[Federal Register Volume 67, Number 183 (Friday, September 20, 2002)]
[Proposed Rules]
[Pages 59219-59225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23699]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 450 and 1410

Federal Transit Administration

23 CFR Part 1410

49 CFR Parts 613 and 621

[FHWA Docket No. FHWA-99-5933]
RIN 2125-AE62; FTA RIN 2132-AA66


Statewide Transportation Planning; Metropolitan Transportation 
Planning

AGENCIES: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA), DOT.

ACTION: Partial withdrawal of notice of proposed rulemaking (NPRM).

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SUMMARY: This document partially withdraws the proposed rulemaking in 
which the agencies proposed to amend its requirements on statewide and 
metropolitan planning (65 FR 33922, May 25, 2000; comment period ended 
at 65 FR 41891, July 7, 2000). This partial withdrawal is based on the 
level of critical comment received, the development of alternative 
means for implementing the topics addressed in the NPRM and the 
pendency of reauthorization of the surface transportation program. The 
agencies are withdrawing this rulemaking except for those sections that 
relate to ``consultation with non-metropolitan local officials'' which 
are addressed in the SNPRM published on June 19, 2002, at 67 FR 41648.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Sheldon M. Edner, 
Metropolitan Planning and Policies Team (HEPM), (202) 366-4066 
(metropolitan planning), Mr. Dee Spann, Statewide Planning Team (HEPS), 
(202) 366-4086 (statewide planning), or Mr. Reid Alsop, Office of the 
Chief Counsel (HCC-31), (202) 366-1371. For the FTA: Mr. Charles 
Goodman, Metropolitan Planning Division (TPL-12) (metropolitan 
planning), (202) 366-1944, Mr. Paul Verchinski, Statewide Planning 
Division (TPL-11) (statewide

[[Page 59220]]

planning), (202) 366-1626, or Mr. Scott Biehl, Office of the Chief 
Counsel (TCC-30), (202) 366-0952. Both agencies are located at 400 
Seventh Street, SW., Washington, D.C. 20590. Office hours for the FHWA 
are from 7:45 a.m. to 4:15 p.m., e.t., and for the FTA are from 8:30 
a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Internet users may access all comments 
received by the U.S. DOT Dockets, Room PL-401, by using the universal 
resource locator (URL): http://dms.dot.gov. It is available 24 hours 
each day, 365 days each year. Please follow the instructions online for 
more information and help.
    An electronic copy of this document may be downloaded using a 
computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at 
(202)512-1661. Internet users may reach the Office of the Federal 
Register's home page at: http://www.nara.gov/fedreg and the Government 
Printing Office's web page at: http://www.access.gpo.gov/nara.

Background

    Sections 1203, 1204, and 1308 of the Transportation Equity Act for 
the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, amended 
23 U.S.C. 134 and 135, which require a continuing, comprehensive, and 
coordinated transportation planning process in metropolitan areas and 
States. Similar changes were made by sections 3004, 3005, and 3006 of 
the TEA-21 to 49 U.S.C. 5303-5306 which address the metropolitan 
planning process in the context of the FTA's responsibilities. In 
addition section 5206(e) of the TEA-21 directed that all intelligent 
transportation system (ITS) improvements funded with highway trust fund 
monies (including those from the mass transit account) be consistent 
with the national ITS architecture.
    The FHWA and the FTA published a notice of proposed rulemaking on 
May 25, 2000 (65 FR 33922); that detailed proposed revisions to the 
existing planning regulations 23 CFR part 450. Comments were solicited 
by August 23, 2000 (later extended to September 23, 2000; July 7, 2000 
65 FR 41891). We are also terminating a related rulemaking dealing with 
revisions to regulations regarding the implementation of the National 
Environmental Policy Act (NEPA) for projects funded or approved by the 
FHWA or the FTA, which was proposed simultaneously with the planning 
NPRM in a separate document, published elsewhere in today's Federal 
Register.
    A companion NPRM for the Intelligent Transportation System 
Architecture (ITS) and Standards, 23 CFR parts 655 and 940 was 
published on May 25, 2000, at 65 FR 33994. A final rule was published 
on January 8, 2001, at 66 FR 1446. Efforts were made to coordinate 
development of the ITS and planning rules, specifically with regard to 
the requirement for an ``ITS integration strategy'' as proposed in 23 
CFR 1410.322(b)(11) of the planning NPRM.
    The comments discussed below indicated a substantial diversity of 
opinion from a wide variety of interests, including environmental 
groups, transit organizations, the State Departments of Transportation, 
and metropolitan planning organizations. In the Fall of 2000, a series 
of congressional hearings raised additional issues that we have 
reviewed. Based on the comments received, the time elapsed since 
publication and the close proximity of reauthorization of the surface 
transportation program we have decided to partially withdraw the 
proposed rules and rely in the interim on both existing regulatory and 
TEA-21 statutory requirements (e.g. Federal certifications of 
Transportation Management Areas, Metropolitan/State Federal Planning 
Findings, etc.) as well as non-regulatory approaches to implement the 
TEA-21 planning provisions, such as reinforcing compliance through 
workshops, pilot activities, case studies, information sharing and 
selective enforcement of compliance with existing FHWA and FTA 
regulations and enforcement tools on a case-by-case basis. However, we 
are not withdrawing the portions of the May 2000 planning NPRM as they 
pertain to consultation with non-metropolitan local officials. We are 
addressing that issue in a separate SNPRM published previously in the 
Federal Register.
    The Statewide Metropolitan Planning regulation at 23 CFR 450, 
continues in force except as modified by Transportation Equity Act for 
the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107, June 
1998).\1\
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    \1\ For guidance on implementing the provisions of the TEA-21 
please see the memorandum, dated February 2, 2001, entitled 
``Implementing TEA-21 Planning Provisions'' available at the 
following URL: http://www.fhwa.dot.gov/hep/tea21mem.htm.
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Discussion of Comments on the NPRM

    After reviewing the comments submitted in response to the NPRM, the 
FHWA and the FTA have decided to partially withdraw our rulemaking on 
this issue. As indicated earlier the extent of controversy, the 
divergence of opinion and the close proximity of reauthorization all 
suggest withdrawal of the proposed rules except the section that 
addresses consultation with non-metropolitan local officials. We will 
reconsider the possibility of issuing regulations after reauthorization 
of the surface transportation program. During the comment period on the 
proposed rules, the FTA and the FHWA held seven public meetings to 
present information on the NPRM. Comments were not solicited at those 
meetings. Attendees were encouraged to submit all comments to the 
docket. However, a summary of questions raised at the meetings and the 
general responses of the FHWA and the FTA presenters is included in the 
docket.
    In addition the FTA and the FHWA responded to requests for 
presentations at several meetings during the comment period of the 
NPRMs. The agencies made the following presentations: Texas Planning 
Conference, Alaska (arranged teleconference), Michigan, Florida, and 
the Association of Metropolitan Planning Organizations policy 
conference. A summary of all comments by section of the NPRM has been 
prepared by the FHWA and the FTA and inserted in the docket. We have 
carefully reviewed all comments.
    During the comment period (on September 12 and 13, 2000), the 
Senate Environment and Public Works and the House Transportation and 
Infrastructure Committees held hearings regarding the NPRMs. The FHWA 
and the FTA have reviewed the comments and questions raised at the 
hearings.

Summary of Comments Received

    There were approximately 425 documents (representing just over 300 
discrete comments when form letters from multiple groups and 
individuals are accounted for) submitted to the docket for the planning 
NPRM. The comments were distributed among types of organizations as 
indicated below. We received diverse and, even, opposing comments. 
General comments concerning the rule are addressed initially, followed 
by specific responses to individual sections of the regulatory 
proposals. We received comments from the following:

Interest groups and associations--69
Businesses--2
Congressional--1
Federal agencies--7
Local governments--34
Metropolitan Planning Organizations--70
Private individuals--14
Regional Councils--44
State DOTs--52
Other State agencies--17
Transit agency--16
Tribes and tribal organizations--11

[[Page 59221]]

Distribution Table

    The NPRM proposed renumbering of 23 CFR part 450 as 23 CFR part 
1410 and amending Chapter VI of Title 49 CFR by removing part 613 and 
adding part 621. We did not receive any comments on this proposal.

Section-by-Section Discussion of the Comments

    The discussion in this section presents comments received on 
specific sections.

Section 1410.100 Purpose

    No comments were received on this section.

Section 1410.102 Applicability

    We did not receive any comments on this section

Section 1410.104 Definitions

    We received a comment from a State DOT that the regulations should 
define 'transportation control measures (TCM)'' to include only those 
projects included in the State implementation plan ( SIP). It was our 
intent in the NPRM that TCMs be defined to include only those measures 
that are specifically identified and committed to in the applicable 
SIP. The definition used in the NPRM was taken from the transportation 
conformity rule for consistency.
    A State DOT suggested that ``systematic process'' be dropped from 
the definition of ``congestion management system (CMS).''
    More than twenty discrete comments were received on the proposed 
definition of ``consultation;'' opposed and supportive. Representatives 
of Indian Tribal Governments proposed revised wording to address the 
issue concerning consultation with Indian Tribal Governments. Numerous 
comments were received suggesting minor revisions to our proposed 
definition of ``coordination.''
    Definitions for ``design concept,'' ``design scope,'' ``federally 
funded non-emergency transportation services,'' ``financial estimate,'' 
and ``freight shipper'' were included in the NPRM. One commenter 
observed that the definition of design concept was too restrictive for 
attainment areas and proposed modification. A suggestion to define 
financial estimates in precise detail was offered.
    One commenter suggested revising the term ``Governor'' by adding 
``or designee'' in the definition. A proposal to clarify ``ITS 
Integration Strategy'' was offered by the Intelligent Transportation 
Society of Maryland. A similar proposal was made by a State DOT for 
``illustrative projects.''
    Several commenters, primarily State DOTs and MPOs, observed that 
the terminology ``interim plan and TIP'' was either not necessary or 
confusing.
    One commenter offered the idea that the definition of MPO needed 
emphasis on the policy body as the MPO. Approximately five commenters 
suggested that the term ``most recent assumptions'' be tied to a 
statutory definition or left to the MPO to determine. A few comments 
were offered to modify the term ``provider of transportation freight 
services.
    Several commenters raised questions concerning the prohibition 
against extensions in nonattainment areas and limitation in attainment 
areas.
    The TEA-21 Negotiated Rulemaking Committee--Tribal Caucus suggested 
that the definition should allow a tribal government to request 
designation as a transportation management area (TMA).
    A suggestion to modify the point at which the twenty-year period 
commenced was offered by a commenter. A proposal to drop the 
terminology ``or special census as appropriate'' from the definition of 
urbanized area was offered.
    Proposals from State DOTs and MPOs were offered to define the terms 
``comprehensive update,'' ``project phase,'' ``planning process 
participants,'' and ``conformity freeze.''
    The environmental justice elements of the NPRM generated a great 
deal of comment. One common thread in these comments was the suggestion 
that key terms be defined.

Subpart B--Statewide Transportation Planning and Programming

Section 1410.200 Purpose

    One State DOT observed that this section should emphasize ``general 
strategies'' to serve operations and management since the statewide 
plan can be a policy plan. Another commenter observed that this section 
should reference ``multimodal,'' as well as ``intermodal.''

Section 1410.202 Applicability

    One commenter asked that this section acknowledge the possibility 
of other agencies being designated by the Governor as participants in 
the planning process.

Section 1410.204 Definitions

    No comments were received on this section.

Section 1410.206 Statewide Transportation Planning Process Basic 
Requirements

    We received over fifty comments from advocacy groups, professional 
groups, State DOTs, State agencies and MPOs on this section. The 
comments were split between two clear poles: a general perception that 
the NPRM did not go far enough to demonstrate how MPOs and State DOTs 
can achieve environmental justice goals and a line of reasoning that 
suggests that the proposed requirements were too detailed and 
burdensome. In the latter instance, a companion argument was offered 
frequently that the NPRM confused the principles of environmental 
justice with the principles of Title VI of the Civil Rights Act (42 
U.S.C. 2000d-1).

Section 1410.208 Consideration of Statewide Transportation Planning 
Factors

    Three general themes emerged from the comments submitted on this 
section: (1) Guidance on the compliance with the seven planning factors 
should be minimal and tied to best practices and good examples; (2) the 
term ``planning process participants'' was too vague; and (3) proposed 
section 1410.208(b) was unnecessary.

Section 1410.210 Coordination of Planning Process Activities

    We received several comments from local government officials, State 
DOTs, and advocacy groups regarding this section, generally seeking to 
modify key relationships or add entities for coordination. One 
commenter suggested that we change coordination to ``consultation'' or 
``communication'' where other States or countries are involved. Another 
commenter suggested adding Indian Tribal Governments to the entities 
involved in coordination and several commenters proposed more 
specificity of coordination procedures for clarity.
    We also received comments requesting clarification of the proposed 
rule as to the application of transportation conformity to the 
statewide transportation planning process.

Section 1410.212 Participation by Interested Parties

    We received over 150 comments from State DOTs, local governments, 
advocacy organizations and others on this section. The bulk of them 
focused on the issue of consultation with non-metropolitan local 
officials. We have addressed this issue in a separate SNPRM published 
previously in the Federal Register as noted above.
    One tribal government suggested that we use negotiated rulemaking 
procedures for tribal governments in the completion of the rulemaking 
process.

[[Page 59222]]

Section 1410.214 Content and Development of Statewide Transportation 
Plan

    Two new sections were proposed to reflect legislative changes: ITS 
and optional financial plan. Approximately twenty-five comments from 
State DOTs, MPOs and professional associations were submitted on the 
ITS architecture proposal. The comments on the ITS provisions were 
generally split between supporting the proposal and opposing it based 
on a perceived additional burden. Some commenters felt that the 
strategy of main streaming ITS investments in this fashion and dealing 
with them as part of the planning process would not permit technology 
to be implemented in a timely fashion. Some DOTs observed that the 
burden of getting agreements signed with all implementers was too 
great.
    Comments on the financial plan provisions of this section were 
generally focused on understanding how this plan related to the 
financial plan required of MPOs. The commenters were looking for 
clarification of intent and requirement.

Section 1410.216 Content and Development of Statewide Transportation 
Improvement Program (STIP)

    Three general comments were raised regarding the requirement for 
financial estimates to support the MPO plan and TIP development. State 
DOTs questioned the inclusion of the transit operator as a party to the 
estimate development as being beyond statutory requirement. At least 
two commenters questioned what the time frame should be for developing 
estimates. Finally, one commenter questioned the extended authority 
given to the State to develop the estimates.
    One commenter suggested that the provisions of Sec.  1410.216(b) be 
revised to require participation by agencies based on ownership or 
degree of environmental impact. It was suggested also that this 
involvement be extended to environmental restoration or enhancement 
projects. Three general threads of commentary were offered on Sec.  
1410.216(c). State DOTs and some MPOs questioned the identification of 
ITS projects on several grounds, most notably the burden of clearly 
identifying them. The general need for this section was also 
questioned. Finally, several commenters wanted clarification of the 
term ``project phase.''
    Several comments were raised regarding the level of detailed 
information required for a TIP, especially with regard to categories of 
funding sources for projects. A significant battery of comments was 
offered regarding the role of Indian Tribal Governments in the STIP 
development process. One Indian tribe suggested the idea that Tribal 
Governments should be included with those agencies regularly informed 
regarding the STIP development process.
    A Tribal Government representative suggested that Indian Tribal 
Governments should be included in those cooperating agencies that must 
be consulted in STIP modification procedures.

Section 1410.218

    This section addressed revisions made as a result of the 
replacement of the Major Investment Study requirement. The discussion 
of comments received is found under section 1410.318 below.

Section 1410.220 Funding of Planning Process

    A tribal government suggested that tribal governments should be 
identified among the participants eligible to receive funds.

Section 1410.222 Approvals, Self-Certification and Findings

    Three general areas of comment for this section appear in the 
docket: (1) The FHWA and the FTA should be able to approve TIP/STIP 
extensions; (2) tribal governments should be afforded an expanded role 
in TIP/STIP development; and (3) the environmental justice provisions 
should be more explicitly spelled out. Many State DOTs and MPOs 
requested that STIP/TIP extensions be allowed in nonattainment and 
maintenance areas.

Section 1410.224 Project Selection

    One set of commenters requested the addition of tribal governments 
to those with selection authority. One commenter questioned whether the 
language of this section permits the unrestricted movement of projects 
across all three years of a STIP. Finally, a commenter felt that this 
section continues to remain unclear.

Section 1410.226 Applicability of NEPA to Transportation Planning and 
Programming

    We did not receive any comments on this section.

Subpart C--Metropolitan Transportation Planning and Programming

Section 1410.300 Purpose of Planning Process

    One commenter suggested that this section should recognize that one 
purpose of the metropolitan planning process is to plan transportation 
systems that will minimize transportation related fuel consumption and 
air pollution.

Section 1410.302 Organizations and Processes Affected by Planning 
Requirements

    One commenter suggested that the preamble does not explain why the 
reference to project selection was proposed to be dropped from the 
regulation since this is the link between programming and the actual 
receipt of Federal funds.
    Another commenter wanted us to add the following language: ``the 
provisions of this subpart are applicable to agencies responsible for 
satisfying the requirements of the transportation planning, programming 
and project development processes in metropolitan areas pursuant to 23 
U.S.C. 134 and 49 U.S.C. 5303-6.''

Section 1410.304 Definitions

    We did not receive any comments on this section.

Section 1410.306 What Is a Metropolitan Planning Organization and How 
Is It Created?

    Comments on this section tended to focus on MPO policy board 
membership issues regarding representation (elected officials and 
operators of major modes of transportation) and opposing or favoring 
the proposed changes regarding multiple MPOs in a single metropolitan 
area. Several MPOs offered the idea that MPO policy board membership 
should favor elected officials. These individuals also tended to oppose 
providing representation for operators of major modes of 
transportation.
    The MPO commenters addressing the matter of multiple MPOs tended to 
support the NPRM proposal that would reduce the possibility of such 
designations.

Section 1410.308 Establishing the Geographic Boundaries for 
Metropolitan Transportation Planning Areas

    Only one comment was made on this section and it favored the 
language as proposed.

[[Page 59223]]

Section 1410.310 Agreements Among Organizations Involved in the 
Planning Process

    The comments received on this section tended to focus on the 
addition of the ITS agreement to the list of agreements already 
contained in this section. The concerns ranged from the necessity of 
adding an agreement to the need for additional guidance on what should 
be addressed in the agreement. Some commenters, typically professional 
association and ITS oriented groups, supported the provision, others 
(often MPOs and State DOTs) objected to it. Some comments questioned 
whether an MPO would have the staff to conduct needed work. Bringing 
the operating agencies to the planning process was raised also as a 
concern, largely in terms of the potential to add to the burden of 
coordination and slow down the planning process.
    Several commenters addressed the proposed provisions regarding an 
agreement on ITS policy and operational issues. One commenter felt that 
the agreement strategy was unrealistic and potentially destructive in 
terms of promoting ITS. The comments provided suggested that the U.S. 
DOT take a leadership role in promoting approaches to main streaming 
ITS, rather than relying on individual localized approaches.

Section 1410.312 Planning Process Organizational Relationships

    One commenter suggested that the records of agreements should be 
made available to the public. Another comment observed that the transit 
agency should not be on equal footing with MPOs and State DOTs in 
concluding agreements.

Section 1410.314 Planning Tasks and Unified Work Program

    We received less than ten comments on this section. One commenter 
suggested that the unified planning work program (UPWP) should be more 
of a policy document. Another letter suggested that the States should 
be held to the same standard as MPOs. Finally, another commenter said 
that the requirement for consultation with the U.S. Environmental 
Protection Agency (EPA) in nonattainment areas is inappropriate and 
will lead to time delays.

Section 1410.316 Transportation Planning Process and Plan Development

    The environmental justice aspect of this section received the bulk 
of comments. Over fifty separate commenters submitted suggestions for 
change. Few, if any, commenters were content with the proposed wording 
as published. The majority of comments, typically from MPOs, and State 
DOTs, tended to suggest that the proposal was burdensome, unclear, 
insufficient, potentially subject to unending litigation, and confusing 
in terms of the relationship between Title VI and environmental 
justice.
    A second area of major comment was the public involvement 
provision. Generally, there was support for these provisions. Some 
suggestions, from interest groups and citizens, were offered for 
greater precision in requirements, most notably regarding documentation 
of response to comments, definitions of key groups afforded opportunity 
to participate, and evaluation of processes.
    The planning factor provisions attracted a few comments. A couple 
of comments supported the development of performance standards for 
addressing the factors. One letter asked that we identify the rationale 
for the planning process to identify strategies for complying with the 
Americans with Disabilities Act (ADA)(42 U.S.C. Chapter 126). Another 
letter recommended a two year phase-in for consultation with Indian 
tribal governments. Finally, a comment from an MPO wanted to know if 
TIP amendments are adopted that trigger a reference to existing plans, 
even though less than twenty years remains on its horizon, the plan 
should be acceptable as a basis for Federal action.

Section 1410.318 Relation of Planning and Project Development Processes

    State DOTs, MPOs, environmental groups and transit agencies 
submitted comments on this section, generally reflecting diverse policy 
perspectives in favor or against the proposals. The clear intent of 
section 1308 of the TEA-21 was to direct the Secretary to eliminate and 
propose an alternative to the separate major investment study (MIS) 
requirement. The technical structure of the law is such that this 
action requires a two step process: (1) Eliminating and (2) proposing 
an approach for integrating what remains. In withdrawing portions of 
the NPRM, the FHWA and the FTA cannot complete both steps. Hence, the 
agencies see the current regulatory language as a place holder that can 
be utilized at the discretion of State and local agencies as they see 
the need until future action on a rule. Implementation of the 
provisions of this section by the FTA and the FHWA will be 
appropriately flexible.

Section 1410.320 Congestion Management System and Planning Process

    The FHWA and the FTA received no adverse comment on this provision 
as discussed in the NPRM. A couple of commenters supported the change.

Section 1410.322 Transportation Plan Content

    We received a significant number of comments on this section. 
Topics most frequently addressed were the twenty year planning horizon 
for plans, most recent planning assumptions, how to address operations 
and management, the treatment of illustrative projects, the ITS 
integration strategy, interim plans and TIPs, and point of conformity 
determination. Each of these topics provoked a variety of comments.
    The twenty year planning horizon was both praised and criticized. 
The NPRM sought to provide clarification for a conundrum identified in 
the course of implementing the 1993 regulation. The TIPs must be 
updated on a two year cycle; plans on three and five year cycles.
    A number of comments were received on various air quality related 
issues. One concern, voiced by State DOTs and MPOs, was the effective 
date of the plan, which was tied by the rule to the date of the Federal 
air quality conformity determination. Another set of observations 
questioned the need for utilizing latest planning assumptions. One 
commenter raised concerns about maintaining air quality rather than 
just achieving the air quality budget. Some commenters raised questions 
concerning air quality issues beyond the time frame for the SIP and 
finally, one commenter raised a concern regarding air toxics and fine 
particulate matter.
    One comment requested that the EPA, the FHWA, and the FTA be 
required to adhere to a reasonable time frame for conformity review and 
determination. The April 19, 2000, National Memorandum of Understanding 
(MOU) between the U.S. DOT and the U.S. EPA \2\ makes provisions for 
more efficient and timely review of conformity decisions, including the 
establishment of time frames for field office review, as well as a 30-
day dispute resolution process.
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    \2\ The memorandum, entitled ``National Memorandum of 
Understanding Between the U.S. Environmental Protection Agency and 
the U. S. Department of Transportation,'' dated April 19, 2000, is 
available at the following URL: http://www.fhwa.dot.gov/environment/cnfmou.htm.
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    Some comments were received on the mismatch of the transportation 
planning and air quality planning horizons.

[[Page 59224]]

    Two comments were received stating that there was no statutory 
basis for requiring the use of the most recent planning assumptions. 
There is a statutory basis for requiring the use of the most recent 
planning assumptions in the Clean Air Act (CAA) (42 U.S.C. 7506) which 
requires that the determination of conformity be based on the most 
recent estimates of emissions, and that such estimates be determined 
from the most recent population, employment, travel and congestion 
estimates as determined by the metropolitan planning organization or 
other agency authorized to make such estimates.
    One commenter stated that in Sec.  1410.322(b)(10) the last 
sentence should be revised to read ``* * * implementation of projects 
and programs to reach or maintain air quality compliance.''
    Two comments were received regarding the role of the MPO in the air 
quality planning process. We received one comment requesting that the 
rules address health risks from air toxics and fine particulate matter.
    One final air quality conformity issue of significance was the need 
for an interim plan. Many comments were received questioning the need 
for an interim planning process during a conformity lapse or requesting 
more flexibility in the process.
    One comment requested that the rule allow new submitted, but not 
yet approved by the U.S. EPA, TCMs to proceed during a conformity 
lapse. The April 19, 2000, National Memorandum of Understanding between 
the U.S. DOT and the U.S. EPA details how new TCMs should advance 
during a conformity lapse. New TCMs must have identified emission 
reduction benefits, be included in an interim plan/TIP and the U.S. EPA 
approved SIP, and meet the definition of a TCM in order to advance 
during a conformity lapse.
    Several commenters, MPOs and State DOTs, solicited additional 
clarification on how management and operations would be treated during 
the planning process.
    The term ``illustrative project'' and its usage in the NPRM 
attracted considerable attention and comment. Most commenters wanted 
additional clarification of the term and how illustrative projects 
would be treated in a plan and TIP. The cooperative development of 
estimates of various funds to support plan and TIP development received 
several significant comments. Many writers wanted substantial 
additional guidance on how such estimates should be developed and the 
reconciliation of potential conflicts between the participating 
entities. One principal concern of some commenters was the fear that a 
single entity might be able to hold all other planning participants 
hostage over the development of these estimates.
    The ITS integration strategy proposal attracted significant comment 
both in character and number. The concerns raised were varied. Some 
commenters wanted greater clarification and detail in the regulatory 
requirements. Others, often MPOs and State DOTs, thought they were too 
restrictive and burdensome. There was some concern about how the ITS 
architecture provision would relate to operations and management. A 
couple of commenters, associations and groups, expressed the desire to 
have the regulations identify the lead agency and many wanted 
additional funding to support the development of the ITS integration 
strategy. A common concern, expressed by DOTs and MPOs, was the need 
for a longer phase-in period for the requirement.
    The need to identify ITS investments in TIPs and plans was 
questioned by ITS groups and interests.

Section 1410.324 Transportation Improvement Program Content

    This section received the largest number of comments. The bulk of 
these comments focused on the exemption of 23 U.S.C. 402, Safety and 
Motor Carrier Safety Assistance Programs, from inclusion in the TIP, 
financial forecasts, air quality issues and the annual listing of 
projects. These comments typically came from law enforcement officials 
and safety groups.
    The planning NPRM proposed to eliminate the exclusion for Section 
402 Safety and Motor Carrier Safety Assistance Program (administered by 
the Federal Motor Carrier Safety Administration) grants from listing in 
the TIP/STIP. The rationale was that these funds could be used to fund 
ITS projects and such projects would need to be in TIPs/STIPs for the 
purposes of the ITS architecture consistency requirements. Numerous 
safety organizations observed that the bulk of the projects funded by 
these programs have nothing to do with ITS.
    Some MPOs and State DOTs suggested that extensions be permitted for 
TIPs in both attainment and nonttainment areas.
    A number of comments were received that requested more flexibility 
in the application of transportation conformity to TIP amendments. In 
accordance with the transportation conformity rule (40 CFR 93.104), a 
conformity determination must be made for a TIP amendment and/or a plan 
revision.
    The provisions governing the financial forecasting requirements of 
the TEA-21 received numerous comments. Perspectives ranged from a 
request for far more detail in the process specified to far less. 
Concerns were raised about guarantees that estimated funds would be 
available and that the reliance on a process specification was 
inconsistent with the statute. Several commenters wanted the procedures 
and estimates governed by some form of documentation, i.e., an MOU, 
specification in plan documents or some other means. Requests were made 
for additional guidance and some questions were raised as to why 
transit operators were accorded equal footing with MPOs and States.
    The annual listing of projects provisions was the most heavily 
commented upon in this section. Again, the comments were diverse, split 
along the lines of whether additional specification of detail was 
needed. Most States and MPOs believed that the requirement was not 
easily implemented based on the lack of a centralized data base from 
which obligations could be identified. Many observed that the Federal 
agencies could obtain that information from the FHWA Fiscal Management 
Information System (FMIS). A large number of non-governmental 
organizations and citizen advocacy groups supported a very detailed and 
standardized data collection protocol that in their view would allow 
citizens greater access to information, more complete understanding of 
what was funded and the ability to do useful comparisons on a national 
basis. They also argued that their model would permit more effective 
documentation of compliance with environmental justice requirements.

Section 1410.326 Transportation Improvement Program Modification

    Several comments were received regarding the need for a new 
conformity determination when a project is moved between the first 
three years of a TIP, or moved from year four or greater to the first 
three years.

Section 1410.328 Metropolitan Transportation Improvement Program 
Relationship to Statewide TIP

    No comments were received on this section.

Section 1410.330 Transportation Improvement Program Action by FHWA/FTA

    One comment was received requesting clarification as to who

[[Page 59225]]

should communicate with the Governor in the event that a conformity 
determination cannot be made. A couple of comments were received 
suggesting that ``illustrative projects'' should be able to complete 
the NEPA process before inclusion in a plan. Some comments were 
submitted on this section dealing with the issue of revenue estimation.

Section 1410.332 Selecting Projects From a TIP

    No comments were received on this section.

Section 1410.334 Federal Certifications

    The majority of comments, mostly from citizens and citizen groups, 
received on this section generally favored a more prescriptive approach 
to the involvement of the public during certification reviews. Their 
proposal included a requirement for a public hearing, sixty-day notice 
of when the review would be held, a forty-five day notice before the 
public meeting for the certification review, and the maintenance of a 
file of comments received by the MPO concerning its performance in the 
current and prior two years.
    Several commenters raised concerns with the provisions of Sec.  
1410.334(a)(8) which directs that reviews be conducted consistent with 
all other applicable provisions of Federal law. They requested that 
such statutes be identified.

Conclusion

    Given the diversity of comments and the disparity among them, the 
agencies have concluded that a workable compromise built upon the 
proposed planning rule is not identifiable at this time. Further, with 
the close proximity of the reauthorization of the surface 
transportation program, it is reasonable to wait for the outcome of the 
legislative process to see if any further changes are needed. We will 
review comments received on the SNPRM on the consultation with non-
metropolitan local officials, published previously in the Federal 
Register and determine appropriate next steps on this matter. For these 
reasons, the FTA and the FHWA are withdrawing this rulemaking action 
except as it pertains to the consultation with non-metropolitan local 
officials.

    Authority: 23 U.S.C. 134, 135 and 315; 42 U.S.C. 7410 et seq.; 
49 U.S.C. 5303-5309; 49 CFR 1.48 and 1.51.

    Issued on: September 12, 2002
Jennifer L. Dorn,
Federal Transit Administrator.
Mary E. Peters,
Federal Highway Administrator.
[FR Doc. 02-23699 Filed 9-19-02; 8:45 pm]
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