[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]
[[Page 7223]]
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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
[[Page 7226]]
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.
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\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.
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\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.
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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.
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\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.
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\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.
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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\
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\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.
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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.
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\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.
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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.
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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.
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\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.
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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
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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
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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
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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
[[Page 7272]]
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
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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
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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