[Federal Register Volume 60, Number 126 (Friday, June 30, 1995)]
[Notices]
[Pages 34315-34320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16103]



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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. 94-29]


Exemption Criteria for Highway Sanctions

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed policy statement; request for comments.

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SUMMARY: The purpose of this document is to propose a policy which 
would: govern the exemption criteria that would be used to determine 
which projects could advance if the Environmental Protection Agency 
(EPA) imposes highway sanctions in accordance with section 179(a) or 
section 110(m) of the CAA, in conjunction with EPA regulations 
published in the Federal Register on January 11, 1994, and August 4, 
1994; define the requirements which establish the basis for project 
exemptions; and describe and clarify the types of projects and programs 
which are exempt. The FHWA requests comments on the proposed policy.

DATES: Comments should be received by August 29, 1995.

ADDRESSES: Submit written, signed comments to FHWA Docket 94-29, 
Federal Highway Administration, Room 4232, HCC-10, Office of Chief 
Counsel, 400 Seventh Street, SW., Washington DC 20590. All comments 
received will be available for examination at the above address between 
8:30 a.m. and 4:15 p.m., e.t., Monday through Friday, except Federal 
holidays. Those desiring notification of receipt of comments must 
include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Ms. Lucy Garliauskas, Office of 
Environment and Planning, (202) 366-2068, or Mr. Reid Alsop, Office of 
Chief Counsel, (202) 366-1372, FHWA. Office hours are from 7:45 a.m. to 
4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: This policy statement proposes criteria and 
offers clarification on the types of projects (``exempt projects'') 
listed in section 179(b)(1) of the Clean Air Act (CAA) as amended in 
1990 (42 U.S.C. 7509(b)(1)), that may continue to advance while an area 
is subject to highway funding sanctions. Under section 179(b) and 
section 110(m) of the CAA, the EPA Administrator may impose a 
prohibition on project approvals and grants made under title 23, United 
States Code, by the Secretary of Transportation (``highway 
sanctions''). The descriptions of exempt projects contained within this 
document would apply equally to sanctions applied under section 179(a) 
(``mandatory sanctions'') or section 110(m) (``discretionary 
sanctions''). Section 110(m) contemplates circumstances under which EPA 
may extend highway sanctions to areas not designated as 
``nonattainment''. Hence, 

[[Page 34316]]
the information contained in this notice applies to attainment, 
nonattainment, and unclassifiable areas.
    As of this date EPA has published two final rules related to 
sanctions. A final rule was published in the Federal Register on 
January 11, 1994, entitled, ``Criteria for Exercising Discretionary 
Sanctions under Title I of the Clean Air Act'' (59 FR 1476). It 
establishes criteria to guide EPA's decision on whether, in a specific 
circumstance, to impose discretionary sanctions on a statewide basis 
under section 110(m).
    A second regulation, ``Selection of Sequence of Mandatory Sanctions 
for Findings Made Pursuant to Section 179 of the Clean Air Act,'' was 
published on August 4, 1994 (59 FR 39832). This regulation establishes 
that, following section 179(a) findings, the 2-to-1 offset sanction on 
new or modified major stationary sources applies first, 18 months after 
the finding (except where EPA reverses the order through a separate 
rulemaking), unless EPA has determined that the State corrected the 
deficiency that prompted the finding. Highway sanctions apply second, 
six months after application of the offset sanction, unless EPA has 
determined that the State corrected the deficiency that prompted the 
finding.
    Those two final rules (and this proposed policy statement, if made 
final) effectively supersede the joint DOT/EPA Federal Register notice 
of April 10, 1980 (45 FR 24692), ``Federal Assistance Limitation 
Required by section 176(a) of the Clean Air Act.'' The EPA also expects 
to publish another regulation that would establish the sequence of 
sanctions applied under section 502(d)(2)(B) of the Clean Air Act 
relating to the EPA's permit program.
    The proposed policy seeks to clarify the types of projects which 
are exempt from sanctions and to establish criteria that are uniformly 
applied when determining which programs and projects are exempt from 
highway sanctions. The proposed policy gives recognition to the 
respective roles and responsibilities of the FHWA and the EPA in 
applying funding and program/project approval limitations under section 
179(b)(1), when the highway sanction is imposed under section 179(a) or 
section 110(m) of the CAA of 1990.
    The policy would be nationally applicable. Although FHWA would 
consult with EPA to determine whether projects meet the exemption 
criteria set forth in this proposed policy, the final authority to 
determine whether a project is exempt from highway sanctions under the 
safety exemption criteria and seven congressionally authorized 
activities is the responsibility of the Secretary of Transportation, as 
delegated to the FHWA. Other transportation related projects, not 
covered under the aforementioned exemptions, are not exempt unless the 
EPA Administrator, in consultation with the Secretary of 
Transportation, finds that they will improve air quality and not 
contribute to increased single occupancy vehicle (SOV) capacity.
    A number of stand-alone projects which do not affect air quality 
but have other environmentally beneficial impacts are not specifically 
exempt from sanctions by the CAA. These projects may improve water 
quality, mitigate wetland impacts, provide landscaping, preserve 
historic structures, reduce noise, and have other aesthetic benefits. 
While the proposed policy statement would not exempt these projects, 
FHWA requests comments as to whether the following types of projects 
should be exempt from highway sanctions because of their de minimis 
impact on air quality. These activities are generally exempted from the 
CAA transportation conformity requirements (see 40 CFR Secs. 51.460 and 
93.134). Comments should include a discussion of the basis for the 
commentor's position in favor of, or against, such an exemption. FHWA 
would consult further with EPA before granting such an exemption.
    The projects for which exemption status is being considered 
include:

    1. Wetland mitigation;
    2. Planting trees, shrubs, wildflowers;
    3. Landscaping;
    4. Purchase of scenic easements;
    5. Billboard and other sign removal;
    6. Historic preservation;
    7. Transportation enhancements; and
    8. Noise abatement.

Requirements which Establish the Basis for Highway Sanctions 
Exemptions

    The Secretary of Transportation may make certain project approvals 
and award grants, even while the nonattainment area or State is under 
highway sanctions. As stated in section 179(b)(1) of the CAA, safety 
projects could go forward provided the Secretary of Transportation 
determines that, based on accident or other data, the principal purpose 
of the project is an improvement in safety to resolve a demonstrated 
safety problem and will likely result in a significant reduction in or 
avoidance of accidents.
    In addition to safety projects, section 179(b)(1) specifically 
exempted seven activities from highway sanctions. Projects that the EPA 
Administrator, in consultation with the Secretary of Transportation, 
determines would contribute to air quality improvement and would not 
encourage SOV capacity are also exempted. Programs and projects which 
are allowed to go forward under section 179(b)(1) should strive to 
avoid increasing or relocating emissions and congestion rather than 
simply reducing them.

Safety Program/Project Requirements Under 23 U.S.C.

    Several programs have been established under title 23, U.S.C., 
expressly for the purpose of addressing safety objectives, either 
through programs targeted at driver behavior or safety projects 
intended to remediate structures, facilities, or prevent loss of human 
life. These programs include the:

    (1) Highway Safety Improvement Program as defined under 23 CFR 
Part 924;
    (2) the Highway Bridge Replacement and Rehabilitation Program as 
defined under 23 CFR Part 650, Subpart D; and
    (3) grant programs whose principal purpose is to improve safety 
and which do not include any capital improvements, including all 
programs established in Chapter I or IV or 23 U.S.C. that are 
administered by the National Highway Traffic Safety Administration 
(NHTSA).

    Additionally, the Transportation Management and Monitoring Systems 
defined under 23 CFR Part 500 (58 FR 63475, December 1, 1993), defined 
data requirements for six management systems and the Traffic Monitoring 
System. The requirements set forth in the management systems are being 
phased in and, with the exception of the pavement and bridge management 
systems, will be fully operational by October 1, 1996. The pavement and 
bridge management systems are required to be fully operational by 
October 1, 1997, and October 1, 1998, respectively. These requirements, 
as applied to the safety and bridge management systems, will yield 
additional information and data needed to support highway sanction 
exemptions as specified in section 179(b)(1) of the CAA. This 
information may be used to supplement existing data or, as it is 
developed, may improve existing data or information currently 
available.
    Programs or projects stemming from the following provisions could 
be exempt on the basis of an established safety-related project need 
meeting section 179(b) requirements. Title 23 of the Code of Federal 
Regulations (April 1, 1994) sets forth the requirements for eligibility 
for Federal funding for projects under the Highway Safety Improvement 
Program (23 CFR Part 924) and the Highway Bridge Replacement and 
Rehabilitation Program (23 CFR Part 

[[Page 34317]]
650, Subpart D) and programs administered by NHTSA (Chapters II and III 
of 23 CFR). These programs have been established with the purpose of 
addressing safety objectives and may be used to establish justification 
for the safety exemptions under the CAA if the section 179(b) 
requirements and those of this policy are fully met.

1. Highway Safety Improvement Program (23 CFR Part 924).

    The Highway Safety Improvement Program requires each State to 
develop and implement a program which has as its goal reducing the 
number and severity of accidents and decreasing the potential for 
accidents on all highways. The program is to be continuous and its 
components consist of planning, implementation, and evaluation of 
safety programs and projects.
    The implementation of the highway safety improvement program is 
subject to procedures set forth in 23 CFR Part 630, Subpart A, Federal-
aid Programs Approval and Project Authorization, and the priorities 
developed in conjunction with 23 CFR Part 924, section 924.9-Planning.
    The planning components of the program shall incorporate a process 
for collecting and maintaining a record of accident data; a process for 
analyzing available data to identify hazardous locations on the basis 
of accident experience or accident potential; a process for conducting 
engineering studies to develop highway safety improvements; and 
projects considering the potential reduction in the number and severity 
of accidents.

2. The Highway Bridge Replacement and Rehabilitation Program.

    This program is administered in accordance with 23 U.S.C. 144. 
Eligible work under this program includes the total replacement of a 
structurally deficient or functionally obsolete bridge, a nominal 
amount of approach work sufficient to connect the bridge to the roadway 
or major work required to restore the structural integrity of a bridge 
as well as work necessary to correct major safety defects. Bridge 
projects eligible for funding under the bridge replacement and 
rehabilitation program must be supported by bridge inventory data and 
evaluation of the bridge inventory.
     Projects are submitted by the State to the FHWA in accordance with 
23 CFR part 630, Subpart A, Federal-aid Programs Approval and 
Authorization. Priority considerations will be given to those projects 
which will remove from service those highway bridges most in danger of 
failure.
3. Highway Safety Programs Administered by NHSTA.

    The National Highway Traffic Safety Administration (NHTSA) 
administers (independently, jointly, or cooperatively with other 
Federal agencies) programs whose principal purpose is to improve 
highway safety and which do not include any capital improvements. Under 
these programs, the agency awards either grants, contracts, or 
cooperative agreements. These programs include, but are not limited to, 
programs authorized under chapter IV of title 23, U.S.C., such as:
    Section 402, Highway Safety Programs, under which the agency 
promulgates guidelines and awards grants to States having approved 
highway safety programs designed to reduce traffic accidents and 
deaths, injuries and property damage;
    Section 403, Highway Safety Research and Development, under which 
the agency engages in research on all phases of highway safety and 
traffic conditions and other related research and development 
activities which will promote highway safety;
    Section 408, Alcohol Traffic Safety Programs, and section 410, 
Alcohol Impaired Driving Countermeasures, under which the agency makes 
grants to States which adopt and implement effective programs to reduce 
traffic safety problems resulting from persons driving while under the 
influence of alcohol or a controlled substance.
    NHTSA programs also include, but are not limited to, programs 
authorized under Chapter I of title 23, U.S.C., such as:
    Section 153, Use of Safety Belts and Motorcycle Helmets, under 
which the agency has made grants to States with effective safety belt 
and motorcycle helmet use laws and under which States are subject to 
the transfer of certain highway construction funds to section 402 
programs for not having such laws in effect;
    Section 154, National Maximum Speed Limit, under which States are 
subject to the transfer of certain highway construction funds to 
section 402 programs for noncompliance with the National Maximum Speed 
Limit requirements.

4. ISTEA Management Systems

    Section 1034 of the ISTEA amended title 23, United States Code, by 
adding section 303, Management Systems. Section 303 requires State 
development, establishment, and implementation of a system for managing 
each of the following: 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). An interim final rule (IFR) for these systems was published on 
December 1, 1993, as 23 CFR part 500. The IFR allows for a phase-in of 
the management systems ranging over the next several years.
    While each of the systems may result in the identification of 
strategies that benefit attainment of the NAAQS, the data available 
from the BMS and SMS would significantly contribute to the 
justification for project exemption for bridge and safety strategies 
identified by these systems.
    The BMS (23 CFR part 500, subpart C), which must be fully 
operational by October 1, 1998, must include a bridge inventory 
database, a procedure for predicting the deterioration of bridge 
elements with or without intervening action, and identification of 
feasible actions to improve bridge condition, safety, and 
serviceability.
    The SMS (23 CFR part 500, subpart D), which must be fully 
operational by October 1, 1996, is to provide information for selecting 
and implementing effective highway safety strategies and projects and 
must include identification of highway safety strategies, actions, 
projects or programs for consideration in development of highway safety 
plans, State enforcement plans, and metropolitan and statewide 
transportation plans and improvement programs.
    The proposed policy for exemption criteria for highway sanctions 
follows:
HIGHWAY SANCTION EXEMPTION CRITERIA POLICY
SUBJECT: Policy for Exemption Criteria to be Used to Determine Which 
Projects Can Advance if the Environmental Protection Agency Imposes the 
Highway Funding Sanction Under section 179(a) or 110(m) of the CAA, as 
Amended in 1990.
FROM: Rodney E. Slater, Federal Highway Administrator U. S. Department 
of Transportation.
MEMO TO: Regional Administrators, Federal Lands Highway Program 
Administrator

    The purpose of this memorandum is to define the exemption criteria 
that will be used to determine which projects can go forward and which 
grants can be awarded in the event the Environmental Protection (EPA) 
Agency imposes highway sanctions under section 179(a) or section 110(m) 
of the Clean Air Act (CAA) of 1990. This policy contains a 

[[Page 34318]]
description of the criteria for exemptions and clarification of the 
types of projects and programs that are exempt. Projects for which 
exemptions can not be granted are also included in this policy 
memorandum.
A. General Description

    Highway sanctions, when applied, halt the approval of projects and 
the award of any grants funded under title 23, United States Code 
(Title 23), except as defined in section 179(b) and this policy. This 
applies to the following major funding programs:
    1. Surface Transportation Program (STP);
    2. National Highway System;
    3. Interstate Maintenance;
    4. Bridges;
    5. Interstate Construction;
    6. Interstate Substitution; and
    7. Congestion Mitigation and Air Quality Improvement Program 
(CMAQ).
    Projects funded under all other Title 23 programs and other 
authorizations are also subject to sanctions, including demonstration 
projects identified by the Congress and specified in the Intermodal 
Surface Transportation Efficiency Act (ISTEA) of 1991 under sections 
1103-1108 or in other laws, unless they meet the criteria set forth in 
this policy memorandum. Additionally, projects to be funded under 
previously authorized programs, such as Federal-aid Urban, etc., are 
also subject to sanction.
    Projects funded under title 49, U.S.C., chapter 53, the Federal 
Transit Laws, as amended, are categorically exempt from sanctions by 
law as are other transportation programs authorized by statutes other 
than Title 23.

B. Typical Nonexempt Projects

    The following types of projects generally do not meet the exemption 
criteria in section 179(b)(1) and would not be allowed to proceed if 
funded or approved under Title 23 unless it is demonstrated that they 
meet one or more of the exemption criteria. These include projects that 
expand highway or road capacity, nonexempt project development 
activities and any other project that does not explicitly meet the 
criteria in this notice. These may include activities for:
    1. The addition of general purpose through lanes to existing roads;
    2. New highway facilities on new locations;
    3. New interchanges on existing highways;
    4. Improvements to, or reconfiguration of, existing interchanges;
    5. Additions of new access points to the existing road network;
    6. Increasing functional capacity of the facility;
    7. Relocating existing highway facilities;
    8. Repaving or resurfacing except for safety purposes, as defined 
by section 179(b);
    9. Nonexempt projects, project development, including NEPA 
documentation and preliminary engineering, right-of-way purchase, 
equipment purchase, and construction;
    10. Stand-alone projects that do not affect air quality but have 
other environmentally beneficial impacts such as wetland mitigation, 
planting and landscaping, purchase of scenic easements, billboard

and other sign removal, historic preservation, transportation 
enhancements, and noise abatement.

C. Project Exemptions

    Under section 179(b)(1) of the CAA, once the EPA imposes highway 
sanctions, the FHWA may not approve or award any grants in the 
sanctioned area except those which fall under three categories: (1) 
safety programs and projects; (2) congressionally-authorized activities 
under section 179(b)(1)(B); and (3) air quality improvement projects 
that do not encourage single occupancy vehicle capacity.

1. Safety Programs and Projects

    Safety projects are those for which the principal purpose is an 
improvement in safety but the projects may also have other important 
benefits. These projects must resolve a demonstrated safety problem 
with the likely result being a significant reduction in or avoidance of 
accidents as determined by the FHWA. Such demonstration must be 
supported by accident or other data submitted by the State or 
appropriate local government.
    Three types of categories of safety-based programs and projects 
could potentially meet the exemption criteria: grant programs and 
related activities; statewide safety improvement programs; and specific 
projects outside of a statewide safety program. Each category calls for 
a different level of justification specific to a particular category.
    a. Programs administered by the National Highway Traffic Safety 
Administration qualify for blanket exemptions, on the basis that their 
principal purpose is to improve safety and do not include any capital 
improvements. Programs that fall within this category include but are 
not limited to: Use of Safety Belts and Motorcycle Helmets (23 U.S.C. 
153); National Maximum Speed Limit (23 U.S.C. 154); Highway Safety 
Programs (23 U.S.C. 402); Highway Safety Research and Development (23 
U.S.C. 403); Alcohol Traffic Safety Programs (23 U.S.C. 408); and 
Alcohol-Impaired Driving Countermeasures (23 U.S.C. 401).
    b. Statewide safety improvement programs include specific safety 
projects that can be justified on the basis of State or national level 
data, which will be additionally supported by data and analysis 
stemming from the management system requirements once the systems are 
fully operational. Projects meeting this exemption category would come 
out of the Highway Safety Improvement Program (23 CFR part 924) and the 
Highway Bridge Replacement and Rehabilitation Program (23 CFR part 650, 
subpart D). The Highway Safety Improvement Program also includes the 
Hazard Elimination Program (23 U.S.C. 152).
    c. Specific projects for which justification is needed to show that 
the project is related to safety, unless the project is drawn out of a 
statewide safety program and would be likely to reduce accidents, would 
include capital projects such as:
    1. Elimination of, and safety features for, railroad-highway grade 
crossings;
    2. Repair of damage caused by natural disasters, civil unrest, or 
terrorist acts;
    3. Changes in vertical or horizontal alignment;
    4. Increasing sight distance;
    5. Elimination of high hazard locations or roadside obstacles;
    6. Shoulder improvements, widening narrow pavements;
    7. Adding or upgrading guardrail, medians and barriers, crash 
cushions, fencing;
    8. Pavement resurfacing or rehabilitation to improve skid 
resistance;
    9. Replacement or rehabilitation of unsafe bridges;
    10. Safety roadside rest areas, truck size and weight inspection 
stations;
    11. Addition and upgrading of traffic control devices, (traffic 
signals, signs, and pavement markings);
    12. Lighting improvements; and
    13. Truck climbing lanes.
    Justification for an exemption on the grounds of safety must be 
based on accident or other data such as the data derived from a safety 
management system, bridge management system, the Highway Safety 
Improvement Program, or the Highway Bridge Replacement and 
Rehabilitation Program. Such data need not be specific to the proposed 
project's location but may be based on accident or other data from 
similar conditions, including national experience where such projects 
have been implemented to remove safety hazards. For example, 

[[Page 34319]]
rigid highway sign posts were identified in the past as a safety hazard 
causing unnecessary deaths and injuries. The identification of this 
hazard led to national policy requiring rigid posts to be replaced with 
breakaway poles.
    Projects exempted under the safety provision may not involve 
substantial functional (such as upgrading major arterial to freeways), 
locational, or capacity changes except when the safety problem could 
not otherwise be solved. Although substantial changes to the function, 
location, or capacity have been previously allowed for projects funded 
under Emergency Relief, such projects could not proceed under sanction.

2. Congressionally Authorized Activities

    Seven project types are identified specifically in CAA section 
179(b)(1) as exempt from highway sanctions. Essentially these are 
projects that discourage single occupancy vehicles or improve traffic 
flow (e.g., intersections, turning lanes) in ways that reduce 
congestion and emissions:
    a. Capital programs for public transit. These include any capital 
investment for new construction, rehabilitation, replacement, or 
reconstruction of facilities and acquisition of vehicles and equipment;
    b. Construction or restriction of certain roads or lanes solely for 
the use of passenger buses or high occupancy vehicles (HOV). Exempt 
projects include construction of new HOV lanes, if those lanes are 
solely dedicated as 24-hour HOV facilities, and converting existing 
lanes for HOV use during peak hours, including capital costs necessary 
to restrict existing lanes (barriers, striping, signage, etc.);
    c. Planning for requirements for employers to reduce employee work 
trip-related vehicle emissions. This also includes promotional and 
other activities associated with this type of program that are eligible 
under Title 23;
    d. Highway ramp metering, traffic signalization, and related 
programs that improve traffic flow and achieve a net emission 
reduction;
    e. Fringe and transportation corridor parking facilities serving 
multiple occupancy vehicle programs or transit operations (this 
includes the construction of new facilities and the maintenance of 
existing facilities);
    f. Programs to limit or restrict vehicle use in downtown areas or 
other areas of emission concentration, particularly during periods of 
peak use, through road use charges, tolls, parking surcharges, or other 
pricing mechanisms, vehicle restricted zones or periods, or vehicle 
registration programs; exempt projects include all activities of these 
types that are eligible under existing funding programs; and
    g. Programs for breakdown and accident scene management, 
nonrecurring congestion, and vehicle information systems, to reduce 
congestion and emissions.
    The FHWA will consult with the EPA on any project claimed to reduce 
emissions; that is, with projects falling under paragraphs c, d, and g, 
above. The final authority to determine whether a project meets the 
criteria in this section and is therefore exempt from highway 
sanctions, however, rests with the FHWA.

3. Air Quality Improvement Programs That Do Not Encourage Single 
Occupancy Vehicle Capacity

    Transportation programs not otherwise exempt that improve air 
quality and which would not encourage single occupancy vehicle capacity 
(as determined by EPA in consultation with DOT) are also exempt from 
highway sanctions.
    For example, transportation control measures (TCMs) listed in 
section 108(f) of the CAA and projects funded under 23 U.S.C. 149, the 
Congestion Mitigation and Air Quality Improvement (CMAQ) program, are 
projects which the EPA and DOT may, after individual review of each 
project, find to be exempt from highway sanctions. For these projects 
to advance while highway sanctions are in place, the State must submit 
to DOT an emissions reduction analysis similar to that required under 
the CMAQ program. Upon receipt, DOT will forward it to the EPA. The EPA 
will complete its review and make its finding regarding air quality and 
single occupancy vehicle travel within 14 days of receipt of such 
information.
    The EPA and DOT have agreed that the following projects will be 
categorically exempt from highway sanctions, and will not require 
additional EPA review or an individual finding by EPA:
    a. TCMs included in an EPA-approved State Implementation Plan (SIP) 
or Federal Implementation Plan which have emission reduction credit and 
will not encourage single occupant vehicle travel;
    b. Inspection and maintenance facilities and activities eligible 
for CMAQ funding;
    c. Bicycle and pedestrian facilities and programs; and
    d. Carpool/Vanpool programs.
    In considering exempt projects, States should seek to ensure 
adequate access to downtown and other commercial and residential areas, 
and avoid increasing or relocating emissions and congestion rather than 
reducing them.
D. Planning and Research Activities

    Planning and research activities for transportation and/or air 
quality purposes are exempt from highway sanctions (except as noted in 
Section E. Project Development Activities). Such planning and research 
is critical for the development of projects that improve safety and 
address an area's transportation/air quality needs. Planning and 
research activities include development of major investment studies 
which may be coupled with the draft Environmental Impact Statement or 
Environmental Assessment. Major investment studies take a multimodal 
approach in considering transportation alternatives (including new 
highway capacity) which would be exempt from highway sanctions if 
advanced as stand alone projects.
    Research activities also include those research, development, 
testing, and planning projects involving the National Intelligent 
Transportation Systems (ITS) Program. The goal of the ITS Program is to 
use advanced technology to improve travel and roadway safety without 
expanding existing infrastructure. ITS activities are generally done 
under seven broad categories: Travel and transportation management; 
travel demand management; public transportation operations; electronic 
payment; commercial vehicle operations; emergency management; and 
advanced vehicle control and safety systems.
    For these reasons, planning and research activities can continue 
even under highway sanctions. These studies may be carried out with any 
Title 23 program funds (metropolitan planning, state planning and 
research, STP, or other programs) under Sections 134, 135, and 307 or 
other relevant sections.

E. Project Development Activities

    Development and completion of studies that are necessary to meet 
requirements under the National Environmental Policy Act (NEPA) are 
exempt from highway sanctions as long as consideration of projects that 
would be exempt under the policy statement, such as transit or other 
transportation demand management (TDM) measures, are actively pursued 
as reasonable independent alternatives. Once all alternatives that 
could be considered exempt from highway sanctions under this policy 
statement are eliminated, project development activities for NEPA or 
other purposes are no longer exempt and can no longer be approved if 
they are to be funded under Title 23. For 

[[Page 34320]]
example, if prior to completion of NEPA documentation, all TDM measures 
are eliminated from consideration and the sole remaining question is 
the determination of an alignment for a highway capacity-expanding 
project (which may include TDM), subsequent project development 
activities are not exempt from highway sanctions.
    The FHWA may not approve preliminary engineering for final design 
of a project, nor can approval be granted for a project's plans, 
specifications, and estimates (PS&E) after initiation of highway 
sanctions for projects that are not exempt under this policy. Neither 
right-of-way nor any necessary equipment may be purchased or leased 
with Federal funds for nonexempt projects while an area is under 
sanction. Federally-funded construction may not in any way begin on a 
project that does not meet the exemption criteria described in this 
policy while an area is under sanction.
    Highway sanctions apply to those projects whose funds have not yet 
been obligated by the FHWA by the date the highway sanction applies. 
Those projects that have already received approval to proceed and had 
obligated funds before the EPA imposes the prohibition may proceed even 
while the area is under sanction, if no other FHWA action is required 
to proceed. In the case of a phased project, only those phases that 
have been approved and had obligated funds prior to the date of 
sanction application may proceed. For example, if preliminary 
engineering for a project was approved and funds were obligated prior 
to application of sanctions but no approval was secured for later 
project phases (such as right-of-way acquisition, construction, etc.), 
preliminary engineering could proceed while the highway sanction 
applies but no subsequent phases of the project could proceed with 
Federal highway funds unless the total project meets the exemption 
criteria in this policy. These restrictions pertain only to project 
development activities that are to be approved or funded under Title 
23. Activities funded under title 49, U.S.C., or through State or other 
funds may proceed even after highway sanctions have been imposed 
unless: (1)approval or action by FHWA under title 23 is required; and 
(2) they do not otherwise meet the exemption criteria of this policy 
statement.

F. Other Environmental Requirements

    Exemption of a transportation project from the section 179(b)(1) 
highway sanctions does not waive any applicable requirements under the 
NEPA (e.g., environmental documents), section 176 of the CAA 
(conformity requirement), or other Federal law.

    Authority: 42 U.S.C. 7509(b); 23 U.S.C. 315; and 49 CFR 1.48.

    Issued on: June 22, 1995.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 95-16103 Filed 6-29-95; 8:45 am]
BILLING CODE 4910-22-P