[Federal Register Volume 68, Number 15 (Thursday, January 23, 2003)]
[Rules and Regulations]
[Pages 3176-3181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1319]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 450

[FHWA Docket No. FHWA-99-5933]
FHWA RIN 2125-AE95; FTA RIN 2132-AA75


Statewide Transportation Planning; Metropolitan Transportation 
Planning

AGENCY: Federal Highway Administration (FHWA), DOT

ACTION: Final rule.

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SUMMARY: The FHWA, after consultation with the Federal Transit 
Administration (FTA), amends the planning regulation regarding the 
development of statewide plans and programs. Specifically, this action 
amends the planning regulation as it relates to consultation with non-
metropolitan local officials. This action implements the provisions of 
the Transportation Equity Act for the 21st Century (TEA-21) regarding 
the consultation with non-metropolitan local officials in the statewide 
and metropolitan planning processes.

EFFECTIVE DATE(S): February 24, 2003.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Ms. Jill Hochman, Office 
of Interstate and Border Planning (HEPI), (202) 366-0233, or Mr. Reid 
Alsop, Office of the Chief Counsel (HCC-30), (202) 366-1371. For the 
FTA: Mr. Paul Verchinski, Statewide Planning Division (TPL-11), (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, DC 20590-0001. 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:

Electronic Access

    Internet users can 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 also 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

    Section 1025 of the Intermodal Surface Transportation Efficiency 
Act of 1991 (ISTEA), Public Law 102-240, 105 Stat. 1914, (December 18, 
1991), amended title 23, United States Code (U.S.C.), section 135 and 
established a requirement for Statewide Transportation Planning and 
stated, ``The transportation needs of non-metropolitan areas should be 
considered through a process that includes consultation with local 
elected officials with jurisdiction over transportation.'' Section 1204 
of the TEA-21, Public Law 105-178, 112 Stat. 107 (June 9, 1998), 
further amended 23 U.S.C. 135, while preserving the statewide planning 
requirement for a continuing, comprehensive and cooperative planning 
process. The TEA-21 required States to consult with non-metropolitan 
local officials in transportation planning and programming. This 
consultation with non-metropolitan local officials in transportation 
planning and programming is the specific subject of this final rule.
    The FHWA and the FTA published a joint notice of proposed 
rulemaking (NPRM) on May 25, 2000 (65 FR 33922), that proposed 
revisions to the existing planning regulations issued on October 28, 
1993, at 58 FR 58040. The May 2000 Planning NPRM included provisions 
regarding consultation with non-metropolitan local officials, and 
proposed that States establish and document a process for consultation 
with defined non-metropolitan local officials. The NPRM also proposed 
to require that this process be established jointly with non-
metropolitan local officials. Comments were solicited until August 23, 
2000 (later extended to September 23, 2000, by a July 7, 2000, Federal 
Register notice at 65 FR 41891).
    On June 19, 2002 the FHWA published a supplemental notice of 
proposed rulemaking (SNPRM) (67 FR 41648), which proposed another 
option on non-metropolitan local official consultation in addition to 
that proposed in the NPRM. Generally the SNPRM proposed to allow 
greater flexibility for States to determine who local officials are and 
how to consult with them, by not proposing a definition of ``non-
metropolitan local official,'' and not proposing to require that the 
process for consultation be cooperatively developed. Comments were 
solicited until August 19, 2002 (later extended to September 19, 2002, 
by an August 15, 2002, Federal Register notice at 67 FR 53326).
    On September 20, 2002, the FHWA and the FTA withdrew the May 2000 
NPRM at 67 FR 59219. However, this withdrawal did not impact the NPRM 
and SNPRM proposals for non-metropolitan local official consultation.

Input to Development of the Final Rule

    During the comment period on the NPRM (May 25, 2000, through 
September 23, 2000), the FTA and the FHWA held seven public meetings to 
present information on the May 2000 Planning NPRM. A summary of 
questions raised at the meetings and the general responses of the FHWA 
and the FTA presenters is included in the docket. The FHWA and the FTA 
also prepared a summary of all written comments, by section, which is 
included in the docket. During the NPRM comment period, the Senate 
Environment and Public Works and House Transportation and 
Infrastructure Committees held hearings (September

[[Page 3177]]

12 and 13, 2000) regarding the May 2000 Planning NPRM. The FHWA and the 
FTA also reviewed and considered the comments and questions raised at 
these hearings.
    The House report that accompanied the U.S. DOT Appropriations Act 
for fiscal year (FY) 2002, and the conference report for the Department 
of Defense FY 2002 Appropriations Act, which contained several 
transportation issues, directed the U.S. DOT to promulgate a final 
rule, no later than February 1, 2002, to ensure transportation 
officials from rural areas are consulted in long range transportation 
planning and programming.

Discussion of Comments on the SNPRM Related to Local Official 
Consultation

    We have carefully reviewed all comments received to the docket. We 
received 172 documents to the docket on the SNPRM, representing 155 
discrete comments. They were from: local governments, Metropolitan 
Planning Organizations (MPO), Councils of Governments (COG) and 
regional governments, State DOTs, associations representing these 
organizations, tribal governments, and private citizens. They generally 
expressed diverse views consistent with those expressed in the docket 
to the May 2000 NPRM.
    The makeup of commenters is in the chart below, followed by a 
general discussion of their comments:

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                                              Comments received
             Type of commenter                  (% of total comments)
------------------------------------------------------------------------
Local government..........................  58 (38)
MPO, COG, Regional Planning...............  33 (21)
State DOT.................................  21 (14)
National and Regional Associations/         19 (12)
 Advocacy Groups.
State and Federal Officials...............  3 (2)
Tribal Government.........................  5 (3)
Private Citizens..........................  16 (10)
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    Local governments, MPOs, COGs, regional governments and the 
associations representing these organizations generally expressed 
preference for the consultation option proposed by the May 2000 NPRM. 
Fifty-two of these comments from local governments, MPOs, COGs and 
regional governments requested that a definition of non-metropolitan 
officials be included in the final rule. Thirty expressed the need to 
include a requirement for an established consultation process. Twenty-
eight suggested that there be a requirement in the final rule that the 
consultation process be developed jointly between States and local 
officials and that there be accountability in the consultation process. 
Forty-nine suggested that the FHWA and the FTA have the ability to 
consider local official participation when certifying the Statewide 
Transportation Improvement Program (STIP).
    State DOTs generally supported the regulatory language proposed in 
the June 2002 SNPRM, which proposed to allow State flexibility to 
determine who local officials are and how to consult with them. State 
DOTs, however, did express concern with some provisions in the SNPRM. 
Sixteen focused on the definition of ``consultation,'' with 14 
suggestions for clarification and modification. Fifteen comments were 
on the statewide transportation planning process with a range of 
suggestions, from retaining the current language to modifying the 
language to limit consultation to transportation related activities. 
Sixteen expressed concern about the use of the term ``effective'' in 
the public involvement provisions. Thirteen expressed concerns about 
the phase-in period.
    We also received comments from five tribal governments. Commenters 
expressed concern that the language did not go far enough in addressing 
tribal participation in the statewide transportation process, and 
suggested that each State must be compelled to develop a consultation 
process with tribal governments. The primary focus of this action is on 
consultation between State DOTs and non-metropolitan local elected 
officials. Therefore, specific provisions in existing regulatory 
language related to tribal governments are not being changed by this 
action, except for the change in the definition of consultation 
(discussed in the section-by-section analysis below).
    Towards the end of the comment period, the National Association of 
Counties (NACO) representing local governments, the National 
Association of Development Organizations (NADO) representing local 
officials, and the American Association of State Highway and 
Transportation Officials (AASHTO) representing the State DOTs, jointly 
developed proposed regulatory language and submitted it to the docket. 
This language addresses many, if not most, of the comments received. 
The FHWA and the FTA reviewed the suggested language and find that it 
has merit because it comes from the organizations whose members are 
most impacted by the final rule. Therefore, we relied heavily on their 
suggested language to formulate this final rule.

Section-by-Section Analysis

    The FHWA and the FTA carefully analyzed all the comments to the 
docket for both the May 2000 NPRM and the June 2002 SNPRM in 
formulating this final rule. We believe this rule strikes a balance 
among the various interests. This section-by-section analysis only 
addresses those sections of 23 CFR 450 that affect consultation with 
non-metropolitan local officials (Sec. Sec.  450.104, 450.206, 450.212, 
450.214, 450.216 and 450.224).

Section 450.104 Definitions

Consultation
    The June 2002 SNPRM proposed a new definition of ``consultation'' 
in response to comments received to the docket that the definition 
proposed in the May 2000 NPRM was too formalized and burdensome.
    Fifty-one discrete comments were received on the definition of 
``consultation'' proposed in the June 2002 SNPRM. Seventeen of those 
comments came from State DOTs. Three supported the proposed definition.
    Twelve States commented on the language ``keeps that party 
informed.'' Five States were concerned that ``keeps that party 
informed'' meant individual updates to each party consulted with and 
requested clarification. Six States suggested modifying the language to 
``and informs that party about action(s) taken.'' The Pennsylvania DOT 
suggested revising the language to ``and periodically informs that 
party about action(s) taken'' to allow for greater State flexibility in 
meeting the requirement of the definition.
    Thirty local governments, associations representing them, and 
advocacy groups expressed concern that a reference to an 
``established'' consultation process was not included in the proposed 
definition of ``consultation'' in the SNPRM.
    Caltrans, the California DOT, also commented on the lack of a 
reference to an ``established'' process in the definition. Caltrans 
pointed out that a reference to an ``established'' process is contained 
elsewhere in the SNPRM, and suggested that this inconsistency be 
clarified.
    One private citizen supported the definition as proposed in the 
SNPRM.
    The NACO-NADO-AASHTO proposed regulatory language included a 
reference to an ``established'' consultation process. It also modified 
language regarding keeping parties informed. In the NACO-NADO-AASHTO 
proposed definition, ``Consultation means that one party confers with 
another identified party in accordance with an established process

[[Page 3178]]

and, prior to taking action(s), considers that party's views and 
periodically informs that party about action(s) taken.''
    Based on the comments received, the final rule uses the definition 
in the NACO-NADO-AASHTO proposed regulatory language. This definition 
is consistent with statutory language, resolves inconsistencies, 
includes a reference to an established consultation process, and 
focuses on keeping other parties informed.
Non-Metropolitan Area
    In the June 2002 SNPRM, we proposed adding the definition of ``non-
metropolitan area.'' The proposed definition recognized that there are 
a variety of local officials who serve non-metropolitan areas. This 
definition specified the geographic area served by non-metropolitan 
officials to distinguish them from local officials in metropolitan 
planning areas who are involved through the MPO.
    We received six comments on this proposed definition in the June 
2002 SNPRM. All supported the definition. The definition proposed in 
the SNPRM is retained in the final rule.
Non-Metropolitan Local Official
    In the May 2000 Planning NPRM we proposed adding the definition of 
a ``non-metropolitan local official.'' This definition was not included 
in the June 2002 SNPRM.
    Over 50 commenters requested that the FHWA and the FTA include a 
definition for this term in the final rule. Specifically, 23 local 
governments, 16 regional planning organizations, 9 associations, and 3 
private citizens expressed concern that the definition for this term 
had been removed from the SNRPM. They commented that by allowing the 
States sole discretion to determine which non-metropolitan local 
officials to consult with, many rural officials will be excluded. They 
also commented that this did not fulfill the Congressional intent of 
``enhanced consultation between States and local officials.''
    The NACO-NADO-AASHTO proposed regulatory language included a 
proposed definition for ``non-metropolitan local official'' as 
``elected and appointed officials of general purpose local government 
in non-metropolitan areas with jurisdiction/responsibility for 
transportation as defined in the documented consultation process in 
Part 450, Section 212.''
    After considering the comments received, the FHWA and the FTA have 
included a definition of ``non-metropolitan local official'' in the 
final rule that is based on the NACO-NADO-AASHTO proposed regulatory 
language. The definition provides a clear statement that non-
metropolitan local officials are ``elected and appointed officials of 
general purpose local government in non-metropolitan areas with 
jurisdiction/responsibility for transportation.''

Section 450.206 Statewide Transportation Planning Process: General 
Requirements

    Section 1204 of the TEA-21 clearly emphasizes the importance of 
recognizing non-metropolitan transportation issues and consulting with 
non-metropolitan local officials. In the June 2002 SNPRM, the FHWA and 
the FTA proposed revising Sec.  450.206(b) and adding a new Sec.  
450.206(c) to clarify that effective consideration of non-metropolitan 
transportation issues and concerns and involvement of non-metropolitan 
local officials can be enhanced by coordinating statewide 
transportation planning with related planning in non-metropolitan 
areas.
    There were 19 comments on this provision. Four regional planning 
organizations supported the regulatory language proposed in the June 
2002 SNPRM. Nine State DOTs suggested amending ``planning activities'' 
in Sec.  450.206(b) to ``transportation-related planning activities'' 
because they believed that without this change, State DOTs would be 
required to consult on non-transportation planning activities.
    This section is specific to the statewide transportation planning 
process, and it is self-evident that the ``planning activities'' 
referred to in this section are related to transportation. Therefore, 
the FHWA and the FTA are not modifying it to specify transportation-
related planning activities.
    Three States also suggested modifying the language such that states 
``consider'' planning outside of the metropolitan areas to be clear 
that coordination with non-metropolitan local officials is not 
required, as it is with metropolitan local officials. These commenters 
stated that a coordination requirement for non-metropolitan areas would 
exceed statutory authority, which only requires a ``consultation'' 
relationship.
    The NACO-NADO-AASHTO proposed regulatory language would require 
States to ``consider coordination with planning activities being 
carried out outside of the metropolitan areas.''
    The FHWA and the FTA agree with comments that the requirements for 
metropolitan areas and non-metropolitan areas are distinctly delineated 
in the statute. We have taken the NACO-NADO-AASHTO proposed regulatory 
language and modified it to require States to ``consider coordination 
with planning activities in non-metropolitan areas.'' The final rule 
includes a definition for the term ``non-metropolitan area.'' The final 
rule also simplifies the suggested NACO-NADO-AASHTO proposed regulatory 
language.
    The June 2002 SNPRM proposed a new subpart 450.206(c) that says 
that States shall ``consider, with respect to non-metropolitan areas, 
the concerns of local elected officials representing units of general 
purpose local government.'' Three State DOTs requested editorial 
clarification on this proposed provision. The FHWA and the FTA believe 
that the provision is clear and have adopted as final the regulatory 
language proposed in the June 2002 SNPRM.

Section 450.212 Public Involvement

    In developing the June 2002 SNPRM, the FHWA and the FTA considered 
comments received to the docket on this provision in the May 2000 NPRM. 
In addition, the FHWA and the FTA used information from other sources, 
including the FHWA-FTA study on participation of non-metropolitan local 
officials required by the TEA-21 and ten rural listening sessions held 
throughout the country.\1\ The June 2002 SNPRM proposal focused on the 
intended result of ``effective participation'' of local officials in 
statewide transportation planning.
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    \1\ The non-metropolitan local officials report has been 
transmitted to Congress and has been placed in the SNPRM docket. The 
report and its appendices (Rural Transportation Consultation 
Processes, May 2000, Rural Transportation Consultation Processes: 
State by State Summaries, April 2001, and Rural Transportation 
Consultation Processes: Report of a Workshop: May 2001) will soon be 
available at the following URL: http://www.fhwa.dot.gov/planning.htm. A summary of each of the ten rural workshops held in 
1998-99 (Rural Transportation Planning Workshops, Summer 1999) is 
available at the following URL: http://www.fhwa.dot.gov/hep10/state.rural.html. These reports are in the May 2000 NPRM docket.
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    Thirteen states commented that the language ``effective 
participation'' in Sec.  450.212(h) of the June 2002 SNPRM is a 
subjective term that exceeds statutory language in TEA-21. Section 1204 
of TEA-21 states that USDOT will not ``review or approve'' a State's 
consultation process.
    The Pennsylvania DOT suggested that the regulatory language state: 
``that provides an opportunity for their participation'' rather than 
``that provides for their effective participation.''
    The NADO-NACO-AASHTO proposed regulatory language included language 
identical to that proposed by Pennsylvania DOT. It also included a

[[Page 3179]]

requirement that the State's documented process for consulting with 
non-metropolitan officials be ``separate and discrete'' from the public 
involvement process.
    The FHWA and the FTA agree that the use of the term ``effective'' 
is subjective. We included the language suggested by Pennsylvania to be 
more consistent with the statutory provisions in TEA-21 in this final 
rule. We also included language requiring that the State's process for 
consulting with non-metropolitan officials be separate and discrete 
because TEA-21 makes a clear distinction between the metropolitan and 
non-metropolitan officials. The new requirement is included in the 
final rule as subpart 450.212 (h).
    We received 28 comments recommending that the State and local 
officials jointly develop the consultation process. Most of these 
comments were from local governments, regional planning organizations, 
associations representing them, and interest groups.
    The NACO-NADO-AASHTO proposed regulatory language suggested a new 
subpart 450.212(i). This new subpart requires that ``The State shall 
review and solicit comments from non-metropolitan local officials and 
other interested parties for a period of not less than 60 days 
regarding the effectiveness of the consultation process and proposed 
modification within 2 years of process implementation, and thereafter 
at least once every 5 years. A specific request for comments shall be 
directed to the State association of counties, State municipal league, 
regional planning agencies, or directly to non-metropolitan local 
officials.''
    In addition, 49 commenters indicated that there should be 
accountability in the consultation process. Most of these comments came 
from local governments, regional planning organizations, associations 
representing them, and interest groups. One measure of accountability 
suggested by these commenters was that the FHWA and the FTA use their 
authority to consider local official participation when certifying the 
STIP.
    The NACO-NADO-AASHTO proposed regulatory language includes a 
requirement regarding accountability. The suggestion is that ``The 
State, in its discretion, shall be responsible for determining whether 
to adopt proposed modifications. If a proposed modification is not 
adopted, the State shall make publicly available its reasons for not 
accepting the proposed modifications, including notification to non-
metropolitan local officials of their associations.''
    The FHWA and the FTA agree that the NACO-NADO-AASHTO proposed 
regulatory language reflects the concept of effective participation as 
well as accountability. The TEA-21 and the June 2002 SNPRM both focused 
on this type of result. Therefore, the agencies include the suggestion 
of the NACO-NADO-AASHTO proposed regulatory language in the final rule 
as a new subpart 450.212(i).

Section 450.214 Statewide Transportation Plan

    Section 1204 of the TEA-21 specifically states ``with respect to 
each non-metropolitan area, the long-range transportation plan shall be 
developed in consultation with affected local officials with 
responsibility for transportation.'' This language is now codified at 
23 U.S.C. 135(e)(2)(B). Therefore, in the June 2002 SNPRM, the FHWA and 
the FTA proposed adding Sec.  450.214(f). This was intended to reflect 
the intent of the statute by proposing language that required affected 
local officials with responsibility for transportation to be involved 
on a consultation basis in developing the statewide transportation plan 
as it relates to the non-metropolitan areas of the State.
    Ten States commented on this proposal. The majority of the States 
supported the provision as written. Some States requested clarification 
that affected local officials are to be consulted only on portions of 
the plan that affect their areas.
    The FHWA and FTA believe that it is evident that local officials 
are to be consulted only on those portions of the plan that affect 
their areas. We adopted as final the language proposed in the June 2002 
SNPRM that requires the involvement of local officials with 
responsibility for transportation to be involved in the development of 
the statewide transportation plan in non-metropolitan areas of the 
State.

Section 450.216 Statewide Transportation Improvement Program (STIP)

    Section 1204 of the TEA-21 specifically states ``with respect to 
each non-metropolitan area in the State, the program shall be developed 
in consultation with affected local officials with responsibility for 
transportation.'' This language is now codified at 23 U.S.C. 
135(f)(1)(B)(ii)(I). Therefore, in the June 2002 SNPRM, the FHWA and 
the FTA proposed adding Sec.  450.216(e) to reflect the intent of the 
statute by proposing language that requires affected local officials 
with responsibility for transportation to be involved on a consultation 
basis in developing the STIP as it relates to the non-metropolitan 
areas of the State.
    Eleven States commented on this provision in the SNPRM. The 
majority of the States supported the provision as written. Some States 
requested clarification that affected local officials are to be 
consulted only on portions of the program plan that affect their areas.
    The FHWA and FTA believe that it is evident that local officials 
are to be consulted only on those portions of the program that affect 
their areas. We adopted as final the language proposed in the June 2002 
SNPRM that requires the involvement of local officials with 
responsibility for transportation to be involved in the development of 
the statewide transportation improvement program in non-metropolitan 
areas of the State.

Section 450.224 Phase-in of New Requirements

    The June 2002 SNPRM proposed a six-month phase-in period. We 
received 13 comments from State DOTs and 2 comments from regional 
planning organizations regarding this provision.
    Four State DOTs and 2 regional planning organizations supported the 
phase-in provision as proposed in the June 2002 SNPRM. The other 
commenters supported a phase-in requirement but with different time 
frames. Three States commented that six months would not be adequate 
and four States commented that the phase-in requirement should 
accommodate the planning cycles of various States.
    The NACO-NADO-AASHTO proposed regulatory language recommended a 
one-year phase-in period.
    The FHWA and the FTA recognize the differences among the planning 
cycles of the States. In the final rule we have extended the phase-in 
period to one year (to end one year after the effective date of this 
rule), which will allow States additional time to implement the 
consultation requirements, and also accommodates the differences in the 
planning cycles of various States. After this period, the consultation 
aspects of the statewide transportation planning process will be 
emphasized as we assess the planning process and make the Federal 
planning finding required in 23 CFR 450.220(b) and 23 U.S.C. 135(f)(4).

Rulemaking Analyses and Notices

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

    The FHWA and the FTA have determined that this action is a

[[Page 3180]]

significant regulatory action within the meaning of Executive Order 
12866 and the U.S. Department of Transportation regulatory policies and 
procedures, because of a substantial public interest. The agencies 
anticipate that the economic impact of this rulemaking will be minimal. 
This action amends a portion of the current planning regulations for 
which substantial financial assistance is provided to the States by 
both the FHWA and the FTA to support compliance with the requirements 
of the regulation.
    This final rule will not adversely affect, in a material way, any 
sector of the economy. In addition, these changes will not interfere 
with any action taken or planned by another agency and will not 
materially alter the budgetary impact of any entitlements, grants, user 
fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), the FHWA and the FTA have evaluated the effects of 
this final rule on small entities and has determined it will not have a 
significant economic impact on a substantial number of small entities.
    The modifications in this final rule are substantially dictated by 
the statutory provisions of the TEA-21 and the agencies believe that 
the flexibility available to the States in those provisions has been 
maintained. For these reasons, the FHWA and the FTA certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub L. 104-4, March 22, 1995, 109 
Stat. 48). This rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million in any one year.
    The requirements of 23 U.S.C. 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 up to twenty 
percent of the total cost. The FHWA and the FTA believe that the cost 
of complying with these requirements is predominately covered by the 
funds they administer. The costs of compliance with the requirements of 
the planning program as a whole are eligible for funding; therefore, 
this action will not create an unfunded mandate.
    Additionally, the definition of ``Federal mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or tribal governments have authority to adjust their 
participation in the program in accordance with changes made in the 
program by the Federal government. The Federal-aid highway program and 
the Transit program permit this type of flexibility to the States.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the agencies have 
determined that this action does not have sufficient federalism 
implications to warrant the preparation of a Federalism assessment. The 
FHWA and the FTA have also determined that this action does not preempt 
any State law or State regulation or affect the States' ability to 
discharge traditional State governmental functions.
    Throughout the course of this rulemaking, several States raised 
concern about burdens imposed by the requirement to consult with non-
metropolitan local officials. The ISTEA and the TEA-21 require such 
consultation. In this final rule the FHWA and the FTA expect that 
existing consultation procedures often may be used to comply with these 
requirements.
    The agencies further note that the transportation planning 
activities required by the planning regulations, as amended by this 
final rule, are conditions for the receipt of Federal transportation 
financial assistance and are reimbursable expenses. Under the 
provisions of title 23 and title 49, chapter 53, U.S.C., the Federal 
government reimburses at least 80 percent of the costs to complete 
required transportation plans and transportation improvement programs.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction; 20.500 Federal Transit Capital 
Improvement Grants; 20.505, Federal Transit Metropolitan Planning 
Grants; 20.507, Federal Transit Formula Grants; 20515, State Planning 
and Research. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

National Environmental Policy Act

    The FHWA and the FTA have analyzed this action for the purpose of 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and 
have determined that this action will not have any effect on the 
quality of environment.

Executive Order 13175 (Tribal Consultation)

    The FHWA and the FTA have analyzed this action under Executive 
Order 13175, dated November 6, 2000. This action 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.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. Although this proposal is a significant 
regulatory action under Executive Order 12866, we have determined that 
it is not a significant energy action under that order, because it 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 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 action 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 action will not effect a taking of private property or 
otherwise have taking implications under Executive

[[Page 3181]]

Order 12630, Government Actions and Interference with Constitutionally 
Protected Property Rights.

Regulation Identification Number

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List of Subjects in 23 CFR Part 450

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

    Issued on: January 15, 2003.
Mary E. Peters,
Federal Highway Administrator.
Jennifer L. Dorn,
Federal Transit Administrator.

    In consideration of the foregoing, the Federal Highway 
Administration is amending title 23, Code of Federal Regulations, 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, and 315; and 49 U.S.C. 5303-5306, 
5323(l).

    2. Amend Sec.  450.104 to revise the definition of ``consultation'' 
and add, in alphabetical order, the definition for ``non-metropolitan 
area'' and ``non-metropolitan local official'' to read as follows:


Sec.  450.104  Definitions.

* * * * *
    Consultation means that one party confers with another identified 
party in accordance with an established process and, prior to taking 
action(s), considers that party's views and periodically informs that 
party about action(s) taken.
* * * * *
    Non-metropolitan area means the geographic area outside designated 
metropolitan planning areas, as designated under 23 U.S.C. 134 and 49 
U.S.C. 5303.
    Non-metropolitan local official means the elected or appointed 
officials of general purpose local government, in non-metropolitan 
areas, with jurisdiction/responsibility for transportation.
* * * * *

    3. Amend Sec.  450.206 to revise paragraph (b) and to add paragraph 
(c) as follows:


Sec.  450.206  Statewide transportation planning process: General 
requirements.

* * * * *
    (b) The statewide transportation planning process shall be carried 
out in coordination with the metropolitan planning process required by 
subpart C of this part and shall consider coordination with planning 
activities in non-metropolitan areas.
    (c) In carrying out statewide transportation planning, the State 
shall consider, with respect to non-metropolitan areas, the concerns of 
local elected officials representing units of general purpose local 
government.

    4. Amend Sec.  450.212 by adding new paragraphs (h) and (i) to read 
as follows:


Sec.  450.212  Public involvement.

* * * * *
    (h) The State shall provide for non-metropolitan local official 
participation. The State shall have a documented process(es) that is 
separate and discrete from the public involvement process for 
consulting with non-metropolitan local officials representing units of 
general purpose local government and/or local officials with 
responsibility for transportation that provides an opportunity for 
their participation in the statewide transportation planning process 
and development of the statewide transportation improvement program.
    (i)The State shall review and solicit comments from non-
metropolitan local officials and other interested parties for a period 
of not less than 60 days regarding the effectiveness of the 
consultation process and proposed modifications within 2 years of 
process implementation, and thereafter at least once every 5 years. A 
specific request for comments shall be directed to the State 
association of counties, State municipal league, regional planning 
agencies, or directly to non-metropolitan local officials. The State, 
at its discretion, shall be responsible for determining whether to 
adopt any proposed modifications. If a proposed modification is not 
adopted, the State shall make publicly available its reasons for not 
accepting the proposed modification, including notification to non-
metropolitan local officials or their associations.

    5. Amend Sec.  450.214 by adding a paragraph (f) to read as 
follows:


Sec.  450.214  Statewide transportation plan.

* * * * *
    (f) In developing the statewide transportation plan, affected local 
officials with responsibility for transportation shall be involved on a 
consultation basis for the portions of the plan in non-metropolitan 
areas of the State.

    6. Amend Sec.  450.216 by adding a paragraph (e) to read as 
follows:


Sec.  450.216  Statewide transportation improvement program (STIP).

* * * * *
    (e) In developing the statewide transportation improvement program, 
affected local officials with responsibility for transportation shall 
be involved on a consultation basis for the portions of the program in 
non-metropolitan areas of the State.

    7. Amend Sec.  450.224 by designating the existing text as 
paragraph (a) and by adding a new paragraph (b) to read as follows:


Sec.  450.224  Phase-in of new requirements.

* * * * *
    (b) The State has a period of one year after February 24, 2003 to 
document and implement the consultation process discussed in Sec.  
450.212(h).

[FR Doc. 03-1319 Filed 1-22-03; 8:45 am]
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