[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62370-62373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25515]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 450

[FHWA Docket No. FHWA-2001-10886]
RIN 2125-AE92


Metropolitan Transportation Planning and Programming

AGENCY: Federal Highway Administration (FHWA), DOT.

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ACTION: Final rule.

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SUMMARY: The FHWA, jointly with the Federal Transit Administration 
(FTA), amends its regulation on Planning and Assistance Standards that 
govern the development of transportation plans and programs for 
urbanized (metropolitan) areas. The FTA has codified the FHWA 
regulations for Metropolitan Transportation Planning and Programming 
into their regulations at 49 CFR 613 and joins the FHWA in making this 
change. This change provides the New York City metropolitan area 
additional time to review and update its transportation plan by waiving 
the regulatory requirement for a triennial plan update for the New York 
City metropolitan area for up to three years, until September 30, 2005. 
This action is necessary because the New York Metropolitan 
Transportation Council's (NYMTC) offices were destroyed by the 
terrorist attacks that occurred on September 11, 2001, and without this 
waiver, Federal highway and transit funding could be disrupted after 
September 30, 2002, when the current plan is set to expire. 
Furthermore, Congress recently enacted and the President signed HR 3880 
that clearly expresses its intent to provide the New York City 
metropolitan area with relief from certain transportation conformity 
and metropolitan transportation planning requirements until September 
30, 2005.

EFFECTIVE DATE: October 7, 2002.

FOR FURTHER INFORMATION CONTACT: Mr. John Humeston, Metropolitan 
Planning and Policies Team (HEPM), (404) 562-3667 (metropolitan 
planning), 60 Forsyth Street, Suite 8M5; Atlanta, Georgia 30303-3104; 
or Mr. Reid Alsop, Office of the Chief Counsel (HCC-31), (202) 366-
1371; 400 Seventh Street, SW., Washington, DC 20590. Office hours are 
from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    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.archives.gov and the Government Printing 
Office's web page at: http://www.access.gpo.gov/nara.

Background

    The Clean Air Act of 1970 (CAA) (44 U.S.C. 7401 et seq.) requires 
each State to develop a State Implementation Plan (SIP) that indicates 
how areas that are not meeting air quality standards intend to meet 
those standards. The Environmental Protection Agency (EPA) reviews and 
approves all SIPs. The SIP must specify emission limitations and other 
measures necessary to attain and maintain the national air quality 
levels for each pollutant.
    In 1977, the Congress amended the CAA to prohibit Federal agencies 
from engaging in, supporting in any way, or providing financial 
assistance for any transportation activity that does not conform to the 
applicable SIP, including Federal or federally assisted transportation 
projects (Public Law 95-95; 91 Stat. 749). The Congress wanted to 
ensure that any Federal funding and approval for transportation plans, 
programs, and projects would be consistent with measures and goals of 
the SIP. In 1990, the Congress further amended the CAA by integrating 
it with the transportation planning process and conditioning Federal 
approval and funding of transportation activities on their demonstrated 
conformity with the applicable SIP.
    The entity responsible for developing transportation plans and 
programs for urbanized areas of a State is the Metropolitan Planning 
Organization (MPO). Section 134(g) of title 23, U.S. Code, requires 
each MPO to prepare and update periodically a long-range transportation 
plan for its metropolitan area. The MPO must coordinate the development 
of this long-range plan with the SIP in all metropolitan areas that are 
nonattainment or maintenance areas for ozone, carbon monoxide, or 
particulate matter under the CAA (23 U.S.C. 134(g)(3)). These statutory 
mandates for MPOs have been codified in the FHWA regulations for 
Metropolitan Transportation Planning and Programming at 23 CFR 450 
subpart C. Additionally, the Federal Transit Administration (FTA) 
adopts these regulations at 49 CFR 613 subpart A where the FTA cross-
references and incorporates by reference the FHWA regulations. The FTA 
concurs with the changes made by this final rule to 23 CFR 450.322(a).
    Section 134(g) states that the transportation plan shall be 
reviewed and updated periodically, according to a schedule that the 
Secretary of Transportation (hereinafter Secretary) determines to be 
appropriate. The Secretary, through the Federal Highway Administrator, 
has outlined the schedule for reviewing and approving the MPO's 
transportation plans in 23 CFR 450.322(a). The transportation plan has 
a 20-year horizon and must be reviewed and updated at least triennially 
in any nonattainment and maintenance areas (23 CFR 450.322(a)).
    The New York City metropolitan area includes an urbanized area for 
the purposes of section 134 and has been designated as a nonattainment 
area for the purposes of the CAA. The MPO responsible for the New York 
City metropolitan area is the New York Metropolitan Transportation 
Council (NYMTC). The NYMTC last reviewed and updated its transportation 
plan on September 30, 1999, and without this proposed amendment would 
be required to again review and update the plan by September 30, 2002. 
Unfortunately, the NYMTC occupied offices in the World Trade Center in 
Manhattan and their offices were destroyed by the terrorist attacks on 
the World Trade Center buildings on September 11, 2001. Therefore, it 
will be impossible for NYMTC to update its transportation plan by 
September 30, 2002, as required by 23 CFR 450.322(a). This could 
disrupt Federal highway and transit funding after that date.
    In addition to the long-range plan, the MPO must develop a 
transportation improvement program (TIP) for the area (23 U.S.C. 
134(h)(1)(A)). The TIP must be updated every two years and approved by 
the MPO and the Governor (23 U.S.C. 134(h)(1)(D)). The New York 
metropolitan area last updated their TIP on November 1, 2001.
    Recently, the President signed into law HR 3880 in order to provide 
NYMTC additional time to review and update its TIP, and prepare 
conformity determinations, by providing relief from certain 
transportation conformity and metropolitan transportation planning 
requirements until September 30, 2005. HR 3880 exempts the New York 
City area's current TIP and plan from the Clean Air Act's conformity 
requirements until September 30, 2005. The intent is to provide NYMTC 
additional time to organize and become operational again in order to 
work on a new plan and TIP in the aftermath of the September 11, 2001, 
terrorist attacks on that area.
    For the same reasons, the FHWA, in conjunction with the FTA, amends 
its regulation on Planning and Assistance Standards, which governs the 
development of transportation plans and programs for urbanized 
(metropolitan) areas, to provide New York City metropolitan area 
additional time to review and update its transportation plan. In 
urbanized nonattainment areas, such as the New York City area, the 
transportation plan is required to be ``revised and updated at least 
triennially * * *'' 23 CFR 450.322(a). The transportation plan for

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the New York City metropolitan area was last updated on September 30, 
1999. The recently enacted HR 3880 that provides NYMTC a temporary 
waiver from certain statutory and regulatory transportation conformity 
and metropolitan transportation planning requirements is a clear 
indication of Congressional intent that the New York city metropolitan 
area be given relief from the closely related regulatory requirement 
for updates of the plan, codified in 23 CFR 450.322(a).
    Consequently, the FHWA hereby amends the regulation on Planning and 
Assistance Standards, that governs the development of transportation 
plans and programs for urbanized (metropolitan) areas and statewide 
transportation plans and programs, to provide the New York City 
metropolitan area additional time to review and update its 
transportation plan. This action waives the regulatory requirement for 
a triennial plan update for the New York metropolitan area for up to 
three years, until September 30, 2005, consistent with the date set by 
the Congress. Since the Congress expressed its intent to provide the 
NYMTC additional time to review and update its TIP, it is consistent 
for the FHWA to amend its regulations to support the congressional 
action to provide relief for NYMTC.

Rulemaking Analyses and Notices

    In accordance with section 553(b)(3)(B) of the Administrative 
Procedure Act, the FHWA believes that good cause exists to waive prior 
notice and opportunity for public comment as it is impracticable and 
contrary to the public interest. The Congress has clearly expressed its 
intent that the NYMTC should be afforded additional time to review and 
update their plan and TIP by enacting HR 3880. It is unnecessary to 
provide prior notice and opportunity for public comment for this 
regulatory change that is consistent with and implements the intent of 
Congress. Furthermore, prior notice and opportunity for public comment 
is impracticable because the current plan is set to expire on September 
30, 2002, which does not provide sufficient time to obtain public 
comment on this action. The NYMTC occupied office space in the World 
Trade Towers that were destroyed in the terrorist attack of September 
11, 2001, and it is impossible for the NYMTC to review and update its 
transportation plan by September 30, 2002. If NYMTC does not have a new 
plan or a waiver from the requirement to have a new plan on that date, 
then transportation projects may not advance. Therefore, with the 
imminent expiration of the current plan and the clear Congressional 
intent to provide a temporary waiver to the New York City metropolitan 
area from certain transportation conformity and metropolitan planning 
requirements, the FHWA believes good cause exists to waive prior notice 
and opportunity for comment.
    For the reasons stated above, the FHWA believes good cause exits to 
waive prior notice and opportunity for comment. Additionally, in 
accordance with section 553(d)(3) of the APA, the FHWA believes that 
good cause exists to make this rule effective upon publication in the 
Federal Register. Without the relief granted by this action, the New 
York City metropolitan area would not be able to advance any 
transportation projects after their current plan expires on September 
30, 2002, unless and until the NYMTC is able to review and update their 
plan or a waiver from this requirement. Since the NYMTC occupied office 
space in the World Trade Center that was completely destroyed on 
September 11, 2002, it will be impossible for the NYMTC to create a new 
transportation plan in that time under the current circumstances. 
Therefore, it is necessary to amend our regulation to provide the 
necessary relief contemplated by Congress as soon as possible.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies

    We have determined that this rulemaking is not a significant 
regulatory action within the meaning of Executive Order 12866 and under 
Department of Transportation regulatory policies and procedures. This 
action is intended to reduce current regulatory burdens on the NYMTC 
for a temporary time period. In preparing this action, the FHWA has 
sought to maintain existing flexibility of operation wherever possible 
for States, MPOs, and other affected organizations and utilize already 
existing processes to accomplish any new tasks or activities.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Public Law 96-
354; 5 U.S.C. 601-612), we have evaluated the effects of this rule on 
small entities, such as, local governments and businesses. We believe 
that the flexibility available to States and MPOs in responding to 
requirements has been maintained, if not enhanced, in this proposal. 
Accordingly, the FHWA hereby certifies that this action will not have a 
significant economic impact on a substantial number of small entities.

Executive Order 13132 (Federalism)

    This action has been reviewed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
it has been determined that this action does not have a substantial 
direct effect or sufficient Federalism implications on States and local 
governments that would limit the policymaking discretion of the States. 
Nothing in this document directly preempts any State law or regulation. 
The Transportation Equity Act for the 21st Century (TEA-21) (Public Law 
105-178; 112 Stat. 107) and its predecessors authorize the Secretary to 
implement the provisions for metropolitan and statewide planning. We 
believe that policies in these proposed rules are consistent with the 
principles, criteria and requirements of the Federalism Executive Order 
and the TEA-21.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Numbers 20.205, 
Highway planning and Construction; 20.500, Federal Transit Capital 
Improvement Grants, 20.505, Federal Transit Technical Studies Grants; 
20.507, Federal Transit Capital and Operating Assistance Formula 
Grants. The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation in Federal programs and activities apply 
to these programs.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA)(44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations.
    The reporting requirements for statewide transportation plans and 
programs are approved under OMB control number 2132-0529. The 
information collection requirements addressed under the current OMB 
approval number (2132-0529) impose a total burden of 241,850 hours on 
the planning agencies that must comply with the requirements in the 
existing regulation.

National Environmental Policy Act

    We have analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). It is our 
determination this action is consistent with the provisions of 23 CFR 
771.117(c)(20) which deems the issuance of regulations of this nature 
to

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meet the requirements for a Categorical Exclusion.

Unfunded Mandates Reform Act of 1995

    This rule does not impose a Federal mandate resulting in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million in any one year. (2 U.S.C. 
1531 et seq.)
    The requirements of 23 U.S.C. 134 and 135 are supported by Federal 
funds administered by the FHWA and the FTA. There is a legislatively 
established local matching requirement for these funds of twenty 
percent of the total project cost. The FHWA and the FTA believe that 
the costs of complying with these requirements are predominantly 
covered by the funds they administer.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 13211 (Energy Effects)

    We have analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a significant 
energy action under that order because it is not a significant 
regulatory action under Executive Order 12866 and is not likely to have 
a significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects under Executive Order 
13211 is not required.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that this final rule will not have 
substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; and will not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of every year. The RINs contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 450

    Grant programs--transportation, Highways and roads, Mass 
transportation, Reporting and recordkeeping requirements.

    Issued on: October 2, 2002.
Mary E. Peters,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA amends title 23, Code 
of Federal Regulations, by amending part 450 as set forth below:

PART 450--PLANNING ASSISTANCE AND STANDARDS

    1. The authority citation for part 450 continues to read as 
follows:

    Authority: 23 U.S.C. 134, 135, 217(g), 315; 42 U.S.C. 7410 et 
seq.; 49 U.S.C. 5303-5306; 49 CFR 1.48(b) and 1.51.

    2. Revise Sec.  450.322(a) to read as follows:


Sec.  450.322  Metropolitan transportation planning process: 
Transportation plan.

    (a) The metropolitan transportation planning process shall include 
the development of a transportation plan addressing at least a twenty-
year planning horizon. The plan shall include both long-range and 
short-range strategies/actions that lead to the development of an 
integrated intermodal transportation system that facilitates the 
efficient movement of people and goods. The transportation plan shall 
be reviewed and updated at least triennially in nonattainment and 
maintenance areas and at least every five years in attainment areas to 
conform its validity and consistency with current and forecasted 
transportation and land use conditions and trends and to extend the 
forecast period, except that the transportation plan for the New York 
Metropolitan Transportation Council that was reviewed and updated on 
September 30, 1999, shall be reviewed and updated no later than 
September 30, 2005. The transportation plan must be approved by the 
MPO.
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[FR Doc. 02-25515 Filed 10-3-02; 11:54 am]
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