[Federal Register Volume 72, Number 30 (Wednesday, February 14, 2007)]
[Rules and Regulations]
[Pages 7224-7286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-493]



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Part III





Department of Transportation





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Federal Highway Administration



23 CFR Parts 450 and 500



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Federal Transit Administration

49 CFR Part 613



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Statewide Transportation Planning; Metropolitan Transportation 
Planning; Final Rule

  Federal Register / Vol. 72, No. 30 / Wednesday, February 14, 2007 / 
Rules and Regulations  

[[Page 7224]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 450 and 500

Federal Transit Administration

49 CFR Part 613

[Docket No. FHWA-2005-22986]
RIN 2125-AF09; FTA RIN 2132-AA82


Statewide Transportation Planning; Metropolitan Transportation 
Planning

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

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations governing the 
development of metropolitan transportation plans and programs for 
urbanized areas, State transportation plans and programs and the 
regulations for Congestion Management Systems. The revision results 
from the passage of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 
109-59, August 10, 2005), which also incorporates changes initiated in 
its predecessor legislation, the Transportation Equity Act for the 21st 
Century (TEA-21) (Pub. L. 105-178, June 9, 1998) and generally will 
make the regulations consistent with current statutory requirements.

EFFECTIVE DATE: March 16, 2007.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Larry D. Anderson, 
Planning Oversight and Stewardship Team (HEPP-10), (202) 366-2374, Mr. 
Robert Ritter, Planning Capacity Building Team (HEPP-20), (202) 493-
2139, or Ms. Diane Liff, Office of the Chief Counsel (HCC-10), (202) 
366-6203. For the FTA: Mr. Charles Goodman, Office of Planning and 
Environment, (202) 366-1944, Mr. Darin Allan, Office of Planning and 
Environment, (202) 366-6694, or Mr. Christopher VanWyk, Office of Chief 
Counsel, (202) 366-1733. Both agencies are located at 400 Seventh 
Street SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 
4:15 p.m for FHWA, and 9 a.m. to 5:30 p.m. for FTA, Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    Interested parties may access all comments on the NPRM received by 
the U.S. Department of Transportation (USDOT) online through the Docket 
Management System (DMS) at http://dms.dot.gov. The DMS Web site is 
available 24 hours each day, 365 days each year. Follow the 
instructions online. Additional assistance is available at the help 
section of the Web site.
    An electronic copy of this final rule may be downloaded using the 
Office of the Federal Register's Web page at: http://www.archives.gov 
and the Government Printing Office's Web page at: http://www.gpoaccess.gov/index.html.

Background

    The regulations found at 23 CFR 450 and 500 and 49 CFR 613 outline 
the requirements for State Departments of Transportation (DOTs), 
Metropolitan Planning Organizations (MPOs) and public transportation 
operators to conduct a continuing, comprehensive and coordinated 
transportation planning and programming process in metropolitan areas 
and States. These regulations have not been comprehensively updated or 
revised since October 28, 1993. Since that time, Congress has enacted 
several laws that affect the requirements outlined in these regulations 
(e.g. such as the TEA-21 and the SAFETEA-LU). Therefore, the agencies 
needed to update these regulations to be consistent with current 
statutory requirements.

Notice of Proposed Rulemaking:

    On June 9, 2006, the agencies published, in the Federal Register, a 
notice of proposed rulemaking (NPRM) proposing to revise the 
regulations governing the development of statewide and metropolitan 
transportation plans and programs and the regulations for Congestion 
Management Systems (71 FR 33510). The comment period remained open 
until September 7, 2006. During the comment period on the proposed 
rule, the FTA and the FHWA held six public outreach workshops and a 
national telecast, also available on the World Wide Web. Those meetings 
provided an opportunity for FTA and FHWA to provide an overview of the 
NPRM and offer clarification of selected provisions. Comments were not 
solicited at those meetings, and attendees were encouraged to submit 
all comments to the official docket. A summary of the issues raised at 
the meetings and the general response of the FTA and the FHWA 
presenters, along with copies of the materials presented at the 
meeting, is included in the docket (item Number 27).
    In addition, the FHWA and the FTA responded to requests for 
presentations at several regularly scheduled meetings or conferences of 
national and regional professional, industry or advocacy organizations 
during the comment period of the NPRM.

Discussion of Comments

    In response to the NPRM, we received over 150 documents 
(representing more than 1,600 comments) submitted to the docket as 
reflected in the summary below (and spreadsheet on file in the docket). 
The following discussion summarizes our response. 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 categorized the comments received by the type of organization 
that submitted the comments. The following categories are used 
throughout this discussion: State DOTs; MPOs, councils of government 
(COGs) and regional planning agencies; national and regional 
professional, industry or advocacy organization (which includes 
organizations representing State DOTs, MPOs, COGs or other agencies 
whose individual comments may be included in a different category), 
local/regional transit agency; general public; city/county (other sub-
State government); State (other agency, Governor, Legislator); Federal 
agency and other.
    State DOTs submitted almost one-quarter of the documents, which 
account for almost one-third of all comments. MPOs, COGs and regional 
planning agencies submitted slightly more than one-third of the 
documents, also accounting for approximately one-third of the comments. 
National and regional professional, industry or advocacy organizations 
submitted over one-quarter of the documents and approximately one-
quarter of the comments. Local/regional transit agencies submitted 
approximately 5 percent of the documents. Other organizations or 
individuals submitted the remainder. Most State DOTs and some other 
commenters wrote in support of the comments submitted by the American 
Association of State Highway and Transportation Officials (AASHTO). 
Many MPOs and COGs and some other commenters wrote in support of the 
comments submitted by the Association of Metropolitan Planning 
Organizations (AMPO) and/or the National Association of Regional 
Councils (NARC). Several public transportation operators and others 
wrote in support of the comments submitted by the American Public 
Transportation Association (APTA).
    The FHWA and the FTA received comments on almost all sections of 
the

[[Page 7225]]

rule. The largest number of individual comments we received were on 
fiscal constraint issues. Other sections with more than five percent of 
the overall comments included: Sec.  450.104 (Definitions), Sec.  
450.216 (Development and content of the statewide transportation 
improvement program (STIP)), Sec.  450.322 (Development and content of 
the metropolitan transportation plan), and Sec.  450.324 (Development 
and content of the transportation improvement program).
    Several national and regional advocacy organizations, a few State 
DOTs and MPOs, some transit agencies and others suggested changes that 
go beyond what is required by statute. The FHWA and the FTA have 
adhered closely to the statutory language in drafting the regulation. 
Over time, and as necessary, the FHWA and the FTA will continue to 
issue additional guidance and disseminate information on noteworthy 
practices that may address these suggestions.
    In response to several comments, specific regulatory reference to a 
Regional Transit Security Strategy (RTSS), including its definition, 
was removed due to the concern for possible disclosure of security-
sensitive information in the planning process. Further, an RTSS is not 
required universally of all metropolitan areas and States. Regulatory 
language in both the metropolitan and statewide transportation planning 
sections was revised to make broad reference to the need for 
coordination with ``appropriate'' transit security-related plans, 
programs, and decision-making processes.
    One national and regional professional, industry or advocacy 
organization suggested the incorporation of the Real Time System 
Management Information Program (required by Sec.  1201 of the SAFETEA-
LU) into the statewide transportation planning process. While the FHWA 
and the FTA agree that current, good quality data can improve effective 
transportation decisions and is key to effective operation and 
management strategies, we recognize each State's need to determine 
their appropriate statewide coordinated data collection program to 
support their individual planning process. We encourage the States to 
consider including real-time data, provided by the Real Time System 
Management Information Program, but have not included a requirement in 
this rule.
    The FHWA and the FTA were asked to evaluate whether the leadership 
posts on MPO boards were acting in an impartial manner. A few 
organizations expressed concern that non-metropolitan or non-elected 
officials who serve as board chairs may have conflicts of interest that 
undermine local control of transportation funding. The FHWA and the FTA 
will consider conducting such a study as part of their discretionary 
research programs. Currently, we do not have enough information on this 
subject for incorporation into this rule.
    Several documents providing research, data, and analysis on various 
issues related to transportation, planning and environment were 
submitted to the docket. The FHWA and the FTA have reviewed these 
documents and considered the information in developing this rule.
    The FHWA and the FTA were asked to recognize regional planning 
organizations/regional transportation planning organizations (RPOs/
RTPOs) throughout the rule as stakeholders and interested parties in 
the transportation planning process in States where they are 
established by law. Although the rule is silent on RPOs/RTPOs, Sec.  
450.208(a)(6) highlights that statewide transportation planning needs 
to coordinate with related planning activities being conducted outside 
of metropolitan planning areas. The FHWA and the FTA recognize that the 
RPO/RTPO planning process and activities should be input into the 
statewide transportation planning process. Further, many of the RPOs/
RTPOs are recognized as forms of local government, and are addressed in 
Sec.  420.210 (Interested parties, public involvement and 
consultation).
    A few commenters observed that many small MPOs have very little 
funding from USDOT or non-USDOT sources, have very limited staffs, and 
limited consultant or technical support resources of their own. The 
FHWA and the FTA were urged to find ways to scale the regulatory 
requirements to fit the size and scope of smaller MPOs. We noted this 
comment and have tried to provide as much flexibility in the rule as 
practicable. We have provided some streamlined requirements for the 
non-transportation management area (TMA) MPOs, such as Simplified 
Statement of Work and grouping of projects within the transportation 
improvement program (TIP). The MPO is responsible for developing a 
planning process that is appropriate for its communities, given the 
resources and technical capability of the MPO.
    Several State DOTs and a national and regional advocacy 
organization objected to including guidance documents with the 
regulations as Appendices A and B. These commenters noted that by 
including these documents with the regulation as appendices, the 
guidance documents would have the force and effect of law and, as a 
result, would ``open up FHWA and FTA (and thus the States and MPOs) to 
litigation challenges based on a selective reading of short passages in 
these lengthy documents.'' Therefore, these commenters requested 
removal of the appendices. Additionally, these commenters were 
concerned that including these guidance documents with the regulation 
would make it more difficult to change these documents in response to 
evolving practices, as any change would require a rulemaking action.
    The Office of the Federal Register, pursuant to the Federal 
Register Act (44 U.S.C. Chapter 15) has established criteria for 
publishing material in the Federal Register and the Code of Federal 
Regulations. Under these criteria, agencies may use an appendix to 
improve upon the quality or use of a regulation, but not to impose 
requirements or restrictions. Additionally, agencies may not use an 
appendix as a substitute for regulatory text.\1\ The information the 
FHWA and the FTA proposed to include in appendices A and B is intended 
to be non-binding guidance. Therefore, we believe that State DOTs and 
MPOs would not be subject to increased litigation based on inclusion of 
these appendices.
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    \1\ Federal Register Document Drafting Handbook, October 1998 
Revision. National Archives and Records Administration, Office of 
the Federal Register. It is available at the following URL: http://www.archives.gov/federal-register/write/handbook/ddh.pdf.
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    We believe that Appendix A, Linking the Transportation Planning and 
NEPA Processes, provides explanatory information that amplifies the 
rule and does not add any additional requirements and would not be 
subject to many changes. Therefore, we have decided to keep Appendix A, 
but are adding a disclaimer to this effect in the introduction of 
Appendix A highlighting its non-binding status. In addition, we have 
made some minor changes to the text of Appendix A to ensure that it is 
consistent with the environmental streamlining requirements of Sec.  
6002 of the SAFETEA-LU.
    As for Appendix B, Fiscal Constraint of Transportation Plans and 
Programs, the FHWA and the FTA agree with these commenters that 
modifications to this document may be more frequently required to 
respond to evolving practices. Therefore, the FHWA and the FTA have 
decided to remove Appendix

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B from the rule. However, there are three elements within that appendix 
that the agencies believe should be a part of the regulatory text for 
clarity and completeness. These elements are: (1) Treatment of highway 
and transit operations and maintenance costs and revenues; (2) use of 
``year of expenditure dollars'' in developing cost and revenue 
estimates; and (3) use of ``cost ranges/cost bands'' in the outer years 
of the metropolitan transportation plan. Please see the responses to 
the comments on Appendix B for additional background information and 
explanation. Consequently, we have included language in Sec.  450.216 
(Development and content of the statewide transportation improvement 
program (STIP)), Sec.  450.322 (Development and content of the 
metropolitan transportation plan), and Sec.  450.324 (Development and 
content of the transportation improvement program (TIP)) to address 
these issues within the regulation. The material contained in the 
proposed Appendix B will be made available as a guidance document on 
the agencies' Web sites.

Section-by-Section Discussion

    The discussion in this section compares the NPRM with the final 
rule and discusses comments submitted on each section along with an 
explanation of any changes we made from the NPRM to the final rule. All 
references to revisions or changes are to changes in language that we 
originally proposed in the NPRM.

23 CFR Part 450

Subpart A--Transportation Planning and Programming Definitions

Section 450.100 Purpose

    No comments were received on this section and no changes were made.

Section 450.102 Applicability

    No comments were received on this section and no changes were made.

Section 450.104 Definitions

    There were more than 45 documents with over 225 comments submitted 
on this section, with half of the documents coming from MPOs and almost 
one-fourth each from State DOTs and national and regional advocacy 
groups. Transit agencies, city/county agencies and the general public 
also commented on this section. Some of those that commented on this 
section recommended specific changes to examples or lists included in 
various definitions. It is important to note that the recommended lists 
in these definitions are intended to be advisory and not exhaustive; 
therefore, we did not make changes to the lists of examples.
    Several definitions were revised based on comments received. These 
changes are described below.
    Many State DOTs and MPOs as well as several national and regional 
advocacy organizations were concerned about the definitions of 
``administrative modification'' and ``amendment.'' Commenters requested 
greater distinction between the two terms.
    Several of those that commented on this section requested that the 
words ``minor revision'' be included in the definition of 
``administrative modification.'' This change has been made. The 
examples in this definition have also been clarified, including ``minor 
changes to project/project phase initiation dates.'' It is important to 
note that while an ``administrative modification'' can change the 
initiation date, it cannot affect the completion date of the project as 
modeled in the regional emissions analysis in nonattainment or 
maintenance areas. A change in the project/project phase completion 
date in a nonattainment or maintenance area would be considered an 
``amendment.'' Finally, based on comments, the term ``not significant'' 
was removed.
    Commenters suggested that the term ``amendment'' include the words 
``major change'' and use ``major'' in the examples. These changes have 
been made. State DOTs and MPOs should work with the FHWA and the FTA to 
identify thresholds for a ``major'' change in project cost. Examples of 
thresholds could include, but are not limited to, project cost increase 
that exceeds 20 percent of the total project cost; or project cost 
increase that exceeds a certain dollar amount, for example, the 
increase in costs exceeds the programmed amount by $50,000 or $100,000.
    Further, some State DOTs and advocacy organizations wrote that 
changes in illustrative projects should not require an amendment. We 
agree. A sentence has been added to the definition of ``amendment'' to 
clarify this point. Also, most State DOTs that commented on this 
section noted that ``amendment'' should apply differently to long-range 
statewide transportation plans, since they are not subject to fiscal 
constraint. A sentence was added to the definition to clarify the long-
range statewide transportation plan context.
    After consultation with EPA, the definition of ``attainment area'' 
was revised to be consistent with the definition in the glossary of the 
Environmental Protection Agency's (EPA) Plain English Guide to the 
Clean Air Act.\2\ We also included in this definition a clarification 
that a ``maintenance area'' is not considered an attainment area for 
transportation planning purposes.
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    \2\ This document, ``Plain English Guide to the Clean Air Act'' 
is available via the Internet at the following URL: http://www.epa.gov/air/oaqps/peg_caa/pegcaain.html.
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    A few commenters expressed confusion about the definitions of 
``Available funds'' and ``Committed funds'' as they relate to air 
quality conformity. We have simplified these definitions to remove the 
phrase ``for projects or project phases in the first two years of a TIP 
and/or STIP in air quality nonattainment and maintenance areas.'' By 
deleting this phrase, however, we have not removed the requirement that 
projects in the first two years of a STIP and/or TIP in air quality 
nonattainment and maintenance areas be available or committed. This is 
still part of the definition under fiscal constraint. The requirement 
that these terms only apply to the first two years is already embedded 
in the regulation and does not need to be repeated in the definition of 
the terms ``Available'' and ``Committed.''
    A national and regional advocacy organization and a few transit 
agencies suggested that ``Full funding grant agreement'' and ``Project 
construction grant agreement'' be added to the examples of ``Committed 
funds.'' This change has been made. We also received a comment that the 
requirement for private funds to be in writing as part of ``Committed 
funds'' would limit private participation in transportation projects. 
The FHWA and the FTA find that a written commitment is necessary to 
ensure that the private funds ultimately are provided and is integral 
to the concept of ``committed funds.'' This change was not made.
    After consultation with the EPA, the definition of ``conformity'' 
was revised based on language from the EPA's conformity Web page \3\ 
and in the EPA's conformity rule (40 CFR 93.100).\4\
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    \3\ EPA's conformity web page can be found at the following URL: 
http://www.epa.gov/otaq/stateresources/transconf/index.htm.
    \4\ This document is available via the Internet at the following 
URL: http://www.fhwa.dot.gov/environment/conformity/rule.htm.
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    Many MPOs wrote regarding the definition of ``congestion management 
process'' that the definition should reference Transportation System 
Management and Operations (TSMO), rather than ``management and 
operation'' to reinforce the principles of this emerging practice. The 
FHWA and the FTA do not believe this change would enhance the 
definition and note

[[Page 7227]]

that the term ``operations and management'' is taken directly from 
statute. No change was made.
    Many national and regional advocacy organizations and MPOs and COGs 
that commented on this section were concerned about the different uses 
of the term ``consultation'' in the definitions section and in Sections 
450.214 (Development and content of the long-range statewide 
transportation plan) and 450.322 (Development and content of the 
metropolitan transportation plan). The definition of consultation used 
in Sec.  450.214 (Development and content of the long-range statewide 
transportation plan) and Sec.  450.322 (Development and content of the 
metropolitan transportation plan) is consistent with the definition in 
the statute found at 23 U.S.C. 134(i)(4), 23 U.S.C. 135(f)(2), 49 
U.S.C. 5303(i)(4), and 49 U.S.C. 5304(f)(2) and is applicable for those 
sections. This section presents a broad definition of ``consultation'' 
for use throughout the rest of the rule. We have added a note to the 
definition of ``consultation'' to recognize that this definition is not 
the one used in Sec. Sec.  450.214 and 450.322.
    Many national and regional advocacy organizations and several MPOs 
and COGs that commented on this section also asked that 
``periodically'' be removed from the definition of ``consultation'' to 
better reflect that consideration of the other party's view and 
providing them with information should occur on a regular and ongoing 
basis, not a periodic basis. This definition is taken from the existing 
rule developed in an extensive rulemaking process in January 2003 on 
the non-metropolitan local official consultation process and agreed to 
by a number of stakeholders at that time (68 FR 7419). Further, the 
FHWA and the FTA consider ``periodically'' to mean frequently, on 
regular intervals. This change was not made.
    Many transit agencies and State DOTs as well as several MPOs, COGs 
and others requested changes to the definition of ``coordinated public 
transit-human services transportation plan'' to reduce the degree of 
procedural detail. Accordingly, the definition was changed to be 
consistent with that used in the proposed FTA Circulars for 
implementing the 49 U.S.C. 5310, 5316, and 5317 programs (New Freedom 
Program Guidance, The Job Access And Reverse Commute (JARC) Program, 
Elderly Individuals And Individuals With Disabilities Program) 
published in the September 2006.\5\ In addition, commenters proposed 
the addition of guidelines for preparing the coordinated public 
transit-human services transportation plan, including geographic scope, 
approval authority, and determination of lead agency. To ensure maximum 
flexibility for localities to tailor the coordinated public transit-
human services transportation plan preparation process to their areas, 
we will disseminate non-regulatory guidance on optional approaches and 
examples of effective practice, along with training and technical 
assistance.
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    \5\ These documents, ``Elderly Individuals and Individuals With 
Disabilities, Job Access and Reverse Commute,'' and ``New Freedom 
Programs: Coordinated Planning Guidance for FY 2007 and Proposed 
Circulars'' were published September 6, 2006, and are available via 
the internet at the following URLs: http://www.fta.dot.gov/publications/ publications--5607.html or http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-14733.pdf.
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    Several MPOs and COGs expressed concern about the definition of 
``coordination'' because there is no resolution mechanism if agencies 
cannot come to agreement. The FHWA and the FTA support the development 
of a dispute resolution process for ``coordination'' and 
``consultation.'' However, such a process is not required by statute 
and is, therefore, not included in this rule. This does not preclude 
State DOTs and/or MPOs from developing their own dispute resolution 
processes as part of the transportation planning process.
    After further review, the FHWA and the FTA have removed the term 
``exclusive'' from the list of examples in the definition of ``design 
concept.'' We do not want to imply that only ``exclusive busways'' can 
be identified as a type of project.
    A proposal was offered to define the term ``designated recipient'' 
to clarify this term in the rule. This definition has been added to 
this section
    Many State DOTs and some national and regional advocacy 
organizations that commented on the definition of ``environmental 
mitigation activities'' suggested deleting ``rectify or reduce'' from 
the definition because these terms are redundant. The FHWA and the FTA 
believe that the terms ``rectify'' and ``reduce'' are related more to 
the discussion of specific projects, not the broad planning context. We 
agree with this comment and have deleted these words. In addition, MPOs 
and COGs and a few State DOTs and others suggested simplifying the 
definition by removing statements of regulatory action. We agree and 
have deleted the last sentence of the definition which reiterated 
requirements in the body of the rule. Finally, we have modified the 
definition to be clear that strategies may not necessarily address 
potential project-level impacts.
    Several major concerns were expressed regarding the definition for 
``Financially constrained or Fiscal constraint.'' Most commenters 
requested that three portions of the definition be deleted: (1) The 
phrase ``by source,'' (2) the phrase ``each program year,'' and (3) the 
phrase ``while the existing system is adequately maintained and 
operated.'' The requirement for demonstrating fiscal constraint by year 
and by source is consistent with, and carries forth language in, the 
planning rule adopted in October 1993 (58 FR 5804). The FHWA and the 
FTA consider demonstrating funding by year and by source necessary for 
decision-makers and the public to have confidence in the STIP and TIP 
as financially constrained. However, in response to concerns raised, we 
have changed the definition related to ``by source'' to be consistent 
with the October 1993 planning rule. This change clarifies that fiscal 
constraint documentation should include committed, available, or 
reasonably available revenue sources.
    Additionally, as a result of the extensive comments provided on 
Appendix B (Fiscal constraint of transportation plans and programs) we 
have changed the phrase ``while the existing system is adequately 
maintained and operated'' to ``with reasonable assurance that the 
federally supported transportation system is being adequately operated 
and maintained.'' We believe this change provides flexibility and 
addresses the commenters' concerns that the FHWA and the FTA were 
overreaching beyond the Federally supported transportation system. 
Please see the responses to the comments on Appendix B for additional 
background information and explanation. Finally, we have also clarified 
the definition to explicitly refer to ``the metropolitan transportation 
plan, TIP and STIP.''
    Many State DOTs, a few national and regional advocacy 
organizations, and some MPOs and COGs wrote that the definition of 
``financial plans'' should be changed to note that financial plans are 
not required for STIPs and are not required for illustrative projects. 
The FHWA and the FTA agree with both comments. We have added a note to 
the definition that financial plans are not required for STIPs. We also 
agree that financial plans are not required for illustrative projects. 
Sec.  450.216(m) states that ``The financial plan may include, for 
illustrative purposes, additional projects that would be included in 
the

[[Page 7228]]

adopted STIP if reasonable additional resources beyond those identified 
in the financial plan were available.'' We do not believe it is 
necessary to add a note to the definition regarding illustrative 
projects.
    Several State DOTs also wrote requesting that the phrase ``as well 
as operating and maintaining the entire transportation system'' be 
removed from the definition of ``financial plans.'' This change has 
been made
    Proposals were offered to define the terms ``full funding grant 
agreement'' to clarify this term in the rule. This definition has been 
added to this section.
    In response to comments regarding financial plans and fiscal 
constraint requirements, we have modified the definition of 
``illustrative project'' to clarify that ``illustrative projects'' 
refer to additional transportation projects that would be included in 
financially constrained transportation plans and programs if 
``additional resources were to become available.'' This definition also 
notes that illustrative projects may (but are not required to) be 
included in the financial plan.
    Representatives of a State DOT and a national and regional advocacy 
organization requested the inclusion of detailed methodologies for 
engaging private service providers in the transportation planning 
process, as well as standards for ascertaining compliance with private 
enterprise provisions and a complaint process. To ensure maximum 
flexibility for localities to tailor programs to the needs of private 
service providers in their areas, we will rely upon non-regulatory 
guidance, training, and technical assistance for disseminating 
information on optional approaches to private sector participation.
    The FHWA and the FTA noted that the proposed rule used an incorrect 
Clean Air Act reference in the definition of ``Maintenance area.'' This 
reference has been corrected.
    After further review, the FHWA and the FTA have made slight changes 
to the definition of ``management systems'' to be more permissive. The 
phrase ``and safety'' was changed to ``or safety'' and ``includes'' was 
changed to ``can include.''
    Some State DOTs and national and regional advocacy groups 
recommended removing the phrase ``in the preceding program year'' from 
the definition of ``obligated projects.'' The FHWA and the FTA find 
that the phrase ``in the preceding program year'' is important in the 
context of the annual listing of obligated projects (See Sec.  450.332 
(Annual listing of obligated projects)) to clarify what projects should 
be included in the list, since TIPs cover multiple years. Therefore, 
this change was not made. However, we did change the definition to 
emphasize that funds need to be ``authorized by the FHWA or awarded as 
a grant by the FTA.''
    Several State DOTs, MPOs and COGs and some national and regional 
advocacy organizations and transit agencies expressed confusion over 
the terms ``management and operations'' and ``operations and 
management'' as related to the term they propose be included in the 
rule, ``Transportation System Management and Operations (TSMO).'' The 
SAFETEA-LU defined ``Operational and Management Strategies'' and its 
relationship to metropolitan long-range transportation plans. 
(Operational and management strategies means actions and strategies 
aimed at improving the performance of existing and planned 
transportation facilities to relieve vehicular congestion and 
maximizing the safety and mobility of people and goods (23 U.S.C. 
134(i)(2)(D) and 49 U.S.C. 5303(i)(2)(D)). This definition is included 
in the rule with one change. We have removed the modifier ``vehicular'' 
to emphasize that operational and management strategies should be 
considered for all modes. The FHWA and the FTA find this term, for 
practical purposes, to be the same as the term Transportation System 
Management and Operations currently commonly in use by agencies 
involved with transportation. We have chosen to continue using the term 
``operational and management strategies'' as that is the term used in 
SAFETEA-LU.
    Several State DOTs, MPOs and COGs and some national and regional 
advocacy organizations and transit agencies also asked for 
clarification of the term ``operations and maintenance.'' The terms 
``operations'' and ``maintenance'' are used in these regulations as 
defined in 23 U.S.C. 101. Therefore, we have not repeated the 
definitions here.
    A proposal was offered to define the term ``project construction 
grant agreement'' to clarify this term in the rule. This definition has 
been added to this section.
    After further review, we have determined it is necessary to clarify 
the definition of ``project selection'' to emphasize these are 
procedures used by MPOs, States, and public transportation operators.
    Based on comments, we have changed the term ``business'' in the 
definition of ``provider of freight transportation services'' to 
``entity.'' Freight transportation providers may include other concerns 
besides businesses.
    A proposal was offered to define the term ``public transportation 
operator'' to clarify this term in the rule. This definition has been 
added to this section.
    Several State DOTs and MPOs and COGs as well as some transit 
agencies and national and regional advocacy organizations noted that 
the definition of ``regionally significant project'' should not include 
a reference to ``all capacity expanding projects.'' After consultation 
with the EPA, the FHWA and the FTA have changed this definition to be 
consistent with the EPA's transportation conformity rule (40 CFR 
93.101).
    Several of the State DOTs, many transit agencies, and a few of the 
national advocacy organizations and MPOs and COGs commented that the 
word ``overarching'' in the definition of ``Regional Transit Security 
Strategies'' was ambiguous. Other MPOs and COGs, transit agencies and 
national and regional advocacy organizations wrote that the definition 
was overly specific without defining who would be held responsible to 
develop the strategy and also expressed concern about possible 
disclosure of security-sensitive information in the planning process. 
Subsequent to publication of the NPRM, the FHWA and the FTA determined 
that the Department of Homeland Security does not require Regional 
Transit Security Strategies in all metropolitan areas, at all times. As 
a result, this term has been removed from this section and references 
to the term in Sec.  450.208(h), Sec.  450.214(e), and Sec.  450.306(g) 
also have been removed from the rule. Alternatively, this language has 
been replaced, in these sections, with a reference to ``other transit 
safety and security planning and review processes, plans, and programs, 
as appropriate.''
    The docket included several comments regarding the definitions for 
``revision,'' ``amendment,'' ``administrative modification,'' and 
``update.'' The definition of ``revision'' has been revised to use the 
terms ``major'' and ``minor'' rather than ``significant'' and ``non-
significant,'' consistent with the comments received and changes to the 
related terms.
    A State DOT commented on the definition of ``State implementation 
plan (SIP).'' After consultation with EPA, this definition was revised 
to cite applicable sections of the Clear Air Act and to be consistent 
with the definition in the Clean Air Act and EPA's conformity rule (40 
CFR 93.101) for ``applicable implementation plan.''
    The docket included a comment requesting clarification of the term 
``staged'' in the definition for

[[Page 7229]]

``Statewide transportation improvement program (STIP).'' We have 
clarified this definition to describe the STIP as a ``prioritized 
listing/program'' and to reiterate that it must cover a period of four 
years. Similar changes were made to the definition of ``Transportation 
improvement program (TIP).''
    Some State DOTs and a national and regional advocacy organization 
suggested that the reference to ``in order to meet the regular schedule 
as prescribed by Federal statute'' be removed from the definition of 
``Update.'' A few MPOs and COGs questioned what would constitute an 
``update'' and what was meant by ``complete change.'' We agree with 
these concerns, have removed these phrases and revised and simplified 
this definition to ``Update means making current a long-range statewide 
transportation plan, metropolitan transportation plan, TIP, or STIP 
through a comprehensive review.'' Based on comments, we note in this 
definition that an ``update'' requires a 20-year horizon year for 
metropolitan transportation plans and long-range statewide 
transportation plans and a four-year program period for TIPs and STIPs.
    Several MPOs and other organizations asked for clarification of the 
term ``visualization.'' The FHWA and the FTA have changed ``employed'' 
to ``used'' in the ``Visualization techniques'' definition. Further, we 
agree that there is a need for more technical information on the use of 
visualization techniques and we intend to provide technical reports and 
guidance subsequent to the publication of this rule.
    Proposals were offered to define the terms ``advanced 
construction,'' ``encouraged to,'' ``intercity bus,'' ``interested 
parties,'' ``MPO staff,'' ``public transportation provider,'' 
``reasonable access,'' ``shall,'' and ``should.'' The FHWA and the FTA 
believe these terms are generally well understood and do not require 
additional detail.

Subpart B--Statewide Transportation Planning and Programming

Section 450.200 Purpose

    No comments were received on this section and no changes were made.

Section 450.202 Applicability

    No comments were received on this section and no changes were made.

Section 450.204 Definitions

    No comments were received on this section and no changes were made.

Section 450.206 Scope of the Statewide Transportation Planning Process

    There were more than 20 separate comments on this section with the 
most coming from State DOTs, followed by national and regional advocacy 
organizations. A small number of comments came from MPOs and COGs and 
providers of public transportation.
    In comments on this section and Sec.  450.306 (Scope of the 
metropolitan transportation planning process), many MPOs and COGs, some 
national and regional advocacy organizations and a few State DOTs noted 
that paragraph (a)(3) embellished the statutory language for the 
``security'' planning factor. Organizations that commented on this 
issue were concerned that the expanded language would require State 
DOTs and MPOs to go far beyond their traditional responsibilities in 
planning and developing transportation projects, which was not intended 
by the SAFETEA-LU. The FHWA and the FTA agree and have revised the 
language in paragraph (a)(3) to match the language in statute.
    Most of the State DOTs and several of the national and regional 
advocacy organizations that commented on this section said that the 
text in paragraph (b) should be revised similar to the text in the 
October 1993 planning rule acknowledging that the degree of 
consideration will reflect the scale and complexity of issues within 
the State. The FHWA and the FTA agree with these comments and have 
revised the rule accordingly. We have adopted the October 1993 planning 
rule language with one change. The phrase ``transportation problems'' 
was changed to ``transportation systems development.''
    After further review, we have clarified paragraph (c) to be more 
specific and to mirror the language in 23 U.S.C. 135(d)(2) and 49 
U.S.C. 5304(d)(2). The paragraph now specifically refers to ``any court 
under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5 
U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7'' and to the ``statewide 
transportation'' planning process finding.
    A small number of national and regional advocacy organizations and 
State DOTs that commented on this section said they would like the FHWA 
and the FTA to develop and/or encourage the use of performance measures 
when State DOTs consider the planning factors listed in this section. 
While the FHWA and the FTA encourage the use of performance measures, 
the flexibility afforded the State DOTs and MPOs in implementing the 
transportation planning process gives them wide latitude to develop a 
process that is appropriate for their jurisdiction. We believe this 
issue is best addressed in guidance and technical assistance.

Section 450.208 Coordination of Planning Process Activities

    There were almost 100 separate comments on this section mostly from 
State DOTs, followed by national and regional advocacy organizations. A 
number of comments came from MPOs and COGs with a small number from 
public transportation providers or Federal agencies.
    In some of the comments from national and regional advocacy 
organizations, MPOs and COGs, and others, the FHWA and the FTA were 
asked to expand the scope of the transportation planning process to 
include a variety of other issues and concerns. In response to these 
comments, we have added ``at a minimum'' to paragraph (a) to emphasize 
the flexibility for State DOTs to include more in their statewide 
transportation planning process than is listed in this section.
    Several MPOs and COGs that had comments on this section suggested 
clarification of paragraph (a)(1) regarding the State's use of 
information and studies provided by MPOs. The text from this paragraph 
in part carries forward but simplifies text from 23 CFR 450.210 of the 
October 1993 planning rule. The FHWA and the FTA find that the language 
provides reasonable flexibility to respond to different circumstances 
while reinforcing the importance of information and technical studies 
as a foundation in transportation planning. No changes were made to 
this paragraph.
    Many of the State DOTs that commented on this section indicated 
that coordination referenced in paragraph (a)(2) should not extend to 
private businesses. At the same time, many of the MPOs, COGs and 
national and regional advocacy organizations, as well as a public 
transportation provider that commented on this section wrote in support 
of the section and some requested that ``consult'' replace 
``coordinate.''
    The requirements in this paragraph come from the statutory 
language; therefore, no change was made. The FHWA and the FTA want to 
provide State DOTs flexibility to determine how to coordinate with 
statewide trade and economic planning activities and the level or 
coordination that needs to take place within the planning process. The

[[Page 7230]]

FHWA has made available information related to Public-Private 
Partnership opportunities, including analyses of contractual agreements 
formed between public agencies and private sector entities, on its Web 
site at: http://www.fhwa.dot.gov/ppp/. If necessary, we will provide 
guidance subsequent to the rule if more clarity is needed regarding 
this coordination.
    Many of the State DOTs that commented on this section said that 
coordination in paragraph (a)(3) exceeds the requirement in the 
statute. At the same time, several of the national and regional 
advocacy organizations and a Federal agency commented in support of the 
language in the proposed rule. The FHWA and the FTA find that the 
proposed language does exceed the intent of the statute, and have 
revised the rule to more closely reflect the statutory language, by 
changing ``coordinate planning'' to ``consider the concerns of.''
    Many of the State DOTs that commented on this section suggested 
placing the word ``affected'' before ``local elected officials'' in 
paragraph (a)(4). At the same time, some of the MPOs and COGs and 
national and regional advocacy organizations that provided comments on 
this section suggested changing ``consider'' to ``consult,'' which is 
used in Sec.  450.210 (Interested parties, public involvement, and 
consultation). The text follows the statutory language. The FHWA and 
the FTA considered both groups of comments and determined that using 
the statutory language for this paragraph without amplification best 
meets the intent of the statute.
    Many of the State DOTs that commented on this section said that the 
text in paragraph (a)(6) should follow the statutory language (23 
U.S.C. 135(e)(1)(3) and 49 U.S.C. 5304(e)(1)(3)). The FHWA and the FTA 
agree and revised the rule accordingly.
    Several of the State DOTs that commented on this section objected 
to the phrase ``establish a forum'' in paragraph (a)(7), while a 
smaller number supported the text. The FHWA and the FTA want to 
emphasize the importance of information and technical studies as a 
foundation in transportation planning. While there is no statutory 
basis to require ``establish[ing] a forum,'' this paragraph has been 
revised to more closely reflect the intent from Sec.  450.210(a)(1) and 
(a)(3) of the October 1993 rule regarding coordination of data 
collection and analyses with MPOs and public transportation operators.
    After further review, the FHWA and the FTA have modified the last 
sentence of paragraph (c) to be consistent with 23 U.S.C. 135(c)(2) and 
49 U.S.C. 5304(c)(2) regarding multistate agreements and compacts.
    Many of the State DOTs and a few of the national and regional 
advocacy organizations that provided comments on this section said the 
text in paragraphs (e) and (f) went beyond statutory requirements. The 
FHWA and the FTA agree with these comments and revised the rule 
accordingly by changing ``are encouraged to'' to ``may'' in paragraph 
(e) and adding ``to the maximum extent practicable'' to paragraph (f).
    Most transit agencies, several State DOTs, MPOs, COGs, and others 
that commented on this section expressed concern or confusion about the 
requirement in paragraph (g) for the statewide transportation planning 
process to be consistent with the development of coordinated public 
transit-human services transportation plans. Several commenters 
requested the addition of procedural detail on the coordinated public 
transit-human services transportation plan, including geographic scope, 
approval authority, and determination of lead agency. Some commenters 
recommended removing the requirement entirely. We also received a 
comment questioning whether metropolitan and statewide transportation 
planning processes should be consistent with the coordinated public 
transit-human services transportation plan, or vice versa.
    To ensure maximum flexibility for localities to undertake a 
coordinated planning process that may be uniquely tailored to their 
area, we have not included additional detailed requirements in the 
rule. The FHWA and the FTA will disseminate non-regulatory guidance, 
complemented by a wide array of effective practice case studies and 
supported by training and technical assistance, on the coordinated 
public transit-human services transportation plan. The definition of 
the coordinated public transit-human services transportation plan was 
changed to be consistent with that used in the proposed FTA Circulars 
for implementing the 49 U.S.C. 5310, 5316, and 5317 programs (New 
Freedom Program Guidance And Application Instructions, The Job Access 
And Reverse Commute (JARC) Program Guidance And Application 
Instructions, Elderly Individuals And Individuals With Disabilities 
Program Guidance And Application Instructions) respectively, published 
on September 6, 2006.\6\ Additionally, provisions for promoting 
consistency between the planning processes were revised to clarify that 
the coordinated public transit-human services transportation plan 
should be prepared in full coordination and be consistent with the 
metropolitan transportation planning process. The revisions also are 
intended to add flexibility in how the coordinated transportation plans 
would be prepared.
---------------------------------------------------------------------------

    \6\ These documents, ``Elderly Individuals and Individuals With 
Disabilities, Job Access and Reverse Commute,'' and ``New Freedom 
Programs: Coordinated Planning Guidance for FY 2007 and Proposed 
Circulars'' were published September 6, 2006, and are available via 
the internet at the following URL: http://www.fta.dot.gov/publications/publications_5607.html.
---------------------------------------------------------------------------

    Many of the State DOTs, several transit agencies, and a few of the 
national and regional advocacy organizations that provided comments on 
this section, said the text in paragraph (h) went beyond statutory 
requirements. Several transit agencies and a few State DOTs and others 
suggested deleting paragraph (h) due to the confidential nature of 
Regional Transit Security Strategies (RTSS). An RTSS is not required of 
all metropolitan areas and States across the U.S. Reference to the RTSS 
was removed from paragraph (h). Instead, we have added a reference to 
``other transit safety and security planning and review processes, 
plans, and programs, as appropriate.''

Section 450.210 Interested Parties, Public Involvement, and 
Consultation

    The docket included 33 documents that contained about 60 comments 
on this section, with many from State DOTs, national and regional 
advocacy organizations and MPOs and COGs.
    Many of the State DOTs and some of the national and regional 
advocacy organizations said that State DOTs should not be required to 
document the public involvement process. The FHWA and the FTA find that 
an essential element of an effective public involvement process is the 
opportunity for the public to understand when, how, and where public 
comment can occur. It is important to open, effective public 
involvement that the process be documented and available for public 
review. Therefore, we have retained the requirement for a documented 
public involvement process.
    Some of the MPOs and some of the national and regional advocacy 
organizations said they would like to expand the list of interested 
parties in paragraph (a)(1)(i). Representatives of private bus 
operators requested specific mention in the regulation.

[[Page 7231]]

    The list of interested parties in the regulation is consistent with 
23 U.S.C. 135(f)(3)(A) and 49 U.S.C. 5304(f)(3)(A), as amended by the 
SAFETEA-LU, and is sufficiently broad to encompass and have relevance 
to all of the suggested additional parties. The list illustrates groups 
that typically have an interest in statewide transportation planning, 
but does not preclude States from providing information about 
transportation planning to other types of individuals or organizations. 
The FHWA and the FTA note that 49 U.S.C. 5307(c) requires grant 
recipients to make available to the public information on the proposed 
program of projects and associated funding.
    Specifically in regard to MPOs, States shall coordinate with MPOs 
under Sec.  450.208 (Coordination of planning process activities). 
Therefore, a reference to MPOs here would be redundant and potentially 
confusing since this section does not require coordination with 
interested parties. No change was made to add MPOs to this paragraph.
    Many of the State DOTs and some of the national and regional 
advocacy organizations also said that State DOTs should not be required 
to document the non-metropolitan local official consultation process. 
The rule does not change the regulations published in the Federal 
Register on January 23 (68 FR 3176) and February 14, 2003 (68 FR 7418) 
regarding consultation with non-metropolitan local officials. Those 
regulations were developed based on significant review and comment by 
State DOTs and non-metropolitan local officials and their 
representatives. At that time most State DOTs and national and regional 
advocacy organizations supported the regulations. Therefore, the only 
change we have made to paragraph (b) is to change ``revisions'' to 
``changes,'' since ``revision'' is now specifically defined in the rule 
and, by that definition, is not an appropriate term for this paragraph.
    Some of the State DOTs and some national and regional advocacy 
organizations said that the text encouraging State DOTs to document 
their process for consulting with Indian Tribal Governments should be 
eliminated. The commenters believe that documenting this consultation 
process goes beyond requirements in statute. We disagree. The FHWA and 
the FTA support efforts to consult with Indian Tribal governments and 
find that documentation of consultation processes are essential to a 
party's ability to understand when, how, and where the party can be 
involved. Upon further consideration, to strengthen the involvement of 
Indian Tribal governments in the statewide transportation planning 
process, we have changed paragraph (c) from ``States are encouraged 
to'' to ``States shall, to the extent practicable.''

Section 450.212 Transportation Planning Studies and Project Development

    Section 1308 of the TEA-21 required the Secretary to eliminate the 
major investment study (MIS) set forth in Sec.  450.318 of title 23, 
Code of Federal Regulations, as a separate requirement, and promulgate 
regulations to integrate such requirement, as appropriate, as part of 
the analysis required to be undertaken pursuant to the planning 
provisions of title 23 U.S.C. and title 49 U.S.C. Chapter 53 and the 
National Environmental Policy Act of 1969 (NEPA) for Federal-aid 
highway and transit projects. The purpose of this section and Sec.  
450.318 (Transportation planning studies and project development) is to 
implement this requirement of Section 1308 of the TEA-21 and eliminate 
the MIS as a stand-alone requirement. A phrase has been added to 
paragraph (a) to clarify the purpose of this section.
    The docket included more than 20 documents that contained more than 
50 comments on this section with about two-thirds from State DOTs and 
the rest from MPOs or COGs, and national and regional advocacy 
organizations. The comments on this section were similar to, and often 
referenced, the comments on Sec.  450.318 (Transportation planning 
studies and project development).
    Most of the comments received supported the concept of linking 
planning and NEPA but opposed including Appendix A in the rule. The 
purpose of an Appendix to a regulation is to improve the quality or use 
of a rule, without imposing new requirements or restrictions. 
Appendices provide supplemental, background or explanatory information 
that illustrates or amplifies a rule. Because Appendix A provides 
amplifying information about how State DOTs, MPOs and public 
transportation operators can choose to conduct transportation planning-
level choices and analyses so they may be adopted or incorporated into 
the process required by NEPA, but does not impose new requirements, the 
FHWA and the FTA find that Appendix A is useful information to be 
included in support of this and other sections of the rule. A phrase 
has been added to paragraph (c) to clarify this point. Additionally, we 
have added disclaimer language at the introduction of Appendix A.
    The FHWA and the FTA recognize commenters' concerns about Appendix 
A, including the recommendation that this information be kept as 
guidance rather than be made a part of the rule. First, information in 
an Appendix to a regulation does not carry regulatory authority in 
itself, but rather serves as guidance to further explain the 
regulation. Secondly, as stated above, Section 1308 of TEA-21 required 
the Secretary to eliminate the MIS as a separate requirement, and 
promulgate regulations to integrate such requirement, as appropriate, 
as part of the transportation planning process. Appendix A fulfills 
that Congressional direction by providing explanatory information 
regarding how the MIS requirement can be integrated into the 
transportation planning process. Inclusion of this explanatory 
information as an Appendix to the regulation will make the information 
more readily available to users of the regulation, and will provide 
notice to all interested persons of the agencies' official guidance on 
MIS integration with the planning process. Attachment of Appendix A to 
this rule will provide convenient reference for State DOTs, MPOs and 
public transportation operator(s) who choose to incorporate planning 
results and decisions in the NEPA process. It will also make the 
information readily available to the public. Additionally, the FHWA and 
the FTA will work with Federal environmental, regulatory, and resource 
agencies to incorporate the principles of Appendix A in their day-to-
day NEPA policies and procedures related to their involvement in 
highway and transit projects. For the reasons stated above, after 
careful consideration of all comments, the FHWA and the FTA have 
decided to attach Appendix A to the final rule as proposed in the NPRM.
    Most State DOTs and several MPOs and COGs, and national and 
regional advocacy organizations that commented on this section were 
concerned that the language in paragraph (a) is too restrictive. The 
FHWA and the FTA agree that planning studies need not ``meet the 
requirements of NEPA'' to be incorporated into NEPA documents. Instead, 
we have changed the language in paragraph (a) to ``consistent with'' 
NEPA. In addition, we have added the phrase ``multimodal, systems-
level'' before ``corridor or subarea'' to emphasize the ``planning'' 
venue for environmental consideration.
    Commenters on this section also requested that the rule clarify 
that the State DOT has the responsibility for conducting corridor or 
subarea studies in the statewide transportation planning

[[Page 7232]]

process. The FHWA and the FTA recognize that the State DOT is 
responsible for the statewide transportation planning process. However, 
we do not want to preclude MPOs or public transportation operators, in 
consultation or jointly with the State DOT, from conducting corridor or 
subarea studies. Therefore, we have changed paragraph (a) to add the 
sentence ``To the extent practicable, development of these 
transportation planning studies shall involve consultation with, or 
joint efforts among, the State(s), MPO(s), and/or public transportation 
operator(s).''
    Some State DOTs suggested incorporating planning decisions rather 
than documents into the NEPA process. The FHWA and the FTA find that 
decisions made as part of the planning studies may be used as part of 
the overall project development process and have changed paragraph (a) 
to include the word ``decisions'' as well as ``results.'' It is 
important to note, however, that a decision made during the 
transportation planning process should be presented in a documented 
study or other source materials to be included in the project 
development process. Documented studies or other source materials may 
be incorporated directly or by reference into NEPA documents, as noted 
in Sec.  450.212(b). We have added ``or other source material'' to 
paragraph (b) to recognize source materials other than planning studies 
may be used as part of the overall project development process.
    It is important to note that this section does not require NEPA-
level evaluation in the transportation planning process. Planning 
studies need to be of sufficient disclosure and embrace the principles 
of NEPA so as to provide a strong foundation for the inclusion of 
planning decisions in the NEPA process. The FHWA and the FTA also 
reiterate the voluntary nature of this section and the amplifying 
information in Appendix A. States, transit operators and/or MPOs may 
choose to undertake studies which may be used in the NEPA process, but 
are not required to do so.
    Several State DOTs and national and regional advocacy organizations 
were concerned about the identification and discussion of environmental 
mitigation. They did not believe that detail on environmental 
mitigation activities was appropriate in the transportation planning 
process. The FHWA and the FTA agree. Paragraph (a)(5) calls for 
``preliminary identification of environmental impacts and environmental 
mitigation.'' The FHWA and the FTA believe that the term 
``preliminary'' adequately indicates that State DOTs are not expected 
to provide the same level of detail on impacts and mitigation as would 
be expected during the NEPA process.
    Based on comments on Appendix A, we added the phrase ``directly 
or'' in paragraph (b), to indicate the use of publicly available 
planning documents for subsequent NEPA documents.
    Also based on comments on Appendix A, we added the phrase 
``systems-level'' in paragraph (b)(2), to emphasize that these corridor 
or subarea studies are conducted during the planning process at a 
broader scale than project specific studies under NEPA.
    Several State DOTs and many others who submitted comments on this 
section noted that the word ``continual'' in paragraph (b)(2)(iii) 
provides the public with more opportunity to comment than is necessary. 
We agree and have replaced ``continual'' with ``reasonable'' in this 
paragraph, consistent with the terminology in Sec.  450.316(a) 
(Interested parties, participation and consultation). Also in paragraph 
(b)(2)(iii) a number of commenters noted that the paragraph references 
the metropolitan transportation planning process when it should 
reference the statewide transportation planning process. This change 
has been made.
    Several State DOTs and a national and regional advocacy 
organization suggested adding a ``savings clause'' in a new paragraph. 
A savings clause would lessen the likelihood that the new provisions 
regarding corridor or subarea studies would have unintended 
consequences. The specific elements requested to be included in the 
``savings clause'' were statements that: (a) The corridor and subarea 
studies are voluntary; (b) corridor and subarea studies can be 
incorporated into the NEPA process even if they are not specifically 
mentioned in the long-range statewide transportation plan; (c) corridor 
and subarea studies are not the sole means for linking planning and 
NEPA; and (d) reiterate the statutory prohibition on applying NEPA 
requirements to the transportation planning process. The concepts 
recommended in the ``savings clause'' all reiterate provisions found 
elsewhere in the rule or statute. The FHWA and the FTA do not agree 
that it is necessary to repeat those provisions in this section.
    The docket included a comment that corridor or subarea studies 
should be required, not voluntary, to be included in NEPA studies. 
Given the opposition to requiring NEPA-level analysis in the 
transportation planning process, the FHWA and the FTA find that the 
permissive nature of this section and Appendix A strikes the 
appropriate balance.
    The docket also included a question asking what needs to be 
included in an agreement with the NEPA lead agencies to accomplish this 
integration. The FHWA and the FTA have determined that identification 
of what information appropriately belongs in the agreement should be 
disseminated as non-regulatory guidance, complemented by a wide array 
of effective practice case studies and supported by training and 
technical assistance. No change was made to the rule. We have not 
required that corridor or subarea studies be included or incorporated 
into NEPA studies.

Section 450.214 Development and Content of the Long-Range Statewide 
Transportation Plan

    The docket included approximately 50 documents that contained about 
50 comments on this section with about one-third from State DOTs, one-
half from national and regional advocacy organizations, and the rest 
from MPOs and COGs, city/county/State agencies, general public and 
transit agencies.
    Many comments were received regarding the comparison of 
transportation plans with conservation plans. According to statute (23 
U.S.C. 135(f)(2)(D) and 49 U.S.C. 5304(f)(2)(D)), for long-range 
statewide transportation plans, comparison must be made to both 
conservation plans and inventories of natural/historic resources; 
whereas language relating to metropolitan transportation plans (23 
U.S.C. 134(i)(4)(B) and 49 U.S.C. 5303(i)(4)(B)) requires comparison to 
State conservation plans/maps or comparison to inventories of natural 
or historic resources. The rule language is consistent with what is in 
statute. Therefore, no changes were made to the rule language.
    A few comments were received pertaining to the lack of a required 
financial plan for the long-range statewide transportation plan. Most 
of the MPOs and COGs and several of the national and regional advocacy 
organizations were in favor of adding this requirement. One State DOT 
voiced opinion that this should remain an option, but not be mandated.
    The FHWA and the FTA agree that the long-range statewide 
transportation plan may include a financial plan. This optional 
financial plan is different from the fiscal constraint requirement for 
the STIP. This financial plan is a broad look at the future revenue 
forecast and strategies needed to fund future projects over a 20-year 
horizon. However, the

[[Page 7233]]

SAFETEA-LU made it clear that the financial plan should not be required 
for a long-range statewide transportation plan. Therefore, no change 
was made to the rule.
    A few comments were received stating that the 20-year horizon for 
the long-range statewide transportation plan should only be required as 
of the effective date of the plan adoption, which would be similar to 
language used for the effective date of the metropolitan transportation 
plan. The FWHA and the FTA agree with this comment and have added ``at 
the time of adoption'' to paragraph (a).
    DOT Congestion Initiative: On May 16, 2006, the U.S. Secretary of 
Transportation announced a national initiative to address congestion 
related to highway, freight and aviation. The intent of the ``National 
Strategy to Reduce Congestion on America's Transportation Network'' \7\ 
is to provide a blueprint for Federal, State and local officials to 
tackle congestion. The States and MPO(s) are encouraged to seek Urban 
Partnership Agreements with a handful of communities willing to 
demonstrate new congestion relief strategies and encourages States to 
pass legislation giving the private sector a broader opportunity to 
invest in transportation. It calls for more widespread deployment of 
new operational technologies and practices that end traffic tie ups, 
designates new interstate ``corridors of the future,'' targets port and 
border congestion, and expands aviation capacity.
---------------------------------------------------------------------------

    \7\ This document, ``An Overview of the National Strategy to 
Reduce Congestion on America's Transportation Network'' dated May, 
2006, is available via the internet at the following URL: http://www.fightgridlocknow.gov.
---------------------------------------------------------------------------

    U.S. DOT encourages the State DOTs and MPOs to consider and 
implement strategies, specifically related to highway and transit 
operations and expansion, freight, transportation pricing, other 
vehicle-based charges techniques, etc. The mechanism that the State 
DOTs and MPOs employ to explore these strategies is within their 
discretion. The U.S. DOT will focus its resources, funding, staff and 
technology to cut traffic jams and relieve freight bottlenecks.
    To encourage States to address congestion in the long-range 
statewide transportation plan, the following sentence was added to 
paragraph (b): ``The long-range statewide transportation plan may 
consider projects and strategies that address areas or corridors where 
current or projected congestion threatens the efficient functioning of 
key elements of the State's transportation system.''
    Several comments were received stating that the security 
requirements of paragraph (e) go beyond what was intended in the 
SAFETEA-LU. Based on these comments, the concern for possible 
disclosure of security-sensitive information in the planning process 
and the determination that a Regional Transit Security Study is not 
required universally of all metropolitan areas and States, this 
reference has been removed from the rule and instead we have added a 
reference to ``other transit safety and security planning and review 
processes, plans, and programs, as appropriate.'' Several commenters 
also were concerned about the distinction between ``homeland'' and 
``personal'' security in the planning factors found at Sec.  450.206 
(Scope of the statewide transportation planning process). This 
distinction has been removed from Sec.  450.206 (Scope of the statewide 
transportation planning process) and Sec.  450.306 (Scope of the 
metropolitan transportation planning process).
    Some State DOTs and a few advocacy organizations commented that 
``types of'' should be added to the discussion of potential 
environmental mitigation activities requirement in paragraph (j) to 
emphasize the policy or strategic nature of these discussions. The rule 
language is consistent with statute (23 U.S.C. 135(f)(4) and 49 U.S.C. 
5304(f)(4)), therefore this change was not made. However, we have added 
a sentence to this paragraph recognizing that long-range statewide 
transportation plans may focus on ``policies, programs, or strategies, 
rather than at the project level.'' The last sentence of this paragraph 
was also deleted because Appendix A does not provide additional 
information relevant to the subject of this paragraph.
    In paragraph (l), in response to comments from State DOTs, national 
and regional advocacy organizations and several others, we have added 
the phrase ``but is not required to.'' The purpose of this addition is 
to reinforce that the financial plan is not required to include 
illustrative projects. We also corrected the language in the last 
sentence: ``were available'' was changed to ``were to become 
available.''
    Several State DOTs and a few national and regional advocacy 
organizations requested in regard to paragraph (p) that long-range 
statewide transportation plans be provided to the FHWA and the FTA only 
when ``amended'' not ``revised.'' We agree and have made this change.

Section 450.216 Development and Content of the Statewide Transportation 
Improvement Program (STIP)

    The FHWA and the FTA received over 100 separate comments on this 
section with the most from State DOTs followed by national and regional 
advocacy organizations. MPOs and COGs, local governments and public 
transportation providers also provided comments on this section.
    Several State DOTs and national and regional advocacy organizations 
and a few MPOs and COGs said in regards to paragraph (a) that State 
DOTs should be allowed to have a statewide transportation improvement 
program (STIP) of more than four years where the additional year(s) are 
not illustrative.
    The four-year scope is consistent with the time period required by 
the SAFETEA-LU. While State DOTs are not prohibited from developing 
STIPs covering a longer time period, in accordance with statute, the 
FHWA and the FTA can only recognize and take subsequent action on 
projects included in the first four years of the STIP. State DOTs may 
show projects as illustrative after the first four years, as well as in 
the long-range statewide transportation plan. Therefore, no change was 
made to this section of the rule.
    After consultation with EPA and in response to comments from a few 
national and regional advocacy organizations, the language in paragraph 
(b) has been changed to clarify that projects in the ``donut areas'' of 
a nonattainment or maintenance area must be included in the regional 
emissions analysis that supported the conformity determination of the 
associated metropolitan TIP before they are added to the STIP. The 
transportation conformity rule (40 CFR part 93) covers the requirements 
for including projects in the ``donut area'' in the regional emissions 
analysis.
    A public transportation provider said in regard to paragraph (g) 
that security projects should be added to the list of projects exempted 
from listing in the STIP. Because security projects are often funded 
with title 49 U.S.C. Chapter 53 or title 23 U.S.C. funds, they must be 
included in the STIP. No change was made to this paragraph.
    However, after further review, the FHWA and the FTA have determined 
it is appropriate to remove the phrase ``federally supported'' from the 
beginning of paragraph (g) because it is redundant. The paragraph 
already requires projects to be included if they are funded under title 
23 U.S.C. and title 49 U.S.C. Chapter 53. We have also changed 
paragraph (g) to allow the

[[Page 7234]]

inclusion of the exempted projects, but do not require that they be 
included. Further, we have added ``Safety projects funded under 23 
U.S.C. 402'' to paragraph (g)(1) to be consistent with the October 1993 
planning rule.
    When proposing Appendix B to the rule, the FHWA and the FTA 
intended to raise the level of awareness and importance in developing 
fiscally constrained transportation plans, TIPs, and STIPs to States, 
MPOs, and public transportation operators. Since its introduction under 
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) 
(Pub. L. 102-240), fiscal constraint has remained a prominent aspect of 
transportation plan and program development, carrying through to the 
TEA-21 and now to the SAFETEA-LU. The FHWA and the FTA acknowledge that 
Appendix B contains a combination of guidance, amplifying information 
and additional criteria. Given the level of controversy regarding 
Appendix B, it has been removed from the rule. Therefore, the sentence 
referencing Appendix B in paragraph (l) has been deleted.
    Many State DOTs and several national and regional advocacy 
organizations commented in regard to paragraph (h), that they should 
not have to demonstrate financial constraint for projects included in 
the STIP funded with non-FHWA and non-FTA funds. However, this 
requirement is consistent with and carries forward the requirement that 
was implemented with the October 1993 planning rule. In addition, for 
informational purposes and air quality analysis in nonattainment and 
maintenance areas, regionally significant non-Federal projects shall be 
included in the STIP. Therefore, the FHWA and the FTA have retained 
this portion of paragraph (h). We have, however, simplified the 
paragraph slightly to combine the last two sentences.
    Most State DOTs and national and regional advocacy organizations 
that commented on this section, recommended in regards to paragraph (i) 
that after the first year of the STIP, only the ``likely'' or 
``possible'' (rather than ``proposed'') categories of funds should be 
identified by source and year. The FHWA and the FTA agree with this 
suggestion, with the exception of projects in nonattainment and 
maintenance areas for which funding in the first two years must be 
available or committed. Paragraph (i)(3) has been changed to 
specifically reference the amount of ``Federal funds'' proposed to be 
obligated and to identify separate standards for the first year and for 
the subsequent years of the STIP.
    One of the features of Appendix B that the FHWA and the FTA find 
merits inclusion in the rule is ``year of expenditure dollars.'' The 
following has been added to paragraph (l): ``Revenue and cost estimates 
for the STIP must use an inflation rate(s) to reflect `year of 
expenditure dollars,' based on reasonable financial principles and 
information, developed cooperatively by the State, MPOs, and public 
transportation operators.'' This language expresses the desire of the 
FHWA and the FTA for revenue and cost estimates to be reflected in 
``year of expenditure dollars.'' We recognize that it might take some 
time for State DOTs and MPOs to convert their metropolitan 
transportation plans, STIPs and TIPs to reflect this requirement. 
Therefore, we will allow a grace period until December 11, 2007, during 
which time State DOTs and MPOs may reflect revenue and cost estimates 
in ``constant dollars.'' After December 11, 2007, revenues and cost 
estimates must use ``year of expenditure'' dollars. This requirement is 
consistent with the January 27, 2006, document ``Interim FHWA Major 
Project Guidance.'' \8\ Please see the responses to the comments on 
Appendix B to the NPRM for additional background information and 
explanation. In addition, to reinforce that the financial plan is not 
required to include illustrative projects, we have added the phrase 
``but is not required to'' to this paragraph. Finally, we have deleted 
the reference to Appendix B in this paragraph because Appendix B is not 
included as part of this rule.
---------------------------------------------------------------------------

    \8\ This document, ``Interim FHWA Major Project Guidance,'' 
dated January 27, 2006, is available via the internet at the 
following URL: http://www.fhwa.dot.gov/programadmin/mega/012706.cfm.
---------------------------------------------------------------------------

    Regarding paragraph (m), many State DOTs, national and regional 
advocacy organizations and a few MPOs and COGs questioned having to 
demonstrate their ability to adequately operate and maintain the entire 
transportation system. The FHWA and the FTA have revised paragraph (m) 
to delete the phrase ``while the entire transportation system is being 
adequately operated and maintained.'' Instead, we have added ``while 
federally-supported facilities are being adequately operated and 
maintained.'' Further, as discussed in the response to the comments on 
Appendix B, we have added to this paragraph: ``For purposes of 
transportation operations and maintenance, the STIP shall include 
financial information containing system-level estimates of costs and 
revenue sources reasonably expected to be available to adequately 
operate and maintain Federal-aid highways (as defined by 23 U.S.C. 
101(a)(5)) and public transportation (as defined by title 49 U.S.C. 
Chapter 53).''
    Many State DOTs and several national and regional advocacy 
organizations said regarding paragraph (m) that State DOTs should not 
have to demonstrate financial constraint in the STIP by year or by 
source of funding. Based on nearly 13 years of implementing this 
requirement, the FHWA and the FTA consider demonstrating funding by 
year necessary for decision-makers and the public to have confidence in 
the STIP as financially constrained. This change was not made. The 
specific reference to ``by source'' has been removed. However, the 
requirement for State DOTs to identify strategies for ensuring the 
availability of any proposed funding sources is retained. Please see 
the responses to the comments on Appendix B for additional background 
information and explanation as to why we have included this language in 
Sec.  450.216.
    After further review, the FHWA and the FTA determined that 
paragraph (n) is redundant. The same information is included in 
paragraph (b). Therefore, paragraph (n) was removed.
    One State DOT and one local agency said that the regulation should 
include language emphasizing and expanding bicycle and pedestrian 
program guidance. The FHWA and the FTA find that the language in the 
guidance documents issued by the FHWA and the FTA on February 6, 
2006,\9\ is sufficient to address bicycle and pedestrian needs without 
being raised to the level of regulatory language.
---------------------------------------------------------------------------

    \9\ The guidance memo entitled ``Flexible Funding for Highway 
and Transit and Funding for Bicycle and Pedestrian Programs,'' dated 
February 6, 2006, is available via the internet at the following 
URL: http://www.fhwa.dot.gov/hep/flexfund.htm.
---------------------------------------------------------------------------

    Many State DOTs and national and regional advocacy organizations 
that provided comments on this section said in regards to paragraph (o) 
(now paragraph (n)), that all changes that affect fiscal constraint 
should not require an amendment. We have slightly modified the 
paragraph to remove ``all'' from the last sentence, but note that this 
change does not remove the requirement that any change that affects 
fiscal constraint requires an amendment. By definition, an amendment is 
``a revision that requires public review and comment, redemonstration 
of fiscal constraint, or a conformity determination (for `non-exempt' 
projects in nonattainment and maintenance areas). (See Sec.  450.104 
(Definitions)).

[[Page 7235]]

    The FHWA and the FTA note that nearly all comments on Sec.  450.324 
(Development and content of the transportation improvement program 
(TIP)) regarding the question posed in the preamble of the NPRM 
``whether the FHWA and the FTA should require MPOs submitting TIP 
amendments to demonstrate that funds are `available or committed' for 
projects identified in the TIP in the year the TIP amendment is 
submitted and the following year'' opposed a change. Almost all 
commenters mentioned that such a change would require reviewing the 
financial assumptions for the entire program, thereby causing an undue 
burden. Commenters suggested showing financial constraint only for the 
incremental change. The same question was posed in this section of the 
NPRM. Although commenters did not respond to the question in comments 
on this section, based on the comments on Sec.  450.324 no change was 
made to the rule. However, the FHWA and the FTA are concerned for the 
potential impact of individual amendments on the funding commitments 
and schedules for the other projects in the STIP. For this reason, the 
financial constraint determination occasioned by the STIP amendment 
will necessitate review of all projects and revenue sources in the 
STIP. The FHWA and the FTA will address any concerns on this issue 
through subsequent guidance.
    Many State DOTs, MPOs and COGs as well as some national and 
regional advocacy organizations and a few public transportation 
providers and local government agencies asked for clarification on 
fiscal constraint if the financial situation in the State or 
metropolitan region changes. The FHWA and the FTA have added a new 
paragraph (o) to clarify that where a revenue source is removed or 
substantially reduced after the FHWA and the FTA find a STIP to be 
fiscally constrained, the FHWA and the FTA will not withdraw its 
determination of fiscal constraint but that the FHWA and the FTA will 
not act on an updated or amended STIP which does not reflect the 
changed revenue situation.

Section 450.218 Self-Certification, Federal Findings, and Federal 
Approvals

    The docket included about 20 documents that contained approximately 
30 comments on this section with about one-half from State DOTs, one-
quarter from national and regional advocacy organizations, and the rest 
from MPOs and COGs, and city/county governments.
    Several comments were made under this section that should have 
referenced 450.220(e) and the question posed in the preamble to the 
NPRM ``whether States should be required to prepare an `agreed to' list 
of projects at the beginning of each of the four years in the STIP, 
rather than only the first year and whether a STIP amendment should be 
required to move projects between years in the STIP if an `agreed to' 
list is required for each year.'' These comments have been reflected in 
the discussion of and final language for Sec.  450.220(e).
    Many commenters, including almost all State DOTs, in regards to 
paragraph (a), asserted their belief that the October 1993 planning 
rule requires joint FHWA and FTA approval of STIP amendments only ``as 
necessary'' so that, in most cases, either the FHWA or the FTA could 
approve the amendment. This is not the case. The October 1993 planning 
rule at 23 CFR 450.220(a) did require joint approval for all new STIPs 
and STIP amendments ``as necessary.'' The FHWA and the FTA have 
reviewed this requirement and determined that joint approval remains 
necessary. However, we note that through the internal Planning 
Collaboration Initiative, the FHWA and the FTA have developed a number 
of streamlined internal processes and agreements to expedite review and 
approval of STIP amendments. Based on these agreements and experience 
with the current regulation, we do not believe requiring joint approval 
will slow down the approval process or impose new workloads on the FHWA 
and the FTA. Joint approval of STIP amendments is necessary as part of 
our stewardship and oversight responsibility.
    We have clarified paragraph (a) to specifically state that ``STIP 
amendments shall also be submitted to the FHWA and the FTA for joint 
approval'' and that ``at the time the entire STIP or STIP amendment is 
submitted,'' the State shall certify the planning process is being 
carried out in accordance with requirements.
    After further review of this section, the FHWA and the FTA have 
updated the list of applicable requirements in paragraph (a). Reference 
to ``23 CFR parts 200 and 300 have been removed'' from paragraph 
(a)(2). Instead, a more specific reference to ``23 CFR part 230, 
regarding implementation of an equal employment opportunity program on 
Federal and Federal-aid highway construction contracts'' was added as 
paragraph (a)(5). This is the specific portion of 23 CFR parts 200 and 
300 that needs to be reviewed and is not related to Title VI of the 
Civil Rights Act of 1964 in paragraph (a)(2). In addition, we have 
added a new paragraph (a)(3) ``49 U.S.C. 5332, prohibiting 
discrimination on the basis of race, color, creed, national origin, 
sex, or age in employment or business opportunity.'' Upon further 
review of this section, the FHWA and the FTA determined that 49 U.S.C. 
5332 should be included in this list of requirements.
    Several comments to the docket expressed concern regarding the need 
for approval of the STIP when submitted to the FHWA and the FTA. While 
we still require joint approval, we have revised paragraph (b) to 
delete the proposed time frames of ``every four years'' or ``at the 
time the amended STIP is submitted.'' We will also make a joint finding 
on the ``STIP,'' rather than ``the projects in the STIP.''
    Some commenters raised questions regarding the authority in 
paragraph (c) for the FHWA and the FTA approval of a STIP to continue 
for up to 180 days under extenuating circumstances even though a State 
has missed the deadline for its four-year update. Several comments 
suggested that the 180 calendar day limit for STIP extensions should be 
expanded and most supported not putting any time limit on the STIP 
extension period. At the same time, some national and regional advocacy 
organizations opposed allowing any STIP extensions. This provision has 
been in the planning regulations since the original rule relating to 
STIPs was adopted in October 1993, following the enactment of the 
ISTEA. Although the statute specifies that STIPs shall be updated every 
four years, Congress did not specify any consequences of missing this 
deadline by failing to complete the update within the specified period. 
Because Congress was silent on the consequences of the failure to 
update the STIP within the four-year period, the FHWA and the FTA have 
some latitude in interpreting Congress' intent. This discretion is 
further manifested in the statute by the fact that the FHWA and the FTA 
are given responsibility to approve the STIP (23 U.S.C. 135(g)(6) and 
49 U.S.C. 5304(g)(6)). Since the October 1993 planning rule, the FHWA 
and the FTA have interpreted the update requirement strictly, believing 
that Congress intended the process to work on a regular cycle, and that 
regular updates were essential to the viability of the transportation 
planning process. Therefore, we have concluded that approval of the 
STIP should only continue past the update time period specified in 
statute when there are extenuating circumstances beyond the control of 
the State DOT that causes it to miss its update deadline.

[[Page 7236]]

    Examples of extenuating circumstances include (but are not limited 
to): (a) late action by the Governor or State legislature on revenue 
that was reasonably expected to be available for transportation 
projects in the STIP, whereby instances have occurred when the STIP was 
nearing the completion of the update process (public review and 
comments had been received), but just before adoption the funding was 
severely restricted, thus a new update process (based on new fiscal 
constraint reality) needed to be commenced; or (b) disasters, both 
natural and man-made, have caused States to divert both funding and 
staff resources away from the STIP update process.
    Further, the FHWA and the FTA believe that such an approval cannot 
extend indefinitely, but only be of limited duration (i.e., 180 
calendar days). Therefore, we have retained the provision in paragraph 
(c) for an extension of the STIP update under extenuating 
circumstances. However, paragraph (c) has been slightly modified to 
clarify that, while the FHWA and the FTA approval may continue for a 
limited period of time based on extenuating circumstances, the 
statutory deadline for the update has not been changed. We have also 
clarified that the 180-day period refers to ``calendar days.''
    Many comments were received questioning why the existing 
flexibility to maintain or establish operations for highway operating 
assistance was eliminated here and in Sec.  450.328 (TIP actions by the 
FHWA and the FTA). This was an erroneous omission in the NPRM and the 
language has been restored to correct this error.
    A small number of national and regional advocacy organizations 
expressed concern that the rule does not provide enough detail on the 
standards that the FHWA, the FTA and State DOTs should apply in making 
a statewide planning finding. We believe that the entire context of the 
rule and of the statute sufficiently identify the criteria to be used 
in making a finding that the transportation planning process meets or 
substantially meets these requirements. We do not believe additional 
detail is required in the rule. However, if necessary, the FHWA and the 
FTA will provide non-regulatory guidance, training and technical 
assistance.

Section 450.220 Project Selection From the STIP

    The docket included 20 documents that contained about 20 comments 
on this section. The majority of the comments were from State DOTs. 
MPOs and COGs, as well as transit agencies, city/county governments, 
and national and regional advocacy groups, also provided comments.
    All of the comments pertained to the two questions posed in the 
preamble to the NPRM: ``whether States should be required to prepare an 
`agreed to' list of projects at the beginning of each of the four years 
in the STIP, rather than only the first year'' and ``whether a STIP 
amendment should be required to move projects between years in the 
STIP, if an `agreed to' list is required for each year.'' 
Predominantly, comments asserted that requiring a State DOT or MPO to 
submit an agreed-to list at the beginning of each of the four years of 
the TIP/STIP or requiring an amendment to move projects between years 
in the STIP unnecessarily limited flexibility and thus should not be a 
requirement. The FHWA and the FTA agree with the majority of the 
comments. Therefore, no change was made to the rule language.
    We have clarified paragraph (b) to indicate that project selection 
shall be made according to procedures provided in Sec.  450.330 
(Project Selection From the TIP).

Section 450.222 Applicability of NEPA to Statewide Transportation Plans 
and Programs

    The docket includes very few comments on this section. One concern 
expressed is that this section or Appendix A would make planning 
reviewable under NEPA. The purpose of this section, however, is to 
reiterate the statutory provisions that clearly say that the statewide 
transportation planning process decisions are not subject to review 
under NEPA. We have changed this section to mirror the language in 23 
U.S.C. 135(j) and 49 U.S.C. 5304(j).

Section 450.224 Phase-In of New Requirements

    The docket included 30 documents that contained almost 100 comments 
on this section with about half from State DOTs, one-fifth from 
national and regional advocacy organizations, one-fifth from MPOs and 
COGs, and the rest from city/county/State agencies.
    All comments received indicated that it will be difficult to meet 
the SAFETEA-LU July 1, 2007, deadline. Subsequent to the preparation of 
the proposed rule, but prior to its publication, the FHWA and the FTA 
disseminated additional guidance regarding the phase-in requirements on 
May 2, 2006.\10\ Many of the comments to the docket addressed issues 
that were clarified in our May 2, 2006, guidance. The provisions of the 
guidance have been incorporated into the regulation. Specifically, we 
have clarified that long-range statewide transportation plans and STIPs 
adopted and approved prior to July 1, 2007, may be developed using the 
TEA-21 requirements or the provisions and requirements of this part.
---------------------------------------------------------------------------

    \10\ This guidance document, ``SAFETEA-LU Deadline for New 
Planning Requirements'', dated May 2, 2006, is available on the 
following URL: http://www.fhwa.dot.gov/hep/plandeadline.htm.
---------------------------------------------------------------------------

    We have also clarified, in paragraph (a), what actions may be taken 
prior to July 1, 2007, on long-range statewide transportation plans and 
STIPs.
    One MPO, half of the national and regional advocacy organizations 
and a quarter of the State DOTs commented that the regulations should 
clearly state that partial STIP approvals are allowable if one MPO or 
region is not SAFETEA-LU compliant. Because the regulation already 
allows for approval of partial STIPs (see Sec.  450.218(b)(1)(iii)), no 
change was made to the regulation. Approval of partial STIPs is 
acceptable, primarily when difficulties are encountered in 
cooperatively developing the STIP portion for a particular metropolitan 
area or for a Federal Lands agency. If an MPO is able to produce a TIP 
that is SAFETEA-LU compliant, the Federal action would be to amend that 
TIP into the STIP, making the portion of the STIP that covers that 
region SAFETEA-LU compliant.
    Most of the national and regional advocacy organizations and most 
of the State DOTs commented that the deadline for transportation plan, 
STIP and TIP action should apply to State/MPO approval action rather 
than the FHWA/FTA conformity finding. The FHWA and the FTA issued 
guidance on ``Clarification of Plan Requirements in Nonattainment and 
Maintenance Areas'' on May 25, 2001.\11\ Since the FHWA and the FTA do 
not determine conformity of STIPs, we are revising this section to 
eliminate conformity determinations. However, the rest of the rule 
language is consistent with current practice, and therefore, no other 
change was made.
---------------------------------------------------------------------------

    \11\ This guidance document, ``Clarification of Plan 
Requirements in Nonattainment and Maintenance Areas,'' dated May 25, 
2001, can be found via the internet at the following URL: http://www.fhwa.dot.gov/environment/conformity/planup_m.htm.
---------------------------------------------------------------------------

    Most of the commenters stated that 23 U.S.C. 135(b) requires only 
``updates'' to reflect changes required by SAFETEA-LU after July 1, 
2007, not ``amendments.'' The comments noted that requiring a STIP re-
adoption for minor amendments would be a

[[Page 7237]]

substantial burden and is a stricter interpretation of the statute than 
Congress intended. Prior to the adoption of this rule, there has not 
been an accepted definition of or distinction between the terms 
``update'' or ``amendment.'' As established in Section 450.104 
(Definitions) of this rule, the FHWA and the FTA consider an amendment 
to the STIP to be a major change to the transportation plan or program. 
The FHWA and the FTA believe that any major change to the 
transportation plan or program, whether called an ``amendment'' or an 
``update'' under this regulation, is considered for this purpose an 
``update'' as referenced in 23 U.S.C. 135(b). However, an 
``administrative modification'' would not be covered by this 
requirement. This rule clarifies the definition of these terms for the 
future.
    One national and regional advocacy organization stated that 
Congress specified that the SAFETEA-LU phase-in period should begin on 
July 1, 2007, not be completed by that date. The FHWA and the FTA 
believe that this is an incorrect interpretation of the statute. The 
FHWA and the FTA agree that administrative modifications can be made to 
STIPs after July 1, 2007, but amendments or revisions that would add or 
delete a major new project to a TIP, STIP, or transportation plan would 
not be acceptable after July 1, 2007, in the absence of meeting the 
provisions and requirements of this part. This information has been 
included in paragraph (c).

Subpart C--Metropolitan Transportation Planning and Programming

Section 450.300 Purpose

    No comments were received on this section and no changes were made.

Section 450.302 Applicability

    No comments were received on this section and no changes were made.

Section 450.304 Definitions

    No comments were received on this section and no changes were made.

Section 450.306 Scope of the Metropolitan Transportation Planning 
Process

    The docket included about 80 separate comments on this section with 
almost half from MPOs and COGs. Several national and regional advocacy 
organizations also commented on this section. Most of the remaining 
comments came from State DOTs and transit agencies. City/county 
governments and others also commented on this section.
    In comments on this section and Sec.  450.206 (Scope of the 
statewide transportation planning process), many MPOs and COGs, some 
national and regional advocacy organizations and a few State DOTs noted 
that paragraph (a)(3) embellished the statutory language for the 
``security'' planning factor. Organizations that commented on this 
issue were concerned that the expanded language would require State 
DOTs and MPOs to go far beyond their traditional responsibilities in 
planning and developing transportation projects, which was not intended 
by the SAFETEA-LU. The FHWA and the FTA agree and have revised the 
language in paragraph (a)(3) to match the language in the statute.
    After further review, the FHWA and the FTA have changed the word 
``should'' to ``shall'' in paragraph (b) to be consistent with 
statutory language in 23 U.S.C. 134(h)(1) and 49 U.S.C. 5303(h)(1).
    Most of the State DOTs and several of the national and regional 
advocacy organizations that commented on similar text in Sec.  450.206 
(Scope of the statewide transportation planning process) said that the 
text in paragraph (b) of that section should be revised to be similar 
to the text in the October 1993 planning rule acknowledging that the 
degree of consideration will reflect the scales and complexity of 
issues within the State. The FHWA and the FTA agree with those comments 
and revised this section, as well, to be consistent. We have included 
the language from the October 1993 planning rule with one change. The 
phrase ``transportation problems'' was changed to ``transportation 
system development.''
    After further review, we have clarified paragraph (c) to mirror the 
language in 23 U.S.C. 134(h)(2) and 49 U.S.C. 5303(h)(2). The paragraph 
now specifically refers to ``any court under title 23 U.S.C., 49 U.S.C. 
Chapter 53, subchapter II of title 5 U.S.C. Chapter 5, or title 5 
U.S.C. Chapter 7.''
    Some MPOs and COGs and a few national and regional advocacy 
organizations asked for clarification on the meaning of asset 
management principles and information on how to link them to 
performance measures. The FHWA and the FTA have changed ``are 
encouraged to'' to ``may'' in paragraph (e) to provide additional 
flexibility for MPOs, State DOTs, and public transportation operators 
to apply asset management principles appropriate to their individual 
context. If necessary, the FHWA and the FTA will provide additional 
non-regulatory guidance, training and technical assistance.
    Many of the State DOTs and a few of the national and regional 
advocacy organizations that provided comments on this topic said the 
text in paragraph (f) went beyond statutory requirements. The FHWA and 
the FTA agree with these comments and revised the rule accordingly by 
adding ``to the maximum extent practicable'' in paragraph (f).
    Most transit agencies, several State DOTs, MPOs and COGs, and 
others provided comments on the requirement in paragraph (g) for the 
metropolitan transportation planning process to be consistent with the 
development of coordinated public transit-human services transportation 
plans. In general, commenters requested additional information on the 
plans, who was responsible for developing the plans and how they were 
to be consistent. Some commenters recommended removing the requirement 
entirely.
    Communities have broad flexibility in determining the roles and 
responsibilities in this area, including selecting the organization 
charged with developing the coordinated public transit-human services 
transportation plan. The FHWA and the FTA encourage review of the 
proposed FTA Circulars for implementing the 49 U.S.C. 5310, 5316, and 
5317 programs (New Freedom Program Guidance, The Job Access And Reverse 
Commute (JARC) Program, Elderly Individuals and Individuals With 
Disabilities Program), published on September 6, 2006.\12\ Consistency 
between public transit-human services planning and the metropolitan 
transportation planning process is required. The provisions for 
promoting consistency between the planning processes were revised to 
clarify and add flexibility. In order to receive funding in title 49 
U.S.C. Chapter 53, projects from the coordinated public transit-human 
services transportation plans must be incorporated into the 
metropolitan transportation plan, TIP and STIP. And, in areas with a 
population greater than 200,000, solicitation of projects for 
implementation from the public transit-human services transportation 
plan must be done in cooperation with the MPO.
---------------------------------------------------------------------------

    \12\ These documents, ``Elderly Individuals and Individuals With 
Disabilities, Job Access and Reverse Commute, and New Freedom 
Programs: Coordinated Planning Guidance for FY 2007 and Proposed 
Circulars'' was published September 6, 2006, and are available via 
the internet at the following URLs: http://www.fta.dot.gov/publications/publications_5607.html or http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-14733.pdf.
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    Several transit agencies and a few State DOTs and others suggested 
deleting the portion of paragraph (h)

[[Page 7238]]

related to Regional Transit Security Strategies (RTSS) due to the 
confidential nature of these plans. Reference to the RTSS was removed 
from paragraph (h). Instead, we have added a reference to ``other 
transit safety and security planning and review processes, plans, and 
programs, as appropriate.''

Section 450.308 Funding for Transportation Planning and Unified 
Planning Work Programs

    There were a few comments on this section from MPOs and COGs. Those 
that commented on this section supported the flexibility provided in 
paragraph (d) and several requested clarification on issues such as the 
definition of ``MPO staff,'' and different processes expected of non-
TMA and TMA MPOs. If necessary, the FHWA and the FTA will provide 
additional clarification through development of technical reports or 
guidance; however we did not make any changes to this section.

Section 450.310 Metropolitan Planning Organization Designation and 
Redesignation

    The docket included about 30 separate comments on this section with 
the most coming from national and regional advocacy organizations. Most 
of the remaining comments came from State DOTs, MPOs and COGs. Local 
agencies also commented on this section.
    Several of the MPOs and COGs and national and regional advocacy 
organizations that provided comments on this section worried that the 
Census' continuous sample American Community Survey (ACS) would change 
the official populations in urbanized areas more often than once a 
decade, and recommended that paragraph (a) should specifically state 
that urbanized area populations be based only on each decennial Census. 
The Census Bureau historically has identified and defined the 
boundaries and official population of urbanized areas only in 
conjunction with each decennial Census. This practice will not change 
as a result of the ACS. The ACS is collected in a nationwide sample of 
households, and does not constitute a full enumeration of the U. S. 
population. Consequently, it does not provide the necessary basis for 
adjusting the boundaries of an urbanized area or revising its total 
population. Moreover, changing this paragraph would preclude the option 
for a fast growing urban area to request (and pay for conducting) a 
special mid-decade Census for the purpose of determining whether its 
population increased beyond the threshold for designation as an MPO or 
TMA. While this has been done infrequently in the past, the FHWA and 
the FTA do not want to prohibit this option. Therefore, no change was 
made to this paragraph.
    A few national and regional advocacy organizations and State DOTs 
had comments on paragraph (c), ranging from deleting language that they 
said went beyond statute to clarifying the phrase ``to the extent 
possible'' to including the public in designation. The language in this 
paragraph was carried forward from the October 1993 planning rule. 
However, the FHWA and the FTA agree that the implied regulatory 
standing was unclear. This paragraph has been changed to mirror the 
language in 23 U.S.C. 134(f)(2) and 49 U.S.C. 5303(f)(2). The intent of 
this paragraph is to encourage States to enact legislation that gives 
MPOs specific authority to carry out transportation planning for the 
entire metropolitan planning area they serve. Without such enabling 
legislation, MPOs may lack the necessary leverage to effectively 
coordinate transportation projects across local jurisdictions.
    A national and regional advocacy organization suggested language be 
added to paragraph (d) to encourage broad representation, especially 
from public transportation operators, on MPO policy boards. The statute 
(23 U.S.C. 134(d)(2)(B) and 49 U.S.C. 5303(d)(2)(B)) explicitly 
provides for public transportation agencies to be included on policy 
boards. To clarify this issue, paragraph (d) has been changed to better 
reflect the language in the statute. Further, we have added language to 
the rule to encourage MPOs to increase the representation of local 
elected officials and public transportation agencies on their policy 
boards, subject to the requirements of paragraph (k) of this section.
    After further review, we have changed the language in paragraph (e) 
from ``should'' to ``shall'' to be consistent with statute (23 U.S.C. 
134(d)(1) and 49 U.S.C. 5303(d)(1)).
    A question was asked about the purpose of paragraph (f). This is 
not a new paragraph. In fact, it first appears in Federal statute (23 
U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3)) as a means of 
``grandfathering'' in those multimodal transportation agencies that 
were in existence at the time of enactment of ISTEA, which were serving 
many of the functions of an MPO. This paragraph continues to appear in 
the SAFETEA-LU (23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3), but was 
not explicitly included in past versions of the metropolitan 
transportation planning regulations. The FHWA and the FTA agree that it 
is no longer necessary and have removed it from the rule. Most agencies 
covered by the provisions of 23 U.S.C. 134(d)(3) and 49 U.S.C. 
5303(d)(3) have already been officially designated as an MPO, and this 
option still will have the force of law in the statute.
    Some commenters suggested that paragraph (g) (now paragraph (f)) 
should allow MPOs to use non-profit organizations for staff work. This 
paragraph brings forward the language from the October 1993 planning 
rule. Nothing in this paragraph prohibits an MPO from using the staff 
resources of other agencies, non-profit organizations, or contractors 
to carry out selected elements of the metropolitan planning process. 
However, to clarify this issue, we have added ``non-profit 
organizations, or contractors'' to this paragraph.
    A few MPOs recommended deleting ``current MPO board members'' as 
one definition for units of general purpose local government from 
paragraph (k) (now paragraph (j)). The FHWA and the FTA agree that 
allowing the option of ``local elected officials currently serving on 
the MPO'' to represent all units of general purpose local government 
for the purposes of redesignation could result in unintended problems. 
The FHWA and the FTA have deleted ``local elected officials currently 
serving on the MPO'' from this paragraph and moved the remaining text 
into the body of paragraph (j).
    Many of the State DOTs and a few of the national and regional 
advocacy organizations and MPOs and COGs that commented on this section 
had specific comments on paragraph (l) (now paragraph (k)) saying that 
the paragraph goes beyond statutory requirements and should be deleted 
and requesting clarification and minor word changes. The intent of this 
paragraph is that while an MPO may identify the need for redesignation, 
actual redesignation must be carried out in accordance with statutory 
redesignation procedures. The FHWA and the FTA have added language to 
this paragraph to clarify that redesignation is in accordance with the 
provisions of this section (Sec.  450.310). We have also modified 
paragraph (m) (now paragraph (l)) to reference the substantial change 
discussion in paragraph (k).
    The docket contained a comment in regards to paragraph (l) (now 
paragraph (k)) that Sec.  4404 of the SAFETEA-LU provides specific 
designation and redesignation authority for the States of Alaska and 
Hawaii. Because Sec.  4404 of the SAFETEA-LU does not apply

[[Page 7239]]

universally to all MPOs, it is not included in the rule.

Section 450.312 Metropolitan Planning Area Boundaries

    The docket included a few comments on this section with the most 
coming from MPOs and COGs and the remaining comments from State DOTs 
and national and regional advocacy organizations. Several of the 
comments provided general support for this section of the planning rule 
as written.
    A few of the comments related to paragraph (b) and asked for minor 
text changes or clarification on how the section may limit flexibility. 
The FHWA and the FTA revised the paragraph to make it more consistent 
with statutory text and, thus, it should not limit flexibility beyond 
statutory requirements. We also added a reference to the requirements 
in Sec.  450.310(b) to reiterate that the MPA boundary may be 
established to coincide only if there is agreement of the Governor and 
the affected MPO in the same manner as is required for designating an 
MPO in the first place.
    One of the comments regarding paragraph (d) asked for clarification 
for requiring that the metropolitan planning area (MPA) boundary 
coincide with regional economic development or growth forecasting 
areas, in particular, for complex areas having multiple, non-coincident 
boundaries. This paragraph says that metropolitan planning boundaries 
``may'' be established to coincide with regional economic and growth 
forecasting areas. This paragraph is permissive, not mandatory. 
Instead, this paragraph provides MPOs with the flexibility to allow 
their planning boundaries to coincide with other, established 
boundaries, but does not require them to do so. For clarification and 
simplicity, the word ``the'' was deleted from the beginning of this 
paragraph.
    In response to comments on this section, we have also clarified 
paragraph (h) to indicate that all boundary adjustments that change the 
composition of the MPO may require redesignation of one or more such 
MPOs, rather than only boundary changes that ``significantly'' change 
the composition of the MPO.

Section 450.314 Metropolitan Planning Agreements

    The docket included more than 70 comments on this section, with the 
most coming from State DOTs, followed by MPOs and COGs. The remaining 
comments were from national and regional advocacy organizations, local 
agencies and public transportation providers.
    Most of the State DOTs and MPOs, many of the national and regional 
advocacy organizations, and a few of the public transportation 
providers and local agencies that commented on paragraph (a) expressed 
concern about an unintended burden resulting from the requirements 
outlined in this paragraph and requested clarification. Some suggested 
text changes such as using the term ``memorandum of understanding'' in 
place of ``agreement.'' The MPO agreements are intended to document the 
cooperative arrangements among the various agency participants that 
participate in the metropolitan transportation planning process. The 
FHWA and the FTA encourage a single agreement. However, the rule 
language has been changed to reflect the option for multiple 
agreements. Removing the implied requirement for a single written 
agreement should allow many current planning agreements to satisfy the 
provisions of this paragraph provided they are written documents.
    Many of the State DOTs that commented on this section said they 
find paragraph (a)(1) too prescriptive and redundant with requirements 
in other sections of the planning rule. On the other hand, several MPOs 
and COGs and national and regional advocacy organizations that provided 
comments on this section wrote to support the proposed rule language in 
this paragraph. The FHWA and the FTA believe the information in this 
paragraph is helpful to identify what shall be included in the written 
agreement(s). No change was made to this language, but it has been 
moved into the body of paragraph (a).
    Many of the State DOTs that commented on this section said they 
found paragraph (a)(2) too prescriptive and redundant with requirements 
in other sections of the planning rule. Several MPOs and COGs and 
national and regional advocacy organizations said they would like 
clarification or minor text changes in this paragraph. A small number 
of MPOs and COGs and national and regional advocacy organizations that 
provided comments on this section wrote to support the proposed rule 
language in this paragraph. The FHWA and the FTA removed this paragraph 
from the final rule since the issues are adequately addressed in Sec.  
450.316 (Interested parties, participation, and consultation).
    The docket includes a comment on this section objecting to the 
requirement in paragraph (f) that a planning agreement between two or 
more MPOs serving part of a TMA shall address specific TMA 
requirements, such as the suballocation of Surface Transportation 
Program (STP) funds. The FHWA and the FTA revised the final rule to 
clarify that the entire adjacent urbanized area does not need to be 
treated as a TMA. However, a written agreement shall be established 
between the MPOs with MPA boundaries including a portion of the TMA, 
which clearly identifies the roles and responsibilities of each MPO in 
meeting specific TMA requirements (e.g. congestion management process, 
STP funds suballocated to the urbanized area over 200,000 population, 
and project selection).
    Representatives of State DOTs and private bus operators requested 
the inclusion of detailed methodologies for engaging private service 
providers in the transportation planning process, as well as standards 
for ascertaining compliance with private enterprise provisions and a 
complaint process. To ensure maximum flexibility for localities to 
tailor programs to the needs of private service providers in their 
areas, the FHWA and the FTA will use non-regulatory guidance, training, 
and technical assistance, as necessary, for disseminating information 
on optional approaches to private sector participation.

Section 450.316 Interested Parties, Participation, and Consultation

    The FHWA and the FTA received more than 80 comments on this section 
with the most coming from MPOs and COGs, followed by national and 
regional advocacy organizations. Public transportation providers, State 
DOTs and local agencies also provided comments on this section. In 
general, many of the MPOs and some of the others who provided comments 
on this section said that they supported the rule as written or with 
minor changes.
    A few MPOs in regards to paragraph (a) asked about the difference 
between the participation plan identified in this rule and the public 
involvement plan under the prior two authorizations, the ISTEA and the 
TEA-21. The participation plan in this section has several elements not 
required of the public involvement plan: the participation plan shall 
be developed in consultation with all interested parties; and the 
participation plan shall include procedures for employing visualization 
techniques and making public information available in electronically 
accessible formats and means.
    There were a variety of comments regarding the list of interested 
parties in paragraph (a) from several MPOs and COGs, national and 
regional advocacy

[[Page 7240]]

organizations and public transportation providers. The comments ranged 
from specifically including additional groups by reference to adding 
``non-citizens'' or ``the public'' and ``limited English proficiency'' 
to adding definitions for the groups that are in the list to making the 
list optional. The FHWA and the FTA find that, with a general reference 
to ``other interested parties,'' MPOs have adequate flexibility to 
develop and implement a participation plan that provides an appropriate 
list of interested parties for their individual metropolitan area. MPOs 
are encouraged to broaden the list of interested parties beyond those 
listed in statute, as appropriate. The list in the rule has been 
modified to match the language in the statute (23 U.S.C. 134(i)(5) and 
49 U.S.C. 5303(i)(5)). No additional groups were added. The FHWA and 
the FTA note that 49 U.S.C. 5307(c) requires grant recipients to make 
available to the public information on the proposed program of projects 
and associated funding.
    Representatives of a State DOT and private bus operators requested 
the inclusion of detailed methodologies for engaging private service 
providers in the transportation planning process, as well as standards 
for ascertaining compliance with private enterprise provisions and a 
complaint process. These commenters also requested that the private bus 
operators be specifically included in the list of interested parties. 
To ensure maximum flexibility for localities to tailor programs to the 
needs of private service providers in their areas, we will rely upon 
non-regulatory guidance, training, and technical assistance for 
disseminating information on optional approaches to private sector 
participation.
    A Federal agency commented that the public or an agency should be 
able to identify itself to the MPO as an appropriate contact without 
having to be identified to participate by the MPO. The FHWA and the FTA 
agree. If an MPO is approached, the MPO should consider the request and 
determine whether the consultation is appropriate. We believe that this 
flexibility is allowed within the existing rule language. No change has 
been made to this section of the rule.
    A few MPOs and COGs that commented on this section asked for a 
definition of ``reasonable access'' under paragraph (a)(1)(ii). This 
requirement carries forward what was in the October 1993 planning rule. 
The FHWA and the FTA find that MPOs have had adequate flexibility to 
define ``reasonable access'' when they developed and revised their 
public involvement plan and will continue to have that flexibility with 
the requirements for a participation plan. This definition was not 
added to the rule.
    Many MPOs and COGs and some of the other organizations that 
commented on this section wrote to support the requirement for 
employing visualization in paragraph (a)(1)(iii). Several MPOs and COGs 
asked for clarification or subsequent guidance on effective and 
appropriate use of visualization techniques. The FHWA and the FTA agree 
that there is a need for more technical information on the use of 
visualization techniques and will provide technical reports and non-
regulatory guidance, as necessary, subsequent to the publication of 
this rule.
    A few MPOs and COGs said in reference to paragraph (a)(1)(iv) that 
making technical information available could be overly burdensome. This 
requirement conforms to the requirement in statute (23 U.S.C. 134 
(i)(5) and 49 U.S.C. 5303(i)(5)). MPOs have flexibility to define 
specific techniques for making information available when they develop 
and revise their public participation plan.
    Several MPOs and COGs and a public transportation provider wrote in 
reference to paragraph (a)(1)(vi) that the term ``explicit 
consideration'' could be burdensome and needs clarification. This 
language was similar to a requirement under the public involvement plan 
and based on that experience, the FHWA and the FTA believe that MPOs 
have adequate flexibility to define specific techniques when they 
develop and revise their public participation plan. If needed, the FHWA 
and the FTA will provide subsequent information on accepted practices 
in technical reports or guidance.
    Several MPOs and COGs wrote in regards to paragraph (a)(1)(viii) 
that the section could result in unintended burdens on MPOs. In 
reviewing the statutory requirement (23 U.S.C. 134 (j)(4) and 49 U.S.C. 
5303(j)(4)) and the October 1993 planning rules, the FHWA and the FTA 
agree that the current wording, which was intended to simplify 
requirements, could lead to unintended burdens. The language in this 
paragraph has been revised to follow more closely the language in the 
October 1993 planning rule and now reads: ``Providing an additional 
opportunity for public comment, if the final transportation plan or TIP 
differs significantly from the version that was made available for 
public comment by the MPO and raises new material issues which 
interested parties could not reasonably have foreseen from the public 
involvement efforts.''
    A few of the MPOs and COGs and a few of the national and regional 
advocacy organizations were concerned in paragraph (b) about their 
ability to consult with resource agencies. Upon further review of this 
paragraph, the FHWA and the FTA have revised paragraph (b). The 
originally proposed paragraph (b) ``mixed and matched'' consultation 
requirements from the SAFETEA-LU. We have removed the consultation 
discussion related to land management, resource, and environmental 
agencies from this paragraph. That information is included in Sec.  
450.322 (Development and content of the metropolitan transportation 
plan). The sentences that read ``To coordinate the planning functions 
to the maximum extent practicable, such consultation shall compare 
metropolitan transportation plans and TIPs, as they are developed, with 
the plans, maps, inventories, and planning documents developed by other 
agencies. This consultation shall include, as appropriate, contacts 
with State, local, Indian Tribal, and private agencies responsible for 
planned growth, economic development, environmental protection, airport 
operations, freight movements, land use management, natural resources, 
conservation, and historic preservation.'' were deleted. Instead, the 
phrase ``(including State and local planned growth, economic 
development, environmental protection, airport operations, or freight 
movements) or coordinate its planning process (to the maximum extent 
practicable) with such planning activities'' was added. This phrase is 
consistent with the requirements in the SAFETEA-LU that apply to 
consultation in metropolitan transportation plan and TIP coordination 
(23 U.S.C. 134(i)(4)(A) and 49 U.S.C. 5303(i)(4)(A)). Also to be 
consistent with statute, the term ``shall'' was changed to ``should.''
    A few of the MPOs and COGs, a few of the national and regional 
advocacy organizations, a State DOT and a local agency that provided 
comments on this section said regarding paragraph (b), that natural 
resource agencies are not required to respond when consulted and that 
this places an unreasonable burden on MPOs. However, several MPOs wrote 
in support of this specific paragraph. The language regarding 
consultation has been modified to reflect the statutory requirement (23 
U.S.C. 134(i)(4) and 49 U.S.C. 5303(i)(4)). The FHWA and the FTA 
believe that clarification of what constitutes a reasonable attempt at 
consultation is better placed in guidance

[[Page 7241]]

and illustrations of practice where there is greater flexibility to 
address regional differences and the evolution of practice.
    Also regarding paragraph (b), a local agency said that MPOs should 
not be required to consult with private agencies responsible for 
planned growth. The FHWA and the FTA believe there may be a need to 
consult with such organizations given the increase in public-private 
partnerships. However, the specific phrase ``private agencies 
responsible for growth'' is not in the statute or the October 1993 
planning regulations and has the potential to cause confusion in the 
implementation of this rule. Accordingly, the FHWA and the FTA removed 
the phrase ``private agencies responsible for planned growth.''
    A few MPOs and COGs that commented on this section said in regards 
to paragraph (b) that MPO requirements to consult should be limited to 
the metropolitan transportation plan, and not the TIP. No change was 
made to the rule because the requirement reflects language in the 
statute (23 U.S.C. 134(i)(4) and 49 U.S.C. 5303(i)(4)).
    A small number of national and regional advocacy organizations 
expressed concern that the rule does not explicitly require that all 
information used in making a conformity determination be made available 
for public comment. The transportation conformity rule (40 CFR 
93.105(e)) requires that agencies establish a proactive public 
involvement process and that requirements of Sec.  450.316(a) be 
followed and met before conformity may be determined. The FHWA and the 
FTA find that the public involvement requirements of this section and 
the conformity rule are sufficient to provide the public with 
appropriate access to the information developed during a conformity 
determination.
    Representatives of a State DOT and private bus operators requested 
the inclusion of detailed methodologies for engaging private service 
providers in the transportation planning process, as well as standards 
for ascertaining compliance with private enterprise provisions and a 
complaint process. To ensure maximum flexibility for localities to 
tailor programs to the needs of private service providers in their 
areas, we will rely upon non-regulatory guidance, training, and 
technical assistance for disseminating information on optional 
approaches to private sector participation.
    Some MPOs and COGs and a few national and regional advocacy 
organizations wrote that the consultation process with other 
governments and agencies referenced in paragraph (e) does not need to 
be documented. The FHWA and the FTA find that documentation of 
consultation processes is essential to a party's ability to understand 
when, how, and where the party can be involved. This paragraph has been 
changed to require that MPOs, to the extent practicable, develop a 
documented process(es) that outlines roles, responsibilities, and key 
decision points for consulting with other governments and agencies.

Section 450.318 Transportation Planning Studies and Project Development

    Section 1308 of the TEA-21 required the Secretary to eliminate the 
MIS set forth in Sec.  450.318 of title 23, Code of Federal 
Regulations, as a separate requirement, and promulgate regulations to 
integrate such requirement, as appropriate, as part of the analysis 
required to be undertaken pursuant to the planning provisions of title 
23 U.S.C. and title 49 U.S.C. Chapter 53 and the National Environmental 
Policy Act of 1969 (NEPA) for Federal-Aid highway and transit projects. 
The purpose of this section is to implement this requirement of Section 
1308 of the TEA-21 and eliminate the MIS requirement as a stand-alone 
requirement. A phrase has been added to paragraph (a) to clarify the 
intent of this section.
    The docket included almost 20 documents that contained more than 50 
comments on this section with about two-thirds from State DOTs and the 
rest from MPOs or COGs, as well as national and regional advocacy 
organizations. The comments on this section were similar to, and often 
referenced, the comments on Sec.  450.212 (Transportation planning 
studies and project development).
    Most of the comments received supported the concept of linking 
planning and NEPA but opposed including Appendix A in the rule. The 
purpose of an Appendix to a regulation is to improve the quality or use 
of a rule, without imposing new requirements or restrictions. 
Appendices provide supplemental, background or explanatory information 
that illustrates or amplifies a rule. Because Appendix A provides 
amplifying information about how State DOTs, MPOs and public 
transportation operators can choose to conduct transportation planning-
level choices and analyses so they may be adopted or incorporated into 
the process required by NEPA, but does not impose new requirements, the 
FHWA and the FTA find that Appendix A is useful information to be 
included in support of this and other sections of the rule. A phrase 
has been added and this information has been included as paragraph (e). 
Additionally, we have added disclaimer language at the introduction of 
Appendix A.
    The FHWA and the FTA recognize commenters' concerns about Appendix 
A, including the recommendation that this information be kept as 
guidance rather than be made a part of the rule. First, information in 
an Appendix to a regulation does not carry regulatory authority in 
itself, but rather serves as guidance to further explain the 
regulation. Secondly, as stated above, Section 1308 of TEA-21 required 
the Secretary to eliminate the MIS as a separate requirement, and 
promulgate regulations to integrate such requirement, as appropriate, 
as part of the transportation planning process. Appendix A fulfills 
that Congressional direction by providing explanatory information 
regarding how the MIS requirement can be integrated into the 
transportation planning process. Inclusion of this explanatory 
information as an Appendix to the regulation will make the information 
more readily available to users of the regulation, and will provide 
notice to all interested persons of the agencies' official guidance on 
MIS integration with the planning process. Attachment of Appendix A to 
this rule will provide convenient reference for State DOTs, MPOs and 
public transportation operator(s) who choose to incorporate planning 
results and decisions in the NEPA process. It will also make the 
information readily available to the public. Additionally, the FHWA and 
the FTA will work with Federal environmental, regulatory, and resource 
agencies to incorporate the principles of Appendix A in their day-to-
day NEPA policies and procedures related to their involvement in 
highway and transit projects. For the reasons stated above, after 
careful consideration of all comments, the FHWA and the FTA have 
decided to attach Appendix A to the final rule as proposed in the NPRM.
    Most State DOTs and several MPOs and COGs, and national and 
regional advocacy organizations that commented on this section were 
concerned that the language in paragraph (a) is too restrictive. The 
FHWA and the FTA agree that planning studies need not ``meet the 
requirements of NEPA'' to be incorporated into NEPA documents. Instead, 
we have changed the language in paragraph (a) to ``consistent with'' 
NEPA. In addition, we have added the phrase ``multimodal, systems-
level'' before ``corridor or subarea'' to

[[Page 7242]]

emphasize the ``planning'' venue for environmental consideration.
    Commenters on this section also requested that the rule clarify 
that the MPO has the responsibility for conducting corridor or subarea 
studies in the metropolitan transportation planning process. The FHWA 
and the FTA recognize that the MPO is responsible for the metropolitan 
transportation planning process. However, we do not want to preclude 
State DOTs or public transportation operators, in consultation or 
jointly with the MPO, from conducting corridor or subarea studies. 
Therefore, we have changed paragraph (a) to add the sentence ``To the 
extent practicable, development of these transportation planning 
studies shall involve consultation with, or joint efforts among, the 
MPO(s), State(s), and/or public transportation operator(s).''
    It is important to note that this section does not require NEPA-
level evaluation in the transportation planning process. Planning 
studies need to be of sufficient disclosure and embrace the principles 
of NEPA so as to provide a strong foundation for the inclusion of 
planning decisions in the NEPA process. The FHWA and the FTA also 
reiterate the voluntary nature of this section and the amplifying 
information in Appendix A. States, public transportation operators and/
or MPOs may choose to undertake studies which may be used in the NEPA 
process, but are not required to do so.
    Several State DOTs and national and regional advocacy organizations 
were concerned about the identification and discussion of environmental 
mitigation. They did not believe that detail on environmental 
mitigation activities was appropriate in the transportation planning 
process. The FHWA and the FTA agree. Paragraph (a)(5) calls for 
``preliminary identification of environmental impacts and environmental 
mitigation.'' The FHWA and the FTA believe that the term 
``preliminary'' adequately indicates that State DOTs are not expected 
to provide the same level of detail on impacts and mitigation as would 
be expected during the NEPA process. Furthermore, SAFETEA-LU requires a 
discussion of types of potential environmental mitigation activities 
and potential areas to carry out these activities. Sec.  450.322 
(Development and content of the metropolitan transportation plan) 
specifically provides that ``The discussion may focus on policies, 
programs, or strategies, rather than at the project level.''
    Some State DOTs suggested incorporating planning decisions rather 
than documents into the NEPA process. The FHWA and the FTA find that 
decisions made as part of the planning studies may be used as part of 
the overall project development process and have changed paragraph (a) 
to include the word ``decisions'' as well as ``results.'' It is 
important to note, however, that a decision made during the 
transportation planning process should be presented in a documented 
study or other source materials to be included in the project 
development process. Documented studies or other source materials may 
be incorporated directly or by reference into NEPA documents, as noted 
in Sec.  450.318(b). We have added ``or other source material'' to 
paragraph (b) to recognize source materials other than planning studies 
may be used as part of the overall project development process.
    Based on comments on Appendix A, we added the phrase ``directly 
or'' in paragraph (b), to indicate the use of publicly available 
planning documents from subsequent NEPA documents.
    Also based on comments on Appendix A, we added the phrase 
``systems-level'' in paragraph (b)(2), to emphasize that these corridor 
or subarea studies are conducted during the planning process at a 
broader scale than project specific studies under NEPA.
    Several State DOTs and many others who submitted comments on this 
section noted that the word ``continual'' in paragraph (b)(2)(iii) 
provides more opportunity to comment than is necessary. We agree and 
have replaced ``continual'' with ``reasonable'' in this paragraph.
    Several State DOTs and a national and regional advocacy 
organization suggested adding a ``savings clause'' in a new paragraph. 
A savings clause would ensure that the new provisions regarding 
corridor or subarea studies do not have unintended consequences. The 
specific elements requested to be included in the ``savings clause'' 
were statements that: (a) The corridor and subarea studies are 
voluntary; (b) corridor and subarea studies can be incorporated into 
the NEPA process even if they are not specifically mentioned in the 
metropolitan transportation plan; (c) corridor and subarea studies are 
not the sole means for linking planning and NEPA; and (d) reiterate the 
statutory prohibition on applying NEPA requirements to the 
transportation planning process. The concepts recommended in the 
``savings clause'' all reiterate provisions found elsewhere in the rule 
or statute. The FHWA and the FTA do not agree that it is necessary to 
repeat those provisions in this section.
    The docket included a comment that corridor or subarea studies 
should be required, not voluntary, to be included in NEPA studies. 
Given the opposition to requiring NEPA-level analysis in the 
transportation planning process, the FHWA and the FTA find that the 
permissive nature of this section and the guidance provided in Appendix 
A strike the appropriate balance.
    The docket also included a question asking what needs to be 
included in an agreement with the NEPA lead agencies to accomplish the 
integration of the planning and NEPA processes. The FHWA and the FTA 
have determined that identification of what information appropriately 
belongs in the agreement should be disseminated as non-regulatory 
guidance, complemented by a wide array of effective practice case 
studies and supported by training and technical assistance. 
Consequently, no change was made to the rule. We have not required that 
corridor or subarea studies be included or incorporated into NEPA 
studies.
    A national and regional advocacy organization raised a number of 
issues and asked a number of questions regarding this section. Many of 
these concerns were also expressed by some transit agencies and a small 
number of MPOs and COGs. Most of these questions related to more 
detailed information on this section with regard to the Alternative 
Analysis requirements for major transit projects. The general concern 
related to the integration of the planning provisions in Sections 3005, 
3006 and 6001 of the SAFETEA-LU and the environmental provisions in 
Section 6002 of the SAFETEA-LU, coupled with the historical Alternative 
Analysis process conducted as part of the eligibility requirements for 
transit proposals. These environment and planning provisions of the 
SAFETEA-LU are designed to add efficiencies to the project development 
process by facilitating a smooth transition from planning into the 
NEPA/project development process. To address these concerns and the 
specific questions related to the Alternatives Analysis process, the 
FHWA and the FTA have added paragraph (d) to the rule.
    A specific concern was that this section eliminated the option of 
conducting a NEPA study as part of the Alternative Analysis/corridor 
study process. The FHWA and the FTA believe this is a misinterpretation 
of this section. We have been and continue to be staunch advocates of 
addressing NEPA issues and initiating the formal project level 
environmental analyses as early as practicable in the overall project 
development framework, including the

[[Page 7243]]

transportation planning process. This section continues to allow NEPA 
studies to be initiated, even during the Alternative Analysis/corridor 
study process.
    Another concern was that this section permits the elimination of 
alternatives but does not provide for the selection of a preferred 
alternative. Additionally, a subsequent comment indicated that this 
section does not require the consideration of all reasonable 
alternatives. As is permitted by the Council on Environmental Quality's 
regulations, a project sponsor can select a preferred alternative at 
any time in the project development process but the overall 
environmental analysis cannot be slanted to support the preferred 
alternative nor does the identification of a preferred alternative 
eliminate the requirement to study all reasonable alternatives as part 
of the environmental analysis. The FHWA and the FTA believe that the 
rule allows for State DOTs, MPOs and public transportation operators 
who choose to use planning studies as part of the overall project 
development process to eliminate alternatives as well as select 
preferred alternatives, as appropriate. Therefore, no change was made 
to the rule.
    These comments also pointed out that the FTA requires alternatives 
analysis for New Starts project, but no comparable requirement is 
specified for highway projects. Unlike FTA's formula funded programs, 
New Starts has a competition based eligibility requirement and, as 
such, the FTA requires a level of evaluation and analysis to screen the 
potential myriad requests they receive for limited funds. 
Traditionally, applicants select proposed highway projects as part of 
FHWA's formula funded programs. When Congress authorizes a competition-
based highway program similar to New Starts, the FHWA has established 
criteria to evaluate and select projects that are eligible for those 
funds.
    It was also noted that Sec.  450.322 (Development and content of 
the metropolitan transportation plan) requires (in nonattainment and 
maintenance areas) design concept and scope be identified for projects. 
This comment raises several issues relative to actual application of 
the transportation planning process more than the regulation itself. 
For transportation demand modeling purposes and to meet the 
requirements of this part, the MPO and/or State DOT uses basic tools 
(e.g. engineering, capacity, past history, etc.) to identify the design 
concept and scope of a project, without conducting a formal corridor 
study. These early decisions are generally made on a broad corridor 
basis and will be refined as the project advances towards 
implementation. The commenter appears to favor this section of the rule 
being mandatory rather than permissive in an attempt to further the 
state of the practice of planning. Encouragement and incentives for 
good transportation planning were proffered by the commenter as tools 
to be used to increase the desirability of conducting corridor studies. 
The FHWA and the FTA believe Appendix A provides this encouragement and 
incentives for good transportation planning in identifying ways to 
utilize planning corridor studies and thereby reduce the amount of 
repetitive work in the NEPA process. We appreciate the support for the 
concepts in this section, but, based on all the comments received, find 
that it is most appropriate for this section to remain voluntary and 
permissive.

Section 450.320 Congestion Management Process in Transportation 
Management Areas

    The docket included more than 25 documents that contained almost 30 
comments on this section with about one-third from State DOTs, one-
fifth from national and regional advocacy organizations, half from MPOs 
and COGs, and the rest from transit operators.
    On May 16, 2006, the U.S. Secretary of Transportation announced a 
national initiative to address congestion related to highway, freight 
and aviation.\13\ The intent of the ``National Strategy to Reduce 
Congestion on America's Transportation Network'' is to provide a 
blueprint for Federal, State and local officials to tackle congestion. 
USDOT encourages the States and MPO(s) to seek Urban Partnership 
Agreements with a handful of communities willing to demonstrate new 
congestion relief strategies and encourages states to pass legislation 
giving the private sector a broader opportunity to invest in 
transportation. It calls for more widespread deployment of new 
operational technologies and practices that end traffic tie-ups, 
designates new interstate ``corridors of the future,'' targets port and 
border congestion, and expands aviation capacity.
---------------------------------------------------------------------------

    \13\ Speaking before the National Retail Federation's annual 
conference on May 16, 2006, in Washington, DC, former U.S. 
Transportation Secretary Norman Mineta unveiled a new plan to reduce 
congestion plaguing America's roads, rails and airports. The 
National Strategy to Reduce Congestion on America's Transportation 
Network includes a number of initiatives designed to reduce 
transportation congestion. The transcript of these remarks is 
available at the following URL: http://www.dot.gov/affairs/minetasp051606.htm.
---------------------------------------------------------------------------

    U.S. DOT encourages State DOTs and MPOs to consider and implement 
strategies, specifically related to highway and transit operations and 
expansion, freight, transportation pricing, other vehicle-based charges 
techniques, congestion pricing, electronic toll collection, quick crash 
removal, etc. The mechanism that the State DOTs and MPOs employ to 
explore these strategies is within their discretion. The USDOT will 
focus its resources, funding, staff and technology to cut traffic jams 
and relieve freight bottlenecks.
    A few commenters reiterated that the congestion management process 
(CMP) should result in multimodal system performance measures and 
strategies. The FHWA and the FTA note that existing language reflects 
the multimodal nature of the CMP. Existing language (Sec.  
450.320(a)(2)) specifically allows for the appropriate performance 
measures for the CMP to be determined cooperatively by the State(s), 
affected MPO(s), and local officials in consultation with the operators 
of major modes of transportation in the coverage area.
    Most of the comments pointed out that the provisions of Sec.  
450.320(e) pertaining to projects that add significant new carrying 
capacity for Single Occupant Vehicles (SOVs) applies in ``Carbon 
Monoxide (CO) and Ozone Nonattainment TMAs,'' but does not apply to 
TMAs in air quality maintenance areas. The FHWA and the FTA agree and 
have clarified the language in paragraph (e). We also clarified that 
this provision applies to projects ``to be advanced with Federal 
funds.''
    Several commenters asked for a clarification regarding what CMP 
requirements apply in air quality maintenance and attainment areas, as 
opposed to the requirements in air quality nonattainment areas. The CMP 
requirements for all TMA areas (attainment, maintenance and 
nonattainment) are identified in Sec.  450.320(a), Sec.  450.320(b), 
Sec.  450.320(c), and Sec.  450.320(f). Additional CMP requirements 
that apply only to non-attainment TMA areas (for ozone and carbon 
monoxide) are identified in Sec.  450.320(d) and Sec.  450.320(e).
    Another commenter asked for clarification regarding the exact 
requirements for a CMP and how the CMP is integrated with the 
metropolitan transportation plan. As noted above, the specific CMP 
requirements for all TMAs, regardless of air quality status, are 
identified in this section. The CMP

[[Page 7244]]

in this section is not described as, nor intended to be, a stand-alone 
process, but an integral element of the transportation planning 
process. To reinforce the integration of the CMP and the metropolitan 
transportation plan, Sec.  450.322(f)(4) requires that the metropolitan 
transportation plan shall include ``consideration of the results of the 
congestion management process in TMAs that meet the requirements of 
this subpart, including the identification of SOV projects that result 
from a congestion management process in TMAs that are nonattainment for 
carbon monoxide or ozone.''
    One commenter asked for examples of the reasonable travel demand 
reduction and operational management strategies as required in Sec.  
450.320(e). Examples of such strategies include, but are not limited 
to: Transportation demand management measures such as car and 
vanpooling, flexible work hours compressed work weeks and 
telecommuting; Roadway system operational improvements, such as 
improved traffic signal coordination, pavement markings and 
intersection improvements, and incident management programs; Public 
transit system capital and operational improvements; Access management 
program; New or improved sidewalks and designated bicycle lanes; and 
Land use policies/regulations to encourage more efficient patterns of 
commercial or residential development in defined growth areas.

Section 450.322 Development and Content of the Metropolitan 
Transportation Plan

    There were over 160 separate comments on this section, mostly from 
MPOs and COGs, followed by national and regional advocacy organizations 
and State DOTs. A number of comments also came from public 
transportation providers with the remainder coming from local 
government agencies, the general public or other sources.
    Several MPOs and COGs and national and regional advocacy 
organizations that commented on this section asked for clarification 
regarding the 20-year planning horizon in paragraph (a). The FHWA and 
the FTA want to provide MPOs flexibility on how to treat the 
metropolitan transportation plan at the time of a revision. The actual 
effective date of a metropolitan transportation plan update may be 
dependent upon several factors, including the intent of the MPO, the 
magnitude of the metropolitan transportation plan revision and whether 
conformity needs to be determined. To specifically indicate in the 
final rule when a ``revision'' may be considered a full ``update'' 
could result in limiting flexibility. For more information on this 
topic, refer to the ``Definitions'' section of this rule.
    A small number of MPOs and COGs and national and regional advocacy 
organizations that commented on this section asked for clarification in 
paragraph (b) between long-range and short-range strategies. The FHWA 
and the FTA carried forward the language regarding short and long-range 
strategies from the October 1993 planning rule. Generally, long-range 
are those strategies and actions expected to be implemented beyond 10 
years.
    A small number of national and regional advocacy organizations also 
commented that the transportation demand referenced in paragraph (b) 
should be balanced with the environment and other factors. The FHWA and 
the FTA find that the balance with environmental concerns is adequately 
raised in other parts of the rule both in this section and in Sec.  
450.306 (Scope of the metropolitan transportation planning process).
    A small number of MPOs that commented on this section wrote in 
support of paragraph (c) relating to the cycles for reviews and 
updates. The FHWA and the FTA note that this paragraph revises and 
supercedes the April 12, 2005, guidance on ``Plan Horizons'' allowing 
MPOs to ``revise the metropolitan transportation plan at any time using 
the procedures in this section without a requirement to extend the 
horizon year.''
    A small number of State DOTs and national and regional advocacy 
organizations that commented on this section said in regard to 
paragraph (d) that the proposed language limits consultation between 
State air quality agencies and MPOs in ozone and carbon monoxide (CO) 
nonattainment and maintenance areas. Transportation control measures 
(TCMs) can apply to all pollutants so this section should refer to all 
types of nonattainment and maintenance areas.
    Paragraph (d) addresses the MPO's coordination in the development 
of the TCMs in a SIP in ozone and CO nonattainment areas, pursuant to 
49 U.S.C 5303(i)(3). The FHWA and the FTA are clarifying in the final 
rule the role of the MPO in the development of SIP TCMs, to be more 
consistent with the statute. Similar coordination is encouraged in the 
development of SIP TCMs in ozone and CO maintenance areas, as well as 
particulate matter and nitrogen dioxide nonattainment and maintenance 
areas. The FHWA and the FTA had proposed additional language in 
paragraph (d) that specified that the MPO, State air quality agency and 
the EPA must concur on the equivalency of any substitute TCM before an 
existing SIP TCM is replaced under section 176(c)(8) of the Clean Air 
Act (42 U.S.C. 7506(c)(8)). After consultation with the EPA, this 
language was deemed unnecessary for the final planning regulations. The 
EPA has determined that revising the transportation conformity 
regulations is not necessary to implement the TCM substitution 
provision in Section 6011(d) of the SAFETEA-LU. The EPA believes that 
the new Clean Air Act provision contains sufficient detail to allow the 
provision to be implemented without further regulation. The EPA, the 
FHWA, and the FTA issued joint guidance on February 14, 2006, that 
describes how TCM substitutions can occur under the statute.\14\
---------------------------------------------------------------------------

    \14\ This joint guidance entitled, ``Interim Guidance for 
Implementing the Transportation Conformity Provisions in the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users,'' dated February 14, 2006, is available via the Internet 
at the following URL: http://www.fhwa.dot.gov/environment/conformity/sec6011guidmemo.htm.
---------------------------------------------------------------------------

    A small number of State DOTs and a few MPOs and COGs that commented 
on this section said in regards to paragraph (e) that the requirement 
for ``agreement'' is too stringent. The FHWA and the FTA find that a 
``cooperative'' planning process requires agreement among the major 
planning partners on what assumptions to adopt and what data and 
analyses to employ to forecast future travel demand. If a State or 
transit operator conducts a major planning study within the MPO 
planning boundaries, it is critical that the assumptions and data used 
in that planning study be considered valid by other planning partners 
and be consistent with data the MPO will employ to develop its travel 
models or otherwise develop growth projections in population, 
employment, land use, and other key factors that affect future travel 
demand. Both consultation and agreement on those assumptions/data are 
crucial to this process. However, the FHWA and the FTA also understand 
that the proposed text may be considered overly restrictive. We 
eliminated the phrase ``the transportation plan update process shall 
include a mechanism for ensuring that * * * agree * * *'' and replaced 
it with ``the MPO, the State(s), and the public transportation 
operator(s) shall validate * * *'' The FHWA and the FTA believe that 
the requirement ``validate data'' provides more flexibility than 
``including a mechanism.''

[[Page 7245]]

    A number of MPOs and COGs that commented on this section asked for 
clarification in paragraph (f)(3) of the operational and management 
strategies. A small number of State DOTs support the proposed rule. 
Effective regional transportation systems management and operations 
requires deliberate and sustained collaboration and coordination 
between planners and managers of day-to-day operations across 
jurisdictions and between transportation and public safety agencies in 
order to improve the security, safety, and reliability of the 
transportation system. Coordination between transportation planning and 
operations helps ensure that regional transportation investment 
decisions reflect full consideration of all available strategies and 
approaches to meet regional transportation goals and objectives. 
Strengthening the coordination between these two processes and 
activities--planning and operations--can enhance both activities.
    Because transportation systems management and operations is 
emerging as an important aspect of regional transportation planning, it 
is strongly encouraged that a set (or sets) of objectives be set forth 
in the metropolitan transportation plan for operational and management 
strategies that will lead to regional approaches, collaborative 
relationships, and funding arrangements for projects. Examples of 
operational and management strategies may include traffic signal 
coordination, traveler information services, traffic incident 
management, emergency response and homeland security, work zone 
management, freeway/arterial management, electronic payment services, 
road weather management, and congestion management. More specific 
examples on strategies related to congested locations can be found on 
the following Web site: http://ops.fhwa.dot.gov/congestionmitigation/congestionmitigation.htm, and additional information on freight 
bottlenecks is available at the following Web site: http://www.fhwa.dot.gov/policy/otps/bottlenecks/index.htm. The FHWA and the 
FTA intend to prepare guidance on operational and management strategies 
in the long-range statewide transportation plan and metropolitan 
transportation plan, including the development and use of objectives. 
The FHWA and the FTA have provided, and will continue to provide, 
technical information and guidance regarding operational and management 
strategies, if needed. However, we did not make any changes to this 
paragraph.
    To encourage MPOs to address congestion in the metropolitan 
transportation plan, the following sentence was added to paragraph 
(f)(5): ``The metropolitan transportation plan may consider projects 
and strategies that address areas or corridors where current or 
projected congestion threatens the efficient functioning of key 
elements of the metropolitan area's transportation system.''
    Some MPOs and COGs and a small number of State DOTs and the public 
that commented on this section had a variety of comments on paragraph 
(f)(6), ranging from requesting that it be eliminated to questioning 
the need for including existing facilities to the ability to provide 
sufficient detail to develop cost estimates in out years. This text is 
identical to the October 1993 planning rule. The FHWA and the FTA have 
found that providing the information required by this paragraph in the 
metropolitan transportation plan provides valuable information to 
system operators, decision-makers and the general public, while not 
causing undue burden on the MPOs.
    There were a large number and variety of comments on paragraph 
(f)(7). Some MPOs and COGs questioned the value of this paragraph or 
the ability to implement this provision, while a small number of 
national and regional advocacy organizations wrote in support of the 
paragraph. Some MPOs and COGs, national and regional advocacy 
organizations, and State DOTs, as well as a small number of public 
comments had questions or asked for clarification. Some MPOs and COGs, 
along with some State DOTs, suggested a text change to clarify the 
intent of the paragraph. Finally, a small number of comments came from 
national and regional advocacy organizations and Federal agencies 
recommending including an evaluation mechanism.
    The FHWA and the FTA concur with the recommendation to change the 
text, to more closely mirror the intent of the statute (23 U.S.C. 
134(i)(2)(B) and 49 U.S.C. 5303(i)(2)(B)). We also concur that 
discussions of types of potential environment mitigation strategies 
need not be project specific, but should be at the policy or strategic 
level. We have made these changes to be consistent with the intent of 
the statute. A similar change has been made in Sec.  450.214(j). The 
FHWA and the FTA have provided guidance, training, and technical 
assistance in this area and, if necessary, will provide additional 
efforts as needed so MPOs understand both how to address and the value 
of discussing types of potential mitigation activities as part of the 
metropolitan transportation plan. MPOs have the flexibility to develop 
and implement evaluation mechanisms that reflect the needs and 
complexity of the metropolitan area. While statute (23 U.S.C. 134(k)(3) 
and 49 U.S.C. 5303(k)(3)) identifies evaluation in specific areas such 
as congestion, the FHWA and the FTA do not believe there is 
justification to develop a regulatory process that requires a 
systematic evaluation in other areas.
    Also in regards to paragraph (f)(7), a Federal agency recommended 
requiring the consideration of avoidance measures to protect nationally 
significant resources. The FHWA and the FTA agree that consultation 
with appropriate Federal land and resource management agencies is 
essential during the development of metropolitan transportation plans 
to make the most efficient use of resources, since these agencies would 
need to be involved in the discussions of mitigation throughout the 
project development process. We believe that the regulatory language is 
sufficient to encourage such consultation and to foster discussions 
between the MPO and the Federal agencies to identify nationally 
significant resources and to consider actions and strategies to avoid 
and protect them. Therefore, no additional changes have been made to 
this paragraph.
    There were a large number and variety of comments on paragraph 
(f)(10). Most of the State DOTs and many of the MPOs and COGs and 
national and regional advocacy organizations that commented on this 
section were against including operations and maintenance in the 
financial plan. Most of the State DOTs, many of the national and 
regional advocacy organizations, and some of the MPOs and COGs 
commented that the financial plan should not be extended to include 
``the entire transportation system'' but should be limited to projects 
funded by the FHWA and the FTA. On the other hand, a small number of 
national and regional advocacy organizations supported requiring all 
projects be included. Finally, most of the State DOTs, MPOs and COGs, 
and many of the national and regional advocacy organizations suggested 
removing the reference to Appendix B.
    When proposing Appendix B to the rule, the FHWA and the FTA 
intended to raise the level of awareness and importance in developing 
fiscally constrained transportation plans, TIPs, and STIPs to States, 
MPOs, and public transportation operators. Since its introduction under 
the ISTEA, fiscal constraint has remained a prominent

[[Page 7246]]

aspect of transportation plan and program development, carrying through 
to the TEA-21 and now to the SAFETEA-LU. The FHWA and the FTA 
acknowledge that Appendix B contains a combination of guidance, 
amplifying information and additional criteria. Given the level of 
controversy regarding Appendix B, it has been removed from the rule. 
Therefore, the sentence referencing Appendix B in paragraph (f)(10) has 
been deleted.
    The FHWA and the FTA have divided paragraph (f)(10) into 
subparagraphs (i) through (viii) to make each provision easier to 
identify.
    Many commenters questioned the requirement in new paragraph 
(f)(10)(i) that the financial plan must demonstrate the ability to 
adequately operate and maintain the entire transportation system. The 
FHWA and the FTA have revised Sec.  450.322(f)(10) to delete the phrase 
``while operating and maintaining existing facilities and services.'' 
Instead, a new sentence was added to paragraph (f)(10) (now paragraph 
(f)(10)(i)) that reads: ``For purposes of transportation system 
operations and maintenance, the financial plan shall contain system-
level estimates of costs and revenue sources that are reasonably 
expected to be available to adequately operate and maintain Federal-aid 
highways (as defined by 23 U.S.C. 101(a)(5)) and public transportation 
(as defined by title 49 U.S.C. Chapter 53).'' Please see the responses 
to the comments on Appendix B for additional background information and 
explanation.
    A new paragraph (f)(10)(ii) discusses cooperative development of 
estimates of funds. No change was made to this discussion.
    A new paragraph (f)(10)(iii) discusses additional financing 
strategies in the metropolitan transportation plan. No change was made 
to this discussion.
    A new paragraph (f)(10)(iv) discusses the projects and strategies 
to be included in the financial plan. The FHWA and the FTA find that 
certain features of Appendix B merit inclusion in the rule. One of 
these features is the requirement for revenue and cost estimates to use 
an inflation rate(s) to reflect year of expenditure dollars (to the 
extent practicable). We have added a sentence to paragraph (f)(10)(iv) 
that reads: ``Starting December 11, 2007, revenue and cost estimates 
that support the metropolitan transportation plan must use an inflation 
rate(s) to reflect ``year of expenditure dollars,'' based on reasonable 
financial principles and information, developed cooperatively by the 
MPO, State(s), and public transportation operator(s).'' This language 
expresses the desire of the FHWA and the FTA for revenue and cost 
estimates to be reflected in ``year of expenditure dollars.'' We 
recognize that it might take some time for State DOTs and MPOs to 
convert their metropolitan transportation plans, STIPs and TIPs to 
reflect this requirement. Therefore, we will allow a grace period until 
December 11, 2007, during which time State DOTs and MPOs may reflect 
revenue and cost estimates in ``constant dollars.'' After December 11, 
2007, revenues and cost estimates must use ``year of expenditure'' 
dollars. This requirement is consistent with the January 27, 2006, 
document ``Interim FHWA Major Project Guidance.'' \15\ Please see the 
responses to the comments on Appendix B for additional background 
information and explanation.
---------------------------------------------------------------------------

    \15\ This document, ``Interim FHWA Major Project Guidance,'' 
dated January 27, 2006, is available via the internet at the 
following URL: http://www.fhwa.dot.gov/programadmin/mega/012706.cfm.
---------------------------------------------------------------------------

    A new paragraph (f)(10)(v) presents additional information from 
Appendix B. The FHWA and the FTA believe that this optional provision 
will give MPOs maximum flexibility to broadly define a large-scale 
transportation issue or problem to be addressed in the future that does 
not predispose a NEPA decision, while, at the same time, calling for 
the definition of a future funding source(s) that encompasses the 
planning-level ``cost range/cost band.'' Please see the responses to 
the comments on Appendix B for additional background information and 
explanation.
    A new paragraph (f)(10)(vi) addresses nonattainment and maintenance 
areas.
    A new paragraph (f)(10)(vii) reinforces that the financial plan is 
not required to include illustrative projects.
    Many State DOTs, MPOs and COGs as well as some national and 
regional advocacy organizations and a few public transportation 
providers and local government agencies asked for clarification on 
fiscal constraint if the financial situation in the State or 
metropolitan region changes. The FHWA and the FTA have added paragraph 
(f)(10)(viii) to clarify situations where a revenue source is removed 
or substantially reduced after the FHWA and the FTA find a metropolitan 
transportation plan to be fiscally constrained.
    All references to Appendix B have been removed from this section 
because Appendix B is not a part of this rule.
    Some national and regional advocacy organizations and a small 
number of MPOs and COGs and Federal agencies provided comments on 
paragraph (g) regarding changing the ``or'' between paragraphs (g)(1) 
and (g)(2) to ``and''. A small number of the comments, including some 
by a Federal agency, also related to adding specific agencies or 
processes to the text. The FHWA and the FTA acknowledge that the text 
is different from similar text for statewide planning in Sec.  
450.214(i). However, both sections are consistent with statute. (See 
(23 U.S.C. 134(i)(4)(B) and 49 U.S.C. 5303(i)(4)(B)) and (23 U.S.C. 
135(f)(2)(D) and 49 U.S.C. 5304(f)(2)(D)). The FHWA and the FTA also 
note that there is flexibility in the rule language. The ``or'' does 
not prevent an MPO from carrying out (g)(1) and (g)(2). At the same 
time, the term ``as appropriate'' allows an MPO to carry out only 
(g)(1) or (g)(2) in certain circumstances. No changes were made to this 
paragraph to remain consistent with statutory language.
    Most of the MPOs and COGs provided comments on paragraph (h) 
ranging from removing any reference to security to clarifying the MPO 
role in security to text changes. A few State DOTs and public 
transportation providers provided a range of comments as well. The FHWA 
and the FTA acknowledge the potential for concern and confusion in an 
emerging area such as transportation security. We have added the phrase 
``(as appropriate)'' to this paragraph to provide additional 
flexibility in this emerging area and to respect the sensitive nature 
of homeland security issues. We also want to reiterate that placing the 
inclusion of policies that support homeland and personal security in 
the same sentence with safety should in no way detract from the 
recognition that safety and security are separate considerations in the 
planning process. If necessary, the FHWA and the FTA will provide 
subsequent guidance and technical resources on incorporating policies 
supporting homeland and personal security.
    Several commenters noted that the reference in paragraph (k) was 
incorrect. This reference has been changed to accurately refer to 
paragraph (f)(10).
    The FHWA and the FTA note, based on coordination with the EPA, that 
the interim metropolitan transportation plan and TIP referenced in 
paragraph (1) and in Sec.  450.324(m) respectively allows the use of 
interim metropolitan transportation plans and TIPs during a conformity 
lapse so that exempt projects, transportation control measures in 
approved State implementation plans, and previously approved projects 
and/or project phases can be funded when a conformity determination 
lapses. In addition, we have clarified that the ``interagency

[[Page 7247]]

consultation'' referenced in paragraph (1) is ``defined in 40 CFR part 
93.''
    After further review, the FHWA and the FTA have determined it is 
necessary to clarify paragraph (l) regarding eligible projects that may 
proceed without revisiting the requirements of this section. We have 
added ``or consistent with'' to this paragraph to clarify that eligible 
projects (e.g., exempt projects under 40 CFR 93.126) do not need to be 
explicitly listed in the conforming transportation plan and TIP to 
proceed.

Section 450.324 Development and Content of the Transportation 
Improvement Program (TIP)

    The docket included more than 50 documents that contained more than 
125 comments on this section with about one-quarter from State DOTs, 
one-quarter from national and regional advocacy organizations, one-half 
from MPOs and COGs, and the rest from city/county/State agencies and 
transit agencies. A few MPOs and COGs, many State DOTs and a few 
national and regional advocacy organizations said in regards to 
paragraph (a) that MPOs should be allowed to have a TIP of more than 
four years where the additional year(s) are not illustrative.
    The four-year scope is consistent with the time period required by 
the SAFETEA-LU. MPOs may show projects as illustrative after the first 
four years as well as in the metropolitan transportation plan. While 
MPOs are not prohibited from developing TIPs covering a longer time 
period, the FHWA and the FTA can only recognize and take subsequent 
action on projects included in the first four years of the TIP. 
Therefore, no change was made to this paragraph of the rule in response 
to these comments. However, paragraph (a) was modified to be consistent 
with clarifications to the definitions of ``revision'' and 
``amendment.''
    When proposing Appendix B to the rule, the FHWA and the FTA 
intended to raise the level of awareness and importance in developing 
fiscally constrained transportation plans, TIPs, and STIPs to States, 
MPOs, and public transportation operators. Since its introduction under 
the ISTEA, fiscal constraint has remained a prominent aspect of 
transportation plan and program development, carrying through to the 
TEA-21 and now to the SAFETEA-LU. The FHWA and the FTA acknowledge that 
Appendix B contains a combination of guidance, amplifying information 
and additional criteria. Given the level of controversy regarding 
Appendix B, it has been removed from the rule. Therefore, the sentence 
referencing Appendix B in paragraph (i) has been deleted.
    We have changed paragraph (c) to allow the inclusion of the 
exempted projects, but not requiring that they be included. We removed 
the phrase ``federally supported'' from the beginning of this paragraph 
because it is redundant. The paragraph already requires projects to be 
included if they are funded under title 23 U.S.C., and title 49 U.S.C. 
Chapter 53. Further, we have added ``Safety projects funded under 23 
U.S.C. 402'' to paragraph (c)(1). This change is consistent with the 
October 1993 planning rule.
    Many State DOTs and several national and regional advocacy 
organizations commented in regard to paragraph (d) (now paragraph (e)), 
that they should not have to demonstrate financial constraint for 
projects included in the TIP funded with non-FHWA and non-FTA funds. 
However, the proposed requirement is consistent with and carries 
forward the requirement that was implemented with the October 1993 
planning rule. In addition, for informational purposes and air quality 
analysis in nonattainment and maintenance areas, regionally significant 
non-Federal projects shall be included in the TIP. Therefore, the FHWA 
and the FTA have retained this portion of paragraph (d). We have, 
however, simplified the paragraph slightly to combine the last two 
sentences.
    A few comments were received from national and regional advocacy 
organizations and MPOs stating that paragraph (e)(1) would be enhanced 
by adding language that the information included in the TIP for each 
project needs to be understandable by the general public. This 
requirement remains unchanged from the October 1993 planning rule. 
Since that time, we have noted little public confusion over the 
information included in TIPs identifying projects or phases. We believe 
the MPO participation plan process offers opportunities for the public 
to clarify confusion in specific cases. No change was made to the rule.
    Most State DOTs, MPOs and COGs and national and regional advocacy 
organizations that commented on this section, recommended in regards to 
paragraph (e), that after the first year of the TIP, only ``likely'' or 
``possible'' (rather than ``proposed'') categories of funds should be 
identified by source and year. The FHWA and the FTA agree with this 
suggestion, with the exception of projects in nonattainment and 
maintenance areas for which funding in the first two years must be 
available or committed. Paragraph (e)(3) has been changed to 
specifically reference the amount of ``Federal funds'' proposed to be 
obligated and to identify separate standards for the first year and for 
the subsequent years of the TIP.
    Most of the comments on paragraph (h) pertained to the question 
posed in the preamble of the NPRM regarding whether the FHWA and the 
FTA should require MPOs submitting TIP amendments to demonstrate that 
funds are ``available or committed'' for projects identified in the TIP 
in the year the TIP amendment is submitted and the following year. 
Almost all opposed this suggestion believing that it would require 
reviewing the financial assumptions for the entire program, thereby 
causing an undue burden. Commenters suggested showing financial 
constraint only for the incremental change. The FHWA and the FTA are 
concerned for the potential impact of individual amendments on the 
funding commitments and schedules for the other projects in the TIP. 
For this reason, the financial constraint determination occasioned by 
the TIP amendment will necessitate review of all projects and revenue 
sources in the TIP. The FHWA and the FTA will address any concerns on 
this issue through subsequent guidance. Further, the FHWA and the FTA 
are concerned that amendments that do not include available and 
committed funds for the year of the amendment and the following year 
will reduce the credibility with decision-makers and the public that 
projects will be able to move forward in a timely manner. Given the 
comments on this issue, we have not made a change to the rule. The FHWA 
and the FTA will address any concerns on this issue through subsequent 
guidance.
    As discussed in the response to the comments on Appendix B, we have 
added to paragraph (h), ``for purposes of transportation operations and 
maintenance, the financial plan shall contain system-level estimates of 
costs and revenue sources that are reasonably expected to be available 
to adequately operate and maintain Federal-aid highways (as defined by 
23 U.S.C. 101(a)(5)) and public transportation (as defined by title 49 
U.S.C. Chapter 53).'' In addition, to reinforce that the financial plan 
is not required to include illustrative projects, we have added the 
phrase ``but is not required to'' to this discussion. We have added one 
additional feature from Appendix B: ``year of expenditure dollars.'' We 
have added the following sentence to paragraph (h): Starting December 
11, 2007, revenue and cost estimates for the TIP must use an inflation 
rate(s) to

[[Page 7248]]

reflect ``year of expenditure dollars,'' based on reasonable financial 
principles and information, developed cooperatively by the MPO, 
State(s), and public transportation operator(s). This language 
expresses the desire of the FHWA and the FTA for revenue and cost 
estimates to be reflected in ``year of expenditure dollars.'' We 
recognize that it might take some time for State DOTs and MPOs to 
convert their metropolitan transportation plans, STIPs and TIPs to 
reflect this requirement. Therefore, we will allow a grace period until 
December 11, 2007, during which time State DOTs and MPOs may reflect 
revenue and cost estimates in ``constant dollars.'' After December 11, 
2007, revenues and cost estimates must use ``year of expenditure'' 
dollars. This requirement is consistent with the January 27, 2006, 
document ``Interim FHWA Major Project Guidance.''\16\ The reference to 
Appendix B has been deleted since Appendix B is not included with this 
rule. Please see the responses to the comments on Appendix B for 
additional background information and explanation.
---------------------------------------------------------------------------

    \16\ This document, ``Interim FHWA Major Project Guidance,'' 
date January 27, 2006, is available via the internet at the 
following URL: http://www.fhwa.dot.gov/programadmin/mega/012706.cfm.
---------------------------------------------------------------------------

    Many State DOTs, national and regional advocacy organizations and a 
few MPOs and COGs questioned having to demonstrate their ability to 
adequately operate and maintain the entire transportation system. They 
were concerned that State DOTs, MPOs, and public transportation 
operators should not be responsible for demonstrating available funds 
for projects outside of federally supported facilities. The FHWA and 
the FTA have revised paragraph (i) to change the phrase ``while the 
entire transportation system is being adequately operated and 
maintained'' to ``while federally supported facilities are being 
adequately operated and maintained.'' We have also removed the 
reference to ``by source'' and the reference to additional information 
in Appendix B, since Appendix B has been removed from this rule. Please 
see the responses to the comments on Appendix B to the NPRM for 
additional background information and explanation.
    A few comments were received opposing the requirement in paragraph 
(j)(1) (now paragraph (l)(1)) for the TIP to identify the criteria and 
process for prioritizing implementation of transportation plan elements 
for inclusion in the TIP. The FHWA and the FTA find that if it is 
difficult for the MPO to identify or capture the criteria it used to 
select projects, it will be even more difficult for the general public 
to understand the rationale behind selecting one element from the 
transportation plan over another. Therefore, we retained the language 
in paragraph (l)(1). However, in reviewing this comment, we identified 
two paragraphs from the October 1993 planning rule (23 CFR 450.324(l) 
and (m)) that were not included in the NPRM, related to this issue. To 
clarify and emphasize that MPOs should identify criteria and a process 
for prioritizing transportation plan elements for inclusion in the TIP, 
we have added these two paragraphs to the rule as new paragraphs (j) 
and (k), respectively. These paragraphs identify the need for 
allocation of funds based on prioritization and explicitly prohibit 
suballocation based on pre-determined percentages of formulas.
    The FHWA and the FTA note, based on coordination with the EPA, that 
the interim metropolitan transportation plan and TIP referenced in 
Sec.  450.322(1) and in paragraph (k) (now paragraph (m)) of this 
section respectively allows the use of interim plans and TIPs during a 
conformity lapse so that exempt projects, transportation control 
measures in approved State implementation plans, and previously 
approved projects and/or project phases can be funded when a conformity 
determination lapses. We have added ``conformity'' to the first 
sentence to specify the ``lapse'' referenced and removed the phrase 
``(as defined in 40 CFR part 93)'' because it is no longer necessary.
    After further review, the FHWA and the FTA have determined it is 
necessary to clarify paragraph (k) (now paragraph (m)) regarding 
eligible projects that may proceed without revisiting the requirements 
of this section. We have added the phrase ``or consistent with'' to 
this paragraph to clarify that eligible projects (e.g., exempt projects 
under 40 CFR 93.126) do not need to be explicitly listed in the 
conforming transportation plan and TIP to proceed.
    Many State DOTs, MPOs and COGs as well as some national and 
regional advocacy organizations and a few public transportation 
providers and local government agencies asked for clarification on 
fiscal constraint if the financial situation in the State or 
metropolitan region changes. The FHWA and the FTA have added a new 
paragraph (o) to clarify situations where a revenue source is removed 
or substantially reduced after the FHWA and the FTA find a STIP to be 
fiscally constrained.
    Several comments asked for clarification between the phrases 
``operation and maintenance'' and ``operation and management.'' See the 
discussion of Sec.  450.104 (Definitions) for an explanation of these 
terms.
    The FHWA and the FTA received a proposal identifying additional 
procedures for engaging private transportation operators in planning 
and program delivery. We recognize the importance of private operator 
participation and, if necessary, will provide technical assistance to 
MPOs to promote effective practice, but do not believe any changes to 
the rule are necessary.

Section 450.326 TIP Revisions and Relationship to the STIP

    The docket included 21 documents that contained more than 25 
comments on this section with about one-third from State DOTs, half 
from MPOs and COGs, and the rest from city/county/State agencies, as 
well as national and regional advocacy organizations.
    One county, many of the MPOs and COGs and State DOTs, and most of 
the national and regional advocacy organizations submitted opposition 
to the statement in paragraph (a) that public participation procedures 
consistent with Sec.  450.316(a) shall be utilized in revising the TIP, 
except that these procedures are not required for administrative 
modifications that only involve projects of the type covered in Sec.  
450.324(f). Because the rule does not require an MPO to undertake any 
particular public involvement process for an administrative 
modification, an MPO may delineate its own public involvement process 
for administrative modifications within the public participation plan. 
In order to clarify these issues, the FHWA and the FTA have removed the 
phrase ``projects of the type covered in Sec.  450.324(f)'' from 
paragraph (a).
    Many of the MPOs and COGs and most of the State DOTs opposed the 
statement in paragraph (a) that ``in all areas, changes that affect 
fiscal constraint must take place by amendment of the TIP.'' The FHWA 
and the FTA realize that there are minor funding changes to projects 
that a region could determine would fall under the definition of 
``administrative modifications,'' and these would not need to go 
through the full TIP amendment process. However, the FHWA and the FTA 
include this requirement because any change which requires an amendment 
has ripple effects throughout the program and thus should be subjected 
to the full disclosure of a TIP amendment.

[[Page 7249]]

Therefore, no change has been made to the paragraph in response to this 
comment.
    Half of the MPOs and COGs and half of the national and regional 
advocacy organizations oppose the language in paragraph (a) that 
states: ``In nonattainment or maintenance areas for transportation-
related pollutants, if the TIP is amended by adding or deleting non-
exempt projects (per 40 CFR part 93), or is replaced with an updated 
TIP, the MPO, and the FHWA and the FTA must make a new conformity 
determination.'' The sentence has been revised to clarify that the 
transportation conformity rule (40 CFR 93.104(c)(2)) requires a 
transportation conformity determination be made if a TIP amendment 
involves non-exempt projects. If a non-exempt project has already been 
incorporated into a regional emissions analysis and is merely moving 
from the currently conforming metropolitan transportation plan to the 
TIP (and is not crossing an analysis year) we agree that the conformity 
determination on the TIP can be based on a previous regional emissions 
analysis if the requirements of 40 CFR 93.122(g) are met. No additional 
changes were made to this paragraph.

Section 450.328 TIP Action by the FHWA and the FTA

    The docket included approximately 20 documents that contained more 
than 20 comments on this section with about three-fifths from State 
DOTs, one-fourth from national and regional advocacy organizations, and 
the rest from city/county/State agencies and MPOs and COGs.
    An MPO expressed concern that paragraph (a) was too vague and open-
ended. In addition, several commenters expressed concern regarding the 
need for approval of the TIP when submitted to the FHWA and the FTA. 
The FHWA and the FTA do not approve the TIP. The language in this 
paragraph is consistent with the language in the October 1993 planning 
rule. Over nearly 13 years, we have not found significant confusion 
regarding this language. However, we did remove ``including amendments 
thereto'' from this paragraph since we the FHWA and the FTA do not make 
findings on amendments.
    After consultation with the EPA, we have revised paragraph (c) to 
be consistent with Clean Air Act requirements and clarify that projects 
may only be advanced once the plan expires if the TIP was approved and 
found to conform prior to the expiration of the metropolitan 
transportation plan and if the TIP meets the TIP update requirements of 
Sec.  450.324(a).
    Many comments were received questioning why the existing 
flexibility to allow highway operating funds to be approved even if not 
in the TIP was eliminated from paragraph (f) and in Sec.  450.218 (Self 
certification, Federal findings and Federal approvals). This was an 
erroneous omission in the NPRM and the language has been changed to 
correct this error.

Section 450.330 Project Selection From the TIP

    The docket included 33 documents that contained more than 35 
comments on this section with about one-third from State DOTs, one-
eighth from national and regional advocacy organizations, half from 
MPOs and COGs, and the rest from city/county/State agencies and transit 
operators.
    Most of the comments pertained to the two questions posed in the 
preamble to the NPRM: (1) Whether MPOs should be required to prepare an 
``agreed to'' list of projects at the beginning of each of the four 
years in the TIP, rather than only the first year; and (2) whether a 
TIP amendment should be required to move a project between years in the 
TIP, if an ``agreed to'' list is required for each year. The 
predominant opinion was that requiring a State DOT or MPO to submit an 
agreed to list at the beginning of each of the four years of the TIP/
STIP or requiring an amendment to move projects between years in the 
TIP/STIP unnecessarily limits flexibility, and thus should not be a 
requirement. The FHWA and the FTA agree with the majority of the 
comments. Therefore, no change was made to the rule language.
    A few MPOs requested guidance on why a distinction is made between 
projects that are selected by the State in cooperation with the MPO and 
those that are selected by the MPO in consultation with the State and 
public transportation operators. This language is consistent with the 
October 1993 planning rule and is based on language in the statute (23 
U.S.C. 135(b) and 49 U.S.C. 5304(b) and 23 U.S.C. 134(c) and 49 U.S.C. 
5303(c), respectively). Therefore, no change was made to the rule 
language.
    A few MPOs noted that paragraph (b) uses ``consultation'' to 
describe the MPO/TMA's action with the State and transit agency, 
whereas, ``cooperation'' is used to describe the State's action with 
the MPO. This language is consistent with the October 1993 planning 
rule and is based on language in the statute ((23 U.S.C. 135(b) and 49 
U.S.C. 5304(b) and 23 U.S.C. 134(c) and 49 U.S.C. 5303(c), 
respectively). Therefore, no change was made to the rule language.

Section 450.332 Annual Listing of Obligated Projects

    The docket included more than 20 documents that contained about 40 
comments on this section with about one-eighth from State DOTs, one-
fifth from national and regional advocacy organizations, half from MPOs 
and COGs, and the rest from city/county/State agencies and transit 
operators.
    Half of the comments on this section pertained to the language that 
requires the annual listing needs to be published no later than 90 
calendar days following the end of the State program year. All of the 
responses suggested that using the end of the Federal fiscal year would 
make more sense. The FHWA and the FTA appreciate the suggestion. We 
have changed the language to not specify ``State program year'' or 
``Federal fiscal year.'' Instead, the MPO, State, public transportation 
operator(s) shall determine the ``program year.'' The annual listing of 
obligated projects shall be developed no later than 90 calendar days 
following the end of the program year.
    Critical information needed for this report is available in FHWA's 
Fiscal Management Information System (FMIS) \17\ and FTA's 
Transportation Electronic Award and Management (TEAM) \18\ System 
databases. Many of the MPOs and many of the national and regional 
advocacy organizations requested that they be provided access to these 
databases, or provided timely reports of the data from the FHWA and the 
FTA. The FHWA and the FTA will work closely with the States, public 
transportation operators and the MPOs

[[Page 7250]]

to ensure all of the critical data is available to successfully meet 
this reporting requirement. However, the FHWA and the FTA do not 
believe that the rule needs to be changed to address this comment.
---------------------------------------------------------------------------

    \17\ The FHWA administers a nationwide highway project reporting 
system, the Fiscal Management Information System (FMIS), that is 
used to provide oversight of over $30 billion in disbursements to 
States for Federal-aid highway projects. FMIS prescribes project 
reporting policy and procedures and maintains the official project 
obligation records and statistical data for the various highway 
programs, including the planning and administration of a nationwide 
highway project reporting system on the progressive stages of 
individual highway projects. The system provides information to the 
FHWA and U.S. DOT management, State transportation officials, other 
Federal agencies, and the Congress.
    \18\ In an effort to help manage funds that support some of the 
FTA collaborative activities, the FTA has developed the 
Transportation Electronic Award and Management (TEAM) system. TEAM 
is a system designed to manage and track the grant process. FTA 
staff use TEAM to assess grant availability, assess and approve 
projects, assign project numbers, allocate and approve funding, and 
view approved grantee projects and associate reports. FTA staff 
members also use TEAM to track the processes associated with these 
activities. In addition, grantees and potential grantees use TEAM to 
request grants and track grant progress.
---------------------------------------------------------------------------

    Some MPOs and several State DOTs expressed support for including 
bicycle and pedestrian projects in the annual listing. However, many 
commenters did not want to include a listing of all bicycle and 
pedestrian ``investments'' in the report because many bicycle and 
pedestrian investments are included within larger transit or highway 
projects. No changes were made to the rule because the language 
reflects what is included in the statute (23 U.S.C. 134(j)(7)(B) and 49 
U.S.C. 5303(j)(7)(B)) The FHWA and the FTA expect the projects included 
in the Annual Listing of Obligated Projects to be consistent with the 
projects that are listed in the TIP. It was suggested that the annual 
listing of obligated projects contain only fund obligations and not 
provide information duplicative of that published in the TIP. Because 
the annual listing of obligated projects is intended to improve the 
transparency of transportation spending decisions to the public, and 
because providing TIP information enhances the user-friendliness of the 
document, the FHWA and FTA have decided not to change the content 
requirements. On February 24, 2006, the FHWA and the FTA jointly issued 
preliminary guidance on the annual list of obligated projects.\19\
---------------------------------------------------------------------------

    \19\ This document, ``Preliminary SAFETEA-LU Guidance--Annual 
List of Obligated Projects, dated February 24, 2006, is available 
via the internet at the following URL: http://www.fhwa.dot.gov/hep/annuallistemail.htm.
---------------------------------------------------------------------------

Section 450.334 Self-Certifications and Federal Certifications

    The docket included about 10 documents that contained about 10 
comments on this section with about one-half from national and regional 
advocacy organizations, one-half from MPOs and COGs, and the rest from 
city/county governments.
    Several comments pertained to the four-year cycle for Federal 
certification reviews of TMAs compared to the annual self-certification 
required by all MPOs and State DOTs. There was some concern that the 
annual self-certifications should not be required if the FHWA and the 
FTA have just performed their Federal certification review. The 
regulations require the State and all MPOs to certify annually that 
they are carrying out the transportation planning process to ensure 
that the State and MPOs understand their transportation 
responsibilities and to ensure that their responsibilities are actually 
being met. This self-certification must affirm that the transportation 
planning process is conducted in accordance with all applicable 
requirements.
    The MPO self-certifications and the FHWA/FTA Federal certification 
reviews of TMAs are related, yet distinct requirements. The Federal 
certification of TMAs is a statutory requirement, while MPO self-
certifications are a regulatory requirement that apply to all MPOs and 
State DOTs. Both the FHWA/FTA (for the Federal certification) and the 
MPO (for the self-certification) must meet their individual 
requirements. While both may occur in the same year, the FHWA and the 
FTA note that some of the information pulled together by the MPO(s), 
State(s), and public transportation operator(s) in advance of the TMA 
certification review could be ``re-used'' in making the self-
certification. Therefore, no change has been made to the rule.
    One commenter requested that the FHWA and the FTA include a 
specific standard for compliance with private enterprise provisions, 
which now are excluded from consideration in TMA certification, and 
improve a private provider's ability to operate in metropolitan areas. 
Several commenters requested the inclusion of detailed methodologies 
for engaging private service providers in the transportation planning 
process, as well as standards for ascertaining compliance with private 
enterprise provisions and a complaint process.
    To ensure maximum flexibility for localities to tailor private 
sector involvement procedures to the service providers and needs of 
their areas, we have determined that this information should be 
disseminated as non-regulatory guidance, complemented by a wide array 
of effective practice case studies and supported by training and 
technical assistance.
    The FHWA and the FTA have updated the list of applicable 
requirements in paragraph (a). Reference to ``23 CFR parts 200 and 
300'' has been removed from paragraph (a)(3). Instead, a more specific 
reference to ``23 CFR part 230, regarding implementation of an equal 
employment opportunity program on Federal and Federal-aid highway 
construction contracts'' was added as paragraph (a)(6). This is the 
specific portion of 23 CFR parts 200 and 300 that needs to be reviewed 
and is not related to Title VI of the Civil Rights Act of 1964 in 
paragraph (a)(3). In addition, we have added a new paragraph (a)(4): 
``49 U.S.C. 5332, prohibiting discrimination on the basis of race, 
color, creed, national origin, sex, or age in employment or business 
opportunity.'' Upon further review of this section, the FHWA and the 
FTA determined that 49 U.S.C. 5332 should be included in this list of 
requirements.
    A small number of national and regional advocacy organizations 
expressed concern that the rule does not provide enough detail on the 
standards that the FHWA, the FTA, State DOTs and MPOs should apply in 
certification reviews. We believe that the entire context of the rule 
and of the statute sufficiently identify the criteria to be used in 
certifying that the transportation planning process meets or 
substantially meets these requirements. We do not believe additional 
detail is required in the rule. However, the FHWA and the FTA will 
provide non-regulatory guidance, training and technical assistance, if 
necessary.

Section 450.336 Applicability of NEPA to Metropolitan Transportation 
Plans and Programs

    The docket included very few comments on this section. One concern 
expressed that this section or Appendix A would make planning 
reviewable under NEPA. The purpose of this section, however, is to 
reiterate the statutory authority that the metropolitan transportation 
planning process decisions are not subject to review under NEPA. We 
have changed this section to mirror the language in 23 U.S.C. 134(p) 
and 49 U.S.C. 5303(p).

Section 450.338 Phase-In of New Requirements

    The docket included about 40 documents that contained about 110 
comments on this section with about one-third from State DOTs, one-
fifth from national and regional advocacy organizations, half from MPOs 
and COGs, and the rest from city/county/State agencies.
    All comments received indicated that it will be difficult to meet 
the SAFETEA-LU July 1, 2007, deadline. Subsequent to the preparation of 
the proposed rule, but prior to its publication, the FHWA and the FTA 
disseminated additional guidance regarding the phase-in requirements on 
May 2, 2006.\20\ Many of the comments to the docket addressed issues 
that were clarified in our May 2, 2006, guidance. The provisions of the 
guidance have been incorporated in the regulation. Specifically, we 
have clarified that

[[Page 7251]]

transportation plans and TIPs adopted and approved prior to July 1, 
2007, may be developed under TEA-21 requirements of the provisions and 
requirements of this part.
---------------------------------------------------------------------------

    \20\ This guidance, ``SAFETEA-LU Deadline for New Planning 
Requirements (July 1, 2007),'' dated May 2, 2006, is available via 
the internet at the following URL: http://www.fhwa.dot.gov/hep/plandeadline.htm.
---------------------------------------------------------------------------

    We have also clarified, in paragraph (a), what actions may be taken 
prior to July 1, 2007, on long-range statewide transportation plans and 
STIPs.
    One MPO, half of the national and regional advocacy organizations, 
and a quarter of the State DOTs commented that the regulations should 
clearly state that partial STIP approvals are allowable if one MPO or 
region is not SAFETEA-LU compliant, the other regions could produce a 
partial STIP that is compliant. Because the regulation allows for 
approval of partial STIPs (see Sec.  450.218(b)(1)(iii)), no change was 
made to the regulation. Approval of partial STIPs are acceptable, 
primarily when difficulties are encountered in cooperatively developing 
the STIP portion for a particular metropolitan area or for a Federal 
Lands agency. If an MPO is able to produce a TIP that is SAFETEA-LU 
compliant, the Federal action would be to amend that TIP into the STIP, 
making the portion of the STIP that covers that region SAFETEA-LU 
compliant.
    Most of the national and regional advocacy organizations and 
several State DOTs commented that the deadline for transportation plan, 
STIP and TIP action should apply to State/MPO approval action rather 
than the FHWA/FTA conformity finding. The FHWA and the FTA issued 
guidance ``Clarification of Plan Requirements in Nonattainment and 
Maintenance Areas'' on this issue on May 25, 2001.\21\ The language in 
the rule is consistent with the conformity rule and current practice. 
Therefore, no change was made.
---------------------------------------------------------------------------

    \21\ This document, ``Clarification of Plan Requirements in 
Nonattainment and Maintenance Areas,'' dated May 25, 2004, is 
available via the internet at the following URL: http://www.fhwa.dot.gov/environment/conformity/planup_m.htm.
---------------------------------------------------------------------------

    Most of the commenters stated that 23 U.S.C. 135(b) requires only 
``updates'' to reflect changes required by the SAFETEA-LU, not 
``amendments.'' The comments noted that requiring a STIP re-adoption 
for minor amendments would be a substantial burden and is a stricter 
interpretation of the statute than Congress intended. Prior to the 
adoption of this rule, there has not been an accepted definition of or 
distinction between the terms ``update'' or ``amendment.'' As 
established in this rule, the FHWA and the FTA consider an amendment to 
the STIP to be a major change to the transportation plan or program. 
The FHWA and the FTA believe that any major change to the 
transportation plan or program, whether called an ``amendment'' or an 
``update'' under this regulation, is considered for this purpose an 
``update'' as referenced in 23 U.S.C. 135(b). However, an 
``administrative modification'' would not be covered by this 
requirement. This rule will clarify the definition of these terms for 
the future.
    One national and regional advocacy organization stated that 
Congress specified that the SAFETEA-LU phase-in period should begin on 
July 1, 2007, not be completed by that date. The FHWA and the FTA 
believe that this is an incorrect interpretation of the statute. The 
FHWA and the FTA agree that administrative modifications can be made to 
TIPs after July 1, 2007, but amendments or revisions that would add or 
delete a major new project to a TIP, STIP, or transportation plan would 
not be acceptable after July 1, 2007 in the absence of meeting the 
provisions and requirements of this part. This information has been 
included in paragraph (d). In addition, we have clarified in paragraph 
(d) that, on or after July 1, 2007, both amendments and updates must be 
based on the provisions and requirements of this part.

Appendix A--Linking the Transportation Planning and NEPA Processes

    As mentioned, the FHWA and the FTA received more than 60 comments 
on this section with about one-third from MPOs and COGs and one-third 
from State DOTs. National and regional advocacy organizations, transit 
agencies and others provided the remaining third of the comments on 
this section. In general, most of the comments received supported the 
concept of linking planning and NEPA but opposed including Appendix A 
in the rule.
    The purpose of an Appendix to a regulation is to improve the 
quality or use of a rule, without imposing new requirements or 
restrictions. Appendices provide supplemental, background or 
explanatory information that illustrates or amplifies a rule. Because 
Appendix A provides amplifying information about how State DOTs, MPOs, 
and public transportation operators can choose to conduct planning 
level choices and analyses so they may be adopted or incorporated into 
the process required by NEPA, but does not impose new requirements, the 
FHWA and the FTA find that Appendix A is useful information to be 
included in support of Sec. Sec.  450.212 (Transportation planning 
studies and project development), 450.222 (Applicability of NEPA to 
statewide transportation plans and programs), 450.318 (Transportation 
planning studies and project development) and 450.336 (Applicability of 
NEPA to metropolitan transportation plans and programs).
    The FHWA and the FTA recognize commenters' concerns about Appendix 
A, including the recommendation that this information be kept as 
guidance rather than be made a part of the rule. First, information in 
an Appendix to a regulation does not carry regulatory authority in 
itself, but rather serves as guidance to further explain the 
regulation. Secondly, as stated above, Section 1308 of TEA-21 required 
the Secretary to eliminate the MIS as a separate requirement, and 
promulgate regulations to integrate such requirement, as appropriate, 
as part of the transportation planning process. Appendix A fulfills 
that Congressional direction by providing explanatory information 
regarding how the MIS requirement can be integrated into the 
transportation planning process. Inclusion of this explanatory 
information as an Appendix to the regulation will make the information 
more readily available to users of the regulation, and will provide 
notice to all interested persons of the agencies' official guidance on 
MIS integration with the planning process. Attachment of Appendix A to 
this rule will provide convenient reference for State DOTs, MPOs and 
public transportation operator(s) who choose to incorporate planning 
results and decisions in the NEPA process. It will also make the 
information readily available to the public. Additionally, the FHWA and 
the FTA will work with Federal environmental, regulatory, and resource 
agencies to incorporate the principles of Appendix A in their day-to-
day NEPA policies and procedures related to their involvement in 
highway and transit projects. For the reasons stated above, after 
careful consideration of all comments, the FHWA and the FTA have 
decided to attach Appendix A to the final rule as proposed in the NPRM.
    Based on the comments, the FHWA and the FTA thoroughly reviewed 
Appendix A and have made several changes discussed below.
    A note was added to the beginning of the discussion to emphasize 
that the Appendix provides additional information, is non-binding and 
should not be construed as a rule of general applicability.
    For clarification, we made small changes to some of the 
subheadings. Section I ``Procedural'' was changed to ``Procedural 
Issues'' and Section II

[[Page 7252]]

``Substantive'' was changed to ``Substantive Issues.''
    We expanded the agencies listed in the response to Question 1. The 
response now references ``MPO, State DOT, or public transportation 
operator.''
    No changes were made to Question 2.
    In the second paragraph of the response to Question 3, we clarified 
the term ``lead agency.'' The sentence now reads ``For example, the 
term `lead agency' collectively means the U.S. Department of 
Transportation and a State or local governmental entity serving as a 
joint lead agency for the NEPA process.''
    In the response to Question 4, we clarified that the lead agencies, 
rather than the FHWA and the FTA, are responsible for making decisions. 
Also, in the first sentence, we emphasize that the lead agencies 
``jointly decide, and must agree * * *''
    No changes were made to Question 5.
    In the response to Question 6, a small change to add the phrase 
``those of'' was made to the examples listed in the first paragraph.
    We changed the order of the phrases in the second bullet of the 
response to Question 7 to emphasize that the transportation planning 
process (and the future policy year assumptions used) would occur 
before the NEPA process. We also added ``and the public'' to the eighth 
bullet. The public and other agencies should have access to the 
planning products during NEPA scoping.
    In Question 8, we added ``during NEPA scoping and'' to the sentence 
``The use of these planning-level goals and choices must be 
appropriately explained during NEPA scoping and in the NEPA document'' 
to clarify that agencies must identify during the NEPA scoping process 
their intent to use planning-level decisions.
    We clarified in Question 9 what happens during the first-tier EIS 
process. The second-tier NEPA review(s) would be performed in the usual 
way. We also added ``planning'' to ``subarea planning study'' to 
emphasize that information in this Appendix refers to planning level 
studies. Finally, we clarified that we are referencing the 
``mandatory'' Alternatives Analysis process for transit projects.
    We have deleted the second paragraph in the response to Question 
10. This paragraph suggested even more detailed decisions could be 
developed and considered during the planning process. Based on the 
comments we received, we want the Appendix to focus on planning-level 
decisions.
    In the response to Question 11, we simplified the language in the 
first paragraph.
    In the response to Question 12, the reference to ``affected 
agencies'' was changed to ``participating agencies'' to be specific 
regarding which agencies should have access to the analyses or studies.
    In the response to Question 13, ``special area management plans'' 
was added to paragraph (f). In addition, ``or current'' was added to 
the phrase ``the assessment of affected environment and environmental 
consequences conducted during the transportation planning process will 
not be detailed or current enough to meet NEPA standards'' to emphasize 
that these assessments may need to be revisited during NEPA if time has 
passed between the time when the planning study was completed and the 
NEPA study.
    No change was made to Question 14.
    In Question 15, we added ``mitigation'' before ``banking'' to be 
more specific.
    No change was made to Question 16.
    No change was made to Question 17.
    In the response to Question 18, we added ``and its successor in 
SAFETEA-LU Section 6002'' to update the discussion in the first 
paragraph.
    No change was made to Question 19.
    We updated the Website addresses in the ``Additional Information on 
this Topic'' section.
    A small number of national and regional advocacy organizations 
objected to Appendix A because it does not require consideration of 
mitigation to the level, extent and detail required for NEPA. This 
comment seems to reflect a misunderstanding of the intent of Appendix 
A. Although Appendix A is designed to provide clarifying information on 
how the transportation planning process could produce products that can 
be more readily used in the NEPA process, transportation planning 
process studies do not require the specificity or analysis required by 
NEPA. In all likelihood, the studies produced as part of the 
transportation planning process will only be foundational to subsequent 
NEPA studies and will need to be supplemented with additional analysis 
and detail before fully meeting the rigorous requirements of NEPA.

Appendix B--Fiscal Constraint of Transportation Plans and Programs

    The purpose of an Appendix to a regulation is to improve the 
quality or use of a rule, without imposing new requirements or 
restrictions. As was stated, appendices provide supplemental, 
background or explanatory information that illustrates or amplifies a 
rule. The FHWA and the FTA received a significant number of comments on 
Appendix B. State DOTs, MPOs and COGs, national and regional advocacy 
organizations, transit agencies and others expressed concern about 
imposing new requirements in the Appendix.
    The docket included about 80 documents that contained about 170 
comments on Appendix B. Most of the comments came from State DOTs and 
from MPOs and COGs in about equal numbers. Many national and regional 
advocacy organizations also provided comments on this section. A few 
public transportation providers and local government agencies provided 
the remainder of the comments.
    Many of the State DOTs, almost all of the MPOs and COGs, many of 
the national and regional advocacy organizations, and a few of the 
public transportation providers that commented on this section objected 
to the Appendix being included in regulation, were generally supportive 
of the guidance information but many had comments on individual 
elements of the text as described below. Many of the State DOTs and a 
few of the national and regional advocacy organizations objected 
strongly to the text on fiscal constraint being included in regulation 
or as guidance though some would accept guidance with significant 
revisions.
    When proposing Appendix B to the rule, the FHWA and the FTA 
intended to raise the level of awareness and importance in developing 
fiscally constrained transportation plans, TIPs, and STIPs to States, 
MPOs, and public transportation operators. Since its introduction under 
the ISTEA, fiscal constraint has remained a prominent aspect of 
transportation plan and program development, carrying through to the 
TEA-21 and now to the SAFETEA-LU. The FHWA and the FTA acknowledge that 
Appendix B contains a combination of guidance, amplifying information, 
and additional criteria. Given the level of controversy regarding this 
Appendix, it has been removed from the rule.
    Instead, the FHWA and the FTA will be developing and issuing 
revised guidance on fiscal constraint and financial planning for 
transportation plans and programs soon after this rule is published.
    The FHWA and the FTA find that three key features of Appendix B 
merit inclusion in the rule, as noted in the section-by-section 
discussions for Sec.  450.216 (Development and content of the statewide 
transportation

[[Page 7253]]

improvement program (STIP), Sec.  450.322 (Development and content of 
the metropolitan transportation plan), and Sec.  450.324 (Development 
and content of the transportation improvement program). These key 
features are: (1) Treatment of highway and transit operations and 
maintenance costs and revenues; (2) use of ``year of expenditure 
dollars'' in developing cost and revenue estimates; and (3) use of 
``cost ranges/cost bands'' in the outer years of the metropolitan 
transportation plan.
    Regarding the treatment of highway and transit operations and 
maintenance costs and revenues, the FHWA and the FTA realize that the 
1993 planning rule and the NPRM interchangeably referred to the 
transportation system as either ``existing,'' ``total,'' or ``entire.''
    Several State DOTs, MPOs and COGs, national and regional advocacy 
organizations, and others expressed concern and confusion over these 
terms. Many commenters called into question the statutory authority for 
the FHWA and the FTA to focus on State and local government investments 
to operate and maintain the ``system'' as part of fiscal constraint and 
financial plans supporting transportation plans and programs. However, 
the statute, as amended by the SAFETEA-LU (23 U.S.C. 134(i)(2)(C) and 
49 U.S.C. 5303(i)(2)(C)), requires that the financial element of a 
metropolitan transportation plan ``demonstrates how the adopted 
transportation plan can be implemented'' and ``indicates resources from 
public and private sources'' that can be ``reasonably anticipated to 
implement the plan.'' A metropolitan transportation plan, as it is 
developed, must include consideration and recognition of how all the 
pieces of the regional transportation system will integrate, function 
and operate, not just those facilities which are or could be funded 
with Federal resources. To focus solely on the Federally-funded portion 
of the transportation system could create greater demands on limited 
Federal resources or jeopardize the value of the Federal investments 
made within that metropolitan area. Furthermore, outside the 
transportation planning process, there is a longstanding Federal 
requirement that States properly maintain, or cause to be maintained, 
any projects constructed under the Federal-aid Highway Program (23 
U.S.C. 116).
    Additionally, the FHWA and the FTA believe that the fundamental 
premise behind the wording in the October 28, 1993 planning rule 
regarding highway and transit operations and maintenance (58 FR 58040) 
remains sound.
    However, for purposes of clarity and consistency, Sec.  450.216(n), 
Sec.  450.322(f)(10), and Sec.  450.324(i) have been revised to better 
describe ``the system'' as Federal-aid highways (as defined by 23 
U.S.C. 101(a)(5)) and public transportation (as defined by title 49 
U.S.C. Chapter 53). As background, 23 U.S.C. 101(a)(5) defines 
``Federal-aid highways'' as ``a highway eligible for assistance other 
than a highway classified as a local road or rural minor collector.'' 
Additionally, these sections clarify that the financial plans 
supporting the metropolitan transportation plan and TIP and the 
financial information supporting the STIP are to be based on systems-
level estimates of costs and revenue sources reasonably expected to be 
available to adequately operate and maintain Federal-aid highways (as 
defined by 23 U.S.C. 101(a)(5)) and public transportation (as defined 
by title 49 U.S.C. Chapter 53).
    Regarding the use of ``year of expenditure dollars'' in developing 
cost and revenue estimates, the FHWA and the FTA jointly issued 
``Interim FHWA/FTA Guidance on Fiscal Constraint for STIPs, TIPs, and 
Metropolitan Plans'' on June 30, 2005.\22\ This Interim Guidance 
indicated that financial forecasts (for costs and revenues) to support 
the metropolitan transportation plan, TIP, and STIP may: (a) Rely on a 
``constant dollar'' base year or (b) utilize an inflation rate(s) to 
reflect ``year expenditure.'' The FHWA and the FTA will be developing 
and issuing revised guidance on fiscal constraint and financial 
planning for transportation plans and programs soon after this rule is 
published. In Appendix B, the FHWA and the FTA proposed to exclusively 
require the use of ``year of expenditure dollars'' to better reflect 
the time-based value of money. This is particularly crucial for large-
scale projects with construction/implementation dates stretching into 
the future. Because the transportation planning process serves as the 
beginning point of the larger ``project continuum'' (i.e., moving from 
concept through construction, and later operations and maintenance), 
the FHWA and the FTA strongly believe that early disclosure of revenue 
and cost estimates reflecting time and inflation provides a truer set 
of expectations and future ``reality'' to the public. However, most of 
the State DOTs, a few of the national and regional advocacy 
organizations and some MPOs and COGs, commented that they should not be 
required to use ``year of expenditure dollars.''
---------------------------------------------------------------------------

    \22\ This joint guidance, ``Interim FHWA/FTA Guidance on Fiscal 
Constraint for STIPs, TIPs and Metropolitan Plans,'' dated June 27, 
2005, is available via the Internet at the following URL: http://www.fhwa.dot.gov/planning/fcindex.htm.
---------------------------------------------------------------------------

    The FHWA and the FTA considered these comments and included in 
Sec.  450.216(h), Sec.  450.322(f)(10), and Sec.  450.324(d) that 
``year of expenditure dollars'' shall be used ``to the extent 
practicable.'' While this language expresses the desire of the FHWA and 
the FTA for revenue and cost estimates to be reflected in ``year of 
expenditure dollars,'' an opportunity to use ``constant dollars'' has 
been retained.
    Regarding the use of ``cost ranges/cost bands'' in the outer years 
of the metropolitan transportation plan, the FHWA and the FTA jointly 
issued ``Interim Guidance on Fiscal Constraint for STIPs, TIPs, and 
Metropolitan Plans'' on June 30, 2005. The FHWA and the FTA will be 
developing and issuing revised guidance on fiscal constraint and 
financial planning for transportation plans and programs soon after 
this rule is published. The Interim Guidance indicated that for the 
outer years of the metropolitan transportation plan (i.e., beyond the 
first 10 years), the financial plan may reflect aggregate cost ranges/
cost bands, as long as the future funding source(s) is reasonably 
expected to be available to support the projected cost ranges/cost 
bands. In the NPRM, the FHWA and the FTA proposed to provide this 
option to MPOs in developing fiscally-constrained metropolitan 
transportation plans. We have included this option in this rule because 
we believe it gives MPOs maximum flexibility to broadly define a large-
scale transportation issue or problem to be addressed in the future 
that does not predispose a NEPA decision, while, at the same time, 
calling for the definition of a future funding source(s) that 
encompasses the planning-level ``cost range/cost band.''

23 CFR Part 500

Section 500.109 Congestion Management Systems

    Few docket documents specifically referenced this section. However, 
the docket included more than 25 documents that contained almost 30 
comments on Sec.  450.320 (Congestion management process in 
transportation management areas) which is relevant to this section.
    As was mentioned, on May 16, 2006, the U.S. Secretary of 
Transportation announced a national initiative to address congestion 
related to highway, freight and aviation. The intent of the ``National 
Strategy to Reduce Congestion on America's Transportation

[[Page 7254]]

Network'' is to provide a blueprint for Federal, State and local 
officials to tackle congestion. The States and MPO(s) are encouraged to 
seek Urban Partnership Agreements with a handful of communities willing 
to demonstrate new congestion relief strategies and encourages States 
to pass legislation giving the private sector a broader opportunity to 
invest in transportation. It calls for more widespread deployment of 
new operational technologies and practices that end traffic tie ups, 
designates new interstate ``corridors of the future,'' targets port and 
border congestion, and expands aviation capacity.
    U.S. DOT encourages the State DOTs and MPOs to consider and 
implement strategies, specifically related to highway and transit 
operations and expansion, freight, transportation pricing, other 
vehicle-based charges techniques, etc. The mechanism that the State 
DOTs and MPOs employ to explore these strategies is within their 
discretion. The U.S. DOT will focus its resources, funding, staff and 
technology to cut traffic jams and relieve freight bottlenecks.
    A few comments were received reiterating that the CMP should result 
in multimodal system performance measures and strategies. The FHWA and 
the FTA note that existing language reflects the multimodal nature of 
the CMP. Specifically, Sec.  450.320(a)(2) allows for the appropriate 
performance measures for the CMP to be determined cooperatively by the 
State(s), affected MPO(s), and local officials in consultation with the 
operators of major modes of transportation in the coverage area.
    Several commenters asked for a clarification with regards to what 
CMP requirements apply in air quality attainment areas, as opposed to 
the requirements in air quality nonattainment areas. The CMP 
requirements for all TMA areas (attainment and nonattainment) are 
identified in Sec. Sec.  450.320(a), 450.320(b), 450.320(c), and 
450.320(f). Additional CMP requirements that apply only to 
nonattainment TMA areas (for CO and ozone) are identified in Sec.  
450.320(d) and Sec.  450.320(e).

49 CFR Part 613

    The NPRM proposed to simplify FTA's cross-reference in 49 CFR Part 
613 to 23 CFR Part 450. Because there may be references to the three 
subparts in 49 CFR Part 613 in various other regulatory and guidance 
documents, FTA has made technical changes to what was proposed in the 
NPRM to retain the names of the subparts in this part the same as they 
were prior to this rule. This will reduce confusion by keeping the 
names of the subparts the same, but still allowing for the cross-
reference simplification and alignment of identical regulatory 
requirements that FTA had proposed.

Distribution Tables

    The NPRM proposed to clarify and revise the regulation's section 
headings to use plainer language. These changes have been made. For 
ease of reference, two distribution tables are provided for the current 
sections and the proposed sections as follows. The first distribution 
table indicates changes in section numbering and titles. The second 
provides details within each section.

                        Section Title and Number
------------------------------------------------------------------------
              Old section                          New section
------------------------------------------------------------------------
               Subpart A                            Subpart A
450.100 Purpose........................  450.100 Purpose.
450.102 Applicability..................  450.102 Applicability.
450.104 Definitions....................  450.104 Definitions.
 
               Subpart B                            Subpart B
450.200 Purpose........................  450.200 Purpose.
450.202 Applicability..................  450.202 Applicability.
450.204 Definitions....................  450.204 Definitions.
450.206 Statewide transportation         450.206 Scope of the statewide
 planning process: General requirements.  transportation planning
                                          process.
450.208 Statewide transportation         450.208 Coordination of
 planning process: Factors.               planning process activities.
450.210 Coordination...................  450.210 Interested parties,
                                          public involvement, and
                                          consultation.
                                         450.212 Transportation planning
                                          studies and project
                                          development.
450.212 Public involvement.............  450.214 Development and content
                                          of the long-range statewide
                                          transportation plan.
450.214 Statewide transportation plan..  450.216 Development and content
                                          of the statewide
                                          transportation improvement
                                          program (STIP).
450.216 Statewide transportation.......  450.218 Self-certifications,
                                          Federal improvement program
                                          (STIP). findings, and Federal
                                          approvals.
450.218 Funding........................  450.220 Project selection from
                                          the STIP.
450.220 Approvals......................  450.222 Applicability of NEPA
                                          to statewide transportation
                                          plans and programs.
450.222 Project selection for            450.224 Phase-in of new
 implementation.                          requirements.
 
               Subpart C                            Subpart C
450.300 Purpose........................  450.300 Purpose.
450.302 Applicability..................  450.302 Applicability.
450.304 Definitions....................  450.304 Definitions.
450.306 Metropolitan planning            450.306 Scope of the
 organizations: Designation and           metropolitan transportation
 redesignation.                           planning process.
450.308 Metropolitan planning            450.308 Funding for
 organization: Metropolitan planning      transportation planning and
 boundary.                                unified planning work
                                          programs.
450.310 Metropolitan planning            450.310 Metropolitan planning
 organization: planning agreements.       organization designation and
                                          redesignation.
450.312 Metropolitan transportation      450.312 Metropolitan planning
 planning: Responsibilities,              area boundaries.
 cooperation, and coordination.
450.314 Metropolitan transportation      450.314 Metropolitan planning
 planning process: Unified planning       agreements.
 work programs.

[[Page 7255]]

 
450.316 Metropolitan transportation      450.316 Interested parties,
 planning process: Elements.              participation and
                                          consultation.
450.318 Metropolitan transportation      450.318 Transportation planning
 planning process: Major metropolitan     studies and project
 transportation investments.              development.
450.320 Metropolitan transportation      450.320 Congestion management
 planning process: Relation to            process in transportation
 management systems.                      management areas.
450.322 Metropolitan transportation      450.322 Development and content
 planning process: Transportation plan.   of the metropolitan
                                          transportation plan.
450.324 Transportation improvement       450.324 Development and content
 program: General.                        of the transportation
                                          improvement program (TIP).
450.326 Transportation improvement       450.326 TIP revisions and
 program: modification.                   relationship to the STIP.
450.328 Transportation improvement       450.328 TIP action by the FHWA
 program: Relationship to statewide TIP.  and the FTA.
450.330 Transportation improvement       450.330 Project selection from
 program: Action required by FHWA/FTA.    the TIP.
450.332 Project selection for            450.332 Annual listing of
 implementation.                          obligated projects.
450.334 Metropolitan transportation      450.334 Self-certifications and
 planning process: Certification.         Federal certifications.
450.336 Phase-in of new requirements...  450.336 Applicability of NEPA
                                          to metropolitan transportation
                                          plans and programs.
None...................................  450.338 Phase-in of new
                                          requirements.
 
              Section 500
500.109 CMS............................  500.109 CMS.
------------------------------------------------------------------------

    The following distribution table identifies details for each 
existing section and proposed section:

------------------------------------------------------------------------
              Old section                          New section
------------------------------------------------------------------------
               Subpart A                            Subpart A
450.100................................  450.100 [Revised].
450.102................................  450.102.
450.104................................  450.104.
Definitions............................  Definitions.
None...................................  Administrative modification
                                          [New].
None...................................  Alternatives analysis [New].
None...................................  Amendment [New].
None...................................  Attainment area [New].
None...................................  Available funds [New].
None...................................  Committed funds [New].
None...................................  Conformity [New].
None...................................  Conformity lapse [New].
None...................................  Congestion management process
                                          [New].
None...................................  Consideration [New].
Consultation...........................  Consultation [Revised].
Cooperation............................  Cooperation [Revised].
None...................................  Coordinated public transit-
                                          human services transportation
                                          plan [New].
Coordination...........................  Coordination [Revised].
None...................................  Design concept [New].
None...................................  Design scope [New].
None...................................  Designated recipient [New].
None...................................  Environmental mitigation
                                          activities [New].
None...................................  Federal land management agency
                                          [New].
None...................................  Federally funded non-emergency
                                          transportation services [New].
None...................................  Financially constrained or
                                          Fiscal constraint [New].
None...................................  Financial plan [New].
None...................................  Freight shippers [New].
None...................................  Full funding grant agreement
                                          [New].
Governor...............................  Governor.
None...................................  Illustrative project [New].
None...................................  Indian Tribal government [New].
None...................................  Intelligent transportation
                                          system (ITS) [New].
None...................................  Interim metropolitan
                                          transportation plan [New].
None...................................  Interim transportation
                                          improvement program (TIP)
                                          [New].
Maintenance area.......................  Maintenance area [Revised].
Major metropolitan transportation        Removed.
 investment.
Management system......................  Management system [Revised].
Metropolitan planning area.............  Metropolitan planning area
                                          (MPA) [Revised].
Metropolitan planning organization.....  Metropolitan planning
                                          organization.
(MPO)..................................  (MPO) [Revised].
Metropolitan transportation plan.......  Metropolitan transportation
                                          plan.

[[Page 7256]]

 
None...................................  National ambient air quality
                                          standards (NAAQS) [New].
Nonattainment area.....................  Nonattainment area.
Non-metropolitan area..................  Non-metropolitan area.
Non-metropolitan local official........  Non-metropolitan local
                                          official.
None...................................  Obligated projects [New].
None...................................  Operational and management
                                          strategies [New].
None...................................  Project construction grant
                                          agreement [New].
None...................................  Project selection [New].
None...................................  Provider of freight
                                          transportation services [New].
None...................................  Public transportation operator
                                          [New].
None...................................  Regional ITS architecture
                                          [New].
Regionally significant project.........  Regionally significant project
                                          [Revised].
None...................................  Revision [New].
State..................................  State.
State implementation plan (SIP)........  State implementation plan (SIP)
                                          [Revised].
Statewide transportation improvement     Statewide transportation
 program (STIP).                          improvement program (STIP)
                                          [Revised].
Statewide transportation plan..........  Long-range statewide
                                          transportation plan [Revised].
None...................................  Strategic highway safety plan
                                          [New].
None...................................  Transportation control measures
                                          (TCMs) [New].
Transportation improvement program       Transportation improvement
 (TIP).                                   program (TIP) [Revised].
Transportation management area (TMA)...  Transportation management area
                                          (TMA) [Revised].
None...................................  Unified planning work program
                                          (UPWP) [New].
None...................................  Update [New].
None...................................  Urbanized area [New].
None...................................  Users of public transportation
                                          [New].
None...................................  Visualization techniques [New].
 
               Subpart B                            Subpart B
450.200................................  450.200 [Revised].
450.202................................  450.202 [Revised].
450.204................................  450.204 [Revised].
450.206(a)(1) through (a)(5)...........  Removed.
450.206(b).............................  450.208(a)(1) [Revised].
450.206(c).............................  450.208(a)(4).
450.208(a)(1)..........................  450.208(d) [Revised].
450.208(a)(2) through (a)(23)..........  450.206(a)(1) through (a)(8)
                                          [Revised].
450.208(b).............................  450.206(b) [Revised].
None...................................  450.206(c) [New].
450.210(a)(1) through (a)(13)..........  450.208(a)(1) through (a)(7)
                                          [Revised].
450.210(b).............................  Removed.
None...................................  450.208(b) [New].
None...................................  450.208(c) [New].
None...................................  450.208(e) [New].
None...................................  450.208(f) [New].
None...................................  450.208(g) [New].
None...................................  450.208(h) [New].
450.212(a) through (g).................  450.210(a) [Revised].
450.212(h) through (i).................  450.210(b)(1) through (b)(2)
                                          [Revised].
None...................................  450.210(c) [New].
None...................................  450.212(a) through (c) [New].
450.214(a) through (b)(3)..............  450.214(a) [Revised].
None...................................  450.214(b) [New].
450.214(b)(4)..........................  450.214(f) [Revised].
450.214(b)(5)..........................  450.214(c) [Revised].
450.214(b)(6)..........................  450.214(l) [Revised].
None...................................  450.214(d) [New].
None...................................  450.214(e) [New].
450.214(c)(1) through (c)(5)...........  450.214(g) and (h) [Revised].
450.214(d).............................  Removed.
None...................................  450.214(i) [New].
None...................................  450.214(j) [New].
None...................................  450.214(m) [New].
None...................................  450.214(n) [New].
450.214(e).............................  450.214(o).
None...................................  450.214(p) [New].
450.214(f).............................  450.214(g) [Revised].
450.216(a) last sentence...............  450.216(f) [Revised].
450.216(a)(1) through (a)(2)...........  450.216(a) through (b)
                                          [Revised].
450.216(a)(3)..........................  450.216(k).
None...................................  450.216(l) [New].
450.216(a)(4)..........................  450.216(b) [Revised].
None...................................  450.216(d) [New].
None...................................  450.216(e) [New].
450.216(a)(5)..........................  450.216(m) [Revised].
450.216(a)(6)..........................  450.216(g) [Revised].

[[Page 7257]]

 
450.216(a)(7)..........................  450.216(h) [Revised].
450.216(a)(8)..........................  450.216(i) [Revised].
450.216(a)(9)..........................  Removed.
450.216(b).............................  450.216(j) [Revised.]
450.216(b) last sentence...............  450.216(f).
450.216(c) through (d).................  450.216(n) [Revised].
None...................................  450.216(o) [New].
450.216(e).............................  450.216(c) [Revised].
450.218................................  450.206(d) [Revised].
450.220(a) through (g).................  450.218(a) through (d)
                                          [Revised].
450.222(a) through (d).................  450.220(a) through (e)
                                          [Revised].
None...................................  450.222 [New].
450.224(a) through (b).................  450.224(a) through (c)
                                          [Revised].
 
               Subpart C                            Subpart C
450.300................................  450.300 [Revised].
450.302................................  450.302 [Revised].
450.304................................  450.304 [Revised].
450.306(a) through (d).................  450.310(a) through (h)
                                          [Revised].
450.306(e).............................  450.310(f) [Revised].
None...................................  450.310(g) [New].
450.306(f).............................  Removed.
450.306(g).............................  450.310(i) [Revised].
450.306(h).............................  450.310(j) [Revised].
450.306(i) through (j).................  Removed.
450.306(k).............................  450.310(k) through (l)
                                          [Revised].
None...................................  450.310(k) [New].
450.308(a) through (c).................  450.312(a), (b), and (i)
                                          [Revised].
None...................................  450.312(c) [New].
None...................................  450.312(d) [New].
None...................................  450.312(e) [New].
None...................................  450.312(f) [New].
None...................................  450.312(g) [New].
None...................................  450.312(h) [New].
450.308(d).............................  450.312(j) [Revised].
450.310(a), (b), and (d)...............  450.314(a) [Revised].
450.310(c).............................  450.314(c).
450.310(e).............................  Removed.
450.310(f).............................  450.314(b) [Revised].
450.310(g).............................  450.314(d) [Revised].
450.310(h).............................  Removed.
None...................................  450.314(f) [New].
450.312(a).............................  450.314(a) [Revised].
450.312(b).............................  450.322(c) [Revised].
450.312(c).............................  450.322(d) [Revised].
450.312(d).............................  Removed.
450.312(e).............................  450.314(b), (d), and (e)
                                          [Revised].
450.312(f).............................  450.306(i).
450.312(g).............................  Removed.
450.312(h).............................  Removed.
450.312(i).............................  450.316(c) through (d)
                                          [Revised].
None...................................  450.316(e) [New].
None...................................  450.308(a) [New].
450.314(a) through (d).................  450.308(b) through (e)
                                          [Revised].
None...................................  450.308(f) [New].
450.316(a)(1) through (a)(16)..........  450.306(a)(1) through (a)(8)
                                          [Revised].
None...................................  450.306(b) [New].
None...................................  450.306(c) [New].
None...................................  450.306(d) [New].
None...................................  450.306(e) [New].
None...................................  450.306(f) [New].
None...................................  450.306(g) [New].
None...................................  450.306(h) [New].
None...................................  450.316(a) [New].
450.316(b)(1)(i).......................  450.316(a)(3) [Revised].
450.316(b)(1)(ii) through (b)(1)(vi)...  450.316(a)(1)(i) through
                                          (a)(1)(vi) [Revised].
450.316(b)(1)(vii).....................  450.316(a)(2) [Revised].
450.316(b)(1)(viii) through (b)(1)(xi).  450.316(a)(1)(vii) through
                                          (a)(1)(x) [Revised].
450.316(b)(2)..........................  Removed.
450.316(b)(3)..........................  Removed.
450.316(b)(4)..........................  Removed.
None...................................  450.316(b) [New].
450.312(i).............................  450.316(c).
None...................................  450.316(d) [New].
450.316(c).............................  450.306(j) [Revised].

[[Page 7258]]

 
450.316(d).............................  Removed.
450.318(a) through (f).................  450.318(a) through (e)
                                          [Revised].
450.320(a).............................  450.320(a) [Revised].
450.320(b).............................  450.320(d) and (e) [Revised].
450.320(c).............................  450.320(b) [Revised].
450.320(d).............................  450.320(b) [Revised].
500.109(a) second, fourth, and fifth     450.320(b) [Revised].
 sentences.
500.109(b).............................  450.320(c) [Revised].
500.109(b)(1) through (b)(6)...........  450.320(c)(1) through (c)(6)
                                          [Revised].
None...................................  450.320(f) [New].
450.322(a) and (e).....................  450.322(a) through (c)
                                          [Revised].
None...................................  450.322(e) [New].
450.322(b)(1) through (b)(2)...........  450.322(f)(1) through (f)(2)
                                          [Revised].
450.322(b)(3)..........................  450.322(f)(8) [Revised].
450.322(b)(4) through (b)(7)...........  450.322(f)(3) through (f)(6)
                                          [Revised].
450.322(b)(8)..........................  Removed.
450.322(b)(9)..........................  450.322(f)(7) and (g)(1)
                                          through (g)(2) [Revised].
450.322(b)(10).........................  450.324(f)(9) [Revised].
450.322(b)(11).........................  450.322(f)(10) [Revised].
None...................................  450.322(h) [New].
450.322(c).............................  450.322(i) [Revised].
None...................................  450.322(j) [New].
None...................................  450.322(k) [New].
450.322(d).............................  450.322(l) [Revised].
450.324(a) through (i).................  450.324(a) through (i)
                                          [Revised].
450.324(j) through (k).................  Removed.
450.324(l) through (m).................  450.324(j) through (k)
                                          [Revised].
450.324(n).............................  450.324(l).
None...................................  450.324(m) [New].
None...................................  450.324(n) [New].
None...................................  450.324(o) [New].
450.326................................  450.326(a) [Revised].
450.328(a) through (b).................  450.326(b) through (c)
                                          [Revised].
450.330(a) through (b).................  450.328(a) through (b)
                                          [Revised].
None...................................  450.328(c) through (e) [New].
450.324(o).............................  450.328(f) [Revised].
450.332(a) through (e).................  450.330(a) through (e)
                                          [Revised].
None...................................  450.332(a) through (c) [New].
450.334(a) through (h).................  450.334(a) through (b)
                                          [Revised].
None...................................  450.336 [New].
450.336................................  450.338(a) through (e)
                                          [Revised].
500.109 first and third sentences......  500.109(a) [Revised].
500.109(a) second, fourth, and fifth     500.109(b) [Revised].
 sentences.
------------------------------------------------------------------------

Rulemaking Analyses and Notices

    The FHWA and the FTA received and considered more than 1,600 
comments by the comment closing date of September 7, 2006. In addition, 
we considered all comments received after the closing date to the 
extent practicable.

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

    The FHWA and the FTA have determined that this rulemaking is a 
significant regulatory action within the meaning of Executive Order 
12866, and is significant under Department of Transportation regulatory 
policies and procedures because of substantial State, local government, 
congressional, and public interest. These interests involve receipt of 
Federal financial support for transportation investments, appropriate 
compliance with statutory requirements, and balancing of transportation 
mobility and environmental goals. This rule will add new coordination 
and documentation requirements (e.g., greater public outreach and 
consultation with State and local planning and resource agencies, 
annual listing of obligated projects, etc.), but will reduce the 
frequency of some existing regulatory reporting requirements (e.g., 
metropolitan transportation plan, STIP/TIP, and certification reviews). 
The FHWA and the FTA have sought to maintain previous flexibility of 
operation wherever possible for State DOTs, MPOs, and other affected 
organizations, and to utilize existing processes to accomplish any new 
tasks or activities. We did not receive any comments on this analysis.
    The FHWA and the FTA conducted a cost analysis identifying each of 
the proposed regulatory changes that would have a significant cost 
impact for MPOs or State DOTs, and have estimated those costs on an 
annual basis. This cost analysis was posted on the docket as a separate 
document, entitled ``Regulatory Cost Analysis of Proposed Rulemaking.'' 
We did not receive any comments on the cost analysis. We have not made 
changes that substantively affect the cost or benefits calculations 
used in the analysis. Therefore, no changes are made to the cost 
analysis and we believe that the economic impact of this rulemaking 
will be minimal.

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 determined that States and 
MPOs are not included in the definition of small entity set forth in 5 
U.S.C. 601. Small governmental jurisdictions are limited to 
representations of populations of less than 50,000. MPOs, by 
definition, represent urbanized areas having a minimum population of 
50,000. Therefore the Regulatory Flexibility Act

[[Page 7259]]

does not apply. We did not receive any comments on the Regulatory 
Flexibility Act determination.

Unfunded Mandates Reform Act of 1995

    This rule will 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 of non-
Federal funds by State, local, and Indian Tribal governments, in the 
aggregate, or by the private sector, of $128.1 million in any one year 
(2 U.S.C. 1532).
    Additionally, the definition of ``Federal mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or Indian 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 Federal Transit Act permit this type of flexibility to the States. 
We did not receive any comments on the Unfunded Mandates Reform Act.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, and the FHWA and the FTA 
have determined that this action will not have sufficient federalism 
implications to warrant the preparation of a Federalism assessment. The 
FHWA and the FTA have also determined that this action will not preempt 
any State law or regulation or affect the States' ability to discharge 
traditional State governmental functions.
    By letter dated November 29, 2005, the FHWA and the FTA solicited 
comments from the National Governors' Association (NGA) as 
representatives for the elected State officials on the Federalism 
implications of this proposed rule.\23\ An identical letter was sent on 
the same date to several other organizations representing elected 
officials and Indian Tribal governments. These organizations were: The 
National Conference of State Legislators (NCSL), the American Public 
Works Association (APWA), the Association of Metropolitan Planning 
Organizations (AMPO), the National Association of Regional Councils 
(NARC), the National Association of Counties (NACO), the Conference of 
Mayors (COM), the National Association of City Transportation Officials 
(NACTO), and the National Congress of American Indians (NCAI).
---------------------------------------------------------------------------

    \23\ A copy of this letter is included in the docket.
---------------------------------------------------------------------------

    In response to this letter, AMPO and NARC requested a meeting to 
discuss their Federalism concerns. On December 21, 2005, we met with 
representatives from AMPO and NARC. A summary of this meeting is 
available in the docket. Briefly, both AMPO and NARC expressed concern 
with the potential burdens that new requirements might have on MPOs, 
especially the smaller MPOs. In particular, AMPO and NARC were 
concerned with our implementation of the SAFETEA-LU provisions relating 
to public participation, congestion management process, and 
implementation of planning update cycles. We did consider these 
concerns when drafting the final rule. We did not receive additional 
comments on Federalism issues.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Numbers 20.205, 
Highway Planning and Construction (or 20.217); 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. The FHWA and the FTA did not 
receive any comments on these programs.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et. 
seq.), 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 FHWA and the FTA 
have determined that this regulation contains collection of information 
requirements for the purposes of the Paperwork Reduction Act. However, 
the FHWA and the FTA believe that any increases in burden hours per 
submission are more than offset by decreases in the frequency of 
collection for these information requirements.
    The reporting requirements for metropolitan planning unified 
planning work programs (UPWPs), transportation plans, and 
transportation improvement programs (TIPs) are approved under OMB 
control number 2132-0529. Under the previous planning regulations, the 
burden hours were estimated to be 314,900; however, due to the 
reduction in the frequency of collection, the burden hours for this 
final rule are estimated to be only 250,295 hours. That is a reduction 
of 64,605 burden hours. This collection has been approved by OMB with 
an expiration date of August 31, 2009. The information reporting 
requirements for State planning work programs were approved by the OMB 
under control number 2125-0039 (expiration date: November 30, 2007). 
However, we have combined these collections into one OMB control number 
(2132-0529). The FTA conducted the analysis supporting this approval on 
behalf of both the FTA and the FHWA, since the regulations are jointly 
issued by both agencies. The reporting requirements for statewide 
transportation plans and programs are also approved under this same OMB 
control number. The information collection requirements addressed under 
the current OMB approval number (2132-0529) impose a total burden of 
250,295 hours on the planning agencies that must comply with the 
requirements in the new regulation. The FHWA and the FTA conducted an 
analysis of the change in burden hours attributed to the rulemaking, 
based on estimates used in the submission for OMB approval. This 
analysis is included on the docket as a separate document entitled 
``Estimated Change in Reporting Burden Hours Attributable to the final 
rule.''
    The docket contained a comment on the estimated change in reporting 
burden hours. The commenter stated that the analysis was 
unrealistically low because it failed to account for the costs of 
implementing the proposed fiscal constraint and STIP amendment 
provisions. The FHWA and the FTA disagree with this comment. The fiscal 
constraint requirements are not new with this rulemaking; they were 
introduced under the ISTEA, and subsequently reaffirmed under the 
SAFETEA-LU (23 U.S.C. 134 (i)(2)(C), 23 U.S.C. 134 (j)(1)(C), 49 U.S.C. 
5301 (a)(1), and 49 U.S.C. 5303 (j)(2)(C)). Appendix B (Fiscal 
Constraint of Transportation Plans and Programs) has been removed from 
the rule, although three key features were included in appropriate 
sections. Please see the responses to the comments on Appendix B for 
additional background information and explanation.
    Consequently, the FHWA and the FTA find that the fiscal constraint 
provision does not add new burden on State DOTs and MPOs, and therefore 
is not subject to a cost analysis. Furthermore the FHWA and the FTA 
believe that the changes in definitions regarding TIP/STIP amendments

[[Page 7260]]

actually reduce the administrative burden by introducing the concept of 
an ``administrative modification,'' which allows minor changes to be 
made without requiring public review and comment, redemonstration of 
fiscal constraint, or a conformity determination. Finally, the cost 
analysis does specifically recognize that some additional costs may be 
incurred to address new coordination provisions, and estimates an 
average cost increase for State DOTs of approximately $54,000 per year. 
Some States may incur higher costs, while others may incur lower costs. 
However, these additional costs for transportation plan development are 
partially offset by estimated cost savings due to other provisions 
(e.g., reduction in the required frequency of STIP updates). No 
substantial change was made to the ``Estimated Change in Reporting 
Burden Hours Attributable to the final rule'' as a result of these 
comments. Additionally, there has been no change since the approval of 
the most recent information collection request (ICR) and no change 
between the NPRM and final rule.
    The analysis results are summarized below.
    The creation and submission of required reports and documents have 
been limited to those specifically required by 23 U.S.C. 134 and 135 
and in 49 U.S.C. 5303 and 5304 or essential to the performance of our 
findings, certifications and/or approvals. The final rule will have no 
significant change in the submission requirements for UPWPs or State 
planning work programs; therefore there is no change in the annual 
reporting burden for this element. The final rule will require that 
additional sections be added to the metropolitan and statewide 
transportation plans, which we estimate would increase the required 
level of effort by 20 percent over current plan development. However, 
the final rule also reduces the required frequency of plan submission 
from 3 to 4 years for MPOs located in nonattainment or maintenance 
areas. One half of all MPOs are located in nonattainment or maintenance 
areas and would realize a reduction in their annual reporting burden. 
Based on the burden hours used in the FTA analysis submitted for OMB 
approval, the decrease in burden hours for MPOs located in 
nonattainment and maintenance areas more than offsets the increase in 
burden hours associated with the new sections required in the plans.
    The final rule requires that State and metropolitan transportation 
improvement program (STIP and TIP) documents include 4 years of 
projects; an increase from 3 years of projects required under the 
previous regulations. The inclusion of an additional year of projects 
will increase the reporting burden associated with TIP development by 
10 percent over current levels. However, the final rule also reduces 
the required frequency of TIP submission from 2 years to 4 years for 
all States and MPOs. Based on the burden hours used in the FTA analysis 
submitted for OMB approval, the decrease in burden hours associated 
with the reduced frequency of submission more than offsets the increase 
in burden hours associated with including an additional year of 
projects in the TIP. The FHWA and the FTA have not made changes to the 
rule that would substantively affect this analysis. None of the changes 
made to the regulatory language between the NPRM and the final rule 
alter information collection requirements.

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), and 
have determined that this action would not have any effect on the 
quality of the environment. A small number of national and regional 
advocacy organizations wrote that this rulemaking process should be 
subject to NEPA because certain regulatory provisions (e.g., Appendix A 
(Linking the transportation planning and NEPA processes), Sec.  450.212 
(Transportation planning studies and project development), and Sec.  
450.318 (Transportation planning studies and project development)) will 
impact how environmental considerations are addressed by State DOTs and 
MPOs. The FHWA and the FTA disagree. The proposed rule defines a 
process for carrying out the transportation planning provisions as 
specified in the SAFETEA-LU. It does not rescind or alter any of the 
requirements specified under NEPA with respect to overall long range 
transportation planning or project evaluation. Individual plans and 
projects submitted by State DOTs and MPOs would continue to be subject 
to NEPA requirements.
    Furthermore, the SAFETEA-LU clearly states in 23 U.S.C. 135(j) and 
49 U.S.C. 5304(j) that ``any decision by the Secretary concerning a 
metropolitan or statewide transportation plan or the transportation 
improvement program shall not be considered to be a Federal action 
subject to review under [NEPA].''

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. The FHWA and the FTA did not 
receive any comment on this determination.

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. The FHWA and the FTA did not 
receive any comment on this determination.

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. The FHWA and the FTA did not receive any comment on this 
determination.

Executive Order 13175 (Tribal Consultation)

    The FHWA and the FTA have analyzed this action under Executive 
Order 13175, dated November 6, 2000, and believe that the 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 laws. The planning regulations 
contain requirements for States to consult with Indian Tribal 
governments in the planning process. Tribes are required under 25 CFR 
part 170 to develop long range plans and develop an Indian Reservation 
Roads (IRR) TIP for programming IRR projects. However, the requirements 
in 25 CFR part 170 and would not be changed by this rulemaking. 
Therefore, a Tribal summary impact statement is not required. The FHWA 
and the FTA did not receive any comment on this analysis or 
determination.

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 dated May 18, 2001. We have determined that it is 
not a significant energy action under that

[[Page 7261]]

order because although it is a significant regulatory action under 
Executive Order 12866, it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, a 
Statement of Energy Effects is not required. The FHWA and the FTA did 
not receive any comment on this determination.

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 each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects

23 CFR Parts 450 and 500

    Grant Programs--transportation, Highway and roads, Mass 
transportation, Reporting and record keeping requirements.

49 CFR Part 613

    Grant Programs--transportation, Highway and roads, Mass 
transportation, Reporting and record keeping requirements.

    Issued on: January 29, 2007.
J. Richard Capka,
Federal Highway Administrator.
    Issued on: January 31, 2007.
James S. Simpson,
Federal Transit Administrator.

0
For the reasons discussed in the preamble, the FHWA and the FTA amend 
title 23, parts 450 and 500, and title 49, part 613, Code of Federal 
Regulations as follows:

Title 23--Highways

0
1. Revise Part 450 to read as follows:

PART 450--PLANNING ASSISTANCE AND STANDARDS

Subpart A--Transportation Planning and Programming Definitions
Sec.
450.100 Purpose.
450.102 Applicability.
450.104 Definitions.
Subpart B--Statewide Transportation Planning and Programming
450.200 Purpose.
450.202 Applicability.
450.204 Definitions.
450.206 Scope of the statewide transportation planning process.
450.208 Coordination of planning process activities.
450.210 Interested parties, public involvement, and consultation.
450.212 Transportation planning studies and project development.
450.214 Development and content of the long-range statewide 
transportation plan.
450.216 Development and content of the statewide transportation 
improvement program (STIP).
450.218 Self-certifications, Federal findings, and Federal 
approvals.
450.220 Project selection from the STIP.
450.222 Applicability of NEPA to statewide transportation plans and 
programs.
450.224 Phase-in of new requirements.
Subpart C--Metropolitan Transportation Planning and Programming
Sec.
450.300 Purpose.
450.302 Applicability.
450.304 Definitions.
450.306 Scope of the metropolitan transportation planning process.
450.308 Funding for transportation planning and unified planning 
work programs.
450.310 Metropolitan planning organization designation and 
redesignation.
450.312 Metropolitan planning area boundaries.
450.314 Metropolitan planning agreements.
450.316 Interested parties, participation, and consultation.
450.318 Transportation planning studies and project development.
450.320 Congestion management process in transportation management 
areas.
450.322 Development and content of the metropolitan transportation 
plan.
450.324 Development and content of the transportation improvement 
program (TIP).
450.326 TIP revisions and relationship to the STIP.
450.328 TIP action by the FHWA and the FTA.
450.330 Project selection from the TIP.
450.332 Annual listing of obligated projects.
450.334 Self-certifications and Federal certifications.
450.336 Applicability of NEPA to metropolitan transportation plans 
and programs.
450.338 Phase-in of new requirements.
    Appendix A to part 450--Linking the transportation planning and 
NEPA processes.

    Authority: 23 U.S.C. 134 and 135; 42 U.S.C. 7410 et seq.; 49 
U.S.C. 5303 and 5304; 49 CFR 1.48 and 1.51.

Subpart A--Transportation Planning and Programming Definitions


Sec.  450.100  Purpose.

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


Sec.  450.102  Applicability.

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


Sec.  450.104  Definitions.

    Unless otherwise specified, the definitions in 23 U.S.C. 101(a) and 
49 U.S.C. 5302 are applicable to this part.
    Administrative modification means a minor revision to a long-range 
statewide or metropolitan transportation plan, Transportation 
Improvement Program (TIP), or Statewide Transportation Improvement 
Program (STIP) that includes minor changes to project/project phase 
costs, minor changes to funding sources of previously-included 
projects, and minor changes to project/project phase initiation dates. 
An administrative modification is a revision that does not require 
public review and comment, redemonstration of fiscal constraint, or a 
conformity determination (in nonattainment and maintenance areas).
    Alternatives analysis (AA) means a study required for eligibility 
of funding under the Federal Transit Administration's (FTA's) Capital 
Investment Grant program (49 U.S.C. 5309), which includes an assessment 
of a range of alternatives designed to address a transportation problem 
in a corridor or subarea, resulting in sufficient information to 
support selection by State and local officials of a locally preferred 
alternative for adoption into a metropolitan transportation plan, and 
for the Secretary to make decisions to advance the locally preferred 
alternative through the project development process, as set forth in 49 
CFR part 611 (Major Capital Investment Projects).
    Amendment means a revision to a long-range statewide or 
metropolitan transportation plan, TIP, or STIP that involves a major 
change to a project included in a metropolitan transportation plan, 
TIP, or STIP, including the addition or deletion of a project or a 
major change in project cost, project/project phase initiation dates, 
or a major change in design concept or design scope (e.g., changing 
project termini or the number of through traffic lanes). Changes to 
projects that are included only for illustrative purposes do not 
require an amendment. An amendment is a revision that requires public 
review and comment, redemonstration of fiscal constraint, or a 
conformity determination (for metropolitan transportation plans and 
TIPs involving ``non-exempt'' projects in nonattainment and maintenance 
areas). In the context of a long-range statewide transportation plan, 
an amendment is a revision approved by the State in accordance with its 
public involvement process.
    Attainment area means any geographic area in which levels of a

[[Page 7262]]

given criteria air pollutant (e.g., ozone, carbon monoxide, PM10, 
PM2.5, and nitrogen dioxide) meet the health-based National Ambient Air 
Quality Standards (NAAQS) for that pollutant. An area may be an 
attainment area for one pollutant and a nonattainment area for others. 
A ``maintenance area'' (see definition below) is not considered an 
attainment area for transportation planning purposes.
    Available funds means funds derived from an existing source 
dedicated to or historically used for transportation purposes. For 
Federal funds, authorized and/or appropriated funds and the 
extrapolation of formula and discretionary funds at historic rates of 
increase are considered ``available.'' A similar approach may be used 
for State and local funds that are dedicated to or historically used 
for transportation purposes.
    Committed funds means funds that have been dedicated or obligated 
for transportation purposes. For State funds that are not dedicated to 
transportation purposes, only those funds over which the Governor has 
control may be considered ``committed.'' Approval of a TIP by the 
Governor is considered a commitment of those funds over which the 
Governor has control. For local or private sources of funds not 
dedicated to or historically used for transportation purposes 
(including donations of property), a commitment in writing (e.g., 
letter of intent) by the responsible official or body having control of 
the funds may be considered a commitment. For projects involving 49 
U.S.C. 5309 funding, execution of a Full Funding Grant Agreement (or 
equivalent) or a Project Construction Grant Agreement with the USDOT 
shall be considered a multi-year commitment of Federal funds.
    Conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement 
that ensures that Federal funding and approval are given to 
transportation plans, programs and projects that are consistent with 
the air quality goals established by a State Implementation Plan (SIP). 
Conformity, to the purpose of the SIP, means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the NAAQS. The transportation 
conformity rule (40 CFR part 93) sets forth policy, criteria, and 
procedures for demonstrating and assuring conformity of transportation 
activities.
    Conformity lapse means, pursuant to section 176(c) of the Clean Air 
Act (42 U.S.C. 7506(c)), as amended, that the conformity determination 
for a metropolitan transportation plan or TIP has expired and thus 
there is no currently conforming metropolitan transportation plan or 
TIP.
    Congestion management process means a systematic approach required 
in transportation management areas (TMAs) that provides for effective 
management and operation, based on a cooperatively developed and 
implemented metropolitan-wide strategy, of new and existing 
transportation facilities eligible for funding under title 23 U.S.C., 
and title 49 U.S.C., through the use of operational management 
strategies.
    Consideration means that one or more parties takes into account the 
opinions, action, and relevant information from other parties in making 
a decision or determining a course of action.
    Consultation means that one or more parties confer with other 
identified parties in accordance with an established process and, prior 
to taking action(s), considers the views of the other parties and 
periodically informs them about action(s) taken. This definition does 
not apply to the ``consultation'' performed by the States and the MPOs 
in comparing the long-range statewide transportation plan and the 
metropolitan transportation plan, respectively, to State and Tribal 
conservation plans or maps or inventories of natural or historic 
resources (see Sec.  450.214(i) and Sec.  450.322(g)(1) and (g)(2)).
    Cooperation means that the parties involved in carrying out the 
transportation planning and programming processes work together to 
achieve a common goal or objective.
    Coordinated public transit-human services transportation plan means 
a locally developed, coordinated transportation plan that identifies 
the transportation needs of individuals with disabilities, older 
adults, and people with low incomes, provides strategies for meeting 
those local needs, and prioritizes transportation services for funding 
and implementation.
    Coordination means the cooperative development of plans, programs, 
and schedules among agencies and entities with legal standing and 
adjustment of such plans, programs, and schedules to achieve general 
consistency, as appropriate.
    Design concept means the type of facility identified for a 
transportation improvement project (e.g., freeway, expressway, arterial 
highway, grade-separated highway, toll road, reserved right-of-way rail 
transit, mixed-traffic rail transit, or busway).
    Design scope means the aspects that will affect the proposed 
facility's impact on the region, usually as they relate to vehicle or 
person carrying capacity and control (e.g., number of lanes or tracks 
to be constructed or added, length of project, signalization, safety 
features, access control including approximate number and location of 
interchanges, or preferential treatment for high-occupancy vehicles).
    Designated recipient means an entity designated, in accordance with 
the planning process under 49 U.S.C. 5303, 5304, and 5306, by the chief 
executive officer of a State, responsible local officials, and 
publicly-owned operators of public transportation, to receive and 
apportion amounts under 49 U.S.C. 5336 that are attributable to 
transportation management areas (TMAs) identified under 49 U.S.C. 5303, 
or a State regional authority if the authority is responsible under the 
laws of a State for a capital project and for financing and directly 
providing public transportation.
    Environmental mitigation activities means strategies, policies, 
programs, actions, and activities that, over time, will serve to avoid, 
minimize, or compensate for (by replacing or providing substitute 
resources) the impacts to or disruption of elements of the human and 
natural environment associated with the implementation of a long-range 
statewide transportation plan or metropolitan transportation plan. The 
human and natural environment includes, for example, neighborhoods and 
communities, homes and businesses, cultural resources, parks and 
recreation areas, wetlands and water sources, forested and other 
natural areas, agricultural areas, endangered and threatened species, 
and the ambient air. The environmental mitigation strategies and 
activities are intended to be regional in scope, and may not 
necessarily address potential project-level impacts.
    Federal land management agency means units of the Federal 
Government currently responsible for the administration of public lands 
(e.g., U.S. Forest Service, U.S. Fish and Wildlife Service, Bureau of 
Land Management, and the National Park Service).
    Federally funded non-emergency transportation services means 
transportation services provided to the general public, including those 
with special transport needs, by public transit, private non-profit 
service providers, and private third-party contractors to public 
agencies.
    Financial plan means documentation required to be included with a 
metropolitan transportation plan and TIP (and optional for the long-
range statewide transportation plan and STIP) that demonstrates the 
consistency

[[Page 7263]]

between reasonably available and projected sources of Federal, State, 
local, and private revenues and the costs of implementing proposed 
transportation system improvements.
    Financially constrained or Fiscal constraint means that the 
metropolitan transportation plan, TIP, and STIP includes sufficient 
financial information for demonstrating that projects in the 
metropolitan transportation plan, TIP, and STIP can be implemented 
using committed, available, or reasonably available revenue sources, 
with reasonable assurance that the federally supported transportation 
system is being adequately operated and maintained. For the TIP and the 
STIP, financial constraint/fiscal constraint applies to each program 
year. Additionally, projects in air quality nonattainment and 
maintenance areas can be included in the first two years of the TIP and 
STIP only if funds are ``available'' or ``committed.''
    Freight shippers means any business that routinely transports its 
products from one location to another by providers of freight 
transportation services or by its own vehicle fleet.
    Full funding grant agreement means an instrument that defines the 
scope of a project, the Federal financial contribution, and other terms 
and conditions for funding New Starts projects as required by 49 U.S.C. 
5309(d)(1).
    Governor means the Governor of any of the 50 States or the 
Commonwealth of Puerto Rico or the Mayor of the District of Columbia.
    Illustrative project means an additional transportation project 
that may (but is not required to) be included in a financial plan for a 
metropolitan transportation plan, TIP, or STIP if reasonable additional 
resources were to become available.
    Indian Tribal government means a duly formed governing body for an 
Indian or Alaska Native tribe, band, nation, pueblo, village, or 
community that the Secretary of the Interior acknowledges to exist as 
an Indian Tribe pursuant to the Federally Recognized Indian Tribe List 
Act of 1994, Public Law 103-454.
    Intelligent transportation system (ITS) means electronics, 
photonics, communications, or information processing used singly or in 
combination to improve the efficiency or safety of a surface 
transportation system.
    Interim metropolitan transportation plan means a transportation 
plan composed of projects eligible to proceed under a conformity lapse 
and otherwise meeting all other applicable provisions of this part, 
including approval by the MPO.
    Interim transportation improvement program (TIP) means a TIP 
composed of projects eligible to proceed under a conformity lapse and 
otherwise meeting all other applicable provisions of this part, 
including approval by the MPO and the Governor.
    Long-range statewide transportation plan means the official, 
statewide, multimodal, transportation plan covering a period of no less 
than 20 years developed through the statewide transportation planning 
process.
    Maintenance area means any geographic region of the United States 
that the EPA previously designated as a nonattainment area for one or 
more pollutants pursuant to the Clean Air Act Amendments of 1990, and 
subsequently redesignated as an attainment area subject to the 
requirement to develop a maintenance plan under section 175A of the 
Clean Air Act, as amended.
    Management system means a systematic process, designed to assist 
decisionmakers in selecting cost effective strategies/actions to 
improve the efficiency or safety of, and protect the investment in the 
nation's infrastructure. A management system can include: 
Identification of performance measures; data collection and analysis; 
determination of needs; evaluation and selection of appropriate 
strategies/actions to address the needs; and evaluation of the 
effectiveness of the implemented strategies/actions.
    Metropolitan planning area (MPA) means the geographic area 
determined by agreement between the metropolitan planning organization 
(MPO) for the area and the Governor, in which the metropolitan 
transportation planning process is carried out.
    Metropolitan planning organization (MPO) means the policy board of 
an organization created and designated to carry out the metropolitan 
transportation planning process.
    Metropolitan transportation plan means the official multimodal 
transportation plan addressing no less than a 20-year planning horizon 
that is developed, adopted, and updated by the MPO through the 
metropolitan transportation planning process.
    National ambient air quality standard (NAAQS) means those standards 
established pursuant to section 109 of the Clean Air Act.
    Nonattainment area means any geographic region of the United States 
that has been designated by the EPA as a nonattainment area under 
section 107 of the Clean Air Act for any pollutants for which an NAAQS 
exists.
    Non-metropolitan area means a geographic area outside a designated 
metropolitan planning area.
    Non-metropolitan local officials means elected and appointed 
officials of general purpose local government in a non-metropolitan 
area with responsibility for transportation.
    Obligated projects means strategies and projects funded under title 
23 U.S.C. and title 49 U.S.C. Chapter 53 for which the supporting 
Federal funds were authorized and committed by the State or designated 
recipient in the preceding program year, and authorized by the FHWA or 
awarded as a grant by the FTA.
    Operational and management strategies means actions and strategies 
aimed at improving the performance of existing and planned 
transportation facilities to relieve congestion and maximizing the 
safety and mobility of people and goods.
    Project construction grant agreement means an instrument that 
defines the scope of a project, the Federal financial contribution, and 
other terms and conditions for funding Small Starts projects as 
required by 49 U.S.C. 5309(e)(7).
    Project selection means the procedures followed by MPOs, States, 
and public transportation operators to advance projects from the first 
four years of an approved TIP and/or STIP to implementation, in 
accordance with agreed upon procedures.
    Provider of freight transportation services means any entity that 
transports or otherwise facilitates the movement of goods from one 
location to another for others or for itself.
    Public transportation operator means the public entity which 
participates in the continuing, cooperative, and comprehensive 
transportation planning process in accordance with 23 U.S.C. 134 and 
135 and 49 U.S.C. 5303 and 5304, and is the designated recipient of 
Federal funds under title 49 U.S.C. Chapter 53 for transportation by a 
conveyance that provides regular and continuing general or special 
transportation to the public, but does not include school bus, charter, 
or intercity bus transportation or intercity passenger rail 
transportation provided by Amtrak.
    Regional ITS architecture means a regional framework for ensuring 
institutional agreement and technical integration for the 
implementation of ITS projects or groups of projects.
    Regionally significant project means a transportation project 
(other than projects that may be grouped in the TIP and/or STIP or 
exempt projects as defined in EPA's transportation

[[Page 7264]]

conformity regulation (40 CFR part 93)) that is on a facility which 
serves regional transportation needs (such as access to and from the 
area outside the region; major activity centers in the region; major 
planned developments such as new retail malls, sports complexes, or 
employment centers; or transportation terminals) and would normally be 
included in the modeling of the metropolitan area's transportation 
network. At a minimum, this includes all principal arterial highways 
and all fixed guideway transit facilities that offer a significant 
alternative to regional highway travel.
    Revision means a change to a long-range statewide or metropolitan 
transportation plan, TIP, or STIP that occurs between scheduled 
periodic updates. A major revision is an ``amendment,'' while a minor 
revision is an ``administrative modification.''
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    State implementation plan (SIP) means, as defined in section 302(q) 
of the Clean Air Act (CAA), the portion (or portions) of the 
implementation plan, or most recent revision thereof, which has been 
approved under section 110 of the CAA, or promulgated under section 
110(c) of the CAA, or promulgated or approved pursuant to regulations 
promulgated under section 301(d) of the CAA and which implements the 
relevant requirements of the CAA.
    Statewide transportation improvement program (STIP) means a 
statewide prioritized listing/program of transportation projects 
covering a period of four years that is consistent with the long-range 
statewide transportation plan, metropolitan transportation plans, and 
TIPs, and required for projects to be eligible for funding under title 
23 U.S.C. and title 49 U.S.C. Chapter 53.
    Strategic highway safety plan means a plan developed by the State 
DOT in accordance with the requirements of 23 U.S.C. 148(a)(6).
    Transportation control measure (TCM) means any measure that is 
specifically identified and committed to in the applicable SIP that is 
either one of the types listed in section 108 of the Clean Air Act or 
any other measure for the purpose of reducing emissions or 
concentrations of air pollutants from transportation sources by 
reducing vehicle use or changing traffic flow or congestion conditions. 
Notwithstanding the above, vehicle technology-based, fuel-based, and 
maintenance-based measures that control the emissions from vehicles 
under fixed traffic conditions are not TCMs.
    Transportation improvement program (TIP) means a prioritized 
listing/program of transportation projects covering a period of four 
years that is developed and formally adopted by an MPO as part of the 
metropolitan transportation planning process, consistent with the 
metropolitan transportation plan, and required for projects to be 
eligible for funding under title 23 U.S.C. and title 49 U.S.C. Chapter 
53.
    Transportation management area (TMA) means an urbanized area with a 
population over 200,000, as defined by the Bureau of the Census and 
designated by the Secretary of Transportation, or any additional area 
where TMA designation is requested by the Governor and the MPO and 
designated by the Secretary of Transportation.
    Unified planning work program (UPWP) means a statement of work 
identifying the planning priorities and activities to be carried out 
within a metropolitan planning area. At a minimum, a UPWP includes a 
description of the planning work and resulting products, who will 
perform the work, time frames for completing the work, the cost of the 
work, and the source(s) of funds.
    Update means making current a long-range statewide transportation 
plan, metropolitan transportation plan, TIP, or STIP through a 
comprehensive review. Updates require public review and comment, a 20-
year horizon year for metropolitan transportation plans and long-range 
statewide transportation plans, a four-year program period for TIPs and 
STIPs, demonstration of fiscal constraint (except for long-range 
statewide transportation plans), and a conformity determination (for 
metropolitan transportation plans and TIPs in nonattainment and 
maintenance areas).
    Urbanized area means a geographic area with a population of 50,000 
or more, as designated by the Bureau of the Census.
    Users of public transportation means any person, or groups 
representing such persons, who use transportation open to the general 
public, other than taxis and other privately funded and operated 
vehicles.
    Visualization techniques means methods used by States and MPOs in 
the development of transportation plans and programs with the public, 
elected and appointed officials, and other stakeholders in a clear and 
easily accessible format such as maps, pictures, and/or displays, to 
promote improved understanding of existing or proposed transportation 
plans and programs.

Subpart B--Statewide Transportation Planning and Programming


Sec.  450.200  Purpose.

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


Sec.  450.202  Applicability.

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


Sec.  450.204  Definitions.

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


Sec.  450.206  Scope of the statewide transportation planning process.

    (a) Each State shall carry out a continuing, cooperative, and 
comprehensive statewide transportation planning process that provides 
for consideration and implementation of projects, strategies, and 
services that will address the following factors:
    (1) Support the economic vitality of the United States, the States, 
metropolitan areas, and non-metropolitan areas, especially by enabling 
global competitiveness, productivity, and efficiency;
    (2) Increase the safety of the transportation system for motorized 
and non-motorized users;
    (3) Increase the security of the transportation system for 
motorized and non-motorized users;

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    (4) Increase accessibility and mobility of people and freight;
    (5) Protect and enhance the environment, promote energy 
conservation, improve the quality of life, and promote consistency 
between transportation improvements and State and local planned growth 
and economic development patterns;
    (6) Enhance the integration and connectivity of the transportation 
system, across and between modes throughout the State, for people and 
freight;
    (7) Promote efficient system management and operation; and
    (8) Emphasize the preservation of the existing transportation 
system.
    (b) Consideration of the planning factors in paragraph (a) of this 
section shall be reflected, as appropriate, in the statewide 
transportation planning process. The degree of consideration and 
analysis of the factors should be based on the scale and complexity of 
many issues, including transportation systems development, land use, 
employment, economic development, human and natural environment, and 
housing and community development.
    (c) The failure to consider any factor specified in paragraph (a) 
of this section shall not be reviewable by any court under title 23 
U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5 U.S.C. Chapter 
5, or title 5 U.S.C Chapter 7 in any matter affecting a long-range 
statewide transportation plan, STIP, project or strategy, or the 
statewide transportation planning process findings.
    (d) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are 
available to the State to accomplish activities in this subpart. At the 
State's option, funds provided under 23 U.S.C. 104(b)(1) and (3) and 
105 and 49 U.S.C. 5307 may also be used. Statewide transportation 
planning activities performed with funds provided under title 23 U.S.C. 
and title 49 U.S.C. Chapter 53 shall be documented in a statewide 
planning work program in accordance with the provisions of 23 CFR part 
420. The work program should include a discussion of the transportation 
planning priorities facing the State.


Sec.  450.208  Coordination of planning process activities.

    (a) In carrying out the statewide transportation planning process, 
each State shall, at a minimum:
    (1) Coordinate planning carried out under this subpart with the 
metropolitan transportation planning activities carried out under 
subpart C of this part for metropolitan areas of the State. The State 
is encouraged to rely on information, studies, or analyses provided by 
MPOs for portions of the transportation system located in metropolitan 
planning areas;
    (2) Coordinate planning carried out under this subpart with 
statewide trade and economic development planning activities and 
related multistate planning efforts;
    (3) Consider the concerns of Federal land management agencies that 
have jurisdiction over land within the boundaries of the State;
    (4) Consider the concerns of local elected and appointed officials 
with responsibilities for transportation in non-metropolitan areas;
    (5) Consider the concerns of Indian Tribal governments that have 
jurisdiction over land within the boundaries of the State;
    (6) Consider related planning activities being conducted outside of 
metropolitan planning areas and between States; and
    (7) Coordinate data collection and analyses with MPOs and public 
transportation operators to support statewide transportation planning 
and programming priorities and decisions.
    (b) The State air quality agency shall coordinate with the State 
department of transportation (State DOT) to develop the transportation 
portion of the State Implementation Plan (SIP) consistent with the 
Clean Air Act (42 U.S.C. 7401 et seq.).
    (c) Two or more States may enter into agreements or compacts, not 
in conflict with any law of the United States, for cooperative efforts 
and mutual assistance in support of activities under this subpart 
related to interstate areas and localities in the States and 
establishing authorities the States consider desirable for making the 
agreements and compacts effective. The right to alter, amend, or repeal 
interstate compacts entered into under this part is expressly reserved.
    (d) States may use any one or more of the management systems (in 
whole or in part) described in 23 CFR part 500.
    (e) States may apply asset management principles and techniques in 
establishing planning goals, defining STIP priorities, and assessing 
transportation investment decisions, including transportation system 
safety, operations, preservation, and maintenance.
    (f) The statewide transportation planning process shall (to the 
maximum extent practicable) be consistent with the development of 
applicable regional intelligent transportation systems (ITS) 
architectures, as defined in 23 CFR part 940.
    (g) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, 5316, and 5317, 
should be coordinated and consistent with the statewide transportation 
planning process.
    (h) The statewide transportation planning process should be 
consistent with the Strategic Highway Safety Plan, as specified in 23 
U.S.C. 148, and other transit safety and security planning and review 
processes, plans, and programs, as appropriate.


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

    (a) In carrying out the statewide transportation planning process, 
including development of the long-range statewide transportation plan 
and the STIP, the State shall develop and use a documented public 
involvement process that provides opportunities for public review and 
comment at key decision points.
    (1) The State's public involvement process at a minimum shall:
    (i) Establish early and continuous public involvement opportunities 
that provide timely information about transportation issues and 
decisionmaking processes to citizens, affected public agencies, 
representatives of public transportation employees, freight shippers, 
private providers of transportation, representatives of users of public 
transportation, representatives of users of pedestrian walkways and 
bicycle transportation facilities, representatives of the disabled, 
providers of freight transportation services, and other interested 
parties;
    (ii) Provide reasonable public access to technical and policy 
information used in the development of the long-range statewide 
transportation plan and the STIP;
    (iii) Provide adequate public notice of public involvement 
activities and time for public review and comment at key decision 
points, including but not limited to a reasonable opportunity to 
comment on the proposed long-range statewide transportation plan and 
STIP;
    (iv) To the maximum extent practicable, ensure that public meetings 
are held at convenient and accessible locations and times;
    (v) To the maximum extent practicable, use visualization techniques 
to describe the proposed long-range statewide transportation plan and 
supporting studies;
    (vi) To the maximum extent practicable, make public information 
available in electronically accessible format and means, such as the 
World Wide Web, as appropriate to afford

[[Page 7266]]

reasonable opportunity for consideration of public information;
    (vii) Demonstrate explicit consideration and response to public 
input during the development of the long-range statewide transportation 
plan and STIP;
    (viii) Include a process for seeking out and considering the needs 
of those traditionally underserved by existing transportation systems, 
such as low-income and minority households, who may face challenges 
accessing employment and other services; and
    (ix) Provide for the periodic review of the effectiveness of the 
public involvement process to ensure that the process provides full and 
open access to all interested parties and revise the process, as 
appropriate.
    (2) The State shall provide for public comment on existing and 
proposed processes for public involvement in the development of the 
long-range statewide transportation plan and the STIP. At a minimum, 
the State shall allow 45 calendar days for public review and written 
comment before the procedures and any major revisions to existing 
procedures are adopted. The State shall provide copies of the approved 
public involvement process document(s) to the FHWA and the FTA for 
informational purposes.
    (b) The State shall provide for non-metropolitan local official 
participation in the development of the long-range statewide 
transportation plan and the STIP. The State shall have a documented 
process(es) for consulting with non-metropolitan local officials 
representing units of general purpose local government and/or local 
officials with responsibility for transportation that is separate and 
discrete from the public involvement process and provides an 
opportunity for their participation in the development of the long-
range statewide transportation plan and the STIP. Although the FHWA and 
the FTA shall not review or approve this consultation process(es), 
copies of the process document(s) shall be provided to the FHWA and the 
FTA for informational purposes.
    (1) At least once every five years (as of February 24, 2006), the 
State shall review and solicit comments from non-metropolitan local 
officials and other interested parties for a period of not less than 60 
calendar days regarding the effectiveness of the consultation process 
and any proposed changes. 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.
    (2) The State, at its discretion, shall be responsible for 
determining whether to adopt any proposed changes. If a proposed change 
is not adopted, the State shall make publicly available its reasons for 
not accepting the proposed change, including notification to non-
metropolitan local officials or their associations.
    (c) For each area of the State under the jurisdiction of an Indian 
Tribal government, the State shall develop the long-range statewide 
transportation plan and STIP in consultation with the Tribal government 
and the Secretary of Interior. States shall, to the extent practicable, 
develop a documented process(es) that outlines roles, responsibilities, 
and key decision points for consulting with Indian Tribal governments 
and Federal land management agencies in the development of the long-
range statewide transportation plan and the STIP.


Sec.  450.212  Transportation planning studies and project development.

    (a) Pursuant to section 1308 of the Transportation Equity Act for 
the 21st Century, TEA-21 (Pub. L. 105-178), a State(s), MPO(s), or 
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the statewide 
transportation planning process. To the extent practicable, development 
of these transportation planning studies shall involve consultation 
with, or joint efforts among, the State(s), MPO(s), and/or public 
transportation operator(s). The results or decisions of these 
transportation planning studies may be used as part of the overall 
project development process consistent with the National Environmental 
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated 
implementing regulations (23 CFR part 771 and 40 CFR parts 1500-1508). 
Specifically, these corridor or subarea studies may result in producing 
any of the following for a proposed transportation project:
    (1) Purpose and need or goals and objective statement(s);
    (2) General travel corridor and/or general mode(s) definition 
(e.g., highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Basic description of the environmental setting; and/or
    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents or other source material produced 
by, or in support of, the transportation planning process described in 
this subpart may be incorporated directly or by reference into 
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:
    (1) The NEPA lead agencies agree that such incorporation will aid 
in establishing or evaluating the purpose and need for the Federal 
action, reasonable alternatives, cumulative or other impacts on the 
human and natural environment, or mitigation of these impacts; and
    (2) The systems-level, corridor, or subarea planning study is 
conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Reasonable opportunity to comment during the statewide 
transportation planning process and development of the corridor or 
subarea planning study;
    (iv) Documentation of relevant decisions in a form that is 
identifiable and available for review during the NEPA scoping process 
and can be appended to or referenced in the NEPA document; and
    (v) The review of the FHWA and the FTA, as appropriate.
    (c) By agreement of the NEPA lead agencies, the above integration 
may be accomplished through tiering (as described in 40 CFR 1502.20), 
incorporating the subarea or corridor planning study into the draft 
Environmental Impact Statement or Environmental Assessment, or other 
means that the NEPA lead agencies deem appropriate. Additional 
information to further explain the linkages between the transportation 
planning and project development/NEPA processes is contained in 
Appendix A to this part, including an explanation that is non-binding 
guidance material.


Sec.  450.214  Development and content of the long-range statewide 
transportation plan.

    (a) The State shall develop a long-range statewide transportation 
plan, with a minimum 20-year forecast period at the time of adoption, 
that provides for the development and implementation of the multimodal 
transportation system for the State. The long-range statewide 
transportation plan shall consider and include, as applicable, elements 
and connections between public transportation, non-motorized modes, 
rail, commercial motor vehicle, waterway, and aviation facilities, 
particularly with respect to intercity travel.
    (b) The long-range statewide transportation plan should include

[[Page 7267]]

capital, operations and management strategies, investments, procedures, 
and other measures to ensure the preservation and most efficient use of 
the existing transportation system. The long-range statewide 
transportation plan may consider projects and strategies that address 
areas or corridors where current or projected congestion threatens the 
efficient functioning of key elements of the State's transportation 
system.
    (c) The long-range statewide transportation plan shall reference, 
summarize, or contain any applicable short-range planning studies; 
strategic planning and/or policy studies; transportation needs studies; 
management systems reports; emergency relief and disaster preparedness 
plans; and any statements of policies, goals, and objectives on issues 
(e.g., transportation, safety, economic development, social and 
environmental effects, or energy) that were relevant to the development 
of the long-range statewide transportation plan.
    (d) The long-range statewide transportation plan should include a 
safety element that incorporates or summarizes the priorities, goals, 
countermeasures, or projects contained in the Strategic Highway Safety 
Plan required by 23 U.S.C. 148.
    (e) The long-range statewide transportation plan should include a 
security element that incorporates or summarizes the priorities, goals, 
or projects set forth in other transit safety and security planning and 
review processes, plans, and programs, as appropriate.
    (f) Within each metropolitan area of the State, the long-range 
statewide transportation plan shall be developed in cooperation with 
the affected MPOs.
    (g) For non-metropolitan areas, the long-range statewide 
transportation plan shall be developed in consultation with affected 
non-metropolitan officials with responsibility for transportation using 
the State's consultation process(es) established under Sec.  
450.210(b).
    (h) For each area of the State under the jurisdiction of an Indian 
Tribal government, the long-range statewide transportation plan shall 
be developed in consultation with the Tribal government and the 
Secretary of the Interior consistent with Sec.  450.210(c).
    (i) The long-range statewide transportation plan shall be 
developed, as appropriate, in consultation with State, Tribal, and 
local agencies responsible for land use management, natural resources, 
environmental protection, conservation, and historic preservation. This 
consultation shall involve comparison of transportation plans to State 
and Tribal conservation plans or maps, if available, and comparison of 
transportation plans to inventories of natural or historic resources, 
if available.
    (j) A long-range statewide transportation plan shall include a 
discussion of potential environmental mitigation activities and 
potential areas to carry out these activities, including activities 
that may have the greatest potential to restore and maintain the 
environmental functions affected by the long-range statewide 
transportation plan. The discussion may focus on policies, programs, or 
strategies, rather than at the project level. The discussion shall be 
developed in consultation with Federal, State, and Tribal land 
management, wildlife, and regulatory agencies. The State may establish 
reasonable timeframes for performing this consultation.
    (k) In developing and updating the long-range statewide 
transportation plan, the State shall provide citizens, affected public 
agencies, representatives of public transportation employees, freight 
shippers, private providers of transportation, representatives of users 
of public transportation, representatives of users of pedestrian 
walkways and bicycle transportation facilities, representatives of the 
disabled, providers of freight transportation services, and other 
interested parties with a reasonable opportunity to comment on the 
proposed long-range statewide transportation plan. In carrying out 
these requirements, the State shall, to the maximum extent practicable, 
utilize the public involvement process described under Sec.  
450.210(a).
    (l) The long-range statewide transportation plan may (but is not 
required to) include a financial plan that demonstrates how the adopted 
long-range statewide transportation plan can be implemented, indicates 
resources from public and private sources that are reasonably expected 
to be made available to carry out the plan, and recommends any 
additional financing strategies for needed projects and programs. In 
addition, for illustrative purposes, the financial plan may (but is not 
required to) include additional projects that would be included in the 
adopted long-range statewide transportation plan if additional 
resources beyond those identified in the financial plan were to become 
available.
    (m) The State shall not be required to select any project from the 
illustrative list of additional projects included in the financial plan 
described in paragraph (l) of this section.
    (n) The long-range statewide transportation plan shall be published 
or otherwise made available, including (to the maximum extent 
practicable) in electronically accessible formats and means, such as 
the World Wide Web, as described in Sec.  450.210(a).
    (o) The State shall continually evaluate, revise, and periodically 
update the long-range statewide transportation plan, as appropriate, 
using the procedures in this section for development and establishment 
of the long-range statewide transportation plan.
    (p) Copies of any new or amended long-range statewide 
transportation plan documents shall be provided to the FHWA and the FTA 
for informational purposes.


Sec.  450.216  Development and content of the statewide transportation 
improvement program (STIP).

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

[[Page 7268]]

the State's consultation process(es) established under Sec.  450.210.
    (d) For each area of the State under the jurisdiction of an Indian 
Tribal government, the STIP shall be developed in consultation with the 
Tribal government and the Secretary of the Interior.
    (e) Federal Lands Highway program TIPs shall be included without 
change in the STIP, directly or by reference, once approved by the FHWA 
pursuant to 23 U.S.C. 204(a) or (j).
    (f) The Governor shall provide all interested parties with a 
reasonable opportunity to comment on the proposed STIP as required by 
Sec.  450.210(a).
    (g) The STIP shall include capital and non-capital surface 
transportation projects (or phases of projects) within the boundaries 
of the State proposed for funding under title 23 U.S.C. and title 49 
U.S.C. Chapter 53 (including transportation enhancements; Federal Lands 
Highway program projects; safety projects included in the State's 
Strategic Highway Safety Plan; trails projects; pedestrian walkways; 
and bicycle facilities), except the following that may (but are not 
required to) be included:
    (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(f), 
49 U.S.C. 5305(d), and 49 U.S.C. 5339;
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) At the State's discretion, State planning and research projects 
funded with National Highway System, Surface Transportation Program, 
and/or Equity Bonus funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) National planning and research projects funded under 49 U.S.C. 
5314; and
    (7) Project management oversight projects funded under 49 U.S.C. 
5327.
    (h) The STIP shall contain all regionally significant projects 
requiring an action by the FHWA or the FTA whether or not the projects 
are to be funded with 23 U.S.C. Chapters 1 and 2 or title 49 U.S.C. 
Chapter 53 funds (e.g., addition of an interchange to the Interstate 
System with State, local, and/or private funds, and congressionally 
designated projects not funded under title 23 U.S.C. or title 49 U.S.C. 
Chapter 53). For informational and conformity purposes, the STIP shall 
include (if appropriate and included in any TIPs) all regionally 
significant projects proposed to be funded with Federal funds other 
than those administered by the FHWA or the FTA, as well as all 
regionally significant projects to be funded with non-Federal funds.
    (i) The STIP shall include for each project or phase (e.g., 
preliminary engineering, environment/NEPA, right-of-way, design, or 
construction) the following:
    (1) Sufficient descriptive material (i.e., type of work, termini, 
and length) to identify the project or phase;
    (2) Estimated total project cost, or a project cost range, which 
may extend beyond the four years of the STIP;
    (3) The amount of Federal funds proposed to be obligated during 
each program year (for the first year, this includes the proposed 
category of Federal funds and source(s) of non-Federal funds. For the 
second, third, and fourth years, this includes the likely category or 
possible categories of Federal funds and sources of non-Federal funds); 
and
    (4) Identification of the agencies responsible for carrying out the 
project or phase.
    (j) Projects that are not considered to be of appropriate scale for 
individual identification in a given program year may be grouped by 
function, work type, and/or geographic area using the applicable 
classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93. 
In nonattainment and maintenance areas, project classifications must be 
consistent with the ``exempt project'' classifications contained in the 
EPA's transportation conformity regulation (40 CFR part 93). In 
addition, projects proposed for funding under title 23 U.S.C. Chapter 2 
that are not regionally significant may be grouped in one line item or 
identified individually in the STIP.
    (k) Each project or project phase included in the STIP shall be 
consistent with the long-range statewide transportation plan developed 
under Sec.  450.214 and, in metropolitan planning areas, consistent 
with an approved metropolitan transportation plan developed under Sec.  
450.322.
    (l) The STIP may include a financial plan that demonstrates how the 
approved STIP can be implemented, indicates resources from public and 
private sources that are reasonably expected to be made available to 
carry out the STIP, and recommends any additional financing strategies 
for needed projects and programs. In addition, for illustrative 
purposes, the financial plan may (but is not required to) include 
additional projects that would be included in the adopted STIP if 
reasonable additional resources beyond those identified in the 
financial plan were to become available. The State is not required to 
select any project from the illustrative list for implementation, and 
projects on the illustrative list cannot be advanced to implementation 
without an action by the FHWA and the FTA on the STIP. Starting 
December 11, 2007, revenue and cost estimates for the STIP must use an 
inflation rate(s) to reflect ``year of expenditure dollars,'' based on 
reasonable financial principles and information, developed 
cooperatively by the State, MPOs, and public transportation operators.
    (m) The STIP shall include a project, or an identified phase of a 
project, only if full funding can reasonably be anticipated to be 
available for the project within the time period contemplated for 
completion of the project. In nonattainment and maintenance areas, 
projects included in the first two years of the STIP shall be limited 
to those for which funds are available or committed. Financial 
constraint of the STIP shall be demonstrated and maintained by year and 
shall include sufficient financial information to demonstrate which 
projects are to be implemented using current and/or reasonably 
available revenues, while federally-supported facilities are being 
adequately operated and maintained. In the case of proposed funding 
sources, strategies for ensuring their availability shall be identified 
in the financial plan consistent with paragraph (l) of this section. 
For purposes of transportation operations and maintenance, the STIP 
shall include financial information containing system-level estimates 
of costs and revenue sources that are reasonably expected to be 
available to adequately operate and maintain Federal-aid highways (as 
defined by 23 U.S.C. 101(a)(5)) and public transportation (as defined 
by title 49 U.S.C. Chapter 53).
    (n) Projects in any of the first four years of the STIP may be 
advanced in place of another project in the first four years of the 
STIP, subject to the project selection requirements of Sec.  450.220. 
In addition, the STIP may be revised at any time under procedures 
agreed to by the State, MPO(s), and public transportation operator(s) 
consistent with the STIP development procedures established in this 
section, as well as the procedures for participation by interested 
parties (see Sec.  450.210(a)), subject to FHWA/FTA approval (see Sec.  
450.218). Changes that affect fiscal constraint must take place by 
amendment of the STIP.
    (o) In cases that the FHWA and the FTA find a STIP to be fiscally 
constrained and a revenue source is subsequently removed or 
substantially reduced (i.e., by legislative or

[[Page 7269]]

administrative actions), the FHWA and the FTA will not withdraw the 
original determination of fiscal constraint. However, in such cases, 
the FHWA and the FTA will not act on an updated or amended STIP that 
does not reflect the changed revenue situation.


Sec.  450.218  Self-certifications, Federal findings, and Federal 
approvals.

    (a) At least every four years, the State shall submit an updated 
STIP concurrently to the FHWA and the FTA for joint approval. STIP 
amendments shall also be submitted to the FHWA and the FTA for joint 
approval. At the time the entire proposed STIP or STIP amendments are 
submitted to the FHWA and the FTA for joint approval, the State shall 
certify that the transportation planning process is being carried out 
in accordance with all applicable requirements of:
    (1) 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 5304, and this part;
    (2) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000d-1) and 49 CFR part 21;
    (3) 49 U.S.C. 5332, prohibiting discrimination on the basis of 
race, color, creed, national origin, sex, or age in employment or 
business opportunity;
    (4) Section 1101(b) of the SAFETEA-LU (Pub. L. 109-59) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in USDOT funded projects;
    (5) 23 CFR part 230, regarding implementation of an equal 
employment opportunity program on Federal and Federal-aid highway 
construction contracts;
    (6) The provisions of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
    (7) In States containing nonattainment and maintenance areas, 
sections 174 and 176 (c) and (d) of the Clean Air Act, as amended (42 
U.S.C. 7504, 7506 (c) and (d)) and 40 CFR part 93;
    (8) The Older Americans Act, as amended (42 U.S.C. 6101), 
prohibiting discrimination on the basis of age in programs or 
activities receiving Federal financial assistance;
    (9) Section 324 of title 23 U.S.C., regarding the prohibition of 
discrimination based on gender; and
    (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 27 regarding discrimination against individuals with 
disabilities.
    (b) The FHWA and the FTA shall review the STIP or the amended STIP, 
and make a joint finding on the extent to which the STIP is based on a 
statewide transportation planning process that meets or substantially 
meets the requirements of 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 
5304, and subparts A, B, and C of this part. Approval of the STIP by 
the FHWA and the FTA, in its entirety or in part, will be based upon 
the results of this joint finding.
    (1) If the FHWA and the FTA determine that the STIP or amended STIP 
is based on a statewide transportation planning process that meets or 
substantially meets the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, 
and this part, the FHWA and the FTA may jointly:
    (i) Approve the entire STIP;
    (ii) Approve the STIP subject to certain corrective actions being 
taken; or
    (iii) Under special circumstances, approve a partial STIP covering 
only a portion of the State.
    (2) If the FHWA and the FTA jointly determine and document in the 
planning finding that a submitted STIP or amended STIP does not 
substantially meet the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, 
and this part for any identified categories of projects, the FHWA and 
the FTA will not approve the STIP.
    (c) The approval period for a new or amended STIP shall not exceed 
four years. If a State demonstrates, in writing, that extenuating 
circumstances will delay the submittal of a new or amended STIP past 
its update deadline, the FHWA and the FTA will consider and take 
appropriate action on a request to extend the approval beyond four 
years for all or part of the STIP for a period not to exceed 180 
calendar days. In these cases, priority consideration will be given to 
projects and strategies involving the operation and management of the 
multimodal transportation system. Where the request involves projects 
in a metropolitan planning area(s), the affected MPO(s) must concur in 
the request. If the delay was due to the development and approval of a 
metropolitan TIP(s), the affected MPO(s) must provide supporting 
information, in writing, for the request.
    (d) Where necessary in order to maintain or establish highway and 
transit operations, the FHWA and the FTA may approve operating 
assistance for specific projects or programs, even though the projects 
or programs may not be included in an approved STIP.


Sec.  450.220  Project selection from the STIP.

    (a) Except as provided in Sec.  450.216(g) and Sec.  450.218(d), 
only projects in a FHWA/FTA approved STIP shall be eligible for funds 
administered by the FHWA or the FTA.
    (b) In metropolitan planning areas, transportation projects 
proposed for funds administered by the FHWA or the FTA shall be 
selected from the approved STIP in accordance with project selection 
procedures provided in Sec.  450.330.
    (c) In non-metropolitan areas, transportation projects undertaken 
on the National Highway System, under the Bridge and Interstate 
Maintenance programs in title 23 U.S.C. and under sections 5310, 5311, 
5316, and 5317 of title 49 U.S.C. Chapter 53 shall be selected from the 
approved STIP by the State in consultation with the affected non-
metropolitan local officials with responsibility for transportation.
    (d) Federal Lands Highway program projects shall be selected from 
the approved STIP in accordance with the procedures developed pursuant 
to 23 U.S.C. 204.
    (e) The projects in the first year of an approved STIP shall 
constitute an ``agreed to'' list of projects for subsequent scheduling 
and implementation. No further action under paragraphs (b) through (d) 
of this section is required for the implementing agency to proceed with 
these projects. If Federal funds available are significantly less than 
the authorized amounts, or where there is significant shifting of 
projects among years, Sec.  450.330(a) provides for a revised list of 
``agreed to'' projects to be developed upon the request of the State, 
MPO, or public transportation operator(s). If an implementing agency 
wishes to proceed with a project in the second, third, or fourth year 
of the STIP, the procedures in paragraphs (b) through (d) of this 
section or expedited procedures that provide for the advancement of 
projects from the second, third, or fourth years of the STIP may be 
used, if agreed to by all parties involved in the selection process.


Sec.  450.222  Applicability of NEPA to statewide transportation plans 
and programs.

    Any decision by the Secretary concerning a long-range statewide 
transportation plan or STIP developed through the processes provided 
for in 23 U.S.C. 135, 49 U.S.C. 5304, and this subpart shall not be 
considered to be a Federal action subject to review under NEPA.


Sec.  450.224  Phase-in of new requirements.

    (a) Long-range statewide transportation plans and STIPs adopted or 
approved prior to July 1, 2007 may be developed using the TEA-21 
requirements or the provisions and requirements of this part.

[[Page 7270]]

    (b) For STIPs that are developed under TEA-21 requirements prior to 
July 1, 2007, the FHWA/FTA action (i.e., STIP approval) must be 
completed no later than June 30, 2007. For long-range statewide 
transportation plans that are completed under TEA-21 requirements prior 
to July 1, 2007, the State adoption action must be completed no later 
than June 30, 2007. If these actions are completed on or after July 1, 
2007, the provisions and requirements of this part shall take effect, 
regardless of when the long-range statewide transportation plan or the 
STIP were developed.
    (c) The applicable action (see paragraph (b) of this section) on 
any amendments or updates to STIPs or long-range statewide 
transportation plans on or after July 1, 2007, shall be based on the 
provisions and requirements of this part. However, administrative 
modifications may be made to the STIP on or after July 1, 2007 in the 
absence of meeting the provisions and requirements of this part.

Subpart C--Metropolitan Transportation Planning and Programming


Sec.  450.300  Purpose.

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


Sec.  450.302  Applicability.

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


Sec.  450.304  Definitions.

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


Sec.  450.306  Scope of the metropolitan transportation planning 
process.

    (a) The metropolitan transportation planning process shall be 
continuous, cooperative, and comprehensive, and provide for 
consideration and implementation of projects, strategies, and services 
that will address the following factors:
    (1) Support the economic vitality of the metropolitan area, 
especially by enabling global competitiveness, productivity, and 
efficiency;
    (2) Increase the safety of the transportation system for motorized 
and non-motorized users;
    (3) Increase the security of the transportation system for 
motorized and non-motorized users;
    (4) Increase accessibility and mobility of people and freight;
    (5) Protect and enhance the environment, promote energy 
conservation, improve the quality of life, and promote consistency 
between transportation improvements and State and local planned growth 
and economic development patterns;
    (6) Enhance the integration and connectivity of the transportation 
system, across and between modes, for people and freight;
    (7) Promote efficient system management and operation; and
    (8) Emphasize the preservation of the existing transportation 
system.
    (b) Consideration of the planning factors in paragraph (a) of this 
section shall be reflected, as appropriate, in the metropolitan 
transportation planning process. The degree of consideration and 
analysis of the factors should be based on the scale and complexity of 
many issues, including transportation system development, land use, 
employment, economic development, human and natural environment, and 
housing and community development.
    (c) The failure to consider any factor specified in paragraph (a) 
of this section shall not be reviewable by any court under title 23 
U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5, U.S.C. Chapter 
5, or title 5 U.S.C. Chapter 7 in any matter affecting a metropolitan 
transportation plan, TIP, a project or strategy, or the certification 
of a metropolitan transportation planning process.
    (d) The metropolitan transportation planning process shall be 
carried out in coordination with the statewide transportation planning 
process required by 23 U.S.C. 135 and 49 U.S.C. 5304.
    (e) In carrying out the metropolitan transportation planning 
process, MPOs, States, and public transportation operators may apply 
asset management principles and techniques in establishing planning 
goals, defining TIP priorities, and assessing transportation investment 
decisions, including transportation system safety, operations, 
preservation, and maintenance, as well as strategies and policies to 
support homeland security and to safeguard the personal security of all 
motorized and non-motorized users.
    (f) The metropolitan transportation planning process shall (to the 
maximum extent practicable) be consistent with the development of 
applicable regional intelligent transportation systems (ITS) 
architectures, as defined in 23 CFR part 940.
    (g) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, 5316, and 5317, 
should be coordinated and consistent with the metropolitan 
transportation planning process.
    (h) The metropolitan transportation planning process should be 
consistent with the Strategic Highway Safety Plan, as specified in 23 
U.S.C. 148, and other transit safety and security planning and review 
processes, plans, and programs, as appropriate.
    (i) The FHWA and the FTA shall designate as a transportation 
management area (TMA) each urbanized area with a population of over 
200,000 individuals, as defined by the Bureau of the Census. The FHWA 
and the FTA shall also designate any additional urbanized area as a TMA 
on the request of the Governor and the MPO designated for that area.
    (j) In an urbanized area not designated as a TMA that is an air 
quality attainment area, the MPO(s) may propose and submit to the FHWA 
and the FTA for approval a procedure for developing an abbreviated 
metropolitan transportation plan and TIP. In developing proposed 
simplified planning procedures, consideration shall be given to whether 
the abbreviated metropolitan transportation plan and TIP will achieve 
the purposes of 23 U.S.C. 134, 49 U.S.C. 5303, and these regulations, 
taking into account the complexity of the transportation problems in 
the area. The simplified procedures shall be developed by the MPO in 
cooperation with the State(s) and public transportation operator(s).

[[Page 7271]]

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

    (a) Funds provided under 23 U.S.C. 104(f), 49 U.S.C. 5305(d), 49 
U.S.C. 5307, and 49 U.S.C. 5339 are available to MPOs to accomplish 
activities in this subpart. At the State's option, funds provided under 
23 U.S.C. 104(b)(1) and (b)(3) and 23 U.S.C. 105 may also be provided 
to MPOs for metropolitan transportation planning. In addition, an MPO 
serving an urbanized area with a population over 200,000, as designated 
by the Bureau of the Census, may at its discretion use funds sub-
allocated under 23 U.S.C. 133(d)(3)(E) for metropolitan transportation 
planning activities.
    (b) Metropolitan transportation planning activities performed with 
funds provided under title 23 U.S.C. and title 49 U.S.C. Chapter 53 
shall be documented in a unified planning work program (UPWP) or 
simplified statement of work in accordance with the provisions of this 
section and 23 CFR part 420.
    (c) Except as provided in paragraph (d) of this section, each MPO, 
in cooperation with the State(s) and public transportation operator(s), 
shall develop a UPWP that includes a discussion of the planning 
priorities facing the MPA. The UPWP shall identify work proposed for 
the next one- or two-year period by major activity and task (including 
activities that address the planning factors in Sec.  450.306(a)), in 
sufficient detail to indicate who (e.g., MPO, State, public 
transportation operator, local government, or consultant) will perform 
the work, the schedule for completing the work, the resulting products, 
the proposed funding by activity/task, and a summary of the total 
amounts and sources of Federal and matching funds.
    (d) With the prior approval of the State and the FHWA and the FTA, 
an MPO in an area not designated as a TMA may prepare a simplified 
statement of work, in cooperation with the State(s) and the public 
transportation operator(s), in lieu of a UPWP. A simplified statement 
of work would include a description of the major activities to be 
performed during the next one- or two-year period, who (e.g., State, 
MPO, public transportation operator, local government, or consultant) 
will perform the work, the resulting products, and a summary of the 
total amounts and sources of Federal and matching funds. If a 
simplified statement of work is used, it may be submitted as part of 
the State's planning work program, in accordance with 23 CFR part 420.
    (e) Arrangements may be made with the FHWA and the FTA to combine 
the UPWP or simplified statement of work with the work program(s) for 
other Federal planning funds.
    (f) Administrative requirements for UPWPs and simplified statements 
of work are contained in 23 CFR part 420 and FTA Circular C8100.1B 
(Program Guidance and Application Instructions for Metropolitan 
Planning Grants).


Sec.  450.310  Metropolitan planning organization designation and 
redesignation.

    (a) To carry out the metropolitan transportation planning process 
under this subpart, a metropolitan planning organization (MPO) shall be 
designated for each urbanized area with a population of more than 
50,000 individuals (as determined by the Bureau of the Census).
    (b) MPO designation shall be made by agreement between the Governor 
and units of general purpose local government that together represent 
at least 75 percent of the affected population (including the largest 
incorporated city, based on population, as named by the Bureau of the 
Census) or in accordance with procedures established by applicable 
State or local law.
    (c) Each Governor with responsibility for a portion of a multistate 
metropolitan area and the appropriate MPOs shall, to the extent 
practicable, provide coordinated transportation planning for the entire 
MPA. The consent of Congress is granted to any two or more States to:
    (1) Enter into agreements or compacts, not in conflict with any law 
of the United States, for cooperative efforts and mutual assistance in 
support of activities authorized under 23 U.S.C. 134 and 49 U.S.C. 5303 
as the activities pertain to interstate areas and localities within the 
States; and
    (2) Establish such agencies, joint or otherwise, as the States may 
determine desirable for making the agreements and compacts effective.
    (d) Each MPO that serves a TMA, when designated or redesignated 
under this section, shall consist of local elected officials, officials 
of public agencies that administer or operate major modes of 
transportation in the metropolitan planning area, and appropriate State 
transportation officials. Where appropriate, MPOs may increase the 
representation of local elected officials, public transportation 
agencies, or appropriate State officials on their policy boards and 
other committees as a means for encouraging greater involvement in the 
metropolitan transportation planning process, subject to the 
requirements of paragraph (k) of this section.
    (e) To the extent possible, only one MPO shall be designated for 
each urbanized area or group of contiguous urbanized areas. More than 
one MPO may be designated to serve an urbanized area only if the 
Governor(s) and the existing MPO, if applicable, determine that the 
size and complexity of the urbanized area make designation of more than 
one MPO appropriate. In those cases where two or more MPOs serve the 
same urbanized area, the MPOs shall establish official, written 
agreements that clearly identify areas of coordination and the division 
of transportation planning responsibilities among the MPOs.
    (f) Nothing in this subpart shall be deemed to prohibit an MPO from 
using the staff resources of other agencies, non-profit organizations, 
or contractors to carry out selected elements of the metropolitan 
transportation planning process.
    (g) An MPO designation shall remain in effect until an official 
redesignation has been made in accordance with this section.
    (h) An existing MPO may be redesignated only by agreement between 
the Governor and units of general purpose local government that 
together represent at least 75 percent of the existing metropolitan 
planning area population (including the largest incorporated city, 
based on population, as named by the Bureau of the Census).
    (i) Redesignation of an MPO serving a multistate metropolitan 
planning area requires agreement between the Governors of each State 
served by the existing MPO and units of general purpose local 
government that together represent at least 75 percent of the existing 
metropolitan planning area population (including the largest 
incorporated city, based on population, as named by the Bureau of the 
Census).
    (j) For the purposes of redesignation, units of general purpose 
local government may be defined as elected officials from each unit of 
general purpose local government located within the metropolitan 
planning area served by the existing MPO.
    (k) Redesignation of an MPO (in accordance with the provisions of 
this section) is required whenever the existing MPO proposes to make:
    (1) A substantial change in the proportion of voting members on the 
existing MPO representing the largest incorporated city, other units of 
general purpose local government served by the MPO, and the State(s); 
or
    (2) A substantial change in the decisionmaking authority or

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responsibility of the MPO, or in decisionmaking procedures established 
under MPO by-laws.
    (l) The following changes to an MPO do not require a redesignation 
(as long as they do not trigger a substantial change as described in 
paragraph (k) of the section):
    (1) The identification of a new urbanized area (as determined by 
the Bureau of the Census) within an existing metropolitan planning 
area;
    (2) Adding members to the MPO that represent new units of general 
purpose local government resulting from expansion of the metropolitan 
planning area;
    (3) Adding members to satisfy the specific membership requirements 
for an MPO that serves a TMA; or
    (4) Periodic rotation of members representing units of general-
purpose local government, as established under MPO by-laws.


Sec.  450.312  Metropolitan planning area boundaries.

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


Sec.  450.314  Metropolitan planning agreements.

    (a) The MPO, the State(s), and the public transportation 
operator(s) shall cooperatively determine their mutual responsibilities 
in carrying out the metropolitan transportation planning process. These 
responsibilities shall be clearly identified in written agreements 
among the MPO, the State(s), and the public transportation operator(s) 
serving the MPA. To the extent possible, a single agreement between all 
responsible parties should be developed. The written agreement(s) shall 
include specific provisions for cooperatively developing and sharing 
information related to the development of financial plans that support 
the metropolitan transportation plan (see Sec.  450.322) and the 
metropolitan TIP (see Sec.  450.324) and development of the annual 
listing of obligated projects (see Sec.  450.332).
    (b) If the MPA does not include the entire nonattainment or 
maintenance area, there shall be a written agreement among the State 
department of transportation, State air quality agency, affected local 
agencies, and the MPO describing the process for cooperative planning 
and analysis of all projects outside the MPA within the nonattainment 
or maintenance area. The agreement must also indicate how the total 
transportation-related emissions for the nonattainment or maintenance 
area, including areas outside the MPA, will be treated for the purposes 
of determining conformity in accordance with the EPA's transportation 
conformity rule (40 CFR part 93). The agreement shall address policy 
mechanisms for resolving conflicts concerning transportation-related 
emissions that may arise between the MPA and the portion of the 
nonattainment or maintenance area outside the MPA.
    (c) In nonattainment or maintenance areas, if the MPO is not the 
designated agency for air quality planning under section 174 of the 
Clean Air Act (42 U.S.C. 7504), there shall be a written agreement 
between the MPO and the designated air quality planning agency 
describing their respective roles and responsibilities for air quality 
related transportation planning.
    (d) If more than one MPO has been designated to serve an urbanized 
area, there shall be a written agreement among the MPOs, the State(s), 
and the public transportation operator(s) describing how the 
metropolitan transportation planning processes will be coordinated to 
assure the development of consistent metropolitan transportation plans 
and TIPs across the MPA boundaries, particularly in cases in which a 
proposed transportation investment extends across the boundaries of 
more than one MPA. If any part of the urbanized area is a nonattainment 
or maintenance area, the agreement also shall include State and local 
air quality agencies. The

[[Page 7273]]

metropolitan transportation planning processes for affected MPOs 
should, to the maximum extent possible, reflect coordinated data 
collection, analysis, and planning assumptions across the MPAs. 
Alternatively, a single metropolitan transportation plan and/or TIP for 
the entire urbanized area may be developed jointly by the MPOs in 
cooperation with their respective planning partners. Coordination 
efforts and outcomes shall be documented in subsequent transmittals of 
the UPWP and other planning products, including the metropolitan 
transportation plan and TIP, to the State(s), the FHWA, and the FTA.
    (e) Where the boundaries of the urbanized area or MPA extend across 
two or more States, the Governors with responsibility for a portion of 
the multistate area, the appropriate MPO(s), and the public 
transportation operator(s) shall coordinate transportation planning for 
the entire multistate area. States involved in such multistate 
transportation planning may:
    (1) Enter into agreements or compacts, not in conflict with any law 
of the United States, for cooperative efforts and mutual assistance in 
support of activities authorized under this section as the activities 
pertain to interstate areas and localities within the States; and
    (2) Establish such agencies, joint or otherwise, as the States may 
determine desirable for making the agreements and compacts effective.
    (f) If part of an urbanized area that has been designated as a TMA 
overlaps into an adjacent MPA serving an urbanized area that is not 
designated as a TMA, the adjacent urbanized area shall not be treated 
as a TMA. However, a written agreement shall be established between the 
MPOs with MPA boundaries including a portion of the TMA, which clearly 
identifies the roles and responsibilities of each MPO in meeting 
specific TMA requirements (e.g., congestion management process, Surface 
Transportation Program funds suballocated to the urbanized area over 
200,000 population, and project selection).


Sec.  450.316  Interested parties, participation, and consultation.

    (a) The MPO shall develop and use a documented participation plan 
that defines a process for providing citizens, affected public 
agencies, representatives of public transportation employees, freight 
shippers, providers of freight transportation services, private 
providers of transportation, representatives of users of public 
transportation, representatives of users of pedestrian walkways and 
bicycle transportation facilities, representatives of the disabled, and 
other interested parties with reasonable opportunities to be involved 
in the metropolitan transportation planning process.
    (1) The participation plan shall be developed by the MPO in 
consultation with all interested parties and shall, at a minimum, 
describe explicit procedures, strategies, and desired outcomes for:
    (i) Providing adequate public notice of public participation 
activities and time for public review and comment at key decision 
points, including but not limited to a reasonable opportunity to 
comment on the proposed metropolitan transportation plan and the TIP;
    (ii) Providing timely notice and reasonable access to information 
about transportation issues and processes;
    (iii) Employing visualization techniques to describe metropolitan 
transportation plans and TIPs;
    (iv) Making public information (technical information and meeting 
notices) available in electronically accessible formats and means, such 
as the World Wide Web;
    (v) Holding any public meetings at convenient and accessible 
locations and times;
    (vi) Demonstrating explicit consideration and response to public 
input received during the development of the metropolitan 
transportation plan and the TIP;
    (vii) Seeking out and considering the needs of those traditionally 
underserved by existing transportation systems, such as low-income and 
minority households, who may face challenges accessing employment and 
other services;
    (viii) Providing an additional opportunity for public comment, if 
the final metropolitan transportation plan or TIP differs significantly 
from the version that was made available for public comment by the MPO 
and raises new material issues which interested parties could not 
reasonably have foreseen from the public involvement efforts;
    (ix) Coordinating with the statewide transportation planning public 
involvement and consultation processes under subpart B of this part; 
and
    (x) Periodically reviewing the effectiveness of the procedures and 
strategies contained in the participation plan to ensure a full and 
open participation process.
    (2) When significant written and oral comments are received on the 
draft metropolitan transportation plan and TIP (including the financial 
plans) as a result of the participation process in this section or the 
interagency consultation process required under the EPA transportation 
conformity regulations (40 CFR part 93), a summary, analysis, and 
report on the disposition of comments shall be made as part of the 
final metropolitan transportation plan and TIP.
    (3) A minimum public comment period of 45 calendar days shall be 
provided before the initial or revised participation plan is adopted by 
the MPO. Copies of the approved participation plan shall be provided to 
the FHWA and the FTA for informational purposes and shall be posted on 
the World Wide Web, to the maximum extent practicable.
    (b) In developing metropolitan transportation plans and TIPs, the 
MPO should consult with agencies and officials responsible for other 
planning activities within the MPA that are affected by transportation 
(including State and local planned growth, economic development, 
environmental protection, airport operations, or freight movements) or 
coordinate its planning process (to the maximum extent practicable) 
with such planning activities. In addition, metropolitan transportation 
plans and TIPs shall be developed with due consideration of other 
related planning activities within the metropolitan area, and the 
process shall provide for the design and delivery of transportation 
services within the area that are provided by:
    (1) Recipients of assistance under title 49 U.S.C. Chapter 53;
    (2) Governmental agencies and non-profit organizations (including 
representatives of the agencies and organizations) that receive Federal 
assistance from a source other than the U.S. Department of 
Transportation to provide non-emergency transportation services; and
    (3) Recipients of assistance under 23 U.S.C. 204.
    (c) When the MPA includes Indian Tribal lands, the MPO shall 
appropriately involve the Indian Tribal government(s) in the 
development of the metropolitan transportation plan and the TIP.
    (d) When the MPA includes Federal public lands, the MPO shall 
appropriately involve the Federal land management agencies in the 
development of the metropolitan transportation plan and the TIP.
    (e) MPOs shall, to the extent practicable, develop a documented 
process(es) that outlines roles, responsibilities, and key decision 
points for consulting with other governments and agencies, as defined 
in paragraphs (b), (c), and (d) of this section, which

[[Page 7274]]

may be included in the agreement(s) developed under Sec.  450.314.


Sec.  450.318  Transportation planning studies and project development.

    (a) Pursuant to section 1308 of the Transportation Equity Act for 
the 21st Century, TEA-21 (Pub. L. 105-178), an MPO(s), State(s), or 
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the metropolitan 
transportation planning process. To the extent practicable, development 
of these transportation planning studies shall involve consultation 
with, or joint efforts among, the MPO(s), State(s), and/or public 
transportation operator(s). The results or decisions of these 
transportation planning studies may be used as part of the overall 
project development process consistent with the National Environmental 
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated 
implementing regulations (23 CFR part 771 and 40 CFR parts 1500-1508). 
Specifically, these corridor or subarea studies may result in producing 
any of the following for a proposed transportation project:
    (1) Purpose and need or goals and objective statement(s);
    (2) General travel corridor and/or general mode(s) definition 
(e.g., highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Basic description of the environmental setting; and/or
    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents or other source material produced 
by, or in support of, the transportation planning process described in 
this subpart may be incorporated directly or by reference into 
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:
    (1) The NEPA lead agencies agree that such incorporation will aid 
in establishing or evaluating the purpose and need for the Federal 
action, reasonable alternatives, cumulative or other impacts on the 
human and natural environment, or mitigation of these impacts; and
    (2) The systems-level, corridor, or subarea planning study is 
conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Reasonable opportunity to comment during the metropolitan 
transportation planning process and development of the corridor or 
subarea planning study;
    (iv) Documentation of relevant decisions in a form that is 
identifiable and available for review during the NEPA scoping process 
and can be appended to or referenced in the NEPA document; and
    (v) The review of the FHWA and the FTA, as appropriate.
    (c) By agreement of the NEPA lead agencies, the above integration 
may be accomplished through tiering (as described in 40 CFR 1502.20), 
incorporating the subarea or corridor planning study into the draft 
Environmental Impact Statement (EIS) or Environmental Assessment, or 
other means that the NEPA lead agencies deem appropriate.
    (d) For transit fixed guideway projects requiring an Alternatives 
Analysis (49 U.S.C. 5309(d) and (e)), the Alternatives Analysis 
described in 49 CFR part 611 constitutes the planning required by 
section 1308 of the TEA-21. The Alternatives Analysis may or may not be 
combined with the preparation of a NEPA document (e.g., a draft EIS). 
When an Alternatives Analysis is separate from the preparation of a 
NEPA document, the results of the Alternatives Analysis may be used 
during a subsequent environmental review process as described in 
paragraph (a).
    (e) Additional information to further explain the linkages between 
the transportation planning and project development/NEPA processes is 
contained in Appendix A to this part, including an explanation that it 
is non-binding guidance material.


Sec.  450.320  Congestion management process in transportation 
management areas.

    (a) The transportation planning process in a TMA shall address 
congestion management through a process that provides for safe and 
effective integrated management and operation of the multimodal 
transportation system, based on a cooperatively developed and 
implemented metropolitan-wide strategy, of new and existing 
transportation facilities eligible for funding under title 23 U.S.C. 
and title 49 U.S.C. Chapter 53 through the use of travel demand 
reduction and operational management strategies.
    (b) The development of a congestion management process should 
result in multimodal system performance measures and strategies that 
can be reflected in the metropolitan transportation plan and the TIP. 
The level of system performance deemed acceptable by State and local 
transportation officials may vary by type of transportation facility, 
geographic location (metropolitan area or subarea), and/or time of day. 
In addition, consideration should be given to strategies that manage 
demand, reduce single occupant vehicle (SOV) travel, and improve 
transportation system management and operations. Where the addition of 
general purpose lanes is determined to be an appropriate congestion 
management strategy, explicit consideration is to be given to the 
incorporation of appropriate features into the SOV project to 
facilitate future demand management strategies and operational 
improvements that will maintain the functional integrity and safety of 
those lanes.
    (c) The congestion management process shall be developed, 
established, and implemented as part of the metropolitan transportation 
planning process that includes coordination with transportation system 
management and operations activities. The congestion management process 
shall include:
    (1) Methods to monitor and evaluate the performance of the 
multimodal transportation system, identify the causes of recurring and 
non-recurring congestion, identify and evaluate alternative strategies, 
provide information supporting the implementation of actions, and 
evaluate the effectiveness of implemented actions;
    (2) Definition of congestion management objectives and appropriate 
performance measures to assess the extent of congestion and support the 
evaluation of the effectiveness of congestion reduction and mobility 
enhancement strategies for the movement of people and goods. Since 
levels of acceptable system performance may vary among local 
communities, performance measures should be tailored to the specific 
needs of the area and established cooperatively by the State(s), 
affected MPO(s), and local officials in consultation with the operators 
of major modes of transportation in the coverage area;
    (3) Establishment of a coordinated program for data collection and 
system performance monitoring to define the extent and duration of 
congestion, to contribute in determining the causes of congestion, and 
evaluate the efficiency and effectiveness of implemented actions. To 
the extent possible, this data collection program should be coordinated 
with existing data sources (including archived operational/ITS data) 
and coordinated with operations managers in the metropolitan area;

[[Page 7275]]

    (4) Identification and evaluation of the anticipated performance 
and expected benefits of appropriate congestion management strategies 
that will contribute to the more effective use and improved safety of 
existing and future transportation systems based on the established 
performance measures. The following categories of strategies, or 
combinations of strategies, are some examples of what should be 
appropriately considered for each area:
    (i) Demand management measures, including growth management and 
congestion pricing;
    (ii) Traffic operational improvements;
    (iii) Public transportation improvements;
    (iv) ITS technologies as related to the regional ITS architecture; 
and
    (v) Where necessary, additional system capacity;
    (5) Identification of an implementation schedule, implementation 
responsibilities, and possible funding sources for each strategy (or 
combination of strategies) proposed for implementation; and
    (6) Implementation of a process for periodic assessment of the 
effectiveness of implemented strategies, in terms of the area's 
established performance measures. The results of this evaluation shall 
be provided to decisionmakers and the public to provide guidance on 
selection of effective strategies for future implementation.
    (d) In a TMA designated as nonattainment area for ozone or carbon 
monoxide pursuant to the Clean Air Act, Federal funds may not be 
programmed for any project that will result in a significant increase 
in the carrying capacity for SOVs (i.e., a new general purpose highway 
on a new location or adding general purpose lanes, with the exception 
of safety improvements or the elimination of bottlenecks), unless the 
project is addressed through a congestion management process meeting 
the requirements of this section.
    (e) In TMAs designated as nonattainment for ozone or carbon 
monoxide, the congestion management process shall provide an 
appropriate analysis of reasonable (including multimodal) travel demand 
reduction and operational management strategies for the corridor in 
which a project that will result in a significant increase in capacity 
for SOVs (as described in paragraph (d) of this section) is proposed to 
be advanced with Federal funds. If the analysis demonstrates that 
travel demand reduction and operational management strategies cannot 
fully satisfy the need for additional capacity in the corridor and 
additional SOV capacity is warranted, then the congestion management 
process shall identify all reasonable strategies to manage the SOV 
facility safely and effectively (or to facilitate its management in the 
future). Other travel demand reduction and operational management 
strategies appropriate for the corridor, but not appropriate for 
incorporation into the SOV facility itself, shall also be identified 
through the congestion management process. All identified reasonable 
travel demand reduction and operational management strategies shall be 
incorporated into the SOV project or committed to by the State and MPO 
for implementation.
    (f) State laws, rules, or regulations pertaining to congestion 
management systems or programs may constitute the congestion management 
process, if the FHWA and the FTA find that the State laws, rules, or 
regulations are consistent with, and fulfill the intent of, the 
purposes of 23 U.S.C. 134 and 49 U.S.C. 5303.


Sec.  450.322  Development and content of the metropolitan 
transportation plan.

    (a) The metropolitan transportation planning process shall include 
the development of a transportation plan addressing no less than a 20-
year planning horizon as of the effective date. In nonattainment and 
maintenance areas, the effective date of the transportation plan shall 
be the date of a conformity determination issued by the FHWA and the 
FTA. In attainment areas, the effective date of the transportation plan 
shall be its date of adoption by the MPO.
    (b) The transportation plan shall include both long-range and 
short-range strategies/actions that lead to the development of an 
integrated multimodal transportation system to facilitate the safe and 
efficient movement of people and goods in addressing current and future 
transportation demand.
    (c) The MPO shall review and update the transportation plan at 
least every four years in air quality nonattainment and maintenance 
areas and at least every five years in attainment areas to confirm the 
transportation plan's validity and consistency with current and 
forecasted transportation and land use conditions and trends and to 
extend the forecast period to at least a 20-year planning horizon. In 
addition, the MPO may revise the transportation plan at any time using 
the procedures in this section without a requirement to extend the 
horizon year. The transportation plan (and any revisions) shall be 
approved by the MPO and submitted for information purposes to the 
Governor. Copies of any updated or revised transportation plans must be 
provided to the FHWA and the FTA.
    (d) In metropolitan areas that are in nonattainment for ozone or 
carbon monoxide, the MPO shall coordinate the development of the 
metropolitan transportation plan with the process for developing 
transportation control measures (TCMs) in a State Implementation Plan 
(SIP).
    (e) The MPO, the State(s), and the public transportation 
operator(s) shall validate data utilized in preparing other existing 
modal plans for providing input to the transportation plan. In updating 
the transportation plan, the MPO shall base the update on the latest 
available estimates and assumptions for population, land use, travel, 
employment, congestion, and economic activity. The MPO shall approve 
transportation plan contents and supporting analyses produced by a 
transportation plan update.
    (f) The metropolitan transportation plan shall, at a minimum, 
include:
    (1) The projected transportation demand of persons and goods in the 
metropolitan planning area over the period of the transportation plan;
    (2) Existing and proposed transportation facilities (including 
major roadways, transit, multimodal and intermodal facilities, 
pedestrian walkways and bicycle facilities, and intermodal connectors) 
that should function as an integrated metropolitan transportation 
system, giving emphasis to those facilities that serve important 
national and regional transportation functions over the period of the 
transportation plan. In addition, the locally preferred alternative 
selected from an Alternatives Analysis under the FTA's Capital 
Investment Grant program (49 U.S.C. 5309 and 49 CFR part 611) needs to 
be adopted as part of the metropolitan transportation plan as a 
condition for funding under 49 U.S.C. 5309;
    (3) Operational and management strategies to improve the 
performance of existing transportation facilities to relieve vehicular 
congestion and maximize the safety and mobility of people and goods;
    (4) Consideration of the results of the congestion management 
process in TMAs that meet the requirements of this subpart, including 
the identification of SOV projects that result from a congestion 
management process in TMAs that are nonattainment for ozone or carbon 
monoxide;
    (5) Assessment of capital investment and other strategies to 
preserve the existing and projected future metropolitan transportation

[[Page 7276]]

infrastructure and provide for multimodal capacity increases based on 
regional priorities and needs. The metropolitan transportation plan may 
consider projects and strategies that address areas or corridors where 
current or projected congestion threatens the efficient functioning of 
key elements of the metropolitan area's transportation system;
    (6) Design concept and design scope descriptions of all existing 
and proposed transportation facilities in sufficient detail, regardless 
of funding source, in nonattainment and maintenance areas for 
conformity determinations under the EPA's transportation conformity 
rule (40 CFR part 93). In all areas (regardless of air quality 
designation), all proposed improvements shall be described in 
sufficient detail to develop cost estimates;
    (7) A discussion of types of potential environmental mitigation 
activities and potential areas to carry out these activities, including 
activities that may have the greatest potential to restore and maintain 
the environmental functions affected by the metropolitan transportation 
plan. The discussion may focus on policies, programs, or strategies, 
rather than at the project level. The discussion shall be developed in 
consultation with Federal, State, and Tribal land management, wildlife, 
and regulatory agencies. The MPO may establish reasonable timeframes 
for performing this consultation;
    (8) Pedestrian walkway and bicycle transportation facilities in 
accordance with 23 U.S.C. 217(g);
    (9) Transportation and transit enhancement activities, as 
appropriate; and
    (10) A financial plan that demonstrates how the adopted 
transportation plan can be implemented.
    (i) For purposes of transportation system operations and 
maintenance, the financial plan shall contain system-level estimates of 
costs and revenue sources that are reasonably expected to be available 
to adequately operate and maintain Federal-aid highways (as defined by 
23 U.S.C. 101(a)(5)) and public transportation (as defined by title 49 
U.S.C. Chapter 53).
    (ii) For the purpose of developing the metropolitan transportation 
plan, the MPO, public transportation operator(s), and State shall 
cooperatively develop estimates of funds that will be available to 
support metropolitan transportation plan implementation, as required 
under Sec.  450.314(a). All necessary financial resources from public 
and private sources that are reasonably expected to be made available 
to carry out the transportation plan shall be identified.
    (iii) The financial plan shall include recommendations on any 
additional financing strategies to fund projects and programs included 
in the metropolitan transportation plan. In the case of new funding 
sources, strategies for ensuring their availability shall be 
identified.
    (iv) In developing the financial plan, the MPO shall take into 
account all projects and strategies proposed for funding under title 23 
U.S.C., title 49 U.S.C. Chapter 53 or with other Federal funds; State 
assistance; local sources; and private participation. Starting December 
11, 2007, revenue and cost estimates that support the metropolitan 
transportation plan must use an inflation rate(s) to reflect ``year of 
expenditure dollars,'' based on reasonable financial principles and 
information, developed cooperatively by the MPO, State(s), and public 
transportation operator(s).
    (v) For the outer years of the metropolitan transportation plan 
(i.e., beyond the first 10 years), the financial plan may reflect 
aggregate cost ranges/cost bands, as long as the future funding 
source(s) is reasonably expected to be available to support the 
projected cost ranges/cost bands.
    (vi) For nonattainment and maintenance areas, the financial plan 
shall address the specific financial strategies required to ensure the 
implementation of TCMs in the applicable SIP.
    (vii) For illustrative purposes, the financial plan may (but is not 
required to) include additional projects that would be included in the 
adopted transportation plan if additional resources beyond those 
identified in the financial plan were to become available.
    (viii) In cases that the FHWA and the FTA find a metropolitan 
transportation plan to be fiscally constrained and a revenue source is 
subsequently removed or substantially reduced (i.e., by legislative or 
administrative actions), the FHWA and the FTA will not withdraw the 
original determination of fiscal constraint; however, in such cases, 
the FHWA and the FTA will not act on an updated or amended metropolitan 
transportation plan that does not reflect the changed revenue 
situation.
    (g) The MPO shall consult, as appropriate, with State and local 
agencies responsible for land use management, natural resources, 
environmental protection, conservation, and historic preservation 
concerning the development of the transportation plan. The consultation 
shall involve, as appropriate:
    (1) Comparison of transportation plans with State conservation 
plans or maps, if available; or
    (2) Comparison of transportation plans to inventories of natural or 
historic resources, if available.
    (h) The metropolitan transportation plan should include a safety 
element that incorporates or summarizes the priorities, goals, 
countermeasures, or projects for the MPA contained in the Strategic 
Highway Safety Plan required under 23 U.S.C. 148, as well as (as 
appropriate) emergency relief and disaster preparedness plans and 
strategies and policies that support homeland security (as appropriate) 
and safeguard the personal security of all motorized and non-motorized 
users.
    (i) The MPO shall provide citizens, affected public agencies, 
representatives of public transportation employees, freight shippers, 
providers of freight transportation services, private providers of 
transportation, representatives of users of public transportation, 
representatives of users of pedestrian walkways and bicycle 
transportation facilities, representatives of the disabled, and other 
interested parties with a reasonable opportunity to comment on the 
transportation plan using the participation plan developed under Sec.  
450.316(a).
    (j) The metropolitan transportation plan shall be published or 
otherwise made readily available by the MPO for public review, 
including (to the maximum extent practicable) in electronically 
accessible formats and means, such as the World Wide Web.
    (k) A State or MPO shall not be required to select any project from 
the illustrative list of additional projects included in the financial 
plan under paragraph (f)(10) of this section.
    (l) In nonattainment and maintenance areas for transportation-
related pollutants, the MPO, as well as the FHWA and the FTA, must make 
a conformity determination on any updated or amended transportation 
plan in accordance with the Clean Air Act and the EPA transportation 
conformity regulations (40 CFR part 93). During a conformity lapse, 
MPOs can prepare an interim metropolitan transportation plan as a basis 
for advancing projects that are eligible to proceed under a conformity 
lapse. An interim metropolitan transportation plan consisting of 
eligible projects from, or consistent with, the most recent conforming 
transportation plan and TIP may proceed immediately without revisiting 
the requirements of this section, subject to interagency consultation 
defined in 40 CFR part 93. An interim metropolitan transportation

[[Page 7277]]

plan containing eligible projects that are not from, or consistent 
with, the most recent conforming transportation plan and TIP must meet 
all the requirements of this section.


Sec.  450.324  Development and content of the transportation 
improvement program (TIP).

    (a) The MPO, in cooperation with the State(s) and any affected 
public transportation operator(s), shall develop a TIP for the 
metropolitan planning area. The TIP shall cover a period of no less 
than four years, be updated at least every four years, and be approved 
by the MPO and the Governor. However, if the TIP covers more than four 
years, the FHWA and the FTA will consider the projects in the 
additional years as informational. The TIP may be updated more 
frequently, but the cycle for updating the TIP must be compatible with 
the STIP development and approval process. The TIP expires when the 
FHWA/FTA approval of the STIP expires. Copies of any updated or revised 
TIPs must be provided to the FHWA and the FTA. In nonattainment and 
maintenance areas subject to transportation conformity requirements, 
the FHWA and the FTA, as well as the MPO, must make a conformity 
determination on any updated or amended TIP, in accordance with the 
Clean Air Act requirements and the EPA's transportation conformity 
regulations (40 CFR part 93).
    (b) The MPO shall provide all interested parties with a reasonable 
opportunity to comment on the proposed TIP as required by Sec.  
450.316(a). In addition, in nonattainment area TMAs, the MPO shall 
provide at least one formal public meeting during the TIP development 
process, which should be addressed through the participation plan 
described in Sec.  450.316(a). In addition, the TIP shall be published 
or otherwise made readily available by the MPO for public review, 
including (to the maximum extent practicable) in electronically 
accessible formats and means, such as the World Wide Web, as described 
in Sec.  450.316(a).
    (c) The TIP shall include capital and non-capital surface 
transportation projects (or phases of projects) within the boundaries 
of the metropolitan planning area proposed for funding under 23 U.S.C. 
and 49 U.S.C. Chapter 53 (including transportation enhancements; 
Federal Lands Highway program projects; safety projects included in the 
State's Strategic Highway Safety Plan; trails projects; pedestrian 
walkways; and bicycle facilities), except the following that may (but 
are not required to) be included:
    (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(f), 
49 U.S.C. 5305(d), and 49 U.S.C. 5339;
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) At the discretion of the State and MPO, State planning and 
research projects funded with National Highway System, Surface 
Transportation Program, and/or Equity Bonus funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) National planning and research projects funded under 49 U.S.C. 
5314; and
    (7) Project management oversight projects funded under 49 U.S.C. 
5327.
    (d) The TIP shall contain all regionally significant projects 
requiring an action by the FHWA or the FTA whether or not the projects 
are to be funded under title 23 U.S.C. Chapters 1 and 2 or title 49 
U.S.C. Chapter 53 (e.g., addition of an interchange to the Interstate 
System with State, local, and/or private funds and congressionally 
designated projects not funded under 23 U.S.C. or 49 U.S.C. Chapter 
53). For public information and conformity purposes, the TIP shall 
include all regionally significant projects proposed to be funded with 
Federal funds other than those administered by the FHWA or the FTA, as 
well as all regionally significant projects to be funded with non-
Federal funds.
    (e) The TIP shall include, for each project or phase (e.g., 
preliminary engineering, environment/NEPA, right-of-way, design, or 
construction), the following:
    (1) Sufficient descriptive material (i.e., type of work, termini, 
and length) to identify the project or phase;
    (2) Estimated total project cost, which may extend beyond the four 
years of the TIP;
    (3) The amount of Federal funds proposed to be obligated during 
each program year for the project or phase (for the first year, this 
includes the proposed category of Federal funds and source(s) of non-
Federal funds. For the second, third, and fourth years, this includes 
the likely category or possible categories of Federal funds and sources 
of non-Federal funds);
    (4) Identification of the agencies responsible for carrying out the 
project or phase;
    (5) In nonattainment and maintenance areas, identification of those 
projects which are identified as TCMs in the applicable SIP;
    (6) In nonattainment and maintenance areas, included projects shall 
be specified in sufficient detail (design concept and scope) for air 
quality analysis in accordance with the EPA transportation conformity 
regulation (40 CFR part 93); and
    (7) In areas with Americans with Disabilities Act required 
paratransit and key station plans, identification of those projects 
that will implement these plans.
    (f) Projects that are not considered to be of appropriate scale for 
individual identification in a given program year may be grouped by 
function, work type, and/or geographic area using the applicable 
classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93. 
In nonattainment and maintenance areas, project classifications must be 
consistent with the ``exempt project'' classifications contained in the 
EPA transportation conformity regulation (40 CFR part 93). In addition, 
projects proposed for funding under title 23 U.S.C. Chapter 2 that are 
not regionally significant may be grouped in one line item or 
identified individually in the TIP.
    (g) Each project or project phase included in the TIP shall be 
consistent with the approved metropolitan transportation plan.
    (h) The TIP shall include a financial plan that demonstrates how 
the approved TIP can be implemented, indicates resources from public 
and private sources that are reasonably expected to be made available 
to carry out the TIP, and recommends any additional financing 
strategies for needed projects and programs. In developing the TIP, the 
MPO, State(s), and public transportation operator(s) shall 
cooperatively develop estimates of funds that are reasonably expected 
to be available to support TIP implementation, in accordance with Sec.  
450.314(a). Only projects for which construction or operating funds can 
reasonably be expected to be available may be included. In the case of 
new funding sources, strategies for ensuring their availability shall 
be identified. In developing the financial plan, the MPO shall take 
into account all projects and strategies funded under title 23 U.S.C., 
title 49 U.S.C. Chapter 53 and other Federal funds; and regionally 
significant projects that are not federally funded. For purposes of 
transportation operations and maintenance, the financial plan shall 
contain system-level estimates of costs and revenue sources that are 
reasonably expected to be available to adequately operate and maintain 
Federal-aid highways (as defined by 23 U.S.C. 101(a)(5)) and

[[Page 7278]]

public transportation (as defined by title 49 U.S.C. Chapter 53). In 
addition, for illustrative purposes, the financial plan may (but is not 
required to) include additional projects that would be included in the 
TIP if reasonable additional resources beyond those identified in the 
financial plan were to become available. Starting [Insert date 270 days 
after effective date], revenue and cost estimates for the TIP must use 
an inflation rate(s) to reflect ``year of expenditure dollars,'' based 
on reasonable financial principles and information, developed 
cooperatively by the MPO, State(s), and public transportation 
operator(s).
    (i) The TIP shall include a project, or a phase of a project, only 
if full funding can reasonably be anticipated to be available for the 
project within the time period contemplated for completion of the 
project. In nonattainment and maintenance areas, projects included in 
the first two years of the TIP shall be limited to those for which 
funds are available or committed. For the TIP, financial constraint 
shall be demonstrated and maintained by year and shall include 
sufficient financial information to demonstrate which projects are to 
be implemented using current and/or reasonably available revenues, 
while federally supported facilities are being adequately operated and 
maintained. In the case of proposed funding sources, strategies for 
ensuring their availability shall be identified in the financial plan 
consistent with paragraph (h) of this section. In nonattainment and 
maintenance areas, the TIP shall give priority to eligible TCMs 
identified in the approved SIP in accordance with the EPA 
transportation conformity regulation (40 CFR part 93) and shall provide 
for their timely implementation.
    (j) Procedures or agreements that distribute suballocated Surface 
Transportation Program funds or funds under 49 U.S.C. 5307 to 
individual jurisdictions or modes within the MPA by pre-determined 
percentages or formulas are inconsistent with the legislative 
provisions that require the MPO, in cooperation with the State and the 
public transportation operator, to develop a prioritized and 
financially constrained TIP and shall not be used unless they can be 
clearly shown to be based on considerations required to be addressed as 
part of the metropolitan transportation planning process.
    (k) For the purpose of including projects funded under 49 U.S.C. 
5309 in a TIP, the following approach shall be followed:
    (1) The total Federal share of projects included in the first year 
of the TIP shall not exceed levels of funding committed to the MPA; and
    (2) The total Federal share of projects included in the second, 
third, fourth, and/or subsequent years of the TIP may not exceed levels 
of funding committed, or reasonably expected to be available, to the 
MPA.
    (l) As a management tool for monitoring progress in implementing 
the transportation plan, the TIP should:
    (1) Identify the criteria and process for prioritizing 
implementation of transportation plan elements (including multimodal 
trade-offs) for inclusion in the TIP and any changes in priorities from 
previous TIPs;
    (2) List major projects from the previous TIP that were implemented 
and identify any significant delays in the planned implementation of 
major projects; and
    (3) In nonattainment and maintenance areas, describe the progress 
in implementing any required TCMs, in accordance with 40 CFR part 93.
    (m) During a conformity lapse, MPOs may prepare an interim TIP as a 
basis for advancing projects that are eligible to proceed under a 
conformity lapse. An interim TIP consisting of eligible projects from, 
or consistent with, the most recent conforming metropolitan 
transportation plan and TIP may proceed immediately without revisiting 
the requirements of this section, subject to interagency consultation 
defined in 40 CFR part 93. An interim TIP containing eligible projects 
that are not from, or consistent with, the most recent conforming 
transportation plan and TIP must meet all the requirements of this 
section.
    (n) Projects in any of the first four years of the TIP may be 
advanced in place of another project in the first four years of the 
TIP, subject to the project selection requirements of Sec.  450.330. In 
addition, the TIP may be revised at any time under procedures agreed to 
by the State, MPO(s), and public transportation operator(s) consistent 
with the TIP development procedures established in this section, as 
well as the procedures for the MPO participation plan (see Sec.  
450.316(a)) and FHWA/FTA actions on the TIP (see Sec.  450.328).
    (o) In cases that the FHWA and the FTA find a TIP to be fiscally 
constrained and a revenue source is subsequently removed or 
substantially reduced (i.e., by legislative or administrative actions), 
the FHWA and the FTA will not withdraw the original determination of 
fiscal constraint. However, in such cases, the FHWA and the FTA will 
not act on an updated or amended TIP that does not reflect the changed 
revenue situation.


Sec.  450.326  TIP revisions and relationship to the STIP.

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


Sec.  450.328  TIP action by the FHWA and the FTA.

    (a) The FHWA and the FTA shall jointly find that each metropolitan 
TIP is consistent with the metropolitan transportation plan produced by 
the continuing and comprehensive transportation process carried on 
cooperatively by the MPO(s), the State(s), and the public 
transportation operator(s) in accordance with 23 U.S.C. 134 and 49 
U.S.C. 5303. This finding shall be based on the self-certification 
statement submitted by the State and MPO under Sec.  450.334, a review 
of the metropolitan transportation plan by the FHWA and the FTA, and 
upon other reviews as deemed necessary by the FHWA and the FTA.
    (b) In nonattainment and maintenance areas, the MPO, as well as the 
FHWA and the FTA, shall determine conformity of any updated or amended 
TIP, in accordance with 40 CFR part 93. After the FHWA and the FTA 
issue a conformity determination on the TIP, the TIP shall be 
incorporated, without change, into the STIP, directly or by reference.
    (c) If the metropolitan transportation plan has not been updated in

[[Page 7279]]

accordance with the cycles defined in Sec.  450.322(c), projects may 
only be advanced from a TIP that was approved and found to conform (in 
nonattainment and maintenance areas) prior to expiration of the 
metropolitan transportation plan and meets the TIP update requirements 
of Sec.  450.324(a). Until the MPO approves (in attainment areas) or 
the FHWA/FTA issues a conformity determination on (in nonattainment and 
maintenance areas) the updated metropolitan transportation plan, the 
TIP may not be amended.
    (d) In the case of extenuating circumstances, the FHWA and the FTA 
will consider and take appropriate action on requests to extend the 
STIP approval period for all or part of the TIP in accordance with 
Sec.  450.218(c).
    (e) If an illustrative project is included in the TIP, no Federal 
action may be taken on that project by the FHWA and the FTA until it is 
formally included in the financially constrained and conforming 
metropolitan transportation plan and TIP.
    (f) Where necessary in order to maintain or establish operations, 
the FHWA and the FTA may approve highway and transit operating 
assistance for specific projects or programs, even though the projects 
or programs may not be included in an approved TIP.


Sec.  450.330  Project selection from the TIP.

    (a) Once a TIP that meets the requirements of 23 U.S.C. 134(j), 49 
U.S.C. 5303(j), and Sec.  450.324 has been developed and approved, the 
first year of the TIP shall constitute an ``agreed to'' list of 
projects for project selection purposes and no further project 
selection action is required for the implementing agency to proceed 
with projects, except where the appropriated Federal funds available to 
the metropolitan planning area are significantly less than the 
authorized amounts or where there are significant shifting of projects 
between years. In this case, a revised ``agreed to'' list of projects 
shall be jointly developed by the MPO, the State, and the public 
transportation operator(s) if requested by the MPO, the State, or the 
public transportation operator(s). If the State or public 
transportation operator(s) wishes to proceed with a project in the 
second, third, or fourth year of the TIP, the specific project 
selection procedures stated in paragraphs (b) and (c) of this section 
must be used unless the MPO, the State, and the public transportation 
operator(s) jointly develop expedited project selection procedures to 
provide for the advancement of projects from the second, third, or 
fourth years of the TIP.
    (b) In metropolitan areas not designated as TMAs, projects to be 
implemented using title 23 U.S.C. funds (other than Federal Lands 
Highway program projects) or funds under title 49 U.S.C. Chapter 53, 
shall be selected by the State and/or the public transportation 
operator(s), in cooperation with the MPO from the approved metropolitan 
TIP. Federal Lands Highway program projects shall be selected in 
accordance with procedures developed pursuant to 23 U.S.C. 204.
    (c) In areas designated as TMAs, all 23 U.S.C. and 49 U.S.C. 
Chapter 53 funded projects (excluding projects on the National Highway 
System (NHS) and projects funded under the Bridge, Interstate 
Maintenance, and Federal Lands Highway programs) shall be selected by 
the MPO in consultation with the State and public transportation 
operator(s) from the approved TIP and in accordance with the priorities 
in the approved TIP. Projects on the NHS and projects funded under the 
Bridge and Interstate Maintenance programs shall be selected by the 
State in cooperation with the MPO, from the approved TIP. Federal Lands 
Highway program projects shall be selected in accordance with 
procedures developed pursuant to 23 U.S.C. 204.
    (d) Except as provided in Sec.  450.324(c) and Sec.  450.328(f), 
projects not included in the federally approved STIP shall not be 
eligible for funding with funds under title 23 U.S.C. or 49 U.S.C. 
Chapter 53.
    (e) In nonattainment and maintenance areas, priority shall be given 
to the timely implementation of TCMs contained in the applicable SIP in 
accordance with the EPA transportation conformity regulations (40 CFR 
part 93).


Sec.  450.332  Annual listing of obligated projects.

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


Sec.  450.334  Self-certifications and Federal certifications.

    (a) For all MPAs, concurrent with the submittal of the entire 
proposed TIP to the FHWA and the FTA as part of the STIP approval, the 
State and the MPO shall certify at least every four years that the 
metropolitan transportation planning process is being carried out in 
accordance with all applicable requirements including:
    (1) 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart;
    (2) In nonattainment and maintenance areas, sections 174 and 176 
(c) and (d) of the Clean Air Act, as amended (42 U.S.C. 7504, 7506 (c) 
and (d)) and 40 CFR part 93;
    (3) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000d-1) and 49 CFR part 21;
    (4) 49 U.S.C. 5332, prohibiting discrimination on the basis of 
race, color, creed, national origin, sex, or age in employment or 
business opportunity;
    (5) Section 1101(b) of the SAFETEA-LU (Pub. L. 109-59) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in USDOT funded projects;
    (6) 23 CFR part 230, regarding the implementation of an equal 
employment opportunity program on Federal and Federal-aid highway 
construction contracts;
    (7) The provisions of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
    (8) The Older Americans Act, as amended (42 U.S.C. 6101), 
prohibiting discrimination on the basis of age in programs or 
activities receiving Federal financial assistance;
    (9) Section 324 of title 23 U.S.C. regarding the prohibition of 
discrimination based on gender; and
    (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 27 regarding discrimination against individuals with 
disabilities.
    (b) In TMAs, the FHWA and the FTA jointly shall review and evaluate 
the transportation planning process for each TMA no less than once 
every four years to determine if the process meets the requirements of 
applicable provisions of Federal law and this subpart.
    (1) After review and evaluation of the TMA planning process, the 
FHWA and

[[Page 7280]]

FTA shall take one of the following actions:
    (i) If the process meets the requirements of this part and a TIP 
has been approved by the MPO and the Governor, jointly certify the 
transportation planning process;
    (ii) If the process substantially meets the requirements of this 
part and a TIP has been approved by the MPO and the Governor, jointly 
certify the transportation planning process subject to certain 
specified corrective actions being taken; or
    (iii) If the process does not meet the requirements of this part, 
jointly certify the planning process as the basis for approval of only 
those categories of programs or projects that the FHWA and the FTA 
jointly determine, subject to certain specified corrective actions 
being taken.
    (2) If, upon the review and evaluation conducted under paragraph 
(b)(1)(iii) of this section, the FHWA and the FTA do not certify the 
transportation planning process in a TMA, the Secretary may withhold up 
to 20 percent of the funds attributable to the metropolitan planning 
area of the MPO for projects funded under title 23 U.S.C. and title 49 
U.S.C. Chapter 53 in addition to corrective actions and funding 
restrictions. The withheld funds shall be restored to the MPA when the 
metropolitan transportation planning process is certified by the FHWA 
and FTA, unless the funds have lapsed.
    (3) A certification of the TMA planning process will remain in 
effect for four years unless a new certification determination is made 
sooner by the FHWA and the FTA or a shorter term is specified in the 
certification report.
    (4) In conducting a certification review, the FHWA and the FTA 
shall provide opportunities for public involvement within the 
metropolitan planning area under review. The FHWA and the FTA shall 
consider the public input received in arriving at a decision on a 
certification action.
    (5) The MPO(s), the State(s), and public transportation operator(s) 
shall be notified of the actions taken under paragraphs (b)(1) and 
(b)(2) of this section. The FHWA and the FTA will update the 
certification status of the TMA when evidence of satisfactory 
completion of a corrective action(s) is provided to the FHWA and the 
FTA.


Sec.  450.336  Applicability of NEPA to metropolitan transportation 
plans and programs.

    Any decision by the Secretary concerning a metropolitan 
transportation plan or TIP developed through the processes provided for 
in 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart shall not be 
considered to be a Federal action subject to review under NEPA.


Sec.  450.338  Phase-in of new requirements.

    (a) Metropolitan transportation plans and TIPs adopted or approved 
prior to July 1, 2007 may be developed using the TEA-21 requirements or 
the provisions and requirements of this part.
    (b) For metropolitan transportation plans and TIPs that are 
developed under TEA-21 requirements prior to July 1, 2007, the FHWA/FTA 
action (i.e., conformity determinations and STIP approvals) must be 
completed no later than June 30, 2007. For metropolitan transportation 
plans in attainment areas that are developed under TEA-21 requirements 
prior to July 1, 2007, the MPO adoption action must be completed no 
later than June 30, 2007. If these actions are completed on or after 
July 1, 2007, the provisions and requirements of this part shall take 
effect, regardless of when the metropolitan transportation plan or TIP 
were developed.
    (c) On and after July 1, 2007, the FHWA and the FTA will take 
action on a new TIP developed under the provisions of this part, even 
if the MPO has not yet adopted a new metropolitan transportation plan 
under the provisions of this part, as long as the underlying 
transportation planning process is consistent with the requirements in 
the SAFETEA-LU.
    (d) The applicable action (see paragraph (b) of this section) on 
any amendments or updates to metropolitan transportation plans and TIPs 
on or after July 1, 2007, shall be based on the provisions and 
requirements of this part. However, administrative modifications may be 
made to the metropolitan transportation plan or TIP on or after July 1, 
2007 in the absence of meeting the provisions and requirements of this 
part.
    (e) For new TMAs, the congestion management process described in 
Sec.  450.320 shall be implemented within 18 months of the designation 
of a new TMA.

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

Background and Overview:

    This Appendix provides additional information to explain the 
linkage between the transportation planning and project development/
National Environmental Policy Act (NEPA) processes. It is intended 
to be non-binding and should not be construed as a rule of general 
applicability.
    For 40 years, the Congress has directed that federally-funded 
highway and transit projects must flow from metropolitan and 
statewide transportation planning processes (pursuant to 23 U.S.C. 
134-135 and 49 U.S.C. 5303-5306). Over the years, the Congress has 
refined and strengthened the transportation planning process as the 
foundation for project decisions, emphasizing public involvement, 
consideration of environmental and other factors, and a Federal role 
that oversees the transportation planning process but does not 
second-guess the content of transportation plans and programs.
    Despite this statutory emphasis on transportation planning, the 
environmental analyses produced to meet the requirements of the NEPA 
of 1969 (42 U.S.C. 4231 et seq.) have often been conducted de novo, 
disconnected from the analyses used to develop long-range 
transportation plans, statewide and metropolitan Transportation 
Improvement Programs (STIPs/TIPs), or planning-level corridor/
subarea/feasibility studies. When the NEPA and transportation 
planning processes are not well coordinated, the NEPA process may 
lead to the development of information that is more appropriately 
developed in the planning process, resulting in duplication of work 
and delays in transportation improvements.
    The purpose of this Appendix is to change this culture, by 
supporting congressional intent that statewide and metropolitan 
transportation planning should be the foundation for highway and 
transit project decisions. This Appendix was crafted to recognize 
that transportation planning processes vary across the country. This 
document provides details on how information, analysis, and products 
from transportation planning can be incorporated into and relied 
upon in NEPA documents under existing laws, regardless of when the 
Notice of Intent has been published. This Appendix presents 
environmental review as a continuum of sequential study, refinement, 
and expansion performed in transportation planning and during 
project development/NEPA, with information developed and conclusions 
drawn in early stages utilized in subsequent (and more detailed) 
review stages.
    The information below is intended for use by State departments 
of transportation (State DOTs), metropolitan planning organizations 
(MPOs), and public transportation operators to clarify the 
circumstances under which transportation planning level choices and 
analyses can be adopted or incorporated into the process required by 
NEPA. Additionally, the FHWA and the FTA will work with Federal 
environmental, regulatory, and resource agencies to incorporate the 
principles of this Appendix in their day-to-day NEPA policies and 
procedures related to their involvement in highway and transit 
projects.
    This Appendix does not extend NEPA requirements to 
transportation plans and programs. The Transportation Efficiency Act 
for the 21st Century (TEA-21) and the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 
specifically exempted transportation plans and programs from NEPA 
review. Therefore, initiating the NEPA process as part of, or 
concurrently with, a

[[Page 7281]]

transportation planning study does not subject transportation plans 
and programs to NEPA.
    Implementation of this Appendix by States, MPOs, and public 
transportation operators is voluntary. The degree to which studies, 
analyses, or conclusions from the transportation planning process 
can be incorporated into the project development/NEPA processes will 
depend upon how well they meet certain standards established by NEPA 
regulations and guidance. While some transportation planning 
processes already meet these standards, others will need some 
modification.
    The remainder of this Appendix document utilizes a ``Question 
and Answer'' format, organized into three primary categories 
(``Procedural Issues,'' ``Substantive Issues,'' and ``Administrative 
Issues'').

I. Procedural Issues:

    1. In what format should the transportation planning information 
be included?
    To be included in the NEPA process, work from the transportation 
planning process must be documented in a form that can be appended 
to the NEPA document or incorporated by reference. Documents may be 
incorporated by reference if they are readily available so as to not 
impede agency or public review of the action. Any document 
incorporated by reference must be ``reasonably available for 
inspection by potentially interested persons within the time allowed 
for comment.'' Incorporated materials must be cited in the NEPA 
document and their contents briefly described, so that the reader 
understands why the document is cited and knows where to look for 
further information. To the extent possible, the documentation 
should be in a form such as official actions by the MPO, State DOT, 
or public transportation operator and/or correspondence within and 
among the organizations involved in the transportation planning 
process.
    2. What is a reasonable level of detail for a planning product 
that is intended to be used in a NEPA document? How does this level 
of detail compare to what is considered a full NEPA analysis?
    For purposes of transportation planning alone, a planning-level 
analysis does not need to rise to the level of detail required in 
the NEPA process. Rather, it needs to be accurate and up-to-date, 
and should adequately support recommended improvements in the 
statewide or metropolitan long-range transportation plan. The 
SAFETEA-LU requires transportation planning processes to focus on 
setting a context and following acceptable procedures. For example, 
the SAFETEA-LU requires a ``discussion of the types of potential 
environmental mitigation activities'' and potential areas for their 
implementation, rather than details on specific strategies. The 
SAFETEA-LU also emphasizes consultation with Federal, State, and 
Tribal land management, wildlife, and regulatory agencies.
    However, the Environmental Assessment (EA) or Environmental 
Impact Statement (EIS) ultimately will be judged by the standards 
applicable under the NEPA regulations and guidance from the Council 
on Environmental Quality (CEQ). To the extent the information 
incorporated from the transportation planning process, standing 
alone, does not contain all of the information or analysis required 
by NEPA, then it will need to be supplemented by other information 
contained in the EIS or EA that would, in conjunction with the 
information from the plan, collectively meet the requirements of 
NEPA. The intent is not to require NEPA studies in the 
transportation planning process. As an option, the NEPA analyses 
prepared for project development can be integrated with 
transportation planning studies (see the response to Question 9 for 
additional information).
    3. What type and extent of involvement from Federal, Tribal, 
State, and local environmental, regulatory, and resource agencies is 
needed in the transportation planning process in order for planning-
level decisions to be more readily accepted in the NEPA process?
    Sections 3005, 3006, and 6001 of the SAFETEA-LU established 
formal consultation requirements for MPOs and State DOTs to employ 
with environmental, regulatory, and resource agencies in the 
development of long-range transportation plans. For example, 
metropolitan transportation plans now ``shall include a discussion 
of the types of potential environmental mitigation activities and 
potential areas to carry out these activities, including activities 
that may have the greatest potential to restore and maintain the 
environmental functions affected by the [transportation] plan,'' and 
that these planning-level discussions ``shall be developed in 
consultation with Federal, State, and Tribal land management, 
wildlife, and regulatory agencies.'' In addition, MPOs ``shall 
consult, as appropriate, with State and local agencies responsible 
for land use management, natural resources, environmental 
protection, conservation, and historic preservation concerning the 
development of a long-range transportation plan,'' and that this 
consultation ``shall involve, as appropriate, comparison of 
transportation plans with State conservation plans or maps, if 
available, or comparison of transportation plans to inventories of 
natural or historic resources, if available.'' Similar SAFETEA-LU 
language addresses the development of the long-range statewide 
transportation plan, with the addition of Tribal conservation plans 
or maps to this planning-level ``comparison.''
    In addition, section 6002 of the SAFETEA-LU established several 
mechanisms for increased efficiency in environmental reviews for 
project decision-making. For example, the term ``lead agency'' 
collectively means the U. S. Department of Transportation and a 
State or local governmental entity serving as a joint lead agency 
for the NEPA process. In addition, the lead agency is responsible 
for inviting and designating ``participating agencies'' (i.e., other 
Federal or non-Federal agencies that may have an interest in the 
proposed project). Any Federal agency that is invited by the lead 
agency to participate in the environmental review process for a 
project shall be designated as a participating agency by the lead 
agency unless the invited agency informs the lead agency, in 
writing, by the deadline specified in the invitation that the 
invited agency:
    (a) Has no jurisdiction or authority with respect to the 
project; (b) has no expertise or information relevant to the 
project; and (c) does not intend to submit comments on the project.
    Past successful examples of using transportation planning 
products in NEPA analysis are based on early and continuous 
involvement of environmental, regulatory, and resource agencies. 
Without this early coordination, environmental, regulatory, and 
resource agencies are more likely to expect decisions made or 
analyses conducted in the transportation planning process to be 
revisited during the NEPA process. Early participation in 
transportation planning provides environmental, regulatory, and 
resource agencies better insight into the needs and objectives of 
the locality. Additionally, early participation provides an 
important opportunity for environmental, regulatory, and resource 
agency concerns to be identified and addressed early in the process, 
such as those related to permit applications. Moreover, Federal, 
Tribal, State, and local environmental, regulatory, and resource 
agencies are able to share data on particular resources, which can 
play a critical role in determining the feasibility of a 
transportation solution with respect to environmental impacts. The 
use of other agency planning outputs can result in a transportation 
project that could support multiple goals (transportation, 
environmental, and community). Further, planning decisions by these 
other agencies may have impacts on long-range transportation plans 
and/or the STIP/TIP, thereby providing important input to the 
transportation planning process and advancing integrated decision-
making.
    4. What is the procedure for using decisions or analyses from 
the transportation planning process?
    The lead agencies jointly decide, and must agree, on what 
processes and consultation techniques are used to determine the 
transportation planning products that will be incorporated into the 
NEPA process. At a minimum, a robust scoping/early coordination 
process (which explains to Federal and State environmental, 
regulatory, and resource agencies and the public the information 
and/or analyses utilized to develop the planning products, how the 
purpose and need was developed and refined, and how the design 
concept and scope were determined) should play a critical role in 
leading to informed decisions by the lead agencies on the 
suitability of the transportation planning information, analyses, 
documents, and decisions for use in the NEPA process. As part of a 
rigorous scoping/early coordination process, the FHWA and the FTA 
should ensure that the transportation planning results are 
appropriately documented, shared, and used.
    5. To what extent can the FHWA/FTA provide up-front assurance 
that decisions and additional investments made in the transportation 
planning process will allow planning-level decisions and analyses to 
be used in the NEPA process?

[[Page 7282]]

    There are no guarantees. However, the potential is greatly 
improved for transportation planning processes that address the ``3-
C'' planning principles (comprehensive, cooperative, and 
continuous); incorporate the intent of NEPA through the 
consideration of natural, physical, and social effects; involve 
environmental, regulatory, and resource agencies; thoroughly 
document the transportation planning process information, analysis, 
and decision; and vet the planning results through the applicable 
public involvement processes.
    6. What considerations will the FHWA/FTA take into account in 
their review of transportation planning products for acceptance in 
project development/NEPA?
    The FHWA and the FTA will give deference to decisions resulting 
from the transportation planning process if the FHWA and FTA 
determine that the planning process is consistent with the ``3-C'' 
planning principles and when the planning study process, 
alternatives considered, and resulting decisions have a rational 
basis that is thoroughly documented and vetted through the 
applicable public involvement processes. Moreover, any applicable 
program-specific requirements (e.g., those of the Congestion 
Mitigation and Air Quality Improvement Program or the FTA's Capital 
Investment Grant program) also must be met.
    The NEPA requires that the FHWA and the FTA be able to stand 
behind the overall soundness and credibility of analyses conducted 
and decisions made during the transportation planning process if 
they are incorporated into a NEPA document. For example, if systems-
level or other broad objectives or choices from the transportation 
plan are incorporated into the purpose and need statement for a NEPA 
document, the FHWA and the FTA should not revisit whether these are 
the best objectives or choices among other options. Rather, the FHWA 
and the FTA review would include making sure that objectives or 
choices derived from the transportation plan were: Based on 
transportation planning factors established by Federal law; reflect 
a credible and articulated planning rationale; founded on reliable 
data; and developed through transportation planning processes 
meeting FHWA and FTA statutory and regulatory requirements. In 
addition, the basis for the goals and choices must be documented and 
included in the NEPA document. The FHWA/FTA reviewers do not need to 
review whether assumptions or analytical methods used in the studies 
are the best available, but, instead, need to assure that such 
assumptions or analytical methods are reasonable, scientifically 
acceptable, and consistent with goals, objectives, and policies set 
forth in long-range transportation plans. This review would include 
determining whether: (a) Assumptions have a rational basis and are 
up-to-date and (b) data, analytical methods, and modeling techniques 
are reliable, defensible, reasonably current, and meet data quality 
requirements.

II. Substantive Issues

    General Issues To Be Considered:
    7. What should be considered in order to rely upon 
transportation planning studies in NEPA?
    The following questions should be answered prior to accepting 
studies conducted during the transportation planning process for use 
in NEPA. While not a ``checklist,'' these questions are intended to 
guide the practitioner's analysis of the planning products:
     How much time has passed since the planning studies and 
corresponding decisions were made?
     Were the future year policy assumptions used in the 
transportation planning process related to land use, economic 
development, transportation costs, and network expansion consistent 
with those to be used in the NEPA process?
     Is the information still relevant/valid?
     What changes have occurred in the area since the study 
was completed?
     Is the information in a format that can be appended to 
an environmental document or reformatted to do so?
     Are the analyses in a planning-level report or document 
based on data, analytical methods, and modeling techniques that are 
reliable, defensible, and consistent with those used in other 
regional transportation studies and project development activities?
     Were the FHWA and FTA, other agencies, and the public 
involved in the relevant planning analysis and the corresponding 
planning decisions?
     Were the planning products available to other agencies 
and the public during NEPA scoping?
     During NEPA scoping, was a clear connection between the 
decisions made in planning and those to be made during the project 
development stage explained to the public and others? What was the 
response?
     Are natural resource and land use plans being informed 
by transportation planning products, and vice versa?
    Purpose and Need:
    8. How can transportation planning be used to shape a project's 
purpose and need in the NEPA process?
    A sound transportation planning process is the primary source of 
the project purpose and need. Through transportation planning, State 
and local governments, with involvement of stakeholders and the 
public, establish a vision for the region's future transportation 
system, define transportation goals and objectives for realizing 
that vision, decide which needs to address, and determine the 
timeframe for addressing these issues. The transportation planning 
process also provides a potential forum to define a project's 
purpose and need by framing the scope of the problem to be addressed 
by a proposed project. This scope may be further refined during the 
transportation planning process as more information about the 
transportation need is collected and consultation with the public 
and other stakeholders clarifies other issues and goals for the 
region.
    23 U.S.C. 139(f), as amended by the SAFETEA-LU Section 6002, 
provides additional focus regarding the definition of the purpose 
and need and objectives. For example, the lead agency, as early as 
practicable during the environmental review process, shall provide 
an opportunity for involvement by participating agencies and the 
public in defining the purpose and need for a project. The statement 
of purpose and need shall include a clear statement of the 
objectives that the proposed action is intended to achieve, which 
may include: (a) Achieving a transportation objective identified in 
an applicable statewide or metropolitan transportation plan; (b) 
supporting land use, economic development, or growth objectives 
established in applicable Federal, State, local, or Tribal plans; 
and (c) serving national defense, national security, or other 
national objectives, as established in Federal laws, plans, or 
policies.
    The transportation planning process can be utilized to develop 
the purpose and need in the following ways:
    (a) Goals and objectives from the transportation planning 
process may be part of the project's purpose and need statement;
    (b) A general travel corridor or general mode or modes (e.g., 
highway, transit, or a highway/transit combination) resulting from 
planning analyses may be part of the project's purpose and need 
statement;
    (c) If the financial plan for a metropolitan transportation plan 
indicates that funding for a specific project will require special 
funding sources (e.g., tolls or public-private financing), such 
information may be included in the purpose and need statement; or
    (d) The results of analyses from management systems (e.g., 
congestion, pavement, bridge, and/or safety) may shape the purpose 
and need statement.
    The use of these planning-level goals and choices must be 
appropriately explained during NEPA scoping and in the NEPA 
document.
    Consistent with NEPA, the purpose and need statement should be a 
statement of a transportation problem, not a specific solution. 
However, the purpose and need statement should be specific enough to 
generate alternatives that may potentially yield real solutions to 
the problem at-hand. A purpose and need statement that yields only 
one alternative may indicate a purpose and need that is too narrowly 
defined.
    Short of a fully integrated transportation decisionmaking 
process, many State DOTs develop information for their purpose and 
need statements when implementing interagency NEPA/Section 404 
process merger agreements. These agreements may need to be expanded 
to include commitments to share and utilize transportation planning 
products when developing a project's purpose and need.
    9. Under what conditions can the NEPA process be initiated in 
conjunction with transportation planning studies?
    The NEPA process may be initiated in conjunction with 
transportation planning studies in a number of ways. A common method 
is the ``tiered EIS,'' in which the first-tier EIS evaluates general 
travel corridors, modes, and/or packages of projects at a planning 
level of detail, leading to the refinement of purpose and need and, 
ideally, selection of the design concept and scope for a project or 
series of projects. Subsequently, second-tier NEPA review(s) of the 
resulting

[[Page 7283]]

projects would be performed in the usual way. The first-tier EIS 
uses the NEPA process as a tool to involve environmental, 
regulatory, and resource agencies and the public in the planning 
decisions, as well as to ensure the appropriate consideration of 
environmental factors in these planning decisions.
    Corridor or subarea analyses/studies are another option when the 
long-range transportation plan leaves open the possibility of 
multiple approaches to fulfill its goals and objectives. In such 
cases, the formal NEPA process could be initiated through 
publication of a NOI in conjunction with a corridor or subarea 
planning study. Similarly, some public transportation operators 
developing major capital projects perform the mandatory planning 
Alternatives Analysis required for funding under FTA's Capital 
Investment Grant program [49 U.S.C. 5309(d) and (e)] within the NEPA 
process and combine the planning Alternatives Analysis with the 
draft EIS.
    Alternatives:
    10. In the context of this Appendix, what is the meaning of the 
term ``alternatives''?
    This Appendix uses the term ``alternatives'' as specified in the 
NEPA regulations (40 CFR 1502.14), where it is defined in its 
broadest sense to include everything from major modal alternatives 
and location alternatives to minor design changes that would 
mitigate adverse impacts. This Appendix does not use the term as it 
is used in many other contexts (e.g., ``prudent and feasible 
alternatives'' under Section 4(f) of the Department of 
Transportation Act, the ``Least Environmentally Damaging Practicable 
Alternative'' under the Clean Water Act, or the planning 
Alternatives Analysis in 49 U.S.C. 5309(d) and (e)).
    11. Under what circumstances can alternatives be eliminated from 
detailed consideration during the NEPA process based on information 
and analysis from the transportation planning process?
    There are two ways in which the transportation planning process 
can begin limiting the alternative solutions to be evaluated during 
the NEPA process: (a) Shaping the purpose and need for the project; 
or (b) evaluating alternatives during planning studies and 
eliminating some of the alternatives from detailed study in the NEPA 
process prior to its start. Each approach requires careful 
attention, and is summarized below.
    (a) Shaping the Purpose and Need for the Project: The 
transportation planning process should shape the purpose and need 
and, thereby, the range of reasonable alternatives. With proper 
documentation and public involvement, a purpose and need derived 
from the planning process can legitimately narrow the alternatives 
analyzed in the NEPA process. See the response to Question 8 for 
further discussion on how the planning process can shape the purpose 
and need used in the NEPA process.
    For example, the purpose and need may be shaped by the 
transportation planning process in a manner that consequently 
narrows the range of alternatives that must be considered in detail 
in the NEPA document when:
    (1) The transportation planning process has selected a general 
travel corridor as best addressing identified transportation 
problems and the rationale for the determination in the planning 
document is reflected in the purpose and need statement of the 
subsequent NEPA document;
    (2) The transportation planning process has selected a general 
mode (e.g., highway, transit, or a highway/transit combination) that 
accomplishes its goals and objectives, and these documented 
determinations are reflected in the purpose and need statement of 
the subsequent NEPA document; or
    (3) The transportation planning process determines that the 
project needs to be funded by tolls or other non-traditional funding 
sources in order for the long-range transportation plan to be 
fiscally constrained or identifies goals and objectives that can 
only be met by toll roads or other non-traditional funding sources, 
and that determination of those goals and objectives is reflected in 
the purpose and need statement of the subsequent NEPA document.
    (b) Evaluating and Eliminating Alternatives During the 
Transportation Planning Process: The evaluation and elimination of 
alternatives during the transportation planning process can be 
incorporated by reference into a NEPA document under certain 
circumstances. In these cases, the planning study becomes part of 
the NEPA process and provides a basis for screening out 
alternatives. As with any part of the NEPA process, the analysis of 
alternatives to be incorporated from the process must have a 
rational basis that has been thoroughly documented (including 
documentation of the necessary and appropriate vetting through the 
applicable public involvement processes). This record should be made 
available for public review during the NEPA scoping process.
    See responses to Questions 4, 5, 6, and 7 for additional 
elements to consider with respect to acceptance of planning products 
for NEPA documentation and the response to Question 12 on the 
information or analysis from the transportation planning process 
necessary for supporting the elimination of an alternative(s) from 
detailed consideration in the NEPA process.
    For instance, under FTA's Capital Investment Grant program, the 
alternatives considered in the NEPA process may be narrowed in those 
instances that the planning Alternatives Analysis required by 49 
U.S.C. 5309(e) is conducted as a planning study prior to the NEPA 
review. In fact, the FTA may be able to narrow the alternatives 
considered in detail in the NEPA document to the No-Build (No 
Action) alternative and the Locally Preferred Alternative. 
Alternatives must meet the following criteria if they are deemed 
sufficiently considered by a planning Alternatives Analysis under 
FTA's Capital Investment Grant program conducted prior to NEPA 
without a programmatic NEPA analysis and documentation:
     During the planning Alternatives Analysis, all of the 
reasonable alternatives under consideration must be fully evaluated 
in terms of their transportation impacts; capital and operating 
costs; social, economic, and environmental impacts; and technical 
considerations;
     There must be appropriate public involvement in the 
planning Alternatives Analysis;
     The appropriate Federal, State, and local 
environmental, regulatory, and resource agencies must be engaged in 
the planning Alternatives Analysis;
     The results of the planning Alternatives Analysis must 
be documented;
     The NEPA scoping participants must agree on the 
alternatives that will be considered in the NEPA review; and
     The subsequent NEPA document must include the 
evaluation of alternatives from the planning Alternatives Analysis.
    The above criteria apply specifically to FTA's Capital 
Investment Grant process. However, for other transportation 
projects, if the planning process has included the analysis and 
stakeholder involvement that would be undertaken in a first tier 
NEPA process, then the alternatives screening conducted in the 
transportation planning process may be incorporated by reference, 
described, and relied upon in the project-level NEPA document. At 
that point, the project-level NEPA analysis can focus on the 
remaining alternatives.
    12. What information or analysis from the transportation 
planning process is needed in an EA or EIS to support the 
elimination of an alternative(s) from detailed consideration?
    The section of the EA or EIS that discusses alternatives 
considered but eliminated from detailed consideration should:
    (a) Identify any alternatives eliminated during the 
transportation planning process (this could include broad categories 
of alternatives, as when a long-range transportation plan selects a 
general travel corridor based on a corridor study, thereby 
eliminating all alternatives along other alignments);
    (b) Briefly summarize the reasons for eliminating the 
alternative; and
    (c) Include a summary of the analysis process that supports the 
elimination of alternatives (the summary should reference the 
relevant sections or pages of the analysis or study) and incorporate 
it by reference or append it to the NEPA document.
    Any analyses or studies used to eliminate alternatives from 
detailed consideration should be made available to the public and 
participating agencies during the NEPA scoping process and should be 
reasonably available during comment periods.
    Alternatives passed over during the transportation planning 
process because they are infeasible or do not meet the NEPA 
``purpose and need'' can be omitted from the detailed analysis of 
alternatives in the NEPA document, as long as the rationale for 
elimination is explained in the NEPA document. Alternatives that 
remain ``reasonable'' after the planning-level analysis must be 
addressed in the EIS, even when they are not the preferred 
alternative. When the proposed action evaluated in an EA involves 
unresolved conflicts concerning alternative uses of available 
resources, NEPA requires that appropriate alternatives be studied, 
developed, and described.
    Affected Environment and Environmental Consequences:

[[Page 7284]]

    13. What types of planning products provide analysis of the 
affected environment and environmental consequences that are useful 
in a project-level NEPA analysis and document?
    The following planning products are valuable inputs to the 
discussion of the affected environment and environmental 
consequences (both its current state and future state in the absence 
of the proposed action) in the project-level NEPA analysis and 
document:
     Regional development and growth analyses;
     Local land use, growth management, or development 
plans; and
     Population and employment projections.
    The following are types of information, analysis, and other 
products from the transportation planning process that can be used 
in the discussion of the affected environment and environmental 
consequences in an EA or EIS:
    (a) Geographic information system (GIS) overlays showing the 
past, current, or predicted future conditions of the natural and 
built environments;
    (b) Environmental scans that identify environmental resources 
and environmentally sensitive areas;
    (c) Descriptions of airsheds and watersheds;
    (d) Demographic trends and forecasts;
    (e) Projections of future land use, natural resource 
conservation areas, and development; and
    (f) The outputs of natural resource planning efforts, such as 
wildlife conservation plans, watershed plans, special area 
management plans, and multiple species habitat conservation plans.
    However, in most cases, the assessment of the affected 
environment and environmental consequences conducted during the 
transportation planning process will not be detailed or current 
enough to meet NEPA standards and, thus, the inventory and 
evaluation of affected resources and the analysis of consequences of 
the alternatives will need to be supplemented with more refined 
analysis and possibly site-specific details during the NEPA process.
    14. What information from the transportation planning process is 
useful in describing a baseline for the NEPA analysis of indirect 
and cumulative impacts?
    Because the nature of the transportation planning process is to 
look broadly at future land use, development, population increases, 
and other growth factors, the planning analysis can provide the 
basis for the assessment of indirect and cumulative impacts required 
under NEPA. The consideration in the transportation planning process 
of development, growth, and consistency with local land use, growth 
management, or development plans, as well as population and 
employment projections, provides an overview of the multitude of 
factors in an area that are creating pressures not only on the 
transportation system, but on the natural ecosystem and important 
environmental and community resources. An analysis of all reasonably 
foreseeable actions in the area also should be a part of the 
transportation planning process. This planning-level information 
should be captured and utilized in the analysis of indirect and 
cumulative impacts during the NEPA process.
    To be used in the analysis of indirect and cumulative impacts, 
such information should:
    (a) Be sufficiently detailed that differences in consequences of 
alternatives can be readily identified;
    (b) Be based on current data (e.g., data from the most recent 
Census) or be updated by additional information;
    (c) Be based on reasonable assumptions that are clearly stated; 
and/or
    (d) Rely on analytical methods and modeling techniques that are 
reliable, defensible, and reasonably current.
    Environmental Mitigation:
    15. How can planning-level efforts best support advance 
mitigation, mitigation banking, and priorities for environmental 
mitigation investments?
    A lesson learned from efforts to establish mitigation banks and 
advance mitigation agreements and alternative mitigation options is 
the importance of beginning interagency discussions during the 
transportation planning process. Development pressures, habitat 
alteration, complicated real estate transactions, and competition 
for potential mitigation sites by public and private project 
proponents can encumber the already difficult task of mitigating for 
``like'' value and function and reinforce the need to examine 
mitigation strategies as early as possible.
    Robust use of remote sensing, GIS, and decision support systems 
for evaluating conservation strategies are all contributing to the 
advancement of natural resource and environmental planning. The 
outputs from environmental planning can now better inform 
transportation planning processes, including the development of 
mitigation strategies, so that transportation and conservation goals 
can be optimally met. For example, long-range transportation plans 
can be screened to assess the effect of general travel corridors or 
density, on the viability of sensitive plant and animal species or 
habitats. This type of screening provides a basis for early 
collaboration among transportation and environmental staffs, the 
public, and regulatory agencies to explore areas where impacts must 
be avoided and identify areas for mitigation investments. This can 
lead to mitigation strategies that are both more economical and more 
effective from an environmental stewardship perspective than 
traditional project-specific mitigation measures.

III. Administrative Issues:

    16. Are Federal funds eligible to pay for these additional, or 
more in depth, environmental studies in transportation planning?
    Yes. For example, the following FHWA and FTA funds may be 
utilized for conducting environmental studies and analyses within 
transportation planning:
     FHWA planning and research funds, as defined under 23 
CFR Part 420 (e.g., Metropolitan Planning (PL), Statewide Planning 
and Research (SPR), National Highway System (NHS), Surface 
Transportation Program (STP), and Equity Bonus); and
     FTA planning and research funds (49 U.S.C. 5303 and 49 
U.S.C. 5313(b)), urban formula funds (49 U.S.C. 5307), and (in 
limited circumstances) transit capital investment funds (49 U.S.C. 
5309).
    The eligible transportation planning-related uses of these funds 
may include: (a) Conducting feasibility or subarea/corridor needs 
studies and (b) developing system-wide environmental information/
inventories (e.g., wetland banking inventories or standards to 
identify historically significant sites). Particularly in the case 
of PL and SPR funds, the proposed expenditure must be closely 
related to the development of transportation plans and programs 
under 23 U.S.C. 134-135 and 49 U.S.C. 5303-5306.
    For FHWA funding programs, once a general travel corridor or 
specific project has progressed to a point in the preliminary 
engineering/NEPA phase that clearly extends beyond transportation 
planning, additional in-depth environmental studies must be funded 
through the program category for which the ultimate project 
qualifies (e.g., NHS, STP, Interstate Maintenance, and/or Bridge), 
rather than PL or SPR funds.
    Another source of funding is FHWA's Transportation Enhancement 
program, which may be used for activities such as: conducting 
archeological planning and research; developing inventories such as 
those for historic bridges and highways, and other surface 
transportation-related structures; conducting studies to determine 
the extent of water pollution due to highway runoff; and conducting 
studies to reduce vehicle-caused wildlife mortality while 
maintaining habitat connectivity.
    The FHWA and the FTA encourage State DOTs, MPOs, and public 
transportation operators to seek partners for some of these studies 
from environmental, regulatory, and resource agencies, non-
government organizations, and other government and private sector 
entities with similar data needs, or environmental interests. In 
some cases, these partners may contribute data and expertise to the 
studies, as well as funding.
    17. What staffing or organizational arrangements may be helpful 
in allowing planning products to be accepted in the NEPA process?
    Certain organizational and staffing arrangements may support a 
more integrated approach to the planning/NEPA decision-making 
continuum. In many cases, planning organizations do not have 
environmental expertise on staff or readily accessible. Likewise, 
the review and regulatory responsibilities of many environmental, 
regulatory, and resource agencies make involvement in the 
transportation planning process a challenge for staff resources. 
These challenges may be partially met by improved use of the outputs 
of each agency's planning resources and by augmenting their 
capabilities through greater use of GIS and remote sensing 
technologies (see http://www.gis.fhwa.dot.gov/ for additional 
information on the use of GIS). Sharing databases and the planning 
products of local land use decision-makers and State and Federal 
environmental, regulatory, and

[[Page 7285]]

resource agencies also provide efficiencies in acquiring and sharing 
the data and information needed for both transportation planning and 
NEPA work.
    Additional opportunities such as shared staff, training across 
disciplines, and (in some cases) reorganizing to eliminate 
structural divisions between planning and NEPA practitioners may 
also need to be considered in order to better integrate NEPA 
considerations into transportation planning studies. The answers to 
the following two questions also contain useful information on 
training and staffing opportunities.
    18. How have environmental, regulatory, and resource agency 
liaisons (Federally- and State DOT-funded positions) and partnership 
agreements been used to provide the expertise and interagency 
participation needed to enhance the consideration of environmental 
factors in the planning process?
    For several years, States have utilized Federal and State 
transportation funds to support focused and accelerated project 
review by a variety of local, State, Tribal, and Federal agencies. 
While Section 1309(e) of the TEA-21 and its successor in SAFETEA-LU 
section 6002 speak specifically to transportation project 
streamlining, there are other authorities that have been used to 
fund positions, such as the Intergovernmental Cooperation Act (31 
U.S.C. 6505). In addition, long-term, on-call consultant contracts 
can provide backfill support for staff that are detailed to other 
parts of an agency for temporary assignments. At last count (as of 
2003), 246 positions were being funded. Additional information on 
interagency funding agreements is available at: http://environment.fhwa.dot.gov/strmlng/igdocs/index.htm.
    Moreover, every State has advanced a variety of stewardship and 
streamlining initiatives that necessitate early involvement of 
environmental, regulatory, and resource agencies in the project 
development process. Such process improvements have: addressed the 
exchange of data to support avoidance and impact analysis; 
established formal and informal consultation and review schedules; 
advanced mitigation strategies; and resulted in a variety of 
programmatic reviews. Interagency agreements and workplans have 
evolved to describe performance objectives, as well as specific 
roles and responsibilities related to new streamlining initiatives. 
Some States have improved collaboration and efficiency by co-
locating environmental, regulatory, and resource and transportation 
agency staff.
    19. What training opportunities are available to MPOs, State 
DOTs, public transportation operators and environmental, regulatory, 
and resource agencies to assist in their understanding of the 
transportation planning and NEPA processes?
    Both the FHWA and the FTA offer a variety of transportation 
planning, public involvement, and NEPA courses through the National 
Highway Institute and/or the National Transit Institute. Of 
particular note is the Linking Planning and NEPA Workshop, which 
provides a forum and facilitated group discussion among and between 
State DOT; MPO; Federal, Tribal, and State environmental, 
regulatory, and resource agencies; and FHWA/FTA representatives (at 
both the executive and program manager levels) to develop a State-
specific action plan that will provide for strengthened linkages 
between the transportation planning and NEPA processes.
    Moreover, the U.S. Fish and Wildlife Service offers Green 
Infrastructure Workshops that are focused on integrating planning 
for natural resources (``green infrastructure'') with the 
development, economic, and other infrastructure needs of society 
(``gray infrastructure'').
    Robust planning and multi-issue environmental screening requires 
input from a wide variety of disciplines, including information 
technology; transportation planning; the NEPA process; and 
regulatory, permitting, and environmental specialty areas (e.g., 
noise, air quality, and biology). Senior managers at transportation 
and partner agencies can arrange a variety of individual training 
programs to support learning curves and skill development that 
contribute to a strengthened link of the transportation planning and 
NEPA processes. Formal and informal mentoring on an intra-agency 
basis can be arranged. Employee exchanges within and between 
agencies can be periodically scheduled, and persons involved with 
professional leadership programs can seek temporary assignments with 
partner agencies.

IV. Additional Information on this Topic

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

PART 500--MANAGEMENT AND MONITORING SYSTEMS

0
2. Revise the authority citation for part 500 to read as follows:

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


0
3. Revise Sec.  500.109 to read as follows:


Sec.  500.109  CMS.

    (a) For purposes of this part, congestion means the level at which 
transportation system performance is unacceptable due to excessive 
travel times and delays. Congestion management means the application of 
strategies to improve system performance and reliability by reducing 
the adverse impacts of congestion on the movement of people and goods 
in a region. A congestion management system or process is a systematic 
and regionally accepted approach for managing congestion that provides 
accurate, up-to-date information on transportation system operations 
and performance and assesses alternative strategies for congestion 
management that meet State and local needs.
    (b) The development of a congestion management system or process 
should result in performance measures and strategies that can be 
integrated into transportation plans and programs. The level of system 
performance deemed acceptable by State and local officials may vary by 
type of transportation facility, geographic location (metropolitan area 
or subarea and/or non-metropolitan area), and/or time of day. In both 
metropolitan and non-metropolitan areas, consideration needs to be 
given to strategies that manage demand, reduce single occupant vehicle 
(SOV) travel, and improve transportation system management and 
operations. Where the addition of general purpose lanes is determined 
to be an appropriate congestion management strategy, explicit 
consideration is to be given to the incorporation of appropriate 
features into the SOV project to facilitate future demand management 
strategies and operational improvements that will maintain the 
functional integrity of those lanes.

Title 49--Transportation

0
4. The authority citation for part 613 continues to read as follows:

    Authority: 23 U.S.C. 134, 135, and 217(g); 42 U.S.C. 3334, 4233, 
4332, 7410 et seq; 49 U.S.C. 5303-5306, 5323(k); and 49 CFR 1.48(b), 
1.51(f) and 21.7(a).


0
5. Revise Subpart A and Subpart B of 49 CFR part 613 to read as 
follows:

Part 613--METROPOLITAN AND STATEWIDE PLANNING

Subpart A--Metropolitan Transportation Planning and Programming
Sec.
613.100 Metropolitan transportation planning and programming.
Subpart B--Statewide Transportation Planning and Programming
Sec.
613.200 Statewide transportation planning and programming.

[[Page 7286]]

Subpart A--Metropolitan Transportation Planning and Programming


Sec.  613.100  Metropolitan transportation planning and programming.

    The regulations in 23 CFR 450, subpart C, shall be followed in 
complying with the requirements of this subpart. The definitions in 23 
CFR 450, subpart A, shall apply.

Subpart B--Statewide Transportation Planning and Programming


Sec.  613.200  Statewide transportation planning and programming.

    The regulations in 23 CFR 450, subpart B, shall be followed in 
complying with the requirements of this subpart. The definitions in 23 
CFR 450, subpart A, shall apply.

[FR Doc. 07-493 Filed 2-13-07 8:45 am]
BILLING CODE 4910-22-P