are not required to always stop, failure to slow 
down at a railroad-highway grade crossing and check that tracks are 
clear of approaching train
M21 For drivers who are not required to always stop, failure to stop 
before reaching tracks at a railroad-highway grade crossing when the 
tracks are not clear
M22 For drivers who are always required to stop, failure to stop as 
required before driving onto railroad-highway grade crossing
M23 For all drivers, failing to have sufficient space to drive 
completely through the railroad-highway grade crossing without stopping
M24 For all drivers, failing to negotiate a railroad-highway grade 
crossing because of insufficient undercarriage clearance
M80 Reckless, careless, or negligent driving
M81 Careless driving
M82 Inattentive driving
M83 Negligent driving
M84 Reckless driving
S01 01-05 Speed limit (detail optional)
S06 06-10 Speed limit (detail optional)
S15 Speeding 15 mph or more above speed limit (detail optional)
S16 16-20 Speed limit (detail optional)
S21 21-25 Speed limit (detail optional)
S26 26-30 Speed limit (detail optional)
S31 31-35 Speed limit (detail optional)
S36 36-40 Speed limit (detail optional)
S41 41 + Speed limit (detail optional)
S51 01-10 Speed limit (detail optional)
S71 21-30 Speed limit (detail optional)
S81 31-40 Speed limit (detail optional)
S91 41 + Speed limit (detail optional)
S92 Speeding--Speed limit and actual speed (detail required)
S93 Speeding
S94 Prima Facie speed violation or driving too fast for conditions
S95 Speed contest (racing) on road open to traffic
S97 Operating at erratic or suddenly changing speeds
U01 Fleeing or evading police or roadblock
U02 Resisting arrest
U03 Using a motor vehicle in connection with a felony (not traffic 
offense)
U05 Using a motor vehicle to aid and abet a felon
U06 Vehicular assault
U07 Vehicular homicide
U08 Vehicular manslaughter
U09 Negligent homicide while operating a CMV
U10 Causing a fatality through the negligent operation of a CMV
U31 Violation resulting in fatal accident
W01 Accumulation of convictions (including point systems and/or being 
judged a habitual offender or violator)
W14 Physical or mental disability
W20 Unable to pass DL test(s) or meet qualifications
W30 Two serious violations within three years
W31 Three serious violations within three years
W40 The accumulation of two or more major offenses
W41 An additional major offense after reinstatement
W50 The accumulation of two out-of-service order general violations 
(violations not covered by W51) within ten years
W51 The accumulation of two out-of-service order violations within ten 
years while transporting 16 or more passengers, including the driver 
and/or transporting hazardous materials that require a placard
W52 The accumulation of three or more out-of-service order violations 
within ten years
W60 The accumulation of two RRGC violations within three years.
W61 The accumulation of three or more RRGC violations within three 
years.
W70 Imminent hazard

                          Part II--Convictions

A04 Driving under the influence of alcohol with BAC at or over .04
A08 Driving under the influence of alcohol with BAC at or over .08
A10 Driving under the influence of alcohol with BAC at or over .10
A11 Driving under the influence of alcohol with BAC at or over__ (detail 
field required)
A12 Refused to submit to test for alcohol--Implied Consent Law

[[Page 763]]

A20 Driving under the influence of alcohol or drugs
A21 Driving under the influence of alcohol
A22 Driving under the influence of drugs
A23 Driving under the influence of alcohol and drugs
A24 Driving under the influence of medication not intended to intoxicate
A25 Driving while impaired
A26 Drinking alcohol while operating a vehicle
A31 Illegal possession of alcohol
A33 Illegal possession of drugs (controlled substances)
A35 Possession of open alcohol container
A41 Driver violation of ignition interlock or immobilization device
A50 Motor vehicle used in the commission of a felony involving the 
manufacturing, distributing, or dispensing of a controlled substance
A60 Underage Convicted of Drinking and Driving at .02 or higher BAC
A61 Underage Administrative Per Se--Drinking and Driving at .02 or 
higher BAC
A90 Administrative Per Se for .10 BAC
A94 Administrative Per Se for .04 BAC
A98 Administrative Per Se for .08 BAC
B01 Hit and run--failure to stop and render aid after accident
B02 Hit and run--failure to stop and render aid after accident--Fatal 
accident
B03 Hit and run--failure to stop and render aid after accident--Personal 
injury accident
B04 Hit and run--failure to stop and render aid after accident--Property 
damage accident
B05 Leaving accident scene before police arrive
B06 Leaving accident scene before police arrive--Fatal accident
B07 Leaving accident scene before police arrive--Personal injury 
accident
B08 Leaving accident scene before police arrive--Property damage 
accident
B14 Failure to reveal identity after fatal or personal injury accident
B19 Driving while out of service order is in effect and transporting 16 
or more passengers including the driver and/or transporting hazardous 
materials that require a placard
B20 Driving while license withdrawn
B21 Driving while license barred
B22 Driving while license canceled
B23 Driving while license denied
B24 Driving while license disqualified
B25 Driving while license revoked
B26 Driving while license suspended
B27 General, driving while an out of service order is in effect (for 
violations not covered by B19)
B41 Possess or provide counterfeit or altered driver license (includes 
DL, CDL, and Instruction Permit) or ID
B51 Expired or no driver license (includes DL, CDL, and Instruction 
Permit)
B56 Driving a CMV without obtaining a CDL
B91 Improper classification or endorsement on driver license (includes 
DL, CDL, and Instruction Permit)
D02 Misrepresentation of identity or other facts on application for 
driver license (includes DL, CDL, and Instruction Permit)
D06 Misrepresentation of identity or other facts to obtain alcohol
D07 Possess multiple driver licenses (includes DL, CDL, and Instruction 
Permit)
D16 Show or use improperly--Driver license (includes DL, CDL, and 
Instruction Permit)
D27 Violate limited license conditions
D29 Violate restrictions of driver license (includes DL, CDL, and 
Instruction Permit)
D72 Inability to control vehicle
D78 Perjury about the operation of a motor vehicle
E03 Operating without HAZMAT safety equipment as required by law
M09 Failure to obey railroad crossing restrictions
M10 For all drivers, failure to obey a traffic control device or the 
directions of an enforcement official at a railroad-highway grade 
crossing
M20 For drivers who are not required to always stop, failure to slow 
down at a railroad-highway grade crossing and check that tracks are 
clear of approaching train.
M21 For drivers who are not required to always stop, failure to stop 
before reaching tracks at a railroad-highway grade crossing when the 
tracks are not clear
M22 For drivers who are always required to stop, failure to stop as 
required before driving onto railroad-highway grade crossing
M23 For all drivers, failing to have sufficient space to drive 
completely through the railroad-highway grade crossing without stopping
M24 For all drivers, failing to negotiate a railroad-highway grade 
crossing because of insufficient undercarriage clearance
M80 Reckless, careless, or negligent driving
M81 Careless driving
M82 Inattentive driving
M83 Negligent driving
M84 Reckless driving
S95 Speed contest (racing) on road open to traffic
U07 Vehicular homicide
U08 Vehicular manslaughter
U09 Negligent homicide while operating a CMV
U10 Causing a fatality through the negligent operation of a CMV
U31 Violation resulting in fatal accident

[70 FR 43756, July 29, 2005]

[[Page 764]]



               Sec. Appendix B to Part 1327--OMB Clearance

    The OMB clearance number of this regulation is OMB 2127-0001.

                          PART 1335 [RESERVED]



PART 1340_UNIFORM CRITERIA FOR STATE OBSERVATIONAL SURVEYS OF SEAT BELT USE--
Table of Contents



                            Subpart A_General

Sec.
1340.1 Purpose.
1340.2 Applicability.
1340.3 Definitions.

                  Subpart B_Survey Design Requirements

1340.4 In general.
1340.5 Selection of observation sites.
1340.6 Assignment of observation times.
1340.7 Observation procedures.
1340.8 Quality control.
1340.9 Computation of estimates.

                  Subpart C_Administrative Requirements

1340.10 Submission and approval of seat belt survey design.
1340.11 Post-approval alterations to survey design.
1340.12 Re-selection of observation sites.
1340.13 Annual reporting requirements.

Appendix A to Part 1340--State Seat Belt Use Survey Reporting Form

    Authority: 23 U.S.C. 402; delegation of authority at 49 CFR 1.50.

    Source: 76 FR 18056, Apr. 1, 2011, unless otherwise noted.



                            Subpart A_General



Sec.  1340.1  Purpose.

    This part establishes uniform criteria for State surveys of seat 
belt use conducted under 23 U.S.C. 402, procedures for NHTSA approval of 
survey designs, and administrative requirements relating to State seat 
belt surveys.



Sec.  1340.2  Applicability.

    This part applies to State surveys of seat belt use beginning in 
calendar year 2013 and continuing annually thereafter. However, a State 
may elect to conduct its calendar year 2012 seat belt use survey using a 
survey design approved under this part.

[77 FR 20551, Apr. 5, 2012]



Sec.  1340.3  Definitions.

    As used in this part--
    Access ramp means the segment of a road that forms a cloverleaf or 
limited access interchange.
    Cul-de-sac means the closed end of a road that forms a loop or turn-
around.
    Non-public road means a road on which members of the general public 
are not allowed to drive motor vehicles.
    Nonresponse rate means, for any survey variable, the percentage of 
unknown values recorded for that variable.
    Observation site means the physical location where survey data are 
collected.
    Passenger motor vehicle means a motor vehicle with a gross vehicle 
weight rating of less than 10,000 pounds, including a passenger car, 
pickup truck, van, minivan or sport utility vehicle.
    Service drive means the segment of a road that provides access to 
businesses and rest areas.
    Traffic circle means the segment of a road or intersection of roads 
forming a roundabout.
    Unnamed road means a road, public or private, that has no name or 
number designation and is often a farm or logging road.
    Vehicular trail means a road designed or intended primarily for use 
by motor vehicles with four-wheel drive.



                  Subpart B_Survey Design Requirements



Sec.  1340.4  In general.

    This subpart sets forth the minimum design requirements to be 
incorporated in surveys conducted under this part.



Sec.  1340.5  Selection of observation sites.

    (a) Sampling frame requirements--(1) County coverage. The sampling 
frame from which observation sites are selected shall include counties 
or county-equivalents (including tribal territories), as defined by the 
U.S. Census Bureau, that account for at least 85 percent of the State's 
passenger vehicle

[[Page 765]]

occupant fatalities, provided that the average of the last three, four 
or five years, at the State's option, of available Fatality Analysis 
Reporting System (FARS) data or State fatality data approved by NHTSA 
shall be used to determine the State's passenger vehicle occupant 
fatalities.
    (2) Road coverage. (i) States shall select observation sites from a 
database of road inventories approved by NHTSA or provided by NHTSA.
    (ii) Except as provided in paragraph (a)(2)(iii) of this section, 
all roads in the State shall be eligible for sampling. The sampling 
frame may not be limited only to roads having a stop sign, stop light or 
State-maintained roads.
    (iii) The sampling frame need not include: rural local roads, as 
classified by the Federal Highway Administration's Functional 
Classification Guidelines, in counties that are not within a 
Metropolitan Statistical Area (MSA), as published by the Office of 
Management and Budget; non-public roads; unnamed roads; unpaved roads; 
vehicular trails; access ramps; cul-de-sacs; traffic circles; or service 
drives.
    (b) Sampling selection requirements. The set of road segments 
selected for observation sites shall be chosen based on probability 
sampling, except that--
    (1) The specific observation site locations on the sampled road 
segments may be deterministically selected;
    (2) An alternate observation site may be used to replace an 
observation site selected based on probability sampling if it is located 
in the same county or county-equivalent, and has the same roadway 
classification (e.g., local road segment, collector road segment) when 
using the protocol of substitution and rescheduling of observation sites 
pursuant to paragraph (c) of this section.
    (c) Requirements for substitution and rescheduling of observation 
sites. The survey design shall include at a minimum the following 
protocols:
    (1) Protocol when observation site is temporarily unavailable for 
data collection. (i) Observers shall return to the observation site at 
another time provided that it is on the same day of the week and at same 
time of the day or select an alternate observation site, as described in 
paragraph (b)(2) of this section, provided the data are collected on the 
same day and at approximately the same time as the originally-scheduled 
observation site.
    (ii) The original observation site must be used for future data 
collections.
    (2) Protocol when observation site is permanently unavailable for 
data collection. (i) Except as provided in paragraph (c)(2)(ii), another 
observation site shall be selected in accordance with paragraph (b) of 
this section.
    (ii) If it is not feasible to select another observation site based 
on probability sampling for the current data collection, an alternate 
observation site, as described in paragraph (b)(2) of this section, may 
be selected, provided the data is collected on the same day and at 
approximately the same time as the originally-scheduled observation 
site.
    (iii) For future data collections, another observation site must be 
selected based on probability sampling in accordance with paragraph (b) 
of this section.
    (d) Precision requirement. The estimated seat belt use rate must 
have a standard error of no more than 2.5 percentage points.



Sec.  1340.6  Assignment of observation times.

    (a) Daylight hours. All daylight hours between 7 a.m. and 6 p.m. for 
all days of the week shall be eligible for inclusion in the sample.
    (b) Random assignment. Except as provided in paragraph (c) of this 
section, the day-of the week and time-of-the-day shall be randomly 
assigned to observation sites.
    (c) Grouping of observation sites in close geographic proximity. 
Observations sites in close geographic proximity may be grouped to 
reduce data collection burdens if:
    (1) The first assignment of an observation site within the group is 
randomly selected; and
    (2) The assignment of other observations sites within the group is 
made in a manner that promotes administrative efficiency and timely 
completion of the survey.

[[Page 766]]



Sec.  1340.7  Observation procedures.

    (a) Data collection dates. All survey data shall be collected 
through direct observation completely within the calendar year for which 
the Statewide seat belt use rate will be reported. Except as provided in 
Sec.  1340.5(c), the survey shall be conducted in accordance to the 
schedule determined in Sec.  1340.6.
    (b) Roadway and direction(s) of observation--(1) Intersections. If 
an observation site is located at an intersection of road segments, the 
data shall be collected from the sampled road segment, not the 
intersecting road segment(s).
    (2) Roads with two-way traffic. If an observation site is located on 
a road with traffic traveling in two directions, one or both directions 
of traffic may be observed, provided that--
    (i) If only one direction of traffic is observed, that direction 
shall be chosen randomly;
    (ii) If both directions of traffic are observed at the same time, 
States shall assign at least one person to observe each direction of 
traffic.
    (c) Vehicle coverage. Data shall be collected by direct observation 
from all passenger motor vehicles, including but not limited to 
passenger motor vehicles used for commercial purposes, passenger motor 
vehicles exempt from the State's seat belt use law and passenger motor 
vehicles bearing out-of-State license plates.
    (d) Occupant coverage. Data shall be collected by direct observation 
of all drivers and right front passengers, including right front 
passengers in booster seats, but excluding right front passengers in 
child safety seats. Observers shall record a person as--
    (1) Belted if the shoulder belt is in front of the person's 
shoulder;
    (2) Unbelted if the shoulder belt is not in front of the person's 
shoulder;
    (3) Unknown if it cannot reasonably be determined whether the driver 
or right front passenger is belted.
    (e) Survey data. At a minimum, the seat belt use data to be 
collected by direct observation shall include--
    (1) Seat belt status of driver;
    (2) Presence of right front passenger; and
    (3) Seat belt status of right front passenger, if present.
    (f) Data collection environment. When collecting seat belt survey 
data--
    (1) Observers shall not wear law enforcement uniforms;
    (2) Police vehicles and persons in law enforcement uniforms shall 
not be positioned at observation sites;
    (3) Communications by signage or any other means that a seat belt 
survey is being or will be conducted shall not be present in the 
vicinity of the observation site.



Sec.  1340.8  Quality control.

    (a) Quality control monitors. Monitors shall conduct random, 
unannounced visits to no less than five percent of the observation sites 
for the purpose of quality control. The same individual shall not serve 
as both the observer and quality control monitor at the same observation 
site at the same time.
    (b) Training. Observers and quality control monitors involved in 
seat belt use surveys shall have received training in data collection 
procedures within the past twelve months. Observers and quality control 
monitors shall be trained in the observation procedures of Sec.  1340.7 
and in the substitution and rescheduling requirements of Sec.  
1340.5(c).
    (c) Statistical review. Survey results shall be reviewed and 
approved by a survey statistician, i.e., a person with knowledge of the 
design of probability-based multi-stage samples, statistical estimators 
from such designs, and variance estimation of such estimators.



Sec.  1340.9  Computation of estimates.

    (a) Data used. Except as otherwise provided in this section, all 
data collected pursuant to Sec.  1340.7(e) shall be used, without 
exclusion, in the computation of the Statewide seat belt use rate, 
standard error, and nonresponse rate.
    (b) Data editing. Known values of data contributing to the Statewide 
seat belt use rate shall not be altered in any manner.
    (c) Imputation. Unknown values of variables shall not be imputed 
unless NHTSA has approved the State's imputation procedure prior to data 
analysis.
    (d) Sampling weights. The estimation formula shall weight observed 
data by the sampling weights as required by

[[Page 767]]

the sample design and any subsequent adjustments.
    (e) Sampling weight adjustments for observation sites with no usable 
data. States shall include a procedure to adjust the sampling weights 
for observation sites with no usable data, including observation sites 
where no data were collected and observation sites where data were 
discovered to be falsified.
    (f) Nonresponse rate. (1) Subject to paragraph (f)(2) of this 
section, the nonresponse rate for the entire survey shall not exceed 10 
percent for the ratio of the total number of recorded unknown values of 
belt use to the total number of drivers and passengers observed.
    (2) The State shall include a procedure for collecting additional 
observations in the same calendar year of the survey to reduce the 
nonresponse rate to no more than 10 percent if the nonresponse rate in 
paragraph (f)(1) of this section exceeds 10 percent.
    (g) Variance estimation. (1) Subject to paragraph (g)(2) of this 
section, the estimated standard error, using the variance estimation 
method in the survey design, shall not exceed 2.5 percentage points.
    (2) If the standard error exceeds this threshold, additional 
observations shall be conducted in the same calendar year of the survey 
until the standard error does not exceed 2.5 percentage points.



                  Subpart C_Administrative Requirements



Sec.  1340.10  Submission and approval of seat belt survey design.

    (a) Contents: The following information shall be included in the 
State's seat belt survey design submitted for NHTSA approval:
    (1) Sample design. The State shall-
    (i) Define all sampling units, with their measures of size, as 
provided in Sec.  1340.5(a);
    (ii) Specify the data source of the sampling frame of road segments 
(observation sites), as provided in Sec.  1340.5(a)(2)(i);
    (iii) Specify any exclusions that have been applied to the sampling 
frame, as provided in Sec.  1340.5(a)(2)(iii);
    (iv) Define what stratification was used at each stage of sampling 
and what methods were used for allocation of the sample units to the 
strata;
    (v) Specify the method used to select the road segments for 
observation sites as provided by Sec.  1340.5(b).
    (vi) List all observation sites and their probabilities of 
selection;
    (vii) Explain how the sample sizes were determined, as provided in 
Sec.  1340.5(d);
    (viii) Describe how observation sites were assigned to observation 
time periods, as provided in Sec.  1340.6; and
    (ix) Identify the name and describe the qualifications of the State 
survey statistician meeting the requirements in Sec.  1340.8(c).
    (2) Data collection. The State shall--
    (i) Define an observation period;
    (ii) Specify the procedures to be implemented to reschedule or 
substitute observation sites when data collection is not possible on the 
date and time assigned, as provided in Sec.  1340.5(c);
    (iii) Specify the procedures for collecting additional data to 
reduce the nonresponse rate, as provided in Sec.  1340.9(f)(2);
    (iv) Describe the data recording procedures; and
    (v) Specify the number of observers and quality control monitors.
    (3) Estimation. The State shall--
    (i) Describe how seat belt use rate estimates will be calculated;
    (ii) Describe how variances will be estimated, as provided in Sec.  
1340.9(g);
    (iii) Specify imputation methods, if any, that will be used, as 
provided in Sec.  1340.9(c);
    (iv) Specify the procedures to adjust sampling weight for 
observation sites with no usable data, as provided in Sec.  1340.9(e); 
and
    (v) Specify the procedures to be followed if the standard error 
exceeds 2.5 percentage points, as required in Sec.  1340.5(g).
    (b) Survey design submission deadline. For calendar year 2012, 
States shall submit proposed survey designs to NHTSA for approval no 
later than January 3, 2012. Thereafter, States should submit survey 
designs for NHTSA approval as specified in Sec.  1340.11.

[[Page 768]]



Sec.  1340.11  Post-approval alterations to survey design.

    After NHTSA approval of a survey design, States shall submit for 
NHTSA approval any proposed alteration to their survey design, 
including, but not limited to, sample design, seat belt use rate 
estimation method, variance estimation method and data collection 
protocols, at least three months before data collection begins.



Sec.  1340.12  Re-selection of observation sites.

    (a) Re-selection of observation sites. States shall re-select 
observation sites using updated sampling frame data, as described in 
Sec.  1340.5(a), no less than once every five years.
    (b) Re-selection submission deadline. States shall submit updated 
sampling frame data meeting the requirements of Sec.  1340.5(a) for 
NHTSA approval no later than March 1 of the re-selection year.



Sec.  1340.13  Annual reporting requirements.

    (a) Survey data. States shall report the following information no 
later than March 1 of each year for the preceding calendar year's seat 
belt use survey, using the reporting form in appendix A to this part:
    (1) Spreadsheet in electronic format containing the raw data for 
each observation site and the observation site weight;
    (2) Statewide seat belt use rate estimate and standard error;
    (3) Nonresponse rate for the variable ``belt use,'' as provided in 
Sec.  1340.9(f);
    (4) Dates of the reported data collection;
    (5) Observation sites, identified by type of observation site (i.e., 
observation site selected in the original survey design, alternate 
observation site selected subsequent to the original survey design), and 
by characteristics of the observation site visit (i.e., at least one 
vehicle observed, no vehicles observed); and
    (6) Name of the State survey statistician meeting the qualification 
requirements, as provided in Sec.  1340.8(c).
    (b) Certifications by Governor's Highway Safety Representative. The 
Governor's Highway Safety Representative (GR) or if delegated in 
writing, the Coordinator of the State Highway Safety Office, shall sign 
the reporting form certifying that--
    (1) ________has been designated by the Governor as the GR, and if 
applicable, the GR has delegated the authority to sign the certification 
in writing to ________, the Coordinator of the State Highway Safety 
Office;
    (2) The reported Statewide seat belt use rate is based on a survey 
design that was approved by NHTSA, in writing, as conforming to the 
Uniform Criteria for State Observational Surveys of Seat Belt Use, 23 
CFR Part 1340;
    (3) The survey design has remained unchanged since the survey was 
approved by NHTSA; and
    (4) ________, a qualified survey statistician, reviewed the seat 
belt use rate reported in Part A (of the certification) and information 
reported in Part B and has determined that they meet the Uniform 
Criteria for State Observational Surveys of Seat Belt Use, 23 CFR part 
1340.
    (c) [Reserved]
    (d) Audits. NHTSA may audit State survey results and data 
collection. The State shall retain the following records for five years 
and make them available to NHTSA in electronic format within four weeks 
of request:
    (1) Computation programs used in the sample selection;
    (2) Computation programs used to estimate the Statewide seat belt 
use rate and standard errors for the surveys conducted since the last 
NHTSA approval of the sample design; and
    (3) Sampling frame(s) for design(s) used since the last NHTSA 
approval of the sample design.





 Sec. Appendix A to Part 1340--State Seat Belt Use Survey Reporting Form

    PART A: To be completed by the Governor's Highway Safety 
Representative (GR) or if applicable, the Coordinator of the State 
Highway Safety Office.
 State:_________________________________________________________________
 Calendar Year of Survey:_______________________________________________
 Statewide Seat Belt Use Rate:__________________________________________
    I hereby certify that:
     ________has been designated by the Governor as 
the State's Highway Safety

[[Page 769]]

Representative (GR), and if applicable, the GR has delegated the 
authority to sign the certification in writing to _________, the 
Coordinator of the State Highway Safety Office.
     The reported Statewide seat belt use rate is 
based on a survey design that was approved by NHTSA, in writing, as 
conforming to the Uniform Criteria for State Observational Surveys of 
Seat Belt Use, 23 CFR Part 1340.
     The survey design has remained unchanged since 
the survey was approved by NHTSA.
     ________, a qualified survey statistician, has 
reviewed the seat belt use rate reported above and information reported 
in Part B and has determined that they meet the Uniform Criteria for 
State Observational Surveys of Seat Belt Use, 23 CFR Part 1340.
________________________________________________________________________
Signature

________________________________________________________________________
Date

________________________________________________________________________
Printed name of signing official

                                   Part B--Data Collected at Observation Sites
----------------------------------------------------------------------------------------------------------------
                                                                                                       Number of
                                                            Number    Number of  Number of  Number of  occupants
          Site ID           Site type    Date     Sample      of        front    occupants  occupants     with
                               \1\     observed   weight    drivers  Passengers     \2\      unbelted   unknown
                                                                                   belted               belt use
----------------------------------------------------------------------------------------------------------------
                            .........  ........  ........  ........  ..........  .........  .........
                            .........  ........  ........  ........  ..........  .........  .........
                            .........  ........  ........  ........  ..........  .........  .........
                            .........  ........  ........  ........  ..........  .........  .........
                           -------------------------------------------------------------------------------------
Total.....................  .........  ........  ........  ........  ..........  .........  .........  .........
----------------------------------------------------------------------------------------------------------------

    Standard Error of Statewide Belt Use Rate \3\___
---------------------------------------------------------------------------

    \1\ Identify if the observation site is an original observation site 
or an alternate observation site.
    \2\ Occupants refer to both drivers and passengers.
    \3\ The standard error may not exceed 2.5 percent.
---------------------------------------------------------------------------

    Nonresponse Rate, as provided in Sec.  1340.9(f)
    Nonresponse rate for the survey variable seat belt use: ____

                       PARTS 1345	1399 [RESERVED]

[[Page 771]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids Volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 773]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2022)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 774]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 775]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 776]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Parts 10100--10199)
       CII  U.S. Office of Special Counsel (Parts 10200--10299)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 777]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 778]]

         L  Rural Business-Cooperative Service, and Rural 
                Utilities Service, Department of Agriculture 
                (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Fair Trade Practices 
                Program), Department of Agriculture (Parts 200--
                299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999) [Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)

[[Page 779]]

        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 780]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
        XV  Office of the Under-Secretary for Economic Affairs, 
                Department of Commerce (Parts 1500--1599)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 781]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 782]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799) 
                [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]

[[Page 783]]

        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)

[[Page 784]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance

[[Page 785]]

         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. Lawrence Seaway Development 
                Corporation, Department of Transportation (Parts 
                400--499)

[[Page 786]]

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)

[[Page 787]]

       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 788]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Federal Acquisition Supply Chain Security
       201  Federal Acquisition Security Council (Part 201)
            Subtitle E [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 789]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

[[Page 790]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)

[[Page 791]]

        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 792]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 793]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2022)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 794]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Affairs, Office of the Under-          15, XV
       Secretary for
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I

[[Page 795]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Office of the Under-Secretary   15, XV
     for
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV

[[Page 796]]

Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Acquisition Security Council              41, 201
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Permitting Improvement Steering Council   40, IX
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 797]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes St. Lawrence Seaway Development       33, IV
     Corporation
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 798]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Environmental Enforcement, Bureau    30, II
       of
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Federal Acquisition Regulation                  48, 29

[[Page 799]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II

[[Page 800]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of          32, XXIV; 47, II
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI

[[Page 801]]

  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
Federal Acquisition Security Council              41, 201
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
U.S. Office of Special Counsel                    5, CII
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 803]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2017 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2017

23 CFR
                                                                   82 FR
                                                                    Page
Chapter I
450.104 Amended....................................................56542
450.208 (a)(1) revised.............................................56542
450.218 (b) amended................................................56543
450.226 (g) removed................................................56543
450.300 (a) revised; (b) amended...................................56543
450.306 (d)(5) removed; (i) revised................................56543
450.310 (e) and (m) introductory text revised......................56543
450.312 Revised....................................................56543
450.314 Revised....................................................56544
450.316 (b) introductory text, (c) and (d) amended.................56544
450.324 (c) removed; (d) through (n) redesignated as (c) through 
        (m); (a), new (c), new (d), new (e), new (f)(10), new 
        (11)(iv), new (g) introductory text, new (j), new (k) and 
        new (m) amended............................................56544
450.326 (a) revised; (b), (j) and (p) amended......................56545
450.328 Amended....................................................56545
450.330 (a) and (c) amended........................................56545
450.332 (b) and (c) amended........................................56545
450.334 (a) and (c) amended........................................56545
450.336 (b)(1)(i), (ii) and (2) amended............................56545
450.340 (a) amended; (h) removed...................................56545
490 Technical correction...........................................25726
490.101--490.111 (Subpart A) Revised..........................5957, 6031
    Regulations at 82 FR 5957 and 6031 eff. date delayed to 3-21-
17.................................................................10441
    Regulations at 82 FR 5957 and 6031 eff. date further delayed 
to 5-20-17.........................................................14438
490.105 Regulation at 82 FR 6031 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6031 eff. date confirmed...................45179
490.107 Regulation at 82 FR 6031 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6031 eff. date confirmed...................45179
490.109 Regulation at 82 FR 6031 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6031 eff. date confirmed...................45179
490.301--490.319 (Subpart C) Added..................................5962
    Regulation at 82 FR 5962 eff. date delayed to 3-21-17..........10441
    Regulation at 82 FR 5962 eff. date further delayed to 5-20-17 
                                                                   14438
490.401--490.413 (Subpart D) Added..................................5968

[[Page 804]]

    Regulation at 82 FR 5968 eff. date delayed to 3-21-17..........10441
    Regulation at 82 FR 5968 eff. date further delayed to 5-20-17 
                                                                   14438
490.501--490.513 (Subpart E) Added..................................6042
    Regulation at 82 FR 6042 eff. date delayed to 3-21-17..........10441
    Regulation at 82 FR 6042 eff. date further delayed to 5-20-17 
                                                                   14438
490.503 Regulation at 82 FR 6042 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6042 eff. date confirmed...................45179
490.505 Regulation at 82 FR 6042 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6042 eff. date confirmed...................45179
490.507 Regulation at 82 FR 6042 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6042 eff. date confirmed...................45179
490.509 Regulation at 82 FR 6042 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6042 eff. date confirmed...................45179
490.511 Regulation at 82 FR 6042 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6042 eff. date confirmed...................45179
490.513 Regulation at 82 FR 6042 eff. date delayed in part 
        indefinitely...............................................22879
    Regulation at 82 FR 6042 eff. date confirmed...................45179
490.601--490.613 (Subpart F) Added..................................6044
    Regulation at 82 FR 6044 eff. date delayed to 3-21-17..........10441
    Regulation at 82 FR 6044 eff. date further delayed to 5-20-17 
                                                                   14438
490.701--490.713 (Subpart G) Added..................................6045
    Regulation at 82 FR 6045 eff. date delayed to 3-21-17..........10441
    Regulation at 82 FR 6045 eff. date further delayed to 5-20-17 
                                                                   14438
490.801--490.811 (Subpart H) Added..................................6049
    Regulation at 82 FR 6049 eff. date delayed to 3-21-17..........10441
    Regulation at 82 FR 6049 eff. date further delayed to 5-20-17 
                                                                   14438

                                  2018

23 CFR
                                                                   83 FR
                                                                    Page
Chapter I
490.105 (c)(5) and (d)(1)(v) removed...............................24936
490.107 (b)(1)(ii)(H), (2)(ii)(J), (3)(ii)(I), and (c)(4) removed 
                                                                   24936
490.109 (d)(1)(v) and (f)(1)(v) removed; (d)(1)(vi) revised........24936
490.503 (a)(2) removed.............................................24936
490.505 Amended....................................................24936
490.507 Introductory text amended; (b) removed.....................24936
490.509 (f), (g), and (h) removed..................................24936
490.511 (a)(2), (c), (d), and (f) removed..........................24936
490.513 (d) removed................................................24936
625.4 Introductory text removed; (a)(2), (b)(2) through (5), (7), 
        (c)(2), (3), (d) introductory text, (1)(ii), (iv), (v), 
        (vii), (viii), and (2) introductory text revised; 
        (d)(1)(ix) and (x) added...................................54880
658 Appendix A amended.............................................30335
658 Appendix C amended.............................................49488
710.603 (a) amended................................................21710
771 Revised........................................................54493
774 Authority citation revised.....................................54506
774.3 Footnote 1 revised...........................................54506
774.11 (i) revised.................................................54506
774.13 (a), (e), and (g) introductory text revised.................54507
774.15 (f)(2) revised..............................................54507
774.17 Amended.....................................................54507
Chapter III
1300 Revised........................................................3482

                                  2019

23 CFR
                                                                   84 FR
                                                                    Page
Chapter I
35.3 Amended........................................................9959
103.6 (a)(1) and (2) amended........................................9959
127.10 (a)(1)(i), (ii), and (iii) amended...........................9959
138.400 Amended.....................................................9959
635.411 Revised....................................................51028
652 Removed........................................................53601
658 Authority citation amended.....................................43688

[[Page 805]]

658 Appendix C amended.............................................43688

                                  2020

23 CFR
                                                                   85 FR
                                                                    Page
Chapter I
630 Authority citation revised.....................................72931
630.102--630.112 (Subpart A) revised; interim......................72931
630.106 (a)(1) amended; (a)(9) added; interim......................72931
630.112 (c)(3) and (4) revised.....................................72931
630.205 (d) and (e) revised........................................72931
635 Nomenclature change; interim...................................72931
635.102 Amended; interim...........................................72931
635.104 (e) added; interim.........................................72931
635.107 (b) revised; interim.......................................72931
635.109 (d) added; interim.........................................72931
635.110 (e) revised; (f) amended; interim..........................72931
635.112 (g) revised; (k) added; interim............................72932
635.114 (m) added; interim.........................................72932
635.118 Amended; interim...........................................72932
635.123 (b) amended; interim.......................................72932
635.309 (q) added; interim.........................................72932
635.601--635.606 (Subpart F) Added; interim........................72932
773.117 (a)(2) revised; (a)(3) added...............................84226
778 Added..........................................................84226

                                  2021

23 CFR
                                                                   86 FR
                                                                    Page
Chapter I
645 Authority citation revised.....................................68559
645.301--645.309 (Subpart C) Added.................................68559

                                  2022

   (Regulations published from January 1, 2022, through April 1, 2022)

23 CFR
                                                                   87 FR
                                                                    Page
Chapter I
1.28 Correction: Removed...........................................10305
625 Authority citation revised........................................40
625.2 (b) amended.....................................................40
625.3 (a) and (f) revised; (b) heading, (c) heading, (d) heading, 
        (e) heading added.............................................41
625.4 (a)(1), (3), (b)(6), (7), (c), (d)(1), and (2) revised; 
        (b)(9) and (e) heading added; (d) introductory text 
        amended.......................................................41


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