[Federal Register Volume 81, Number 103 (Friday, May 27, 2016)]
[Rules and Regulations]
[Pages 34050-34164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11964]



[[Page 34049]]

Vol. 81

Friday,

No. 103

May 27, 2016

Part III





Department of Transportation





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Federal Highway Administration





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23 CFR Parts 450 and 771











Federal Transit Administration





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49 CFR Part 613





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Statewide and Nonmetropolitan Transportation Planning; Metropolitan 
Transportation Planning; Final Rule

  Federal Register / Vol. 81 , No. 103 / Friday, May 27, 2016 / Rules 
and Regulations  

[[Page 34050]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 450 and 771

Federal Transit Administration

49 CFR Part 613

[Docket No. FHWA-2013-0037]
RIN 2125-AF52; 2132-AB10


Statewide and Nonmetropolitan Transportation Planning; 
Metropolitan Transportation Planning

AGENCY: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA); U.S. Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The FHWA and FTA are jointly issuing this final rule to update 
the regulations governing the development of metropolitan 
transportation plans (MTP) and programs for urbanized areas, long-range 
statewide transportation plans and programs, and the congestion 
management process as well as revisions related to the use of and 
reliance on planning products developed during the planning process for 
project development and the environmental review process. The changes 
reflect the passage of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21) and the Fixing America's Surface Transportation 
(FAST) Act. The MAP-21 continues many provisions related to 
transportation planning from prior laws; however, it introduces 
transformational changes and adds some new provisions. The FAST Act 
makes minor edits to existing provisions. The changes make the 
regulations consistent with current statutory requirements and 
implement the following: A new mandate for State departments of 
transportation (hereafter referred to simply as ``States'') and 
metropolitan planning organizations (MPO) to take a performance-based 
approach to planning and programming; a new emphasis on the 
nonmetropolitan transportation planning process, by requiring States to 
have a higher level of involvement with nonmetropolitan local officials 
and providing a process for the creation of regional transportation 
planning organizations (RTPO); a structural change to the membership of 
the larger MPOs; a new framework for voluntary scenario planning; new 
authority for the integration of the planning and environmental review 
processes; and a process for programmatic mitigation plans.

DATES: Effective June 27, 2016.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Harlan W. Miller, 
Office of Planning, Environment, and Realty, (202) 366-0847; or Ms. 
Jennifer Mayo, Office of the Chief Counsel, (202) 366-1523. For the 
FTA: Ms. Sherry Riklin, Office of Planning and Environment, (202) 366-
5407; Mr. Dwayne Weeks, Office of Planning and Environment, (202) 493-
0316; or Mr. Christopher Hall, Office of Chief Counsel, (202) 366-5218. 
Both agencies are located at 1200 New Jersey Avenue SE., Washington, DC 
20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t. for FHWA, and 
9:00 a.m. to 5:30 p.m., e.t. for FTA, Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    This document, the notices of proposed rulemakings (NPRM) published 
on June 2, 2014 (79 FR 31784), and September 10, 2014 (79 FR 53673), 
and all comments received may be viewed online through the Federal 
eRulemaking portal at http://www.regulations.gov. The Web site is 
available 24 hours each day, 365 days each year. An electronic copy of 
this document may also be downloaded by accessing the Office of the 
Federal Register's home page at: https://www.federalregister.gov and 
the Government Printing Office's Web site at: http://www.gpo.gov.

Table of Contents for Supplementary Information

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of Major Provisions and Key Changes From NPRM
    1. Performance-Based Planning and Programming
    2. New Emphasis on Nonmetropolitan Transportation Planning
    3. Additions to the Metropolitan Planning Program
    4. Use of Planning Products in Project Development
    5. Programmatic Mitigation
    6. Other Changes
    7. Changes Resulting From the FAST Act
    C. Costs and Benefits
II. Acronyms and Abbreviations
III. Background
IV. Summary of Comments
    A. Specific Topics for Which FHWA and FTA Requested Comments
    B. Recurring Comment Themes on Major Provisions of the Rule
V. Section-by-Section Discussion
VI. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose of the Regulatory Action

    The MAP-21 transformed the Federal-aid highway program and the 
Federal transit program by requiring a transition to performance-
driven, outcome-based approaches to key areas. With respect to 
planning, although MAP-21 leaves the basic framework of the planning 
process largely untouched, the statute introduced critical changes to 
the planning process by requiring States, MPOs, and operators of public 
transportation to link investment priorities to the achievement of 
performance targets that they would establish to address performance 
measures in key areas such as safety, infrastructure condition, 
congestion, system reliability, emissions, and freight movement. With 
respect to planning, the FAST Act left the provisions from MAP-21 
intact and made minor revisions to existing provisions.
    Accordingly, the final rule establishes that the statewide and 
metropolitan transportation planning processes must provide for the use 
of a performance-based approach to decisionmaking in support of the 
national goals described in 23 U.S.C. 150(b) and the general purposes 
described in 49 U.S.C. 5301. The final rule requires that States, MPOs, 
and operators of public transportation establish targets in key 
national performance areas to document expectations for future 
performance and that States, MPOs, and operators of public 
transportation must coordinate the targets that they set for key areas. 
It further establishes that MPOs must reflect those targets in the MTPs 
and that States must reflect those targets in their long-range 
statewide transportation plans. The final rule establishes that the 
States and MPOs must each describe the anticipated effect of their 
respective transportation improvement programs toward achieving their 
targets. As MAP-21 contained new performance-related provisions 
requiring States, MPOs, and operators of public transportation to 
develop other performance-based plans and processes, the final rule 
establishes that States and MPOs must integrate the goals, objectives, 
performance measures, and targets of those other performance-based 
plans and processes into their planning processes.
    To support the effective implementation of a performance-based 
planning process, the final rule establishes that every MPO serving an 
area designated as a transportation management area (TMA) must include 
on its policy board an official (or officials) who is formally 
designated to

[[Page 34051]]

represent the collective interests of the operators of public 
transportation in the metropolitan planning area (MPA) and will have 
equal decisionmaking rights and authorities as other officials on its 
policy board. It also establishes the option for MPOs to use scenario 
planning during the development of their MTPs. Scenario planning is an 
analytical framework to inform decisionmakers about the implications of 
various investments and policies on transportation system condition and 
performance.
    To continue implementation of the MAP-21 project delivery 
provisions concerning coordination between the transportation planning 
process and the environmental review process, the final rule amends the 
existing planning regulations to add a reference to a new statutory 
process for integrating planning and the environmental review 
activities, but preserves other authorities for integration. It also 
establishes an optional framework for the States and MPOs to develop 
programmatic mitigation plans as part of the statewide and the 
metropolitan transportation planning processes.
    To support FAST's minor amendments to the planning process, this 
final rule amends the existing planning regulations to add new planning 
factors for States and MPOs to consider and implement as part of the 
planning process. It adds ``takes into consideration resiliency needs'' 
to the purposes of the statewide and nonmetropolitan and the 
metropolitan transportation planning processes. It adds new parties 
that States and MPOs shall provide early and continuous involvement 
opportunities to in the transportation planning process and that States 
and MPOs shall allow to comment on the long-range statewide 
transportation plan and the metropolitan transportation plans. It 
provides MPO's serving TMA's with an optional framework for developing 
a congestion management plan, and it adds consideration of the role 
intercity buses may play to the long-range statewide transportation 
plan and the metropolitan transportation plan. It also makes reducing 
the vulnerability of the existing transportation infrastructure to 
natural disasters a part of the metropolitan transportation plan. It 
provides structure for the transit representation on MPOs serving TMA 
areas. It also provides a revised new authority for the use of planning 
information in the environmental review process that States and MPOs 
may use. The final rule also contains FAST's requirement that long-
range statewide transportation plans shall include a description of 
performance measures and targets and shall include a system performance 
report. Previously under MAP-21 this requirement was a ``should.'' 
These new or revised provisions from the FAST Act have been included in 
the final rule without changing the language used in the FAST Act.

B. Summary of Major Provisions and Key Changes From NPRM

    The final rule retains the major provisions of the NPRM with some 
changes based on the review and analysis of comments received. In the 
final rule, FHWA and FTA make the statewide, metropolitan, and 
nonmetropolitan transportation planning regulations consistent with 
current statutory requirements. The final rule establishes the 
following: A new mandate for States and MPOs to take a performance-
based approach to planning and programming; a new emphasis on the 
nonmetropolitan transportation planning process, by requiring States to 
have a higher level of involvement with nonmetropolitan local officials 
and providing a process for the creation of RTPOs; a structural change 
to the membership of the larger MPOs; a new framework for voluntary 
scenario planning; new authority for the integration of the planning 
and environmental review processes; and a process for programmatic 
mitigation plans. Section references below refer to the sections of the 
regulatory text for title 23 of the Code of Federal Regulations (CFR).
1. Performance-Based Planning and Programming
    The MAP-21 transformed the Federal-aid highway program and the 
Federal transit program by requiring a transition to a performance-
driven, outcome-based program that provides for a greater level of 
transparency and accountability, improved project decisionmaking, and 
more efficient investment of Federal transportation funds.\1\ As part 
of this new performance-based approach, recipients of Federal-aid 
highway program funds and Federal transit funds are required to link 
the investment priorities contained in the Statewide Transportation 
Improvement Program (STIP) and Transportation Improvement Program (TIP) 
to achievement of performance targets. In a series of rulemakings, FHWA 
and FTA will establish national performance measures in key areas, 
including safety, infrastructure condition, congestion, system 
reliability, emissions, and freight movement.
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    \1\ See, e.g., 23 U.S.C. 150(a).
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    Sections 450.206 and 450.306 were amended to establish the 
requirement that States, MPOs, and operators of public transportation 
use these measures to establish targets in the key national performance 
areas to document expectations for future performance.\2\ The final 
rule further establishes that States and MPOs must coordinate their 
respective targets with each other to ensure consistency to the maximum 
extent practicable. Although proposed in the NPRM, the final rule does 
not require that States select and establish performance targets in 
coordination with Federal Lands Management agencies. The final rule 
requires that for transit-related targets, States and MPOs must 
coordinate their selection of targets relating to transit safety and 
transit state of good repair to the maximum extent practicable with 
operators of public transportation to ensure consistency with other 
performance-based provisions applicable to operators of public 
transportation.
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    \2\ See 23 U.S.C. 134(h)(2), 23 U.S.C. 135(d)(2), 49 U.S.C. 
5303(h)(2), and 49 U.S.C. 5304(d)(2).
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    The MAP-21 performance-related provisions also require States, 
MPOs, and operators of public transportation to develop other 
performance-based plans and processes or add new requirements on 
existing performance-based plans and processes. These performance-based 
plans and processes include the Congestion Mitigation and Air Quality 
Improvement (CMAQ) Program performance plan, the strategic highway 
safety plan, the public transportation agency safety plan, the highway 
and transit asset management plans, and the State freight plan. 
Sections 450.206 and 450.306 were further amended to establish that 
States and MPOs integrate the goals, objectives, performance measures, 
and targets of these other performance plans and processes into their 
planning process.\3\ This integration would help ensure that key 
performance elements of these other performance plans are considered as 
part of the investment decisionmaking process. To provide States and 
MPOs with the needed flexibility to develop their approaches to 
integrating the performance-based plans into their planning processes 
as requested by multiple commenters, FHWA and FTA deleted proposed 
sections that would require the consideration of elements of these 
plans in the development of the

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long-range statewide transportation plans,\4\ MTPs,\5\ TIPs,\6\ and 
STIPs.\7\
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    \3\ See 23 U.S.C. 134(h)(2)(D), 23 U.S.C. 135(d)(2)(C), 49 
U.S.C. 5303(h)(2)(D), and 49 U.S.C. 5304(d)(2)(C).
    \4\ Proposed section 450.216(n).
    \5\ Proposed section 450.324((f)(7).
    \6\ Proposed section 450.218(o) and proposed section 450.218(r).
    \7\ Proposed section 450.326(d) and proposed section 450.326(m).
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    Section 450.208 in the NPRM and in the final rule discusses 
coordination of planning process activities. Section 450.208(e) of the 
NPRM proposed that, in carrying out the statewide transportation 
planning process, States shall apply asset management principles and 
techniques, consistent with the State Asset Management Plan for the 
National Highway System (NHS), the Transit Asset Management Plan, and 
the Public Transportation Safety Plan. Because this is not a statutory 
requirement and the statewide and nonmetropolitan transportation 
planning process is much broader than an asset management plan, FHWA 
and FTA changed ``shall'' to ``should'' in this provision. Section 
450.208(g) in the NPRM would have required that a State integrate the 
goals, objectives, performance measures, and targets into the statewide 
transportation planning process, as appropriate from a specified list 
of performance-based plans--a requirement that was also listed in 
section 450.206(c). This requirement remains, however, the paragraph in 
section 450.208(g) was deleted from the final rule as it duplicates 
section 450.206(c)(4).
    Section 450.210 requires that States shall provide opportunities 
for public review and comment at key decision points in the 
transportation planning process and for nonmetropolitan local official 
participation in the development of the long-range State plan and the 
STIP. Consistent with the requirement to engage the public in the 
transportation planning process, FHWA and FTA added section 
450.210(a)(3) to the final rule, which states that: ``With respect to 
the setting of targets, nothing in this part precludes a State from 
considering comments made as part of the State's public involvement 
process.''
    Section 450.314 was amended to require that MPOs identify how they 
will cooperatively implement these performance-based planning 
provisions with States and operators of public transportation. Rather 
than requiring a reopening of metropolitan planning agreements as 
proposed in the NPRM, the final rule provides the option documenting it 
either as part of the metropolitan planning agreements, or documenting 
it in some other means outside of the metropolitan planning agreements 
as determined cooperatively by the MPO(s), State(s), and providers of 
public transportation. Whichever option is selected, section 450.314(h) 
establishes that the MPO(s), the State(s), and the providers of public 
transportation must jointly agree upon and document in writing the 
coordinated processes for the collection of performance data, the 
selection of performance targets for the metropolitan area, the 
reporting of metropolitan area targets, and the reporting of actual 
system performance related to those targets. The documentation must 
also describe the roles and responsibilities for the collection of data 
for the NHS. Including this description is critical because of the new 
requirements for a State asset management plan for the NHS and 
establishment of performance measures and targets.\8\
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    \8\ Federal-aid Highway Risk-Based Asset Management Plan Rule 
for the National Highway System (NHS) [RIN 2125-AF57].
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    Sections 450.216 and 450.324 discuss the development of the long-
range statewide transportation plan and the MTP. In the final rule, 
section 450.324 was amended to establish that, once performance targets 
are selected by MPOs, MPOs must reflect those targets in their MTPs. As 
a result of FAST, the amended section 450.216 requires States to do the 
same. Accordingly, amended section 450.324 establishes \9\ that, in 
their transportation plans, MPOs would need to describe these 
performance targets, evaluate the condition and performance of the 
transportation system, and report on progress toward the achievement of 
their performance targets.\10\ Amended section 450.216 requires States 
to include similar information in their transportation plans.\11\ 
Sections 450.216(n) and 450.324(f)(7) of the NPRM proposed that the 
long-range statewide transportation plan and the MTP should be informed 
by the financial plan and the investment strategies from the State 
asset management plan for the NHS and by the public transit asset 
management plan(s). As the language is not statutory, and many 
commented that it could generate confusion and inconsistent 
enforcement, FHWA and FTA removed these subparagraphs from the final 
rule. However, FHWA and FTA note that the statute, section 
450.206(c)(4), and section 450.306(d)(4) require that States and MPOs 
integrate the goals, objectives, performance measures, and targets 
described in other performance-based plans into their planning 
processes. The final rule will provide States and MPOs the flexibility 
to determine how to integrate the performance-based plans into their 
planning processes.
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    \9\ See proposed sections 450.216, 450.218, 450.324 and 450.326.
    \10\ See 23 U.S.C. 134(i)(2) and 49 U.S.C. 5303(i)(2).
    \11\ 23 U.S.C. 135(f)(7) and 49 U.S.C. 5304(f)(7).
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    Sections 450.218 and 450.326 were amended to establish that, as 
part of the State and MPO programs of projects (the STIPs and TIPs, 
respectively), the States and MPOs must describe, to the maximum extent 
practicable, the anticipated effect of the investment priorities (or 
their program of transportation improvement projects) toward achieving 
the performance targets.\12\ As the long-range plans, STIPs, and TIPs 
direct investment priorities, it is critical to ensure that performance 
targets are considered during the development of these documents. 
However, sections 450.218(r) and 450.328(d), which proposed that a STIP 
(and TIP) should be consistent with the strategies to achieve targets 
presented in other performance management plans such as the highway and 
transit asset management plans, the Strategic Highway Safety Plan, the 
public transportation agency safety plan, the CMAQ performance plan, 
and the State freight plan (if one exists), are not included in the 
final rule.
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    \12\ See 23 U.S.C. 134(j)(2)(D), 23 U.S.C. 135(g)(4), 49 U.S.C. 
5303(j)(2)(D), and 49 U.S.C. 5304(g)(4).
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    The FHWA and FTA removed this paragraph in the final rule, noting 
that the statute and sections 450.206(c)(4) and 450.306(d)(4) require 
that States and MPOs integrate the goals, objectives, performance 
measures, and targets described in other performance-based plans into 
their planning processes. The FHWA and FTA wish to provide States and 
MPOs the flexibility to determine how State asset management plans for 
the NHS and public transit asset management plans are considered when 
STIPs and TIPs are being developed.
    Finally, proposed section 450.326(n) was changed to 450.326(m) in 
the final rule. The phrase ``or funds under 49 U.S.C. 5307'' was 
deleted from this paragraph as it is not consistent with FTA Circular 
C9030.1E, which permits section 5307 funds to be suballocated according 
to a formula.
2. New Emphasis on Nonmetropolitan Transportation Planning
    This regulation also places a new emphasis on the importance of 
nonmetropolitan transportation planning. This new emphasis, as proposed 
in the NPRM, is retained in the final rule without change. The final 
rule retains sections 450.208-450.210

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and 450.216, without alteration from the NPRM, in which State 
``consultation'' with local officials or RTPOs, if applicable, was 
changed to ``cooperation'' and States have the option to establish and 
designate RTPOs to conduct transportation planning in nonmetropolitan 
areas. Section 450.210(d)(1) provides the option that a State may 
establish an RTPO which shall be a multijurisdictional organization of 
nonmetropolitan local officials or their designees who volunteer for 
such organizations and representatives of local transportation systems 
who volunteer for such organizations. The FHWA and FTA note that the 
establishment of an RTPO by a State is optional and that a State can 
choose to retain its existing rural planning organizations (RPO). 
However, the final rule affirms that in order to be treated as an RTPO 
under this regulation, any existing regional planning organization must 
be established and designated as an RTPO under the provisions of this 
section. The final rule describes its required structure and 
responsibilities.
    Related to the new emphasis on nonmetropolitan transportation 
planning, FHWA and FTA did not include the proposed change to the 
definition of ``consideration'' in section 450.104. Multiple commenters 
noted that to require States and MPOs to take into account the 
consequences, in addition to the opinions, actions, and relevant 
information from other parties when making a decision or determining a 
course of action, would be extraordinarily burdensome and with limited 
benefit. The FHWA and FTA also corrected sections 450.216(h) and 
450.218(c) to refer to the new requirements for a cooperative process 
in section 450.210.
3. Additions to the Metropolitan Planning Process
    The MAP-21 made two changes specific to the metropolitan planning 
process to support the effective implementation of performance-based 
approach to planning and programming. The first change affects the 
policy board structure of large MPOs. For each MPO serving a TMA, the 
planning statutes and this final regulation identify a list of 
government or agency officials that must be on that policy board. The 
June 2, 2014, FHWA and FTA Guidance on Transit Representation on the 
TMA MPO \13\ is superseded by revisions to section 450.310 in the final 
rule. Section 450.310(d)(3) in the NPRM became section 450.310(d)(4) in 
the final rule and is unchanged. The new section 450.310(d)(3) requires 
that representation by operators of public transportation be added to 
this list of officials. The final rule establishes that every MPO that 
serves an area designated as a TMA must include an official (or 
officials) who is formally designated to represent the collective 
interests of the operators of public transportation in the MPA and will 
have equal decisionmaking rights and authorities as other officials on 
its policy board. Related to this requirement, FHWA and FTA did not 
include the proposed definitions for ``local official'' and ``major 
modes of transportation'' in the final rule. As the NPRM already 
included a definition of ``nonmetropolitan local official,'' and 
section 450.310 identifies ``local elected official,'' FHWA and FTA 
deleted the definition of ``local official.'' With respect to ``major 
modes of transportation,'' FHWA and FTA concur with comments that the 
definition is overly broad and could be read to include all forms of 
transportation, including non-major modes, and that MPOs are in the 
best position to define what constitutes a major mode of transportation 
in their respective MPAs. The FHWA and FTA will continue to work with 
each MPO to determine what major modes exist in their MPA so that they 
are included appropriately in the MPO structure.
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    \13\ 79 FR 31214.
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    The second change in section 450.324 of the final rule provides 
that MPOs may use scenario planning during the development of their 
plans. Scenario planning is an analytical framework to inform 
decisionmakers about the implications of various investments and 
policies on transportation system condition and performance during the 
development of their plan.
4. Use of Planning Products in Project Development
    In addition to changing the planning statutes, the MAP-21 and FAST 
made changes to project delivery provisions concerning coordination 
between the transportation planning process and the environmental 
review process. The FHWA and FTA have long supported the use of 
planning products and decisions during the environmental review 
process, an approach referred to as Planning and Environmental Linkages 
(PEL). Under PEL, Federal agencies use and rely on planning analyses, 
studies, decisions, or other information for the project development 
and environmental review of transportation projects. With PEL, FHWA and 
FTA may, for example: Establish a project's purpose and need by relying 
on the goal and objective developed during the planning process; 
eliminate the need to further consider alternatives deemed to be 
unreasonable by relying on analyses conducted to evaluate the 
alternatives during planning; rely on future land use plans as a source 
of information for the cumulative impacts analysis required under 
National Environmental Policy Act (NEPA); carry forward suitable 
mitigation measures and approaches identified through the planning 
process; or establish the modal choice selections for the consideration 
of reasonable alternatives to address the identified need, provided 
that such strategies are consistent with NEPA for the particular 
project. The final rule explicitly recognizes a variety of PEL methods 
that may be used to integrate planning with environmental reviews. The 
PEL provisions are in sections 450.212 and 450.318. Only sections 
450.212(d) and 450.318(e) are new provisions, added as a result of the 
PEL authority created in the MAP-21 and substantially amended in FAST.
    In the final rule, sections 450.212(a) and 450.318(a) describe the 
PEL approach developed by FHWA and FTA, based on NEPA regulations, 
guidance, and case law. Sections 450.212(b) and 450.318(b) retain the 
prior rule's provisions on using documents and other source materials 
through incorporation by reference pursuant to NEPA regulations at 40 
CFR 1502.21. Sections 450.212(c), 450.318(c), and 450.318(d) keep 
language from the prior rule addressing integration by means of 
agreement of the NEPA lead agencies, including the use of tiering, 
incorporation of planning corridor or subarea studies into the NEPA 
document, and other means. Sections 450.212(c) and 450.318(d) retain 
the prior rule's description of the non-binding guidance in Appendix A 
to part 450, which discusses the integration of planning and 
environmental reviews. The FHWA and FTA made minor revisions to 
Appendix A in the final rule. These revisions include deleting the text 
in the response to question 16 that describes 49 U.S.C. 5313(b) funds 
as an eligible source of funds for conducting environmental studies and 
analyses within transportation planning. This change was made because 
49 U.S.C. 5313(b) funds are not an eligible source of planning funds 
for conducting environmental studies and analyses within transportation 
planning. In another revision to Appendix A in the final rule, under 
the response to question 18, FHWA and FTA have

[[Page 34054]]

updated the number of positions that were being funded with Federal and 
State funds to support focused and accelerated project review by a 
variety of local, State, and tribal agencies from 246 positions (as of 
2003) to over 200 positions (as of 2015). This change was made to 
update the number of positions funded to accelerate project review at 
local, State, tribal, and Federal agencies to reflect more recent 
information. The FHWA and FTA have added language in 450.212(c) and 
450.318(d) to clarify that Appendix A applies only to PEL authorities 
in sections 450.212(a)-(c) and 450.318(a)-(c).
    Sections 450.212(d) and 450.318(e) add a reference to the statutory 
provision, 23 U.S.C. 168, added by MAP-21 and amended by FAST. The 
numbering for the new provisions is different in the final rule than in 
the NPRM. This is because sections 450.318(d) of the prior rule was 
deleted, as proposed in the planning NPRM. In addition, FHWA and FTA 
replaced the text from the PEL NPRM and in its place inserted 
references to the section 168 provisions.
5. Programmatic Mitigation
    Sections 450.214 and 450.320 discuss an optional framework for 
developing programmatic mitigation plans as part of the statewide and 
the metropolitan transportation planning processes. The FHWA and FTA 
have largely retained the language in the NPRM for these sections, with 
the exception of a few changes. In sections 450.214 and 450.320, 
additional language has been added to make it clear that this provision 
for developing programmatic mitigation plans as part of the statewide 
or the metropolitan transportation planning process is optional. In 
sections 450.214(a)(2)(ii) and 450.320(a)(2)(ii), the final rule added 
archeological resources to the list of examples of resources in the 
NPRM that may be identified in a programmatic mitigation plan. In the 
same paragraph, the phrase ``threatened or endangered species critical 
habitat'' has been corrected from the NPRM to read ``threatened and 
endangered species and critical habitat'' in the final rule. In 
sections 450.214(a)(2)(iii) and 450.320(a)(2)(iii), the final rule 
added stormwater to the list of examples of resource categories 
described in the NPRM for existing or planned environmental resource 
banks that may be identified in a programmatic mitigation plan. New 
language has been added in sections 450.214(f) and 450.320(f) of this 
section to make it clear that a programmatic mitigation plan may be 
developed as part of, or separately from, the planning process and that 
a programmatic mitigation plan developed separately from the planning 
process under another authority may be adopted in the statewide or 
metropolitan planning process.
    Section 1306 of FAST amends 23 U.S.C. 169(f) to change ``may use'' 
to ``shall give substantial weight to'' and changes ``any other 
environmental laws and regulations'' to ``other Federal environmental 
law'' such that a Federal agency responsible for environmental reviews 
``shall give substantial weight to'' the recommendations in the 
programmatic mitigation plan when carrying out its responsibilities 
under NEPA or ``other Federal environmental law.'' Sections 450.214(d) 
and 450.320(d) of the final rule are amended to reflect these changes.
6. Other Changes
    The definitions for ``conformity'' and ``consideration'' proposed 
in the NPRM were amended in the final rule.
7. Changes Resulting From the FAST Act
    Sections 450.200 and 450.300 add intermodal facilities that support 
intercity transportation including intercity bus facilities and 
commuter van pool providers to the purposes of the statewide and 
metropolitan transportation planning processes. Sections 450.200 and 
450.300 add a new requirement to take into consideration resiliency 
needs to the purposes of the statewide and nonmetropolitan and the 
metropolitan transportation planning processes. Sections 450.206(a)(9) 
and (10) and 450.306(b)(9) and (10) add two new planning factors to the 
scope of the statewide and nonmetropolitan and the metropolitan 
transportation planning processes that States and MPOs shall consider 
and implement: Improve resiliency and reliability of the transportation 
system and reduce or mitigate stormwater impacts of surface 
transportation; and enhance travel and tourism.
    Section 450.210(a)(1)(i) adds public ports and intercity bus 
operators to the list of entities that a State shall provide public 
involvement opportunities to as part of the statewide and 
nonmetropolitan transportation planning process. Section 450.216(b) 
adds that the long-range statewide transportation plan shall include 
consideration of the role of intercity buses may play in reducing 
congestion, pollution, and energy consumption. In section 
450.216(l)(2), public ports has been added to the list of interested 
parties that a State shall provide a reasonable opportunity to comment 
on the proposed long-range statewide transportation plan exactly as 
described in FAST section 1201 (23 U.S.C. 135(f)(3)(A)(ii)). Also, in 
section 450.216(l)(2), examples of providers of private providers of 
public transportation have been added to the final rule exactly as 
described in FAST section 1202 (23 U.S.C. (f)(3)(A)(ii)) including 
intercity bus operators, employer based cash-out program, shuttle 
program, or telework program. Sections 450.216(f)(1) and (2) provide 
that States shall include a description of performance measures and 
targets and a system performance report in the long-range statewide 
transportation plan (previously under MAP-21 this was a ``should'').
    Section 1306 of FAST amends 23 U.S.C. 169(f) to change ``may use'' 
to ``shall give substantial weight to'' and changes ``any other 
environmental laws and regulations'' to ``other Federal environmental 
law'' such that a Federal agency responsible for environmental reviews 
``shall give substantial weight to'' the recommendations in the 
programmatic mitigation plan when carrying out its responsibilities 
under NEPA or ``other Federal environmental law.'' Sections 450.214(d) 
and 450.320(d) of the final rule are amended to reflect these changes 
exactly as discussed in section 1306 of FAST.
    Sections 450.316(a) and (b) provide that MPOs must provide public 
ports with a reasonable opportunity to comment on the MTP. Section 
450.316(b) provides that MPOs should consult with officials responsible 
for tourism and natural disaster risk reduction when developing MTPs 
and TIPs. Section 450.322 provides an optional framework for an MPO 
serving a TMA to develop a congestion management plan (the requirement 
for a congestion management process for MPOs serving a TMA has been 
retained). Section 450.324(f)(7) adds a new requirement to assess 
capital investment and other strategies that reduce the vulnerability 
of the existing transportation infrastructure to natural disasters to 
the MTP. Section 450.324(f)(8) adds consideration of the role intercity 
buses may play in reducing congestion, pollution, and energy 
consumption as part of the MTP. Section 450.324(j) adds public ports to 
the list of entities a MPO shall provide opportunity to comment on the 
MTP and also adds a list of examples of private providers of 
transportation.
    In making the changes to the final rule based on the amendments to 
23 U.S.C. 134 and 135 from FAST, FHWA and FTA have used the exact 
language in the regulations that was used in the Act,

[[Page 34055]]

and have included it in the final rule without alteration.

  Table 1--Summary of Key Changes From the Planning NPRMs to the Final
                                  Rule
------------------------------------------------------------------------
                                                      Key changes from
             Topic               NPRM section(s)    NPRMs to final rule
------------------------------------------------------------------------
Performance-Based Planning and  450.206(c).......  Coordination of the
 Programming.                                       planning process--
                                                    the requirement that
                                                    the State should
                                                    select and establish
                                                    performance targets
                                                    in coordination with
                                                    Federal Lands
                                                    Management agencies
                                                    in section
                                                    450.206(c) was
                                                    deleted.
                                450.208(g).......  Coordination of the
                                                    planning process--In
                                                    section 450.208(g),
                                                    the requirement that
                                                    the State shall
                                                    integrate other
                                                    performance-based
                                                    plans into the
                                                    statewide planning
                                                    process was deleted
                                                    as it is already
                                                    covered in the scope
                                                    of the planning
                                                    process in section
                                                    450.206(c)(4).
                                450.210(a)(3)....  Interested parties--
                                                    In section
                                                    450.210(a),
                                                    additional language
                                                    was added in section
                                                    450.210(a)(3):
                                                    ``With respect to
                                                    the setting of
                                                    targets, nothing in
                                                    in this part
                                                    precludes a State
                                                    from considering
                                                    comments made as
                                                    part of the State's
                                                    public involvement
                                                    process.''
                                450.218(r),        Development and
                                 450.328(d).        content of the STIP
                                                    and TIP--In sections
                                                    450.218(r) and
                                                    450.328(d), the
                                                    requirement that the
                                                    discussion in the
                                                    STIP and TIP be
                                                    consistent with the
                                                    strategies to
                                                    achieve targets
                                                    presented in other
                                                    performance
                                                    management plans
                                                    such as the highway
                                                    and transit asset
                                                    management plans,
                                                    the Strategic
                                                    Highway Safety Plan
                                                    (SHSP), the public
                                                    agency safety plan,
                                                    the CMAQ performance
                                                    plan, and the State
                                                    freight plan (if one
                                                    exists) was deleted.
                                450.314(a), (e),   Metropolitan Planning
                                 and (g).           Agreements --
                                                    Proposed changes to
                                                    sections 450.314(a),
                                                    (e), and (g) were
                                                    deleted and replaced
                                                    by new section
                                                    450.314(h) which
                                                    requires States,
                                                    MPOs, and operators
                                                    of public
                                                    transportation to
                                                    cooperatively
                                                    develop and include
                                                    specific provisions
                                                    for cooperatively
                                                    developing and
                                                    sharing information
                                                    related to
                                                    transportation
                                                    performance data,
                                                    the selection of
                                                    performance targets,
                                                    the reporting of
                                                    performance targets,
                                                    the reporting of
                                                    performance, and
                                                    data collection for
                                                    the State asset
                                                    management system
                                                    for the NHS as part
                                                    of the metropolitan
                                                    planning agreement
                                                    or in some mutually
                                                    agreed upon and
                                                    documented means.
Additions to the Metropolitan   450.310 and June   The June 2, 2014 FHWA/
 Planning Process.               2, 2014 FTA/FHWA   FTA Guidance on
                                 Guidance on        Transit
                                 Transit            Representation on a
                                 Representation     TMA MPO published
                                 on a TMA MPO.      with the NPRM is
                                                    superseded by
                                                    revisions to section
                                                    450.310 this final
                                                    regulation.
New Authority for Using         450.212(d),        Added a reference to
 Planning Information in the     450.318(e).        the additional PEL
 Environmental Review Process.                      authority in 23
                                                    U.S.C. 168.
Programmatic Mitigation Plans.  450.214 and        Language was added to
                                 450.320.           clarify that
                                                    developing
                                                    programmatic
                                                    mitigation plans as
                                                    part of the
                                                    statewide or the
                                                    metropolitan
                                                    transportation
                                                    planning process is
                                                    optional.
                                450.214(a)(2)(iii  Stormwater was added
                                 ) and              to the list of
                                 450.320(a)(2)(ii   examples of
                                 i).                environmental
                                                    resource categories
                                                    described in the
                                                    NPRM that may be
                                                    identified in a
                                                    programmatic
                                                    mitigation plan.
                                450.214(b, d, and  Changed to make it
                                 f) and             clear that a State
                                 450.320(b, d,      or MPO may adopt a
                                 and f).            programmatic
                                                    mitigation plan(s)
                                                    that is developed
                                                    outside of the
                                                    planning process.
                                450.214(a)(2)(ii   Archeological
                                 and iii) and       resources was added
                                 450.320(a)(2)(ii   to the list of
                                 and iii).          examples of
                                                    resources that may
                                                    be identified in a
                                                    programmatic
                                                    mitigation plan. The
                                                    phrase ``endangered
                                                    species critical
                                                    habit'' was
                                                    corrected to read
                                                    ``endangered
                                                    species, and
                                                    critical habitat.''
Other Changes (Asset            450.208(e).......  Coordination of
 Management).                                       Planning Process
                                                    Activities--``shall'
                                                    ' was changed to
                                                    ``should'' (``In
                                                    carrying out the
                                                    statewide
                                                    transportation
                                                    planning process,
                                                    States ``should''
                                                    apply asset
                                                    management
                                                    principles
                                                    consistent with the
                                                    NHS Asset Management
                                                    Plan, the Transit
                                                    Asset Management
                                                    plan, and Public
                                                    Transportation
                                                    Agency Safety Plan .
                                                    . .'').
                                450.218(o),        Development and
                                 450.326(m).        content of the STIP
                                                    (section 450.218(o))
                                                    and TIP (section
                                                    450.326(m))--The
                                                    phrase ``The STIP
                                                    and TIP should be
                                                    informed by the
                                                    financial plan and
                                                    the investment
                                                    strategies from the
                                                    State asset
                                                    management plan for
                                                    the NHS and by the
                                                    public transit asset
                                                    management plan(s) .
                                                    . .'' was deleted.
                                450.216(n),        Development and
                                 450.324(f)(7).     content of the long-
                                                    range statewide
                                                    transportation plan
                                                    (450.216(n)) and
                                                    Development and
                                                    content of the MTP
                                                    (450.324(f)(7))--The
                                                    phrase ``. . . long-
                                                    range statewide
                                                    transportation plans
                                                    and metropolitan
                                                    transportation plans
                                                    should be informed
                                                    by the financial
                                                    plan and the
                                                    investment
                                                    strategies from the
                                                    asset management
                                                    plan for the NHS and
                                                    investment
                                                    priorities of the
                                                    public transit asset
                                                    management plans(s)
                                                    . . .'' is deleted
                                                    from the final rule.
Other Changes (misc.).........  450.104..........  Definitions--The
                                                    proposed definitions
                                                    for local official
                                                    and for major modes
                                                    of transportation
                                                    are deleted from the
                                                    final rule.
                                                   The proposed
                                                    definitions for,
                                                    conformity, and
                                                    consideration are
                                                    amended in the final
                                                    rule.
                                450.324(a).......  The word ``minimum''
                                                    is added to the
                                                    phrase a
                                                    transportation plan
                                                    addressing no less
                                                    than a ``minimum''
                                                    20-year planning
                                                    horizon.
                                450.326(n).......  Sec. 450.326(n)
                                                    becomes 450.326(m)
                                                    in the final rule
                                                    and the phrase ``or
                                                    funds under 49
                                                    U.S.C. 5307'' is
                                                    deleted.

[[Page 34056]]

 
Other Changes (from FAST).....  450.200 and        Intermodal facilities
                                 450.300.           that support
                                                    intercity
                                                    transportation,
                                                    including intercity
                                                    bus facilities and
                                                    commuter van pool
                                                    providers is added
                                                    to the purpose of
                                                    the statewide and
                                                    metropolitan
                                                    multimodal
                                                    transportation
                                                    planning processes.
                                450.206(a)(9 and   Adds ``takes into
                                 10) and            consideration
                                 450.306(b)(9 and   resiliency needs''
                                 10).               to the purpose of
                                                    the statewide and
                                                    nonmetropolitan and
                                                    the metropolitan
                                                    transportation
                                                    planning processes.
                                450.210(a)(1)(i).  Two new planning
                                                    factors are added to
                                                    the scope of the
                                                    statewide and
                                                    nonmetropolitan and
                                                    the metropolitan
                                                    transportation
                                                    planning processes:
                                                    (Improve resiliency
                                                    and reliability of
                                                    the transportation
                                                    system and reduce or
                                                    mitigate stormwater
                                                    impacts of surface
                                                    transportation; and
                                                    enhance travel and
                                                    tourism).
                                450.212(d) and     Public ports and
                                 450.450.318(e).    intercity bus
                                                    operators are added
                                                    to the list of
                                                    entities that a
                                                    State shall provide
                                                    early and continuous
                                                    public involvement
                                                    opportunities as
                                                    part of the
                                                    statewide
                                                    transportation
                                                    planning process.
                                                   New authority for
                                                    using planning
                                                    information in the
                                                    environmental review
                                                    process, sections
                                                    450.212(d) and
                                                    450.318(e) are added
                                                    to reference FAST
                                                    section 1305 (23
                                                    U.S.C. 168).
                                450.214(d) and     Programmatic
                                 450.320(d).        mitigation plans--
                                                    changes ``may use''
                                                    to ``shall give
                                                    substantial weight
                                                    to'' and changes
                                                    ``any other
                                                    environmental laws
                                                    and regulations'' to
                                                    ``other Federal
                                                    environmental law''--
                                                    A Federal agency
                                                    responsible for
                                                    environmental
                                                    reviews ``shall give
                                                    substantial weight
                                                    to'' the
                                                    recommendations in
                                                    the programmatic
                                                    mitigation plan when
                                                    carrying out its
                                                    responsibilities
                                                    under the National
                                                    Environmental Policy
                                                    Act of 1969 or
                                                    ``other Federal
                                                    environmental law.''
                                450.216 and        Development and
                                 450.324.           content of the long-
                                                    range statewide
                                                    transportation plan
                                                    and the metropolitan
                                                    transportation plan.
                                                   Section 450.216(b)
                                                    adds requirement for
                                                    consideration of the
                                                    role of intercity
                                                    buses in reducing
                                                    congestion,
                                                    pollution, and
                                                    energy consumption
                                                    as part of the long-
                                                    range statewide
                                                    transportation plan.
                                                   Section 450.216(f)(1)
                                                    and (2) ``should''
                                                    becomes ``shall''--
                                                    The statewide
                                                    transportation plan
                                                    ``shall'' include a
                                                    description of
                                                    performance measures
                                                    and targets and
                                                    shall include a
                                                    system performance
                                                    report.
                                                   Section 450.216(l)(2)
                                                    adds public ports to
                                                    the list of entities
                                                    States shall provide
                                                    a reasonable
                                                    opportunity to
                                                    comment on the plan
                                                    and adds examples of
                                                    private providers of
                                                    transportation.
                                                   Section 450.324(f)(2)
                                                    adds public
                                                    transportation
                                                    facilities and
                                                    intercity bus
                                                    facilities to the
                                                    list of existing and
                                                    proposed
                                                    transportation
                                                    facilities to be
                                                    included in the
                                                    metropolitan
                                                    transportation plan.
                                                   Section 450.324(f)(7)
                                                    adds ``reduce the
                                                    vulnerability of the
                                                    existing
                                                    transportation
                                                    infrastructure to
                                                    natural disasters''
                                                    to the assessment of
                                                    capital investment
                                                    and other strategies
                                                    to preserve the
                                                    existing and
                                                    projected future
                                                    metropolitan
                                                    transportation
                                                    infrastructure in
                                                    the metropolitan
                                                    transportation plan.
                                                    Section
                                                    450.324(f)(8) adds
                                                    consideration of the
                                                    role intercity buses
                                                    may play in reducing
                                                    congestion,
                                                    pollution, and
                                                    energy consumption
                                                    as part of the
                                                    metropolitan
                                                    transportation plan.
                                                   Section 450.324(j)
                                                    adds public ports to
                                                    the list of entities
                                                    that an MPO shall
                                                    provide a reasonable
                                                    opportunity to
                                                    comment on the
                                                    metropolitan
                                                    transportation plan.
                                                    Section 450.324(j)
                                                    adds a list of
                                                    examples of private
                                                    providers of
                                                    transportation.
                                450.310(d).......  Describes TMA MPO
                                                    structure.
                                450.316..........  Interested parties,
                                                    participation, and
                                                    consultation.
                                                   Section 450.316(a)--
                                                    adds public ports to
                                                    the list of entities
                                                    that an MPO shall
                                                    provide a reasonable
                                                    opportunity to
                                                    comment on the
                                                    metropolitan
                                                    transportation plan.
                                                    Section 450.324(j)
                                                    adds a list of
                                                    examples of private
                                                    providers of
                                                    transportation.
                                                   Section 450.316(b)--
                                                    adds officials
                                                    responsible for
                                                    tourism and natural
                                                    disaster risk
                                                    reduction to the
                                                    list of agencies and
                                                    officials that an
                                                    MPO should consult
                                                    with in developing
                                                    metropolitan
                                                    transportation plans
                                                    and TIPs.
                                450.322..........  Congestion management
                                                    process.
                                                   Adds a list of
                                                    examples in section
                                                    450.322(a) of travel
                                                    demand reduction
                                                    strategies. Adds job
                                                    access projects as a
                                                    congestion
                                                    management strategy.
                                                   Adds new section
                                                    450.322(h)--A MPO
                                                    serving a TMA may
                                                    develop a congestion
                                                    management plan.
------------------------------------------------------------------------

C. Costs and Benefits

    The FHWA and FTA estimated the incremental costs associated with 
the new requirements in the final rule that represent a change to 
current planning practices for States, MPOs, and operators of public 
transportation. The FHWA and FTA derived the costs by assessing the 
expected increase in the level of effort and costs associated with 
carrying out several specific transportation planning functions, such 
as the development of metropolitan and statewide long-range 
transportation plans, TIPs, and STIPs. The changes in the final rule 
that are related to environmental reviews are optional and would not 
have a significant cost impact for States, MPOs, or operators of public 
transportation. It is anticipated that these optional environmental 
streamlining provisions could result in costs savings by minimizing the 
potential duplication of planning and environmental processes and by 
improved project delivery timeframes.

[[Page 34057]]

    To estimate the incremental costs associated with the new 
requirements in the final rule that represent a change to current 
planning practices, FHWA and FTA assumed that implementing the 
performance-based planning provisions would increase the costs of 
preparing State and MPO long-range plans, TIPs, and STIPs by an average 
of 15 percent, based on an analysis of current costs and discussions 
with States and MPOs that have implemented a performance-based approach 
to transportation planning and programming. Following this approach, 
FHWA and FTA estimate the updated total cost for implementation of the 
changes to the planning process resulting from the final rule is $30.9 
million annually (as compared to the estimate of $30.8 million in the 
NPRM). To implement the changes in support of a more efficient, 
performance-based planning process, FHWA and FTA estimate that the 
aggregate increase in costs attributable to the final rule for all 50 
States, the District of Columbia, and Puerto Rico and 409 MPOs is 
approximately $28.4 million per year (as compared to the estimate of 
$28.3 million in the NPRM). These costs are primarily attributed to an 
increase in staff time needed to meet the new requirements. For the 
estimated 600 operators of public transportation that operate within 
MPAs, the total cost would be $2.5 million per year to coordinate with 
MPOs in their selection of performance targets for transit state of 
good repair and transit safety.
    The FHWA and FTA updated the total cost estimate for the changes 
made from the NPRM to the final rule based on additional information on 
the number of MPOs that was not available at the time the NPRM was 
issued. The costs are revised for the final rule because FHWA and FTA 
assumed in the NPRM that there would be 420 MPOs (210 TMA MPOs and 210 
non-TMA MPOs) after the 2010 census. This assumption was based on the 
fact that there were 384 existing MPOs at the time in addition to 36 
new urbanized areas resulting from the 2010 census. The actual number 
of MPOs has turned out to be slightly lower (201 TMA MPOs and 208 non-
TMA MPOs) because several of the new urbanized areas resulting from the 
2010 census merged into existing MPOs instead of forming new MPOs. The 
costs were also adjusted for inflation from 2012 to 2014.
    The FHWA and FTA expect that the final rule changes to the planning 
process will result in some significant benefits, including improved 
decisionmaking through increased transparency and accountability, and 
support of the national goals described in 23 U.S.C. 150(b) and the 
general purposes described in 49 U.S.C. 5301. The final rule would 
promote transparency by requiring the establishment of performance 
targets in key areas, such as safety, infrastructure condition, system 
reliability, emissions, and congestion and by expressly linking 
investment decisions to the achievement of such targets. This would be 
documented in plans or programs developed with public review.
    The FHWA and FTA expect that the planning process would become more 
transparent as investments of Federal funds would be based on a 
decisionmaking process that is focused on transportation system 
performance, and the specific transportation system performance goals, 
measures, and targets that drive investment decisions would be known to 
the public, elected officials, and other interested parties. The 
proposal would establish accountability through mandating reports on 
progress toward meeting those targets. In addition, FHWA and FTA expect 
that these regulatory changes would make the planning process more 
accountable by having States, MPOs, and operators of public 
transportation identify desired transportation system performance 
outcomes related to the national performance areas and that investments 
made would be more focused on achieving these system performance 
outcomes. Other elements of the final rule would improve 
decisionmaking, such as including representation by operators of public 
transportation on each MPO that serves a TMA, establishing agreements 
in metropolitan areas identifying roles and responsibilities for 
performance-based planning, requiring States to have a higher level of 
involvement with nonmetropolitan local officials, and providing an 
optional process for the creation of RTPOs.
    The FHWA and FTA have not been able to locate data or empirical 
studies to assist in monetizing or quantifying the benefits of the 
final rule. Estimates of the benefits of the final rule would be 
difficult to develop. Therefore, in order to evaluate benefits, FHWA 
and FTA used a break-even analysis as the primary approach to quantify 
benefits. The approach determines the point at which benefits from the 
final rule exceed the annual costs of compliance. The total annual MAP-
21 funding programmed through this process in FY 2014 is $37.8 billion 
in FHWA funds and $10.7 billion in FTA funds. Under FAST, the total 
annual funding programmed through this process in FY 2016 is $39.7 
billion in FHWA funds and $11.7 billion in FTA funds. The annual 
average cost for implementing this regulation is estimated to be $30.9 
million per year. If return on investment increases by at least 0.064 
percent of the combined FHWA and FTA annual funding programs, the 
benefits of the regulation exceed the costs. The total Federal, State, 
and local cost in FY 2014 of the planning program is $1,493,868,000. 
Generally, 80 percent of these eligible costs are directly reimbursable 
through Federal transportation funds allocated for metropolitan 
planning (23 U.S.C. 104(d) and 49 U.S.C. 5305(f)) and for State 
planning and research (23 U.S.C. 505 and 49 U.S.C. 5305(f)). States, 
MPOs, and operators of public transportation have the flexibility to 
use some FHWA Federal capital funds or some FTA formula program funds 
for transportation planning (23 U.S.C. 133(b)(1), 49 U.S.C. 
5307(a)(1)(B), and 5311(B)(1)(A)). As the cost burden of the final rule 
is estimated to be 2.5 percent of the total planning program, FHWA and 
FTA believe the economic impact is minimal and the benefits of 
implementation outweigh the costs.
    The table below is a summary of the costs and benefits calculated 
for the final rule.

    Table 2--Summary of Average Annual Regulatory Costs and Burden Hours of Effort Due to the Changes in the
                                        Regulations Resulting From MAP-21
                                                 [2014 dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Average
                                                                       Total        Non-Federal     additional
                             Entity                                 additional      share (20%)    person hours
                                                                       cost                         per agency
----------------------------------------------------------------------------------------------------------------
TMA MPOs (201)..................................................     $18,141,200      $3,628,200           1,800

[[Page 34058]]

 
Non-TMA MPOs (208)..............................................       3,990,500         798,100             400
States (50), the District of Columbia, and Puerto Rico..........       6,257,800       1,251,600           2,400
Operators of Public Transportation (600)........................       2,510,000         502,000             100
                                                                 -----------------------------------------------
    Total.......................................................      30,899,500       6,179,900  ..............
----------------------------------------------------------------------------------------------------------------

II. Acronyms and Abbreviations

----------------------------------------------------------------------------------------------------------------
                        Acronym                                                 Full name
----------------------------------------------------------------------------------------------------------------
3-C....................................................  Cooperative, Continuous, and Comprehensive.
AASHTO.................................................  American Association of State Highway and
                                                          Transportation Officials.
AK DOT.................................................  Alaska Department of Transportation.
AMPO...................................................  Association of Metropolitan Planning Organizations.
AOG....................................................  Association of Governments.
APTA...................................................  American Public Transportation Association.
ARC....................................................  Atlanta Regional Commission.
ARTBA..................................................  American Road & Transportation Builders Association.
ASHTD..................................................  Arkansas State Highway and Transportation Department.
Assoc..................................................  Association.
BART...................................................  Bay Area Rapid Transit.
CAA....................................................  Clean Air Act.
CALTRANS...............................................  California Department of Transportation.
CEDS...................................................  Comprehensive Economic Development Strategies.
CEQ....................................................  Council on Environmental Quality.
CFR....................................................  Code of Federal Regulations.
CMAQ...................................................  Congestion Mitigation and Air Quality Improvement
                                                          Program.
CMP....................................................  Congestion Management Process.
CO DOT.................................................  Colorado Department of Transportation.
COG....................................................  Council of Governments.
CT DOT.................................................  Connecticut Department of Transportation.
DC DOT.................................................  District of Columbia Department of Transportation.
DOT....................................................  Department of Transportation.
DRCOG..................................................  Denver Regional Council of Governments.
DVRPC..................................................  Delaware Valley Regional Planning Commission.
EA.....................................................  Environmental Assessment.
EDD....................................................  Economic Development District.
EGA....................................................  Expedited Grant Agreement.
EIS....................................................  Environmental Impact Statement.
EJ.....................................................  Environmental Justice.
EO.....................................................  Executive Order.
EPA....................................................  Environmental Protection Agency.
FAST Act...............................................  Fixing America's Surface Transportation Act.
FFGA...................................................  Full Funding Grant Agreement.
FHWA...................................................  Federal Highway Administration.
FL DOT.................................................  Florida Department of Transportation.
FMATS..................................................  Fairbanks Metropolitan Area Transportation System.
FONSI..................................................  Finding of No Significant Impact.
FRESC..................................................  Front Range Economic Strategy Center.
FTA....................................................  Federal Transit Administration.
FY.....................................................  Fiscal Year.
GA DOT.................................................  Georgia Department of Transportation.
GIS....................................................  Geographic Information Systems.
H-GAC..................................................  Houston-Galveston Area Council.
HI DOT.................................................  Hawaii DOT.
HSIP...................................................  Highway Safety Improvement Program.
HUD....................................................  Housing and Urban Development.
IA DOT.................................................  Iowa Department of Transportation.
IAC....................................................  Interagency Consultation.
ID DOT.................................................  Idaho Department of Transportation.
ISTEA..................................................  Intermodal Surface Transportation Efficiency Act of
                                                          1991.
ITS....................................................  Intelligent Transportation System.
KY TC..................................................  Kentucky Transportation Cabinet.
MAP-21.................................................  Moving Ahead for Progress in the 21st Century Act.
MARC...................................................  Mid-America Regional Council.

[[Page 34059]]

 
MA DOT.................................................  Massachusetts Department of Transportation.
MAG....................................................  Maricopa Association of Governments.
MD DOT.................................................  Maryland Department of Transportation.
ME DOT.................................................  Maine Department of Transportation.
MT DOT.................................................  Montana Department of Transportation.
MI DOT.................................................  Michigan Department of Transportation.
MN DOT.................................................  Minnesota Department of Transportation.
MO DOT.................................................  Missouri Department of Transportation.
MPA....................................................  Metropolitan Planning Area.
MPO....................................................  Metropolitan Planning Organizations.
MTA....................................................  Metropolitan Transportation Authority.
MTC....................................................  Metropolitan Transportation Commission.
MTP....................................................  Metropolitan Transportation Plan.
NAAQS..................................................  National Ambient Air Quality Standards.
NACTO..................................................  National Association of City Transportation Officials.
NADO...................................................  National Association of Development Organizations.
NARC...................................................  National Association of Regional Councils.
NARP...................................................  National Association of Railroad Passengers.
NCCOG..................................................  North Carolina Councils of Governments.
NC DOT.................................................  North Carolina Department of Transportation.
NCHRP..................................................  National Cooperative Highway Research Program.
NCTCOG.................................................  North Central Texas Council of Governments.
NDDOT..................................................  North Dakota Department of Transportation.
NEPA...................................................  National Environmental Policy Act.
NHPP...................................................  National Highway Performance Program.
NHS....................................................  National Highway System.
NIRPC..................................................  Northwestern Indiana Regional Planning Commission.
NJ DOT.................................................  New Jersey Department of Transportation.
NJ Transit.............................................  New Jersey Transit.
NJTPA..................................................  North Jersey Transportation Planning Authority.
NPRM...................................................  Notice of Proposed Rulemakings.
NRDC...................................................  Natural Resources Defense Council.
NYMTA..................................................  New York Metropolitan Transportation Agency.
NYMTC..................................................  New York Metropolitan Transportation Council.
NYS DOT................................................  New York State Department of Transportation.
OK DOT.................................................  Oklahoma Department of Transportation.
OMB....................................................  Office of Management and Budget.
OR DOT.................................................  Oregon Department of Transportation.
PA DOT.................................................  Pennsylvania Department of Transportation.
PEL....................................................  Planning and Environmental Linkages.
PL.....................................................  Metropolitan Planning Funds.
PM 10..................................................  Particulate Matter up to 10 micrometers in size.
PM 2.5.................................................  Particulate Matter up to 2.5 micrometers in size.
PRA....................................................  Paperwork Reduction Act.
PSRC...................................................  Puget Sound Regional Council.
RDC....................................................  Regional Development Commission.
RDD....................................................  Regional Development District.
RI DOT.................................................  Rhode Island Department of Transportation.
RIA....................................................  Regulatory Impact Analysis.
RIN....................................................  Regulation Identification Number.
RMAP...................................................  Rockford Metropolitan Agency for Planning.
ROD....................................................  Record of Decision.
RPC....................................................  Regional Planning Commission.
RPDC...................................................  Regional Planning and Development Commission.
RPO....................................................  Rural Planning Organization.
RTC....................................................  Regional Transportation Council.
RTD....................................................  Regional Transportation District.
RTPO...................................................  Regional Transportation Planning Organization.
SACOG..................................................  Sacramento Area Council of Governments.
SAFETEA-LU.............................................  Safe, Accountable, Flexible, Efficient Transportation
                                                          Equity Act: A Legacy for Users.
SANDAG.................................................  San Diego Association of Governments.
SASHTO.................................................  Southeastern Association of State Highway and
                                                          Transportation Officials.
SCAG...................................................  Southern California Association of Governments.
SCCRTC.................................................  Santa Cruz County Regional Transportation Commission.
SCVTA..................................................  Santa Clara Valley Transportation Authority.
SD DOT.................................................  South Dakota Department of Transportation.
SDAG...................................................  San Diego Association of Governments.
SE WI MPO..............................................  Southeastern Wisconsin Metropolitan Planning
                                                          Organization.
Seattle DOT............................................  Seattle Department of Transportation.
SELC...................................................  Southern Environmental Law Center.
SEMCOG.................................................  Southeast Michigan Council of Governments.
SFRTA..................................................  South Florida Regional Transportation Authority.
SHSP...................................................  Strategic Highway Safety Plan.
SIP....................................................  State Implementation Plan.

[[Page 34060]]

 
SJCOG..................................................  San Joaquin Council of Governments.
SOV....................................................  Single Occupancy Vehicles.
SPR....................................................  State Planning and Research.
STIP...................................................  Statewide Transportation Improvement Program.
STP....................................................  Surface Transportation Program.
TCA....................................................  Transportation Corridor Agencies.
TCM....................................................  Transportation Control Measure.
TEA-21.................................................  Transportation Equity Act for the 21st Century.
TIP....................................................  Transportation Improvement Program.
TMA....................................................  Transportation Management Area.
TN DOT.................................................  Tennessee Department of Transportation.
TPO....................................................  Transportation Planning Organization.
TriMet.................................................  Tri-County Metropolitan Transportation District of
                                                          Oregon.
TTP....................................................  Tribal Transportation Program.
TX DOT.................................................  Texas Department of Transportation.
UPWP...................................................  Unified Planning Work Program.
U.S.C..................................................  United States Code.
USDOT..................................................  U.S. Department of Transportation.
UT DOT.................................................  Utah DOT.
UZA....................................................  Urbanized Area.
VA DOT.................................................  Virginia Department of Transportation.
VMT....................................................  Vehicle Miles Traveled.
VT DOT.................................................  Vermont Department of Transportation or Vermont Agency
                                                          of Transportation.
WFRC...................................................  Wasatch Front Regional Council.
WI DOT.................................................  Wisconsin Department of Transportation.
WMATA..................................................  Washington Metropolitan Area Transit Authority.
WA State DOT...........................................  Washington State Department of Transportation.
WY DOT.................................................  Wyoming Department of Transportation.
----------------------------------------------------------------------------------------------------------------

III. Background

    On June 2, 2014, FHWA and FTA published an NPRM at 79 FR 31784 
proposing the following changes to 23 CFR part 450: That the statewide 
and metropolitan transportation planning processes provide for the use 
of a performance-based approach to decisionmaking; that each MPO that 
serves an area designated as a TMA include an official (or officials) 
who is formally designated to represent operators of public 
transportation in the MPA on its policy board; that MPOs be given the 
option to use scenario planning during the development of their MTP; 
that States work more closely with nonmetropolitan areas; and that 
States have the option of designating RTPOs to help address the 
planning needs of the State's nonmetropolitan areas. It also proposed 
revisions to the existing PEL provisions, and an optional framework for 
developing programmatic mitigation plans as part of the statewide and 
the metropolitan transportation planning processes for States and MPOs 
based on 23 U.S.C. 169 as established by section 1311 of MAP-21. The 
public comment period for the NPRM was scheduled to close on September 
2, 2014. The FHWA and FTA extended the comment period 30 days to 
October 2, 2014, based on concerns expressed by the American 
Association of State Highway & Transportation Officials (AASHTO) that 
the closing date did not provide sufficient time to review and provide 
comprehensive comments (79 FR 51922).
    In addition, on September 10, 2014, FHWA and FTA published a 
separate ``Section 168 NPRM'' at 79 FR 53673 proposing to add 
implementing regulations for 23 U.S.C. 168, ``integration of planning 
and environmental review,'' at 23 CFR 450.212(d)-(f) and 450.318(f)-
(h). The regulations would create an additional process for integrating 
planning and the environmental review activities (planning and 
environmental linkages) based on 23 U.S.C. 168 as established by 
section 1310 of MAP-21. The comment period for the section 168 NPRM 
closed on November 10, 2014. The final rule combines the two 
rulemakings, covering changes proposed in the Planning NPRM and those 
proposed in the Section 168 NPRM. The final rule covers the statewide 
and metropolitan planning processes and includes the integration of 
planning and environmental review and programmatic mitigation plans as 
part of the statewide and the metropolitan transportation planning 
processes for States and MPOs.

A. Introduction to the Planning Process

    The Statewide and Nonmetropolitan Transportation Planning program 
and the Metropolitan Transportation Planning program provide funding to 
support cooperative, continuous, and comprehensive (3-C) planning for 
making transportation investment decisions throughout each State, in 
metropolitan and nonmetropolitan areas. Since the Federal-Aid Highway 
Act of 1962, Federal authorizing legislation for the expenditure of 
surface transportation funds has required MTPs, long-range statewide 
transportation plans, and TIPs to be developed through a 3-C planning 
process. Over successive reauthorization cycles, including the passage 
of the MAP-21 in July 2012, Congress has revised and expanded the 
requirements for 3-C planning.

B. What do the MAP-21 and the FAST do?

    While the MAP-21 left the basic framework of the planning process 
largely unchanged, it introduced transformational changes to increase 
transparency and accountability. Most significantly, States and MPOs 
must take a performance-based approach to planning and programming, 
linking investment decisionmaking to the achievement of performance 
targets. Along with its emphasis on performance-based planning and 
programming, MAP-21 emphasized the nonmetropolitan transportation 
planning process by requiring States to have a higher level of 
involvement with nonmetropolitan local officials and providing for the 
optional creation of RTPOs. The MAP-21 also made some structural 
changes to the membership of the MPOs that serve TMAs. Finally, MAP-21 
included voluntary provisions

[[Page 34061]]

related to scenario planning, developing programmatic mitigation plans, 
and the use of planning products in the environmental review process. 
Many of these non-performance management changes codify existing best 
planning practices.
    The FAST makes minor changes to existing planning provisions. It 
adds two new planning factors to be considered and implemented in the 
planning process, it adds new stakeholders to be included in the 
planning process, and it substantially amends the new authority 
provided by MAP-21 for using planning products in the environmental 
review process.

C. Stakeholder Engagement

    After the publication of the NPRM on June 2, 2014, FHWA and FTA 
continued to engage stakeholders during the NPRM comment period. The 
FHWA and FTA hosted two national webinars with stakeholders on the 
content of the NPRM. The FHWA and FTA also responded to requests for 
presentations at regularly scheduled meetings or conferences of 
national and regional professional, industry, or advocacy organizations 
during the comment period of the NPRM. Those webinars and meetings 
provided an opportunity for FHWA and FTA to provide an overview of the 
NPRM and offer clarifications 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 those webinars and 
meetings is included in the docket.

IV. Summary of Comments

    The FHWA and FTA received a total of 162 comment letters that were 
submitted to the docket. Fifty-one of these comment letters were 
received from MPOs, 36 from States, 27 from advocacy organizations, 18 
from regional planning organizations, 16 from associations representing 
public transportation agencies, 9 from operators of public 
transportation, 2 from the public, 2 from local governments, and 1 from 
a Tribal government. Collectively, these comment letters contained a 
total of approximately 989 individual comments.
    In addition, a total of 38 comment letters were submitted to the 
docket proposing to implement changes to planning and environmental 
linkages resulting from section 1310 of MAP-21. Fourteen of the comment 
letters were received from States, 9 from MPOs, 5 from advocacy groups, 
4 from the public, 3 from associations representing public 
transportation agencies, 2 from operators of public transportation, 1 
from a regional planning organization, and 1 from a State environmental 
resource agency. Cumulatively, these comment letters contained over 100 
individual comments. After reviewing the comments received in response 
to the two NPRMs, FHWA and FTA decided to consolidate the Planning rule 
and the ``Additional Authorities or Planning and Environmental 
Linkages'' rule into a single final rule. The FHWA and FTA believe that 
a consolidated final rule will help stakeholders understand the range 
of options for integrating planning and environmental review, including 
the pre-existing regulations for integrating planning and environmental 
review in sections 450.212 and 450.318, and the new section 168 
authorities adopted in the final rule.
    The FHWA and FTA carefully considered the comments received from 
the stakeholders. The comments and summaries of analyses and 
determinations are discussed in the following sections.

A. Selected Topics for Which FHWA and FTA Requested Comments

Performance Target Setting
    The FTA and FHWA requested public comment on the following 
questions relating to target setting: (1) What obstacles do States, 
MPOs, and operators of public transportation foresee to the 
coordination among them that is necessary in order to establish 
targets? (2) What mechanisms currently exist or could be created to 
facilitate coordination? (3) What role should FHWA and FTA play in 
assisting States, MPOs, and operators of public transportation in 
complying with these new target-setting requirements? (4) What 
mechanisms exist or could be created to share data effectively among 
States, MPOs, and operators of public transportation? For those States, 
MPOs, and operators of public transportation that already utilize some 
type of performance management framework, are there best practices that 
they can share? Comments were received from at least 25 separate 
entities on these questions including AASHTO, APTA, ARC, CO DOT, CT 
DOT, DRCOG, FL MPO Advisory Council, H-GAC, MD DOT, MTC, MI DOT, NACTO, 
NJ DOT, NYS DOT, NCTCOG/RTC, the Northeast Ohio Areawide Coordinating 
Agency, the River to Sea Transportation Planning Organization (TPO), 
SACOG, SANDAG, SCAG, SJCOG, TN DOT, WMATA, and WI DOT.
What obstacles do States, MPO, and operators of public transportation 
foresee to the coordination among them that is necessary in order to 
establish targets?
    Several commenters noted that the establishment of performance 
targets will require unprecedented levels of coordination and 
cooperation between States, MPOs, and operators of public 
transportation (AMPO, H-GAC, and NCTCOG/RTC). See section IV(B) 
(Recurring comment themes) for detailed discussion and FHWA and FTA 
responses to coordination on target setting.
    The AMPO and ARC stated that they would prefer a single effective 
date for all of the MAP-21 performance measures rules to minimize 
confusion during the implementation of the measures and in the 
reporting of results. The H-GAC commented that there is potential for 
confusion between the target setting provisions proposed under 23 CFR 
490 and 23 CFR 450. The MI DOT, MTC, SACOG, SANDAG, SCAG, SJCOG, and VA 
DOT stated that it is difficult to comment on the merits of the 
performance-based planning framework as the majority of measures and 
target-setting methodologies have not yet been released. See section 
IV(B) (Recurring comment themes) for more discussion and responses to 
these comments.
    The MD DOT, NJ DOT, and TN DOT commented that setting performance 
targets will be a significant challenge in interstate MPOs that have 
membership in multiple States, since each State differs with respect to 
legal framework, resource availability, policies, goals, and 
priorities. The MD DOT and TN DOT indicated that it is not clear who 
will have the ultimate authority in establishing targets when a State 
or MPO cannot come to agreement. See section IV(B) (Recurring comment 
themes) for more discussion of this issue and FHWA and FTA responses.
    The MTC, SACOG, SANDAG, SCAG, and SJCOG were concerned that the 
future Federal performance regulations will overwhelm policymakers by 
diluting robust processes established on the State or regional level 
with the addition of more measures and targets. In response, FHWA and 
FTA believe that States and MPOs should utilize their existing 
processes to the maximum extent possible. Discussion on the specific 
measures and target setting under the Federal performance requirements 
is outside the scope of the final rule.
    The AMPO and ARC stated that the transition to performance-based 
planning will be challenging, in part

[[Page 34062]]

because different organizations have different structures and 
priorities, and in part because of the financial burdens of data 
collection and analysis. The FHWA and FTA agree that the transition to 
performance-based planning will be challenging. However, as discussed 
in section IV(B) (Recurring comment themes), interagency coordination 
will be key to successful implementation. The financial burdens of data 
collection and analysis for target setting are outside the scope of the 
final rule.
    Several commenters (ARC, NJ DOT, and TN DOT) stated that it is not 
uncommon for States, MPOs, and operators of public transportation to 
have different priorities that may conflict with each other, and that 
this may lead to conflicts when setting performance targets and trying 
to achieve them. Several MPOs commented that they have to balance 
multiple objectives when working with communities and that this may 
lead to conflicts with their State. Another commenter noted that data 
collection will be a major challenge that needs to be addressed by the 
MPOs with their local members, particularly as it relates to data 
needed on locally owned systems. A few commenters stated that they are 
concerned as to whether the analytical tools and framework will exist 
to allow States, MPOs, and operators of public transportation to 
identify realistic and attainable targets for each required measure. 
One operator of public transportation (WMATA) commented that there is 
not a uniform approach to performance management among operators of 
public transportation, either in setting targets or in tracking 
progress toward achievement of targets. In response to these comments, 
FHWA and FTA emphasize the importance of early and ongoing interagency 
coordination during performance-based planning and programming. The 
approach used by operators of public transportation for setting targets 
is outside the scope of this rule. See FHWA and FTA response below to 
the question on ``What role should FHWA and FTA play in assisting 
States, MPOs, and operators of public transportation in complying with 
these new target-setting requirements?'' regarding technical assistance 
FHWA and FTA plan to provide regarding approaches to tracking progress 
toward achievement of targets.
What mechanisms currently exist or could be created to facilitate 
coordination?
    The ARC, CO DOT, CT DOT, Florida MPO Advisory Council, MI DOT, NYS 
DOT, River to Sea Transportation Planning Organization (TPO), and RMAP 
indicated that they have well-established, long-standing, formal forums 
or work groups for ongoing discussion and coordination of planning 
issues and topic areas among the States, MPOs, and operators of public 
transportation within a particular State, and that these forums 
typically meet on a regularly scheduled basis (i.e., monthly or 
quarterly). These same commenters stated that through these forums, 
they have built relationships between the various planning 
organizations within their State for successful collaboration and 
cooperation. The commenters further stated that these established 
forums are ideal for coordinating the development and implementation of 
performance management as part of the planning process, including data 
collection and analysis, performance target setting, use of analytical 
tools, standards and consistency, and system performance reporting. 
Several of the commenters stated that they are already using these 
established forums within their respective States for coordinating 
planning issues to implement performance-based planning and programming 
among the States, MPOs, and operators of public transportation. The 
Florida MPO Advisory Council commented that it has formed alliances of 
MPOs to address transportation planning issues at a multi-MPO level.
    The FHWA and FTA agree that these examples of practice provided by 
commenters on how to facilitate coordination are good practices and 
that the development and implementation of ongoing, multiagency, and 
multidisciplinary forums that meet on a regular basis is an ideal way 
to establish relationships among the States, and MPOs, and operators of 
public transportation within a State.
    The ARC commented that it has examples of mechanisms to facilitate 
interagency coordination such as an interagency consultation concept 
used for air quality planning and MPO technical committees. The FMATS 
commented that they want the MPO to be required to participate in the 
development of HSIP projects and the State Asset Management Plan for 
the NHS. In response to this comment, FHWA and FTA agree that it would 
be desirable for States to include the MPOs in the development of the 
projects for the Highway Safety Improvement Program (HSIP) and in the 
development of the State Asset Management Plan for the NHS because 
those plans contribute to performance-based planning and programming. 
However, there are separate NPRMs and rules governing those documents 
and processes and they are outside the scope of the final rule.
    The FMATS also commented that the first round of performance target 
setting should be a joint process and facilitated by FHWA and FTA. In 
response, FHWA and FTA note that the final rule requires that States 
and MPOs coordinate during the target setting process (sections 450.206 
and 450.306). The final rule also requires MPOs and operators of public 
transportation to coordinate target setting on transit performance 
measures in the metropolitan areas (section 450.306) and States must 
coordinate with operators of public transportation for target setting 
on transit performance measures outside of the metropolitan areas 
(section 450.206).
What role should FHWA and FTA play in assisting States, MPOs, and 
operators of public transportation in complying with these new target-
setting requirements?
    The ARC and CO DOT commented that FHWA and FTA could provide 
technical assistance and best practices or peer review summaries on a 
regular basis to assist the States, MPOs, and operators of public 
transportation in complying with the new target setting requirements. 
The CT DOT suggested that FHWA and FTA could provide guidance to 
States, MPOs, and operators of public transportation to implement the 
new target setting requirements. At least one commenter stated that the 
ability to use Federal funds for the necessary data collection efforts 
to support performance management is important. The CO DOT, CT DOT, 
Florida MPO Advisory Council, MI DOT, and NJ DOT suggested that FHWA 
and FTA could conduct best practices research and share the results in 
regional and statewide forums and with individual MPOs during 
transportation planning certification reviews. The Florida MPO Advisory 
Council and MI DOT also suggested that FHWA and FTA actively 
participate in established processes to set and implement performance 
targets in the States.
    Others stated that FHWA and FTA already participate in these 
processes in some States. The MI DOT suggested that FHWA and FTA 
develop training sessions to ensure that planning agencies are fully 
aware of all the new requirements and timelines associated with the 
rules. The WI DOT recommended that FHWA and FTA provide further 
guidance on best practices related to the coordination process among 
States, MPOs, and operators of public transportation. The WA State DOT 
suggested that FHWA

[[Page 34063]]

and FTA could provide further guidance and best practices for the 
coordination of data at a statewide level and that FHWA and FTA could 
mediate differences between States and MPOs during the target setting 
process by providing guidance as to the intent of the rules. The MD DOT 
commented that a consistent presence of FHWA and FTA in MPO meetings to 
help facilitate performance measures and targets discussions would be 
helpful. Several commenters suggested that there needs to be 
substantial collaborative effort by Federal and grantee stakeholders to 
develop common data collection and reporting processes. The MI DOT was 
concerned whether the analytical tools and framework exists to allow 
States, MPOs, and transit agencies to identify realistic and attainable 
targets for the national performance measures.
    In response, FHWA and FTA plan to provide technical assistance to 
the States, MPOs, and operators of public transportation through a 
number of means, including the issuance of guidance, conducting peer 
reviews and workshops, sharing best practices, and conducting training 
on topics such as target setting, implementation of performance-based 
planning and programming, interagency coordination, data collection, 
and performance progress reporting. Performance-based planning and 
programming will also become a topic of discussion at future TMA 
planning certification reviews.
    The APTA commented that FHWA and FTA should not allow these changes 
in the planning process to slow project development, and that these 
changes to the planning process should encourage accelerated project 
development through more consistent and complete information flow. The 
FHWA and FTA agree that these changes to the planning process should 
not slow project development and that, in fact, they may accelerate 
project development by providing more focus on national goal areas.
    The MI DOT, MTC, SACOG, SANDAG, SCAG, and SJCOG suggested that FHWA 
and FTA should limit the numbers of required measures. The commenters 
stated that fewer measures are preferable to a large number of 
measures. The FHWA and FTA respond that the number of performance 
measures that will be established is outside the scope of the final 
rule.
What mechanisms exist or could be created to share data effectively 
amongst States, MPOs, and operators of public transportation?
    The ARC, MI DOT, and NACTO suggested that FHWA and FTA could share 
data nationally as a mechanism to achieve consistency of effort across 
applications, and to reduce duplication of effort among States, MPOs, 
and operators of public transportation. A few commenters noted that 
FHWA and FTA could support the implementation of performance management 
by providing easy access to national data sources. The ARC commented 
that joint procurement and sharing of data with States and MPOs and the 
use of the national transit database could be methods for effectively 
sharing data among States, MPOs, and operators of public 
transportation.
    See also comments provided under the previous question on ``What 
mechanisms currently exist or could be created to facilitate 
coordination?'' for additional examples of mechanisms for sharing data 
among States, MPOs, and operators of public transportation.
    In response to this comment, FHWA and FTA note that sharing data 
nationally and providing easy access to national data sources to 
achieve consistency is outside the scope of this rule.
For those States, MPOs, and operators of public transportation that 
already utilize some type of performance management framework, are 
there best practices that they can share?
    The ARC, DRCOG, MD DOT, MI DOT, MTC, SACOG, SANDAG, SCAG, and SJCOG 
commented that they have already implemented performance-based planning 
and programming and have long-standing, successful processes in place 
for establishing performance measures, performance targets, and 
reporting on progress toward achievement of performance targets.
    The CT DOT stated that it anticipates taking a lead role in an open 
process working with the MPOs and operators of public transportation on 
target setting since the State owns an overwhelming majority of the 
transportation systems affected by the MAP-21 performance measures. The 
CT DOT stated that it also collects, stores, and analyzes most of the 
data associated with those systems. The MD DOT commented that the State 
should have the ultimate responsibility regarding target setting within 
the State.
    The DRCOG commented that targets should be set to encourage 
continuous improvement rather than a concrete objective goal. The 
commenter further stated that establishing strict, inflexible targets 
encourages aiming low to achieve an arbitrary plateau not necessarily 
linked to quality. The DRCOG advised against project-by-project 
performance measures, and instead recommended that performance measures 
and targets should be applied at a system or programmatic level. At 
least one commenter stated that it will be important that funding is 
aligned with the performance targets in order to achieve them.
    A few commenters said that they look to utilize current database 
information for tracking performance measures first before developing 
new systems for data collection. Commenters also suggested that the 
framework for target setting be flexible enough to allow for an 
adjustment in targets, strategies, and processes as agencies learn and 
acquire experience with performance management.
    The AASHTO, AMPO, CT DOT, and H-GAC stated that there is a need for 
flexibility when establishing reasonable and appropriate performance 
targets. They further commented that it will take time to implement 
performance management and performance-based planning, and that there 
is potential for significant conflicts to arise during the development 
of targets.
    The ARC was concerned that there might be misleading comparisons on 
how performance results might be portrayed and interpreted. Another 
commenter stated that, when relying on a limited number of high level 
performance metrics, it may not present a comprehensive picture of the 
effectiveness of a region's performance. The Florida MPO Advisory 
Council and MD DOT commented that MPOs should be allowed the 
flexibility to develop and set targets that suit the unique needs of 
their specific metropolitan area.
    In response to these comments, FHWA and FTA agree that there is a 
need for flexibility in setting targets. There is flexibility in that 
States and MPOs are responsible for setting their respective targets 
for the national performance areas. When setting targets for FHWA 
performance measures, the final rule requires States and MPOs to 
coordinate with each other and set targets that are consistent to the 
maximum extent practical. Operators of public transportation and MPOs 
are required to coordinate to the maximum extent practicable when 
setting transit performance targets. As part of coordination when 
setting targets, States, MPOs, and operators of public transportation 
should seek to minimize conflicts. This requires close coordination 
between the States and MPOs in areas such as the collection and use of 
data, use of analytical tools, setting of targets, and the 
identification of strategies to achieve the targets. Operators of 
public transportation are responsible for setting performance

[[Page 34064]]

targets for the transit performance measures in metropolitan areas in 
coordination with the affected MPOs.
    Although the final rule provides MPOs up to 180 days to set targets 
after their State sets performance targets, FHWA and FTA strongly 
encourage States and MPOs to set performance targets at the same time 
and in coordination with each other. Transportation planning must be 
cooperative because no single agency has responsibility for the entire 
transportation system. For example, some roads that are part of the 
Interstate System are subject to certain standards and are usually 
maintained by a State. Others are county arterials or city streets 
which are designed, operated, and maintained by counties or local 
municipalities. Transit systems are often built, operated, and 
maintained by a separate entity. See section IV.(B.) for more 
discussion on interagency coordination.
    States and MPOs may have situations where they need to evaluate 
competing priorities as they make decisions about setting targets for 
the national performance areas. Scenario planning is one possible tool 
that States and MPOs can use to evaluate the effect of various 
scenarios on system performance in order to develop the metropolitan 
and statewide long-range transportation plans. The FHWA and FTA also 
agree with the comment that a limited number of high level performance 
metrics for the national performance areas may not present a 
comprehensive picture of the effectiveness of a region's performance. 
States and MPOs are encouraged, but not required, to develop and 
implement additional performance measures beyond the required national 
measures that they feel are appropriate to meet their system planning 
needs. In setting targets as part of their planning process, the States 
and MPOs are strongly encouraged to engage many of the same 
stakeholders that they normally engage as part of their planning 
process.
Regional Planning Coordination
    In the NPRM, FHWA and FTA sought public comment on how regional 
planning coordination can be further improved in situations where 
multiple MPOs serve one or several adjacent urbanized areas. The FHWA 
and FTA also sought public comment on additional mechanisms that could 
be created to improve regional coordination in situations where there 
may be multiple MPOs serving a common urbanized area or adjacent 
urbanized areas.
    Comments were submitted to the docket on these questions from nine 
entities, including AASHTO, ARC, CO DOT, CT DOT, MD DOT, NRDC, NJ DOT, 
RMAP, and WI DOT.
How can regional planning coordination be further improved in 
situations where multiple MPOs serve one or several adjacent urbanized 
areas?
    The AASHTO, CT DOT, and MD DOT suggested that FHWA and FTA develop 
resource documents and best practice guides to support regional 
planning coordination as it relates to performance management 
implementation, and that these resources and best practices be made 
available at a centralized DOT online vehicle. The MD DOT suggested 
that FHWA, FTA, and the National Highway and Transit Institutes provide 
training classes on how States and MPOs can execute and implement these 
requirements. The MD DOT also suggested that FHWA and FTA could provide 
access to professional experts to address State and MPO staff 
questions.
    The FHWA and FTA agree that training and technical support can 
improve the coordination of regional planning. As part of FHWA's Every 
Day Counts initiative, FHWA and FTA are supporting the Regional Models 
of Cooperation effort, which provides a framework and process for 
States and MPOs to develop multijurisdictional transportation plans and 
agreements to improve communication, collaboration, policy 
implementation, technology use, and performance management across 
agency boundaries. See https://www.fhwa.dot.gov/everydaycounts/edc-3/regional.cfm.
    The FHWA and FTA are also in the process of developing a training 
course on performance-based planning and programming which will be 
available at the publication of the final rule. The FHWA Office of 
Transportation Performance Management (TPM) offers support and 
assistance to States, MPOs, and operators of public transportation 
implementing MAP-21 performance provisions. Examples of support include 
workshops on TPM, peer-to-peer exchanges and demonstration workshops, 
and ``Let's Talk Performance'' Webinars, which can be found at http://www.fhwa.dot.gov/tpm/resources/presentations.cfm.
    The CT DOT proposed that States and MPOs coordinate the collection 
and analysis of data regarding travel patterns to, through, and among 
adjacent MPOs. Examples would include traffic counts, household 
surveys, big data purchases (e.g., cell phone data) that would be 
beneficial to all decisionmakers. It further noted that it is 
coordinating efforts with local officials to reorganize the boundaries 
of MPOs so that they more closely resemble TMA boundaries and/or major 
transportation corridors that meet a minimum population threshold. It 
also supports efforts of MPOs to work on joint projects and studies 
with other MPOs that share urbanized areas and transportation 
corridors. The NJ DOT commented that an MPO historically has led 
numerous multistate coordination efforts and noted that States and MPOs 
are assessing whether that MPO should be the lead facilitator in 
coordinating target setting that best serves the needs of the entire 
metropolitan area.
What additional mechanisms could be created to improve regional 
coordination in situations where there may be multiple MPOs serving a 
common urbanized area or adjacent urbanized areas?
    The FHWA and FTA received comments from ARC, Florida MPO Advisory 
Council, and NRDC. The ARC noted that, in complex regions that have 
multiple urbanized areas and/or MPOs, it will be critical for the 
Federal partners to build on the Interagency Consultation (IAC) concept 
used for air quality planning in nonattainment areas. While not 
suggesting that existing air quality IAC groups be reconstituted and 
their mission changed, a similar concept could be used to coordinate 
setting targets for the metropolitan area.
    The ARC, which is located in a metropolitan statistical area with 
multiple urbanized areas, shared that it hosts and facilitates a number 
of standing technical committees, such as a Technical Coordinating 
Committee, comprised of staff from cities, counties, and State 
agencies, and a Transit Operators Subcommittee, which is composed of 
representatives of all operators of public transportation throughout 
the region. In addition, it regularly convenes working groups and task 
forces to meet for a specified period of time to focus on specific 
issues of a time sensitive nature. For example, it convened a Project 
Delivery Task Force to address systemic issues related to the 
implementation of transportation projects in its region. The ARC 
explained that the these task force meetings have been extremely well 
attended and have provided a structured and energetic forum for 
agencies at all levels to discuss challenges, provide constructive 
criticism, and offer solutions. Based on the success of this 
initiative, the ARC suggests that MPOs form task forces to discuss the 
implementation of a performance management approach to planning and 
programming in metropolitan areas. The NRDC encouraged that MPOs use 
the

[[Page 34065]]

existing consortium framework from the HUD Sustainable Communities 
Initiative planning process (supported by the Inter-Agency Partnership 
for Sustainable Communities at HUD, DOT, and EPA).
    The FHWA and FTA applaud MPO efforts to coordinate their technical 
and decisionmaking processes and note that the final rule will provide 
States, MPOs and operators of public transportation with the 
flexibility to determine how best they can work together to implement a 
performance-based approach to planning and programming and the agility 
to adjust their roles and responsibilities as they implement their 
approaches. Under section 450.314 (Metropolitan Planning Agreements), 
MPOs will be required to identify, through either an updated 
metropolitan planning agreement, an MOU, or adopted operating 
procedures, the coordinated processes for the collection of performance 
data, the selection of performance targets for the metropolitan area, 
the reporting of metropolitan area targets, the reporting of actual 
system performance related to those targets, and the roles and 
responsibilities for the collection of data for the NHS. While beyond 
the scope of this rulemaking, NRDC endorsed the provisions under 
section 1202 of DOT's GROW AMERICA Act proposal which are intended to 
align MPO boundaries with metropolitan statistical areas. They noted 
that this would have multiple benefits in areas where a consolidated 
planning structure would continue the efficacy of the MPO as it would 
allow for more coordinated planning, optimize the use of scarce 
resources for planning, and allow for easier use of data sets due to a 
match between governance and statistical units of geography.

B. Recurring Comment Themes on Major Provisions of the Rule

    This section contains a consolidated summary of comments and FHWA 
and FTA responses on major provisions of the rule. The key topic areas 
covered in this section include: State, MPO, and operator of public 
transportation coordination on performance-based planning and 
programming; traditionally underserved populations, environmental 
justice (EJ), Title VI of the Civil Rights Act of 1964 (as amended), 
equity, and the transportation planning process; asset management and 
the transportation planning process; common effective date and phase-in 
of new requirements; and other changes proposed by commenters. This 
section is written in narrative format with the exception of the 
discussion on traditionally underserved populations, EJ, Title VI of 
the Civil Rights Act of 1964 (as amended), equity, and the 
transportation planning process which, because of the level of detail, 
specificity, and uniqueness of the individual comments on the topic 
area, FHWA and FTA have organized in a comment and response format for 
ease of providing clarity in the responses.
 State, MPO, and Operator of Public Transportation Coordination 
on Performance-Based Planning and Programming
    At least 48 commenters provided comments on the topic of 
coordination (Albany MPO, AASHTO, AMPO, APTA, ARC, Board of the French 
Broad River MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC 
DOT, DRCOG, DVRPC, FMATS, FL DOT, Florida MPO Advisory Council, HI DOT, 
H-GAC, IA DOT, MAG, MARC, Miami-Dade MPO, MT DOT, MTC, NACTO, NARC, 
NJTPA, North Florida TPO, NYMTC, (NYMTA), New York State Association of 
MPOs, NYS DOT, OR DOT, PA DOT, River to Sea TPO, SACOG, SANDAG, San 
Luis Obispo Council of Governments (COG), SCCRTC, SCAG, SJCOG, SEMCOG, 
Transportation for America, TX DOT, WA State DOT, and Wilmington MPO)) 
as it relates to coordination among States, MPOs, and operators of 
public transportation on the new requirements for performance-based 
planning and programming. Twenty-five of the commenters were from MPOs, 
13 were from States, 8 were from associations, 1 was from an operator 
of public transportation, and 1 was from an advocacy organization. The 
comments were received on several sections in the NPRM, including 
sections 450.206, 450.208, 459.216, 450.218, 450.306, 450.314, 450.324, 
and 450.326. These sections include the scope of the statewide and 
metropolitan planning processes, coordination of the statewide 
transportation planning process, metropolitan planning agreements, 
development and content of the STIP and TIP, and development and 
content of the long-range statewide transportation plan and the MPO 
MTP.
    The Federal-Aid Highway Act of 1962 set forward requirements for a 
3-C transportation planning process in metropolitan areas. Subsequent 
acts required the designation of an MPO by the Governor and local 
officials in census designated urbanized areas. The 1993 planning 
regulations that resulted from the 1991 passage of ISTEA added 
provisions for cooperatively developed, written metropolitan planning 
agreements that outline the planning roles and responsibilities of the 
States, MPOs, and operators of public transportation in metropolitan 
areas. Section 450.306(a) continues the longstanding requirement that 
MPOs are required to conduct the metropolitan transportation planning 
process in the metropolitan area, including the development of an MTP 
and TIP, in cooperation with the State and operators of public 
transportation and expands the metropolitan planning process to make it 
performance-driven and outcome-based. States are required to cooperate 
with MPOs when conducting the statewide planning process, including 
during the development of the long-range statewide transportation plan 
and the STIP (sections 450.216(g), 450.218(b)). Cooperation means that 
the parties involved in carrying out the transportation planning and 
programming process work together to achieve a common goal or objective 
(section 450.104). 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 (section 450.104).
    The final rule includes provisions for coordination on performance-
based planning and programming among States, MPOs, and operators of 
public transportation in metropolitan areas. The new requirement for 
performance-based planning and programming expands the cooperation and 
coordination role among States and MPOs in the transportation planning 
process by requiring coordination on target setting for the FHWA 
required performance measures. Similarly, the role of operators of 
public transportation is also expanded as States and MPOs are required 
to coordinate with operators of public transportation on target setting 
for the FTA required performance measures. Several commenters 
emphasized the importance of coordination (H-GAC, MAG, MARC, and 
NCTCOG/RTC) among all metropolitan planning partners, including the 
States, MPOs, and operators of public transportation for successful 
implementation of the new requirements for performance management. The 
FHWA and FTA agree that coordination of performance management between 
the States, MPOs, and operators of public transportation is critical to 
successful implementation of performance management and achievement of 
targets. Coordination needs to include not only target setting, but 
also the data collection necessary to

[[Page 34066]]

support setting targets, identification of investments and strategies 
to achieve targets, and reporting of progress toward achieving targets.
    The final rule includes the new requirement that the State 
coordinate with the relevant MPOs when setting FHWA performance targets 
(section 450.206(c)(2)), and, similarly, that MPOs coordinate with the 
relevant State (section 450.306(d)(2)(ii)) when the MPO is setting FHWA 
performance targets. States have up to 1 year from the effective date 
of each performance management final rule to set performance targets 
for that performance measure (section 450.206(c)(2)), and the MPOs have 
180-days after the State or operator of public transportation sets 
performance targets to set its own targets (section 450(d)(3)). This 
final rule requires that, as part of the State and MPO coordination on 
FHWA target setting, the performance targets be consistent to the 
maximum extent practicable. Although the final rule allows the MPO up 
to 180 days to set performance targets after the State sets its 
targets, FHWA and FTA believe it is important that the State and MPO 
work together on FHWA target setting and, ideally, the State and MPO 
should be setting their targets at the same time in coordination with 
each other to ensure that they are consistent to the maximum extent 
practicable. The MPOs and operators of public transportation should 
coordinate to the maximum extent practicable in metropolitan areas on 
target selection for the public transportation performance targets. The 
MPOs have up to 180 days to set transit performance targets for the 
metropolitan area's transit performance measures after operators of 
public transportation set transit performance targets. State and MPO 
coordination on target setting will be crucial to successful 
implementation of performance management and the performance-based 
planning and programming process that supports performance management.
    Although States, MPOs, and operators of public transportation are 
required to establish performance targets for the federally required 
performance measures based on the phase-in schedules and timeframes 
described in the final rule, FHWA and FTA think it is important to note 
that they coordinate on their target setting in advance of establishing 
those targets. As such, State, MPO, and operator of public 
transportation coordination on target setting will need to begin in 
advance of when the targets are required to be established.
Scope of the Metropolitan and Statewide Transportation Planning 
Processes (Sections 450.206 and 450.306)
    Several comments received on section 450.306(d) emphasized the 
importance of coordination (H-GAC, MAG, MARC, and NCTCOG/RTC) among all 
metropolitan planning partners, including the States, MPOs, and 
operators of public transportation for successful implementation of 
performance management. The FHWA and FTA agree. Coordination of 
performance management among the States, MPOs, and operators of public 
transportation is critical to successful performance management and 
achievement of targets. Coordination needs to include not only target 
setting, but also the identification of investments and strategies to 
achieve those targets.
    The WA State DOT commented that there is a need for more explicit 
explanations on the relationships and roles between the States and MPOs 
in section 450.306(d). The commenter further stated that it is unclear 
if MPOs are required to match the targets set by the State. The FHWA 
and FTA respond that States and MPOs are each required to set 
performance targets for the federally required performance measures. 
When setting performance targets for the federally required performance 
measures, MPOs are not required to match State targets; however, States 
and MPOs are required to coordinate to ensure consistency to the 
maximum extent practicable when setting the highway-related performance 
targets. Similarly, States (in areas not represented by an MPO) and 
MPOs (in MPAs) are to coordinate the selection of State and MPO 
transit-related performance targets to the maximum extent practicable 
with operators of public transportation to ensure consistency with the 
transit safety and state of good repair targets. No changes have been 
made to this section as a result of this comment.
    The MTC, SACOG, SANDAG, SCAG, and SJCOG commented on the difficulty 
of coordination on target setting when there are a large number of 
agencies. The WA State DOT commented that there is a need for more 
explicit explanations on the relationships and roles between the States 
and MPOs. The MD DOT, NJ DOT, and TN DOT commented that setting of 
performance targets will be a significant challenge in interstate MPOs 
that have membership in multiple States, since each State differs with 
respect to legal framework, resource availability, policies, goals, and 
priorities. A few States (MD DOT and TN DOT) indicated that it is not 
clear who will have the ultimate authority in establishing targets when 
a State or MPO cannot agree.
    The commenters further stated that funding constraints may make it 
difficult to move in the desired direction for many performance 
targets. They are also concerned about the implementation costs and 
resources required of smaller MPOs. The DC DOT and NJTPA commented on 
the new provisions for performance-based planning in section 450.306(d) 
because of the difficulty in coordinating target setting in situations 
where there may be multiple States, MPOs, and/or operators of public 
transportation involved, such as in bi-State or tri-State metropolitan 
regions.
    In response to these comments, FHWA and FTA note that section 
450.314(h) of the rule describes methods for States, MPOs, and 
operators of public transportation in metropolitan areas to mutually 
agree upon and document the roles and responsibilities for conducting 
performance-based planning and programming through the metropolitan 
planning agreement or by some other means. The FHWA and FTA also note 
the longstanding requirement in 23 U.S.C. 134(i)(2)(E)(iii) and 49 
U.S.C. 5303(i)(2)(E)(iii) which provide that the State, MPO, and 
operator of public transportation shall cooperatively develop estimates 
of funds that will be available to support plan and TIP implementation. 
The availability of funding would certainly influence target setting, 
and the cooperative development of the funding estimates should help 
further encourage the States, MPOs, and operators of public 
transportation to work together. Comments on the costs of 
implementation and resources for MPOs to undertake these new 
requirements, including for smaller MPOs, are addressed separately in 
this document under the section addressing the regulatory impact 
analysis (RIA) for this rule.
    The APTA commented that areas with multiple MPOs should be 
encouraged to coordinate across urbanized areas through informal means. 
The FHWA and FTA response to this comment is that the regulations at 
section 450.314(h) require that the State(s), MPO(s), and operator(s) 
of public transportation serving a single urbanized area mutually agree 
upon and document specific written provisions for interagency 
coordination on performance-based planning and programming, either as 
part of the metropolitan planning agreement, or by

[[Page 34067]]

some other means as mutually agreed upon by the MPO(s), State(s), and 
operator(s) of public transportation. It is up to the agencies to 
mutually decide how that coordination will take place.
    Sections 450.206(c)(4) and 450.306(d)(4) of the final rule require 
that the State and the MPOs are required to integrate into the 
statewide and the metropolitan transportation planning processes, 
directly or by reference, the goals, objectives, performance, measures, 
and targets in other State transportation plans and transportation 
processes, as well as any plans developed pursuant to chapter 53 of 
title 49 by operators of public transportation in areas not represented 
by an MPO required as part of a performance-based program. Examples of 
such plans and processes include the HSIP, SHSP, the State asset 
management plan for the NHS, the State Freight Plan, the Transit Asset 
Management Plan, and the Public Transportation Agency Safety Plan.
    Several commenters (Albany MPO, AMPO, DVRPC, NARC, New York State 
Association of MPOs, NYMTC, PA DOT, and San Luis Obispo COG) remarked 
that this requirement appears to be in conflict with sections 
450.306(d)(2)(i), (ii), and (iii), which state that each MPO shall 
establish performance targets, and the selection of targets shall be 
coordinated with the State and, to the maximum extent practicable, 
coordinated with operators of public transportation. The FHWA and FTA 
response to this comment is that these provisions do not conflict. They 
reflect the need for close coordination between States, MPOs, and 
operators of public transportation during the target setting process to 
ensure that the targets are coordinated and consistent to the maximum 
extent practicable. This would suggest that State, MPO, and operator of 
public transportation coordination during the development of other 
performance-based plans and processes (such as the State asset 
management plan for the NHS and transit asset management plans, safety 
plans, freight plans, and congestion plans) is desirable because these 
plans could affect the performance targets and the investments that 
support those targets. Early coordination on the development of these 
other performance-based plans and processes could ease their 
integration into the statewide and the metropolitan transportation 
planning processes.
    The San Luis Obispo COG and SCCRTC commented on section 450.306, 
scope of the metropolitan planning process. They felt that 
decisionmaking for metropolitan projects often lies with the State, and 
as a result, the ability for an MPO to succeed at performance-based 
planning and at achieving performance targets is constrained. In 
response to this comment, FHWA and FTA reiterate the importance of 
early and ongoing State and MPO coordination on performance-based 
planning and programming, particularly with target setting and the 
identification of investments and strategies necessary to achieve 
targets. The FHWA and FTA note that it is an MPOs responsibility to 
develop the TIP (23 CFR 450.326), in cooperation with the State(s) and 
any affected public transportation operator(s), and to review and 
update the MTP (23 CFR 450.324(c)). The FHWA and FTA note that the 
State is required to develop the STIP in cooperation with the MPO 
designated for the metropolitan area (23 CFR 450.218(b)) and the State 
shall include each metropolitan TIP without changes in the STIP, 
directly or by reference, after approval of the TIP by the MPO and the 
Governor (23 CFR 450.218(b)).
    Many commenters indicated that they disagreed with the requirement 
to amend the metropolitan planning agreement, stating that it is 
inflexible, that there would be a need to update the agreements 
frequently, and that updates take a long time. In reviewing these 
comments, FHWA and FTA decided to retain the requirement that there be 
mutually developed written documentation describing the interagency 
roles and responsibilities for performance-based planning in a 
metropolitan area. However, the final rule allows for flexibility, in 
that it may be documented as part of the metropolitan planning 
agreement, or in some other form mutually agreed upon by the States, 
MPOs, and operators of public transportation.
Coordination of Statewide Planning Process Activities (Section 450.208)
    Regarding the coordination of planning process activities in 
section 450.208, NYS DOT commented that in multijurisdictional mega-
regions, flexibility is needed to coordinate performance management 
requirements among States, MPOs, and interstate agencies or 
authorities. The commenter further stated that this flexibility is 
needed due to the complexity of transportation facilities and services 
that may straddle several MPO and State boundaries. The SEMCOG 
commented that there should be flexibility to allow MPOs to develop 
cooperative procedures for performance-based planning that are best for 
the local situation. The FHWA and FTA agree that States, MPOs, and 
interstate agencies and authorities need the flexibility to determine 
how best to coordinate their respective transportation planning 
activities and believe that the final rule provides for flexibility. 
Section 450.314(h) provides States, MPOs, and operators of public 
transportation options for mutually identifying the agency roles and 
responsibilities for performance-based planning and programming in 
metropolitan areas in writing, either through the metropolitan planning 
agreements or by some other mutually determined means.
Development and Content of Long-Range Statewide Transportation Plans, 
MTPs, STIPs, and TIPs (Sections 450.216, 450.218, 450.324, and 450.326)
    The FMATS commented that it is essential for States to develop 
performance targets in full coordination with MPOs and the 
nonmetropolitan planning areas to ensure that performance targets are 
considered during the development of TIPs and STIPs, and that 
investment priorities are tied to targets. The FHWA and FTA agree that 
State and MPO coordination is a key part of target setting. It is also 
key that MPOs and operators of public transportation coordinate in 
metropolitan areas and that States coordinate with rural operators of 
public transportation as part of target setting for transit measures. 
The Miami-Dade MPO stated that it is important for States to coordinate 
the STIP with MPOs and that the STIP be consistent with the 
metropolitan plans, especially in TMAs. In response to this comment, 
FHWA and FTA reiterate that the STIP and the TIP must be consistent 
with the long-range statewide transportation plan (section 450.218(k)) 
and the MTP (section 450.326(i)), respectively, and that that the STIP 
must incorporate the TIP without alteration (section 450.218(b)).
Section 450.314 Metropolitan Planning Agreements
    Section 450.314 discusses the requirement that States, MPOs, and 
operators of public transportation serving an MPA cooperatively 
establish a metropolitan planning agreement. These agreements determine 
the mutual responsibilities of the parties in carrying out the 
metropolitan transportation planning process. Forty-three commenters 
(Albany MPO, AASHTO, AMPO, APTA, ARC, Board of the French Broad River 
MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC DOT, DRCOG, 
DVRPC, FL DOT, Florida MPO Advisory Council,

[[Page 34068]]

FMATS, H-GAC, HI DOT, IA DOT, MAG, MARC, Metropolitan Transportation 
Council MPO, MT DOT, MTC, NACTO, NARC, New York State Association of 
MPOs, NJTPA, NC DOT, North Florida TPO, NYMTA, NYMTC, NYS DOT, OR DOT, 
PA DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, Transportation 
for America, TX DOT, and Wilmington MPO) provided comments on this 
section. Twenty-one of the commenters were from MPOs, 13 were from 
States, 7 were from transportation associations, 1 was from an operator 
of public transportation, and 1 was from an advocacy organization.
    The requirement to have metropolitan planning agreements is long-
standing, dating to the 1993 planning regulations that resulted from 
the passage of ISTEA in 1991. The metropolitan planning agreements 
serve as a basis for describing the interagency coordination that is 
part of the 3-C planning process. In the NPRM, FHWA and FTA proposed to 
add new provisions in this section to require that the States, MPOs, 
and operators of public transportation update the metropolitan planning 
agreements to include new interagency coordination provisions for 
State, MPO, and operator of public transportation on performance-based 
planning and programming and on the collection of data for the State 
asset management plan for the NHS. Specifically, sections 450.314(a), 
(e), and (g) in the NPRM would have required that the metropolitan 
planning agreements include specific provisions for cooperatively 
developing and sharing information related to transportation systems 
performance data, the selection of performance targets, the reporting 
of performance targets, the reporting of system performance to be used 
in tracking progress toward attainment of critical outcomes for the 
region of the MPO (section 450.306(d)), and the collection of data for 
the State asset management plan for the NHS.
    The NPRM proposed the addition of this new provision to the 
metropolitan planning agreements for two reasons: (1) To document the 
coordination necessary to successfully implement performance-based 
planning in metropolitan areas, and (2) to document coordination on the 
collection of data for the NHS for the State asset management plan 
(given that there are NHS highways in metropolitan areas and that some 
NHS roads are not on the State highway system but instead are under the 
ownership of local jurisdictions).
    Nearly all of the comments on this section focused on the proposed 
requirements for including specific provisions in the metropolitan 
planning agreements for cooperatively developing and sharing 
information related to transportation systems performance data, the 
selection of performance targets, the reporting of performance targets, 
the reporting of system performance to be used in tracking progress 
toward attainment of critical outcomes for the region of the MPO (see 
section 450.306(d)), and the collection of data for the State asset 
management plan for the NHS. The commenters near universally stated 
that it would be difficult, time consuming, expensive, and require 
extensive review to carry this out and that these changes should not be 
included in the final rule. They further indicated that including the 
provision as part of the metropolitan planning agreement creates 
inflexibility because it would be difficult and time consuming to 
change the agreements as roles of the agencies might shift over time 
and the agreements might be subject to frequent change.
    Nearly all of the commenters (AASHTO, Albany MPO, AMPO, ARC, Board 
of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CT 
DOT, DC DOT, DRCOG, DVRPC, FL DOT, Florida MPO Advisory Council, H-GAC, 
HI DOT, IA DOT, Metropolitan Council MPO, MTC, MT DOT, NACTO, NARC, 
NJTPA, North Florida TPO, NYMTA, NYMTC, OR DOT, PA DOT, River to Sea 
TPO, Transportation for America, and TX DOT) stated that they did not 
support these new requirements. These commenters suggested that they 
should not be included in the final rule, should be made optional, or 
should be done by more flexible means outside of the metropolitan 
planning agreement itself because of the difficulty in amending these 
agreements.
    As part of their comments to the docket, many commenters provided 
examples of locally preferred, less formal methods of documentation for 
coordination (in place of using the metropolitan planning agreement). 
The alternative methods of documenting coordination suggested by the 
commenters include: MPO operating procedures (AASHTO, CT DOT, and TX 
DOT), Unified Planning Work Program (UPWP) (CT DOT), handshake 
agreements (ARC), resolution (Board of the French Broad River MPO, 
Charlotte Regional TPO, and Wilmington Urban Area MPO), and a secondary 
agreement separate from the metropolitan planning agreement (FMATS). 
The New York State Association of MPOs suggested documenting 
coordination methods through addendums or amendments to the existing 
metropolitan planning agreements without having to open existing 
agreements. The NYMTA commented that it prefers that the agency roles 
and responsibilities be identified outside the metropolitan planning 
agreement in a more informal manner. The CO DOT commented that the 
metropolitan planning agreement should be flexible, especially for the 
proposed new elements on performance-based planning. While many 
commenters (AASHTO, ARC, DVRPC, FMATS, MTC, New York State Association 
of MPOs, NYMTA, PA DOT, SANDAG, SCAG, SJCOOG, and Transportation for 
America) further stated that although they disagreed with the proposal 
requiring that the metropolitan planning agreements be modified, they 
recognized the importance of ensuring all planning agencies are 
coordinating and collaborating together on regional planning issues, 
including performance-based planning.
    After reviewing these comments, FHWA and FTA have decided to modify 
the final rule to make it more flexible while still fulfilling a 
requirement to jointly agree upon and document mutual responsibilities 
for coordination in support of performance-based planning. In the final 
rule, FHWA and FTA have deleted the provisions for documenting the 
mutual responsibilities for interagency coordination on performance-
based planning and for coordination on data collection on the NHS from 
sections 450.314(a), (e), and (g), and added new section 450.314(h).
    The new section 450.314(h) requires that States, MPOs, and 
operators of public transportation jointly agree upon and develop 
specific written provisions for cooperatively developing and sharing 
information related to transportation performance data, the selection 
of performance targets, the reporting of performance targets, the 
reporting of performance to be used in tracking progress toward 
attainment of critical outcomes for the region of the MPO (see section 
450.306(d)), and the collection of data for the State asset management 
plan for the NHS. The provision requiring documentation of mutual 
responsibilities for State, MPO, and operator of public transportation 
coordination in the final rule is more flexible than what was proposed 
in the NPRM in that these provisions for coordination shall be 
documented either: (1) As part of the metropolitan planning agreements 
required under sections 450.314(a), (e), and (g), or (2) in some other 
means outside of the metropolitan planning agreement as determined 
jointly by the States, MPOs, and operators of public transportation.

[[Page 34069]]

    Similar to the NPRM, section 450.314(a), (e), and (g), and section 
450.314(h) of the final rule requires documentation of responsibilities 
for coordination in each of the following circumstances: (1) When one 
MPO serves an urbanized area, (2) when more than one MPO serves an 
urbanized area, and (3) when an urbanized area that has been designated 
as a TMA overlaps into an adjacent MPA serving an urbanized area that 
is not a TMA. As a result, the language for the metropolitan planning 
agreements, as it relates to performance-based planning and for the 
data collection for the NHS, is unchanged in the final rule with the 
exception that it has been made more flexible to provide States, MPOs, 
and operators of public transportation more options in how they 
establish written methods for coordination.
    In the final rule, FHWA and FTA still require the States, MPOs, and 
operators of public transportation to mutually identify the roles and 
responsibilities of each agency for performance-based planning and for 
collection of data for the NHS in a documented manner. However, the 
option is provided to jointly agree upon and document the methods for 
coordination either through amending the existing metropolitan planning 
agreement or through another mechanism outside of the metropolitan 
planning agreement. This mechanism can be mutually agreed on by the 
States, MPOs, and operators of public transportation.
    Four commenters (Albany MPO, DVRPC, New York State Association of 
MPOs, and NYMTC) were concerned that it will be difficult to establish 
agreements because some of the data and analytical tools necessary for 
performance-based planning might not yet be available and that several 
of the other NPRMs establishing performance measures for the 
performance-based programs have not yet been released. The FHWA and FTA 
response is that under section 450.340 of the final rule (phase-in of 
new requirements), MPOs have 2 years from the issuance of the other 
performance management final rules before they have to comply with the 
performance-based planning requirements of the final rule, including 
compliance with the requirement to document the interagency 
coordination on performance-based planning and data collection for the 
NHS as required in section 450.314. As a result, FHWA and FTA made no 
changes to the final rule based on this comment.
    Transportation for America commented that it wants stronger local 
decisionmaking through improved State and MPO coordination regarding 
NHS within MPO boundaries, and that they would rather have coordination 
than cooperation. In response to this comment, FHWA and FTA note that 
section 450.314(h) requires States and MPOs to mutually determine and 
document the roles and responsibilities of each agency for the 
collection of data for the NHS in the MPA of the MPO in writing as part 
of the metropolitan planning agreement, or in some other mutually 
agreed to format. No changes are made to the final rule based on this 
comment.
    Two commenters (FMATS and MARC) remarked that it is critical to 
describe and clarify the roles and responsibilities of parties 
responsible for the collection of data on the NHS because of the new 
requirements for a State asset management plan for the NHS and the 
establishment of performance measures and targets. The FMATS further 
stated that a conflict resolution process should be included as part of 
the agreement. The MARC commented that MAP-21 added many locally owned 
and operated principal arterial routes to the NHS and that States 
should have primary responsibility for data collection on the NHS with 
the option of providing funding to others to collect. The FHWA and FTA 
respond that the final rule does not establish who has primary 
responsibility for data collection for the NHS routes that are off the 
State system. However, that should be part of what is cooperatively 
described by the States, MPOs, and operators of public transportation 
in their documentation prepared to fulfill the requirements of section 
450.314(h).
    In regards to the FMATS comment about establishing a conflict 
resolution process, FHWA and FTA respond that States, MPOs, and 
operators of public transportation are not required to establish a 
conflict resolution process. However, they may choose to do so. The 
FHWA and FTA did not make any changes to the final rule as a result of 
these comments.
    The CO DOT and NC DOT commented that FHWA and FTA should provide 
the States, MPOs, and operators of public transportation the 
flexibility to determine the specific elements that are appropriate for 
inclusion in the metropolitan planning agreement. In response to these 
comments, States, MPOs, and operators of public transportation are 
provided the flexibility to determine the specific elements that are 
appropriate for inclusion in the metropolitan planning agreement 
provided that, at a minimum, they include the requirement elements 
described in section 450.314. The NJ DOT stated that it already has in 
place various agreements with its transportation partners that were 
reached through a collaborative process, and it would rather use these 
or other less formal documents than the metropolitan planning 
agreement.
    The FHWA and FTA response to this comment is that for the 
documentation on coordination for performance-based planning and for 
data collection for the NHS, States, MPOs, and operator of public 
transportation may collaboratively decide to document their methods for 
coordination outside of the metropolitan planning agreement as part of 
other less formal written agreements or through some other means.
    The FMATS commented that that when a State updates it long-range 
statewide transportation plan or other performance-based plans, it is 
critical that it coordinate with MPOs because the State plans have 
impacts on the MPOs planning process. The FHWA and FTA response to this 
comment is that the metropolitan planning agreement, or another 
cooperatively developed agreement outside of the planning agreement 
could be a good place for describing this coordination.
    The DVRPC stated that a single agreement might not be possible, for 
example in regions with multiple States. The FHWA and FTA response to 
this comment is that while a single agreement is preferred, it might 
not always be realistic, particularly in situations where there are 
multiple States involved and that, if necessary, there might be more 
than one agreement.
    The NYMTA encouraged FHWA and FTA to provide examples of best 
practices on State, MPO, and operator of public transportation 
coordination that MPOs may implement. The APTA commented that FHWA and 
FTA could support coordination through guidance and technical 
assistance. The FHWA and FTA agree that sharing best practices on 
performance-based planning including sharing methods of coordination is 
useful and would benefit the state of the practice. The FHWA and FTA 
are already in the process of, and plan to continue developing 
guidance, workshops, peer exchanges, and other materials as appropriate 
to help disseminate best practices for performance-based planning and 
programming, including best practices on interagency coordination.
    The MN DOT commented that it would like to see more clarification 
concerning bi-State MPOs in regards to coordination efforts for target 
setting in the final rule. The FHWA and FTA

[[Page 34070]]

reiterate that, similar to what was required in the NPRM under sections 
450.314(a), (e), and (g), section 450.314(h) in the final rule requires 
documentation of responsibilities for coordination for each of the 
following circumstances: (1) When one MPO serves an urbanized area, (2) 
when more than one MPO serves an urbanized area, and (3) when an 
urbanized area that has been designated as a TMA overlaps into an 
adjacent MPA serving an urbanized area that is not a TMA. A bi-State 
MPO could exist in any of these circumstances, because some urbanized 
areas cross State lines. Under these requirements, a bi-State MPO would 
have written agreements that include both States. The States, MPOs, and 
operators of public transportation would mutually identify and document 
their methods, roles, and responsibilities for coordination on 
performance-based planning and programming as part of the metropolitan 
planning agreement or by some other means.
    Provisions for target setting for bi-State MPOs that are for 
specific performance measures are outside the context of the final 
rule. There are other rules on target setting for the specific 
federally required performance measures.
    In the NPRM, sections 450.314(a), (e), and (g) used the words 
``system'' and ``systems'' when referring to transportation systems 
performance data and when referring to the reporting of system 
performance. As described previously, FHWA and FTA added new section 
450.314(h) instead of revising sections 450.314(a), (e), and (g). At 
least one commenter (MAG) asked for clarification on what the word 
``system'' is referring to. The FHWA and FTA feel that the use of the 
words in this section is confusing, vague, undefined, and subject to 
misinterpretation and has removed them from section 450.314(h).
    In summary, FHWA and FTA feel strongly that interagency 
coordination is an important part of successful implementation of the 
3-C planning process, including the new requirements for performance-
based planning. The requirement for cooperatively documenting the 
mutual responsibilities for carrying out the 3-C metropolitan 
transportation planning process has a long history dating back to the 
1993 planning regulations. Performance-based planning is the newest 
addition to the 3-C planning process. Documenting the mutual 
responsibilities of the States, MPOs, and operators of public 
transportation in writing, either through the metropolitan planning 
agreement or through another means, is crucial to the successful 
implementation of the coordination that is necessary for the successful 
implementation of performance-based planning. For this reason, the 
final rule retains the requirement to document the methods for 
interagency coordination on performance-based planning and for data 
collection for the State asset management plan for the NHS. However, 
the final rule provides flexibility in how it may be documented.
    The FHWA and FTA reiterate the importance of coordination to the 
effectiveness of performance-based planning and programming. 
Consequently, FHWA and FTA intend to initiate a rulemaking that will 
propose methods for improving MPO coordination in the transportation 
planning process, which recognizes the critical role that MPOs play in 
ensuring the economic well-being of a region and in identifying 
efficient improvements that serve its mobility needs. This targeted 
rulemaking will address the coordination challenges and inefficiencies 
that may result where there are multiple MPOs designated within a 
single urbanized area. The rulemaking may clarify the statutory 
requirement for the State and MPO to determine whether it is 
appropriate to designate multiple MPOs within a region, based on the 
size and complexity of the area. To further a 3-C transportation 
planning process, it may describe the coordination and collaboration 
requirements for MPOs already designated in regions with other MPOs. 
The changes under consideration are intended to enable MPOs to speak 
with a stronger, more unified voice, to increase efficiencies, to 
accelerate project delivery, and to improve the extent to which 
transportation investments reflect the needs and priorities of that 
region.
    To date, FHWA and FTA have conducted numerous workshops, peer 
exchanges, and best practice studies to provide information and 
examples of performance-based planning and programming practices for 
use by the States, MPOs, and operators of public transportation, 
including information on interagency coordination. These resources are 
intended to aid the planning agencies in their transition to 
performance-based planning and programming. Many of these resources 
include elements of interagency coordination practices. This material 
is available at: http://www.fhwa.dot.gov/planning/performance_based_planning/ planning/. The FHWA and FTA plan to continue to develop and share 
additional resources on performance-based planning and programming in 
the future, including resources on interagency coordination.
 Traditionally Underserved Populations, Environmental Justice, 
Title VI of the Civil Rights Act of 1964 (as Amended), Equity, and the 
Transportation Planning Process
    At least 12 commenters discussed the relationships between 
traditionally underserved populations and the transportation planning 
process (Community Labor United, Enterprise Community Partners, Front 
Range Economic Strategy Center, National Association of Social Workers, 
National Housing Conference, NRDC, Partnership for Active 
Transportation, Partnership for Working Families, Policy Link, Public 
Advocates, Sierra Club, and United Spinal Association). The comments 
focused on two elements: (1) Participation of traditionally underserved 
populations in the planning process itself, and (2) consideration of 
traditionally underserved populations in the planning process, 
including the development of key planning documents such as 
transportation plans and programs.
    Related topic areas on which FHWA and FTA received comments 
included equity, EJ (Executive Order (E.O.) 12898, Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations, 1994), and Title VI of the Civil Rights Act of 1964 (as 
amended, 42 U.S.C. 2000d-1). These comments were submitted on several 
sections of the planning regulations including scope of the statewide 
and nonmetropolitan and metropolitan planning processes (sections 
450.206 and 450.306) and development and content of the long-range 
statewide transportation plan, MTP, STIP, and TIP (sections 450.216, 
450.218, 450.325, and 450.326). Comments were also received on sections 
of the NPRM concerning Federal findings and approvals (section 450.220) 
and self-certifications and Federal certifications (section 450.336).
    Given the level of detail, specificity, and uniqueness of the 
individual comments on this topic area, FHWA and FTA have organized 
this section in a comment and response format for ease of providing 
clarity in the responses.
    Comment: The Nine to Five National Association of Working Women 
commented that an equitable transportation system is critical to 
creating thriving communities of opportunity. The commenter stated that 
where and how we decide to make transportation investments is critical 
to communities' access to economic

[[Page 34071]]

opportunity. The commenter further stated that low income and minority 
communities face tremendous barriers in access to transportation that 
can get them to critical places like school, work, child care, 
appointments, and grocery stores, and that reducing those barriers will 
require targeted investments.
    Response: The FHWA and FTA agree that the transportation system 
plays a critical role in connecting Americans to opportunity by 
providing people with reliable and affordable connections to 
employment, education, services, other opportunities, creating career 
pathways into transportation jobs, and revitalizing neighborhoods and 
regions. The FHWA and FTA emphasize transportation system connectivity 
to create economic growth and spark community revitalization, 
particularly for disadvantaged groups like low-income, minority, older 
adults, or individuals with disabilities. The FHWA and FTA and the 
Office of the Secretary of Transportation are actively working with 
States, MPOs, operators of public transportation, and others on an 
initiative called Ladders of Opportunity. Ladders of Opportunity is an 
outreach effort that encourages MPOs, States, and operators of public 
transportation to consider connectivity and access for traditionally 
underserved populations to employment, health care, healthy food, and 
other essential services using Geographic Information Systems (GIS) 
based analysis tools and data. Ladders of Opportunity and connectivity 
have been part of the planning emphasis areas of the FHWA and FTA for 
Federal fiscal years 2015 and 2016.
    The FHWA and FTA have developed several case study examples of 
analysis of connectivity and shared it with States and MPOs via 
Webinars and a workshop. Under the Ladders of Opportunity initiative, 
the MPOs are being encouraged to include funded work program activities 
to include an analysis of connectivity gaps with their MTP and TIP 
development. The FHWA and FTA will continue to conduct outreach and 
training on this topic and encourage MPOs to include a connectivity 
analysis as part of their planning process and plan and TIP 
development.
    Comment: The Enterprise Community Partners, NRDC, and National 
Housing Conference, suggested that there be a requirement to include 
housing and community development representatives and consider those 
topics in the in the scope of the statewide and metropolitan planning 
processes (sections 450.206 and 450.306).
    Response: The FHWA and FTA note that under sections 450.206 and 
450.306 it is required that the statewide and metropolitan planning 
process promotes consistency between transportation improvements and 
State and local planned growth and economic development patterns. The 
FHWA and FTA also note that under sections 450.210(a) and 450.316(a), 
States and MPOs are required to provide individuals, affected public 
agencies, representatives of the disabled, and other interested parties 
an opportunity to be involved in the statewide and the metropolitan 
transportation planning processes. The FHWA and FTA believe that these 
affected public agencies and other interested parties should include 
housing and community development representatives.
    Comment: Several commenters suggested that FHWA and FTA should 
consider that scenario planning in the development of the MTP be used 
by MPOs to analyze the impact of investments and policies on the 
transportation system, including prioritizing the needs of low-income 
populations, minorities, or people with disabilities.
    On section 450.324(i), voluntary use of scenario planning in the 
development of the metropolitan transportation plan, at least seven 
advocacy groups (Community Labor United, Front Range Economic Center, 
National Association of Social Workers, Partnership for Working 
Families, PolicyLink, Public Advocates, United Spinal Association) 
suggested that scenario planning be used by MPOs to analyze the impact 
of investments and policies on the transportation system including 
prioritizing the needs of low-income populations, minorities, or people 
with disabilities. One advocacy group (National Housing Conference) 
suggested that MPOs should consider housing needs when conducting 
scenario planning.
    Response: The FHWA and FTA agree with the commenters that scenario 
planning could help an MPO conduct an analysis of the impact of 
investments on low-income, minority, or disabled populations. However, 
FHWA and FTA reiterate that the use of scenario planning by the MPOs as 
part of developing the MTP is optional under the final rule (section 
450.324(i)). The FHWA and FTA have a long-standing history of working 
with MPOs on the implementation of EJ into the planning process and 
Title VI. Similarly, MPOs could choose to evaluate housing needs as 
part of scenario planning, but are not required. That decision is left 
to the individual MPOs to decide. Based on these comments, no changes 
are made to the final rule.
    The FHWA and FTA strongly support scenario planning as a best 
practice for developing the MTP. The NPRM and the final rule provide an 
optional framework for MPOs to use scenario planning in the development 
of their MTPs at section 450.324(i). The FHWA and FTA have developed 
considerable resources, examples of practice, and peer exchanges in 
support of promoting scenario planning. They are available at: http://
www.fhwa.dot.gov/planning/scenario_and_visualization/scenario_planning/
.
    Comment: An EJ, equity, and Title VI analysis should be part of the 
scope of the statewide and metropolitan planning processes.
    Nearly all of the commenters who provided comments on the 
relationships between traditionally underserved populations and the 
transportation planning process stated that States and MPOs should 
conduct an analysis of the impact of transportation plans, STIPs, and 
TIPs on EJ communities and Title VI in the interest of ensuring that 
investments are made in ways that help all communities prosper and 
achieve equitable investments. Several commenters recommended that 
performance measures be used to prioritize projects and expand equity 
and access to economic opportunity, public transit, access to jobs, 
affordable housing, pedestrian safety, and transportation costs for the 
benefit of traditionally underserved populations.
    Others recommended that MTPs should be evaluated by their potential 
to connect the traditionally underserved to opportunities by providing 
them with reliable and affordable connections to employment, education, 
services, and other opportunities; creating career pathways into 
transportation jobs; and revitalizing neighborhoods and regions. Public 
Advocates suggested that MPOs should complete a comprehensive study of 
current conditions of disadvantaged communities as part of an equity 
analysis. They further stated that MPOs should routinely gather, 
analyze, and report relevant transit rider and demographic data and 
disaggregate by race and income. The Center for Social Inclusion stated 
that MPOs should conduct an equity analysis assessment of the TIP 
investments because they are short-term, in addition to an analysis of 
the MTP, which is longer term.
    Response: The FHWA and FTA have been working actively with the 
States and MPOs to implement EJ principles into the statewide and 
metropolitan transportation planning and project development processes 
in accordance

[[Page 34072]]

with Executive Order 12898. The FHWA and FTA also require States and 
MPOs to comply with the requirements of Title VI and periodically 
review their compliance as part of TMA planning certification and 
through other Title VI reviews. The FHWA and FTA do not prescribe 
specifically how a State, MPO, or operator of public transportation 
conducts its analysis of EJ or Title VI. That is left to the specific 
agencies to decide based on their needs and situations. The FHWA and 
FTA provide examples of good practice and training that States, MPOs, 
and operators of public transportation can use to guide their 
practices.
    Comment: The NRDC suggested that FHWA and FTA should establish a 
framework for MPOs to demonstrate to them and local communities how 
they are incorporating EO 12898 into their planning process.
    Response: The FHWA and FTA typically discuss efforts at integrating 
EJ into the planning process and EO 12898 during certification reviews 
of TMAs.
    Comment: The Nine to Five National Association of Working Women 
stated that developing State and metropolitan planning guidance that 
includes the voices of directly affected communities and prioritizes 
enhanced mobility and opportunity for the most vulnerable populations, 
transit investments can go a long way to supporting improved social and 
economic outcomes in these communities.
    Response: The FHWA and FTA note that under section 
450.210(a)(1)(vii), the final rule continues the long-standing 
requirement that States develop and use a documented public involvement 
process that provides opportunities for public review and comment at 
key decision points in the statewide and nonmetropolitan transportation 
planning process. The State's public involvement process is required to 
include 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 (section 450.210(a)(1)(viii)).
    The MPOs are required to develop a participation plan in 
consultation with all interested parties. Similar to the State's 
documented public involvement process, the MPO public participation 
plan is required to 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 (section 
450.316(a)(1)(vii)).
    Both the States and the MPOs are also required to provide adequate 
notice of public participation activities and a reasonable opportunity 
to comment on the long-range transportation plan, STIP, and TIP. The 
final rule also continues the long-standing requirement that both 
States and MPOs must hold any public meetings at convenient times and 
accessible locations, provide the public timely notice and reasonable 
access to information about transportation issues and process, and 
demonstrate explicit consideration and response to public input 
received on the long-range plan, STIP, and TIP (sections 450.210 and 
450.316).
    Comment: Nearly all of the advocacy groups commented that FHWA and 
FTA should provide guidance on EJ based on EO 12898. Several commenters 
suggested that best practices from academic research should be used in 
equity analysis design and be recommended by FHWA and FTA.
    Response: The FHWA and FTA have a longstanding practice of 
undertaking research studies and identifying best practices and case 
studies in EJ, including equity analysis. This information is available 
at: http://www.fhwa.dot.gov/environment/environmental_justice/. This 
site is updated frequently with new resource material. The FHWA and FTA 
also offer training on EJ and Title VI on request.
    Comment: Several advocacy groups (Community Labor United, Front 
Range Economic Strategy Center, National Association of Social Workers, 
Partnership for Working Families, PolicyLink, Public Advocaes, The 
Leadership Conference on Civil and Human Rights, and United Spinal 
Association) commented that EO 12898 and Title VI of the Civil Rights 
Act of 1964, as amended, should be part of the State and the MPO self-
certification and topics of review in FHWA and FTA TMA transportation 
planning certification. They suggested that in sections 450.220 and 
450.336 States and MPOs should be required to self-certify compliance 
with EO 12898 and Title VI and that FHWA and FTA should review 
compliance as part of the TMA transportation planning certification 
review.
    Response: States and MPOs are required by the final rule to certify 
compliance with Title VI. The FHWA and FTA do not require States and 
MPOs to self-certify compliance to the EO because it is only intended 
to improve the internal management of the Executive Branch and is 
directed to Federal agencies.
    Also, as stated in section 6-609 of the EO, it does not create 
substantive rights. Consistent with this approach, all of the 
requirements identified in sections 450.220 and 450.336 are based on 
law, not EOs. However, FHWA and FTA encourage States, MPOs, and 
operators of public transportation to incorporate EJ principles into 
the planning processes and documents. The FHWA and FTA consider EJ when 
making future funding or other approval decisions on a project basis, 
as required by EO 12898.
    The FHWA and FTA further respond that EJ is typically discussed as 
part of TMA planning certification reviews. The FHWA and FTA have a 
long-standing history of working with States and MPOs to implement EJ 
as part of the transportation planning and project development 
processes. States and MPOs are required by the final rule to certify 
compliance with Title VI (sections 450.220 and 450.336). The FHWA and 
FTA typically discuss compliance with Title VI as part of TMA planning 
certification reviews.
    The FHWA and FTA note that Title VI of the Civil Rights Act of 1964 
is a Federal law that protects persons from discrimination based on 
race, color, or national origin in programs and activities that receive 
Federal financial assistance. These regulations require States to 
certify that the transportation planning process is being carried out 
in accordance with all applicable requirements of Title VI (42 U.S.C. 
2000d-1) and 49 CFR part 21 at the time that the STIP or STIP 
amendments are submitted to FHWA and FTA for joint approval (section 
450.220(a)(2)). The MPOs must make similar certification concurrent 
with the submittal of the TIP to FHWA and FTA as part of the STIP 
approval (section 450.336(a)(3)). The FHWA and FTA typically review 
compliance with Title VI as part of the planning certification review 
of TMAs, and also review Title VI complaints as part of other reviews 
that are outside the scope of the final rule.
    Comment: The National Association of Social Workers, NRDC, Policy 
Link, Sierra Club, and United Spinal Association commented that MPOs 
should establish governing bodies that are inclusive of the communities 
they serve, and that the decisionmaking bodies should reflect the 
diversity of interests based on age, race, ethnicity, disability, and 
income.
    Response: The FHWA and FTA note that the policy board for MPOs that 
serve TMAs are to be established in accordance with the requirements in 
the final rule at section 450.310, which is reflective of the law at 23 
U.S.C. 134(d) and 49 U.S.C. 5303(d). This section requires specific 
representation from

[[Page 34073]]

local elected officials, officials of public agencies that administer 
or operate major modes of transportation in the metropolitan area, 
representation by operators of public transportation, and appropriate 
State officials. The FHWA and FTA encourage MPOs to seek representation 
from minority communities as part of meeting the requirements of 
section 450.310. As discussed elsewhere in this summary, MPOs are 
required to self-certify compliance with Title VI and FHWA and FTA 
periodically review this self-certification.
    Comment: The Center for Social Inclusion, Community Labor United, 
Front Range Economic Strategy Center, National Association of Social 
Workers, Policy Link, Public Advocates, and United Spinal Association 
commented that FHWA and FTA should collect and share data on travel 
behavior that is disaggregated by race and income. They also commented 
that FHWA and FTA should facilitate local and targeted hiring on 
transportation projects. One commenter suggested that FHWA and FTA 
should do a comprehensive study on the current condition of targeted 
communities.
    Response: The FHWA and FTA response to these comments is that these 
requests are outside the scope of this rule.
    Comment: Several commenters (United Spinal Association, Public 
Advocates, Policy Link, Community Labor United, Front Range Economic 
Strategy Center, National Association of Social Workers, Partnership 
for Working Families) encouraged FHWA and FTA to consider incentivizing 
implementation of equity-based performance measures in its 
Transportation Investment Generating Economic Recovery (TIGER) program. 
The Center for Social Inclusion suggested that a competitive grant 
program similar to TIGER should be established to incentivize States, 
MPOs, and operators of public transportation to coordinate and conduct 
project level equity analysis.
    Response: The FHWA and FTA note that the TIGER grantees work with 
DOT modal administrations to choose between two and four project-level 
performance measures from a list of measures that directly relate to 
the five departmental strategic goals, which include the goal of 
fostering quality of life for all. This does not preclude any grantee 
from developing additional performance measures for internal analytic 
purposes, which could more directly reflect their community's strategic 
goals and priorities, such as equity-based performance measures. In 
response to other comments that suggested creating other grant programs 
similar to TIGER and include equity-based performance measures as part 
of those programs, FHWA and FTA note that the TIGER grant program is 
established under appropriations bills and that FHWA and FTA could not 
establish other grant programs similar to TIGER because it requires 
specific statutory authority to do so. The FHWA and FTA also note that 
the TIGER grant program and any other similar programs are outside the 
scope of the final rule.
    Comment: The FHWA and FTA should prepare a quadrennial national 
report of non-discrimination that includes demographic data, inventory 
of complaints filed, compliance reviews conducted, an assessment of 
impediments to non-discrimination, and recommendations for compliance.
    Some commenters (National Association of Social Workers, Policy 
Link, The Leadership Conference on Civil Rights, and United Spinal 
Association) suggested that FHWA and FTA prepare a quadrennial national 
report of non-discrimination that includes demographic data, an 
inventory of complaints filed, compliance reviews conducted, an 
assessment of impediments to non-discrimination, and recommendations 
for compliance. These same commenters argued that the information 
collected would aid FHWA and FTA in monitoring State and MPO progress 
in prioritizing investments that increase mobility and access to 
centers of employment.
    Response: The FHWA and FTA respond that this comment is outside the 
scope of the final rule.
    Comment: Several commenters suggested specific performance measures 
be incorporated into the planning process for the purposes of analyzing 
equity, EJ, and Title VI.
    Community Labor United, the Front Range Economic Strategy Center, 
the National Association of Social Workers, NRDC, Partnership for 
Working Families, Policy Link, and United Spinal Association suggested 
that the DOT should incentivize States and MPOs to set performance 
measures and prioritize projects that expand economic opportunity for 
low-income and minority communities. Some suggested a number of 
specific performance measures be incorporated into the planning process 
such as housing and transportation costs, fatalities and injuries, 
security (distances police and fire professionals have to travel to the 
scene of accidents and crimes), system connectivity, energy 
conservation, system preservation, and person throughput. The Center 
for Social Inclusion stated that there should be a comprehensive equity 
performance measure.
    Response: The FHWA and FTA note that the final rule does not 
establish specific performance measures and the discussion of specific 
performance measures is outside of its scope. There are other FHWA and 
FTA rulemakings in varying stages of development that will address 
performance measures. The FHWA notes that 23 U.S.C. 150 prescribes that 
FHWA and FHWA is expressly limited to establishing performance measures 
only for areas identified in that statute.
    Comment: One commenter (NRDC) stated that FHWA and FTA should 
consider that the congestion reduction goal should be changed to 
congestion management to reflect the fact that congestion can sometimes 
be a symptom of a healthy economy.
    Response: Congress specifically established Congestion Reduction as 
a national goal for the Federal-aid highway program as provided in 23 
U.S.C. 150(b)(3). The FHWA and FTA note that these regulations do 
include a congestion management process requirement for TMAs in section 
450.322 as required under 23 U.S.C. 134(k)(3). Based on these comments, 
FHWA and FTA are not making any changes to the regulations. The FHWA 
and FTA will continue to make resources, best practices, workshops, 
peer exchanges, and guidance available to the States, MPOs, and 
operators of public transportation on these topics (equity, EJ, Title 
VI, and scenario planning) and work to assist them with implementing 
these practices into their planning processes.
    Comment: At least one commenter (9 to 5, National Association of 
Working Women), suggested that FHWA and FTA should consider collecting 
and disseminating best practices and should consider providing 
technical assistance and funding support for State and MPO public 
engagement efforts.
    Response: The FHWA and FTA collect and disseminate best practices 
and provide technical support for State and MPO public engagement 
efforts. Under the Public Transportation Participation Pilot Program, 
created as part of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), FTA 
sponsored applied research to develop innovative approaches to 
improving public participation in the planning of public 
transportation. The research focused on improving data collection 
analysis and transportation access for all users of the public 
transportation

[[Page 34074]]

systems; supporting public participation through the project 
development phases; using innovative techniques to improve the 
coordination of transportation alternatives; enhancing the coordination 
of public transportation benefits and services; contracting with 
stakeholders to focus on the delivery of transportation plans and 
programs; and measuring and reporting on the annual performance of the 
transportation systems. The results of the research can be found at 
http://www.fta.dot.gov/12347_5925.html. Similarly, FHWA has developed 
material and resources on best practices for public participation that 
are available at: http://www.fhwa.dot.gov/planning/public_involvement/.
    The FHWA and FTA note that section 450.308(a) describes funds that 
are available to MPOs to accomplish the activities described in 23 
U.S.C. 134, metropolitan transportation planning, including public 
participation. Section 450.206(e) describes funds that are available to 
the States to accomplish the requirements of 23 U.S.C. 135, statewide 
and nonmetropolitan transportation planning, including public 
involvement.
    The FHWA and FTA appreciate that many commenters shared many 
examples of best practices which are highlighted below:
     Massachusetts: Community Labor United's Public Transit-
Public Good Coalition advocated for the inclusion of comprehensive 
service assessments in the State transportation funding bill (H3535).
     Washington: King County Metro Transit's Strategic Plan for 
Public Transportation provides annual goals and assessment of 46 
indicators that prioritize social equity.
     California: California's Transportation Alternatives 
Program includes performance measures that prioritize mobility and 
safety for bicyclists and pedestrians, especially in disadvantaged 
communities.
     Georgia: The Atlanta Regional Commission developed 
Equitable Target Areas for greater outreach and planning attention. 
That process can be found here http://www.atlantaregional.com/transportation/community-engagement/social-equity).
     U.S. Government: HUD's Sustainable Communities Initiative 
to glean effective strategies for advancing inclusive governance and 
community engagement.
     Colorado: The Denver Regional Equity Atlas was developed 
by DRCOG and Mile High Connects. The atlas explores population and 
demographic characteristics across the region, including jobs, economic 
development opportunities, transportation mobility, and affordable and 
quality housing options.
     California: The San Francisco Bay Area undertook a 
scenario planning and vision process that would produce an integrated 
long-range transportation and land-use/housing plan for the San 
Francisco Bay Area. This process resulted in development of the Equity, 
Environment, and Jobs scenario.
     Louisiana: A survey of low-income riders conducted by the 
Regional Transit Authority (RTA) in New Orleans revealed that transit-
dependent workers with early-morning or late-night shifts were unable 
to access public transportation to get between work and home.
 Asset Management and the Transportation Planning Process
    In section 450.208(e) (coordination of planning process 
activities), AASHTO, CO DOT, ID DOT, MT DOT, ND DOT, OR DOT, SD DOT, TX 
DOT, and WY DOT expressed concerns with section 450.208(e) of the NPRM, 
which stated that, in carrying out the statewide transportation 
planning process, States shall apply asset management principles and 
techniques, consistent with the State NHS Asset Management Plan, the 
Transit Asset Management Plan, and the Public Transportation Safety 
Plan. The commenters stated that the statewide planning process is much 
broader than an asset management plan, and that as a requirement, it 
may have unintended consequences. The commenters suggested that it be 
deleted or modified. The WI DOT commented that it wants clarification 
on what section 450.208(e) means.
    In response to these comments, FHWA and FTA retained this 
provision. However, ``shall'' is changed to ``should'' in the final 
rule. The FHWA and FTA believe that asset management principles and 
techniques, consistent with the State NHS Asset Management Plan and the 
Transit Asset Management Plan, and the Public Transportation Safety 
Plan, should contribute to defining STIP priorities and assessing 
transportation investment decisions. It is changed from shall to should 
in the final rule because, as noted in the comments received on the 
NPRM, it is not a statutory requirement. The FHWA and FTA feel that the 
use of the word ``shall'' might be implied to mean that strategies, 
projects, and financial plans resulting from the asset management plans 
would be required to be included directly in the STIP. The FHWA and FTA 
feel that by changing ``shall'' to ``should,'' it conveys the message 
that States should review the asset management plans when developing 
the STIP, but are not required to incorporate them into the STIP.
    The FHWA and FTA retained the provision in section 450.208(f) that 
for non-NHS highways, States may apply principles and techniques 
consistent with other asset management plans to the transportation 
planning and programming process, as appropriate. No comments were 
received on this provision.
    Sections 450.218 and 450.326 describe the development of the STIP 
and TIP. At sections 450.218(o) and 450.326(m) in the NPRM, FHWA and 
FTA included the requirement that the STIP and the TIPs should be 
informed by the financial plan and the investment strategies from the 
asset management plan for the NHS, and the investment priorities of the 
public transit asset management plans.
    Similarly, in the NPRM at sections 450.216(n) and 450.324(f)(7), 
FHWA and FTA included the statement that the long-range statewide 
transportation plan and the MTPs should be informed by the financial 
plan and the investment strategies from the asset management plan for 
the NHS and the investment priorities of the public transit asset 
management plans. These provisions were proposed in the NPRM by FHWA 
and FTA to better link the State and MPO long-range plans and programs 
to the federally required State NHS asset management plan and the 
transit asset management plans.
    Numerous comments (DVRPC, AASHTO, ASHTD, ID DOT, MI DOT, MT DOT, ND 
DOT, SD DOT, SEMCOG, and WY DOT) stated that this requirement was 
confusing; that it was unclear what FHWA and FTA's expectations were; 
that it was not based on statute; and that it should be deleted from 
the final rule. The States further commented that it infringes on their 
flexibility to determine the content of their long-range transportation 
plan, including whether to create a policy-or project-based plan. Most 
commenters stated that it could be interpreted and applied 
inconsistently.
    After reviewing the comments, FHWA and FTA agree that this language 
is ambiguous regarding what the States and MPOs would be expected to 
do, and that it would be difficult to implement consistently across all 
the States and MPOs. The FHWA and FTA also note that, adding to the 
inconsistency, the financial plans for the MPO MTP, the TIP and the 
STIP are required to be fiscally constrained, while the financial plans 
for the asset management plans are not. States may, but are not 
required to develop a list of projects as part of the

[[Page 34075]]

State asset management plan for the NHS. Based on these comments and 
inconsistencies, FHWA and FTA removed this requirement from the final 
rule.
    However, the final rule retains the language at sections 
450.206(c)(4) and 450.306(d)(4) of the NPRM that requires the 
integration of elements of other State and transit performance-based 
plans and processes into the Statewide and metropolitan transportation 
planning processes. These other plans include the federally required 
State asset management plan for the NHS and the transit asset 
management plan. Integration of elements of other performance-based 
plans and processes means that elements of these other plans and 
processes should be considered by the State and MPOs as they develop 
the long-range statewide transportation plan, MTP, STIP, and TIP. The 
FHWA and FTA feel that this provision is sufficient to link the asset 
management plans into the statewide and metropolitan transportation 
planning processes, and is consistent with the statutory requirements 
at 23 U.S.C. 134(h)(2)(D) and 135(d)(2)(C), and 49 U.S.C. 5303(h)(2)(D) 
and 5304(d)(2)(C).
 Common Effective Date for Performance Related Rules and Phase-
In of New Requirements
Common Effective Date
    At least 26 commenters (AASHTO, AK DOT, Albany MPO, AMPO, ASHTD, CO 
DOT, CT DOT, FMATS, GA DOT, H-GAC, IA DOT, MD DOT, MI DOT, MN DOT, MO 
DOT, NARC, NC DOT, NJ DOT, North Florida TPO, NYS DOT, PSRC, RI DOT, 
San Luis Obispo COG, SEMCOG, TX DOT, and WA State DOT) commented that 
all of the new performance management requirements in the final rule 
should have a single effective date and that the planning requirements 
should be coordinated with the implementation of the other performance 
management requirements. They commented that this would ensure that 
States and MPOs are not establishing different targets for different 
time periods for different measures and incorporating targets for some 
measures into their planning processes, but not others.
    The TX DOT further commented that having one effective date for all 
of the performance management rules would enable the States and MPOs to 
work together and ensure the necessary data and analysis techniques are 
available. The IA DOT commented that it is concerned that the comment 
period for the planning NPRM closed before all the other FHWA and FTA 
performance-related rules were published. The DRCOG and RTD expressed 
concern that because the other performance rules have not been 
published, it is not clear on how coordination of all the rules will 
work out, particularly the relationship of the measures and targets and 
the requirements of any plans that implement them. The RMAP is 
concerned with overlapping effective dates for the various performance 
related rules.
    The FHWA and FTA response to this comment is that FHWA proposed in 
the prior performance management NPRMs to establish one common 
effective date for its three performance measure final rules. However, 
due to the length of the rulemaking process, FHWA is now proposing that 
each of three performance measures rules have individual effective 
dates. This would allow FHWA and the States to begin implementing some 
of the performance requirements much sooner than waiting for the 
rulemaking process to be complete for all the rules.
    The first performance measures rule related to the HSIP has been 
finalized and could be implemented in its entirety before the other two 
rules. Earlier implementation of this rule is consistent with a DOT 
priority of improving the safety mission across the DOT.
    The FHWA also believes that individual implementation dates will 
help States transition to performance-based planning. Based on the 
timing of each individual rulemaking, FHWA would provide additional 
guidance to stakeholders on how to best integrate the new requirements 
into their existing processes. Under this approach, FHWA expects that 
even though the implementation for each rule would occur as that rule 
was finalized, implementation for the second and the third performance 
measure final rules would ultimately be aligned through a common 
performance period. In the second performance management measure NPRM, 
FHWA proposed that the first 4-year performance period would start on 
January 1, 2016.
    However, FHWA proposes in the third performance management NPRM 
that the first performance period would begin on January 1, 2018. This 
would align the performance periods and reporting requirements for the 
proposed measures in the second and third performance management 
measure NPRMs. The FHWA intends to place a timeline that illustrates 
how this transition could be implemented on the docket for the third 
performance management rule.
Phase-In of New Requirements
    Concerning section 450.226 (phase-in of new requirements), IA DOT 
asked whether the 2-year compliance date also applies to amendments to 
long-range statewide transportation plans. The FHWA and FTA response to 
this comment is that it applies to both amendments and to updates to 
STIPs and to long-range statewide transportation plans. This is 
described in the regulatory text at 450.226 and is based on 23 U.S.C. 
135(l).
    For section 450.226, one commenter (DC DOT) suggested that FHWA and 
FTA consider changing the language in the final rule such that only 
STIP (and TIP) updates would be required to comply with the performance 
management requirements after the 2-year transition period instead of 
requiring compliance with STIP (and TIP) amendments and updates. The 
commenter stated that this would provide an additional 2 years of 
transition time during which amendments could be made to the STIPs and 
TIPs because they only have to be updated at least once every 4 years 
and that allowing amendments for an additional 2 years would reduce the 
possibility of delays in project implementation. The FHWA and FTA do 
not agree with this comment and believe that the 2-year transition 
provided for by MAP-21 and final rule is adequate.
    The FHWA and FTA believe that 23 U.S.C. 135(l) provides for a 2-
year transition after the publication of the final planning rule. Title 
23 U.S.C. 135(l) provides that States shall reflect changes made to the 
long-range statewide transportation plan or STIP updates not later than 
2 years after the date of issuance of guidance by the Secretary. The 
FHWA and FTA believe that the issuance of guidance as described in 23 
U.S.C. 135(l) means issuance of the final rule by FHWA and FTA. The 
FHWA and FTA have interpreted this to mean that STIP updates and 
amendments would have to comply with the MAP-21 requirements, including 
the performance-based planning requirements of this rule, after the 
transition period.
    The FHWA and FTA note that although States and MPOs have a 2-year 
transition period for reflecting the performance-based planning 
requirements in the underlying planning documents, they must set 
targets on the schedules discussed in sections 450.206(c)(2) and 
450.306(d)(3) and below. Also, when setting targets, States and MPOs 
are required to coordinate as described in the final rule

[[Page 34076]]

in sections 450.206(c)(2) and 450.306(d)(3). No changes are made to the 
final rule based on these comments. The final rule includes similar 
transition requirements for the MPO MTP and TIP in section 430.340. See 
the NPRM section by section analysis for section 450.340 for more 
discussion on why the rule also applies the transition period to MPOs. 
No changes are made to the final rule based on these comments.
    For sections 450.226 and 450.340, one commenter (DRCOG) stated that 
the phase-in schedule is unclear. The NPRM stated that States have 1 
year to establish performance targets, and MPOs have 180-days to set 
targets after the States set targets (1.5 years total), but the NPRM 
also referenced a 2 year phase-in period to develop and coordinate 
targets.
    In response to this comment, FHWA and FTA note that it is correct 
that States must establish targets within 1 year of the effective dates 
of the performance management rules and MPOs must establish targets 
within 180-days of when their respective States set targets. While 
these targets have to be set by the States and the MPOs on this 
timeframe, these targets and the other performance-based planning 
requirements of the final rule do not have to be reflected in the long-
range statewide transportation plan, MTP, STIP, and TIP until 2 years 
after the effective dates of this final rule and the performance 
management rules establishing performance measures under 23 U.S.C. 
150(c), 49 U.S.C. 5326, or 49 U.S.C. 5329.
    Also concerning section 450.340, two commenters (IA DOT, WFRC) 
commented that it is unclear if the 2-year compliance date also applies 
to amending long-range statewide transportation plans and MTPs, or if 
it applies only to updated plans. The FHWA and FTA response to this 
comment is that the 2-year compliance date applies to both amended and 
updated long-range statewide transportation plans and MTPs.
    The New York State Association of MPOs and NYMTC commented that 
FHWA and FTA should not require MPOs to incorporate performance-based 
planning provisions into their MTPs or TIPs until 2 years after the 
last final rule related to performance-based planning is published in 
the Federal Register.
    The FHWA and FTA response to this comment is that, as described in 
sections 450.226 and 450.340, the phase-in of the performance-based 
planning requirements are triggered by the effective date of this final 
rule and the effective dates for the individual final rules for the 
other performance management rules. The FHWA and FTA believe that this 
will not be too burdensome given that this regulation provides a 2-year 
transition period rule after the effective dates of this rule and the 
performance management rules for the planning process and the planning 
documents to reflect the performance-based requirements in this rule. 
Updates or amendments to the long-range statewide transportation plan 
and the MTP(s) and the STIP and TIPs that occur on or after the date 
that is 2 years after the effective date of the performance management 
rule(s) must be developed according to the performance-based provisions 
and requirements of this regulation and in such rule(s).
    The WA State DOT commented that FHWA and FTA should consider 
delaying the implementation of the performance management requirements 
of the final rule from 2 years after the publication date to 2 years 
after the publication date of the final rule and the issuance of 
guidance. In response to this comment, FHWA and FTA believe that the 
final rule and the other performance management final rules are the 
guidance referred in 23 U.S.C. 135(l). No changes are being made to the 
final rule as a result of this comment.
    The NJ DOT and NARC stated that FHWA and FTA should consider 
additional flexibility for States, MPOs, and operators of public 
transportation in complying with the 2-year phase-in requirements for 
developing and updating their planning documents to the new planning 
regulations. The commenter is concerned with having as many as five 
different compliance dates which the commenter felt could cause 
confusion and make it difficult to coordinate. In response, see the 
FHWA and FTA responses to comments on one common effective date 
elsewhere in this section.
    The DRCOG and RTD want FHWA and FTA to recognize and reconcile the 
timing and durations of the long-range statewide transportation plan, 
the MPO MTP, and the other performance-based plans and processes, such 
as the federally required transit asset management plans and the State 
asset management plan for the NHS.
    In response to this comment, FHWA and FTA note that Congress 
established that FHWA and FTA shall not require States to deviate from 
their established planning update cycle to implement the changes in the 
final rule (23 U.S.C. 135(l)). The FHWA and FTA extended this same 
flexibility to the MPOs. The FHWA and FTA reflected this requirement in 
the phase-in of new requirements under sections 450.226 and 450.340. 
The FHWA and FTA hope that, after the phase in of these requirements, 
the States, MPOs, and operators of public transportation within each 
State will work together to align their processes and procedures, to 
the extent they deem practicable, for purposes of coordinating 
performance-based planning and programming and the associated documents 
such as the various performance related plans, programs, and processes.
    Returning to section 450.226, DRCOG and RTD commented that the 
phase-in schedule is unclear and that it would like for MPOs to have 2 
years to set targets after States. The FHWA and FTA believe that 
Congress established in 23 U.S.C. 134(h)(2)(C) to provide up to 180 
days for MPOs to set performance targets after their respective State 
sets targets. Section 450.306(d)(3) in the final rule reflects that 
intent.
    The IA DOT requested clarification on sections 450.226 and 450.340 
as to which final effective date (this rule or the performance measures 
rules) is being required when discussing the 2-year compliance date for 
the phase-in period of performance-based planning requirements in the 
final rule. In response to this comment, FHWA and FTA note that under 
sections 450.226 and 450.340, States and MPOs have 2 years from the 
effective date of each performance measures rule, and 2 years from the 
effective date of this final rule, whichever is later, to meet the 
performance-based planning and programming requirements.
    The MN DOT commented that the effective date should be far enough 
in the future to provide time for the long-range statewide 
transportation plan and STIP development to go through appropriate 
public review. In response to this comment, FHWA and FTA believe that 
the 2-year phase-in period provided in section 450.226 after the 
effective date of the final rule is sufficient time for States to 
undertake appropriate public review as part of updating the long-range 
statewide transportation plan and STIP.
 Other Changes Proposed by Commenters
Performance Measures
    Concerning section 450.206 (scope of the statewide and 
nonmetropolitan transportation planning process), SFRTA suggested that 
the final rule should emphasize the development of standardized 
environmental performance measures into the statewide, metropolitan, 
and nonmetropolitan transportation

[[Page 34077]]

planning processes. The FHWA and FTA response to this comment is that 
environmental performance measures are not included in the list of 
performance measures that MAP-21 requires FHWA and FTA to establish. 
Title 23 U.S.C. 150(c)(2)(C) precludes FHWA from establishing any 
national performance measures outside those areas identified in 23 
U.S.C. 150. The FHWA and FTA also note that the establishment of 
specific performance measures is outside the scope of the final rule.
    The ARTBA provided comments on specific examples of suggested 
performance measures for consideration by FHWA and FTA, such as 
freight, safety, and the economic costs of congestion. The FMATS, NRDC, 
Partnership for Active Transportation, and SFRTA commented on specific 
performance measures that they felt should be considered by FHWA and 
FTA in the new performance-based planning and target setting 
requirements described in subsection 450.306(d).
    Concerning sections 450.324 and 450.326 (development and content of 
the MTP and TIP), the National Housing Conference and the Center for 
Social Inclusion commented that spending decisions should be linked to 
performance measures and ensure that those measures promote sustainable 
development and a more holistic view of how transportation investments 
can serve the broader community. They also commented that an equity 
analysis, which includes performance measures specific to equity, 
should be done on the MTP and the TIP. The FHWA and FTA response to 
these comments is that recommendations for specific performance 
measures are outside the scope of the final rule. The federally 
required performance measures are being established through other FHWA 
and FTA rulemakings.
    Returning to section 450.206, APTA commented that FHWA and FTA 
should not impose project-by-project performance measures or require 
project-by-project reporting on performance. On section 450.218(r) of 
the NPRM (development and content of the STIP), AASHTO, CT DOT, FL DOT, 
GA DOT, ID DOT, MT DOT, NC DOT, ND DOT, NYS DOT, SD DOT, TriMet, WI 
DOT, and WY DOT commented that States should not be required to include 
information on individual projects and should not be required to link 
individual projects with specific performance measures as part of the 
discussion on the anticipated effect of the STIP toward achieving the 
performance targets in the long-range statewide transportation plan 
(note section 450.218(r) in the NPRM is section 450.218(q) in the final 
rule).
    On section 450.324(f)(4) (development and content of the MTP), 
several commenters (ARC, DVRPC, NYMTA, NYMTC, and PA DOT) commented 
that the required system performance report in the MTP should only 
consider conditions and trends at the system level, and should not be 
required to conduct a project specific analysis.
    On section 450.326(d) (development and content of the TIP), AASHTO, 
Albany MPO, DVRPC, Florida MPO Advisory Council, H-GAC, IA DOT, MAG, 
MARC, NARC, North Florida TPO, NYMTA, Orange County Transportation 
Authority, PA DOT, San Luis Obispo COG, Santa Cruz County RTC, and 
TriMet commented that the required discussion on the anticipated effect 
of the TIP toward achieving the performance targets should not be on a 
project basis. They suggested that it should instead be on the basis of 
the entire program in the TIP. Transportation for America commented 
that it wanted a clear statement in the final rule requiring States and 
MPOs to evaluate projects according to the federally required 
performance measures.
    The FHWA and FTA response to these comments is that that the final 
rule does not require project-by-project performance measures or 
reporting of performance at the individual project level. Reporting in 
the TIP will be on the performance of the program in the TIP. The FHWA 
and FTA believe that this is clear and that no changes to the final 
rule are necessary. With regards to any specific requirements for 
target setting or reporting in other rules or guidance, that is outside 
the scope of the final rule. The specific performance measures will be 
established under other FHWA and FTA performance rules or guidance. 
Based on these comments, no changes have been made to the final rule.
    The ARC, MARC, DRCOG, and RTD requested flexibility in reporting 
and documenting targets for performance measures and progress reporting 
on meeting targets as required under sections 450.306, 450.324, and 
450.326 as part of the MTP and the TIP. The DRCOG and RTD also 
expressed concern about setting transit targets and want flexibility in 
how they do it. The NYMTA commented on section 450.306 that there 
should be flexibility in setting targets. The NYMTA commented that they 
should be able to set their own targets, and the targets should not be 
required to be realistic or ``hard.'' The MARC also asked for 
clarification as to whether the documentation for the system 
performance plan required in section 450.324(f)(4) for the MTP could be 
in a separate document and referenced in the plan. The ARC asked if the 
description of how the TIP helps achieve the performance measures in 
the MTP (section 450.326(d)) could be documented through a separate 
document and not directly in the TIP. The GA DOT commented that 
reporting should be done in a nonburdensome manner. The WI DOT 
commented on section 450.206(c) that States should have flexibility in 
setting targets.
    The FHWA and FTA response to these comments is that under the final 
rule, MPOs and operators of public transportation are required to 
coordinate to the maximum extent practicable when setting transit 
performance targets. The MPOs must include transit targets as part of 
the MTP and describe progress toward achieving those targets with each 
update of the plan. In the TIP and STIP, States and MPOs must describe 
how those plans make progress toward achievement of targets. The 
requirements for setting specific, federally required targets for MPOs 
and operators of public transportation are outside the scope of the 
final rule.
    The FHWA and FTA note that there other rules specific to transit 
and highway performance targets. The FHWA and FTA plan to issue 
guidance on the performance-based planning reporting requirements for 
updates to the STIPs, TIPs, and the long-range statewide transportation 
plan, and the metropolitan transportation plan after the issuance of 
the final rule. With regards to the comment requesting clarification as 
to whether the documentation for the system performance plan required 
in section 450.324(f)(4) for the MTP could be in a separate document 
and referenced in the plan, FHWA and FTA respond that it should be 
included as part of the MTP. Similarly, the documentation for the 
requirements of section 450.326(d) on the anticipated effect of the TIP 
toward achieving the performance targets in the MTP should be included 
directly in the TIP.
    The FMATS commented that it wants FHWA and FTA to be flexible in 
evaluating MPO system performance reports because, for NHS projects, 
there may be different priorities at the MPO level than at the State 
level for the NHS. In response, FHWA and FTA note that the final rule 
requires States and MPOs to coordinate when setting performance targets 
for the metropolitan area, including those targets that may be 
associated with the NHS. When reviewing the metropolitan transportation 
planning process, FHWA

[[Page 34078]]

and FTA will be reviewing the State and MPO coordination on target 
setting in addition to the reporting requirements for the MTP and TIP. 
The FHWA and FTA reiterate that the final rule requires that the State 
and MPO performance targets for the metropolitan area should be 
coordinated and consistent to the maximum extent practicable (sections 
450.206 and 450.306).
    The ARC commented that it is unlikely that the 4-year TIP will 
result in meeting targets. In response, FHWA and FTA note that, as 
described in section 450.326(c), the TIP shall be designed by the MPO 
such that once implemented, it makes progress toward achieving the 
performance targets in the MTP. The FHWA and FTA further note that as 
an MPO sets targets under section 450.306(d)(2), it should select 
targets that are realistic given available funding.
    The MN DOT commented that the rules should explicitly identify who 
has ultimate authority for establishing the targets in case of 
conflict. The MT DOT commented that States must retain authority in 
target setting. In response to these comments, FHWA and FTA note that 
States are responsible and have authority for establishing State 
targets as described in section 450.206. The MPOs are responsible for 
setting MPO targets in metropolitan areas as described in section 
450.306. Operators of public transportation are responsible for setting 
transit targets in metropolitan areas as described in section 450.306. 
The FHWA and FTA reiterate that, as described in sections 450.206 and 
450.306, States and MPOs are required to coordinate when establishing 
targets to ensure consistency of their targets to the maximum extent 
practicable. The MPOs and operators of public transportation are to 
coordinate to the maximum extent practicable when setting targets for a 
metropolitan area. No one agency has ultimate authority for 
establishing targets. No changes are made to the final rule as a result 
of this comment.
    The SCVTA commented that both the final rule and the preamble 
should be clear that operators of public transportation should 
cooperate with States and MPOs to assist them in their target setting, 
but States and MPOs have no required role in target setting being done 
by operators of public transportation. The commenter further noted that 
proposed sections 450.206 and 450.306 of the NPRM appear to reflect 
this concept. However, the preamble to the NPRM could cause some to 
interpret these sections differently.
    In response to these comments, FHWA and FTA reiterate that the NPRM 
and the final rule require States and MPOs to coordinate to ensure 
consistency to the maximum extent practicable when setting targets for 
the performance areas described in 23 U.S.C. 150(c) and the measures 
established under 23 CFR part 490 (sections 450.206(c)(2) and 
450.306(d)(2)(ii)). The final rule requires MPOs to coordinate to the 
maximum extent practicable with operators of public transportation when 
selecting performance targets that address performance measures 
described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) (section 
450.306(d)(2)(iii)). The final rule also requires that States 
coordinate to the maximum extent practicable with operators of public 
transportation in areas not represented by an MPO, when selecting 
targets for public transportation performance measures, to ensure 
consistency with the performance targets that operators of public 
transportation establish under 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) 
(section 450.206(c)(3)).
    The FL DOT commented that performance measures should not be used 
for apportioning funds among States. Similarly, the NYMTA commented 
that there should not be a link between targets and funding. The FHWA 
and FTA respond that this comment is outside the scope of the final 
rule. There are other FHWA and FTA rules on the specific performance 
measures, target setting for those measures, and any consequences for 
not achieving targets. The FL DOT commented that the requirement for 
performance reporting of the federally required performance measures as 
part of the long-range statewide transportation plan and STIP does not 
extend to other locally determined performance measures outside of the 
federally required measures. The FHWA and FTA agree with this comment. 
No changes are made to the final rule as a result of these comments.
    The DRCOG and RTD commented that the final rule does not identify 
the consequences for not making significant progress on meeting 
performance targets. The FHWA and FTA response to this comment is that 
it is outside the scope of this final rule. However, FHWA and FTA note 
that such consequences would be identified in the corresponding MAP-21 
rulemakings related to performance management, which will include 
opportunities for comment.
    The ARC commented that they do not want the imposition of overly 
rigid targets. The FHWA and FTA response to this comment is that under 
section 450.306(d)(2) of the final rule, each MPO sets its own targets 
in coordination with the State and operators of public transportation. 
Other FHWA and FTA performance rules may have more criteria for setting 
performance targets. However, that is outside the scope of the final 
rule.
    The MARC commented that FHWA and FTA should support target setting 
through technical assistance. In response to this comment, FHWA and FTA 
note that this is outside the scope of the final rule and is more 
appropriate for the other FHWA and FTA performance measures rules that 
establish the specific performance measures.
    The FMATS expressed concern about the timing for target setting, 
particularly a 1-year target period, and would like targets set based 
on the MTP schedule and the long-range statewide plan schedule. In 
response to this comment, FHWA and FTA note that the target update 
process is in the other performance measures rules and is outside the 
scope of the final rule. The final rule requires States to initially 
set targets for the measures identified in 23 U.S.C. 150(c) within 1 
year of the effective date for the other DOT final rules on performance 
measures (section 450.206(c)(2)) (23 U.S.C. 135(d)(2)(B)) in accordance 
with the appropriate target setting framework established at 23 CFR 
part 490. The final rule requires MPOs to set targets that address 
performance measures described in 23 U.S.C. 150(c) and 49 U.S.C. 
5326(c)-(d) within 180 days after the completion of same by the State 
or operator of public transportation (section 450.306(d)(3) (23 U.S.C. 
134(h)(2)(C)). The FHWA and FTA believe such a deadline reflects 
congressional intent in the MAP-21.
    The ARTBA commented that it wanted to be clear that the focus of 
NHPP funds is highway and bridge projects. The ARTBA also commented 
that, in light of section 1503(c) of the MAP-21 (project approval and 
oversight), the more information the public has, the more transparent 
and accountable the process will be. Section 1503(c) of the MAP-21 
requires that DOT annually compile and submit a report containing a 
summary of annual expenditure data for funds made available under title 
23 U.S.C. and chapter 53 of title 49 U.S.C. to Congress, and make the 
report publicly available on the DOT's public Web site. The FHWA and 
FTA response to these comments is that they are outside the scope of 
the final rule.

[[Page 34079]]

Integration of Other State Performance-Based Plans and Programs Into 
the Planning Process
    Section 450.208 describes coordination of planning process 
activities. Section 450.206 describes the scope of the statewide and 
nonmetropolitan transportation planning process. In the NPRM at section 
450.208(g), FHWA and FTA included language on the integration of 
elements of other State performance-based plans and processes into the 
statewide transportation planning process and listed examples of these 
other plans and processes.
    Concerning section 450.208(g), AASHTO, CT DOT, NJ DOT, and NC DOT 
requested that FHWA and FTA eliminate redundant references to the 
integration of goals and objectives into the statewide planning 
process, as proposed in the NPRM. The commenters stated that this 
provision in section 450.208(g) is unnecessary because it is 
duplicative of the requirement in section 450.206(c)(4).
    After reviewing the comments, FHWA and FTA agree that section 
450.208(g) has the same meaning, essentially repeats section 
450.206(c)(4), and is therefore unnecessary. The FHWA and FTA have 
removed section 450.208(g) from the final rule while retaining section 
450.206(c)(4).
    The ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT also commented on 
section 450.308(g). They suggested that FHWA and FTA should remove the 
list of examples of State performance-based plans and processes listed 
in this section because it should be left up to the State to decide 
which plans and processes to integrate into the planning process. The 
IA DOT expressed concern with section 450.208(g) integrating a large 
number of plans into its planning process.
    In response to these comments, as noted above, FHWA and FTA have 
eliminated section 450.208(g) because it repeats the requirements of 
section 450.206(c)(4). Section 450.206(c)(4) retains the requirement to 
integrate elements from other federally required performance-based 
plans and processes into the statewide transportation planning process. 
Section 450.306(d)(4) maintains similar requirements for metropolitan 
areas. The FHWA and FTA believe that in 23 U.S.C. 134(h)(2)(D) and 
135(d)(2)(C), Congress intended for elements of other performance-based 
plans and processes to be integrated into the statewide and 
metropolitan transportation planning processes. The FHWA and FTA 
believe that such intent is reflected in the final rule (sections 
450.206(c)(4) and 450.306(d)(4)). The FHWA and FTA also provided 
specific examples of federally required performance-based plans and 
processes to provide more clarity in these sections of the rule and 
reflect Congress's intent. Therefore, no changes are made to the final 
rule as a result of this comment.
Differences Between State and MPO Requirements in the Final Rule
    Concerning section 450.216 (development and content of the long-
range statewide transportation plan), FMATS, NARC, NRDC, San Luis 
Obispo COG, and Transportation for America commented that differences 
between the State and metropolitan planning sections of the final rule 
should be reconsidered. Namely that for the regulations governing the 
long-range statewide transportation plan, the word ``should'' is 
sometimes used, whereas for the MTP in section 450.324, the word 
``shall'' is sometimes used (e.g., with fiscal constraint and the 
accompanying financial plan). The commenters made a similar comment 
regarding the inclusion of performance targets in the long-range 
statewide transportation plans, that States are held to a lower 
standard (``should'') in the long-range statewide transportation plan, 
than the MPOs (``shall'') in the MTPs.
    On section 450.218 (development and content of the STIP), the NRDC 
commented that they disapprove of the differences between the sections 
of the final rule covering STIPs and the sections covering TIPs, 
particularly the use of the words ``may'' and ``shall,'' and that the 
provisions in the regulations for the State STIP should mirror those 
for the MPO TIP. For example, in paragraph (l), the STIP may include a 
financial plan, whereas in section 450.324(f)(11), the TIP shall 
include a financial plan. The FHWA and FTA acknowledge that the 
statewide long-range transportation plan and MTP provisions and the 
STIP and TIP provisions do not mirror each other with regard to the use 
of the words ``may,'' ``should,'' and ``shall.''
    The FHWA and FTA disagree that the differences between the 
statewide and metropolitan sections should be reconciled in regards to 
the usage of those words. The FHWA and FTA note that Congress 
specifically draws this distinction between the statewide and the MTPs 
in the statute and the final rule reflects that requirement. The final 
rule is also historically consistent with how the statute has 
distinguished between States and MPOs. The FHWA and FTA note that the 
use of the words ``should'' and ``shall'' in the final rule is 
consistent with statutory language. The FHWA and FTA note that, in one 
instance, the FAST Act amended 23 U.S.C. 135(f)(7) and changed the 
State requirement from ``should'' to ``shall,'' specifically, when 
requiring a State to include a description of the performance measures 
and targets and a systems performance report in the long-range 
statewide transportation plan. This change is made in the final rule in 
sections 450.216(f)(1) and (2). No other changes are made to the final 
rule based on these comments.
Integration of Health Into the Transportation Planning Process
    The Partnership for Active Transportation and the Sierra Club 
commented on sections 450.206 and 450.306. They commented that health 
should be integrated into the planning process and that FHWA and FTA 
also include performance measures relating to how transportation 
infrastructure promotes healthy living. The commenters further stated 
that the final rule does not address safety issues of active 
transportation users. However, they appreciate that the final rule does 
contain explicit language on non-motorized transportation facilities, 
including pedestrian walkways and bicycle facilities. The Sierra Club 
further commented that the performance metrics that identify the 
impacts of investments on individual and community health should be 
more reliably identified on a disaggregated basis in travel modeling.
    The FHWA and FTA response to these comments is that FHWA and FTA 
are actively working with transportation planning stakeholders and 
undertaking research to identify ways that health can be integrated 
into the transportation planning process. This research is focused on 
better consideration of health outcomes in transportation by promoting 
safety; improving air quality; protecting the natural environment; 
improving social equity by improving access to jobs, healthcare, and 
community services; and on opportunities for the positive effects of 
walking, biking, public transportation, and ride sharing. The results 
of this research are available online at: http://www.fhwa.dot.gov/planning/health_in_transportation/. The FHWA and FTA continue to update 
this Web site with new material.
    The FHWA and FTA do not feel that it is appropriate at this time to 
include public health within the scope of the final rule, and that it 
is left up to the States and MPOs to decide whether or not they want to 
include health considerations in their transportation

[[Page 34080]]

planning processes. The FHWA and FTA provide research and examples of 
best practices to the States and MPOs on this topic area, which can be 
used in their planning processes and integrated to the degree they feel 
is appropriate. The discussion of specific performance measures, 
including measures for health considerations in transportation, is 
outside the scope of the final rule because this rule does not 
establish specific performance measures. Based on this comment, the 
FHWA and FTA made no changes to the final rule.
Integration of Climate Change Into the Transportation Planning Process 
and Reducing Carbon Dioxide Emissions
    The VT DOT recommended incorporating climate resilience as one of 
the components of the statewide transportation planning process. The 
FHWA and FTA believe that including climate resilience as a component 
of the statewide and the metropolitan transportation planning process 
is a good practice, and have developed resource materials in the form 
of peer exchanges, workshops, guidebooks, and other references for 
States, MPOs, and operators of public transportation on this topic that 
are available on FHWA's climate change Web site at: http://www.fhwa.dot.gov/environment/climate_change/. The FHWA and FTA will 
continue to update this Web site with new material.
    It is clear that reducing CO2 emissions is critical and 
timely. On-road sources account for over 80 percent of U.S. 
transportation sector greenhouse gasses (GHG). In an historic accord in 
Paris, the U.S. and over 190 other countries agreed to reduce GHG 
emissions, with the goal of limiting global temperature rise to less 
than 2[deg] C above pre-industrial levels by 2050.
    According to the Intergovernmental Panel on Climate Change (IPCC), 
human activity is changing the earth's climate by causing the buildup 
of heat-trapping GHG emissions through the burning of fossil fuels and 
other human processes.\14\ Transportation sources globally have been a 
rapidly increasing source of GHGs. Since 1970, GHGs produced by the 
transportation sector have more than doubled, increasing at a faster 
rate than any other end-use sector. The GHGs from total global on-road 
sources have more than tripled, accounting for more than 80 percent of 
the increase in total global transportation GHG emissions.\15\ In the 
U.S., GHG emissions from on-road sources represent approximately 23 
percent of economy-wide GHGs, but have accounted for more than two-
thirds of the net increase in total U.S. GHGs since 1990,\16\ during 
which time vehicle miles traveled (VMT) also increased by more than 30 
percent.\17\
---------------------------------------------------------------------------

    \14\ The IPCC Document: IPCC, 2014: Summary for Policymakers. 
In: Climate Change 2014: Mitigation of Climate Change. Contribution 
of Working Group III to the Fifth Assessment Report of the 
Intergovernmental Panel on Climate Change.
    \15\ Sims, et al. 2014: Transport: In Climate Change 2014, 
Mitigation of Climate Change. Contribution of Working Group III to 
the Fifth Assessment Report of the Intergovernmental Panel on 
Climate Change. p. 605.
    \16\ This is the first year of official U.S. data.
    \17\ U.S. Environmental Protection Agency, 2015. Inventory of 
U.S. Greenhouse Gas Emissions and Sinks, 1990-2015. Washington, DC. 
Tables 2-1 and 2-13. Federal Highway Administration, 2013 Status of 
the Nation's Highways, Bridges, and Transit: Conditions & 
Performance. Washington, DC. Exhibit 1-3.
---------------------------------------------------------------------------

    A well-established scientific record has linked increasing GHG 
concentrations with a range of climatic effects, including increased 
global temperatures that have the potential to result in dangerous and 
potentially irreversible changes in climate and weather. In December 
2015, the Conference of Parties nations recognized the need for deep 
reductions in global emissions to hold the increase in global average 
temperature to well below 2 [deg]C above pre-industrial levels, and are 
pursuing efforts to limit temperature increases to 1.5 [deg]C. To that 
end, the accord calls on developed countries to take a leadership role 
in identifying economy-wide absolute emissions reduction targets and 
implementing mitigation programs. Also, as part of a 2014 bilateral 
agreement with China, the U.S. pledged to reduce GHG emissions to 26-28 
percent below 2005 levels by 2025, with this emissions reduction 
pathway intended to support economy-wide reductions of 80 percent or 
more by 2050.
    The FHWA recognizes that achieving U.S. climate goals will likely 
require significant GHG reductions from on-road transportation sources. 
To support the consideration of GHG emissions in transportation 
planning and decisionmaking, FHWA has developed a variety of resources 
to quantify on-road GHG emissions, evaluate GHG reduction strategies, 
and integrate climate analysis into the transportation planning 
process. The FHWA already encourages transportation agencies to 
consider GHG emissions as part of their performance-based 
decisionmaking, and has developed a handbook to assist State DOTs and 
MPOs interested in addressing GHG emissions through performance-based 
planning and programming.\18\ The FHWA has developed tools to help 
State and local transportation agencies address GHG emissions 
associated with their systems. These include the Energy and Emissions 
Reduction Policy Analysis Tool (EERPAT),\19\ a model that evaluates the 
impacts of CO2 reduction policies for surface 
transportation, and the Infrastructure Carbon Estimator (ICE),\20\ a 
tool that specifically evaluates CO2 associated with the 
construction and maintenance of transportation infrastructure. The FHWA 
is also currently conducting a number of pilots to analyze the 
potential GHG emission reductions associated with various 
transportation-related mitigation strategies.\21\ Even with these 
efforts, FHWA recognizes that more will be needed to meet the U.S. 
climate goals.
---------------------------------------------------------------------------

    \18\ A Performance-Based Approach to Addressing Greenhouse Gas 
Emissions through Transportation Planning, available at http://www.fhwa.dot.gov/environment/climate_change/mitigation/publications_and_tools/ghg_planning/ghg_planning.pdf.
    \19\ The Energy and Emissions Reduction Policy Analysis Tool 
(EERPAT), available at https://www.planning.dot.gov/FHWA_tool/.
    \20\ The Infrastructure Carbon Estimator (ICE), available at 
http://www.fhwa.dot.gov/environment/climate_change/mitigation/publications_and_tools/carbon_estimator/.
    \21\ FHWA's Greenhouse Gas/Energy Analysis Demonstration 
projects are described at http://www.fhwa.dot.gov/environment/climate_change/mitigation/ongoing_and_current_research/summary/index.cfm.
---------------------------------------------------------------------------

    The FHWA is considering how GHG emissions could be estimated and 
used to inform planning and programming decisions to reduce long term 
emissions. As part of the rulemaking process for the National 
Performance Measures for Assessing System Performance, CMAQ Congestion, 
CMAQ On-Road Mobile Source Emissions, and Freight Movement, FHWA is 
seeking comment on the potential establishment and effectiveness of a 
measure as a planning, programming, and reporting tool.
    The FHWA and FTA note that, in response to amendments to 23 U.S.C. 
134 and 135 resulting from the FAST Act, this final rule includes a new 
planning factor that States and MPOs should consider and implement on 
improving resiliency and reliability of the transportation system and 
reduce or mitigate stormwater impacts of surface transportation as part 
of the statewide and metropolitan planning process (sections 
450.206(a)(9) and (10) and sections 450.306(b)(9) and (10)). This final 
rule in section 450.316(b) adds a new requirement for MPOs to 
coordinate with officials responsible for natural disaster risk 
reduction when developing a MTP and TIP. In sections 450.200 and 
450.300(a), States and

[[Page 34081]]

MPOs are required to take into consideration resiliency needs as part 
of the metropolitan transportation planning process. Section 
450.324(f)(7) adds a requirement to reduce the vulnerability of the 
existing transportation infrastructure to natural disasters to the 
assessment of capital investment and other strategies to preserve the 
existing and projected future metropolitan transportation 
infrastructure in the metropolitan transportation plan.
    The FHWA and FTA will continue to develop and share best practices, 
research, workshops, and peer exchanges on this topic for use by States 
and MPOs to aid with the implementation of their planning processes.
Other Topics
    The North Central Pennsylvania Regional Planning and Development 
Commission (RPDC) requested that there be a review of NHS and principle 
arterials and functional classification systems. The FHWA and FTA 
response to this comment is that it is outside the scope of the final 
rule. The North Central Pennsylvania RPDC commented that regional 
Unified Planning Work Programs (UPWP) are an eligible means to 
structure planning activities.
    The FHWA and FTA response to this comment is that section 450.308 
describes the requirements for an MPO UPWP. The UPWP documents 
metropolitan transportation planning activities performed with funds 
provided under 23 U.S.C. and 49 U.S.C. chapter 53, in accordance with 
this section and 23 CFR part 420, and contains a discussion of the 
planning priorities for the MPA.
    The DRCOG and RTD commented that they wanted the final rule to be 
clearer on how funding will be made available and how funding will be 
distributed among entities. The FHWA and FTA respond that this comment 
is outside the scope of the final rule.
    The Partnership for Active Transportation stated that planners 
should be required to collect and aggregate data relating to active 
transportation infrastructure and its use. The FHWA and FTA response to 
this comment is that section 450.216(a) requires the State to develop a 
long-range statewide transportation plan that provides for the 
development and implementation of a multimodal transportation system 
for the State, including non-motorized modes. In meeting this 
requirement, the long-range statewide transportation plan may be a 
policy plan, so it is up to the individual States to determine the 
degree to which they collect and aggregate data relating to active 
transportation infrastructure and use.
    In section 450.324(b), MPOs are required to include strategies and 
actions in their MTPs that provide for the development of an integrated 
multimodal transportation system, including accessible pedestrian 
walkways and bicycle transportation facilities. Section 450.324(f)(2) 
requires that MPOs include existing and planned facilities in the MTP, 
including nonmotorized transportation facilities. Section 450.324(f)(1) 
requires that the MTP include the current and projected demand of 
persons and goods in the MPA over the period of the MTP.
    With regards to collecting data on the usage of active 
transportation, it is up to the individual MPOs to decide what and how 
much data they need to collect on active transportation usage to meet 
the MTP requirements in sections 450.324(b), (f)(1), and (f)(2).
    The County of Maui, HI commented that it is concerned about a one-
size-fits-all final rule, particularly in relation to the smaller MPOs, 
and that it wants significant reductions to the final rule for small 
communities that have recently emerged from a rural status. In response 
to this comment, FHWA and FTA note that section 450.308(d) of the rule 
provides that an MPO in an urbanized area not designated as a TMA may 
prepare a simplified statement of work, in cooperation with the State 
and the operators of public transportation, in lieu of a UPWP.
    The FHWA and FTA also note that under section 450.306(i), an MPO in 
an urbanized area not designated as a TMA but in an air quality 
attainment area may, taking into account the complexity of the 
transportation problems in the area, propose and submit for approval to 
FHWA and FTA a procedure for developing an abbreviated MTP and TIP. The 
MPO shall develop the simplified procedures in cooperation with the 
State and the operators of public transportation. The FHWA and FTA 
believe these provisions provide significant flexibility for MPOs 
serving non-TMA urbanized areas that are in air quality attainment 
areas. No changes are made to the final rule based on this comment.

V. Section-by-Section Discussion

    The section-by-section discussion of statewide and nonmetropolitan 
planning and metropolitan planning summarizes the public comments 
received and the FHWA and FTA responses. It also serves as a summary of 
any changes to the regulatory text in the NPRMs that are made in the 
final rule as a result of the comments. For topics on which there are 
recurring comments in multiple sections, FHWA and FTA have consolidated 
the comments and responses in section IV(B), leaving references to the 
comment in this section so the reader can return to review them.
    The FHWA and FTA have changed the term ``decisionmaking'' to read 
``decision-making'' in the final rule.
    In response to a comment from the WI DOT, FHWA and FTA also changed 
the final rule to refer to the ``long-range statewide transportation 
plan'' consistently throughout.
    The Memphis Urban Area MPO submitted several comments on the NEPA 
process. The FHWA and FTA note that the NEPA process is outside the 
scope of the final rule.
    The MD DOT made a general comment that FHWA and FTA should limit 
the rulemaking to what is required by statute. The FHWA and FTA 
response to this comment is that, when drafting the final rule, FHWA 
and FTA had an overarching goal of staying as close to the statutory 
requirements as possible.
    The AASHTO commented that it wanted consistent usage, or 
definitional distinctions, of similar terms such as ``transit 
operator'' and ``transit provider'' in the final rule. The FHWA and FTA 
response to this comment is that those terms are meant to mean the same 
thing. In order to be consistent, FHWA and FTA used the term ``operator 
of public transportation'' throughout the document.
    The AASHTO and the WA State DOT commented that they wanted 
consistent use of terms for the asset management plan for the NHS. The 
FHWA and FTA response to this comment is that FHWA and FTA have tried 
to use the term State asset management plan for the NHS consistently 
throughout this document.

Subpart A--Transportation Planning and Programming Definitions

Section 450.100 Purpose
    No comments were received on this section. The FHWA and FTA did not 
make any changes in the final rule to the language proposed in the NPRM 
for this section.
Section 450.102 Applicability
    No comments were received on this section. The FHWA and FTA did not 
make any changes in the final rule to the language proposed in the NPRM 
for this section.
Section 450.104 Definitions
    The FHWA and FTA received 33 comments on proposed changes to terms

[[Page 34082]]

and definitions in section 450.104. Commenters included Albany MPO, 
AASHTO, AMPO, Capital Area MPO, CT DOT, ID DOT, MT DOT, ND DOT, SD DOT, 
WY DOT, Florida MPO Advisory Council, Houston MPO, IA DOT, ME DOT, MN 
DOT, MT DOT, NARC, the National Housing Conference, the National Trust 
for Historic Preservation, NCTCOG/RTC, ND DOT, NRDC, NJ DOT, NYMTA, OK 
DOT, Portland Metro (a transit operator), Richmond MPO, SCCRTC, TN DOT, 
TX DOT, WFRC, WA State DOT, Westchester County Department of Public 
Works and Transportation, and WY DOT. Fifteen of the comments were from 
States, eight were from MPOs, five were from associations representing 
public transportation agencies, three were from advocacy groups, one 
was from a regional planning agency, and one was from a local 
government. The OK DOT requested that FHWA and FTA ensure that the 
proposed definitions retain the verbiage in 23 U.S.C. 134 and 23 U.S.C. 
135 and that they are clear and serve the intent of the law. The FHWA 
and FTA concur with this comment and strive to ensure that all 
definitions proposed are clear and consistent with 23 U.S.C.134 and 135 
and 49 U.S.C. 5303 and 5304.
    Amendment--Five comments (NARC, NYMTA, SCCRTC, TN DOT, and WFRC) 
sought clarity with respect to the proposed changes to the definition 
of the term ``amendment.'' In the NPRM, FHWA and FTA proposed to change 
the definition of amendment to clarify that a conformity determination 
is not a criterion for determining the need for an amendment in 
nonattainment and maintenance areas, and also proposed to add a transit 
example of a change in design concept or scope to the definition of 
amendment. The TN DOT stated that the proposed revision to more 
accurately reflect the relationship of the Clean Air Act's 
transportation conformity requirements to the planning process was 
confusing, noting that TIP amendments usually trigger a conformity 
determination not vice versa.
    The FHWA and FTA response to this comment is that, as described in 
the NPRM's section-by-section analysis, the proposed definition 
clarifies that a conformity determination is not a criterion for 
determining the need for an amendment in nonattainment and maintenance 
areas.
    Three commenters (NARC, SCCRTC, and WFRC) requested that FHWA and 
FTA not include the proposed phrase ``changing the number of stations 
in the case of fixed guideway transit projects'' to the list of 
examples of major changes in design concept or design scope as they 
feel requiring amendments for every time the number of stations changes 
is too burdensome.
    In response to this comment, FHWA and FTA included the phrase 
``changing the number of stations in the case of fixed guideway transit 
projects'' in the final rule, as proposed in the NPRM in order to add a 
transit example of a change in design concept or design scope to the 
definition.
    The NYMTA commented that the definition of amendment should be 
revised to note that an amendment to a TIP does not trigger a 
reassessment of the TIP's impact on achieving performance targets. The 
FHWA and FTA respond that the commenter is correct, amendments to a TIP 
do not trigger the requirement in section 450.326(d) to include a 
description of the anticipated effect of the TIP toward achieving the 
performance targets. Only an update to the TIP triggers the 
requirements in section 450.326(d). The FHWA and FTA do not believe it 
is necessary or desirable to include this as part of the definition of 
amendment in section 450.104 as it would make the definition lengthy 
and overly complicated. In response to these comments, FHWA and FTA did 
not change the definition of amendment in the final rule.
    Asset Management--The TX DOT requested that the new definition of 
the term ``asset management'' references the NHS since 23 U.S.C. 119(e) 
specifies a risk-based asset management plan for the NHS only. The FHWA 
and FTA retained the definition as proposed because it is identical to 
the definition in section 1103 of the MAP-21 (23 U.S.C. 101(a)(2)) and 
refers to the asset management plan requirements for both the NHS and 
public transportation agencies. The FHWA and FTA also note that the 
asset management plan for the NHS may also include non-NHS assets. The 
IA DOT noted that the lack of definitions for performance measures, 
performances targets, transit asset management plan, and transit asset 
management system makes it difficult to interpret the regulations 
related to these items. In response, FHWA and FTA note that the 
definitions for performance measures, performance targets, transit 
asset management plan, and transit asset management system will be 
provided in the rulemakings on those topics.
    Attainment Area--The FHWA and FTA did not propose changing the 
definition of attainment area in the NPRM or in the final rule. 
However, FHWA and FTA clarify that a maintenance area that has 
satisfied the maintenance planning period requirements as stated in 
section 175A of the Clean Air Act is considered an attainment area for 
transportation planning purposes. In general, the maintenance planning 
period extends 20 years from the effective date of the Environmental 
Protection Agency's (EPA) approval of the 10-year maintenance plan and 
redesignation of the area to attainment for the NAAQS. For example, a 
carbon monoxide (CO) area was redesignated as an attainment area and 
the EPA approved its first 10-year maintenance plan for CO effective 
April 30, 1993; and the area has a second maintenance plan, effective 
April 30, 2003. In this example, the CO area would be considered an 
attainment area for transportation planning purposes after April 30, 
2013, if the area is attainment for all other transportation related 
pollutants.
    Conformity--The AASHTO requested that FHWA and FTA edit the 
proposed definition of conformity by replacing the phrase ``in any 
area'' with ``in a nonattainment or maintenance area,'' as SIPs also 
apply to attainment areas, whereas conformity does not. The AMPO 
commented that it wanted to change ``in any area'' to ``in an adequate 
or approved SIP in a nonattainment or maintenance area.''
    In response to these comments, the definition has been changed to 
replace ``in any area'' with ``in a nonattainment or maintenance 
area,'' as suggested by AASHTO and AMPO. The FHWA and FTA do not 
believe that the additional text suggested by AMPO ``in an adequate or 
approved SIP'' provides additional clarity. The FHWA and FTA made no 
changes based on this additional comment. In the final rule, the term 
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 SSIP. 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, any required interim emission reductions, or other 
milestones in a non-attainment or maintenance area. The transportation 
conformity regulations (40 CFR part 93, subpart A) sets forth policy, 
criteria, and procedures for demonstrating and assuring conformity of 
transportation activities.
    Consideration--The AASHTO, six States (ID DOT, MT DOT, ND DOT, SD 
DOT, TX DOT, and WY DOT) and one MPO (H-GAC) requested that FHWA and 
FTA not include the word

[[Page 34083]]

``consequences'' in the proposed definition of ``consideration'' as an 
item to take into account in the consideration process. They expressed 
concern that including consequences would complicate the planning 
process, especially given the considerable workload needed to be done 
by States and MPOs as they move toward a performance-based planning and 
programming process. They note that the current definition has been in 
place for an extended period and that it is fair to believe that the 
Congress did not contemplate that DOT would be revisiting it at the 
same time that it works to implement the new provisions in the MAP-21.
    The FHWA and FTA agree that to take into account the consequences 
of a course of action is a vague expectation that could be difficult to 
define. Consequently, the final rule does not include the term 
``consequences'' in the definition of ``consideration.'' In the final 
rule, consideration means that one or more parties take into account 
the opinions, action, and relevant information from other parties in 
making a decision or determining a course of action.
    Local Official--Three commenters (Florida MPO Advisory Council, 
RTC/NCTCOG, and NYMTA) sought additional clarity with respect to the 
proposed definition of ``local official.'' The FHWA and FTA proposed to 
add a definition because of the new emphasis under the MAP-21 on 
nonmetropolitan transportation planning. The FHWA and FTA proposed that 
``local official'' would be defined as an elected or appointed official 
of general purpose local government with responsibility for 
transportation. In general, the commenters sought clarity on how the 
definition of local official related to the term ``local elected 
official'' used in section 450.310(d)(i) as one of the categories of 
individuals who may serve on an MPO in a designated TMA. As the rule 
already includes a definition of ``nonmetropolitan local official,'' 
FHWA and FTA deleted the definition of ``local official.''
    Long-range statewide transportation plan--The AASHTO and NJ DOT 
requested that FHWA and FTA use the term ``long-range statewide 
transportation plan'' consistently throughout the rule to ensure 
consistency and clarity. They noted that there are many references in 
subpart B (450.206(c)(5) and 450.216(f)) that refer to the ``statewide 
transportation plan'' where those references are intended to refer to 
the ``long-range statewide transportation plan.'' The FHWA and FTA 
concur with these comments and will ensure that the term long-range 
statewide transportation plan is used consistently throughout the final 
rule.
    Major Mode of Transportation--The Albany MPO, AMPO, and NARC 
requested that FHWA and FTA delete the definition of major modes of 
transportation because, as proposed, the definition is overly broad and 
could be interpreted to include all forms of transportation, including 
non-major modes. They note that MPOs are in the best position to define 
what constitutes a major mode of transportation in their respective 
MPAs. The FHWA and FTA agree that the major modes could vary among MPOs 
and that they are in the best position to decide which are the major 
modes of transportation that operate in their metropolitan area. The 
FHWA and FTA deleted the definition in the final rule. The FHWA and FTA 
will continue to work with each MPO to determine what major modes exist 
in their region.
    Metropolitan Planning Agreement--The MN DOT noted that FHWA and FTA 
should not use the acronym ``MPA'' when referencing the metropolitan 
planning agreement as it could also stand for ``metropolitan planning 
area.'' As these are distinctly different, FHWA and FTA will apply the 
acronym ``MPA'' to only reference ``metropolitan planning area'' 
throughout this rule to avoid confusion. Two advocacy organizations 
(National Trust for Historic Preservation and NRDC) expressed support 
for the definition since it explicitly requires more structured 
coordination between public transportation agencies and MPOs.
    Scenario planning--Three States (CT DOT, ME DOT, and WA State DOT) 
and one MPO (Capital Area MPO) submitted comments on the definition of 
``scenario planning.'' While two States (ME DOT and WA State DOT) 
endorsed the definition, another (CT DOT) expressed concern that the 
proposed definition is not sufficiently descriptive and would be 
subject to a variety of interpretations. The CT DOT noted that, as 
written, the definition provides little guidance for making the final 
decision between the analyzed scenarios, and recommended a more 
complete definition by including language about choosing the most 
practical or likely scenario.
    In response to this comment, FHWA and FTA note that the definition 
is intended to be broad and that a more fulsome discussion of 
``scenario planning'' is included in section 450.324(i) (Development 
and content of the metropolitan transportation plan). In addition, the 
Capital Area MPO requested that the scenario planning definition be 
revised to mean: ``A planning process that evaluates the effects of 
alternative policies, plans, and/or programs on the future of a 
community or region. This activity can provide additional information 
to decisionmakers as they develop the transportation plan and other 
programs and policies.'' The FHWA and FTA believe the broad definition 
of scenario planning, as proposed in the NPRM, reflects the intent of 
Congress in 23 U.S.C. 134(i)(4)(A) and will retain the definition in 
the final rule.
    Visualization Techniques--The National Trust for Historic 
Preservation and NJ DOT noted that the proposed definition of 
visualization techniques is too narrow and requested that the 
definition include that visualization techniques be searchable and 
interactive. The FHWA and FTA appreciate that the technology of 
visualization is rapidly progressing but are sensitive to the fact that 
not all MPOs have the technical capacity or resources to support higher 
levels of sophistication. The FHWA and FTA retained the definition of 
visualization techniques as proposed in the NPRM and will work to 
increase the technical capacity of MPOs to develop searchable and 
interactive inventories of transportation facilities and resources.
    In addition to comments on the definitions proposed in section 
450.104, a number of commenters requested additional definitions. The 
AASHTO requested that FHWA and FTA provide a discussion on the 
difference between the definitions of terms such as ``shall'' and 
``should.'' In response, FHWA and FTA have stated that ``shall'' 
denotes a requirement whereas ``should'' is optional.

Subpart B--Statewide and Nonmetropolitan Transportation Planning and 
Programming

    The NPRM proposed a change to the title of subpart B from 
``Statewide Transportation Planning and Programming'' to ``Statewide 
and Nonmetropolitan Transportation Planning'' to reflect statutory 
changes. The addition of ``Nonmetropolitan'' to the title epitomized 
the MAP-21's new emphasis on the importance of nonmetropolitan 
transportation planning. No comments were submitted to the docket on 
this proposed change. The final rule retains those changes.
Section 450.200 Purpose
    Section 450.200 describes the purpose of subpart B (statewide and 
nonmetropolitan transportation planning and programming). No comments 
were received on this section.

[[Page 34084]]

The FHWA and FTA made no changes to this section based on comments 
received on the NPRM.
    Sections 1202 and 1201 of the FAST Act, codified at 23 U.S.C. 
135(a)(2) and 23 U.S.C. 134(a)(1) respectively, added intermodal 
facilities that support intercity transportation, including intercity 
bus facilities and commuter van pool providers to the purpose of the 
statewide and metropolitan multimodal transportation planning 
processes. The final rule at sections 450.200 and 450.300 is amended to 
reflect this change.
    Section 1201 and 1202 of the FAST Act amends 23 U.S.C. 134(a)(1) 
and adds ``takes into consideration resiliency needs'' to the purpose 
of the of the metropolitan transportation planning process and the 
statewide and nonmetropolitan transportation planning process (23 
U.S.C. 135(a)(2)). The final rule at sections 450.300(a) and 450.200 
are amended to add this change.
Section 450.202 Applicability
    Section 450.202 describes the applicability (to States, MPOs, 
RTPOs, and operators of public transportation) of subpart B on 
statewide and nonmetropolitan transportation planning and programming. 
No comments were received on this section. The FHWA and FTA made no 
changes to the final rule.
Section 450.204 Definitions
    No comments were received on this section. The FHWA and FTA made no 
changes to the final rule.
Section 450.206 Scope of the Statewide Transportation and 
Nonmetropolitan Planning Process
    Section 450.206 describes the scope of the statewide transportation 
and nonmetropolitan planning process. Fifty-three commenters (AASHTO, 
AK DOT, APTA, ARC, ARTBA, California Association for Coordinated 
Transportation, CALTRANS, CO DOT, Community Labor United, CT DOT, 
Danville MPO, DC DOT, Enterprise Community Partners, FL DOT, FMATS, 
Front Range Economic Strategy Center, MARC, MD DOT, ME DOT, MI DOT, 
Miami-Dade MPO, MN DOT, MO DOT, MTC, NARC, National Association of 
Social Workers, National Housing Conference, National Trust for 
Historic Preservation, NC DOT, ND DOT, NJ DOT, North Central 
Pennsylvania RPDC, NRDC, NYMTC, NYS DOT, OK DOT, Orange County 
Transportation Authority, PA DOT, Partnership for Active 
Transportation, Partnership for Working Families, Policy Link, Public 
Advocates, SACOG, San Luis Obispo MPO, SANDAG,, Santa Cruz MPO, SCAG, 
SCVTA, SEMCOG, SFRTA, SJCOG, Southeast Alabama RPO, TX DOT, United 
Spinal Association, VA DOT, VT DOT, WA State DOT, West Piedmont 
Planning District, WI DO, and WY DOT) submitted comments to the docket 
on this section. Twenty-four comments were received from State, 12 from 
advocacy organizations, 10 from MPOs, 5 from operators of public 
transportation, and 2 from regional planning organizations.
    The NYS DOT stated that it is generally supportive of the 
performance-based approach to the transportation planning process. They 
further stated that they also agree and support the requirement in the 
final rule that each State, and the MPOs within the State, must 
establish performance targets in coordination with each other to ensure 
consistency to the maximum extent practicable.
    The San Luis Obispo COG expressed its concern that the NPRM imposes 
different requirements on States and MPOs. Namely, that MPOs are 
required to include performance targets and a system performance report 
in their MTP. While States may, but are not required to, include these 
same elements in the long-range statewide transportation plan. See 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses.
    The SFRTA suggested that the final rule should emphasize the 
development of standardized environmental performance measures into the 
statewide, metropolitan and nonmetropolitan transportation planning 
processes. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The APTA commented that FHWA and FTA should not impose project-by-
project performance measures or require project-by-project reporting on 
performance. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The NRDC commented on specific performance measures that FHWA and 
FTA should consider. See section IV(B) (recurring comment themes) for 
more discussion on this issue and FHWA and FTA responses.
Section 450.206(a)
    Several advocacy groups (Front Range Economic Strategy Center, 
Partnership for Working Families, PolicyLink, Public Advocates, and 
United Spinal Association) commented that the planning process, the use 
of performance measures, and prioritization of projects by States and 
MPOs should encourage the States and MPOs to consider expansion of 
economic opportunity for low-income communities and minority 
communities through improved transportation. See section IV(B) 
(recurring comment themes) for more discussion on this issue and FHWA 
and FTA responses.
    Sections 1202 and 1201 of the FAST Act amended 23 U.S.C. 134(h)(1) 
and 23 U.S.C. 135(d)(1) respectively to add two new planning factors to 
the scope of the statewide and nonmetropolitan and the metropolitan 
transportation planning processes: improve resiliency and reliability 
of the transportation system and reduce or mitigate stormwater impacts 
of surface transportation; and enhance travel and tourism. The final 
rule at sections 450.206(a)(9) and (10) and 450.306(b)(9) and (10) are 
amended to reflect these new planning factors.
Section 450.206(b)
    The National Trust for Historic Preservation commented that section 
450.206(b) should also make reference to historic resources as part of 
the planning factors to show that historic preservation may be related 
to the transportation planning process. The FHWA and FTA received a 
similar comment from the National Trust for Historic Preservation 
during the development of the NPRM and added language under paragraph 
(b) in this section that includes section 4(f) properties as defined in 
23 CFR 774.17 as one of several examples to consider for establishing 
the degree of consideration and implementation of the planning factors. 
This proposed change has been retained in the final rule. Section 
450.306(c) retains similar language. Based on this comment, FHWA and 
FTA made no changes to the final rule.
Section 450.206(c)(2)
    The AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, TX DOT, VT DOT, and WY 
DOT commented that section 450.206(c)(2) should not reference the 
performance measures and performance target setting framework that will 
be established for the performance measures identified in 23 U.S.C. 
150(c) at 23 CFR part 490 because it is confusing. The FHWA and FTA do 
not agree with this comment. The FHWA regulations at 23 CFR part 490 
establish the performance measures and the performance target setting 
framework that the States will need to address when setting performance 
targets for specific performance measures. These

[[Page 34085]]

are the same performance targets required of the States under the 
planning regulations. The targets will address the specific measures 
established under 23 CFR part 490.
    The NJ DOT commented on section 450.206(c)(2) that States should 
set performance measures, not FHWA and FTA. The FHWA and FTA response 
to this comment is that under 23 U.S.C. 150, FHWA is required to set 
the national performance measures described in 23 U.S.C. 150(c). The 
FHWA and FTA further note that under 23 U.S.C. 135(d)(2)(B)(i)(I), 
States are required to set performance targets for those national 
performance measures. States may set additional performance measures 
outside of those required under 23 U.S.C. 150(c).
    The AASHTO, AR DOT, CO DOT, ID DOT, MN DOT, MT DOT, ND DOT, NYS 
DOT, SD DOT, TX DOT, and WY DOT commented that there is no specific 
requirement in the MAP-21 for States to coordinate with Federal land 
management agencies when setting performance targets and that this 
provision in section 450.206(c)(2) should be removed from the final 
rule. The FHWA and FTA agree with this comment and removed the 
provision.
    In the final rule, section 450.208(a)(3) requires that, in carrying 
out the statewide transportation planning process, each State shall 
consider the concerns of Federal land management agencies that have 
jurisdiction over land within the boundaries of the State. The FHWA and 
FTA believe that, given the requirements of section 450.208(a)(3), 
States should consider the needs of Federal land management agencies 
that have jurisdiction over land within the boundaries of the State 
when setting performance targets. The FHWA and FTA note that there was 
an error in the section-by-section discussion on this topic in the 
preamble to the NPRM, as opposed to the proposed regulatory text of 
section 450.206(c)(2) in the NPRM. The NPRM regulatory text stated that 
each State should select and establish performance targets in 
coordination with affected Federal land management agencies as 
appropriate. The section-by-section discussion in the preamble said 
States would coordinate the establishment of performance targets with 
affected Federal land management agencies.
    In summary, FHWA and FTA removed the requirement in section 
450.206(c)(2) that States should select and establish targets in 
coordination with Federal land management agencies. However, FHWA and 
FTA note that under section 450.206(c), target setting is part of the 
statewide transportation planning process, and that under section 
450.208(a)(3), States shall consider the concerns of Federal land 
management agencies when carrying out the statewide transportation 
planning process (including target setting).
    The AASHTO and VT DOT stated that the final rule should avoid 
changes to the NPRM that would weaken the States authority to set 
performance targets. The FL DOT and ASHTD stated the final rule should 
confirm State discretion in target setting and reporting. The FHWA and 
FTA respond that the final rule does not weaken the authority of States 
(or MPOs or public operators of public transportation) to set 
performance targets. The FHWA and FTA intend to issue guidance on 
sections 450.216(f)(2) and 450.324(f)(4) after this final rule on State 
and MPO progress reporting as part of the long-range statewide 
transportation plan and the MTP.
    The NC DOT stated that the final rule should make it clear that the 
States have the flexibility to set their own performance targets and 
performance measures. The FHWA and FTA agree that States have the 
flexibility to set their own performance targets. In setting those 
targets, they will be required to use the performance measures set by 
FHWA and FTA in the other related performance management rules or 
guidance. No changes were made to this section based on these comments.
Section 450.206(c)(3)
    Section 450.206(c)(3) provides that in areas not represented by 
MPOs, States would be required to coordinate, to the maximum extent 
practicable, the selection of the public transportation performance 
targets with operators of public transportation to ensure consistency. 
The AASHTO, CO DOT, ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT 
commented that in section 450.206(c)(3) the word ``areas'' should be 
replaced with ``urbanized areas.'' The NPRM preamble discussion in the 
section-by-section analysis for sections 450.206(c)(3) provides an 
explanation for FHWA and FTA use of the word ``areas'' instead of 
``urbanized areas'' in this section.
    In the NPRM, FHWA and FTA noted that 23 U.S.C. 135(d)(2)(B)(ii) and 
49 U.S.C. 5304(d)(2)(B)(ii), which refer to ``providers of public 
transportation'' in ``urbanized areas . . . not represented by a 
metropolitan planning organization,'' would not be carried forward 
because by statute, all ``urbanized areas'' continue to be represented 
by an MPO (23 U.S.C. 134(d)(1) and 49 U.S.C. 5303(d)(1)). Because of 
this discrepancy, FHWA and FTA used the term ``areas not represented by 
a metropolitan planning organization'' instead of ``urbanized areas'' 
because States would need to coordinate with operators of public 
transportation in these areas not represented by a MPO to select 
performance targets with respect to 49 U.S.C. 5326(c) and 49 U.S.C. 
5329(d). Based on this comment, FHWA and FTA made no changes to the 
final rule.
    The CO DOT commented that, although it feels the general principles 
in section 450.206(c)(3) are sound, the asset management and safety 
plans for transit agencies need fine-tuning; that one size does not fit 
all; and that CO DOT is submitting separate comments on the parallel 
FTA transit performance rulemakings. The FHWA and FTA response to this 
comment is that it is outside the scope of the final rule. No changes 
were made to the final rule based on this comment.
Section 450.206(c)(4)
    Section 450.206(c)(4) describes the integration of elements of 
other State performance-based plans into the statewide planning 
process. The AASHTO, CT DOT, NJ DOT, and NC DOT commented that FHWA and 
FTA should eliminate redundant references to integration of goals and 
objectives from other performance-based plans into the statewide 
planning process, as proposed in the NPRM in sections 450.206(c)(4) and 
450.208(g), because both of those sections present similar information.
    The ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT further commented 
that the specific list of examples of plans and process to be 
integrated should be eliminated and that it should be up to the State 
to decide which plans and processes should be integrated into the 
statewide transportation planning process.
    In response, FHWA and FTA note that section 450.206(c)(4) is 
retained. However, FHWA and FTA eliminated section 450.208(g) in the 
final rule because it repeats the provisions of section 450.206(c)(4). 
See section IV(B) (recurring comment themes) for more discussion on 
this issue and FHWA and FTA responses.
    The above States further commented that the terms ``long-range 
statewide transportation plan'' and ``the transportation planning 
process'' have different meanings and should not be used 
interchangeably. In response to this comment, FHWA and FTA do not 
believe that the terms have been used interchangeably in the final 
rule.
    The NRDC noted that it was in favor of the integration of other 
plans into the

[[Page 34086]]

transportation planning process as described in this sections 
450.206(c)(4) and 450.306(d)(4). The commenter further stated that it 
would like to include other plans as well, such as the Federal 
Emergency Management Agency (FEMA) Hazard Management Plans and existing 
regional plans. In response to this comment, FHWA and FTA note that as 
part of the statewide and nonmetropolitan planning and metropolitan 
planning processes, States and MPOs are required to coordinate their 
transportation planning activities or consider other related planning 
activities, as described in sections 450.308 and 450.316.
    The CO DOT commented that it is unclear why section 450.206(c)(4) 
uses the word ``integrate'' while 450.206(c)(5) uses the word 
``consider.'' In response to this comment, FHWA and FTA note that these 
sections serve different purposes. Section 450.206(c)(4) requires that 
the State integrate into the planning process elements of other 
performance-based plans and processes, while section 450.206(c)(5) 
requires the State to consider the performance measures and targets 
when developing specific planning products (the long-range statewide 
transportation plan and the STIP).
Section 450.206(c)(5)
    Section 450.206(c)(5) provides that a State shall consider the 
required performance measures and targets under this paragraph when 
developing policies, programs, and investment priorities reflected in 
the long-range statewide transportation plan and the STIP. Several 
commenters (AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, WY DOT, and TX DOT) 
stated that they would like the phrase ``targets established under this 
paragraph'' to be replaced with the phrase ``the State's targets.'' In 
response to this comment, the FHWA and FTA note that ``targets 
established under this paragraph'' is intended to refer specifically to 
the targets required under section 450.206(c)(2). The FHWA and FTA do 
not believe the phrase ``the State's targets'' would retain the same 
meaning. No changes are made to the final rule based on this comment. 
If a State chooses to include more targets than required under section 
450.206(c)(2), they may do so. However, the final rule does not require 
it.
    Section 450.206(e) describes the funds available to a State to 
accomplish the activities described in this subpart. The FMATS 
commented that it is concerned that a State may take metropolitan 
planning funds and use them for planning activities outside of MPAs. 
The FMATS further commented that this section should be revised to make 
it clear that if the States use funds in this manner, they need to 
first consult with MPOs. In response to this comment, FHWA and FTA note 
that 23 U.S.C. 104(d) describes conditions under which a State may 
transfer metropolitan planning funds for use outside of a MPA. The FHWA 
and FTA believe that these comments are outside the scope of the final 
rule as it does not address the administration of planning funds. No 
changes were made to the final rule as a result of this comment.
Other Comments on Section 450.206
    The Partnership for Active Transportation commented on this section 
that health should also be integrated into the planning process. See 
section IV(B) (recurring comment themes and other changes proposed by 
commenters) for more discussion on this issue and FHWA and FTA 
responses.
    The North Central Pennsylvania RPDC commented that States should 
also coordinate targets with RTPOs (similar to MPOs) when setting 
targets. The FHWA and FTA agree that this would be a good practice and 
section 450.210(d) provides that a Governor may establish and designate 
RTPOs to enhance the planning, coordination, and implementation of the 
long-range statewide transportation plan and STIP. Sections 450.216(h) 
and 450.218(c) require that States develop the long-range statewide 
transportation plan and the STIP in cooperation with affected 
nonmetropolitan local officials or, if applicable, through RTPOs. The 
FHWA and FTA believe that, as a best practice, this cooperation should 
include discussion on performance targets. The FHWA and FTA note that 
unlike with MPOs, the statute does not require RTPOs to establish 
targets for the performance measures. Consequently, FHWA and FTA have 
not made this a requirement in the final rule.
    The National Housing Conference requested that housing and 
community development representatives be included throughout the 
planning process and that the final rule should require it. The FHWA 
and FTA note that sections 450.210(a)(1) and 450.316(a) require that 
the State and MPO must establish early and continuous public 
involvement opportunities that provide timely information about 
transportation issues and decisionmaking processes to affected public 
agencies. Further, sections 450.216(l)(2) and 450.314(j) require States 
and MPOs to give affected public agencies a reasonable opportunity to 
comment on the proposed long-range statewide transportation plan and 
MTP. The FHWA and FTA believe that the final rule provides for the 
inclusion of public agencies, such as housing and community development 
representatives, throughout the planning process and have not made any 
changes based on this comment.
Section 450.208 Coordination of Planning Process Activities
    Section 450.208 describes the coordination of planning process 
activities. Forty-two commenters (AASHTO, Addison County Regional 
Planning Commission (RPC), AMPO, ARC, Boone Count Resource Management, 
Braxo Valley COG, Buckeye Hills-Hocking Valley Regional Development 
District (RDD), Capital Area MPO, CO DOT, CT DOT, East Texas Officials 
RPO, Enterprise Community Partners, FMATS, IA DOT, ID DOT, Meramec RPC, 
MI DOT, Mid-Region TPO and New Mexico RTPOs, MT DOT, NADO, National 
Housing Conference, NC Association of RPOs, NC DOT, ND DOT, NJ DOT, 
North Central Pennsylvania RPDC, Northern Maine Development Commission, 
Northern Shenandoah Valley Regional Commission, NYS DOT, OR DOT, 
Pioneer Trails RPC, Region Five Development Commission, Region Nine 
Development Commission, SEMCOG, SD DOT, South Plains Association of 
Governments (AOG), Southern Windsor County RPC, Two Rivers-Ottauquechee 
Regional Commission, TX DOT, Upper Minnesota Valley Regional 
Development Commission (RDC), WA State DOT, West Central Arkansas 
Planning and Development District, WI DOT, and WY DOT) submitted 
comments on this section. Eighteen of the comment letters were received 
from regional planning organizations, 13 were from States, 4 were from 
MPOs, 4 were from associations, 2 were from advocacy groups, and 1 was 
from a local government.
    The SEMCOG commented that section 450.208 should be flexible to 
allow each State and its MPOs to develop procedures that are best for 
the local situation with regards to the use and implementation of the 
terms ``cooperation'' and ``coordination'' of planning activities. In 
response to this comment, FHWA and FTA believe that there is 
considerable flexibility for the States and MPOs to mutually determine 
their cooperative relationships and coordination of planning 
activities. The FHWA and FTA reiterate that the mutually developed and 
documented metropolitan planning agreement (section 450.314) is an 
appropriate place

[[Page 34087]]

for the States, MPOs, and operators of public transportation to 
cooperatively determine and document their mutual roles and 
responsibilities carry out the metropolitan transportation planning 
process. Section 450.314 identifies the minimum requirements for what 
is required to be included in the metropolitan planning agreements.
Section 450.208(a)
    Addison County RPC, Boone County Resource Management, Brazo Valley 
COG, Buckeye Hills-Hocking Valley RDD, East Texas Chief Elected 
Officials RPO, Meramec RPC, Mid-Regional TPO and New Mexico RTPOs, 
NADO, NARC, North Carolina Association of RPOs, North Central 
Pennsylvania RPDC, Northern Shenandoah Valley Regional Commission, 
Pioneer Trails RPC, Region Five Development Commission, Region Nine 
Development Commission, South Plains AOG, Southern Windsor County RPC, 
Two Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley 
RDC, and West Central Indiana Economic Development District (EDD) 
expressed support that the final rule elevates State involvement with 
nonmetropolitan local officials from ``consultation'' to 
``cooperation'' in the long-range statewide planning process and 
establishes the option that allows States to recognize RTPOs and a 
formal framework for a nonmetropolitan transportation planning process.
    Section 450.208(a)(4) states that, in carrying out the statewide 
transportation planning process, each State shall cooperate with 
affected local and appointed officials with responsibilities for 
transportation or, if applicable, through RTPOs. The IA DOT commented 
that in section 450.208(a)(4), FHWA and FTA should clarify whether the 
shift from consultation to cooperation for nonmetropolitan 
transportation planning has implications at the NEPA or project 
development level. The FHWA and FTA response to this comment is that 
the final rule applies specifically to the transportation planning 
process and not to the NEPA or project development level. In cases 
where a State conducts PEL as part of its planning process, a State may 
want to coordinate PEL with nonmetropolitan local officials.
    The CO DOT commented that it is unclear what the change from 
``consider'' to ``cooperate'' will mean and that it may be difficult to 
mandate cooperation. The FHWA and FTA respond that the definitions of 
the terms ``consider'' and ``cooperate'' are in section 450.104. Those 
definitions are used when transitioning from ``consider'' to 
``cooperate'' with nonmetropolitan affected local elected and appointed 
officials with responsibility for transportation or, if applicable, 
through RTPOs. The FHWA and FTA further note that under section 
450.210(b), States must have documented processes for cooperating with 
nonmetropolitan local officials and/or local officials with 
responsibility for transportation, and that they should be following 
those processes.
    Enterprise Community Partners commented that the transportation 
planning process should be coordinated with other Federal planning 
processes. Specifically, State nonmetropolitan and metropolitan 
transportation planners should be explicitly encouraged to coordinate 
with all relevant local, regional, and Federal plans and processes, 
especially Housing and Urban Development (HUD) Consolidated Plans, 
Sustainable Communities Regional Planning and Community Challenge 
programs, and FEMA Hazard Mitigation plans.
    In response to this comment, FHWA and FTA agree that this 
coordination is desirable. The FHWA and FTA note that section 
450.208(a) identifies broad areas where States shall coordinate as part 
of the statewide transportation planning process, including 
metropolitan transportation planning activities, statewide trade and 
economic development activities, and related multistate planning 
efforts. The FHWA and FTA also note that section 450.210(d)(3) 
identifies the duties of an RTPO, if established by the State, which 
include: Fostering the coordination of local planning, land use, and 
economic development plans with State, regional, and local 
transportation plans, and programs; and participating in national, 
multistate, and State policy and planning development processes to 
ensure the regional and local input of nonmetropolitan areas. 
Furthermore, section 450.316(b) requires MPOs to consult with agencies 
and officials responsible for other planning activities within the MPA 
that are affected by transportation.
    Consequently, FHWA and FTA believe the final rule provides that 
transportation planning process should be coordinated with other 
Federal planning processes and will continue to encourage, but not 
require, States and MPOs to coordinate with these other Federal 
planning processes. No changes were made to this section based on this 
comment.
Section 450.208(e)
    The AASHTO, CO DOT, ID DOT, MT DOT, ND DOT, OR DOT, SD DOT, TX DOT, 
and WY DOT expressed concerns with section 450.208(e) in the NPRM. 
Section 450.208(c) states that, in carrying out the statewide 
transportation planning process, States shall apply asset management 
principles and techniques consistent with the State Asset Management 
Plan for the NHS, the Transit Asset Management Plan, and the Public 
Transportation Safety Plan. The commenters stated that the statewide 
planning process is much broader than an asset management plan, and 
that, as a requirement, it might have unintended consequences. The 
commenters suggested that it be deleted or modified.
    The FHWA and FTA retained this provision. However, the word 
``shall'' is changed to ``should'' in the final rule. The FHWA and FTA 
believe that asset management principles and techniques, consistent 
with the State Asset Management Plan for the NHS, the Transit Asset 
Management Plan, and the Public Transportation Safety Plan, should 
contribute to defining STIP priorities and assessing transportation 
investment decisions. The word ``shall'' was changed to ``should'' in 
the final rule because, as noted in the comments received on the NPRM, 
it is not a statutory requirement. See section IV(B) (recurring comment 
themes and other changes proposed by commenters) for more discussion on 
this issue and FHWA and FTA responses.
Section 450.208(g)
    The AASHTO, CT DOT, ID DOT, MT DOT, ND DOT, NJ DOT, SD DOT, and WY 
DOT requested that FHWA and FTA eliminate redundant references to the 
integration of goals and objectives into the statewide planning 
process, as proposed in NPRM sections 450.206(c)(4) and 450.208(g). See 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses.
    The AASHTO commented that section 450.208(g) should state that the 
integration of other performance-based plans and processes into the 
statewide transportation planning process can be either direct or by 
reference. In response to this comment, FHWA and FTA note that section 
450.208(g) has been deleted from the final rule based on other comments 
that are described in the previous paragraph. However, section 
450.206(c)(4) retains the requirement to integrate elements of other 
performance based plans and processes into the statewide transportation 
planning process and also provides that they may be integrated either 
directly or by reference. The WY DOT commented that the text in section 
450.208(g)

[[Page 34088]]

should make it clear that the integration of elements of other 
performance-based plans and processes into the statewide transportation 
planning process can be done directly or by reference. The FHWA and FTA 
reiterate that section 450.208(g) has been removed from the final rule 
because it is redundant to section 450.206(c)(4). The FHWA and FTA 
further respond that section 450.206(c)(4) provides for the integration 
of elements of other performance-based plans and processes into the 
statewide transportation planning process directly or by reference.
    The WA State DOT commented that advancing performance-based 
planning and programming requires consideration of all modes when 
linking investment decisions to targets and that the NPRM seems to 
support this direction.
    The NYS DOT commented that, in coordinating performance management 
requirements in multijurisdictional mega regions, flexibility is needed 
in the requirement to coordinate among States, MPOs, and interstate 
agencies or authorities. The commenter further stated that this 
flexibility is needed due to the complexity of transportation 
facilities and services that may straddle several MPO and State 
boundaries.
    The SEMCOG commented that there should be flexibility to allow MPOs 
to develop cooperative procedures for performance based planning that 
are best for the local situation. See section IV(B) (recurring comment 
themes) for more discussion on this issue and FHWA and FTA responses.
Section 450.210 Interested Parties, Public Involvement, and 
Consultation
    Seventy-five entities (AASHTO, Addison County RPC, AK DOT, APTA, 
Boone County Resource Management, Buckeye Hills-Hocking Valley RDD, 
Brazo Valley COG, California Association for Coordinated 
Transportation, CALTRANS, Capital Area MPO, CO DOT, Crystal Hitchings, 
CT DOT, East Central Iowa COG, East Texas Chief Elected Officials RPO, 
Enterprise Community Partners, Hunsaker/Region XII COG, IA DOT, ID DOT, 
Macatawa Area Coordinating Council, MARC, MA DOT, Meramec RPC, MI DOT, 
Mid-Columbia EDD, Mid-Region TPO and New Mexico RTPOs, MT DOT, NADO, 
NARC, National Congress of American Indians, National Housing 
Conference, NC DOT, ND DOT, Nine to Five National Association of 
Working Women, North Carolina Association of RPOs, North Central 
Pennsylvania RPDC, Northern Maine Development Commission, Northern 
Shenandoah Valley Regional Commission, NRDC, NYS DOT, OK DOT, OR DOT, 
Oregon Chapter of the American Planning Association (APA), Pioneer 
Trails RPC, Portland Metro, Region Five Development Commission, Region 
Nine Development Commission, Region XII COG, Rural Counties Task Force, 
SD DOT, Sierra Club, South Alabama RPC, South Plains AOG, Southeast 
Alabama RPO, Southern Windsor County RPC, The Leadership Conference on 
Civil and Human Rights, TN DOT, Two Rivers-Ottauquechee Regional 
Commission, TX DOT, United Spinal Association, Upper Minnesota Valley 
RDC, Virginia Association of Planning District Commissions, VT DOT, 
West Central Arkansas Planning and Development District, West Central 
Indiana EDD, WA State DOT, WY DOT, and Yurok Tribe Transportation 
Program) submitted comments on the proposed changes to section 450.210. 
This section requires States to involve members of the public and 
nonmetropolitan local officials in the planning process that produces 
the long-range statewide transportation plan and STIP, described below.
Section 450.210(a)
    Section 1202 of FAST amends 23 U.S.C. 135(g)(3) to add public ports 
and intercity bus operators to the list of entities that a State shall 
provide early and continuous public involvement opportunities to as 
part of the statewide transportation planning process. Section 
450.210(a)(1)(i) in the final rule is amended to reflect these changes.
    Section 450.210(a) provides that the State shall develop and use a 
documented public involvement process that provides opportunities for 
review and comment at key decision points. The AASHTO and four States 
(ID DOT, MT DOT, SD DOT, and WY DOT) commented that the rule would be 
improved if it were made explicit that a State considers public comment 
in setting targets. They propose the addition of a new paragraph 
450.210(a)(3) to read as follows: ``With respect to the setting of 
targets, nothing in this part precludes a State from considering 
comments made as part of the State's public involvement process.'' 
Section 450.210(a) requires that the public involvement process provide 
opportunities for review and comment at key decision points in the 
development of the long-range statewide transportation plan and the 
STIP.
    The FHWA and FTA agree that the establishment of targets is a 
pivotal decision in the performance-based planning and programming 
process. The FHWA and FTA concur with this recommendation and amended 
paragraph (a)(3) in the final rule to emphasize the importance of 
securing public comment during the target selection process.
    The FHWA and FTA also concur with the three advocacy groups (United 
Spinal Association, National Housing Conference, and Enterprise 
Community Partners) who highlighted the importance of section 
450.210(a)(viii). The section provides that States seek out and 
consider the needs of the traditionally underserved by existing 
transportation systems, such as low income and minority households.
    The NRDC recommended the creation of a State process for measuring 
target districts, such as that developed by the Atlanta Regional 
Council (http://www.atlantaregional.com/transportation/community-engagement/social-equity), for greater outreach that can help address 
gaps in input at both the State and local levels. The CO DOT asked that 
FHWA and FTA identify other public involvement techniques, particularly 
electronically accessible ones.
    The FHWA and FTA are collecting and disseminating best practices 
and providing technical support for State and MPO public engagement 
efforts. As part of the Public Transportation Participation Pilot 
Program, created as part of the SAFETEA-LU, FTA sponsored applied 
research to develop innovative approaches to improving public 
participation in the planning of public transportation. The results of 
this research can be found at http://www.fta.dot.gov/12347_5925.html. 
Similarly, FHWA has developed material and resources on best practices 
in public participation that is available at: http://www.fhwa.dot.gov/planning/public_involvement/.
Section 450.210(b)
    Section 450.210(b) provides that, consistent with MAP-21, the State 
shall have a documented process for cooperating with nonmetropolitan 
officials representing units of general purpose local government, and/
or local officials with responsibility for transportation, that 
provides them an opportunity to participate in the development of the 
long-range statewide transportation plan and the STIP. The change from 
the term ``consultation'' to ``cooperation'' requires States to work 
more closely with nonmetropolitan local officials to achieve a common 
outcome in the development of the long-range statewide transportation 
plan and STIP.
    The NYS DOT expressed support for the requirement to cooperate with

[[Page 34089]]

nonmetropolitan local officials in the development of the long-range 
statewide transportation plan and STIP, noting that this cooperative 
process will likely require States to reach out to local officials more 
frequently and on a cooperative basis. However, it believes that the 
higher level of outreach is achievable with existing resources. One 
industry organization (NARC) expressed support for the change in this 
and other sections of the planning NPRM that elevates the relationship 
between States and nonmetropolitan local officials from consultation to 
cooperation.
    Two industry associations (NADO and NARC) and one MPO (Two Rivers-
Ottauquechee Regional Commission) requested that, given the high degree 
of discretion granted to States as to what constitutes cooperation, 
additional dialogue from FHWA and FTA would be helpful to understand 
what the shift to cooperation will mean and how this shift is 
anticipated to change the planning process. The FHWA and FTA are 
developing training as to what are the expectations as States and MPOs 
transition to a more cooperative process.
    The AK DOT also sought clarity as to what constitutes cooperation, 
noting that it found the language addressing cooperation with 
nonmetropolitan local officials to be vague and confusing. The FHWA and 
FTA note that cooperation means that the parties involved in carrying 
out the transportation planning and programming process work together 
to achieve a common goal or objective (section 450.104).
    The MA DOT and TN DOT asked what criteria FHWA and FTA use to 
determine whether cooperation is taking place if a State elects not to 
designate RTPOs. In response, FHWA and FTA note that existing section 
450.210(b)(1) requires that a State identify the effectiveness of its 
process to cooperate with nonmetropolitan local officials by soliciting 
and reviewing comments from nonmetropolitan local officials and other 
interested parties regarding the effectiveness of the cooperative 
process, and any proposed changes, at least once every 5 years. While 
the statute provides that FHWA and FTA shall not review or approve the 
process, FHWA and FTA will review whether the State has implemented a 
process to cooperate with the nonmetropolitan local officials through 
its planning finding as part of the STIP approval process.
    The AK DOT noted that sections 450.216(h) and 450.218(c) continue 
to refer to a State's nonmetropolitan local official consultation 
process. The commenter is correct in noting that both of these sections 
refer to the States' ``consultation processes established under 
450.210(b).'' To eliminate this confusion, and to emphasize the 
statutory change from consultative to cooperative, FHWA and FTA revised 
sections 450.216(h) and 450.218(c) by eliminating the term 
``consultation'' to reflect the new requirements for cooperation. The 
FHWA and FTA do not concur with the commenter's conclusion that the 
State's existing consultation process with nonmetropolitan local 
officials satisfies the requirement that States develop and implement a 
cooperative process, unless it complies with the new requirements 
provided by MAP-21 and this final rule.
    The NRDC, who applauded the focus on greater integration of 
nonmetropolitan areas into State planning, suggested striking the 
sentence in 450.210(b) which limits FTA and FHWA authority by 
explicitly forbidding review or approval of new processes, since 
Federal agencies should reserve the authority in case State 
implementation proves inadequate. In response, FHWA and FTA point to 23 
U.S.C. 135(f)(2)(B)(ii) \22\ and 135(g)(2)(B)(ii),\23\ which expressly 
prohibit the DOT from reviewing or approving a State's consultation 
process.
---------------------------------------------------------------------------

    \22\ Also 49 U.S.C. 5304(f)(2)(B)(ii).
    \23\ Also 49 U.S.C. 5304(g)(2)(B)(ii).
---------------------------------------------------------------------------

    Eleven commenters (Crystal Hitchings, Hunsaker/Region XII COG, 
NADO, North Central Pennsylvania RPO, Pioneer Trails RPC, Region Nine 
Development Commission, Southeast Alabama RPO, TN DOT, Two Rivers-
Ottauquechee Regional Commission, Upper Minnesota Valley RDC, and 
Virginia Association of Planning District Commissions) asked the DOT to 
encourage States to establish a timeline for when the shift from 
consultation to cooperation will occur, and to communicate this to 
nonmetropolitan stakeholders.
    The FHWA and FTA note that section 450.226 provides the schedule 
for phasing in MAP-21 changes. With respect to the major change that 
places a new emphasis on nonmetropolitan transportation planning, FHWA 
and FTA will require that STIPs and long-range statewide transportation 
plans, adopted on or after a date 2 years after publication of the 
final rule in the Federal Register, must reflect this new emphasis. The 
FHWA and FTA will only approve STIP amendments or updates that are 
based on a planning process that incorporates the new emphasis on 
nonmetropolitan transportation planning, including the development and 
use of a documented process by the State to provide for cooperation 
with nonmetropolitan local officials in the development of the 
statewide long-range plan and STIP. The FHWA and FTA believe this 
approach is consistent with the MAP-21 requirements (23 U.S.C. 135(l) 
and 49 U.S.C. 5303(k)) and does not require the State to deviate from 
its established planning update cycle to implement the MAP-21 changes.
Section 450.210(c)
    Section 450.210(c), which concerns areas of States under the 
jurisdiction of a tribal government, would replace ``Federal land 
management agencies'' with the ``Department of the Interior'' as the 
entity with which States must consult when forming the long-range 
statewide transportation plan and STIP for such areas. One tribal 
organization (the National Congress of American Indians) expressed 
concern with this proposed change, asserting that it is very limiting 
for States and would inhibit the ability of tribes to provide full 
scale infrastructure planning for their citizens and citizens of 
surrounding areas. They recommended that the term ``Federal land 
management agencies'' remain.
    The FHWA and FTA note that the Department of the Interior, not the 
Federal land management agencies, is the Federal agency with 
responsibility for managing tribal matters and that with this change, 
tribal governments retain the choice to engage with other Federal 
entities. The final rule will retain the Department of the Interior as 
the entity with which States must consult when forming the long-range 
statewide transportation plan and STIP for such areas. The National 
Congress of American Indians also reaffirms the requirement in section 
450.210(c), which provides that States must, to the maximum extent 
practicable, develop a documented process that outlines the roles, 
responsibilities, and key decision points for consulting with tribal 
governments.
Section 450.210(d)
    Section 450.210(d) would provide for an optional formal process for 
States to establish and designate RTPOs to enhance the planning, 
coordination, and implementation of the long-range statewide 
transportation plan and STIP with an emphasis on addressing the needs 
of nonmetropolitan areas. Fifteen commenters (Addison County RPC, Boone 
County Resource Management, East Texas Chief Elected Officials RPO, 
Meramec RPC, NC DOT, North Carolina Association of RPOs, Northern Maine 
Development Commission, NYS DOT, OK DOT, Portland Metro, Region XII

[[Page 34090]]

COG, Two Rivers-Ottauquechee Regional Commission, VT DOT, West Central 
Arkansas Planning and Development District, West Central Indiana EDD) 
expressed support for this proposal. The MA DOT requested more clarity 
and direction on the establishment, designation, roles, and 
responsibilities of RTPOs. The FHWA and FTA offer the following 
responses to comments on RTPOs to address the request for more clarity 
and direction.
    The MAP-21 provides that States have the authority to establish and 
designate an RTPO. Section 450.210(d) clarifies that this authority 
resides in the Governor or the Governor's designee because the Governor 
is the chief executive of a State. With respect to this section, the OR 
DOT sought clarification as to the role of the State DOT in the 
establishment and designation of an RTPO. The FHWA and FTA note that 
the State DOT could serve as the Governor's designee.
    Six commenters (AASHTO, Minnesota Valley Development Commission, CO 
DOT, IA DOT, Region Five Development Commission, Region Nine 
Development Commission, and TX DOT) stated that section 450.210(d)(1) 
appears to indicate that a Governor could establish an RTPO without 
local agreement and requested FHWA and FTA to clarify that the 
establishment of an RTPO must include the agreement of the local units 
of government.
    The commenters proposed that the language related to the 
establishment of RTPOs in section 450.210(d)(1) be changed to be more 
similar to the language related to the establishment of MPOs in 
450.310(b) with respect to the requirement for agreement with units of 
general purpose local government. The MA DOT questioned the role of 
nonmetropolitan officials in the establishment of RTPOs.
    In response, FHWA and FTA believe that section 450.210(d)(1) is 
clear that an RTPO shall be a multijurisdictional organization of 
nonmetropolitan local officials, or their designees who volunteer for 
such organizations, and representatives of local transportation systems 
who volunteer for such organizations. The FHWA and the FTA will retain 
the proposed language in the final rule.
    Section 450.210(d) also requires that, if a State and its existing 
nonmetropolitan planning organizations choose to be established or 
designated as an RTPO under MAP-21, they must go through the formal 
process to conform to the structure as described in 450.210(d)(1) and 
(d)(2). Because an RTPO would conduct planning for a nonmetropolitan 
region, an RTPO would be a multijurisdictional organization composed of 
volunteer nonmetropolitan local officials or their designees, and 
volunteer representatives of local transportation systems. The MT DOT 
expressed support for the language recognizing that it is at the 
State's discretion to establish RTPOs.
    The MA DOT sought clarification as to the appropriateness of 
including transit representation on the RTPO if the nonmetropolitan 
area does not have robust transit service. The FHWA and FTA note that 
the statute and the final rule provide that an RTPO's policy committee 
shall include representatives of transportation service operators as 
appropriate.
    The MA DOT also questioned whether the establishment of an RTPO can 
be reflected in an existing MOU between the State and the 
nonmetropolitan planning organization. The FHWA and FTA respond that if 
the State and its existing nonmetropolitan planning organizations 
choose to be established or designated as an RTPO under the MAP-21, 
they must go through the formal establishment and redesignation 
process, and that existing MOUs between them must be updated to reflect 
the MAP-21 structure, requirements, and duties.
    A respondent who works on the Transportation Program for the Yurok 
Tribe requested that RPTOs: (1) Work with the tribes, individually and 
through tribal transportation consortiums, to develop performance 
measures on tribal lands or communities; (2) implement data collection 
and data management strategies for these performance measures; (3) 
utilize tribal planning products for developing RTPO planning 
documents; and (4) partner with tribes on outreach strategies to tribal 
communities regarding unmet transit needs, the regional planning 
processes, and projects with regional significance.
    In response, FHWA and FTA note that the statute is silent on the 
inclusion of tribal communities in RTPOs established by the States 
under 23 U.S.C. 135(l) and 49 U.S.C. 5304(l). Consequently, it would be 
the decision of the State and local officials as to whether to include 
tribes on the RTPO. It would be permissible under 23 U.S.C. 135(l)(3) 
and 49 U.S.C. 5304(l). The FHWA and FTA think it would be a best 
practice. Furthermore, as the States must develop the long-range 
statewide transportation plan and STIP in consultation with tribal 
governments under 23 U.S.C. 135(f)(2)(C), 23 U.S.C.135(g)(2)(C), 49 
U.S.C.5304(f)(2)(C), and 49 U.S.C.5304(g)(2)(C), FHWA and FTA would 
hold the States accountable for consultation with the tribes, 
regardless of whether tribes were included on the RTPO. In addition, 
the RTPO's duties require it to consider and share plans and programs 
with ``neighboring regional transportation planning organizations, 
metropolitan planning organizations, and, where appropriate, tribal 
organizations'' (23 U.S.C. 135(m)(4)(G)).
    The CALTRANS commented that the shift toward working cooperatively 
should also take tribal governments into consideration. Doing this will 
lead to more coordinated efforts and will also allow consultation with 
tribal governments, as required by this final rule, to be more 
meaningful. The FHWA and FTA agree.
    The OR DOT highlighted that Oregon's Area Commissions on 
Transportation, which encompass large territories in Oregon that 
include MPOs and adjacent nonmetropolitan areas and whose functions are 
generally limited to making recommendations on STIP priorities, overlap 
the Federal responsibilities of MPOs in a way which produces confusion 
and redundancies between the State and local governments in the 
regional planning area. The OR DOT and Portland Metro requested that 
the final rule clearly define the function of RTPOs as serving areas 
outside of established MPOs. The Portland Metro also requested that the 
RTPOs' boundaries be periodically updated to reflect updates to MPO 
boundaries following the Federal census. Conversely, the WA State DOT 
noted that its State law provides for a different RTPO structure than 
described in section 450.210(d)(2). Oregon law allows RTPOs and MPOs to 
share boundaries and staff, which increases the coordination and 
decreases the workload. As a result, 37 of the State's 39 counties are 
in an RTPO.
    In response, FHWA and FTA note that the final rule states clearly 
that an RTPO, established and designated or redesignated under the MAP-
21, would conduct planning for the nonmetropolitan areas of the State.
    The Oregon Chapter of the APA notes that such a formally structured 
and recognized rural TPO with broad based representation is essential 
to the development of coordinated regional transportation plans and 
projects. However, an individual (Crystal Hitchings), an industry 
association (NADO), and 24 rural transportation planning organizations 
(Addison County RPC, Boone County Resources Management, Brazo Valley 
COG, East TX Chief Elected Officials/RPO, Hunsaker/Region XII COG, 
Meramec

[[Page 34091]]

RPC, Mid-Columbia EDD, Mid-Region TPO, New Mexico RTPOs, North Carolina 
Association of RPOs, North Central Pennsylvania RPO, Northern Maine 
Development Commission, Northern Shenandoah Valley Regional Commission, 
Region Five Development Commission, Region Nine Development Commission, 
Rural Counties Task, South Alabama RPC, Southern Windsor County RPC, 
Two Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley 
RDC, Virginia Association of Planning District Commissions, West 
Central Arkansas Planning and Development Commission, and West Central 
Indiana EDD) requested that the final rule provide that the make-up of 
an RTPOs policy committee remain as flexible as possible so that 
existing models can continue to operate as is. They cited that, in 
several States, metropolitan and tribal officials are designated 
participants on an existing RTPO or rural planning partners governing 
board because of a region's demographic reach. They requested that 
these officials continue to qualify under the appropriate category in 
the list of individuals comprising a RTPO's policy committee under the 
final rule.
    One respondent, who represents 26 rural RTPAs in California (Rural 
Counties Task Force), requested that FHWA and FTA include language in 
the final rule saying that California's existing RTPA process is 
equivalent to that of the RTPOs provided for in the NPRM. The 
respondent explained that State law established California's RTPAs in 
the early 1970s and that these agencies perform regional transportation 
planning and programming for an area that typically covers a county and 
the cities contained within it. The NC DOT asserted that States should 
have the ability to define the structure and role of RTPOs within their 
own planning processes. Similarly, three commenters (CALTRANS, NARC, 
and WA State DOT) noted that it would helpful if the final rule 
included language that creates flexibility for already established 
RTPOs.
    In response to these requests to limit or expand flexibility with 
respect to the establishment and structure of an RTPO, FHWA and FTA 
note that MAP-21 and the final rule provide that the establishment of 
an RTPO is optional and that a State can choose to retain its existing 
RPOs. If the State, nonmetropolitan local governments, and operators of 
transportation in nonmetropolitan areas choose to designate/re-
designate an RTPO under MAP-21 because they believe that it will enable 
the State to better address the needs of its nonmetropolitan areas, the 
RTPO must comply with the required structure and responsibilities as 
provided in MAP-21, proposed in the NPRM, and retained in the final 
rule.
    Portland Metro asked that the final rule create clear incentives 
for States to establish RTPOs to supersede any existing non-MPO 
planning structures that may exist. They noted that this would ensure 
Federal oversight and improve coordination of planning activities 
across both metropolitan and nonmetropolitan areas. Conversely, an 
individual (Crystal Hitchings), an industry association (NADO), and 24 
rural planning agencies (Addison County RPC, Boone County Resources 
Management, Brazo Valley COG, Buckeye Hills-Hocking Valley Regional 
Development District, East Texas Chief Elected Officials/RPO, Hunsaker/
Region XII COG, Meramec RPC, North Carolina Association of RPOs, Mid-
Columbia EDD, Mid-Region TPO and New Mexico RTPOs, Northern Maine 
Development Commission, Northern Shenandoah Valley Regional Commission, 
Pioneer Trails RPC, Region Five Development Commission, Region Nine 
Development Commission, Region XII COG, Rural Counties Task Force, 
South Alabama RPC, Southeast Alabama RPO, Southern Windsor County RPC, 
Two Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley 
RDC, Virginia Association of Planning District Commissions, West 
Central Arkansas Planning and Development Commission, and West Central 
Indiana EDD) requested that FHWA and FTA encourage States to maintain 
the existing working relationship with their nonmetropolitan 
transportation planning partners, rather than attempt to establish new 
relationships with other entities to meet the RTPO requirements.
    In response to requests for incentives for States either to retain 
existing nonmetropolitan planning organizations or to re-establish and 
re-designate them as RTPOs under the MAP-21, FHWA and FTA believe that 
the MAP-21 provides States the option to determine, in cooperation with 
nonmetropolitan local officials and nonmetropolitan transportation 
officials, if re-designating existing nonmetropolitan planning 
organizations to conform to the MAP-21 structures and responsibilities 
of an RTPO would better address the needs of the nonmetropolitan areas 
of the State. The final rule does not provide additional incentives to 
make that choice.
Section 450.210(d)(3)
    Section 450.210(d)(3) describes the duties of an RTPO, including 
the development of a regional long-range multimodal transportation plan 
and a regional TIP; providing a forum for public participation in the 
statewide and regional transportation planning process; and conducting 
other activities to support and enhance the statewide planning process. 
The Southeast Alabama RPO requested that RTPO activities be more than 
those listed in statute. Multiple rural transportation planning 
agencies (Addison County RPC, Boone County Resources Management, Brazo 
Valley COG, Buckeye Hills-Hocking Valley RDD, East Texas Chief Elected 
Officials/RPO, Meramec RPC, Mid-Columbia EDD, Mid-Region TPO and New 
Mexico RTPOs, NADO, North Carolina Association of RPOs, North Central 
Pennsylvania RPDC, Northern Maine Development Commission, Northern 
Shenandoah Valley Regional Commission, Pioneer Trails RPC, Region XII 
COG, South Alabama RPC, South Central Alabama RPC, Southern Windsor 
County RPC, Two Rivers-Ottauquechee Regional Commission, West Arkansas 
Planning and Development Commission, and West Central Indiana EDD) 
expressed appreciation that, in listing the duties of an RTPO, MAP-21 
and the NPRM make clear that there is no prohibition on an RTPO 
conducting other transportation planning activities beyond those 
listed. The California Association for Coordinated Transportation, a 
State association of RPOs, highlighted that its members perform 
regional transportation planning and programming for areas that 
typically cover a county and the cities contained within it. Consistent 
with MAP-21 and the NPRM, the final rule does not prohibit an RTPO from 
conducting other transportation planning activities beyond those 
listed.
    The Oregon Chapter of the APA urged the DOT to structure the 
proposed RTPOs with the same responsibilities and authorities that the 
MPOs currently exercise. The NC DOT and VT DOT asserted that, due to 
the nature and area of coverage, RTPOs should not have the same duties 
defined as those of the metropolitan areas. In response, FHWA and FTA 
note that MAP-21 and the final rule do not provide RTPOs with the same 
responsibilities and authorities that an MPO exercises.
    One industry organization (NADO) and two MPOs (Hunsaker/Region XII 
COG and the Two Rivers-Ottauquechee Regional Commission) encouraged 
FHWA and FTA to include language in the final rule stating that unified 
regional plans, plans developed by MPOs and RTPOs that are used as a

[[Page 34092]]

joint planning document, are an eligible way to structure planning 
activities, provided that all requirements for metropolitan planning 
are met through development of the metropolitan portion of the plan. In 
response, FHWA and FTA note that the final rule states clearly that an 
RTPO, established and designated or redesignated under MAP-21, would 
conduct planning for the nonmetropolitan areas of the State.
    Multiple rural transportation planning agencies (Addison County 
RPC, Boone County Resources Management, Brazo Valley COG, East Texas 
Chief Elected Officials RPO, Meramec RPC, Mid-Region TPO, New Mexico 
RTPOs, NADO, North Carolina Association of RPOs, North Central 
Pennsylvania RPDC, Northern Maine Development Commission, Northern 
Shenandoah Valley Regional Commission, Region XII COG, Rural Counties 
Task Force, South Alabama RPC Commission, Southeast Alabama RPO, 
Southern Windsor County RPC, Two Rivers-Ottauquechee Regional 
Commission, West Central Arkansas Planning and Development Commission, 
and West Central Indiana EDD) noted that several States already require 
RTPOs to follow the same guidelines as MPOs in developing their TIPs. 
They asked that FHWA and FTA clarify in the final rule that these MPO 
equivalent TIPs should be fully incorporated into the STIP, as are MPO-
developed TIPs. Four States (CO DOT, TN DOT, VT DOT, and WA State DOT) 
also sought clarity with respect to how the State is to treat an RTPO 
TIP, questioning whether it has the same requirements (e.g., 
incorporate directly or by reference) as an MPO TIP. The VT DOT 
explained that its existing rural planning agencies do not develop a 
regional TIP, but instead develop regional priorities that the State 
incorporates into its annual statewide project prioritization process. 
It noted that this approach is more effective at fostering cooperation 
than asking each rural planning agency to develop what may sometimes 
evolve into a wish-list of projects for inclusion in a capital program 
and STIP. The VT DOT noted that the NPRM does not define regional TIPs, 
which could lead to confusion and may imply that it carries the same 
weight as an MPO TIP. It recommends that development of a regional TIP 
be removed as a required duty of an RTPO, or defined sufficiently to 
ensure it does not create unrealistic expectations.
    In response, FHWA and FTA note that, as provided by MAP-21, the 
final rule states clearly that RTPOs prepare regional TIPs for 
consideration by the State. It is the option of the State to determine 
if the regional TIP prepared by an RTPO is to be fully incorporated 
into the STIP. This is not a Federal requirement. Consequently, 
addressing the inquiry of AK DOT, the lack of cooperation by one local 
nonmetropolitan official cannot bring the long-range statewide 
transportation plan or STIP planning to a halt. With respect to the 
request of NADO and the Two Rivers-Ottauquechee Regional Commission, 
FHWA and FTA encourage States to transparently communicate how the RTPO 
TIP priorities are considered in the STIP.
    The MA DOT asked if RTPOs have separate targets from MPOs and are 
expected to be involved in setting of State and transit targets. In 
response, FHWA and FTA note that MAP-21 requires States, MPOs, and 
operators of public transportation to establish performance targets. It 
does not give that authority to RTPOs. However, MAP-21 and final rule 
provide that an RTPO's duties include activities such as developing and 
maintaining regional long-range transportation plans in cooperation 
with the State, and developing a regional transportation improvement 
program for consideration by the State. These RTPO duties would support 
the State in its responsibilities to establish its performance targets 
and demonstrate substantial progress toward achieving them.
    With the additional requirements and duties for RTPOs and no 
additional Federal funding to cover them, CT DOT commented that it will 
not be establishing any RTPOs at this time. The AMPO strongly 
recommended restrictions on diverting metropolitan planning funds (PL) 
for nonmetropolitan planning requirements. The FHWA and FTA note that 
planning for nonmetropolitan areas is not an eligible expense for PL 
funds.
    Twenty-six commenters (Addison County RPC, Boone County Resources 
Management, Brazo Valley COG, Buckeye Hills-Hocking Valley RDD, East 
Texas Chief Elected Officials RPO, Meramec RPC, Mid-Region TPO and New 
Mexico RTPOs, NADO, North Carolina Association of RPOs, North Central 
Pennsylvania RPDC, Northern Maine Development Commission, Northern 
Shenandoah Valley Regional Commission, Oregon Chapter of the APA, 
Pioneer Trails RPC, Region Five Development Commission, Region Nine 
Development Commission, Rural Counties Task Force, Sierra Club, South 
Plains AOG, Southeast Alabama RPO, Southern Windsor County RPC, Two 
Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley 
Regional Development Commission, Virginia Association of Planning 
District Commissions, West Central Arkansas Planning and Development 
Commission, and West Central Indiana EDD) also requested that FHWA and 
FTA provide some discussion of funding options available to RTPOs as 
MAP-21 provides no dedicated funding for RTPOs. Another respondent, 
which represents 26 rural regional transportation planning agencies 
(RTPA) in California (the Rural Counties Task Force), stated that it 
would be helpful if the rural agencies would also receive Federal funds 
like the MPOs' PL funds. This would allow the rural agencies to enhance 
public outreach, performance measurement, maintenance strategies, 
safety plans, and uniform work programs.
    The FHWA and FTA agree that MAP-21 (and FAST) provides no dedicated 
funding for RTPOs and that eligible funding sources include the State 
Planning and Research Program and the Surface Transportation Program. 
The Formula Grants for Rural Areas (49 U.S.C. 5311) funds may also 
support RTPOs, provided they are in addition to funding awarded to a 
State under 49 U.S.C. 5305 for planning activities that are directed 
specifically at the needs of the rural areas in the State.\24\
---------------------------------------------------------------------------

    \24\ 49 U.S.C. 5311(b)(1)(A).
---------------------------------------------------------------------------

    The AK DOT asked what the State's responsibility is with respect to 
local officials that are not associated with RTPO. In response, FHWA 
and FTA cite 23 U.S.C. 135(l)(5) and 49 U.S.C. 5304(l)(5), which 
provide that, if a State does not choose to establish RTPOs, it must 
consult with affected nonmetropolitan local officials to determine 
projects that may be of regional significance.
Section by Section Post FAST
Section 450.212 Transportation Planning Studies and Project Development
FAST Act Impacts
    The FAST Act amended 23 U.S.C. 168, streamlining and clarifying the 
PEL authority added by MAP-21 that was the subject of the Section 168 
NPRM. The FAST Act amendments eliminated many of the provisions in the 
MAP-21 version of 23 U.S.C. 168 that generated comments on the Section 
168 NPRM, and established revised requirements for the use of that 
statutory authority. As a result, after conserving the substantial and 
detailed amendments made by FAST, FHWA and FTA decided that the best 
course of action would be for the final rule to reference the statute 
rather than adopt detailed regulatory language. This approach 
simplifies the final rule

[[Page 34093]]

and avoids a literal restatement of the statutory provisions, while 
ensuring the availability of the new authority is recognized by those 
considering the use of PEL. Thus, this final rule adds a reference to 
the FAST version of the statute in sections 450.212(d) and 450.318(e) 
and withdraws the provisions proposed in the Section 168 NPRM. For this 
reason, FHWA and FTA discuss Section 168 NPRM comments in this notice 
only to the extent those NPRM comments related to topics other than the 
NPRM's proposal for the implementation of 23 U.S.C. 168. The FHWA and 
FTA appreciate the commenters' submission of comments in response to 
the Section 168 NPRM, but do not believe a discussion of comments that 
were based on the MAP-21 version of 23 U.S.C. 168 would benefit the 
general public or entities interested in this rulemaking.
General Comments
    The FHWA and FTA received general comments on PEL in response to 
both the planning NPRM and the Section 168 NPRM. Most commenters 
(AASHTO, AMPO, APTA, ARTBA, ASHTD, CO DOT, FL DOT, H-GAC, Lackawanna 
Coalition, MA DOT, MDT, MetroPlan, MO DOT, MTC, NC DOT, NCTCOG/RTC, NJ 
Transit, NYMTC, NYS DOT, SACOG, SANDAG, SCAG, SJCOG, TCA, TriMet, TX 
DOT, VA DOT, and WY DOT) indicated their support for PEL objectives and 
cited the benefits of PEL practices to the project delivery process. 
The benefits cited included avoiding duplication and reducing the time 
required to complete the environmental review process. The FHWA and FTA 
appreciate the comments and the overall support for PEL. No response to 
these general comments is needed.
Comments on Impact of PEL Regulations on Planning and NEPA Processes
    Some commenters expressed concern that PEL regulations would be 
viewed as imposing general requirements on the transportation planning 
process, or substituting for the transportation planning process. The 
CO DOT commented that the final rule should make it clear that PEL 
provisions apply only when an agency wants to facilitate the use of 
planning products in the NEPA process, and that other planning products 
do not need to meet those requirements. The CO DOT also asked FHWA and 
FTA to clarify that planning studies may be undertaken at any point in 
the planning process, not only in conjunction with the development of 
the 20-year statewide transportation plan. The MetroPlan recommended 
FHWA and FTA consider redrafting the final rule to clearly distinguish 
between baseline planning analyses and other products flowing from the 
metropolitan planning process, including more detailed studies such as 
corridor plans that are intended to advance a specific project. The PA 
DOT registered concerns about whether the planning forms it now uses 
would require approval under PEL procedures, and its ability to 
continue to electronically transfer planning-level data into its 
automated system for documenting the decisionmaking process for 
categorical exclusions.
    In response, FHWA and FTA note that nothing in the final rule is 
intended to require a change to existing practices with respect to the 
use of planning data. Both the NPRM and final rule make it clear that 
all PEL procedures are optional and serve only as mechanisms for 
facilitating the use of planning outputs in the NEPA process. The FHWA 
and FTA do not believe the final rule places any requirement or 
limitation on the creation, form, timing, or use of planning 
information and data in the transportation planning process under 23 
U.S.C. 134 and 135. Nothing in sections 450.212 and 450.318, appendix 
A, or elsewhere in the final rule affects the long-standing exemption 
from applying NEPA to the transportation planning process (see, e.g., 
23 CFR 450.222 and 450.336 as in effect prior to this final rule \25\). 
The FAST provision in 23 U.S.C. 168(f) contains the same exemption for 
the section 168 authority.
---------------------------------------------------------------------------

    \25\ In this final rule, sections 450.222 and 450.336 of the 
prior regulation are renumbered as sections 450.224 and 450.338, 
respectively. The final rule also renumbers several other provisions 
carried over from the prior regulation. All subsequent references in 
the discussion of sections 450.212 and 450.318 use the numbering 
adopted in this final rule.
---------------------------------------------------------------------------

    The FHWA and FTA do not view the part 450 PEL procedures as 
limiting, nor forcing alteration of long-standing practices for using 
planning data during project development, including environmental 
reviews. Neither the existence nor the use of part 450 PEL procedures 
precludes any other appropriate process for using decisions, data, or 
studies in the NEPA process.
    The FHWA and FTA received a few comments that indicated a possible 
misperception about the relationship between the transportation 
planning process under 23 U.S.C. 134 and 135 and the NEPA process. The 
Sierra Club urged FHWA and FTA to require a plan to be the product of 
an environmental evaluation that fully considers the environmental 
context in which a transportation improvement would occur. In its 
comments, the Sierra Club listed a series of environmental concerns it 
suggested ought to be part of a mandatory environmental evaluation of a 
transportation plan. The Arizona Department of Fish and Game expressed 
concern about using planning level documents as the sole source of 
environmental impact analysis in the NEPA process, and requested early 
and continuing coordination among the NEPA lead agency and resource 
agencies.
    In response, FHWA and FTA note transportation plans are not subject 
to NEPA (23 U.S.C. 168(f)(1)-(2); 23 CFR 450.224 and 450.338). However, 
FHWA and FTA consistently encourage consideration of environmental 
issues early in the planning process and the final rule continues to 
include such considerations as a part of transportation planning (e.g., 
sections 450.206(a)(5), 450.216(c), 450.218(b), and 450.306(b)(5)). The 
FHWA and FTA note that planning documents brought into the NEPA process 
through PEL or other authorities will not serve as the sole 
documentation of environmental impact analysis, unless the planning-
level analysis meets NEPA-level evaluation and applicable procedural 
requirements.
    The FL DOT commented that the final rule should be clearer about 
who decides whether to use PEL and which PEL process to use. The AASHTO 
suggested revisions to the regulatory language that would give the 
decision to the project sponsor. In response, FHWA and FTA note each 
PEL authority described in sections 450.212 and 450.318 includes 
provisions specifying which entities have decisionmaking authority. 
Sections 450.212(a)-(c) and 450.318(a)-(d) give decisionmaking 
authority to the NEPA lead agencies. In the case of sections 450.212(d) 
and 450.318(e), 23 U.S.C. 168 defines the entities with decisionmaking 
authority as the relevant agency, which is the NEPA lead agency as 
defined in 23 U.S.C. 139 and cooperating agencies with jurisdiction 
over the project.
    The FHWA and FTA encourage early and ongoing coordination among all 
parties involved in the development and review of the planning product, 
including MPOs. The FHWA and FTA believe early coordination is the 
method for deciding whether and how to lay the groundwork during 
planning for carrying a planning product into the NEPA process using 
part 450 PEL authorities, especially where PEL under 23 U.S.C. 168 is 
being pursued.

[[Page 34094]]

NPRM Comments on Relationship Between Pre-Existing PEL Authorities and 
Section 168
    Several commenters (AASHTO, AMPO, ARC, and OR DOT) indicated the 
preference to retain the pre-existing PEL provisions in the final rule 
(sections 450.212 (a)-(c) and 450.318(a)-(d) and appendix A) because of 
the flexibility the existing authorities provide. Commenters (AASHTO, 
ARC, FL DOT, IDT, MDT, ND DOT, SD DOT, TX DOT, and WY DOT) emphasized 
the importance of appendix A, (Linking the Transportation Planning and 
NEPA Processes to Practitioners), and requested that FHWA and FTA 
retain appendix A and make it clear that it is non-binding guidance. 
The AASHTO requested that the final rule expressly state that appendix 
A to part 450 applies only to the PEL provisions contained in sections 
450.212(a)-(c) and 450.318(a)-(d) in the final rule, and not to the PEL 
provision that implements 23 U.S.C. 168.
    A number of commenters (AASHTO, CO DOT, FL DOT, H-GAC, MetroPlan, 
MDT, NC DOT, NCTCOG/RTC, PA DOT, and TX DOT) expressed concern that the 
MAP-21 section 168 provisions are more restrictive than the pre-
existing PEL regulations, and that they would prove so restrictive as 
to discourage its use. The FHWA and FTA believe this concern may apply 
to 23 U.S.C. 168 as revised by the FAST Act because the statute 
includes a number of specific procedural requirements. The H-GAC, 
NCTCOG/RTC, and TX DOT expressed concern that the section 168 process 
would be perceived as the required PEL procedure. Some commenters 
(AASHTO, AMPO, ARC, CO DOT, FL DOT, H-GAC, MA DOT, MDT, NC DOT, NCTCOG/
RTC, NYMTC, NYS DOT, Oregon DOT, and TX DOT) requested that FHWA and 
FTA make it clear in the final rule that the section 168 process is 
optional, and that it does not supersede PEL authorities that existed 
prior to the enactment of section 168 in 2012.
    The AASHTO submitted language for insertion into sections 
450.212(d) and 450.318(e) to emphasize that the new section 168 
provisions have no impact on the ability to use pre-existing PEL 
authorities. The AASHTO also suggested revisions to the organization of 
the regulatory text to place the pre-existing PEL authorities in 
different sections than the new 23 U.S.C. 168 PEL authority, as well as 
changes to the language to further clarify that section 168 
implementing regulations supplement the pre-existing PEL authorities.
    The FHWA and FTA agree that pre-existing PEL authorities, whether 
in the part 450 regulations or outside them, were not altered by the 
enactment of section 168 or its subsequent amendment. The final rule 
explicitly retains the authorities contained in sections 450.212 and 
450.318 prior to this rulemaking. Sections 450.212(d) and 450.318(e) 
reference 23 U.S.C. 168, which includes a savings clause provision 
found in 23 U.S.C. 168(f)(3). The statutory provision states that 
section 168 ``. . . . shall not be construed to affect the use of 
planning products in the environmental review process pursuant to other 
authorities under any other provision of law. . . .''
    The FHWA and FTA agree with the comments requesting retention of 
appendix A and clarification about its applicability. The final rule 
retains the non-binding guidance in appendix A and explicitly states in 
sections 450.212(c) and 450.318(d) that the guidance in appendix A 
applies only to paragraphs 450.212(a)-(c) and 450.318(a)-(c).
    The FHWA and FTA have adopted AASHTO's suggestion to add regulatory 
language to sections 450.212(d) and 450.318(e) to emphasize that the 
new section 168 provisions have no impact on the ability to use pre-
existing PEL authorities. In the final rule, sections 450.212(d) and 
450.318(e) contain language referring to 23 U.S.C. 168(f), and stating: 
``The statutory authority in 23 U.S.C 168 shall not be construed to 
limit in any way the continued use of processes established under other 
parts of this section or under an authority established outside of this 
regulation, and the use of one of the processes in this section does 
not preclude the subsequent use of another process in this section or 
an authority outside of this regulation. . . . The statute does not 
restrict the initiation of the environmental review process during 
planning.''
    The FHWA and FTA decline to adopt the reorganization of the 
regulations suggested by AASHTO. The FHWA and FTA believe that a total 
reorganization of the regulations, as proposed by AASHTO, would be 
complicated and confusing. However, FHWA and FTA do agree it is 
important to reduce the potential for confusion about PEL options and 
requirements. The FHWA and FTA believe their choice to replace detailed 
regulatory language proposed in the Section 168 NPRM with a short 
reference to 23 U.S.C. 168 will help accomplish this objective.
    With respect to the comments suggesting 23 U.S.C. 168 provisions 
are too restrictive and will discourage use of its authority, FHWA and 
FTA point to the changes made by the FAST Act that simplify the 
applicable procedures for using the authority created in 23 U.S.C. 168. 
In addition, the final rule is clear that all of the PEL procedures are 
optional and any PEL authority may be used.
NPRM Comments on Planning NPRM Proposals for Changes to Part 450
    In the planning NPRM, FHWA and FTA proposed repealing section 
450.318(d) and redesignating the remaining section of 450.318. The 
language in section 450.318(d), as in effect prior to this final rule, 
addressed PEL in the context of New Start projects under 49 U.S.C. 
5309(d). Under the MAP-21, changes to section 5309 removed the 
statutory requirement reflected in section 450.318(d). The FHWA and FTA 
received only one comment on that proposal from the NRDC. The comment 
supported the repeal. The final rule repeals section 450.318(d) and 
redesignates 450.318(e) as 450.318(d).
Section 450.214 Development of Programmatic Mitigation Plans
    Section 450.214 describes the development of programmatic 
mitigation plans. The FHWA and FTA received comments from a total of 22 
entities on this section, which included 15 States, 3 national non-
profit advocacy groups, 2 planning organizations, and 2 industry 
associations. All commenters were generally supportive of the 
development and use of programmatic mitigation plans within the 
transportation planning process.
General Comments
    Two States (CALTRANS and NYS DOT) commented on the eligibility for 
Federal funding for the development of programmatic mitigation plans, 
noting that without dedicated funding, there may not be enough staff 
resources to enable the development and review of programmatic 
mitigation plans. The FHWA and FTA note that the development of 
programmatic mitigation plans was allowed prior to the enactment of 
MAP-21 (section 1311) and the inclusion of language on programmatic 
mitigation plans in the final rule. The availability of Federal funds 
for such activities would depend on the eligibility requirements for 
any particular type of Federal funding. However, it is expected that 
Federal funds normally used for transportation planning activities 
(such as State Planning and Research and Metropolitan Planning funds) 
would

[[Page 34095]]

likely be potential sources of funding for programmatic mitigation plan 
development, to be evaluated on a case-by-case basis.
    The ARTBA commented on the greater use of programmatic mitigation 
plans and recommended that FHWA and FTA quantify the benefits of using 
such plans in terms of time saved. In addition, the group also 
recommended a clearinghouse for mitigation plans used across the Nation 
to highlight best practices. The FHWA and FTA acknowledge that 
programmatic mitigation plans are resourceful tools, but the benefits 
of such plans cannot be quantified at this time due to insufficient 
data. A clearinghouse for programmatic mitigation plans is under 
consideration, and may be developed for use in the future.
    The NRDC commended FHWA and FTA for the provisions contained within 
sections 450.214 and 450.320, noting that early planning can reduce 
conflicts and delays during environmental reviews performed later in 
project development. The group specifically noted the preference for 
requiring the development of programmatic mitigation plans within the 
transportation planning process. The FHWA and FTA appreciate the 
comment, but the final rule retains the flexibility in the statutory 
language (23 U.S.C. 169(a)) by allowing for the development of 
programmatic mitigation plans within the transportation planning 
process (pursuant to the framework described in 450.214(a)) or other 
existing authorities as provided for in 450.214(f)). See discussion 
under sections 450.214(b) and 450.214(e) for additional information. 
The NRDC also commented on the appropriate nature of consultation with 
the resource agencies, making a draft of the mitigation plan available 
for public review and comment, and addressing the comments in the final 
plan. The FHWA and FTA concur with the points raised by NRDC for 
programmatic mitigation plans developed pursuant to the framework in 
section 450.214(a), and have retained the language in the final rule in 
section 450.214(b).
    The National Mitigation Banking Association, a national non-profit 
advocacy group, noted that many of the attributes of a programmatic 
mitigation plan specified in section 450.214 are already in place in 
mitigation and conservation banks across the Nation, and that it would 
be prudent public policy to make the acquisition of bank credits from 
approved mitigation banks a central component of a programmatic 
mitigation plan element. The group also suggested that the final rule 
incorporate a reference to existing banks and bank credits as the 
preferred alternative for offsetting transportation impacts. The FHWA 
and FTA drafted the final rule to retain the statute's flexibility on 
how States and MPOs address potential environmental impacts to 
resources from transportation projects, including the use of mitigation 
and conservation banks. The FHWA and FTA prefer to retain that 
flexibility in the final rule.
    A planning organization (Mid-America Regional Council) provided a 
general letter of support on the development and use of programmatic 
mitigation plans and noted that the final rule should include language 
indicating that States shall coordinate with MPOs on the development 
and use of such plans. The FHWA and FTA acknowledge that development of 
programmatic mitigation plans are complex yet resourceful tools in 
future environmental reviews. Such plans can only be developed through 
proper guidance by the agencies involved in carrying out the 
recommendations of the plan, and with the full cooperation of the 
agencies with jurisdiction. In an effort to develop such complex plans 
effectively and efficiently, FHWA and FTA encourage full participation 
and coordination by all agencies with jurisdiction and special 
expertise over the resources addressed in the plan, and States and MPOs 
where such plans take effect.
    The CALTRANS commented on two instances of preamble language in the 
NPRM related to mitigation. The first instance noted that the text 
describing mitigation be clarified to include the terms ``. . . 
protecting, preserving, rehabilitating, or creating environmental 
resources . . .'' The second instance noted that ``minimization should 
be included'' in the discussion involving mitigation. The FHWA and FTA 
concur with both interpretations. However, the language in section 
450.214(a)(2) of the final rule remains unchanged because the comments 
do not concern regulatory text, but rather preamble language from the 
NPRM not carried forward into the final rule.
Section 450.214(a)
    Three entities (AASHTO, CT DOT, and H-GAC) commented on the 
proposed language in section 450.214(a)(2)(ii), stating that the 
resources addressed in the final rule should not be limited to the 
examples given. The FHWA and FTA concur that the list of resources 
mentioned in section 450.214(a)(2)(ii) is not meant to be exhaustive, 
as the use of the term ``include'' conveys that the list of resources 
is not limited to those examples set out in the regulatory text. Two of 
the entities (CT DOT and AASHTO) requested that additional resources be 
added to the list of examples, including archaeological resources and 
stormwater banks. The commenters also requested that the term 
``threatened and endangered species critical habitat'' be split up into 
``threatened and endangered species, and critical habitat,'' 
recognizing that they are two separate categories of potential impacts.
    The FHWA and FTA added stormwater and archaeological resources to 
the list of examples as they represent common examples, and split the 
term ``threatened and endangered species'' from ``critical habitat,'' 
given that they represent different concepts.
    Finally, the Partnership for Active Transportation requested that 
``an assessment of opportunities to mitigate negative environmental 
impacts of the transportation infrastructure by expanding access to 
active transportation facilities and completing active transportation 
networks'' be added to the list of examples. The FHWA and FTA decline 
to add the example to the list as it more of a broad concept of 
environmental impacts rather than a particular impact area. However, 
expanding access to active transportation facilities and completing 
active transportation networks will likely be a consideration in the 
transportation planning process.
    The CALTRANS commented on the appropriate scale of the programmatic 
mitigation plan, and inquired whether MPOs may plan on a scale beyond 
its MPA boundaries. The scope and scale of the programmatic mitigation 
plan is outlined within the optional framework of section 
450.214(a)(1)(ii), which states that the plan may be developed on a 
statewide, regional, local, ecosystem, watershed, or any similar scale 
for which the resource category applies.
Section 450.214(b)
    Fifteen entities (AASHTO, CALTRANS, CO DOT, CT DOT, DC DOT, H-GAC, 
ID DOT, MT DOT, ND DOT, NYS DOT, OR DOT, PA DOT, SD DOT, TX, DOT, and 
WY DOT) commented on the proposed language in section 450.214(b), which 
stated: ``If a State chooses to develop a programmatic mitigation plan 
then it shall be developed as part of the statewide transportation 
planning process . . .'' These commenters found the text proposed under 
paragraph (b) to be more restrictive than the text of the statute. 
Specifically, the commenters stated that paragraph (b) should

[[Page 34096]]

preserve the flexibility provided in the statute which allows for 
States and MPOs to develop programmatic mitigation plans within, or 
outside, the statewide and metropolitan planning processes.
    The FHWA and FTA agree with the commenters and modified the 
language in paragraph (b) to provide flexibility for States and MPOs to 
develop programmatic mitigation plans either within the transportation 
planning process or under another authority, independent of the 
transportation planning process. Based on comments received on 
paragraph (b), FHWA and FTA also added a new paragraph (f) to the 
section to provide additional clarity on the flexibility to develop 
programmatic mitigation plans outside of the transportation planning 
process, and then adopt such plans into the transportation planning 
process.
    The CALTRANS inquired about the requirements for public review, and 
whether the requirement for public review under this authority is 
congruent to a formal NEPA review. States and MPOs retain the 
flexibility to adopt a programmatic mitigation plan into the 
transportation planning process by following the process outlined in 
paragraph (b). There are no specific timelines involved for public 
review and comment under the optional framework in the final rule, but 
FHWA and FTA encourage States and MPOs to utilize public review and 
comment timelines that are consistent with their transportation 
planning process. Furthermore, all comments on a programmatic 
mitigation plan received during the public review and comment period 
should be considered when developing the final plan.
Section 450.214(d)
    The CALTRANS noted appreciation for the support for programmatic 
mitigation plans, but expressed concerns about acceptance of such plans 
by Federal and State regulatory agencies. The commenter specifically 
questioned whether rulemaking to govern the regulatory agencies toward 
the goal of reaching a higher level of commitment to programmatic 
mitigation planning activities might be possible.
    The FHWA and FTA note that the statutory framework for programmatic 
mitigation plans that is the subject of this final rule specifically 
requires consultation with the agency or agencies with jurisdiction 
over the resource covered by the programmatic mitigation plan (23 
U.S.C. 169(b)(4)) and in the regulatory text at 23 CFR 450.214(d) and 
320(d). However, the statute does not provide FHWA and FTA with 
authority to affect the responsibility of resource agencies, which must 
address their own statutory requirements concerning the resources under 
their jurisdiction. Consequently, the language found in the NPRM and 
supported by statute is retained with one exception. In paragraph (d), 
FHWA and FTA replaced the word ``developed'' with ``adopted,'' to 
indicate that the adoption process described in paragraph (b) is 
necessary when utilizing a mitigation plan developed under this 
authority for use in future environmental reviews. Section 1306 of the 
FAST Act amends 23 U.S.C. 169(f) to change ``may use'' to ``shall give 
substantial weight to'' and changes ``any other environmental laws and 
regulations'' to ``other Federal environmental law'' such that a 
Federal agency responsible for environmental reviews ``shall give 
substantial weight to'' the recommendations in the programmatic 
mitigation plan when carrying out its responsibilities under NEPA or 
``other Federal environmental law.'' Sections 450.214(d) and 450.320(d) 
of the Final Rule are amended to reflect these changes.
Section 450.214(e)
    Fifteen entities (AASHTO, CALTRANS, CO DOT, CT DOT, DC DOT, H-GAC, 
ID DOT, MT DOT, ND DOT, NYS DOT, OR DOT, PA DOT, SD DOT, TX DOT, and WY 
DOT) commented on preserving the flexibility in the statute for States 
and MPOs to determine whether to develop programmatic mitigation plans, 
citing the voluntary nature of programmatic mitigation plans.
    The FHWA and FTA concur with the commenters and have edited the 
language in the NPRM to clarify that the development of the 
programmatic mitigation plan is entirely optional, as addressed in the 
introductory language of the regulatory text in section 450.214(a). The 
FHWA and FTA encourage the development and use of programmatic 
mitigation plans, but do not require it as part of the transportation 
planning process. Based on comments received on paragraphs (b) and (e), 
FHWA and FTA also added a new paragraph (f) to the section to provide 
additional clarity on the flexibility to develop programmatic 
mitigation plans outside of the transportation planning process, and 
then adopt such plans into the transportation planning process.
Section 450.216 Development and Content of the Long-Range Statewide 
Transportation Plan
    Fifty commenters submitted comments on this section (AASHTO, ASHTD, 
Boone County Resource Mgmt., Braxo Valley COG, Buckeye Hills-Hocking 
Valley RDD, CO DOT, Crystal Hitchings (private citizen), DC DOT, East 
TX Chief Elected Officials/RPO, Florida MPO Advisory Council, FMATS, IA 
DOT, ID DOT, ME DOT, Meramec RPC, MI DOT, Mid-Columbia Economic 
Development District, Mid-Region Rural Planning Agencies TPO and NM 
RTPOs, MO DOT, MT DOT, NADO, NARC, National Association of Working 
Women, National Trust for Historic Preservation, NC DOT, ND DOT, NJ 
DOT, North Carolina Association of RPOs, North Central Pennsylvania 
RPDC, Northern Maine Development Commission, Northern Shenandoah Valley 
Regional Commission, NRDC, NY State Association of MPOs, NYS DOT, OR 
DOT, Partnership for Active Transportation, Region Five Development 
Commission, Region Nine Development Commission, SD DOT, South Alabama 
RPC and RPO, South Plains AOG, Southern Windsor County RPC, TX DOT, 
Transportation for America, Two Rivers-Ottauquechee Regional 
Commission, Upper Minnesota Valley RDC, VA DOT, VT DOT, West Central 
Indiana EDD, WI DOT, and WY DOT). Nineteen of the comment letters were 
from States, 18 were from regional planning organizations, 8 were from 
associations representing public transportation agencies, 4 were from 
advocacy groups, and 1 was from an MPO.
    Several RPOs (Boone County Resource Management, Brazo Valley COG, 
Buckeye Hills-Hocking Valley RDD, East Texas Chief Elected Officials 
RPO, Meramec RPC, Mid-Columbia EDD, Mid-Region Rural TPO and New Mexico 
RTPOs, NADO, North Carolina Association of RPOs, Northern Maine 
Development Commission, Northern Shenandoah Valley Regional Commission, 
Region Five Development Commission, Region Nine Development Commission, 
South Alabama RPC and RPO, South Plains AOG, Southern Windsor County 
RPC, Two Rivers-Ottauquechee Regional Commission, Upper Minnesota 
Valley RDC, and West Central Indiana EDD) and one citizen (Crystal 
Hitchings) commented that there are several regional plans that States 
should consider incorporating (by reference or summary) into their 
long-range statewide transportation plan, particularly in States where 
an RTPO framework is not in place to provide regional long-range 
transportation plans. Specific examples provided include the 
Comprehensive Economic Development Strategies (CEDS), required for EDDs

[[Page 34097]]

recognized by the U.S. Economic Development Administration; and 
regional sustainability plans, recognized by HUD. The commenters stated 
that these are examples of plans that provide a regional perspective on 
transportation and land use that may inform the transportation 
decisionmaking process and encourage coordinated investment across 
Federal and other public program funds. In response to these comments, 
the final rule reflects the statutory provision that requires States to 
cooperate with nonmetropolitan officials with responsibility for 
transportation or the RTPOs, if applicable, when developing the long-
range statewide transportation plan. The RTPOs or nonmetropolitan 
officials with responsibilities for transportation are encouraged to 
share these regional plans with the State during this cooperative 
process. However, this cooperation does not mean that the State must 
incorporate these plans or their investment strategies into the long-
range statewide transportation plan. That is at the discretion of 
individual States.
    The NRDC commented on the section-by-section analysis of the long-
range statewide transportation plan in the NPRM, which states that 
section 450.216 maintains the opportunity for the long-range statewide 
transportation plan to be comprised of policies and/or strategies, not 
necessarily specific projects over the minimum 20-year forecast period. 
The commenter stated that, in addition to policies and/or strategies, 
the long-range statewide transportation plan should also include 
specific projects.
    In response to this comment, FHWA and FTA believe that in section 
23 U.S.C. 135(f), Congress intended to allow States the flexibility to 
develop a long-range statewide transportation plan that includes 
policies and/or strategies and not specific projects. The FHWA and FTA 
have reflected that intention in section 450.216 of the final rule. 
States may, at their discretion, include projects in the long-range 
statewide transportation plan. However, 23 U.S.C. 135(f) and the final 
rule do not require it. No changes are made to this section as a result 
of the comment.
Section 450.216(b)
    Section 1202 of the FAST Act amends 23 U.S.C. 135(f)(8) such that 
the long-range statewide transportation plan shall include 
consideration of the role of intercity buses may play in reducing 
congestion, pollution, and energy consumption. Section 450.216(b) in 
the final rule is amended to include this new provision.
Section 450.216(d)
    Several commenters (AASHTO, MI DOT, NC DOT, and SEMCOG) objected to 
section 450.216(d), which states that the long-range statewide 
transportation plan should integrate the priorities, goals, 
countermeasures, strategies, or projects contained in the HSIP, 
including the SHSP, and the Public Transportation Agency Safety Plan. 
The commenters asked that it be struck from the final rule because it 
is not specifically in the statute. The basis of this provision 
predates the MAP-21. The integration of safety and the priorities, 
goals, countermeasures, and projects of the SHSP into the long-range 
statewide transportation plan was also part of the previous 2007 
planning regulations (23 CFR 250.214(d)).
    The FHWA and FTA believe the importance of safety, particularly the 
early consideration of safety, warrants retaining this provision in the 
final rule. The FHWA and FTA note that compliance with this provision 
is not mandatory under the old rule or under this final rule. Lastly, 
safety is one of the key performance areas identified in MAP-21 for 
performance management of the transportation system and, consequently, 
is part of the MAP-21 mandated performance based planning process. The 
FHWA and FTA therefore left this provision in the final rule as 
proposed.
    The New York Association of MPOs commented that in paragraph 
(d)(2), the language lacks guidance on when targets should be set and 
how frequently they should be updated. The FHWA and FTA respond that 
the timeframe for States and MPOs to set targets is tied to the 
effective dates of the performance management rules, not the planning 
rule. In sections 450.226 and 450.340, the planning rule sets the 
timeframe whereby the performance targets must be reflected in the 
long-range statewide transportation plan and in the MTPs.
    The NYS DOT expressed support for a performance-based approach to 
the development of the long-range statewide transportation plan, with 
more emphasis on data driven program outcomes, whereas its previous 
long-range statewide transportation plans have been policy focused and 
less quantitative in terms of goal setting. The commenter further 
commented on the need for flexibility in the timeframe for updating the 
long-range statewide transportation plan and the necessary coordination 
with MPO long-range planning.
    The FHWA and FTA response to this comment is that the planning NPRM 
and the final rule, in sections 450.226 and 450.340, consistent with 23 
U.S.C. 135(l) and 49 U.S.C. 5304(k) provide for a 2-year transition 
period after the publication of this final rule for the States and MPOs 
to bring their planning documents (long-range statewide plan, MTP, 
STIP, and TIPs) into compliance with these requirements.
Section 450.216(f)
    Section 1202 of the FAST Act amends 23 U.S.C. 135(f)(7) to change 
``should'' to ``shall'' to note that the statewide transportation plan 
``shall'' include a description of performance measures and targets and 
``shall'' include a system performance report. Sections 450.216(f)(1) 
and (2) in the final rule are amended to include this new provision.
    Section 450.216(f)(2) states that the statewide transportation plan 
shall include a system performance report, and subsequent updates, 
evaluating the condition and performance of the transportation system 
with respect to the performance targets, including progress achieved by 
the MPOs in meeting the performance targets in comparison with system 
performance recorded in previous reports. The Florida MPO Advisory 
Council commented that it is unclear if the performance targets 
described in this section relate to those set by the State or those set 
by the MPO, and that it also is not clear the comparison described in 
this section is to State or metropolitan area system performance 
recorded in previous reports.
    The FHWA and FTA response to this comment is that this report shall 
include a description of both State and MPO targets and also a 
description of State and MPO progress at achieving their respective 
targets. This requirement is based on 23 U.S.C. 135(f)(7) and 49 
U.S.C.(f)(7)(B), which state that the long-range statewide 
transportation plan shall include a system performance report and 
subsequent updates evaluating the condition and performance with 
respect to the performance targets, including progress achieved by the 
MPO in meeting the performance targets in comparison with system 
performance recorded in previous reports.
    The WI DOT commented that section 450.216(f)(2) does not address 
the inclusion of performance targets in plans adopted shortly after 
rule publication. The FHWA and FTA response to this comment is that 
sections 450.226 and 450.340 provide for a 2-year transition period 
after publication of the final rule for States and MPOs to bring the 
long-range statewide transportation plan, MTPs, STIPs, and TIPs into 
compliance. The

[[Page 34098]]

IA DOT commented that it is not clear what subsequent updates refers to 
in section 450.216(f)(2). In response, FHWA and FTA refer the commenter 
to a similar comment and response at section 450.324(f)(4).
    The ME DOT sought further clarification on the system performance 
report that must be included with updates to the long-range statewide 
transportation plan. Specifically, the ME DOT asked what would be the 
required cycle for subsequent updates of the long-range statewide 
transportation plan. In response, the MAP-21 and the FAST Act do not 
establish a cycle for updating the statewide long-range transportation 
plan. It is at the State's discretion to decide when to undertake an 
update. However, if a State chooses to update its long-range statewide 
transportation plan after the regulatory phase-in provisions in 
sections 450.226 and 450.340, the State must reflect the new 
requirements in that update.
    The FMATS emphasized the necessary coordination among the States, 
MPOs, and operators of public transportation to establish performance 
targets. The FHWA and FTA agree that coordination between the State, 
MPOs, and operators of public transportation will be critical to both 
setting and achieving performance targets for each of the entities.
    The FMATS also pointed out that fundamentally, the State develops a 
long-range statewide transportation plan that is a policy document, 
whereas the MPO MTP contains a fiscally constrained project list and 
policies. This might create a disconnect in State and MPO coordination. 
The FMATS noted that an MPO has no say in which projects actually are 
implemented, and that may impact the MPO's performance reporting and 
ability to achieve performance targets. In response, FHWA and FTA feel 
strongly that interagency coordination is an important part of 
successful implementation of the 3-C planning process, including the 
new requirements for performance-based planning. Section 450.314 of the 
final rule provides that the States, MPOs, and operators of public 
transportation must identify and document, either through the 
metropolitan planning agreement or other means, their mutual 
responsibilities in the implementing a performance-based approach to 
planning and programming. See section IV(B) (recurring comment themes) 
for more discussion on this issue and FHWA and FTA responses.
Section 450.216(l)
    Section 1202 of the Fast Act amends 23 U.S.C. 135(f)(3)(A)(ii) to 
add adds public ports to the list of entities States shall provide a 
reasonable opportunity to comment on the plan and adds examples of 
private providers of transportation. Section 450.216(l)(2) in the final 
rule is amended to include these new provisions.
Section 450.216(n)
    The AASHTO, ASHTD, ID DOT, MI DOT, MT DOT, ND DOT, SD DOT, and WY 
DOT requested that FHWA and FTA delete the language in section 
450.216(n) that states that the long-range statewide transportation 
plan should be informed by the financial plan and the investment 
strategies from the State asset management plan for the NHS and by the 
public transit asset management plans. The commenters argue that it 
infringes on the States' flexibility to determine the content in their 
long-range transportation plans, including whether to create a policy- 
or project-based plan. See section IV(B) (recurring comment themes) for 
more discussion on this issue and FHWA and FTA responses.
    The VA DOT recommends that FHWA and FTA specifically require that 
development of the long-range statewide transportation plan includes 
consideration or integration of the congestion management plans, 
performance plans and, where applicable, the CMAQ performance plan. The 
FHWA and FTA response is that under the final rule at sections 
450.206(c)(4) and 450.306(d)(4), the States and MPOs are required to 
integrate the goals, objectives, and performance measures from other 
State transportation plans and transportation processes, as well as any 
plans developed pursuant to chapter 53 of title 49, into the statewide 
and metropolitan transportation planning processes. Examples of such 
plans include the HSIP and SHSP, as defined in 23 U.S.C. 148; the State 
Asset Management Plan for the NHS, as defined in 23 U.S.C. 119(e); the 
State Freight Plan (if the State has one), as defined in section 1118 
of MAP-21; the Transit Asset Management Plan, as defined in 49 U.S.C.; 
the Public Transportation Agency Safety Plan, as defined in 49 U.S.C. 
5329(d); and, for certain MPOs in metropolitan areas, the congestion 
mitigation and air quality improvement program performance plan as 
defined in 23 U.S.C. 149(l), as applicable, and the congestion 
management process, as defined in 23 CFR 450.322, if applicable. Since 
the congestion mitigation and air quality improvement performance plan 
and the congestion management process are unique to certain 
metropolitan areas, FHWA and FTA limited the integration of those plans 
to the metropolitan transportation planning process in those areas.
    The Nine to Five National Association of Working Women commented 
that an equitable transportation system is critical to creating 
thriving communities of opportunity. The commenter stated that where 
and how we decide to make transportation investments is critical to 
communities' access to economic opportunity. The commenter further 
stated that low-income and minority communities face tremendous 
barriers in access to transportation that can get them to critical 
places (e.g., school, work, child care, appointments, and grocery 
stores), and that reducing those barriers will require targeted 
investments. The commenter further stated that by developing State and 
metropolitan planning guidance that includes the voices of directly 
affected communities and prioritizes enhanced mobility and opportunity 
for the most vulnerable populations, transit investments can go a long 
way to supporting improved social and economic outcomes in these 
communities. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The National Trust for Historic Preservation commented that 
additional language should be added under section 450.216(i) to state 
that State and local resource protection and historic preservation 
agencies shall be contacted to obtain existing inventories, and the 
State may fund the preparation or updating of such inventories, 
pursuant to this Chapter, if inventories are not current or available.
    In response to this comment, FHWA and FTA note that at the time the 
NPRM was under development, language was added to sections 450.206(b) 
and 450.306(c) to include section 4(f) properties, as defined in 23 CFR 
774.17, as one of several examples to consider for establishing the 
degree of consideration and implementation of the planning factors. 
Section 4(f) properties include land of a historic site of national, 
State, or local significance (23 CFR 774.17). The FHWA and FTA also 
note that under section 450.216(i), it is already provided that 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

[[Page 34099]]

tribal conservation plans or maps, if available, and comparison of 
transportation plans to inventories of natural or historic resources, 
if available. The FHWA and FTA agree that if a State seeks to prepare 
or update local resource protection and/or historic preservation 
inventories as part of their update to the long-range statewide 
transportation plan, they may do so, but are not required.
    Two advocacy groups (NRDC and Transportation for America) commented 
that differences between the State and metropolitan planning sections 
of the proposed rule should be reconsidered. See section IV(B) 
(recurring comment themes) for more discussion on this issue and FHWA 
and FTA responses.
    The NJ DOT commented that similar to the MPO option to use scenario 
planning, many States also use scenario planning in the development of 
their long-range statewide transportation plans. The NJ DOT will be 
considering the use of scenario planning when it undertakes its next 
update of the long-range statewide transportation plan. The FHWA and 
FTA encourage other entities, such as the States, to use scenario 
planning in their transportation planning process as a best practice, 
particularly as part of developing the long-range statewide 
transportation plan.
    The VT DOT recommended incorporating climate resilience as one of 
the components of the statewide transportation planning process. See 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses.
Section 450.216(k)
    Several commenters (AASHTO, CO DOT, DC DOT, ID DOT, MT DOT, ND DOT, 
SD DOT, TX DOT, and WY DOT) commented on the requirement in section 
450.216(k) that a long-range statewide transportation plan shall 
include a discussion of potential environmental mitigation activities 
and potential areas to carry out these activities, and that the State 
shall develop the discussion in consultation with Federal, State, 
regional, local, and tribal land management, wildlife, and regulatory 
agencies. The commenters noted that the consultation referenced in this 
section is too broad and should only relate to applicable Federal, 
State, local, and regional agencies and tribes. Specifically, a State's 
transportation officials should not have to consult on mitigation 
issues in the southern part of the State with local officials from a 
distant northern part of the State and that the final rule should be 
revised to make this clear. The FHWA and FTA agree with this comment 
and have made this change in section 450.324(f)(10) of the final rule.
    The Florida MPO Advisory Council and NARC commented that section 
450.216(k) should also include MPOs on the list of entities with which 
the State must consult when developing the discussion of potential 
environmental mitigation activities in the long-range statewide 
transportation plan. The FHWA and FTA response to this comment is that 
the suggested change is not necessary because States are already 
required to develop the long-range statewide transportation plan in 
cooperation with the affected MPOs under section 450.216(g).
    The MARC commented that it supports the requirements for State 
consultation with Federal, State, tribal, regional, and local land 
management, wildlife, and regulatory agencies when the State is 
developing discussion on potential environmental mitigation activities 
for the long-range statewide transportation plan as described in 
section 450.316(k).
Section 450.216(l)
    In section 450.216(l)(2) of the final rule, public ports has been 
added to the list of interested parties that a State shall provide a 
reasonable opportunity to comment on the proposed long-range statewide 
transportation plan exactly as described in the FAST Act section 1201 
(23 U.S.C. 135(f)(3)(A)(ii)). Also, in section 450.216(l)(2), examples 
of providers of private providers of public transportation have been 
added to the final rule exactly as described in FAST Act section 1202 
(23 U.S.C.(f)(3)(A)(ii)) including intercity bus operators, employer 
based cash-out program, shuttle program, or telework program.
Section 450.216(m)
    On sections 450.216(m) (development and content of the long-range 
statewide transportation plan) and 450.324(f)(11)(iii) (development and 
content of the MTP), the Partnership for Active Transportation 
commented that it strongly supports consideration of innovative 
financing methods in both the long-range statewide transportation plan 
section and the MTP. The commenter further stated that the proposed 
revisions in the NPRM should explicitly encourage consideration of 
innovative financing techniques in the context of active 
transportation. The commenter also stated that many transportation 
planners do not currently consider public-private partnerships as a way 
to finance pedestrian and bicycle projects. The FHWA and FTA believe 
that the existing language in sections 450.216(m) and 
450.324(f)(11)(iii) that encourages an assessment of innovative 
financing techniques is broad based, and is meant to include all 
projects in the plan, including the financing of pedestrian and bicycle 
projects. Therefore, no changes are warranted.
    The CO DOT commented that section 450.216(m), which provides that 
the financial plan for the long-range statewide transportation plan may 
include an assessment of the appropriateness of innovative finance 
techniques (for example, tolling, pricing, bonding public-private 
partnerships, or other strategies) as revenue sources, seems 
inappropriate and that these financing instruments have been around for 
a long time. In response to this comment, FHWA and FTA note that even 
though these techniques might be well-established, this text was 
included to encourage consideration of financing techniques for 
projects early on in the planning process (i.e., during the development 
of the long-range statewide transportation plan). The FHWA and FTA also 
note that this provision is optional. No changes are made to this 
section based on this comment.
Section 450.218 Development and Content of the Statewide Transportation 
Improvement Program
    Forty-eight commenters (Addison County RPC, AASHTO, Boone County 
Resource Management, Brazo Valley COG, Buckeye Hills-Hocking Valley 
RDD, CT DOT, East Texas Chief Elected Officials RPO, FL DOT, FMATS, GA 
DOT, Hitchings (private citizen), IA DOT ID DOT, MA DOT, MD DOT, 
Meramec RPC, Miami-Dade MPO, MI DOT, Mid-Region RTPO and New Mexico 
RPOs, MN DOT, MT DOT, NADO, NARC, NC DOT, ND DOT, NJ DOT, North Central 
PA RPDC, Northern Maine Development Commission, NRDC, NYS DOT, OK DOT, 
Region Five Development Commission, Region Nine Development Commission, 
RTC and NCTCOG, RI DOT, SD DOT, South Alabama RPC and RPO, Southeast 
Alabama RPO, SEMCOG, TriMet, Two Rivers-Ottauquechee Regional 
Commission, TX DOT, Upper Minnesota Valley RDC, US Travel Association, 
VT DOT, WA State DOT, West Central Arkansas Planning and Development 
District, West Central Indiana EDD, WI DOT, and WY DOT) submitted 
comments on this section. Twenty of the comment letters were from 
States, 17 were from regional planning organizations, 5 were from 
associations representing transportation agencies, 4 were from MPOs, 1 
was from an

[[Page 34100]]

operator of public transportation, and one was from an advocacy group.
    The NRDC commented that it would like for the FHWA's Federal-aid 
highway program to be more like the FTA's new starts program. The FHWA 
and FTA response to this comment is that it is outside the scope of the 
final rule.
    The AASHTO commented that it would like for the final rule to 
emphasize that the function of the STIP is to provide an annual listing 
of projects for a period of 4 years to inform the public, partners, and 
review agencies. In response, FHWA and FTA note that sections 
450.218(a)-(q) describe the development and content of the STIP, 
including requirements to include specific project information, the 
horizon for the STIP, and State consultation and cooperation with other 
entities in developing the STIP. Section 450.220 describes FHWA and FTA 
approvals of the STIP.
Section 450.218(b)
    The IA DOT commented on section 450.218(b), seeking clarification 
if the State's approval of the MPO TIPs constitutes approval or 
agreement that MPO projects will help make progress toward State and 
MPO targets. The FHWA and FTA response to this comment is that State 
(Governor) approval of the MPO TIP does not constitute State approval 
or agreement that MPO projects in the TIP will help make progress 
toward State and MPO targets. The FHWA and FTA reiterate that under 
sections 450.206(c)(2) and 450.306(d)(2)(ii) in the final rule, States 
and MPOs are required to coordinate State and MPO target setting, and 
the targets should be consistent to the maximum extent practicable.
Section 450.218(c)
    The MN DOT commented that the requirement to develop the STIP in 
cooperation with affected nonmetropolitan local officials with 
responsibility for transportation or in cooperation with an RTPO, if 
applicable, in section 450.218(c) is in conflict with section 
450.210(d). Section 450.210(d) provides that an RTPO, if established 
and designated by the State, shall develop a regional TIP for 
consideration by the State. The FHWA and FTA do not see this as a 
conflict. States are required to cooperate with nonmetropolitan local 
officials or with an RTPO, if applicable, when developing the STIP. 
However, a State is not required to include an RTPO TIP as part of the 
STIP.
    The OK DOT commented that it does not agree with FHWA and FTA 
interpretation in section 450.218(c) that the STIP shall be developed 
in cooperation with affected nonmetropolitan officials with 
responsibility for transportation or, if applicable, through RTPOs. The 
OK DOT suggested that development should be in consultation rather than 
with cooperation, given 23 U.S.C. 135(g)(2)(B)(i).
    The FHWA and FTA do not agree with this comment and have explained 
the rationale for using the word ``cooperation'' in this context in the 
section-by-section discussion in the NPRM. Specifically, the final rule 
changed the terms ``consultation'' with ``nonmetropolitan'' officials 
to ``cooperation'' with ``nonmetropolitan'' officials and added 
cooperation with RTPOs, if applicable. These changes reflect MAP-21 
revisions to 49 U.S.C. 5304(g)(2)(B)(i). Whereas 49 U.S.C. 5304 is 
nearly the same as 23 U.S.C. 135, this is one instance where changes to 
the two statutes were inconsistent. The MAP-21 revision to section 
135(g)(2)(B)(i) does not change ``consultation'' to ``cooperation.''
    In updating the final rule, FHWA and FTA determined that it was 
appropriate to use the term ``cooperation'' rather than 
``consultation'' in this paragraph. To have two different processes (a 
consultation process for Title 23 actions and a cooperation process for 
Title 49 actions) is overly burdensome. Using the term ``cooperation'' 
is consistent with the comparable changes that MAP-21 made to the long-
range statewide transportation plan provisions (see section 
450.216(h)). Because of the long-standing requirement that the STIP be 
consistent with the long-range statewide transportation plan (section 
450.218(k)), the State should follow a similar coordination process for 
both of these documents. In addition, as defined for purposes of part 
450, cooperation requires States to work more closely with 
nonmetropolitan local officials and RTPOs, if applicable, than 
consultation. This change is also consistent with the overall MAP-21 
approach to increasing the presence of affected nonmetropolitan local 
officials and regional planning organizations in the statewide planning 
process. No changes are made to the final rule based on this comment.
Section 450.218(l)
    The AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, SEMCOG, and WY DOT 
commented that in section 450.218(l), only the cost estimates in the 
STIP should be shown in year of expenditure dollars and not both cost 
estimates and revenue projections. See section 450.324(f) for more 
discussion and FHWA and FTA's responses to this and similar comments on 
this topic.
    The ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT commented that 
although the financial plan is optional, section 450.218(l) requires 
too much detail. The FHWA and FTA response to this comment is that this 
provision provides the State the option of including a financial plan 
with the STIP, and the details provided in this section are intended to 
help a State use the financial plan to assess the availability of 
funding in relation to the costs of implementing the program of 
projects in the STIP.
Section 450.218(o)
    The AASHTO, MI DOT, MT DOT, TX DOT, and WY DOT commented on 
proposed section 450.218(o). The section states that the STIP should be 
informed by the financial plan and the investment strategies from the 
State asset management plan for the NHS and by the public transit asset 
management plans. The commenters suggested that this language is 
undefined, confusing, and could potentially be interpreted and applied 
inconsistently. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The TX DOT commented that the final rule should acknowledge that 
funding sources other than Federal funds may have a role in helping a 
State achieve performance targets. The FHWA and FTA have deleted 
section 450.218(o) from the final rule. The FHWA and FTA agree that 
funding sources other than Federal funds may have a role in helping a 
State achieve performance targets. However, FHWA and FTA believe that 
it would be unnecessarily duplicative to restate this in the final 
rule.
Section 450.218(p)
    The WA State DOT commented that section 450.218(p) should be 
modified to include the phrase ``or phase of the project'' at the end 
of this paragraph and state that the STIP shall include a project, or 
an identified phase of a project, only if full funding can reasonably 
be anticipated to be available or the project or phase of the project 
within the time period contemplated for completion of the project. The 
FHWA and FTA disagree with this comment. The FHWA and FTA believe that 
in the language in 23 U.S.C. 135(g)(5)(E), Congress intended that the 
STIP would be fiscally constrained and that projects in the STIP would 
be fiscally constrained. As a result, FHWA and FTA used the language 
from 23 U.S.C.

[[Page 34101]]

135(g)(5)(E) in this paragraph. This has been a long-standing 
interpretation. By making the change that the commenter requested, it 
would change the meaning of the paragraph by allowing States to include 
project phases in the STIP without demonstrating funding availability 
for the entire project. The result would be such projects and the STIP 
itself would not be fiscally constrained. As such, FHWA and FTA are not 
making changes to the final rule.
Section 450.218(r)
    Section 450.218(r) requires that the STIP include, to the maximum 
extent practicable, a discussion of the anticipated effect of the STIP 
toward achieving the performance targets identified by the State in the 
long-range statewide transportation plan or other State performance-
based plans linking investment priorities to those performance targets. 
It further states that this discussion should be consistent with the 
strategies to achieve targets presented in the long-range statewide 
transportation plan and other performance management plans such has the 
highway and transit asset management plans, the SHSP, the public 
transportation agency safety plan, the CMAQ performance plan, and the 
State freight plan (if one exists). Several commenters (AASHTO, ID DOT, 
MT DOT, ND DOT, NY DOT, SD DOT, and WY DOT) objected to the language 
and suggested instead that this paragraph should track the statutory 
language.
    The FHWA and FTA agree, in part, with this comment and eliminated 
the list of examples of other performance management plans that was 
proposed for inclusion in section 450.218(r) because these examples are 
already listed in section 450.206(c)(4). The FHWA and FTA feel that the 
provisions in section 450.206(c)(4) are sufficient to ensure the 
integration of elements of other federally required performance-based 
plans and processes and so do not need to reiterate. The FHWA and FTA 
retained the phrase ``or other State performance-based plan(s)'' in 
this paragraph because, as noted in 23 CFR 450.216(f)(1), a State is 
not required to include performance targets in the long-range statewide 
transportation plan. For those States that do not include performance 
targets in the long-range statewide transportation plan, this provision 
would make it clear that States are still required to utilize other 
State performance-based plans for those targets. Section 450.218(r) in 
the NPRM became section 450.218(q) in the final rule with the changes 
noted above.
    The MN DOT commented that the STIP should not be the identified 
document for reporting, and that the reporting requirements of section 
450.218(r) are too prescriptive. The MN DOT further commented that it 
would like flexibility in how and where to report.
    In response to this comment, FHWA and FTA believe that the intent 
of Congress in 23 U.S.C. 135(g)(4) is that the STIP will include, to 
the maximum extent practicable, a discussion of the anticipated effect 
of the STIP toward achieving the performance targets established in the 
long-range statewide transportation plan, linking investment priorities 
to those performance targets. The FHWA and FTA have reflected that 
intent in section 450.218(r) of the NPRM, which became 450.218(q) in 
the final rule. As previously discussed, the language in the NPRM at 
section 450.218(r), which required the State to link this discussion in 
the STIP to the other State performance-based plans and processes, was 
removed from the final rule.
    Several commenters (AASHTO, CT DOT, FL DOT, GA DOT, ID DOT, MT DOT, 
NC DOT, ND DOT, NYS DOT, SD DOT, TriMet, WI DOT, and WY DOT) commented 
on section 450.218(r) in the NPRM that States should not be required to 
include information on individual projects and should not be required 
to link individual projects with specific performance measures as part 
of the discussion on the anticipated effect of the STIP toward 
achieving the performance targets in the long-range statewide 
transportation plan or other State performance based plan(s). See 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses. Section 450.218(r) in the NPRM and 
section 450.218(q) in the final rule include requirements for States to 
include a discussion in the STIP of the anticipated effect of the STIP 
(as a whole) toward achieving the federally required performance 
targets identified by the State in the long-range statewide 
transportation plan or other state performance-based plans, linking 
investment priorities (at a program level) to those performance 
targets.
    At least one commenter suggested that it is unlikely that the 
projects within a 4-year program will actually result in a target being 
met. Another commenter suggested requiring the State, not the MPO, to 
be responsible for establishing and tracking performance in the MPO 
TIPs. The FHWA and FTA respond that these comments are outside the 
scope of the final rule and are more appropriate for the other 
performance management rules.
    The AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT commented on 
proposed section 450.218(r) that the performance reporting should only 
be limited to federally required performance measures. The FHWA and FTA 
agree with this comment but do not believe revisions to the regulatory 
text are necessary.
    The AASHTO, CT DOT, IA DOT, MD DOT, NC DOT, VT DOT, and WI DOT 
commented on section 450.218(r) that States should have discretion 
regarding the discussion of the anticipated effect of the STIP toward 
achieving the performance targets. That this may include references to 
such documents as performance reports that are more user friendly. The 
FHWA and FTA agree that States and MPOs should be provided some 
flexibility in how they craft the discussion in the STIP on the 
anticipated effect of the STIP toward achieving the performance 
targets, and that States referencing other reports as part of this 
discussion would be acceptable.
    The IA DOT commented that the phrase ``to the maximum extent 
practicable'' in section 450.218(r) should be clarified with regard to 
the level of analysis required to demonstrate that projects in the STIP 
will help meet performance targets.
    Based on these comments, FHWA and FTA will consider developing 
guidance after this final rule and the other performance management 
final rules are published to provide assistance to the States and MPOs 
on how this requirement might be met and to what extent they should 
demonstrate that the projects (program) in the STIP and MPO TIPs will 
help meet performance targets. Similar comments were submitted on 
section 450.326(d).
    Two States (MN DOT and NJ DOT) commented on section 450.218(r) that 
the requirements for States to discuss in the STIP the anticipated 
effect of the STIP toward achieving performance targets goes too far 
and is overly prescriptive, even with the use of the phrase ``to the 
maximum extent practicable.'' The MN DOT further stated that it 
annually publishes a stand-alone transportation performance report. The 
response to this comment is that FHWA and FTA believe that the intent 
of Congress in 23 U.S.C. 135(g)(4) is that the STIP include, to the 
maximum extent practicable, a discussion of the anticipated effect of 
the STIP toward achieving the performance targets established in the 
long-range statewide transportation plan (or other State

[[Page 34102]]

performance-based plans), linking investment priorities to those 
performance targets.
    The U.S. Travel Association commented that linking investment to 
performance measures is imperative to developing efficient 
transportation networks that provide mobility choices throughout the 
Nation. In response to this comment, FHWA and FTA note that section 
450.218(r) in the NPRM, which became section 450.218(q) in the final 
rule, expressly states the STIP shall include, to the maximum extent 
practicable, a discussion of the anticipated effect of the STIP toward 
achievement of performance targets, linking investment priorities to 
those priorities.
    Several regional planning organizations (Addison County RPC, Boone 
County Resource Management, Braxo Valley Council of Government, Buckeye 
Hills-Hocking Valley RDD, East Texas Chief Elected Officials RPO, 
Meramec RPC, Mid-Region Rural TPO and New Mexico RTPOs, NADO, Northern 
Maine Development Commission, Region Five Development Commission, 
Region Nine Development Commission, South Alabama RPC and RPO, 
Southeast Alabama RPO, Two Rivers-Ottauquechee Regional Commission, 
West Arkansas Planning and Development District, and West Central 
Indiana EDD) and one citizen (Crystal Hitchings) commented that in 
situations where a State has not designated and established RTPOs that 
would develop a regional TIP, the State should refer to the regional 
priorities identified in other regional transportation plans when 
selecting priorities for the STIP (e.g., regional economic development 
plans).
    In response to this comment, in situations where a State has not 
designated and established an RTPO, the final rule requires the State 
to cooperate with nonmetropolitan local officials when developing the 
STIP. This cooperation might include discussion on regional priorities 
identified in other regional transportation plans (e.g., regional 
economic development plans). This cooperation does not mean that States 
have to refer to these other plans as part of the STIP.
    The FMATS commented on NPRM section 450.218(r) that it is essential 
for the States to develop performance targets in full coordination with 
the MPOs and the nonmetropolitan planning areas to ensure that 
performance targets are considered during the development of TIPs and 
STIPs and investment priorities are tied to targets.
    The FHWA and FTA agree that State and MPO coordination is a key 
part of target setting by the States and the MPOs. See section IV(B) 
(recurring comment themes) for more discussion on this issue and FHWA 
and FTA responses. It is also important that MPOs and operators of 
public transportation coordinate in metropolitan areas and that States 
coordinate with rural operators of public transportation as part of 
target setting.
    The Miami-Dade MPO stated that it is important not only for States 
to coordinate the STIP with MPOs, but also important that the STIP be 
consistent with metropolitan plans, especially in TMAs. In response to 
this comment, FHWA and FTA reiterate that the STIP and the TIP must be 
consistent with the long-range statewide transportation plan (section 
450.218(k)) and the MTP (section 450.326(i)), respectively, and that 
the STIP must incorporate the TIP without alteration (section 
450.218(b)).
    The MA DOT commented that it supports transparency within the 
context of the STIP to provide a more useful public document. The FHWA 
and FTA agree with this comment. The STIP is a key document for 
identifying the States program of federally funded projects, and 
through the public involvement process, it provides transparency on the 
States planned expenditure of Federal funds on projects.
    The NRDC commented that they disapprove of the differences between 
the sections covering STIPs and those covering TIPs, particularly the 
use of the terms ``may'' and ``shall.'' The NRDC argues that the 
provisions in the final rule for the State STIP should mirror those for 
the MPO TIP. For example, in section 450.218(l), the STIP may include a 
financial plan, whereas in section 450.324(f)(11), the TIP shall 
include a financial plan. See section IV(B) (recurring comment themes) 
for more discussion on this issue and FHWA and FTA responses.
    Section 450.218(r) in the NPRM requires that the STIP shall 
include, to the maximum extent practicable, a discussion of its effect 
toward achieving the performance targets identified by the State in the 
long-range statewide transportation plan or other state performance-
based plans. The NJ DOT commented that using the STIP as the vehicle 
for reporting is too prescriptive.
    The FHWA and FTA respond that they believe it was the intent of 
Congress in 23 U.S.C. 135(g)(4) that the STIP shall include, to the 
maximum extent practicable, a discussion of the anticipated effect of 
the STIP toward achieving the performance targets established in the 
statewide transportation plan, linking investment priorities to those 
performance targets. Therefore, FHWA and FTA included this provision in 
the final rule at section 450.218(q).
    The NJ DOT also stated that the STIP and the final rule should not 
require States to include performance information on specific projects 
or link individual projects to specific performance measures. The FHWA 
and FTA respond that this comment is outside the scope of the final 
rule and will depend on the specific performance measures identified in 
the other FHWA and FTA rules or guidance.
    The NJ DOT further stated that large portions of the NHS are 
supported by non-Federal funding sources, such as independent toll 
authorities, and that projects funded by non-Federal sources may appear 
in the STIP for information purposes. The commenter further stated that 
the final rule should acknowledge that funding sources other than 
Federal funds may have a role in meeting performance targets. The FHWA 
and FTA agree that funding sources other than Federal funds may be used 
on the NHS. However, the FHWA and FTA do not feel that it is necessary 
to mention this specifically in the final rule because section 
450.218(g) already states that the STIP is only required to include 
projects proposed for funding under 23 U.S.C. and 49 U.S.C. Chapter 53.
Section 450.220 Self-Certification, Federal Findings, and Federal 
Approvals
    Seven advocacy groups (Community Labor United, Front Range Economic 
Strategy Center, National Association of Social Workers, Partnership 
for Working Families, Policy Link, The Leadership Conference on Civil 
and Human Rights, and United Spinal Association) provided comments on 
this section. They provided comments about the relationship of the 
transportation planning process to traditionally underserved 
populations, including EJ and Title VI of the Civil Rights Act of 1964. 
See section IV(B) (recurring comment themes) for more discussion on 
this issue and FHWA and FTA responses.
Section 450.222 Project Selection From the STIP
    Three commenters (AASHTO, NC DOT, and WA State DOT) submitted 
comments on this section. The AASHTO requested that the phrase ``with 
responsibility for transportation'' be removed from the phrase

[[Page 34103]]

``nonmetropolitan local officials with responsibility for 
transportation'' in section 450.222(c) because it is redundant with the 
definition of the term ``local officials'' that is provided in section 
450.104.
    The FHWA and FTA response to this comment is that the proposed 
definition for local officials was removed from the final rule (see 
discussion under 450.104 in the section by section). However, the final 
rule retains the long-standing definition for nonmetropolitan local 
officials. The phrase ``with responsibility for transportation'' means 
elected and appointed officials of general purpose local government who 
have responsibility (decisionmaking authority) for transportation 
either through ownership, operation, maintenance, implementation, or 
other means.
    The NC DOT requested clarification on the definition of a 
``nonmetropolitan local official with responsibility for 
transportation'' in paragraph (c). The FHWA and FTA response is that 
section 450.104 contains a definition for nonmetropolitan local 
official. In section 450.104, a nonmetropolitan local official with 
responsibility for transportation means elected and appointed officials 
of general purpose local government in a nonmetropolitan area with 
responsibility for transportation.
    The WA State DOT sought clarification on how FHWA or FTA could 
approve a project or know of the funding for operating assistance if 
the project is not programmed in the STIP. The commenter recommended 
clarifying these situations in section 450.222(a).
    In response, projects are funded through grant requests that are 
submitted to FTA by eligible recipients for authorization and requests 
to authorize projects and obligate funds submitted to FHWA by the 
States. Section 450.222(a) refers to sections 450.218(g) and 
450.220(d), which describe specific situations where projects do not 
have to be in the STIP. Section 450.220(d) is a long-standing 
regulatory provision that allows FHWA and FTA to approve operating 
assistance for specific projects or programs without including a 
project or program in the STIP. The FHWA and FTA also note that, as 
described in section 450.218(g), there are also other categories of 
projects that do not have to be included in the STIP. Based on these 
comments, FHWA and FTA made no changes to the final rule.
Section 450.224 Applicability of NEPA to Statewide Transportation Plans 
and Programs
    The AASHTO, Boone County Resource Management, Brazo Valley COG, 
Buckeye Hills-Hocking Valley RDD, Crystal Hitchings, East Texas Chief 
Elected Officials RPO, Meramec RPC, Mid-Region Rural TPO and New Mexico 
RTPOs, NADO, North Carolina Association of RPOs, North Central 
Pennsylvania RPDC, Northern Maine Development Commission, Northern 
Shenandoah Valley Regional Commission, Region XII COG, South Alabama 
RPC and RPO, Southern Windsor County RPC, Two Rivers-Ottauquechee 
Regional Commission, West Central Arkansas Planning and Development 
District, and West Central Indiana EDD submitted comments on this 
section to the docket.
    The commenters suggested that RTPOs should be mentioned as 
contributors to the NEPA review process since they may be involved in 
establishing the purpose and need for subarea corridor plans. In 
response to this comment, FHWA and FTA feel that RTPOs could contribute 
to the purpose and need for the NEPA review process given their role in 
conducting regional planning. However, it is up to the State and the 
RTPO in their cooperative planning process to determine the role of the 
RTPO in contributing to purpose and need in NEPA review. Many of the 
planning products developed thorough an RTPO's regional planning 
process, such as the regional transportation plan and corridor studies, 
are potentially helpful toward contributing to the purpose and need for 
a project. This supports stronger linkages between the planning and 
environmental processes and provides an opportunity to streamline the 
project development process.
    The FHWA and FTA do not believe that a change is warranted in the 
final rule because the establishment of RTPOs and their use to 
contribute to purpose and need for a project is optional. The FHWA and 
FTA will consider opportunities for including discussion on potential 
roles for RTPOs in contributing to PEL in future guidance, case 
studies, and peer exchanges.
    The AASHTO commented that the new authority for PEL described in 
section 1310 of the MAP-21 makes the project development process more 
complex and cumbersome. The AASHTO recommends that existing authorities 
for PEL under appendix A to the final rule be retained. The FHWA and 
FTA response to this comment is that this section 450.224 is not 
affected by section 1310 of MAP-21. The language in sections 450.212 
and 450.318 is affected by the new authorities for PEL that resulted 
from section 1310 of the MAP-21. See discussion on those sections in 
the preamble and in the final rule for details. The FHWA and FTA have 
made no changes to the final rule based on this comment.
Section 450.226 Phase-In of New Requirements
    Thirty-six commenters (AASHTO, AK DOT, Albany MPO, ASHTD, 
California Association for Coordinated Transportation, CO DOT, CT DOT, 
DC DOT, DRCOG, ID DOT, MT DOT, ND DOT, SD DOT, GA DOT, H-G AC, IA DOT, 
MD DOT, ME DOT, MI DOT, MN DOT, MO DOT, NADO, NARC, NC DOT, NJ DOT, 
NYMTA, NYS DOT, OR DOT, PSRC, RI DOT, San Luis Obispo MPO, SEMCOG, TX 
DOT, WA State DOT, WI DOT, and WY DOT) submitted comments on this 
section. Twenty-five of the comment letters were from States, six were 
from MPOs, three were from associations, one was from an operator of 
public transportation, and one was from an advocacy group.
    Many of the commenters (AASHTO, AK DOT, Albany MPO, ASHTD, CO DOT, 
CT DOT, GA DOT, H-GAC, IA DOT, MD DOT, MI DOT, MN DOT, MO DOT, NARC, NC 
DOT, NYS DOT, PSRC, RI DOT, San Luis Obispo COG, SEMCOG, and TX DOT) 
suggested that all of the new performance management requirements final 
rules should have a single effective date and that the planning 
requirements should be coordinated with the implementation of the other 
performance management requirements. The commenters argued that a 
single effective date would prevent States and MPOs from creating 
conflicts in establishing and incorporating targets with differing time 
periods and performance measures during the planning process. See 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses.
    The NYS DOT commented that sections 450.226(a)-(f) should use the 
phrase ``substantially meets the requirements in this part'' instead of 
``meets the requirements in this part.'' In response, FHWA and FTA 
believe that this clarification would not change the meaning of this 
section and is not necessary. No changes are made as a result of this 
comment.
    One commenter suggested that FHWA and FTA consider changing the 
language in the final rule such that only STIP updates would be 
required to

[[Page 34104]]

comply with the performance management requirements after the 2-year 
transition period instead of requiring compliance with STIP amendments 
and STIP updates. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    One commenter stated that the phase-in schedule is unclear. See 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses.
    The AASHTO, ID DOT, MT DOT, ND DOT, NJ DOT, NYS DOT, SD DOT, and WY 
DOT commented that in sections 450.226(e) and 450.226(f), the phrase 
``meets the performance based planning requirements'' as part of the 
larger phrase ``FHWA/FTA will only approve an updated or amended STIP 
that is based on a statewide transportation planning process that meets 
the performance based planning requirements in this part and in such a 
rule,'' is unnecessary and overreaching and should be deleted. See 
section 450.340 for a detailed discussion and response on this comment.
    The IA DOT asked whether the 2-year compliance date also applies to 
amendments to long-range statewide transportation plans. See section 
IV(B) (recurring comment themes) for more discussion on this issue and 
FHWA and FTA responses.
    The WI DOT questioned how States would demonstrate coordination 
with nonmetropolitan local officials in the development of the long-
range statewide transportation plan and the STIP. In response to this 
comment, FHWA and FTA note that, as described in section 450.210(b), 
States must have a documented process for cooperating with 
nonmetropolitan local officials, that is separate and distinct from the 
public involvement process, and provides opportunity for 
nonmetropolitan local official participation in the development of the 
long-range statewide transportation plan and the STIP. The State is 
required to review and solicit comments from nonmetropolitan local 
officials regarding the effectiveness of the cooperative process at 
least once every 5 years (section 450.210(b)(1)). The FHWA and FTA 
further note that the final rule defines cooperation in section 
450.104. Cooperation means that the State and the nonmetropolitan local 
officials involved in carrying out the transportation planning and 
programming processes work together to achieve a common goal or 
objective. The FHWA and FTA believe that evidence that the State is 
following its documented process for cooperating with nonmetropolitan 
local officials helps to demonstrate that the requirement for 
cooperation with nonmetropolitan local officials in the development of 
the long-range statewide transportation plan and the STIP is being met.

Subpart C--Metropolitan Transportation Planning and Programming

Section 450.300 Purpose
    One comment was received on this section. While the RI DOT agrees 
with, and supports the performance-based approach to the planning 
process described in the NPRM, they are concerned with balancing the 
need for a performance-based approach and public participation. In 
response, FHWA and FTA acknowledge that public participation is an 
important part of the statewide and nonmetropolitan and the 
metropolitan transportation planning processes, and that the use of a 
performance-based approach to the planning process by the States and 
the MPOs does add to the complexity of the public participation 
process. The FHWA and FTA note that States and MPOs should engage the 
public in the performance-based planning process and consider their 
input when making decisions about system performance, including when 
setting performance targets for performance measures and making 
investment decisions for the statewide long-range transportation plan, 
MTP, STIP, and TIP.
    Sections 1202 and 1201 of the FAST Act, codified at 23 U.S.C. 
135(a)(2) and 23 U.S.C. 134(a)(1) respectively, added intermodal 
facilities that support intercity transportation, including intercity 
bus facilities and commuter van pool providers to the purpose of the 
statewide and metropolitan multimodal transportation planning 
processes. The Final Rule at sections 450.200 and 450.300 is amended to 
reflect this change.
    Section 1201 and 1202 of the FAST Act amends 23 U.S.C. 134(a)(1) 
and adds ``takes into consideration resiliency needs'' to the purpose 
of the of the metropolitan transportation planning process and the 
statewide and nonmetropolitan transportation planning process (23 
U.S.C. 135(a)(2)). The Final Rule at sections 450.300(a) and 450.200 
are amended to add this change.
Section 450.302 Applicability
    Section 450.302 discusses the applicability of subpart C to 
organizations and entities responsible for the transportation planning 
and programming processes in MPAs. Subpart C are the provisions for 
metropolitan transportation planning and programming. No comments were 
received on this section. The FHWA and FTA did not propose any changes 
in the NPRM or make any changes in the final rule to this section.
Section 450.304 Definitions
    Section 450.304 describes the terms defined and used in this 
subpart C. No comments were received on this section. The FHWA and FTA 
did not propose any changes in the NPRM or make any changes in the 
final rule.
Section 450.306 Scope of the Metropolitan Transportation Planning
    Comments were received from Albany MPO, AMPO, APTA, ARTBA, Board of 
the French Broad River MPO, California Association for Coordinated 
Transportation, CALTRANS, Capital Area MPO, Charlotte MPO, Community 
Labor United, CT DOT, DC DOT, DVRPC, Enterprise Community Partners, 
Florida MPO Advisory Council, FMATS, Front Range Economic Strategy 
Center, Houston MPO, MAG, MARC, Maui MPO, MD DOT, ME DOT, Memphis MPO, 
MET Council, MTC, MN DOT, NACTO, NARC, National Association of Social 
Workers, National Housing Conference, National Trust for Historic 
Preservation, NCTCOG/RTC, NJ DOT, NJPTA, Northeast Ohio MPO, New York 
Association of MPOs, NRDC, NYMTA, NYMTC, NYS DOT, OK DOT, PA DOT, 
Partnership for Active Transportation, Partnership for Working 
Families, Policy Link, Portland Metro, Public Advocates, River to Sea 
TPO, SACOG, San Luis Obispo MPO, SANDAG, Santa Cruz County MPO, SCAG, 
Sierra Club, SJCOG, South Florida MPO, TriMet, TX DOT, United Spinal 
Association, VA DOT, WA State DOT, Westchester County Department of 
Public Works, WFRC, Wilmington MPO, and WMATA. Twenty-three comments 
were received from MPOs, 15 from advocacy organizations, 13 from 
States, 6 from transportation associations, 4 from operators of public 
transportation, and 1 from a local government.
    Sections 1202 and 1201 of the FAST Act amended 23 U.S.C. 134(h)(1) 
and 23 U.S.C. 135(d)(1) respectively to add two new planning factors to 
the scope of the statewide and nonmetropolitan and the metropolitan 
transportation planning processes: Improve resiliency and reliability 
of the transportation system and reduce or mitigate stormwater impacts 
of surface transportation; and enhance travel and tourism. The Final 
Rule at sections 450.206(a)(9) and (10)

[[Page 34105]]

and 450.306(b)(9) and (10) are amended to reflect these new planning 
factors.
    The San Luis Obispo COG and SCCRTC commented about issues with 
State and MPO coordination on performance based planning and 
programming. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    Section 450.306(d)(2) discusses the establishment of performance 
targets by the MPO. The Memphis Urban Area MPO commented that the final 
rule should clarify to what extent parties should proceed with 
harmonized targets. The FHWA and FTA response to this comment is that 
section 450.306(d)(2)(i) requires States and MPOs to coordinate target 
setting to ensure consistency, to the maximum extent practicable, for 
the measures described in 23 U.S.C. 150(c). Section 450.306(d)(2)(iii) 
requires MPOs to coordinate with public transportation operators, to 
the maximum extent practicable, when selecting performance targets that 
address performance measures described in 49 U.S.C. 5326(c) and 
5329(d). No changes were made based on these comments.
    Section 450.306(d)(4) in the NPRM would require an MPO to integrate 
into the metropolitan transportation planning process, directly or by 
reference, the goals, objectives, performance measures, and targets 
described in other State transportation plans and transportation 
processes, and any plans developed under 49 U.S.C. chapter 53 by 
operators of public transportation. Examples of such plans include the 
State asset management plan for the NHS, described under 23 U.S.C. 
119(e); the transit asset management plan, described under 49 U.S.C. 
5326; the SHSP, described under 23 U.S.C. 148; and the Public 
Transportation Agency Safety Plan, described under 49 U.S.C. 5329(d). 
The Albany MPO, AMPO, DVRPC, NARC, NYMTC, New York State Association of 
MPOs, PA DOT, and San Luis Obispo COG commented that this requirement 
appears to be in conflict with sections 450.306(d)(2)(i), (ii), and 
(iii), which state that each MPO shall establish performance targets 
and the selection of targets shall be coordinated with the State and, 
to the maximum extent practicable, operators of public transportation. 
The FHWA and FTA response to this comment is that these provisions do 
not conflict. They reflect the need for close coordination among 
States, MPOs, and operators of public transportation during the target 
setting process to ensure that the targets are coordinated and 
consistent to the maximum extent practicable. This would suggest that 
coordination during the development of other performance-based plans 
(such as asset management plans, safety plans, freight plans, and 
congestion plans) is also desirable because these plans could affect 
the performance targets and the investments that support those targets 
set by the State, MPO, and the operator of public transportation. Both 
of these provisions are based on statute.
    The AMPO commented on section 450.306(d)(4) that it is concerned 
about what the integration of other performance-based plans and 
processes into the metropolitan transportation planning process might 
mean. The FHWA and FTA response to this comment is that integration of 
other performance-based plans and processes into the metropolitan 
transportation planning process means, as described in section 
450.306(d)(4), that an MPO integrates the goals, objectives, 
performance measures, and targets described in State transportation 
plans and processes, and any plans developed by operators of public 
transportation under 49 U.S.C. chapter 53, into the metropolitan 
transportation planning process. The FHWA and FTA believe that this 
integration means that as MPOs develop the MTP and TIP as part of their 
metropolitan transportation planning process, they should be 
considering the goals, objectives, performance measures, and targets 
that are described in these other performance-based plans and 
processes. Examples of these performance-based plans and processes are 
included in section 450.306(d)(4).
    The Metropolitan Council MPO commented on section 450.306(d)(4) 
concerning the required integration of elements of other State 
performance based plans and processes. It suggested that the MPO should 
determine which plans should be integrated into its performance-based 
planning process. In response, FHWA and FTA note that the statutory 
requirement, at a minimum, is for the integration of elements (goals, 
objectives, performance measures, and targets) of other federally 
required performance-based plans and processes developed by the State 
or recipients of assistance under chapter 53. An MPO would only 
integrate those elements that are appropriate to the MPA of the MPO. In 
developing this provision, FHWA and FTA closely followed the statutory 
provisions. The FHWA and FTA have listed examples of these federally 
required plans in this section.
    One operator of public transportation (WMATA) commented that the 
agency level plans that are required to be integrated into the planning 
process under this paragraph have limited direct relevance to the MAP-
21's overarching mandate for effective performance management of 
transportation systems. The WMATA further noted that these plans are 
relevant at the agency level, but not at the larger transportation 
system level.
    The FHWA and FTA respond that the requirement to integrate elements 
of other performance-based plans into the transportation planning 
process is limited to elements of the federally required State 
transportation plans and processes and any plans developed by operators 
of public transportation under 49 U.S.C. chapter 53. A list of examples 
is provided in paragraph (d)(4) of this section.
    The AMPO, APTA, Metropolitan Council MPO, and WFRC commented that 
the use of performance measures and targets should be programmatic and 
not project specific. The FHWA and FTA response to this comment is that 
it is outside of the scope of the final rule and more appropriate to 
other performance management rules. This final rule does not establish 
performance measures or the target setting process.
    Several commenters (AMPO, APTA, Board of the French Broad River 
MPO, and CALTRANS) commented that, under the performance management 
regulations, existing data collection and reporting mechanisms should 
be utilized whenever possible and standards should not be created 
outside of the existing structure. The commenters suggested that the 
creation of new data collection and reporting requirements would be 
expensive, unclear, potentially duplicative, and ultimately 
counterproductive. The FHWA and FTA response to this comment is that it 
is outside of the scope of the final rule.
    The WA State DOT commented on section 450.306(d)(4) that it is 
unclear how an MPO can integrate an unconstrained plan into a 
constrained MTP. The FHWA and FTA response to this comment is that 
section 450.306(d)(4) does not require an MPO to integrate an 
unconstrained plan into a constrained MTP. Section 450.306(d)(4) 
requires an MPO to integrate the goals, objectives, performance 
measures, and targets described in other State transportation plans and 
processes, either directly or by reference, into the metropolitan 
transportation planning process.
    The NRDC noted that it was in favor of the integration of other 
plans into the transportation planning process as described in sections 
450.206(c)(4) and

[[Page 34106]]

450.306(d)(4). The commenter further stated that it would like to 
include other plans such as FEMA Hazard Management Plans and existing 
regional plans. See discussion and the FHWA and FTAs response to this 
comment in section 450.206(c)(4).
    The APTA commented that transit agencies operate with different 
management structures and operating environments and across varying 
modes and sizes. The APTA suggested that performance measures that do 
not take into account these divergent operating situations would risk 
failure. The APTA further stated that individual agencies must be 
allowed to set their own targets and that they must be simple, 
understandable, and high-level to be meaningful to the process. The 
FHWA and FTA response to this comment is that it is outside the scope 
of the final rule.
    The California Association for Coordinated Transportation stated 
that it agrees with the new provisions for performance-based planning 
and programming. However, it is concerned that one size does not fit 
all as there are great differences between urban and rural communities.
    The CALTRANS commented that the final rule should require States to 
consider the impact of VMT during the development of long-range 
statewide transportation plans and MTPs. The CALTRANS also commented 
that FHWA and FTA should coordinate the development of any transit-
related performance measures to ensure the identified metrics are 
comparable to performance measures for other transportation modes. The 
FHWA and FTA response is that these comments are outside the scope of 
the final rule.
    The CALTRANS stated that FHWA and FTA should specifically require 
that Tribes be consulted when performance targets are being set due to 
the lack of data on many Tribal lands. The FHWA and FTA response to 
this comment is that under section 450.208(a)(5), in carrying out the 
statewide transportation planning process, States are required to 
consider the needs of Tribal governments that have jurisdiction over 
land within the boundaries of the State. Similarly, section 450.316(c) 
requires MPOs to appropriately involve Tribal governments in the 
development of the MTP and TIP when the MPA includes Tribal lands. 
Because MPOs are required to describe targets in the MTP (section 
450.324(f)(3)) and report on target achievement in the TIP (section 
450.326(d)), FHWA and FTA believe the involvement of Tribal governments 
should include involvement during the development of federally required 
performance targets for the national performance measures.
    The AMPO and APTA commented that the final rule should recognize 
the unique timing, durations, and requirements of long-range statewide 
transportation plans, MTPs, and individual system transit asset 
management plans and that FHWA and FTA should not attempt to alter 
those unique processes to somehow make them fit neatly together. The 
FHWA and FTA agree with this comment. Consistent with MAP-21, FHWA and 
FTA developed phase-in provisions in the final rule (sections 470.226 
and 450.340). The final rule takes into consideration the established 
planning update cycles for the States and the MPOs. The phase-in does 
not require a State or MPO to deviate from its established planning 
update cycle to implement changes made by this section. States and MPO 
shall reflect the changes made to their transportation plan and to the 
STIP or TIP not later than 2 years after the date of issuance of the 
final performance management rules for the performance management 
requirements.
    The APTA commented that performance measures should remain 
unchanged over a number of years. The APTA commented that these 
performance targets are unlikely to change significantly from year-to-
year so updating should not be necessary on an annual basis. The FHWA 
and FTA response to this comment is that it is outside of the scope of 
the final rule.
    The ARTBA commented that prior to MAP-21, the mission of the 
Federal highway program was clouded, and that since MAP-21, the 
establishment of national performance measures by FHWA and FTA will 
form the basis for Federal highway investment. In response to this 
comment, FHWA and FTA reiterate that sections 450.206(c)(1) and 
450.306(d)(1) in the final rule provide that the statewide and the 
metropolitan transportation planning processes shall provide for the 
establishment and use of a performance-based approach to transportation 
decisionmaking to support the national goals described in 23 U.S.C. 
150(b) and the general purposes described in 49 U.S.C. 5301. The 
commenter provided specific examples of suggested performance measures 
for consideration by FHWA and FTA. See section IV(B) (recurring comment 
themes) for more discussion on this issue and FHWA and FTA responses.
    The Capital Area MPO suggested that the 180-day deadline required 
for MPOs to select performance targets after the State and/or operator 
of public transportation sets performance targets should be changed to 
2 years. The DC DOT commented that the 180-day period should be changed 
to 1 year to account for the fact that there are multiple States (DC 
DOT, MD DOT, and VA DOT) in the Washington, DC area, each of which may 
set different performance targets, and the MPO would set performance 
targets after the States.
    The FHWA and FTA do not agree with these comments. The FHWA and FTA 
believe the final rule should reflect the 180-day statutory requirement 
and reiterate the importance of interagency coordination during the 
target setting process to achieve consistency of the State and MPO 
targets to the maximum extent practicable. In order to achieve the 1-
year time frame for setting of State targets and the 180-day 
requirement for MPOs to set targets after the State sets targets, State 
and MPO coordination on target setting is critical. See section IV(B) 
(recurring comment themes) for more discussion on this issue and FHWA 
and FTA responses.
    The FMATS commented that after the initial round of State, MPO, and 
public operator of transportation target setting, it would be helpful 
for a deadline to be set by the States regarding target updates so that 
the MPOs and operators of public transportation have a predictable and 
scheduled deadline for their subsequent target updates. The FHWA and 
FTA response to this comment is that it is outside the scope of the 
final rule. The final rule and MAP-21 require coordination between the 
State, MPOs, and operators of public transportation when setting 
performance targets for the federally required performance measures.
    The TX DOT commented that there should be one effective date for 
all of the performance management rules to enable the States and MPOs 
to work together and ensure the necessary data and analysis techniques 
are available. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The MAG commented that the NPRM does not clearly define the term 
``system.'' It would be important to define the term if the measures 
are to be consistent across the different components of the system. The 
FHWA and FTA response to this comment is that the definition of the 
term ``system'' will vary depending on the type of program or 
performance measure being discussed. For the purposes of this final 
rule, the definition should remain flexible in order to preserve the

[[Page 34107]]

necessary distinctions in subsequent performance measure rules.
    Several commenters (H-GAC, MARC, Maricopa Association of 
Governments, and NCTCOG/RTC) emphasized the importance of coordination 
among all metropolitan planning partners, including the States, MPOs, 
and operators of public transportation for successful implementation of 
performance management. See section IV(B) (recurring comment themes) 
for more discussion on this issue and FHWA and FTA responses.
    At least two commenters (CT DOT and NJ DOT) suggested that FHWA and 
FTA provide sufficient flexibility such that a State and MPO might 
establish targets through the coordination process that are either the 
same or complementary. The FHWA and FTA response to this comment is 
that State and MPO targets are required to be consistent to the maximum 
extent practicable (section 450.206(c)(2)).
    The NARC commented that the State or local agencies often have a 
decisive role in determining which projects are constructed. The NARC 
commented that this leaves MPOs in a difficult position in that they 
will be held accountable for progressing toward their stated targets, 
but are in a limited position to decide which projects actually get 
built.
    The FHWA and FTA respond that this comment highlights the need for 
coordination between the States, MPOs, and operators of public 
transportation during the target setting process. This coordination 
should include the process of deciding investment priorities for the 
MPA that contribute toward achievement of the MPOs performance targets. 
It also highlights the importance of the MPO MTP and the TIP. When 
setting targets, MPOs should consider selecting targets in coordination 
with the State that are reasonable and achievable. The investment 
priorities that are identified by the MPO in cooperation with its 
member agencies in the metropolitan transportation plan and the TIP 
should support the achievement of the MPO's performance targets. As 
such, the cooperatively developed and adopted MTP and TIP that are 
prepared by the MPO become key documents for discussing the goals, 
objectives, performance measures, and targets for a metropolitan 
region. The projects and strategies in the cooperatively developed MTP 
and TIP should support achievement of the performance targets. The MPOs 
and State DOTs are accountable for meeting the performance-based 
planning and programming process requirements discussed in this final 
rule and 23 U.S.C. 134 and 135. The FHWA and FTA will periodically 
review MPO and State DOT accountability for the implementation of the 
performance-based planning and programming process requirements of this 
final rule as part of the TMA MPO planning certification reviews 
required under section 450.336 and the planning finding required under 
section 450.220. Under these same sections, MPOs and State DOTs are 
required to self-certify compliance with these performance-based 
planning and programming requirements as part of the broader 
requirements for transportation planning under 23 U.S.C. 134 and 135. 
Through the self-certifications, the certification reviews, and the 
planning finding, MPOs and States will be held accountable by FHWA and 
FTA for the implementation of the performance based planning process 
requirements of this rule.
    Many comments were received on the topic of interagency 
coordination in relation to the new requirements for performance-based 
planning and programming in section 450.306(d). The DC DOT and the 
Northern New Jersey Transportation Planning Authority commented on the 
difficulty of coordinating target setting in situations where there may 
be multiple States, MPOs, and/or multiple operators of public 
transportation involved, such as in bi-State or tri-State metropolitan 
regions. The MTC, SACOG, SANDAG, SCAG, and SJCOG, commented on the 
difficulty of coordination on target setting when there are a large 
number of agencies. The MTC, SACOG, SANDAG, SCAG, and SJCOG further 
stated that funding constraints may make it difficult to move in the 
desired direction for many performance targets, and that they are 
concerned about the implementation costs and resources required of 
smaller MPOs. The WA State DOT commented that there is a need for more 
explicit explanations on the relationships and roles between the States 
and MPOs. The commenter further stated that it is unclear if MPOs are 
required to match the targets set by the State.
    The FHWA and FTA respond that States and MPOs are each required to 
set performance targets for the federally required performance 
measures. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The Florida MPO Advisory Council and River to Sea TPO expressed 
their concern about the potential of a direct linkage between project 
funding and performance-based planning and programming. Specifically, 
they expressed concern that States that have not performed well in 
certain areas would receive larger shares of discretionary funding to 
help them address those areas where they underperform. The FHWA and FTA 
response to this comment is that neither the NPRM nor the final rule 
proposed to tie funding allocations for discretionary funding programs 
to performance.
    The TriMet commented that individual transit agencies operate with 
widely differing conditions and that they must be allowed to set their 
own targets. The FHWA and FTA response to this comment is that transit 
agency target setting for specific transit related performance measures 
will be addressed in separate NPRMs and is outside the scope of the 
final rule.
    The MD DOT commented that the implementation of the final rule, 
including the performance-based planning and programming provisions, 
should not undermine the shared goal of reducing project delivery time 
frames. The FHWA and FTA response to this comment is that the scope of 
the transportation planning process, as described in 23 U.S.C. 
135(d)(2)(B), is supposed to support the national goals described in 23 
U.S.C. 150(b) and 49 U.S.C. 5302(c). Reduced project delivery delay is 
one of the seven national goal areas identified in 23 U.S.C. 150(b). 
This is reflected in the final rule at section 450.206(c)(1).
    The Memphis Urban Area MPO and the NRDC commented that they would 
like to see the standardization of data collection at the State or 
Federal level as part of the implementation of performance management. 
The FHWA and FTA response to this comment is that it is outside the 
scope of the final rule.
    The MN DOT asked if there is a distinction made between MPOs for 
regions with populations below 200,000 and MPOs for TMAs for 
coordination efforts on target setting. The FHWA and FTA response to 
this comment is that all States and all MPOs, regardless of size, are 
required to set performance targets and coordinate with each other or 
operators of public transportation when setting performance targets.
    Several commenters (NARC, San Luis Obispo COG, SSC RTC, and WFRC) 
suggested that locally developed goals, performance measures, and 
targets should also be considered in the metropolitan planning process. 
The FHWA and FTA agree with this comment. The States and MPOs are 
encouraged to include locally developed goals, performance measures, 
and targets as part of the metropolitan transportation planning 
process.

[[Page 34108]]

    The River to Sea TPO commented that it is concerned that 
performance-based planning will limit their decisionmaking and ability 
to take into account other factors such as economic development and 
redevelopment. In response, FHWA and FTA encourage, but do not require, 
States and MPOs to include goals, objectives, and performance measures 
in their performance-based transportation planning processes that are 
locally determined; provided that, at a minimum, they include the 
performance measures that are federally required.
    The Westchester County Department of Public Works and 
Transportation commented that MPOs should have the flexibility to 
establish their own region-specific targets, and each transportation 
operator should be afforded the flexibility to address requirements to 
best suit their unique characteristics. The commenter further observed 
that the size and scale of a particular transportation system could 
lend itself to significantly different targets than what another entity 
might use for a different sized system. The FHWA and FTA response to 
this comment is that States, MPOs, and operators of public 
transportation have the flexibility to set their own targets to suit 
their unique needs for those targets outside of the federally required 
performance measures. For the federally required measures, this comment 
is outside the scope of the final rule.
    The Wilmington MPO commented that it has concerns about additional 
burdens being placed on MPO member jurisdictions in terms of data 
collection for the State Asset Management Plan for the NHS and other 
aspects of performance-based planning. The FHWA and FTA note that this 
comment is outside the scope of the final rule.
    The Sierra Club commented that it supports the new focus on 
performance-based planning, but is concerned that it should be 
implemented in an environmentally sound manner and not used for 
retribution purposes. They commenter further commented that performance 
targets and outcomes should be appropriate for the communities served 
and consistent with the ridership goals of operators of public 
transportation. The commenter requested an explanation of how FHWA and 
FTA expect to perform their oversight roles to ensure that the results 
are truly equitable and will achieve national and State goals.
    In response to this comment, FHWA and FTA agree that a performance 
management based approach to planning should be conducted in an 
environmentally sound manner. The FHWA and FTA also agree that in a 
performance-based approach to planning, it is important to support all 
modes of transportation, including public transportation. With respect 
to the question on how FHWA and FTA expect to perform oversight for 
performance-based planning, FHWA and FTA will include consideration of 
performance-based planning along with the other federally required 
planning process elements from 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 
and 5304 when conducting planning certification reviews of TMAs and 
when preparing a State planning finding.
    The Maui DOT commented that FHWA and FTA may have dramatically 
underestimated the costs of implementing the final rule for smaller 
MPOs. The commenter further stated that smaller MPOs often have limited 
resources and dual roles. The FHWA and FTA note that MPOs do have the 
option of adopting and supporting State performance targets in lieu of 
setting their own targets. This might be particularly helpful to the 
smaller MPOs with limited staff, budgets, and resources. See RIA 
section for more discussion on this topic.
    Several commenters (Community Labor United, Enterprise Community 
Partners, Front Range Economic Strategy Center, National Association of 
Social Workers, Partnership for Working Families, PolicyLink, Public 
Advocates, and United Spinal Association) suggested that the use of 
performance measures and prioritization of projects should encourage 
the States and MPOs to consider the transportation needs of 
traditionally underserved populations and the expansion of economic 
opportunity for low-income and minority communities and through 
improved transportation. See section IV(B) (recurring comment themes) 
for more discussion on this issue and FHWA and FTA responses.
    The National Trust for Historic Preservation commented that this 
section should also include historic resources as one of the planning 
factors to show that that historic preservation may be related to the 
planning process. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The San Luis Obispo COG is concerned that the NPRM imposes 
different requirements on the State and MPOs. See section IV(B) 
(recurring comment themes) for more discussion on this issue and FHWA 
and FTA responses.
    The VA DOT commented that the final rule should be led by criteria 
FHWA and FTA will be developing in response to 23 U.S.C. 135(h). 
Section 23 U.S.C. 135(h) requires FHWA and FTA to establish criteria to 
evaluate the effectiveness of the performance-based planning processes 
of the States and to make a report to Congress evaluating the overall 
effectiveness of performance-based planning and programming as a tool 
for guiding transportation investments. The FHWA and FTA response to 
this comment is that this rule discusses the requirements for States 
and MPOs to implement a performance-based planning and programming 
process. The FHWA and FTA criteria for evaluating the effectiveness of 
the performance-based planning and programming processes of the States 
and MPOs will be based on the requirements for performance-based 
planning and programming contained in this final rule.
    The Partnership for Active Transportation and Sierra Club stated 
that health should be integrated into the transportation planning 
process. In response to this comment, FHWA and FTA conduct research and 
develop resources on the integration of health into transportation. 
These resources are available at: http://www.fhwa.dot.gov/planning/health_in_transportation/. Based on this comment, no changes have been 
made to the final rule. See section VI.(B) (recurring comment themes) 
for more discussion on this topic.
    Several commenters suggested specific performance measures that 
they felt should be considered by FHWA and FTA. See section VI(B) 
(recurring issues) for more discussion on this topic.
Section 450.308 Funding for Transportation Planning and Unified 
Planning Work Programs
    The Board of the French Broad River MPO, DC DOT, DRCOG, Maui MPO, 
DRCOG, National Trust for Historic Preservation, NC DOT, North Front 
Range MPO, NYMTC, Puget Sound Council of Governments (PSCOG), TX DOT, 
WFRC, and Wilmington MPO provided comments on this section. The Board 
of the French Broad River MPO, DC DOT, NC DOT, NYMTC, PSRC, WFRC, and 
Wilmington Urban Area MPO noted that the MPO transition to performance-
based planning will be a challenge for MPOs and will require additional 
staff time without an allocation of additional funding. One commenter 
correctly noted that in addition to PL funds, metropolitan 
transportation planning activities undertaken by MPOs, including 
performance-based planning may be funded through other Federal-aid fund 
categories such as 23 U.S.C. 104(d), 49

[[Page 34109]]

U.S.C. 5305(d), and 49 U.S.C. 5307. As described in section 450.308 of 
the final rule, the States may provide funds received under 23 U.S.C. 
104(b)(2) and 23 U.S.C. 505 to MPOs for metropolitan transportation 
planning.
    The Maui DOT commented that they feel that the FHWA and FTA cost 
estimates for the implementation of the additional requirements related 
to performance management may be low. See the RIA section for further 
discussion on this issue. No changes were made to the final rule based 
on these comments.
Section 450.310 Metropolitan Planning Organization Designation and 
Redesignation
    The FHWA and FTA received comments from 68 entities (AASHTO, AMPO, 
APTA, ARC, BART, California Association for Coordinated Transportation, 
CALTRANS, Charlotte MPO, Community Labor United, CT DOT, DVRPC, 
Enterprise Community Partners, Florida MPO Advisory Council, FMATS, 
Front Range Economic Strategy Center, H-GAC, Lincoln MPO, MA DOT, 
Macatawa Coordinating Council, MARC, Maricopa AOG, MD DOT, MI DOT, 
Miami-Dade MPO, MO DOT, MTC, NACTO, NARC, National Association of 
Social Workers, National Housing Conference, National League of Cities, 
NC DOT, NCTCOG/RTC, New York Association of MPOs, NJ DOT, NJTPA, North 
Front Range MPO, Northwestern Indiana Regional Planning Commission 
(NIRPC), NRDC, NYMTC, NYS DOT, PA DOT, Partnership for Working 
Families, Policy Link, Public Advocates, Richmond Area MPO, River to 
Sea TPO, SACOG, Safe Routes to School Partnership, SANDAG, San Joaquin 
Transit, San Luis Obispo MPO, Santa Barbara Metropolitan Transit 
District, SCAG, Sierra Club, SJCOG, South Florida Regional Transit 
Authority, Southeast Wisconsin MPO, TN DOT, TriMet, TX DOT, US Travel 
Association, WA State DOT, Westchester County Department of Public 
Works and Transportation, WFRC, WI DOT, and WMATA) on the proposed 
revisions to section 450.310. Section 450.310, consistent with MAP-21 
and FAST requirements, would require the structure of an MPO serving a 
TMA to include representation by operators of public transportation, in 
addition to the officials identified in the existing regulations; and 
that each MPO serving a TMA satisfy the structure requirements no later 
than October 1, 2014. Commenters provided their perspectives and 
recommendations on a range of issues related to the structure of MPO 
policy boards that serve an area designated as a TMA. Nine commenters 
(Community Labor United and the Public Transit-Public Good Coalition, 
Enterprise Community Partners, Front Range Economic Strategy Center, 
National Association of Social Workers, NRDC, Partnership for Working 
Families, Policy Link, Public Advocates, Safe Routes to School 
Partnership, and the National Housing Conference) recommended that the 
final rule require that MPO boards be more representative of the 
economic and racial make-up of the communities they serve to help 
ensure that transportation planning is sensitive to the needs of all 
residents.
    The FHWA and FTA note that the final rule will continue to require 
MPOs, through their public participation processes, to seek out and 
consider the needs of those traditionally underserved by existing 
transportation systems, such as low-income and minority communities, 
who may face challenges accessing employment and other services. The 
final rule requires MPOs to periodically review the effectiveness of 
the procedures and strategies contained in the participation plan to 
ensure a full and open participation process. Through certification 
reviews of MPOs in areas that serve TMAs, FHWA and FTA work to confirm 
that these MPOs are meeting their public participation requirements.
    However, 23 U.S.C. 134(d)(1)(A) and 49 U.S.C. 5303(d)(1)(A) require 
that MPOs be designated either 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) or by procedures in applicable State or local laws. 
These sections also provide that each MPO policy board that serves an 
area designated as a TMA shall consist of local elected officials; 
officials of public agencies that administer or operate major modes of 
transportation in the metropolitan area, including representation by 
operators of public transportation; and appropriate State officials. 
The FHWA and FTA are fully committed to an inclusive transportation 
planning process. However, the statute assigns the authority to the 
Governor and local government officials to decide which local elected 
officials, officials of public agencies, and appropriate State 
officials will serve on an MPO policy board; or to procedures 
established by applicable State or local law.
    The U.S. Travel Association requested that each MPO or regional 
planning board include a representative of the travel industry, noting 
that it has a deep impact on the Nation's economy and workforce. The 
data collected by the travel industry provides unique insights into 
transportation trends and infrastructure needs across the country.
    In response, FHWA and FTA reiterate that the statute \26\ requires 
that each MPO that serves an area designated as a TMA must consist of 
local elected officials; officials of public agencies that administer 
or operate major modes of transportation in the metropolitan area, 
including representation by operators of public transportation; and 
appropriate State officials, except those MPOs that are exempt under 23 
U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3). The FHWA and FTA note that 
the final rule does include a new planning factor in sections 
450.206(a)(10) and 450.306(b)(10) on enhancing travel and tourism for 
States and MPOs to consider and implement as part of their 
transportation planning processes as provided for in FAST sections 1201 
and 1202 and in 23 U.S.C. 134(h)(1)(J) and 135(d)(1)(J). It also 
includes a new requirement in section 450.316(b) that MPOs should 
consult with agencies and officials responsible for tourism when 
developing metropolitan transportation plans as described in FAST Act 
section 1201 and in 23 U.S.C. 134(g)(3)(A).
---------------------------------------------------------------------------

    \26\ 23 U.S.C. 134(d)(1)(a) and 49 U.S.C. 5303(d)(1)(a).
---------------------------------------------------------------------------

    The WA State DOT recommended revising section 450.310(c) to specify 
that only urbanized areas with more than 200,000 individuals can be a 
TMA rather than allowing a Governor and MPO to request that an 
urbanized area be designated a TMA. In response to this comment, FHWA 
and FTA note that the statute at 23 U.S.C. 134(k)(1)(B) and 49 U.S.C. 
5304(k)(1)(B) provides that the Secretary shall designate any 
additional area at the request of the Governor and the MPO designated 
for the area. Consequently, no changes are made to this section based 
on this comment.
    The proposed regulatory language in section 450.310(d) that ``each 
metropolitan planning organization that serves an area designated as a 
transportation management area shall consist of local elected 
officials, officials of public agencies that administer or operate 
major modes of transportation in the metropolitan area, including 
representation by providers of public transportation, and appropriate 
State officials'' replicates the statutory language of 23 U.S.C. 134(d) 
and 49 U.S.C. 5303(d). The MAP-21 further provides that an MPO may be 
restructured to meet the requirement of including representation by 
operators of public transportation without

[[Page 34110]]

undertaking a re-designation (an action that would require an agreement 
between the Governor and units of general purpose government that 
together represent at least 75 percent of the existing planning area 
population including the largest incorporated city). Consequently, the 
final rule provides that MPOs that serve a TMA must include a formally 
designated representative of operators of public transportation.
    The FHWA and FTA also proposed in the preamble to the NPRM that 
representatives of operators of public transportation would have equal 
decisionmaking rights and authorities as other officials who are on the 
policy board of an MPO that serves a TMA. The BART, CALTRANS, Charlotte 
RTPO, Enterprise Community Partners, MA DOT, MO DOT, National Housing 
Conference, NCTCOG/RTC, NRDC, NYMTA, River to the Sea TPO, Santa 
Barbara Transit, SFRTA, Sierra Club, SJRTD, and WFRC, expressed support 
for the proposal that a representative of operators of public 
transportation is both included on MPO policy boards and given equal 
decisionmaking rights. The MA DOT expressed support for the requirement 
for public transportation membership on the policy board of an MPO and 
the equality of decisionmaking rights by transportation officials or 
their representative staff. The MA DOT also noted that each of the 10 
MPOs and 3 RTPOs in the Commonwealth of Massachusetts have active 
representation and participation of their respective public 
transportation operators on the boards by regional transit 
administrators and/or transit staff.
    The FHWA and FTA believe that the long-standing requirement to 
include public transportation representation on each MPO serving a TMA, 
made explicit in MAP-21 and FAST, supports the new performance 
requirements for operators of public transportation, including: The 
coordination of MPO targets with operators of public transportation, 
the coordination of public transportation operator targets with MPOs, 
and the integration of public transportation performance plans into the 
metropolitan transportation planning process. Given these new 
performance responsibilities, the FHWA and FTA believe that operators 
of public transportation need to participate in the MPO's 
decisionmaking process. The FHWA and FTA do not concur with the comment 
by the DVRPC that there are a number of effective ways for transit 
agencies to be fully represented in the metropolitan planning process 
apart from voting membership on the MPO board. Consequently, the final 
rule provides that, similar to section 1201 of the FAST Act which 
amends 23 U.S.C. 134(d)(3)(C), the representative of public 
transportation has responsibilities, actions, duties, voting rights, 
and any other authority commensurate with other officials described in 
section 450.310(d)(1).
    The MA DOT sought more clarity covering what constitutes a transit 
provider since there are sometimes a wide range of service providers in 
a single MPO, including RTAs, TMAs, and health care transit operations. 
In response, FHWA and FTA note that the final rule defines the term 
``public transportation operator'' in section 450.104. According to 
this definition, a public transportation operator is the public entity 
or government approved authority that 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 a 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 
sightseeing, school bus, charter, certain types of shuttle service, 
intercity bus transportation, or intercity passenger rail 
transportation provided by the National Railroad Passenger Corporation 
(also known as ``Amtrak'').
    The FHWA and FTA stated in the preamble to the NPRM that it is up 
to the MPO, in cooperation with operators of public transportation, to 
determine how this representation will be structured and established.
    The APTA expressed appreciation for this broad latitude afforded to 
MPOs as it accounts for varying governance models. However, it 
requested that FHWA and FTA categorically state that an MPO member 
based on elective or appointed office that coincidentally sits on a 
transit board does not fulfill the MAP-21 requirement for 
representation by operators of public transportation. This position is 
supported by all other operators of public transportation who submitted 
comments to the docket (BART, FMATS, NYMTA, Orange County Transit 
Authority, Santa Barbara Transit Authority, SJCOG, TriMet, and WMATA, 
and the Sierra Club).
    The BART noted that ``While many city and county representatives 
currently serving on MPOs are sincere in their efforts to incorporate 
the needs and perspectives of public transit, it is only through direct 
participation of the providers themselves that MPOs can best understand 
the complex and technical needs of public transit providers.'' The 
WMATA noted that it could not easily imagine how the transportation 
modes in general, and public transportation in particular, can be 
assured of exercising the equal decisionmaking rights and authorities 
essential to realizing the MAP-21 intentions if MPO board members are 
allowed to ``wear two hats.'' However, the statute was changed in the 
FAST Act to explicitly allow that the representative of an operator of 
public transportation may simultaneously represent a local 
municipality. Therefore the final rule in section 450.310(d)(3)(ii) 
reflects section 1201 of the FAST Act (23 U.S.C. 134(d)(3)(B)) which 
allows, subject to the bylaws or enabling statute of the MPO, a 
representative of an operator of public transportation may also serve 
as a representative of a local municipality.
    Thirty-five of the respondents (AAHSTO, ARC, CT DOT, DVRPC, Florida 
MPO Advisory Council, H-GAC, MA DOT, Macatawa Area Coordinating 
Council, MARC, MI DOT, Miami-Dade MPO, MTC, NACTO, NARC, National 
League of Cities, NC DOT, NIRPC, NJTPA, NYMTA, NYMTC, NYS DOT, PA DOT, 
River to Sea TPO, SACOG, San Luis Obispo COG, SANDAG, Southeastern 
Wisconsin RPC, Westchester County Department of Public Works and 
Transportation, and WI DOT) requested that the final rule ensure MPOs 
have maximum flexibility in determining how they are constituted and 
operate. Fifteen MPOs (ARC, DVRPC, Florida MPO Advisory Council, H-GAC, 
Macatawa Area Coordinating Council, MARC, MTC, NIRPC, NJTPA, NYMTC, 
River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, and Southeastern 
Wisconsin RPC), three MPO associations (AMPO, Florida MPO Advisory 
Council, and NARC), and one State (WI DOT) requested that the final 
rule provide each MPO with the maximum latitude to determine how 
operators of public transportation are represented in the 
decisionmaking process, including allowing a single official to serve 
in multiple capacities. Five California MPOs (MTC, SACOG, SANDAG, SCAG, 
and SJCOG) expressed the view that the language included in the MAP 21 
provides broad flexibility as to how MPOs may comply with the 
requirement to include representation by operators of public 
transportation. They argued that Congress did not prescribe a specific 
method for representation; require that all or any particular kinds of 
transit operators serving a region be represented; or require that a 
seat be dedicated solely to

[[Page 34111]]

a board member who is appointed by a transit agency. The government of 
Westchester County, NY noted its long history of elected officials 
effectively representing both the county's residents and its transit 
system on the MPO. It strongly believes that, via a single vote, an 
elected official can serve in multiple capacities on an MPO. The NYMTC 
argued against any requirement that would give an MPO member more than 
one non-independent vote and affirmed that State and local elected 
officials have effectively represented multiple modes of transportation 
since the MPO was established. The ARC argued that it would not be 
appropriate for a staff member of a transit agency governed by a city 
or county to serve on a policy body with the chief elected official 
from that same jurisdiction. The ARC argued that it would place the 
transit representative in a subordinate position, potentially 
compromising the expertise and knowledge that the operator could bring 
to policy discussions and votes. The River to Sea TPO argued that 
requiring transit agency staff to sit as a voting member on an MPO 
board along with elected officials who are members of their own 
governing board would potentially create a conflict with Florida's 
Sunshine Law and make it difficult for staff to brief their policy 
board on transit matters.
    The FHWA and FTA concur that a single official can serve in 
multiple capacities, which would be particularly appropriate in 
instances where the local elected official represents a local 
government that operates a transit system. Therefore, FHWA and FTA 
revised the final rule to provide that, consistent with the FAST Act's 
amendment to 23 U.S.C. 134(d)(3)(B), subject to the bylaws or enabling 
statute of the MPO, a representative of a provider of public 
transportation may also serve as a representative of a local 
municipality (section 450.310(d)(3)(ii)). The final rule in section 
450.310(d)(3)(i) reflects the revision to 23 U.S.C. 134(d)(3)(A) made 
by FAST, which provides that the designation or selection of officials 
or representatives under section 450.310(d)(1) shall be determined by 
the MPO according to the bylaws or enabling statute of the 
organization.
    Eight MPOs (Miami-Dade MPO, MTC, NIRPC, River to Sea TPO, SACOG, 
SANDAG, SCAG, and SJCOG) asserted that their governing structures were 
codified by State law, which would preclude them from changing the 
structure of their policy board to include voting representation by 
operators of public transportation. As noted by one industry 
association, NARC, as many as one-quarter of all MPOs that serve a TMA 
are created by, and the constitution of their policy board is outlined 
in, State statute. Thus, to change the structure of the MPO board would 
require a change in the State enabling legislation, which may result in 
unintended consequences.
    In response, FHWA and FTA agree that a change in State enabling 
legislation may be necessary to bring an MPO into compliance with the 
structuring requirements of 23 U.S.C. 134(d)(2), 49 U.S.C. 5303(d)(2), 
and the final rule. This would be the case if State law would prevent 
an MPO from satisfying the statutory structure requirement. An 
exception is available for those MPOs that qualify under the 
``grandfathering'' provision in 23 U.S.C. 134(d)(4). Section 134(d)(4) 
of 23 U.S.C. provides that 23 U.S.C. 134(d) should not be construed to 
interfere with the authority, under any State law in effect on December 
18, 1991, of a public agency with multimodal transportation 
responsibilities (A) to develop the plans and TIPs for adoption by a 
metropolitan planning organization; and (B) to develop long-range 
capital plans, coordinate transit services and projects, and carry out 
other activities pursuant to State law. The grandfathering provision 
was first enacted in 1991 and remains relatively unchanged.\27\
---------------------------------------------------------------------------

    \27\ Section 1024, Public Law 102-240, December 18, 1991. 
codified at 23 U.S.C. 134(b)(3).
---------------------------------------------------------------------------

    Such MPOs may continue to operate without complying with the 
statutory structure provisions in 23 U.S.C. 134(d)(2), 49 U.S.C. 
5303(d)(2), and the final rule. Alternatively, a grandfathered MPO may 
restructure to meet the statutory requirements without losing its 
protection under the grandfathering provision if it can do so without a 
change in State law with respect to the structure or organization of 
the MPO. The statute (23 U.S.C. 134(d)(6)(2)) and section 450.310(d) of 
the final rule, explicitly authorize MPOs to restructure to meet the 
requirements of 23 U.S.C. 134(d)(2) and 49 U.S.C. 5303(d)(2) without 
undertaking a redesignation. However, FHWA and FTA emphasize that an 
exempt MPO is still required to provide the officials described in 23 
U.S.C. 134(d)(2) an opportunity to actively participate in the decision 
making processes of the MPO in accordance with 23 U.S.C. 134(i)(6)(A), 
(j)(1)(B), and (j)(4).
    The NARC sought clarification of FHWA and FTA application of the 
grandfathering exemption. The NARC suggested that the statutory 
language means that ``any MPO operating under a State statute on 
[December 18, 1991] is exempt from the requirements of 450.310(d)(1),'' 
and stated that it has found no evidence of the FHWA and FTA 
interpretation as presented. The NARC requested that FHWA and FTA 
clarify that any MPO operating under a State statute on that date is 
exempt from the requirements of section 450.310(d)(1). Five California 
MPOs (MTC, SACOG, SANDAG, SCAG, and SJCOG) also took issue with the 
interpretation that a change to the board structure since December 18, 
1991, disqualifies an MPO from falling under the grandfather provision.
    In response, FHWA and FTA note the grandfathering provision in 23 
U.S.C. 134(d)(4) and 49 U.S.C. 5303(d)(4), was first enacted in 1991 
and remains relatively unchanged. As explained in the June 2, 2014 
Policy Guidance on Metropolitan Planning Organization (MPO) 
Representation, 79 FR 31214. The FHWA and FTA have determined that the 
grandfathering provision does still apply to any MPO that: (1) Operates 
pursuant to a State law that was in effect on or before December 18, 
1991; (2) such State law has not been amended after December 18, 1991, 
with regard to the structure or organization of the MPO; and (3) the 
MPO has not been designated or re-designated after December 18, 1991. 
79 FR 31216. The agencies reiterated the interpretation in the NPRM for 
this final rule. Subsequently, Congress enacted the FAST Act, which 
included amendments to 23 U.S.C. 134 and 49 U.S.C. 5303. The FAST Act 
clarified requirements relating to an MPO's designation or selection of 
officials or representatives to an MPO in light of the FHWA/FTA Policy 
Guidance and NPRM, but did not amend the grandfathering provision. 
Congress' enactment of these statutory changes while leaving the 
grandfathering provision intact is a strong indication that Congress 
concurs with the FHWA and FTA interpretation of that provision. The 
provision is included in the final rule in section 450.310(d)(4). 
Because of changes to the structuring requirements of MAP-21 and FAST, 
FHWA and FTA are including the grandfathering provision in the Final 
Rule to clarify when the provision may be exercised by an MPO.
    The NARC's interpretation of the exemption or grandfather provision 
would apply incorrectly the December 18, 1991, cutoff date to the MPOs 
rather than their authorizing statutes, and would grandfather any MPO 
operating under a State statute as of that date, regardless of 
subsequent changes in the State law. To the contrary, the grandfather 
provision's conditional clause ``under any State law in effect on

[[Page 34112]]

December 18, 1991'' applies the cutoff date to the State law under 
which an MPO operates, not the MPO itself. A State law or amendment 
that was enacted after the cutoff date was not in effect on the cutoff 
date.
    At the request of APTA, FHWA and FTA clarified that the structure 
of MPOs that serve TMAs and were designated or re-designated as an MPO 
after December 18, 1991, must include representation of local elected 
officials, officials of agencies that administer or operate major modes 
or systems of transportation, and appropriate State officials. As of 
October 2014, the structure of these MPOs must include representation 
by operators of public transportation.
    The APTA also requested that FTA and FHWA require that any claim 
for this exemption must be publicly documented in order for it to be 
effective. The APTA stated that some MPOs claim the exemption with no 
public justification or discussion. The FHWA and FTA agree that an MPO 
that serves a TMA must provide documentation to support a claim for an 
exemption to the MPO structure required by statute and regulation. The 
FHWA and FTA require this documentation to be provided as part of its 
certification review process.
    Multiple respondents from Florida (Florida MPO Advisory Council, 
Miami-Dade MPO, and SFRTA) highlighted the recent revisions to Florida 
State Law 339.175, which allows the structure of MPOs in the State to 
be in alignment with the expectations of the MAP-21, to include 
``representation by providers of public transportation.'' The Florida 
statute expands the maximum voting membership from 19 to 25 apportioned 
members. It continues to require that voting members of an MPO be 
elected officials of general-purpose local government and that an MPO 
may include, as part of its apportioned voting members, an official of 
an agency that operates or administers a major mode of transportation. 
Interestingly, the Florida statute addresses the ``two hats'' issues 
raised by many of the respondents to this docket. It provides that in 
metropolitan areas in which transportation authorities or agencies have 
been created by law, the authority may be provided voting membership on 
the MPO. In instances where the transportation operator is represented 
by elected officials from general-purpose local governments, the MPO 
must establish a process to express and convey the collective interests 
of the public transportation agencies that provide transit service in 
their MPA.
    The MA DOT noted that there are several RTAs within the 
Commonwealth of Massachusetts that service multiple TMAs in varying 
capacities. The MA DOT requested that the final rule clearly define the 
MPO involvement of the public transportation representative in regions 
that the RTA provides services but is not exclusively located. In 
response, FHWA and FTA believe that the representative of operators of 
public transportation needs to express and convey the collective 
interests of the public transportation agencies that provide transit 
service in their MPA.
    As required by MAP-21, the final rule states that each MPO that 
serves a TMA must include representation by operators of public 
transportation no later than October 1, 2014. The NARC sought direction 
as to what MPOs that serve TMAs must do as of October 1, 2014. Another 
industry association, AMPO, requested that the final rule recognizes 
that many MPOs are subject to State laws governing the MPO policy board 
membership and that compliance may require amendments to State law. The 
AMPO requested that the final rule include more time for these MPOs to 
work with their States to adjust policy boards if necessary. In 
response, FHWA and FTA expect that, at a minimum, each MPO that serves 
a TMA identify a voting member of their board who represents the 
collective interests of operators of public transportation in the MPA 
by October 1, 2014. The final rule supersedes the FHWA and FTA June 2, 
2014, Policy Guidance on MPO Representation.
    Two commenters (Enterprise Community Partners and Sierra Club) 
requested that the final rule requires all operators of public 
transportation in an MPA to be on the board of MPOs that serve TMAs. 
The MAP-21 provides for representation by operators of public 
transportation. The FHWA and FTA believe that it is the MPO's decision 
whether to include all operators of public transportation on its 
decisionmaking body.
    In addition to the representation by providers of public 
transportation provision, FHWA and FTA sought comments on whether any 
of the following questions should be addressed in the regulation and, 
if so, how.
Should the regulations clarify who appropriate officials may be?
    Of the thirteen commenters (ARC, CT DOT, Florida MPO Council, H-
GAC, Miami-Dade MPO, MTC, NJTPA, NYMTC, NYS DOT, River to Sea TPO, 
SACOG, SANDAG, SCAG, SJCOG, TX DOT, and WI DOT) who submitted a 
response to the question, two States (MA DOT and WI DOT) requested that 
the final rule clarifies who an appropriate official may be. The WI DOT 
noted that MPOs throughout Wisconsin have approached this issue of 
including representation by operators of public transportation on their 
MPO boards differently. Some designate officials that are already on 
the board and have transit interests as the transit representation 
while others are working to add additional membership to their MPOs. 
The WI DOT recommends allowing MPOs the discretion to make these 
representation decisions at a local level.
    The FHWA and FTA concur. The final rule provides MPOs with the 
flexibility to determine how best to include representation by 
operators of public transportation. The FHWA and FTA will not specify 
who appropriate officials may be in the final rule.
Can staff members or other alternates be substituted for the 
`officials' identified in paragraph (d)(1)?
    Twenty-eight commenters (AASHTO, AMPO, ARC, CT DOT, Florida MPO 
Advisory Council, FMATS, H-GAC, MD DOT, MI DOT, Miami-Dade MPO, MTC, 
NARC, NCTCOG/RTC, NJ DOT, NJTPA, NYMTA, NYMTC, NYS DOT, Richmond Area 
MPO, River to Sea TPO, SANDAG, SCAG, SJCOG, TN DOT, TX DOT, WI DOT, and 
WMATA) responded to this question. Three MPOs (ARC, FMATS, and NCTCOG/
RTC) expressed concern that a staff member or other alternate be 
substituted for officials on the MPO decisionmaking body.
    The ARC stated that it does not believe it is appropriate for staff 
members of transit agencies to have equal standing on policy committees 
as elected and appointed officials, asserting that clear lines of 
demarcation in the decisionmaking hierarchy need to be maintained 
through committees comprised exclusively of technical staff or elected/
appointed policy officials. The NCTCOG/RTC believes that staff members 
or other non-elected alternates should not be substituted for local 
elected officials in section 450.310(d)(1) due to the policy making 
function of the MPO policy board. The NCTCOG and RTC requested that 
FHWA and FTA carefully consider this question in the context of 
accountability to the public. They noted that the strength of MPO 
policy making is a result of its policy board being made up of 
primarily local elected officials who are directly accountable to the 
voting public. However, in situations where modal operators are not 
governed by an elected body, MPO policy boards should have

[[Page 34113]]

discretion to determine the appropriate level of representative for 
these entities. Another MPO, FMATS, noted that as this requirement only 
applies to TMAs, staff members or alternates should not be allowed to 
participate because larger MPOs would have sufficient representation 
from other entities' officials and so additional representation of 
public transportation would not skew the policy board. The Florida MPO 
Advisory Council believes that alternates for officials identified in 
subparagraph (d)(l) should be of the same general background (i.e., a 
local elected official should act as the alternate for another local 
elected official) and that any clarifying language should state as 
such.
    Multiple respondents noted that it is their current practice to 
allow staff members or other alternates to substitute for the officials 
identified in subparagraph (d)(1). Per an MOU among NYMTC member 
agencies, all members, including elected officials, may be represented 
at council meetings by designated substitutes, provided such 
designation has been made in writing to the Secretary of NYMTC. The 
NYMTC recommends that FHWA and FTA continue to allow these designees to 
be substituted for officials identified in subparagraph (d)(1) for 
purposes of voting on council business. The NYMTA requested that the 
term ``local official'' refer to elected or appointed officials of 
general purpose local government with responsibility for 
transportation, and that this include the elected or appointed 
official's formally designated proxy.
    The TN DOT noted that all MPOs in Tennessee allow for policy board 
members to appoint a proxy. Not being able to do this would limit the 
ability of the MPOs to conduct official business requiring a quorum of 
members. Under the NJTPA by-laws, each elected official may appoint one 
designated alternate. This requires notification in writing to the 
NJTPA. The NJTPA notes that this arrangement allows for greater 
flexibility and participation by the board's member jurisdictions and 
agencies and should continue to be allowed.
    Three respondents (MA DOT, Richmond Area MPO, and WI DOT) sought 
clarification as to who can serve as an official on the MPO. The MA DOT 
sought clarity regarding public transportation representative 
designation and latitude to designate another person who may perform 
duties on their behalf. The WMATA stated that an official in any of the 
three statutory MPO board categories should be able to expressly 
delegate routine duties to qualified staff but suggests that future 
guidance strongly encourage such officials to commit themselves to 
attentive and direct engagement with policy-making efforts by their MPO 
boards. The majority of respondents to this question (AASHTO, AMPO, CT 
DOT, H-GAC, MD DOT, MI DOT, Miami-Dade MPO, MTC, NARC, NYS DOT, SACOG, 
SANDAG, SCAG, TX DOT, WI DOT, and WMATA) support the position that the 
decision whether staff members or other alternates may be substituted 
for the officials identified in subparagraph (d)(1) should remain local 
and be resolved at the State or local level.
    In response, FHWA and FTA concur with the majority of respondents 
that the decision as to whether staff members or other alternates may 
be substituted for the `officials' identified in subparagraph (d)(1) 
should remain local and be resolved at the State or local level.
Should the regulations provide more specificity on how each of the 
officials identified in paragraph (d)(1) should be represented on the 
MPO?
    While the WI DOT indicated that the final rule should provide more 
specificity on how each of the officials identified in subparagraph 
(d)(1) (i.e., local elected officials, officials who operate major 
modes of transportation, and appropriate State officials), the other 21 
respondents to this question (AASHTO, ARC, CT DOT, Florida MPO Advisory 
Council, FMATS, MD DOT, MI DOT, Miami-Dade MPO, MTC, NARC, NJTPA, 
NYMTC, NYS DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, TX DOT, 
and Westchester County, NY) urged FHWA and FTA to provide MPOs with 
maximum flexibility as each MPO's circumstances is unique.
    The FHWA and FTA concur with these respondents and will not include 
more specificity on how each of the officials identified in 
subparagraph (d)(1) should be represented on the MPO in the final rule. 
However, at the request of WI DOT and CT DOT, FHWA and FTA will provide 
additional guidance on this topic, separate from this final rule.
Can an official in paragraph (d)(1) serve in multiple capacities on the 
MPO board (e.g., can a local elected official or State official serve 
as a representative of a major mode of transportation)?
    Thirty-one respondents (AASHTO, APTA, ARC, CT DOT, Florida MPO 
Advisory Council, FMATS, H-GAC, MARC, MD DOT, MI DOT, Miami-Dade MPO, 
NARC, NCTCOG/RTC, NJ DOT, North Front Range MPO, NYMTA, NYMTC, River to 
Sea TPO, SACOG, SANDAG, SCAG, Sierra Club, SJCOG, TN DOT, TriMet, TX 
DOT, Westchester County, NY, WI DOT, and WMATA) provided their 
perspectives on the question of whether an official in subparagraph 
(d)(1) can serve in multiple capacities on the MPO board.
    Six respondents (APTA, FMATS, NYMTA, Sierra Club, TriMet, and 
WMATA) argued definitively that public officials should not be asked, 
or allowed, to have ``divided loyalties.'' The Sierra Club claimed that 
such an attempt could well rise to a legal situation of incompatibility 
of offices. The TriMet, whose general manager has long held a voting 
seat on the Portland MPO from which it effectively advocates for the 
interests of operators of public transportation in the region, shared 
this perspective. It noted that assigning a local official, tasked with 
representing their jurisdiction on the MPO, to advocate a different, 
perhaps contrary, position as the representative of public 
transportation operators creates an inherent conflict of interest. The 
FMATS also cited the potential for conflict of interest, noting that a 
city or county mayor may appoint the transportation official which 
could inhibit the transportation official in making decisions that are 
truly in the best interest of the operators of public transportation. 
The North Front Range MPO stated that if the transit agency is a stand-
alone entity and not part of a local government that is already a 
voting member of the MPO, a separate membership with equal voting 
rights makes sense. The APTA, NYMTA, Sierra Club, TriMet, and WMATA 
requested that FTA and FHWA categorically state that an MPO member 
based on elective or appointed office that coincidentally sits on a 
transit board does not fulfill the MAP-21 requirement. The APTA, NYMTA, 
Sierra Club, TriMet, and WMATA all supported the position that the 
transit representative must be a member of the MPO solely as the 
transit representative.
    Eight other respondents (MTC, NYMTC, NYS DOT, SACOG, SANDAG, SCAG, 
SJCOG, and Westchester County, NY) noted that in their experience, 
board members who are local elected officials and also sit on 
independent or municipal transit agencies frequently bring the 
priorities and perspectives of the transit agency on which they serve 
to the MPO decisionmaking table. The TN DOT noted that some MPOs have a 
requirement that only elected officials serve on the policy board, the 
thinking being that only elected officials, accountable to the voting 
public, should

[[Page 34114]]

set policy. It proposed that in such instances, the MPO may insist that 
the requirement to have representation for operators of public 
transportation be fulfilled by an elected official who serves on the 
governing board of an operator of public transportation, or who 
oversees one that operates as part of city or county government.
    The FHWA and FTA note again that any MPO that serves a TMA that was 
designated/re-designated after December 18, 1991, shall consist of: 
Local elected officials; officials of public agencies that administer 
or operate major modes of transportation in the metropolitan area 
including representation by operators of public transportation; and 
appropriate State officials. Both the Florida MPO Advisory Council and 
the River to Sea TPO cited the Florida statute \28\ which specifies 
that, where representatives of operators of public transportation are 
to be represented by elected officials from general-purpose local 
government, the MPO shall establish a process by which the collective 
interests of such agencies are expressed and conveyed.
---------------------------------------------------------------------------

    \28\ Florida Statute 339.175(3).
---------------------------------------------------------------------------

    The majority of respondents (AASHTO, ARC, CT DOT, H-GAC, MARC, MD 
DOT, MI DOT, Miami-Dade MPO, MTC, NARC, NCTCOG/RTC, NJ DOT, NYS DOT, 
River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, TN DOT, TX DOT, and 
Westchester County NY) urged FHWA and FTA to provide maximum 
flexibility to MPOs in designating representation by operators of 
public transportation.
    The FHWA and FTA will provide maximum flexibility to MPOs in 
designating representation by operators of public transportation. The 
final rule provides that the official(s) who represents the operators 
of public transportation in the MPA may be an official of an agency 
that operates or administers public transportation in the metropolitan 
area or an elected official from general-purpose local governments.
Should the regulations include more information about MPO structure and 
governance?
    The twenty-four commenters (AASHTO, AMPO, ARC, CT DOT, FMATS, H-
GAC, MD DOT, Miami-Dade MPO, MTC, NARC, NJ DOT, NJTPA, North Front 
Range MPO, NYMTA, NYMTC, NYS DOT, SACOG, SANDAG, SCAG, SJCOG, TX DOT, 
Westchester County, NY, and WI DOT) who provided a response to this 
question universally requested that FHWA and FTA not include more 
information about MPO structure and governance in the final rule. In 
response, the final rule does not include more information about MPO 
structure and governance. However, per the request of CT DOT and WI 
DOT, FHWA and FTA will provide additional guidance on this topic, 
separate from the final rule.
Section 450.312 Metropolitan Planning Area Boundaries
    Section 450.312 discusses MPA boundaries. The WA State DOT provided 
comments on this section. The commenter was concerned that in 
situations where there are bi-State MPOs and/or where multiple MPOs 
straddle State boundaries, each MPO might have a different format for 
reporting on system performance. The WA State DOT was concerned that it 
will be difficult to coordinate system performance reporting responses 
and it will create problems for all involved.
    In response to this comment, FHWA and FTA note that section 450.312 
strongly encourages the States, MPOs, and operators of public 
transportation to coordinate transportation planning for the entire 
multi-State area. Section 450.314(f) of the final rule provides that 
where the boundaries of the urbanized area or MPA extend across State 
lines, the States, appropriate MPOs, and operators of public 
transportation must coordinate transportation planning for the entire 
multi-State area and may enter into agreements or compacts to do so. 
See discussion in section 450.314, metropolitan planning agreements, 
for more specific discussion on State, MPO, and operator of public 
transportation coordination on performance-based planning. (See also 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses.) This would help to ensure 
consistency when there are multiple MPOs in a multi-State region. The 
FHWA and FTA have made no changes to the NPRM language for section 
450.312 in the final rule.
Section 450.314 Metropolitan Planning Agreements
    Section 450.314 discusses the requirement that the States, MPOs, 
and the operators of public transportation serving an MPA cooperatively 
establish a metropolitan planning agreement. These agreements determine 
the mutual responsibilities of the parties in carrying out the 
metropolitan transportation planning process. Forty-three commenters 
(AASHTO, Albany MPO, AMPO, APTA, ARC, Board of the French Broad River 
MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC DOT, DRCOG, 
DVRPC, FL DOT, Florida MPO Advisory Council, FMATS, H-GAC, HI DOT, IA 
DOT, MAG, Metropolitan Transportation Council MPO, MARC, MT DOT, MTC, 
NACTO, NARC, NC DOT, New York State Association of MPOs, NJTPA, North 
Florida TPO, NYMTA, NYMTC, NYS DOT, OR DOT, PA DOT, River to Sea TPO, 
SACOG, SANDAG, SCAG, SJCOG, Transportation for America, TX DOT, and 
Wilmington MPO) provided comments on sections 450.314(a), (e), and (g). 
This section concerns the requirement proposed in the NPRM for 
including performance-based planning and programming and the collection 
of data for the State asset management plan as part of the metropolitan 
planning agreement. Twenty-one of the commenters on these sections were 
from MPOs, 13 from States, 7 from transportation associations, 1 from 
an operator of public transportation, and 1 from an advocacy 
organization. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    In the NPRM, FHWA and FTA proposed at section 450.314(b) that the 
States, MPOs, and the operators of public transportation should 
periodically review and update the metropolitan planning agreement, as 
appropriate, to reflect effective changes. Five commenters (AASHTO, FL 
DOT, MT DOT, NYS DOT, and TX DOT) provided comments on this provision. 
All five of the commenters stated that the provision was unnecessary 
and should be deleted. Two commenters (AASHTO and MT DOT) stated that 
agreements are generally already revised as necessary when changes are 
made to regulations and when dictated by other circumstances. They 
further commented that section 450.314(b) would create a new obligation 
to review agreements even when that review is unnecessary. The FL DOT 
commented that section 450.314(b) could be interpreted as a new 
requirement and that periodic review and updating should occur only as 
appropriate. The NYS DOT and TX DOT commented that section 450.314(b) 
could be interpreted to set a specific time frame or regular updates 
for review of the existing agreements, even when it is not needed.
    In response, FHWA and FTA included this provision in the NPRM to 
ensure that States, MPOs, and operators of public transportation are 
aware that agreements can become outdated and that they need to be 
periodically reviewed by the States, MPOs, and operators of public 
transportation to ensure that they are up to date. The FHWA and FTA did 
not intend for this provision to set a specific time frame for the 
review and updates to the

[[Page 34115]]

agreements and have specifically stated in section 450.314(b) that it 
should be done when it is appropriate to do so. The commenters have 
pointed out that for those metropolitan regions were the agreements are 
being kept up to date, this would typically not be an issue. However, 
FHWA and FTA note that for those regions where agreements have become 
outdated, this provision is an important reminder that they should be 
periodically reviewed and updated. The need for updating an agreement 
might occur for a number of reasons. Examples of reasons for updating 
the agreements might include: The passage of new national 
transportation legislation, issuance of new Federal regulations, and 
changes in the roles and responsibilities of the States, MPOs, and/or 
operators of public transportation in the metropolitan transportation 
planning process. The FHWA and FTA believe that it is important that in 
order to maintain a 3-C planning process for a metropolitan region, 
States, MPOs, and the operators of public transportation should 
periodically review and update the metropolitan planning agreement, as 
appropriate, to reflect effective changes in their responsibilities for 
conducting the planning process. For these reasons, the provision for 
periodically updating the metropolitan planning agreement in section 
450.314(b), as proposed in the NPRM, is retained by FHWA and FTA in the 
final rule without alteration.
Section 450.316 Interested Parties, Participation and Consultation
    Section 450.316 describes interested parties, participation, and 
consultation as part of the metropolitan transportation planning 
process. It requires an MPO to use a documented participation plan to 
provide individuals, 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. Eight commenters (Nine to Five 
Association of Working Women, Denver COG and the RTD, Enterprise 
Community Partners, National Housing Conference, New York State 
Association of MPOs, The Leadership Conference on Civil and Human 
Rights, TX DOT, and United Spinal Association) submitted comments on 
this section. The Nine to Five Association of Working Women, Enterprise 
Community Partners, National Housing Conference, and the Leadership 
Conference on Civil and Human Rights expressed strong support for the 
requirement that States and MPOs develop participation plans that 
engage populations ``traditionally underserved by existing 
transportation systems, such as low-income and minority households.'' 
The United Spinal Association requested that FHWA and FTA ensure that 
the required necessary accommodations for traditionally 
underrepresented organizations and community members are provided.
    The FHWA and FTA note that an MPO's public participation process, 
including efforts to seek out and consider 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, is reviewed as part of the MPO 
certification process.
    The DRCOG and RTD sought clarification on the requirement that an 
MPO include, as part of the final MTP and TIP, a summary, analysis, and 
report on the disposition of significant written and oral comments it 
receives on the draft MTP and TIP. The FHWA and FTA clarify that the 
summary and disposition of these comments can be a separate document 
incorporated by reference or made available on the applicable Web site. 
The FHWA and FTA have made no changes to section 450.316 in the final 
rule.
    Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(6)(A) to add 
public ports to the list of entities that an MPO shall provide a 
reasonable opportunity to comment on the metropolitan transportation 
plan. This change is amended into the final rule at section 450.316(a). 
Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(6)(A) to provide a 
list of examples of private providers of transportation. This change is 
amended into the final rule at section 450.316(a).
    Section 1201 of the FAST Act amends 23 U.S.C. 134(g)(3)(A) to add 
officials responsible for tourism and natural disaster risk reduction 
to the list of agencies and officials that an MPO should consult with 
in developing metropolitan transportation plans and TIPs. This change 
is amended into the final rule at section 450.316(b).
Section 450.318 Transportation Planning Studies and Project Development
    The comments and responses relevant to section 450.318 are 
discussed under section 450.212, and are incorporated by reference into 
this section.
Section 450.320 Development of Programmatic Mitigation Plans
    Similar to section 450.214, section 450.320 describes the 
development of programmatic mitigation plans. The FHWA and FTA received 
comments from a total of 26 entities on this section (AASHTO, AMPO, 
ARTBA, CALTRANS, CT DOT, DRCOG, DVRPC, Enterprise Community Partners, 
H-GAC, MARC, MTC, NARC, National Mitigation Banking Association, New 
York State Association of MPOs, NJ DOT, North Front Range MPO, OR DOT, 
PA DOT, RTD, SACOG, SANDAG, SCAG, SCCRTC, SJCOG, and TX DOT). All 
commenters were generally supportive of the development and use of 
programmatic mitigation plans within the transportation planning 
process.
    The responses to the following comments are provided in section 
450.214
General Comments
     Seven organizations (CALTRANS, MTC, SACOG, SANDAG, SCAG, 
SCCRTC, and SJCOG) commented on the eligibility for Federal funding for 
the development of programmatic mitigation plans.
     The ARTBA commented on the greater use of programmatic 
mitigation plans and recommended that FHWA and FTA quantify the 
benefits of using such plans in terms of time saved. In addition, the 
group also recommended a clearinghouse for mitigation plans used across 
the Nation to highlight best practices.
     Enterprise Community Partners and NRDC commended FHWA and 
FTA for the provisions contained in sections 450.214 and 450.320, 
noting that early planning can reduce conflicts and delays during 
environmental reviews performed later in project development. The group 
specifically noted the preference for requiring the development of 
programmatic mitigation plans within the transportation planning 
process.
     The NRDC also commented on the appropriate nature of 
consultation with the resource agencies, making a draft of the 
mitigation plan available for public review and comment, and addressing 
the comments in the final plan. Please see response in Section 450.214.
     The National Mitigation Banking Association noted that 
many of the attributes of a programmatic mitigation plan specified in 
section 450.320 are already in place in mitigation and conservation 
banks across the country. The group also noted that it would be

[[Page 34116]]

prudent public policy to make the acquisition of bank credits from 
approved mitigation banks a central component of a programmatic 
mitigation plan element. The group also suggested that the final rule 
incorporate a reference to existing banks and bank credits as the 
preferred alternative for offsetting transportation impacts.
     The Mid-America Regional Council provided a general letter 
of support on the development and use of programmatic mitigation plans 
and suggested that the final rule should include language indicating 
that States shall coordinate with MPOs on the development and use of 
such plans.
Section 450.320(a)
     Six entities (AASHTO, CT DOT, H-GAC, NARC, OR DOT, and 
TXDOT) commented on the proposed language in section 450.320(a)(2)(ii), 
stating that the resources addressed in the final rule should not be 
limited to the examples given.
     The CALTRANS and NJ DOT sought further clarification on 
the scope and scale of the programmatic mitigation plan. Specifically, 
NJ DOT inquired whether the plan should be restricted to one project 
(discussing an array of resources) or an array of transportation 
projects (covering one resource category for discussion). The CALTRANS 
commented on the appropriate scale of the programmatic mitigation plan 
and inquired whether MPOs may plan on a scale beyond its MPA 
boundaries.
Section 450.320(b)
     Nine entities (AASHTO, AMPO, CT DOT, H-GAC, NARC, New York 
State Association of MPOs, OR DOT, SCCRTC, and TX DOT) commented on the 
proposed language in section 450.320(b) which they found to be more 
restrictive than the text of the statute. Specifically, the commenters 
suggested that paragraph (b) should preserve the flexibility provided 
in the statute, which allows for States and MPOs to develop 
programmatic mitigation plans within or outside the statewide and 
metropolitan planning processes.
Section 450.320(d)
     The CALTRANS expressed appreciation for the support for 
programmatic mitigation plans, but also concerns about acceptance of 
such plans by Federal and State regulatory agencies. The commenter 
specifically questioned whether rulemaking to govern the regulatory 
agencies toward the goal of reaching a higher level of commitment to 
programmatic mitigation planning activities might be possible.

The responses to comments not previously raised or addressed in section 
450.214 follow:
General Comments
    The North Front Range MPO expressed general support for the 
development and use of programmatic mitigation plans, but noted that 
the development of such plans would require additional staff time for 
review. Such a delay in conducting the review would offset any benefits 
derived from the development of the plan. The organization also noted 
that the development of programmatic mitigation plans may be a 
duplicative effort, especially if a NEPA review is necessary or 
underway.
    The FHWA and FTA acknowledge that the development and review of 
programmatic mitigation plans would likely require additional staff 
time from resource agencies, States, and MPOs. But FHWA and FTA also 
note that a programmatic mitigation plan can be integrated with other 
resource plans including, but not limited to, watershed plans, 
ecosystem plans, species recovery plans, growth management plans, State 
wildlife plans, climate change action plans, and land use plans. 
Integrating the development of programmatic mitigation plans with other 
resource planning efforts streamlines the process and reduces points of 
duplication, thereby reducing the overall burden of staff time for 
review.
Section 450.320(b)
    The DRCOG and RTD noted that the analysis of environmental impacts 
of a project or program under NEPA may result in identification of a 
different set of impacts and possible mitigation than what is stated in 
a programmatic mitigation plan. Therefore, the framework for 
development of such plans and future use within NEPA should be reviewed 
and approved by the CEQ.
    The FHWA and FTA acknowledge that in certain rare instances, a 
programmatic mitigation plan may not capture the best possible data for 
impact discussion and possible mitigation. For this reason, this 
section retains the flexibility for States and MPOs to decide if and 
when they choose to develop programmatic mitigation plans and how such 
plans can be used to address the potential impacts of transportation 
projects. The FHWA and FTA also point out that, as stated in section 
450.320(b), early and ongoing coordination with the resource agencies 
with jurisdiction over the environmental resource is a pragmatic 
solution to avoiding future conflicts associated with the NEPA process.
Section 450.320(d)
    Four entities (DVRPC, NARC, PA DOT, and SCCRTC) commented on the 
proposed text in section 450.320(d), advocating for stronger language 
(i.e., the use of the word ``shall'' in the regulatory text in section 
450.320(d)) that would require Federal agencies to consider the 
recommendations developed under a programmatic mitigation plan when 
conducting future environmental reviews.
    The FHWA and FTA can encourage the development and use of 
programmatic mitigation plans in future NEPA reviews, but cannot 
interpret the statutory provision (23 U.S.C. 169(f)) in a manner that 
would make it more restrictive for States and MPOs to utilize effective 
mitigation efforts, if developed through another authority or during an 
environmental review for a specific project or program. Furthermore, if 
a mitigation plan is developed, it may not necessarily be aligned in 
time with the environmental review of a project or program. In these 
instances, delaying the environmental review of a project or program 
for the development and adoption of a programmatic mitigation plan may 
not be in the best interest of the State or MPO. This final rule 
retains the language proposed in the NPRM.
    Five planning organizations (MTC, SACOG, SANDAG, SCAG, and SJCOG) 
commented on broadening the scope of paragraph (d) through the removal 
of the word ``Federal.'' They suggested that this would clarify that 
any agency may use a programmatic mitigation plan, developed under this 
authority, that has been adopted for use within the transportation 
planning process in future environmental reviews.
    Paragraph (d) is applicable to any Federal agency responsible for 
environmental reviews, permits, or approvals for a transportation 
project. The final rule does not prohibit non-Federal agencies wishing 
to utilize programmatic mitigation plans developed by States or MPOs 
under this authority.
    Section 1306 of the FAST Act amends 23 U.S.C. 169(f) to change 
``may use'' to ``shall give substantial weight to'' and changes ``any 
other environmental laws and regulations'' to ``other Federal 
environmental law'' such that a Federal agency responsible for 
environmental reviews ``shall give substantial weight to'' the 
recommendations in the programmatic mitigation plan when carrying out 
its responsibilities under NEPA or ``other Federal environmental law.'' 
Sections 450.214(d) and

[[Page 34117]]

450.320(d) of the final rule are amended to reflect these changes.
Section 450.322 Congestion Management Process in Transportation 
Management Areas
    Seven entities (ARC, DRCOG, Enterprise Community Partners, MARC, 
National Housing Conference, New York State Association of MPOs, and WA 
State DOT) submitted comments on this section. One comment was from a 
State, three from MPOs, two from advocacy organizations, and one from 
an association.
    The DRCOG commented that the term ``acceptable,'' as used in 
section 450.322(c), related to system performance should be defined in 
the final rule by describing how and by whom acceptability will be 
determined. In response, FHWA and FTA note that for the CMP, as 
described in section 450.322(c), it is the responsibility of State and 
local transportation officials to determine the level of system 
performance they deem acceptable. As a result of this comment, no 
changes to the final rule were made.
    Enterprise Community Partners and the National Housing Conference 
commented that intensive development near transit such as transit 
oriented development and joint development should be included in the 
final rule as congestion management strategies. In response, FHWA and 
FTA note that several examples of congestion management strategies are 
provided in the NPRM and in the final rule. These strategies are 
consistent with those suggested in the comment, such as growth 
management and public transportation improvements. Therefore, no 
changes were made to the final rule.
    The DRCOG commented on section 450.322 that single occupancy 
vehicles (SOV) projects or facilities do not exclusively serve SOVs. 
The New York State Association of MPOs commented that decisions about 
congestion are variable, and that flexibility in defining and 
addressing congestion is important. The FHWA and FTA agree that SOV 
facilities might not exclusively serve SOVs and feel the final rule 
provides MPOs the flexibility to define and address congestion.
    The MARC noted that the CMP has a linkage to the performance-based 
planning process. The FHWA and FTA response to this comment is that the 
CMP and the performance-based planning and programming processes do 
have linkages. Specifically, section 450.306(d)(4)(vii) requires that 
an MPO shall integrate them into the metropolitan transportation 
planning process, directly or by reference, the goals, objectives, 
performance measures, and targets from other federally required 
performance-based plans and process, such as the CMP.
    The New York State Association of MPOs commented that they support 
a coordinated plan for data collection and propose that the last 
sentence in section 450.322(d)(3) mention that public safety agencies 
are a potential source of data related to incident management and non-
recurring congestion. The FHWA and FTA have reviewed this comment and 
have decided not to specifically add language that public safety 
agencies could be a source of safety data because this section does not 
specifically provide a list of agencies and the data they might 
provide.
    The New York State Association of MPOs noted that intelligent 
transportation system (ITS) technologies are not a congestion 
management strategy, and that it is more appropriate to reference the 
importance of implementing the adopted ITS regional architecture. In 
response, FHWA and FTA note that the final rule describes ITS 
technologies as they relate to the regional ITS architecture as a 
congestion management strategy, and so no change was made.
    Section 1201 of the FAST Act amended 23 U.S.C. 134(k)(3)(A) to add 
a list of examples of travel demand reduction strategies and to add job 
access projects as a congestion management strategy. The final rule at 
section 450.322(a) is amended to reflect this change.
    Section 1201 of the FAST Act amended 23 U.S.C. 134(k)(3)(C) to 
allow that an MPO serving a TMA may develop a congestion management 
plan. The final rule at section 450.322(h)(1) and (2) is amended to 
reflect this change.
Section 450.324 Development and Content of the Metropolitan 
Transportation Plan
    Fifty-one commenters (AASHTO, Albany MPO, AMPO, ARC, CALTRANS, 
Community Labor United, CT DOT, DVRPC, DRCOG, Enterprise Community 
Partners, Florida MPO Advisory Council, FMATS, Front Range Economic 
Strategy Center, IA DOT, MAG, Macatawa MPO, MARC, Maui MPO, ME DOT, MET 
Council, MTC, MO DOT, NARC, National Housing Conference, National Trust 
for Historic Preservation, New York State Association of MPOs, NJ DOT, 
North Florida MPO, NRDC, NYMTA, NYMTC, PA DOT, Partnership for Active 
Transportation, Partnership for Working Families, Policy Link, Portland 
Metro, PSCOG, Public Advocates, SACOG, San Luis Obispo MPO, SANDAG, 
Santa Cruz County MPO, SCAG, SEMCOG, SJCOG, TX DOT, United Spinal 
Association, VA DOT, WA State DOT, Westchester County Department of 
Public Works, WFRC, and WMATA) submitted comments on this section to 
the docket. Twenty were from MPOs, 11 from States, 12 from advocacy 
groups, 5 from transportation associations, and 3 from public transit 
agencies.
Section 450.324(a)
    At least three MPOs (Albany MPO, San Luis Obispo COG, and WFRC) 
commented that in section 450.324(a) the regulations should allow for a 
MTP that has more than a 20-year planning horizon. The FHWA and FTA 
respond that these regulations allow for MTPs with a 20-year or greater 
planning horizon.
    The NARC stated that section 450.324(a) is inconsistent, in that it 
states that the metropolitan transportation plan shall address no less 
than a 20-year planning horizon as of the effective date. However, 
section 450.324(a) further states that in formulating the MTP, the MPO 
shall consider the factors described in section 450.306 as they relate 
to a 20-year period. The NARC further stated that many MPOs prepare 
MTPs that forecast beyond a 20-year horizon. This section appears to 
limit the consideration of factors to only a 20-year horizon, and NARC 
further suggests inserting the word ``minimum.'' The FHWA and FTA agree 
with this comment and changed the section to state that the MPO shall 
consider factors described in section 450.306 as the factors relate to 
a minimum 20-year forecast period to be consistent with the fact that 
the MTP horizon may exceed 20 years.
Section 450.324(c)
    More than one commenter (DVRPC, NJ DOT, and PA DOT) suggested that 
FHWA and FTA should consider changing the review and update cycle for 
MTPs in areas that are classified as air quality nonattainment and 
maintenance areas from 4 to 5 years. The FHWA and FTA respond to this 
comment that the statute requires MTPs in nonattainment and maintenance 
areas to be updated at least every 4 years and as a result, in keeping 
with the statutory requirement, the final rule requires updates at 
least once every 4 years.
Section 450.324(f)
    The PSRC and WA State DOT asked what the term ``current'' means in 
section 450.324(f)(1). The WA State DOT further commented that the word

[[Page 34118]]

``current'' in this section might mean that the MTP will have to be 
updated annually. The WA State DOT suggested the use of the word 
``baseline'' instead of the word ``current.''
    The FHWA and FTA response to these comments is that the word 
``current'' means at the time the plan is under development. The use of 
the word ``current'' is not meant to mean the same as ``baseline.'' The 
FHWA and FTA further respond that this provision does not mean that 
MTPs have to be updated annually. The FHWA and FTA reiterate that 
section 450.324(c) clearly states that the MPO shall review and update 
the MTP at least every 4 years in air quality nonattainment and 
maintenance areas and at least every 5 years in attainment areas.
    The MARC commented that it wanted clarification in section 
450.324(f)(1) on how current demand of persons and goods should be 
reflected in the plan. The FHWA and FTA response is that it is up to 
each MPO to determine how to meet this requirement.
    The DRCOG and DVRPC commented that the requirement in section 
450.324(f)(2) that the MTP includes pedestrian and bicycle facilities 
is extremely difficult, burdensome, and unclear. In response to this 
comment, FHWA and FTA believe that Congress intends for a multimodal 
approach to the transportation planning process. Title 23 U.S.C. 
134(b)(2) states that the MTPs and TIPs for each metropolitan area 
shall provide for the development and integrated management and 
operation of transportation systems and facilities (including 
accessible pedestrian walkways and bicycle transportation facilities) 
that will function as an intermodal transportation system for the MPA 
and as an integral part of an intermodal transportation system for the 
State and the United States.
    In drafting the NPRM and the final rule, FHWA and FTA fulfilled 
this intent by requiring that the MTP include, among other things, 
short- and long-range strategies/actions and existing and proposed 
transportation facilities that provide for pedestrian walkways and 
bicycle facilities that function as part of an integrated metropolitan 
transportation system (23 CFR 450.324(f)(2) and 23 CFR450.324(b)). The 
FHWA has recently completed the Statewide Pedestrian and Bicycle 
Planning Handbook, which is available at: http://www.fhwa.dot.gov/planning/processes/pedestrian_bicycle/pedestrian_bicycle_handbook/fhwahep14051.pdf. A metropolitan version of the handbook is under 
development and will be available soon.
    The DRCOG and RTD commented that both sections 450.324(f)(2) and 
450.324(f)(12) contain references requiring the MPO MTP to include 
pedestrian walkways and bicycle facilities. The FHWA and FTA response 
to this comment is that the commenter is correct. Reference to 
pedestrian walkways and bicycle facilities is included in the two 
sections for added emphasis, however, the context of each section is 
slightly different. Section 450.324(f)(2) refers overall to including 
existing and proposed transportation facilities such as major roadways, 
transit, multimodal and intermodal facilities, and nonmotorized 
transportation facilities, including pedestrian walkways and bicycle 
facilities that should function as an integrated transportation system 
in the MTP. Section 450.324(f)(12) refers specifically to including 
pedestrian walkway and bicycle transportation facilities in the MTP. No 
changes were made as a result of this comment.
    Section 1201 of the FAST Act amended 23 U.S.C. 134(i)(2)(A)(i) to 
add public transportation facilities and intercity bus facilities to 
the list of existing and proposed transportation facilities to be 
included in the metropolitan transportation plan. The final rule at 
section 450.324(f)(2) is amended to reflect this change.
    Several commenters (DVRPC, NYMTC, and PA DOT) commented that the 
system performance report in the MTP (section 450.324(f)(4)) should 
only consider conditions and trends at the system level, and should not 
be required to conduct a project specific analysis. The MARC commented 
that it would like flexibility in how the systems performance report 
required under section 450.324(f)(4) is integrated into the MTP. See 
section IV(B) (recurring comment themes) for more discussion on this 
issue and FHWA and FTA responses.
    At least two commenters (IA DOT and New York State Association of 
MPOs) commented that it is not clear what the term ``subsequent 
updates'' refers to in sections 450.324(f)(4) and 450.216(f)(2). The 
FHWA and FTA response is that the term ``subsequent update'' refers to 
the update of the MTP or the long-range statewide plan and is defined 
in section 450.104. Update of the MTP or the long-range statewide 
transportation plan means making a MTP or a long-range statewide 
transportation plan current through a comprehensive review. Updates 
require public review and comment; a 20-year horizon for MTPs and long-
range statewide plan; a demonstration of fiscal constraint for the MTP; 
and a conformity determination for MTPs in nonattainment and 
maintenance areas. Section 450.324(c) requires the MPO to review and 
update the MTP at least every 4 years in air quality nonattainment and 
maintenance areas and at least every 5 years in attainment areas.
    Section 450.324(f)(4) requires that with the update to the 
metropolitan plan, and each update thereafter, the MPO also will update 
the evaluation of the condition and performance of the transportation 
system with respect to the performance targets described in section 
450.306(d) as part of the update of the MTP. Similarly, 405.216(f)(2) 
means the State will update the evaluation of the condition and 
performance of the transportation system with respect to the 
performance targets described in section 450.206(c)(2) as part of the 
update of the long-range statewide transportation plan. No changes to 
the final rule are required as a result of this comment.
    The NYMTA commented on section 450.324(f)(4) that the cycle for 
subsequent updates to the system performance report should be 
clarified. Specifically, it wanted to know if this means each MTP 
update, or if more frequent updates to the system performance report 
are required independent of the MTP update. The FHWA and FTA response 
to this comment is that the system performance report in the MTP has to 
be updated when the MTP is updated. Update cycles for the MTP are 
described in section 450.324(c).
    The IA DOT commented on section 450.324(f)(4)(ii) that it appears 
that the analysis of how the preferred scenario has improved the 
conditions and performance of the transportation system is a 
requirement, when the use of scenario planning is optional. The FHWA 
and FTA response to this comment is that for those MPOs that elect the 
option to conduct scenario planning in the development of their MTPs, 
the provision in section 450.324(f)(4)(ii) is a requirement (23 CFR 
450.324(f)(4)(ii) and 23 U.S.C. 134(i)(2)(C)(ii)).
    For section 450.324(f)(4)(ii), the WA State DOT requests revision 
to clarify that the analysis of how changes in local policies and 
investments have impacted the costs necessary to achieve the identified 
performance targets can be a general discussion of broad policy. In 
response to this comment, FHWA and FTA do not believe that this 
additional clarification is necessary. As written, the requirement is 
fairly nonprescriptive

[[Page 34119]]

in how it would be carried out. The FHWA and FTA believe that it is up 
to the MPO, within reason, to decide how to meet this requirement. 
After publication, FHWA and FTA plan to issue guidance and share best 
practices on this requirement. No changes were made as a result of this 
comment.
    Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(2)(G) to add 
``reduce the vulnerability of the existing transportation 
infrastructure to natural disasters'' to the assessment of capital 
investment and other strategies to preserve the existing and projected 
future metropolitan transportation infrastructure in the metropolitan 
transportation plan. Section 450.324(f)(7) of this final rule is 
amended to include this new provision.
    Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(2)(H) to add 
consideration of the role intercity buses may play in reducing 
congestion, pollution, and energy consumption as part of the 
metropolitan transportation plan. Section 450.324(f)(8) of this final 
rule is amended to include this new provision.
    The ARC supports the optional provision in section 
450.324(f)(11)(iii) for including an assessment of the appropriateness 
of innovative finance techniques as revenue sources for the projects in 
the MTP. However, ARC states that it is unclear to what level of detail 
is expected. In response, FHWA and FTA note that FHWA has previously 
issued guidance on fiscal constraint, which includes guidance on 
innovative finance techniques and fiscal constraint.\29\
---------------------------------------------------------------------------

    \29\ ``Guidance on Financial Planning and Fiscal Constraint for 
Transportation Plans and Programs, FHWA, April 17, 2009, http://www.fhwa.dot.gov/planning/guidfinconstr.cfm.
---------------------------------------------------------------------------

    The Florida MPO Advisory Council commented that this provision is 
an important step in not only encouraging MPOs to consider new and 
innovative financing techniques very early in the planning process, but 
also places emphasis on the feasibility of implementing those financing 
techniques. The Partnership for Active Transportation commented that 
the consideration of innovative financing techniques should encourage 
those techniques in the context of active transportation such as 
pedestrian and bicycle projects. The FHWA and FTA response is that this 
provision is intended to be considered for all types of transportation 
projects, including bicycle and pedestrian projects.
    For section 450.324(f)(11)(iii), the WA State DOT recommends the 
section be revised to clarify that the discussion of strategies for 
ensuring their availability can be a general discussion of the types of 
actions that would be necessary to implement new revenue sources. In 
response to this comment, FHWA and FTA note that they have issued 
guidance on fiscal constraint that includes information on this 
specific topic that an MPO can use to understand how to carry out this 
requirement. No changes were made as a result of this comment.
    The ARC suggested that for section 450.324(f)(11)(iv), FHWA and FTA 
provide guidance on the topic of ``year of expenditure.'' The FHWA and 
FTA have previously issued guidance on this topic. It is available at: 
http://www.fhwa.dot.gov/planning/guidfinconstr_qa.cfm.
    The AASHTO stated that year of expenditure should only apply to 
costs and not to revenues in the MTP (section 450.324(f)(11)(iv)). 
Similar comments were received on section 450.218(l) (development and 
content of the STIP) and section 450.326(j) (development and content of 
the MTP). The FHWA and FTA disagree with these comments. Year of 
expenditure is applied to both costs and revenues in the NPRM and final 
rule for the MTP, TIP, and STIP to provide for consistency and 
comparability of costs and revenues in these documents. The requirement 
for adjustment to year of expenditure applies to revenue and cost 
estimates developed for the STIP (section 450.218(l)), MTP (section 
450.324(f)(11)(iv)), and TIP (section 450.326(j)). The FHWA and FTA 
made no changes to those sections based on the comments. The FHWA and 
FTA note that this is consistent with the previous regulations (72 FR 
7224, 23 CFR 450.216(l), and section 450.324(h)).
Section 450.324(g)
    Section 450.324(g) describes MPO consultation 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. Section 
450.324(g)(2) states that the consultation shall involve, as 
appropriate, the comparison of transportation plans to inventories of 
natural or historic resources, if available. The National Trust for 
Historic Preservation commented that section 450.324(g)(2) should 
include additional language requiring State and local resource 
protection and historic preservation agencies to be contacted to obtain 
existing inventories, and that MPOs may fund the preparation or 
updating of such inventories, pursuant to this chapter, if inventories 
are not current or available.
    In response, FHWA and FTA reiterate that the existing language in 
section 450.324(g)(2) already requires that the MPO shall consult, as 
appropriate, with State and local agencies responsible for natural 
resources, environmental protection, and historic preservation and a 
comparison of transportation plans to inventories of natural or 
historic resources, if available. The FHWA and FTA also respond that 
funding eligibility for activities necessary to support metropolitan 
transportation planning under the final rule is described in section 
450.308. No changes were made as a result of these comments.
Section 450.324(h)
    The WAMTA commented on section 450.324(h) that it does not want the 
safety plans such as the HSIP (including the SHSP required under 23 
U.S.C. 148, the Public Transportation Agency Safety Plan required under 
49 U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with 
49 CFR part 659, as in effect until completion of the Public 
Transportation Agency Safety Plan) integrated into the MTP as described 
in this section. In response to this comment, FHWA and FTA note that 
the basis for this provision in the regulation predates the final rule. 
The FHWA and FTA also note that transportation safety is a major 
priority for DOT. The MAP-21 and the final rule call for the 
integration of the goals, objectives, performance measures, and targets 
from the various federally required performance-based plans and 
processes into the statewide and metropolitan transportation planning 
processes either directly or by reference, including federally required 
transportation safety plans (23 U.S.C. 134(h)(2)(D) and 135(d)(2)(C)). 
No changes were made to the final rule.
Section 450.324(i)
    Many MPOs (Albany MPO, AMPO, ARC, Metropolitan Council MPO, 
Portland Metro, SCCRTC, and WMATA), some States (CALTRANS, CT DOT, and 
NJ DOT), and one advocacy organization (NRDC) commented that they 
support the voluntary option for MPOs to utilize scenario planning in 
the development of an MTP as described in section 450.324(i). A few 
commenters (DVRPC and PA DOT) commented that scenario planning is 
already being used in the development of their MTPs. The NRDC stated 
that they liked the detailed description of scenario planning in this 
section and the definition of the term ``visualization'' in section 
450.104. The

[[Page 34120]]

NRDC and WAMATA further commented that FHWA and FTA should provide 
detailed training, guidance, and additional resources on scenario 
planning. The WAMATA also commented that FHWA and FTA should use the 
final rule to promote scenario planning as a best practice and tie 
scenario planning to performance measures and targets.
    In response, FHWA and FTA note that they have developed guidance, 
training, peer exchanges, and examples of practice on scenario planning 
and visualization, which is available at: http://www.fhwa.dot.gov/planning/scenario_and_visualization/scenario_planning/index.cfm. The 
FHWA and FTA regularly update this material. The FHWA and FTA are 
researching the use of scenario planning with performance-based 
planning. The FHWA and FTA note that section 450.324(f)(4)(ii) states 
that MPOs that voluntarily elect to develop multiple scenarios as part 
of the development of the MTP shall conduct an analysis of how the 
preferred scenario has improved conditions and performance of the 
transportation system as part of the system performance report required 
under section 450.324(f)(4).
    Several MPOs (MTC, NARC, SACOG, SANDAG, SCAG, and SJCOG) and the TN 
DOT suggested changes to the language on scenario planning in this 
paragraph. The MTC, SACOG, SANDAG, SCAG, and SJCOG stated that they are 
supportive of scenario planning and its inclusion in the final rule. 
However, they believe that the language in the NPRM describing what 
specific scenarios MPOs should analyze is overly prescriptive. They 
further commented that instead of identifying specific performance-
driven scenarios that should be evaluated, the language should be 
clarified that MPOs should develop a range of reasonable scenarios and 
carefully consider their performance impacts.
    In response to this comment, FHWA and FTA reiterate that the use of 
scenario planning by MPOs as described in section 450.324(i) is 
voluntary, and that the examples of scenarios described under section 
450.324(i)(1) are only for consideration. No changes were made to the 
final rule based on this comment.
    The ARC commented that since scenario planning is optional, the 
elements considered when doing scenario planning should also be 
optional for the MPO in section 450.324(i). In response to this 
comment, FHWA and FTA reiterate that scenario planning is optional 
under section 450.324(i) and that it is up to the MPO to determine the 
elements to be considered when doing scenario planning. However, 
section 450.324(f)(4)(ii) requires that for MPOs that voluntarily elect 
to develop multiple scenarios, the metropolitan transportation plan 
shall include an analysis of how the preferred scenario has improved 
conditions and performance of the transportation system as part of its 
systems performance report (23 U.S.C. 134(i)(2)(c)(ii)).
    Section 450.324(i) states that an MPO may voluntarily elect to 
develop multiple scenarios for consideration as part of the development 
of the MTP. The TN DOT suggested that this language could be 
strengthened by replacing the phrase ``an MPO may voluntarily elect'' 
with the phrase ``MPOs are encouraged to develop multiple scenarios.'' 
In response to this comment, FHWA and FTA believe that Congress 
intended for the use of scenario planning by MPOs to be voluntary (23 
U.S.C. 134(i)(4)(A)) and FTA and FHWA want to convey that intent. No 
changes were made to the final rule based on this comment.
    The NARC suggested that the language concerning scenario planning 
in section 450.324(i) be changed from ``an MPO may, while fitting the 
needs and complexity of its community, voluntarily elect to develop 
multiple scenarios for consideration as part of the development of the 
metropolitan plan'' to ``an MPO may voluntarily elect to develop 
multiple scenarios for consideration as part of the development of the 
MTP.'' In response to this comment, FHWA and FTA believe that an MPO 
may want to be sensitive to the needs and complexity of its community 
as it decides whether or not to use scenario planning and the extent to 
which it might use it as part of developing its MTP. No changes were 
made to the final rule based on this comment.
    The NARC also suggested a change to section 450.324(i)(1)(iv), 
which states ``a scenario that improves the conditions for as many of 
the performance measures identified in section 450.306(d) as possible'' 
be changed to ``a scenario that improves the baseline conditions for 
one or more of the performance measures identified in section 
450.306(d).'' In response to this comment, FHWA and FTA reiterate that 
an MPO may create scenarios that improve the baseline conditions for 
one or more of the performance measures identified in section 
450.306(d). Section 450.324(i)(1)(iv) encourages that at least once 
scenario improve the baseline conditions for as many of the performance 
measures identified in section 450.306(d) as possible. No changes were 
made to the final rule based on this comment.
    The AMPO commented on section 450.324(i) that it does not want 
scenario planning to be a factor in FHWA and FTA planning certification 
reviews of TMAs. The FHWA and FTA response to this comment is that, 
although the use of scenario planning is optional, FHWA and FTA will 
typically include discussion on scenario planning in planning 
certification reviews to assess the state of the practice with scenario 
planning and to promote it as a best practice.
    The MARC commented on section 450.324(i)(2) that it supports the 
provision in this section whereby an MPO may evaluate scenarios 
developed using locally developed measures in addition to the 
performance areas identified in 23 U.S.C. 150(c), 49 U.S.C. 5326(c), 49 
U.S.C. 5329(d), and 23 CFR part 490.
    At least seven advocacy groups (Community Labor United, Front Range 
Economic Center, National Association of Social Workers, Partnership 
for Working Families, PolicyLink, Public Advocates, and United Spinal 
Association) suggested that scenario planning be used by MPOs to 
analyze the impact of investments and policies on the transportation 
system including prioritizing the needs of low-income populations, 
minorities, or people with disabilities. The National Housing 
Conference suggested that MPOs should consider housing needs when 
conducting scenario planning. See section IV(B) (recurring comment 
themes) for more discussion on this issue and FHWA and FTA responses.
Section 450.324(j)
    Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(6)(A) to add 
public ports to the list of entities that an MPO shall provide a 
reasonable opportunity to comment on the metropolitan transportation 
plan and adds a list of examples of private providers of 
transportation. Section 450.324(j) of this final rule is amended to 
include these new provisions.
    The AMPO commented that States, MPOs, and operators of public 
transportation should not be subject to financial consequences or 
additional reporting requirements for not achieving established 
targets. The FHWA and FTA response is that under the final rule, MPOs, 
and operators of public transportation are not subject to financial 
consequences or additional reporting requirements for not achieving 
established targets. The comment is outside the scope of the final 
rule. As

[[Page 34121]]

there may be consequences for not achieving established targets under 
the other performance management rules for the States (not the MPOs), 
the commenter is encouraged to review the other performance management 
rules. Although there are no consequences for failing to meet 
established performance targets under this final rule, there may be 
consequences for not meeting the performance-based planning and 
programming requirements under this final rule and 23 U.S.C. 134 and 
135. The consequences might be identified through the STIP approval and 
statewide transportation planning finding of the FHWA and FTA (23 CFR 
450.220); the planning certification reviews of TMAs (23 CFR 450.336); 
or other means such as transportation planning certification reviews in 
TMAs.
    Several commenters (FMATS, NARC, and NRDC) suggested that the 
States and MPOs should be subject to the same requirements. For 
example, MPOs are required to include federally required performance 
targets in their MTPs, but due to amendments to 23 U.S.C. 135(f)(7) 
made by FAST, it is now required that States to include federally 
required performance targets in the long-range statewide transportation 
plan. See section IV(B) (recurring comment themes) for more discussion 
on this issue and FHWA and FTA responses.
Section 450.326 Development and Content of the Transportation 
Improvement Program (TIP)
    Thirty-five entities (AASHTO, Albany MPO, AMPO, ARC, Center for 
Social Inclusion, DRCOG, DVRPC, Enterprise Community Partners, Florida 
MPO Advisory Council, FMATS, French Broad River MPO, H-GAC, IA DOT, KY 
TC, MAG, MARC, MET Council, MTC, NARC, National Housing Conference, 
NCTCOG/RTC, New York State Association of MPOs, North Florida MPO, 
NRDC, NYMTA, NYMTC, Orange County Transit, PA DOT, SACOG, San Luis 
Obispo MO, SANDAG, Santa Cruz MPO, SCAG, SJCOG, TriMet, TX DOT, WA 
State DOT, and Wilmington MPO) submitted comments on this section. 
Eighteen comment letters were submitted by MPOs, 6 by States, 5 by 
associations representing transportation agencies, 4 by advocacy 
organizations, and 2 by operators of public transportation.
Section 450.326(a)
    The WA State DOT commented on section 450.326(a) that it is unclear 
why only the investment priorities are singled out as an element that 
must be reflected in the TIP, as opposed to ensuring that projects in 
the TIP are consistent with the MTP. The commenter further recommended 
that section 450.326(a) be rewritten to state that the TIP shall be 
consistent with the MTP; cover a period of no less than 4 years; be 
updated at least every 4 years; and be approved by the Governor and the 
MPO. The WA State DOT recommends deleting the phrase ``that the TIP 
shall reflect the investment priorities established in the current 
MTP.''
    In response to this comment, FHWA and FTA reiterate that section 
450.324(a) states that the TIP shall reflect the investment priorities 
established in the MTP, shall cover a period of no less than 4 years, 
and shall be updated at least every 4 years. The FHWA and FTA note also 
that in 23 U.S.C. 134(j)(1)(ii), Congress specifically stated that the 
MPO shall develop a TIP for the metropolitan area that reflects the 
investment priorities established in the current MTP. The FHWA and FTA 
further state that section 450.326(i) requires that each project or 
project phase included in the TIP shall be consistent with the approved 
MTP. Based on this comment, no changes were made to the final rule.
    The DVRPC asked what is meant by ``the cycle for updating the TIP 
must be compatible with the STIP development process in section 
450.326(a).'' The DRCOG and RTD questioned why the TIP and STIP cycles 
must be compatible if the TIP is supposed to be incorporated in the 
STIP without changes. In response, FHWA and FTA reiterate that the TIP 
shall include capital and non-capital surface transportation projects 
within the boundaries of the MPA proposed for funding under 23 U.S.C. 
and 49 U.S.C. Chapter 53, as described in section 450.326(e). 
Furthermore, the STIP must include the TIP without change in accordance 
with section 450.218(b). The provision in section 450.326(a) which 
states that the cycle for updating the TIP must be compatible with the 
STIP development process means that the TIP update cycle must be 
compatible so that the MPO TIP may be incorporated into the STIP by the 
State, and so that the proposed projects for the STIP may be 
incorporated into the MPO TIP.
Section 450.326(c)
    The DRCOG and RTD stated that it is unclear in section 450.326(c) 
what is meant by the statement that ``the TIP shall be designed such 
that once implemented, it makes progress toward achieving the 
performance targets.'' This sentence means that, as the MPO develops 
the TIP, the program of projects shall be developed such that the 
investments in the TIP help achieve the performance targets set by the 
MPO for the region.
    The Enterprise Community Partners and FMATS commented on section 
450.326(c) that they support increased accountability in the Federal 
transportation program by linking spending decisions to performance 
outcomes. The FHWA and FTA agree that transportation investment 
decisions should be linked to transportation performance outcomes as 
described in section 450.326(c) and in 23 U.S.C. 134(j)(1)(A)(iii) and 
134(j)(2)(D).
    The National Housing Conference and the Center for Social Inclusion 
commented that spending decisions should be linked to performance 
measures and ensure that those measures promote sustainable development 
and a more holistic view of how transportation investments can serve 
the broader community. The commenters also noted that an equity 
analysis which includes performance measures specific to equity should 
be done on the MTP and the TIP. See section IV(B) (recurring comment 
themes) for more discussion on this issue and FHWA and FTA responses.
Section 450.326(d)
    Several commenters (AASHTO, Albany MPO, DVRPC, Florida MPO Advisory 
Council, H-GAC, IA DOT, MAG, MARC, NARC, North Florida TPO, Orange 
County Transportation Authority, PA DOT, San Luis Obispo COG, SCCRTC, 
and TriMet) commented that the required discussion in section 
450.326(d) on the anticipated effect of the TIP toward achieving the 
federally required performance targets should not be on a project 
basis. They suggested instead that it should be on the basis of the 
entire program in the TIP. See section IV(B) (recurring comment themes) 
for more discussion on this issue and FHWA and FTA responses.
    The KY TC commented on section 450.326(d) that it feels it will be 
difficult to have a TIP include a description of the anticipated effect 
of the TIP toward achieving the performance targets in the plan because 
it has a short timeframe and includes projects that would not be fully 
implemented. The KY TC suggested that it would rather see this 
requirement as part of the MTP.
    In response to this comment, FHWA and FTA believe that Congress 
intended for the TIP to include, to the maximum extent practicable, a 
discussion of the anticipated effect of the STIP toward achieving the 
performance targets established in the MTP, linking investment 
priorities to those

[[Page 34122]]

performance targets (23 U.S.C. 134(j)(2)(D)). The FHWA and FTA believe 
that this requirement is reasonable, given that the TIP implements the 
first 4 years of the MTP, and the investment priorities of the TIP 
should be linked to the MTP. The MPOs are encouraged to coordinate with 
their States and operators of public transportation when developing 
this discussion. The FHWA and FTA anticipate issuing guidance after the 
final rule is published to aid States and MPOs in meeting this 
requirement. The FHWA and FTA note that there is a separate requirement 
in section 450.324(f)(4) that MPOs include a system performance report 
in the MTP evaluating the condition and performance of the 
transportation system with respect to the performance targets described 
in section 450.306(d) that includes a description of progress achieved 
by the MPO in meeting the performance targets.
    The ARC commented on section 450.326(d) that it is unlikely that 
the projects within a 4-year program will actually result in a target 
being met. The FHWA and FTA note that this comment is outside the scope 
of the final rule.
    The IA DOT commented on section 450.326(d) that the definition of 
``maximum extent practicable'' is unclear. The term ``to the maximum 
extent practical'' means capable of being done after taking into 
consideration the cost, existing technology, and logistics of 
accomplishing the requirement. The FHWA and FTA note that States and 
MPOs should include work tasks and funding in their State planning and 
research and unified planning work programs for carrying out the 
requirements necessary for the implementation of performance-based 
planning and programming requirements, including the requirements of 
this section, in their federally required metropolitan and statewide 
transportation planning work programs to accomplish the purposes of 
this part and section. The FHWA and FTA intend to issue guidance on the 
requirements of section 450.326(d) after the publication of this final 
rule and the other performance related rules.
    One commenter stated that in section 450.326(d), it is unclear what 
the difference is between TIP investments and investment priorities. In 
response, TIP investments and investment priorities are the same thing. 
They are the program of projects in the TIP.
    The FMATS stated that as the long-range statewide transportation 
plan, MTPs, STIPs, and TIPs direct investment priorities, it is 
critical to ensure that performance targets are considered during the 
development of these documents. The FHWA and FTA agree with this 
comment and reiterate that the final rule requires that the TIP be 
designed such that once implemented, it makes progress toward achieving 
the performance targets established under section 450.306(d). The final 
rule also requires that the TIP shall include, to the maximum extent 
practicable, a description of the anticipated effect of the TIP toward 
achieving the performance targets identified in the metropolitan plan, 
linking investment priorities to those performance targets (section 
450.326(e)). Similarly, the STIP shall include, to the maximum extent 
practicable, a discussion of the anticipated effect of the STIP toward 
achieving the performance targets identified by the State in the long-
range statewide transportation plan or other State performance-based 
plan(s), linking investment priorities to those performance targets 
(section 450.218(q)).
    The NYMTC commented that section 450.326(d) should only apply with 
updates to the TIP but not to TIP amendments. The FHWA and FTA response 
to this comment is that the requirements in section 450.326(d) only 
apply to TIP updates.
    Several commenters (Metropolitan Council MPO, NCTCOG/RTC, NYMTC, 
and Regional Transportation Council) objected to the provision in 
section 450.326(d) that the discussion of the anticipated effect of the 
TIP toward achieving the performance targets identified in the MTP 
should be consistent with the strategies to achieve targets presented 
in the MTP and other performance management plans such as the highway 
and transit asset management plans, the SHSP, the public transportation 
agency safety plan, the CMAQ performance plan, and the State freight 
plan (if one exists). The commenters stated that this overreaches and 
that FHWA and FTA should remain within the statutory requirements.
    The FHWA and FTA agree with this comment and are eliminating the 
provision on consistency with the list of other performance management 
plans that was proposed for inclusion in section 450.326(d). The FHWA 
and FTA note that under section 450.306(d)(4), MPOs are required to 
integrate the goals, objectives, performance measures, and targets 
described in other State plans and processes and any plans developed 
under 49 U.S.C. chapter 53 by operators of public transportation into 
the metropolitan transportation planning process. Examples of other 
plans or processes are listed in section 450.306(d)(4). The FHWA and 
FTA believe that the provisions in section 450.306(d)(4) are sufficient 
to ensure the integration of elements of other federally required 
performance-based plans and processes.
Section 450.326(e)
    The KY TC commented that in section 450.326(e)(2) and 
450.326(e)(4), FHWA and FTA inadvertently left out reference to NHPP 
funds, while reference to NHS funds was appropriately deleted. The FHWA 
and FTA response to this comment is that this was deliberate. Reference 
to the NHPP funds was not included because planning projects are not 
eligible for NHPP funds. This was a change in MAP-21, section 1106(a), 
and 23 U.S.C. 119(d).
    On sections 450.326(e)(2) and 450.326(e)(4), KY TC commented that 
it is not clear to what the term ``metropolitan planning projects'' 
refers. In response to this comment, FHWA and FTA clarify that 
metropolitan planning projects are planning projects that fund 
activities necessary to support the requirements of 23 U.S.C. 134. No 
changes were made as a result of this comment.
    The NYMTC and NYS DOT supported the optional exclusion of emergency 
relief projects from the TIP, as described in section 450.326(e)(5). 
The FHWA and FTA retained this provision without changes in the final 
rule.
    The NYS DOT and NY MTA commented that section 450.326(e)(5) should 
clarify that the repair of damaged assets in an operational right-of-
way is not a substantial functional, locational, or capacity change in 
regards to emergency relief projects. The FHWA and FTA respond that 
this comment is outside the scope of the final rule.
Section 450.326(j)
    The AASHTO suggested that in section 450.326(j), only the cost 
estimates in the TIP should be subject to an adjustment to be shown in 
year of expenditure dollars, and not both cost estimates and revenue 
projections. Another commenter suggested that FHWA and FTA should 
develop a national inflation rate that all MPOs could use at their 
option for adjustment of the TIP to year of expenditure. The ARC 
commented that FHWA and FTA should provide additional guidance on year 
of expenditure, given that there is considerable variation in 
assumptions made by MPOs around the Nation regarding inflation rates. 
See FHWA and FTA responses to similar questions in section 450.324(f) 
in the section-by-section analysis.
    The North Florida TPO commented that the requirement in section

[[Page 34123]]

450.326(j) that the TIP contain a financial plan is redundant because 
funding availability is demonstrated in the MTP. In response, FHWA and 
FTA note that the requirement to include a financial plan with the TIP 
is long-standing and specifically required by statute (23 U.S.C. 
134(j)(2)(B)). The FHWA and FTA note that the time horizons of the MTP 
and TIP are different. The financial plan for the TIP demonstrates how 
the approved TIP, which covers a 4-year period, can be implemented. The 
MTP covers a 20-year horizon and the financial plan for the 
metropolitan plan describes how the 20-year MTP can be implemented. 
Based on this comment, no changes were made to the final rule.
Section 450.326(m)
    The TX DOT commented that the language stating that the TIP should 
be informed by the financial plan and the investment strategies from 
the State asset management plan for the NHS and by the public transit 
asset management plan is confusing and could potentially be interpreted 
and applied inconsistently. See section IV(B) (recurring comment 
themes) for more discussion on this issue and FHWA and FTA responses.
Additional Section 450.326 Comments
    The FMATS commented that it is essential for the States and MPOs to 
develop performance targets in full coordination with each other to 
ensure that performance targets are considered during the development 
of STIPs and TIPs, and that investment priorities are tied to targets. 
See section IV(B) (recurring comment themes) for more discussion on 
this issue and FHWA and FTA responses
    The AMPO commented that there should be no financial consequences 
or additional reporting requirements for not achieving established 
targets. See section 450.324 in the section-by-section analysis for the 
FHWA and FTA response to this recurring comment.
    The Board of the French Broad River MPO and Wilmington MPO 
commented that FHWA should encourage the State, rather than the MPOs, 
to be responsible for establishing and tracking performance in the TIP. 
In response to this comment, FHWA and FTA reiterate that the final rule 
requires the States and the MPOs to establish performance targets and 
to track progress in achieving performance.
    The Center for Social Inclusion suggested that FHWA and FTA 
incentivize States and MPOs by establishing a competitive grant 
program, similar to TIGER, to assist with coordination, planning, and 
implementation efforts that aligns and coordinates all agency long- and 
short-term transportation plans. In response, FHWA and FTA note that 
the TIGER competitive grant program was specifically established and 
funded by Congress through statute. Congress has not provided authority 
for a program similar to the one suggested in the comment.
    The NRDC commented that they disapprove of the differences between 
the sections covering TIPs and the sections covering STIPs, 
particularly the use of the words ``may'' and ``shall.'' See section 
IV(B) (recurring comment themes) for more discussion on this issue and 
FHWA and FTA responses.
    Section 450.326(n) of the NPRM discussed procedures or agreements 
that distribute sub-allocated Surface Transportation Program (STP) 
funds or funds under 49 U.S.C. 5307 to individual jurisdictions or 
modes within the MPA by predetermined percentages or formulas 
inconsistent with the legislative provisions that require the MPO, in 
cooperation with the State and operator of public transportation, to 
develop a prioritized TIP. In the final rule, section 450.326(n) became 
450.326(m) and the phrase ``or funds under 49 U.S.C. 5307'' was deleted 
because this provision does not apply to 49 U.S.C. 5307 funds. The FHWA 
and FTA deleted the phrase ``or funds under 49 U.S.C. 5307'' from the 
final rule because it is not consistent with FTA Circular C9030.1E, 
which permits section 5307 funds to be sub-allocated according to a 
formula.
    The FHWA and FTA note that section 450.326(p) in the NPRM became 
450.326(o) in the final rule, and is unchanged. Section 450.326(q) 
became section 450.326(p), and is unchanged.
Section 450.328 TIP Revisions and Relationship to the STIP
    The APTA commented that performance targets should be updated when 
the TIP is updated, and should not require updating when the TIP is 
amended. In response, FHWA and FTA note that FHWA and FTA are required 
to establish national performance measures by rulemaking under 23 
U.S.C. 150(c), 49 U.S.C. 5326(c), and 49 U.S.C. 5329(d). Each MPO is 
required to establish performance targets not later than 180 days after 
the date on which the relevant State or operator of public 
transportation establishes the performance targets, as provided in 
section 450.306(d)(3). The performance measures and targets are 
required to be reflected in the MPO MTP with the next plan update on or 
after the date that is equal to, or greater than, the date that is 2 
years after the performance measures rules are effective, and with each 
subsequent MTP update (section 450.340).
    The final rule and MAP-21 require that the TIP shall include, to 
the maximum extent practicable, a description of its anticipated effect 
toward achieving the performance targets identified in the MTP. This 
requirement applies to each update of the TIP. See section 450.340 for 
a description of the phase-in of the new requirements for performance-
based planning and programming.
    The FHWA and FTA made no changes to the final rule.
Section 450.330 TIP Action by FHWA and FTA
    The WA State DOT requested that the language in section 450.330(c) 
be modified to state that the 12-month conformity lapse grace period 
applies to TIP amendments. The FHWA and FTA response is that section 
450.326(p) describes the impacts of the conformity lapse grace period 
to the TIP. The FHWA also issued guidance on the implications of a 
conformity lapse grace period in a memorandum dated May 29, 2012.\30\ 
This guidance includes information on the implications of a conformity 
lapse grace period on the MTP and TIP. There is also information 
available on the implications of the conformity lapse grace period in 
the January 24, 2008, amendments to the final rule on transportation 
conformity.\31\ Because section 450.326(p), the guidance, and the 
amended EPA conformity regulations are available, FHWA and FTA do not 
believe it is necessary to make changes to section 450.330(c). Based on 
this comment, no changes were made to this section.
---------------------------------------------------------------------------

    \30\ FHWA Memorandum dated May 29, 2012, ``Subject: Information: 
Frequently Asked Questions on the Transportation Conformity Lapse 
Grace Period,'' http://www.fhwa.dot.gov/environment/air_quality/conformity/reference/faqs/lapsegrace.cfm.
    \31\ Federal Register, Vol. 73, No. 16, January 24, 2008, EPA 
Final Rule, Transportation Conformity Rule Amendments to Implement 
Provisions Contained in the 2005 Safe, Accountable, Flexible, 
Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-
LU), http://www.gpo.gov/fdsys/pkg/FR-2008-01-24/pdf/E8-597.pdf.
---------------------------------------------------------------------------

Section 450.332 Project Selection From the TIP
    Three commenters (New York Association of MPOs, RTC of Southern 
Nevada, and Transportation for America) submitted comments on this 
section. The RTC of Southern Nevada requested that the language that 
describes project selection procedures

[[Page 34124]]

for projects on the NHS be removed from the final rule. The RTC of 
Southern Nevada recommended instead that project selection be based on 
the underlying responsibility (ownership) for the roadway. The 
commenter's reasoning for their recommendation is that with the 
expansion of the NHS, many more miles of NHS roadway are now on non-
State, locally owned roads, and that the State will now be responsible 
for selecting projects on roads over which it has no jurisdiction.
    In response to this comment, FHWA and FTA believe that Congress 
intended that States have project selection authority for projects on 
the NHS. Title 23 U.S.C. 134(k)(4) states that projects carried out on 
the NHS within the boundaries of an MPA serving a TMA shall be selected 
for implementation from the approved TIP by the State, in cooperation 
with the MPO designated for the area. This requirement is long-standing 
and was continued under the MAP-21 and FAST. The FHWA and FTA made no 
changes to the final rule based on this comment.
    The New York State Association of MPOs and Transportation for 
America suggested that MPOs that do not serve TMAs should have the same 
project selection authority as MPOs that serve TMAs. In response, FHWA 
and FTA believe that it is the intent of Congress that the selection of 
federally funded projects in metropolitan areas not designated as a TMA 
shall be carried out by the State for projects funded under title 23 
and by the designated recipients of public transportation funding under 
chapter 53 of title 49 (23 U.S.C. 134(j)(5)). This requirement is long-
standing and was continued under the MAP-21 and FAST. Based on these 
comments, FHWA and FTA made no changes to the final rule.
Section 450.334 Annual Listing of Obligated Projects
    This section concerns the requirements for an annual listing of 
obligated projects in metropolitan areas. Section 450.334 requires 
that, in MPAs, the States, MPOs, and operators of public transportation 
cooperatively develop a list of projects for which funds under 23 
U.S.C. or chapter 53 of 49 U.S.C. were obligated in the preceding 
program year. The MARC suggested that the final rule include a 
requirement that FHWA division offices and FTA regional offices provide 
information to MPOs from their databases on obligations that could be 
used in producing this list so that citizens have access to the best 
information available.
    In response to this comment, FHWA and FTA encourage States, MPOs, 
and operators of public transportation to work with their FHWA division 
and FTA regional offices to ensure that the information provided on 
annual listing of obligated projects is accurate. The FHWA and FTA find 
that no changes to this section are necessary.
Section 450.336 Self-Certifications and Federal Certifications
    Nine entities (Community Labor United, DRCOG, Front Range Economic 
Strategy Center, MARC, National Association of Social Workers, New York 
State Association of MPOs, Partnership for Working Families, Policy 
Link, The Leadership Conference on Civil and Human Rights, and United 
Spinal Association) provided comments on this section. The comments 
were received from seven advocacy groups and two MPOs.
    Several commenters (Community Labor United, Front Range Economic 
Strategy Center, National Association of Social Workers, Partnership 
for Working Families, Policy Link, The Leadership Conference on Civil 
and Human Rights, United Spinal Association) suggested that FHWA and 
FTA should include EJ as a topic in the Federal certification review 
process and should require States and MPOs to self-certify compliance 
with E.O. 12898. See section IV(B) (recurring comment themes) for more 
discussion on this issue and FHWA and FTA responses.
    The MARC suggested that it is a duplication of effort for States 
and MPOs to self-certify when FHWA and FTA conduct certification 
reviews of the planning process in TMAs. The FHWA and FTA disagree with 
this comment. Each of these certification requirements is intended to 
meet different purposes. The Federal certification of the planning 
process in TMAs is a Federal review of compliance with the planning 
requirements in TMAs to ensure that the requirements of 23 U.S.C. 134 
are being met. The State and MPO self-certifications are self-
assessments on compliance with the requirements of 23 U.S.C. 134 and 
135. The FHWA and FTA also make a planning finding on the statewide and 
metropolitan planning process at the time of STIP approval. This 
finding assesses compliance of the planning process with 23 U.S.C. 134 
and 135.
    The first sentence in section 450.336(a) reads as follows: ``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 4 years that the metropolitan 
transportation planning process is being carried out in accordance with 
all applicable requirements.'' The DRCOG commented that this sentence 
is confusing and suggested that it be rewritten as follows: ``. . . 
concurrent with the submittal of the entire proposed TIP, at a maximum 
of at least every 4 years, to the FHWA and FTA . . .'' The FHWA and FTA 
have reviewed the commenter's proposed language and believe that it is 
unclear and does not provide additional clarity. Based on these 
comments, no changes were made to the final rule.
    The ARC commented on section 450.336 that when FHWA and FTA are 
conducting certification reviews of the TMAs, they should focus on the 
requirements of the final rule (i.e., the ``musts'' and ``shalls'') 
rather than on those things that are not required by the final rule 
(i.e., the ``should'' and ``mays''). In response, FHWA and FTA note 
that they focus on the requirements of the final rule when conducting 
certification reviews in TMAs. However, FHWA and FTA also often review 
planning practices that are not required under the final rule to glean 
best practices that can be shared with other MPOs and make 
recommendations for improvement in priority topic areas.
    The Community Labor United, Front Range Economic Strategy Center, 
and Partnership for Working Families suggested that FHWA and FTA 
certifications should be conducted every 3 years instead of every 4 
years. In response to this comment, FHWA and FTA believe that Congress 
intended for FHWA and FTA to conduct certification reviews in TMAs on a 
4-year cycle (23 U.S.C. 134(k)(5)(A)(ii)) and have reflected that in 
section 450.336(b). The FHWA and FTA believe that doing certification 
reviews more frequently than every 4 years would have limited benefits 
and would place an unnecessary increased burden on MPOs serving TMAs, 
their respective States and operators of public transportation, and the 
FHWA and FTA field offices because of the resources involved in 
preparing for, participating in, and conducting the review. Based on 
these comments, FHWA and FTA made no changes to the final rule.
    Section 450.336(a)(5) has been updated to reflect changes in the 
statutory citations resulting from FAST; section 1101(b) of MAP-21 and 
49 CFR part 26 in this section becomes section 1101(b) of FAST and 49 
CFR part 26.
Section 450.338 Applicability of NEPA to Metropolitan Transportation 
Plans
    The AASHTO commented that the new authority for PEL described in 
the

[[Page 34125]]

MAP-21 (section 1310) makes the project development process more 
complex and cumbersome, and recommended that existing authorities for 
PEL under appendix A to the final rule be retained. The FHWA and FTA 
response is that this same comment was received previously on section 
450.224. See section 450.224 of the section-by-section analysis for the 
FHWA and FTA response to this comment. The FHWA and FTA have made no 
changes to the final rule.
Section 450.340 Phase-In of New Requirements
    Section 450.340 describes the phase-in of the new requirements in 
metropolitan areas. Twenty-eight entities (AASHTO, Albany MPO, AMPO, 
ARC, Board of the French Broad River MPO, California Association for 
Coordinated Transportation, CT DOT, FMATS, GA DOT, H-GAC, IA DOT, MD 
DOT, ME DOT, MET Council, MI DOT, NARC, NYMTA, NJ DOT, North Florida 
MPO, NYMTC, RMAP, San Luis MPO, SEMCOG, TriMet, TX DOT, WA State DOT, 
WFRC, and Wilmington MPO) submitted comments on this section. Nine of 
the comment letters were from States, 14 from MPOs, 3 from 
associations, 1 from an operator of public transportation, and 1 from 
an advocacy group.
    Several commenters (AASHTO, CT DOT, FMATS, IA DOT, ME DOT, NJ DOT, 
and NYMTC) commented that they felt the 2-year phase-in period for the 
final rule is too short and that more time and flexibility is needed. 
The New York State Association of MPOs stated that the 2-year phase-in 
period for requiring MPOs to comply with the new rule is adequate. The 
FHWA and FTA believe that the 2-year phase-in schedule for MPOs is 
sufficient. The FHWA and FTA rationale for the 2-year phase-in for MPOs 
was described in the NPRM. It is based on the 2-year phase-in for the 
States, as provided for in 23 U.S.C. 135(l). The FHWA and FTA made no 
changes to the final rule based on this comment. See section IV(B) 
(recurring comment themes) for more discussion on this issue and FHWA 
and FTA responses.
    Some commenters (NJ DOT, WA State DOT, and WI DOT) suggested that 
FHWA and FTA allow for an additional 90-day comment period once all of 
the performance management related NPRMs are issued to give States and 
others the opportunity to review and possibly revise their earlier 
comments. The Sierra Club commented that it liked this comment.
    The FHWA and FTA believe that each of the rules has provided an 
robust comment period sufficien to allow stakeholders to submit 
comments. No changes were made to the final rule based on the comment.
    The WA State DOT commented that FHWA and FTA should consider 
delaying the implementation of the performance management requirements 
of the final rule from 2 years after the publication date of the final 
rule and the issuance of guidance. See section IV(B) (recurring comment 
themes) for more discussion on this issue and FHWA and FTA responses.
    Several commenters (Board of the French Broad River MPO, IA DOT, 
and Wilmington MPO) requested that FHWA and FTA further clarify the 
phase-in requirements and processes. Two commenters (California 
Association for Coordinated Transportation and WA State DOT) suggested 
that FHWA and FTA make available graphic materials to explain the 
timelines and relationships of the various new and continuing 
provisions, programs, and funding sources to make it easier to 
understand and comply. They further commented that technical assistance 
from FHWA and FTA will be important. In response, FHWA and FTA intend 
to provide guidance and technical assistance on the phase-in 
requirements and processes of the various performance related 
rulemakings.
    Two commenters (IA DOT and WRFC) provided comments on compliance 
with the 2-year phase-in provisions in this section. See section IV(B) 
(recurring comment themes, common effective date, and phase-in of new 
requirements) for additional discussion and responses on this issue.
    The NYMTC commented that MPOs should be able to incorporate goals 
and targets included in agency-specific plans into MTPs by reference 
because many of these other plans are on a schedule that is not 
consistent with the publication of the TIP or the MTP. The FTA and FTA 
response to this comment is that performance measures and targets would 
only have to be included in the MTP at the time it is updated. The 
performance measures and targets should be included directly in the MTP 
at the time it is updated.
    The NYMTA and TriMet commented that FHWA and FTA should allow 
agencies to utilize existing processes and procedures whenever 
possible. The FHWA and FTA agree that States, MPOs, and operators of 
public transportation should utilize existing processes and procedures 
to ease the implementation of performance management when possible.
    The Metropolitan Council MPO commented that in sections 450.340(e) 
and 450.340(f), the phrase ``meets the performance based planning 
requirements in this part and in such a rule'' is unnecessary and 
should be deleted. The FHWA and FTA do not agree with this comment and 
are leaving the phrase unchanged because it delineates that these 
paragraphs apply specifically to meeting the performance-based planning 
requirements in this part and in other (performance management) rules.
    The RMAP asked for clarification on how FHWA and FTA will evaluate 
MPOs serving TMAs during Federal TMA planning certification reviews on 
the progress of incorporating performance measures. The FHWA and FTA 
respond that after the transition period, they will be evaluating the 
progress of MPOs serving TMAs in implementing performance management 
based on the requirements for MPOs in the MAP-21 and the final rule. 
These requirements include, but are not limited to: Target setting for 
the federally required performance measures; progress in achieving 
targets; coordination on target setting among States, MPOs, and 
operators of public transportation linking the program of investments 
in the TIP to performance target achievement; and documentation of 
targets and progress toward achieving targets in the MTP.
Section 771.111, Early Coordination, Public Involvement, and Project 
Development
    The FHWA and FTA received no comments specific to section 771.111. 
No substantive changes were made in the final rule.
Appendix A to Part 450--Linking the Transportation Planning and NEPA 
Processes
    Appendix A to part 450 is nonbinding information that provides 
additional discussion on linking the transportation planning and NEPA 
processes. Fifteen entities provided comments on appendix A. Eleven 
comments were submitted by States, two by MPOs, one by an association 
representing public transportation agencies, and one by an advocacy 
organization.
    Several of the States (ID DOT, MT DOT, ND DOT, SD DOT, TX DOT, and 
WY DOT) and one association representing public transportation agencies 
(AASHTO) asked that DOT clarify that appendix A is nonbinding guidance. 
The FHWA and FTA agree that appendix A is nonbinding guidance. The text 
in the opening paragraph of appendix A states that appendix A is 
intended to be nonbinding and should not be

[[Page 34126]]

construed as a rule of general applicability. This is unchanged from 
the previous 2007 rule.
    The AASHTO and MT DOT stated that the new statutory authority for 
linking the planning and NEPA processes under section 1310 of the MAP-
21 (23 U.S.C. 168) is too complex and cumbersome and may deter States 
from undertaking planning and environmental linkages. The commenters 
stated that they would like to retain the ability to use the existing 
process to adopt analysis and decisions made during the transportation 
planning process.
    The FHWA and FTA response is that the existing authorities to adopt 
analysis and decisions made during the transportation planning process 
are retained in the final rule. Appendix A is unaltered by section 1310 
of the MAP-21 or the FAST Act changes to 23 U.S.C. 138. See the 
section-by-section analysis (sections 450.212 and 450.318) for more 
discussion on the new statutory authority for linking the planning and 
NEPA processes from the MAP-21 and the retention of the existing 
authorities for PEL from the 2007 rule.
    The ARTBA expressed concerns over the use of the phrase 
``significant new information'' in appendix A in determining whether or 
not an existing planning document may be used during the NEPA review. 
The FHWA and FTA believe that if there is significant new information 
since the development of planning document, it should be reviewed to 
determine if the planning document is still valid or needs updating. 
That review should be conducted by the State or other entity 
responsible for preparing the NEPA document in cooperation with the 
lead Federal agency and other affected entities (e.g., MPOs, local 
governments, operators of public transportation, and State and Federal 
resource agencies).
    The ARTBA also suggested that FHWA and FTA establish a 
clearinghouse to share and highlight examples of the successful 
implementation of planning products into NEPA reviews. The FHWA and FTA 
response is that FHWA maintains a Web site to share existing practices 
on planning and environmental linkages. The Web site is accessible at: 
http://www.environment.fhwa.dot.gov/integ/.
    The FL DOT suggested that FHWA and FTA provide further clarity on 
the role of appendix A in order to reduce the risk of 
misinterpretations in some States and division offices. The FHWA and 
FTA response is that the use of appendix A is optional and nonbinding. 
There is additional information on the aforementioned Web site on the 
use of planning and environmental linkages. It provides examples of 
effective practices, a checklist, and a guidebook on using PEL as part 
of a corridor study.
    The ARC expressed support for the language in appendix A and 
recommended no changes.
    Several commenters (AASHTO, CT DOT, and OR DOT) requested that the 
comment period be extended so that there is sufficient overlap with the 
separate NPRMs on planning and environmental linkages. The FHWA and FTA 
agreed with this comment and extended the comment period of the 
planning NPRM for 30 days to provide a 30-day overlap with the PEL 
NPRM.
    Another MPO (SCCRTC) correctly commented that the NPRM does not 
extend NEPA to MTPs or transportation improvement programs.
    In the text of appendix A, FHWA and FTA updated the number of 
positions funded for long-term, on-call staff that are detailed to an 
agency for temporary assignments to support focused and accelerated 
project review by a variety of Federal, State, tribal, and local 
agencies. The 2003 number of ``246 positions'' has been updated to 
``over 200.''
Title 49 CFR part 613, Metropolitan Transportation Planning; Statewide 
and Nonmetropolitan Transportation Planning
    This section is revised to refer to the proposed regulations in 23 
CFR part 450. Because FHWA and FTA jointly administer the 
transportation planning and programming process, the regulations were 
kept identical.

VI. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review) and DOT Regulatory 
Policies and Procedures

    The FHWA and FTA have determined that this rulemaking is a 
nonsignificant regulatory action within the meaning of EO 12866, and 
under DOT regulatory policies and procedures. In addition, this action 
complies with the principles of EO 13563. After evaluating the costs 
and benefits of these amendments, FHWA and FTA have determined that the 
economic impact of this rulemaking would be minimal. These changes are 
not anticipated to adversely affect, in any material way, any sector of 
the economy. In addition, these changes will not create a serious 
inconsistency with any other agency's action or materially alter the 
budgetary impact of any entitlements, grants, user fees, or loan 
programs. The FHWA and FTA anticipate that the economic impact of this 
rulemaking will be minimal; therefore, a full regulatory evaluation is 
not necessary. The changes proposed herein would add new analysis, 
coordination, and documentation requirements (e.g., performance-based 
planning and programming; cooperation with local officials responsible 
for transportation or, if applicable, RTPOs; and new requirements for 
TMA MPO policy board membership). In preparing this final rule, FHWA 
and FTA have sought to maintain existing flexibility of operation 
wherever possible for States, MPOs, and other affected organizations, 
and to use existing processes to accomplish any new tasks or 
activities.
    The FHWA and FTA have conducted a cost analysis identifying each of 
the regulatory changes that would have a cost impact for States, MPOs, 
or operators of public transportation, and have estimated those costs 
on an annual basis. This cost analysis is included as a separate 
document titled ``Regulatory Cost Analysis of Final Rule,'' and is 
available for review in the docket.

Regulatory Cost Assessment and Burden Analysis Response to Comments

    The regulatory analysis estimates the economic impact, in terms of 
costs and benefits, on States, MPOs, and operators of public 
transportation regulated under this action. The FHWA and FTA estimated 
the cost burden of this rule to be 2.6 percent of the total planning 
program. The FHWA and FTA concluded that the economic impact of this 
rulemaking would be minimal and the benefits of implementing this 
rulemaking would outweigh the costs.
    Sixteen respondents (AASHTO, ARC, AR DOT, CALTRANS, County of Maui 
DOT, CT DOT, DVRPC, Florida MPO Advisory Council, MD DOT, NJ DOT, North 
Florida MPO, NYMTC, PA DOT, River to Sea TPO, VA DOT, and WA State DOT) 
submitted comments to the docket regarding the regulatory burden 
associated with complying with the proposed rule described in 
``Economic Assessment: Statewide and Nonmetropolitan Transportation 
Planning and Metropolitan Transportation Planning Notice of Proposed 
Rule Making'' (Docket No. FHWA-2013-0037).
    Ten commenters (AASHTO, CT DOT, DVRPC, Florida MPO Advisory 
Council, MD DOT, NJ DOT, North Florida TPO, River to Sea TPO, VA DOT, 
and WA State DOT) indicated that the estimated annual burden of $30.8 
million documented in the NPRM underestimated the annual costs in terms 
of both funds and hours. They

[[Page 34127]]

commented that complying with the changes proposed in the NPRM and the 
introduction of performance-based planning and programming will 
significantly increase the workloads for States and MPOs.
    The NJ DOT expressed concern that the estimated 2.6 percent of 
total planning program funds to carry out the requirements of this NPRM 
is too low, especially in the short-term implementation phase. The NJ 
DOT commented that the FHWA and FTA assumption that the additional work 
will increase the annual cost of preparing a long-range transportation 
plan, STIP, and TIP by States, MPOs, and operators of public 
transportation by 15 percent, on average, seems low. The NJ DOT 
commented that implementation of MAP-21 performance-based planning and 
programming will require more effort than the additional 2,400 annual 
burden hours and indicated a large amount of up front work is needed to 
collect, format, store, and analyze data. States also need to consult, 
coordinate, and cooperate with many entities when conducting the STIP 
and statewide planning and provide oversight of MPOs. The ARC and WA 
State DOT asked that FHWA and FTA explain the assumptions behind these 
costs and assumed benefits.
    In response, FHWA and FTA estimated that the incremental cost of 
implementing the performance-based planning provisions of the final 
rule will increase the costs of preparing State and MPO long-range 
plans, STIPs, and TIPs by an average of 15 percent. This estimate is 
based on an analysis of current costs of States and MPOs that have 
implemented a performance-based approach to transportation planning and 
programming. Based on discussions with three States and three MPOs, 
FHWA and FTA believe that this assumption is reasonable.
    Based on this assumption, the total cost for implementation of 
changes to the planning process resulting from this final rule is 
estimated to be $30.9 million annually (as compared to the estimate of 
$30.8 million in the NPRM). To implement the proposed changes in 
support of a more efficient, performance-based planning process, FHWA 
and FTA estimate that the aggregate increase in costs attributable to 
the final rule for all 50 States, the District of Columbia, and Puerto 
Rico and 409 MPOs is approximately $28.4 million per year (as compared 
to the estimate of $28.3 million in the NPRM). These costs are 
primarily attributable to an increase in staff time needed to meet the 
new requirements. For the estimated 600 operators of public 
transportation that operate within MPAs, the cost would be $2.5 million 
per year to coordinate with MPOs in their selection of performance 
targets for transit state of good repair and transit safety.
    Four commenters (AASHTO, CT DOT, MD DOT, and NJ DOT) requested that 
FHWA and FTA conduct an analysis to estimate the costs to specific 
States and MPOs based on local wage rates. The NJ DOT noted that there 
are wide variations in labor wage rates and overhead rates among States 
and MPOs. The NJ DOT also noted that some States have a large network 
of roadways and transit services which will require greater resources 
to carry out this effort, as will those States that are responsible for 
the entire roadway network within their State.
    In response, FHWA and FTA note that they do not have the 
information necessary to calculate the incremental cost of the rule by 
State and MPO as it does not know the current costs of preparing each 
State and MPO long-range plan, STIP, and TIP. The estimate of 15 
percent could be applied by each State or MPO to estimate their 
respective incremental costs. The FHWA and FTA agree that the estimate 
is an average and the incremental costs to specific States and MPOs may 
differ as they vary considerably across agencies, depending on staff 
resources and priorities, and local political environment.
    The WA State DOT questioned the assumption that the average State's 
cost is similar to the cost to a large MPO. The WA State DOT suggested 
that FHWA and FTA re-evaluate these costs because the average State 
incurs more costs than a large MPO for these reasons: (1) The State is 
required to consult, coordinate, and cooperate with many more entities/
individuals than any single MPO would be required; (2) the State has 
the responsibility for the STIP, MPOs do not; and (3) the State has two 
roles, statewide planning and providing oversight to MPOs.
    In response, FHWA and FTA believe the scope and complexity of the 
responsibilities of the 54 MPOs that serve an urbanized area with a 
population greater than 1 million is comparable to the scope and 
complexity of the responsibilities of a State DOT.\32\ The FHWA and FTA 
agree that the estimate is an average and that the incremental costs to 
specific States and MPOs may differ.
---------------------------------------------------------------------------

    \32\ Forty-three of the fifty States have a population greater 
than 1 million people.
---------------------------------------------------------------------------

    The County of Maui, HI questioned why FHWA and FTA estimated that 
the incremental cost of implementing the performance-based planning 
provisions would increase the costs of preparing State and MPO long-
range plans, STIPs, and TIPs by an average of 15 percent based only on 
discussions with three States and three MPOs. The FHWA and FTA respond 
that there is limited experience in implementing a performance-based 
approach to planning and programming and invited States and MPOs to 
submit comments on this assumption in the NPRM. While three respondents 
(AASHTO, CT DOT, and NJ DOT) did indicate that the estimate of a 15 
percent increase in the cost of preparing State and MPO long-range 
plans, STIPs, and TIPs was too low, none provided documentation to 
support a different assumption.
    The WA State DOT noted that it is difficult to provide informed 
comments on costs estimates because not all of the MAP-21 performance 
management related rules impacting costs are complete. In response, 
FHWA and FTA note that the estimates of the burden of the final rule 
focus on the incremental costs of preparing performance-based State and 
MPO long-range plans, STIPs, and TIPs. However, the burden of some data 
collection, target setting, and reporting is estimated in other 
rulemakings that implement the MAP-21 performance management 
requirements.
    The FHWA will estimate the costs of additional data collection, 
target setting, and reporting through three separate rulemakings for 
performance measures and other associated requirements (National 
Performance Management Measures: Highway Safety Improvement Program 
Final Rule (RIN 2125-AF49), National Performance Management Measures: 
Assessing Pavement Condition for the National Highway Performance 
Program and Bridge Condition for the National Highway Performance 
Program NPRM (RIN 2125-AF53), and National Performance Management 
Measures: Assessing Performance of the National Highway System, Freight 
Movement on the Interstate, and the Congestion Mitigation and Air 
Quality Improvement Program NPRM (RIN 2125-AF52)).
    To estimate costs for these rules, FHWA assessed the level of 
effort, expressed in labor hours and the labor categories needed to 
comply with each component of the rule. The FHWA derived the costs of 
each of these components by assessing the expected increase in level of 
labor effort to standardize and update data collection and reporting 
systems of States, and the increase in level of labor effort for States

[[Page 34128]]

and MPOs to establish and report targets. The incremental annualized 
costs, discounted at 7 percent and 3 percent, respectively, are: $7.7 
million to $7.1 million to implement the HSIP; $21.2 million to $20.3 
million to implement the NHPP; and $18.9 million to $18.6 million to 
assess the performance of the NHS, Freight Movement on the Interstate 
System, and CMAQ Improvement Program.
    Similarly, FTA estimated the burden of data collection, plan 
preparation, target setting, and reporting through two separate 
rulemakings: National Transit Asset Management System NPRM (RIN: 2132-
AB07) and the Public Transportation Agency Safety Plan NPRM (RIN: 2132-
AB23). The estimated costs of the proposed National Transit Asset 
Management (TAM) System include the cost for the operators of public 
transportation to assess their assets, develop TAM plans, and report 
certain information to FTA. The incremental annualized costs, 
discounted at 7 percent and 3 percent, respectively, are $7.7 million 
to $7.1 million to implement the National TAM System. To implement the 
Public Transportation Agency Safety Plan rule, three main cost areas 
were estimated: (1) Developing and certifying safety plans; (2) 
implementing and documenting the SMS approach; and (3) associated 
record keeping. Staff time was monetized using data on wage rates and 
benefits in the transit industry. Over the 20-year analysis period, 
total costs are estimated at $976 million in present value (7 percent 
discount rate), or the equivalent of $92 million per year.
    Thus, the total estimated burden of implementing performance-based 
planning and programming, including the costs estimated in this and 
other related rulemakings that implement the MAP-21 performance 
management requirements, ranges from $175 million to $177 million per 
year. This cost estimate represents 3.6 million labor hours annually at 
$48.69 per hour.
    The WA State DOT anticipates incurring additional costs to provide 
assistance to rural transit agencies to develop public transportation 
agency safety plans. The WA State DOT noted that it is unclear if these 
additional costs are captured in the FHWA and FTA analysis. In 
response, FHWA and FTA note that those costs are discussed in the 
Public Transportation Agency Safety Plan NPRM and not within the scope 
of this rulemaking.
    The WA State DOT also noted the uncertainties regarding the 
expectations for performance reports. There is no required and 
consistent format and no common method to collect, store, report, and 
update data.
    The FHWA and FTA note that each of the performance rules will 
identify their respective reporting format and the anticipated costs of 
reporting. The FHWA and FTA agree that the final rule will increase the 
level of effort and costs associated with carrying out several specific 
transportation planning functions, including the development of 
metropolitan and long-range statewide transportation plans, STIPs, and 
TIPs. The FHWA and FTA agree that the estimate is an average. The 
incremental costs to specific States and MPOs may differ. The costs 
associated with these functions vary considerably across agencies, 
depending on staff resources and priorities, local political 
environment, and other considerations. However, while the final rule 
changes existing processes and procedures, in most cases it does not 
require completely new activities. Given the experience of States and 
MPOs that have implemented a performance-based approach to planning, 
and that the costs of some data collection, data analysis, target 
setting, and reporting are included in other rulemakings implementing 
performance-based planning and programming, the FHWA and FTA will 
continue to assume that implementing the performance-based planning 
provisions of the final rule will increase the costs of preparing State 
and MPO long-range plans, STIPs, and TIPs by an average of 15 percent.
    The Macatawa Area Coordinating Council commented that the final 
rule appears to place additional data collection and reporting 
responsibilities on smaller MPOs without additional funding to collect 
this data. The Albany MPO stated that the final rule should seek to 
reduce the cost and labor burden of data collection, analysis, and any 
related activities wherever possible. The commenter stated that MPOs 
face very constrained funding, and the final rule (and any subsequent 
rules) should take this into account.
    In response, FHWA and FTA encourage States and MPOs to review and 
comment on the other rulemakings implementing the MAP-21's performance 
management framework as they propose scalable approaches to lessen the 
burden on smaller MPOs and operators of public transportation.
    The AMPO pointed out that, in a 2010 report by FHWA, approximately 
50 percent of MPOs reported that existing Federal resources were 
insufficient to complete the current 3-C planning and programming 
process. The ARC noted that, with regard to the fact that 80 percent of 
the costs are reimbursable through existing Federal funding programs, 
those resources are already being fully utilized for other planning 
efforts directly related to the MPO mission. More than half of the 
respondents (AASHTO, AR DOT, CT DOT, DVRPC, Macatawa Area Coordinating 
Council, Maui DOT, MD DOT, NJ DOT, NYMTC, and PA DOT) who submitted 
comments on the Regulatory Cost Assessment and Burden Analysis 
requested that FHWA and FTA identify and/or provide additional funding 
to support new activities related to performance-based planning.
    Four commenters (AR DOT, Maui DOT, NYMTC, and WA State DOT) noted 
that Congress did not provide new or dedicated funding to help States, 
MPOs, and operators of public transportation cover the administrative 
burdens associated with performance-based planning as envisioned in the 
MAP-21. The AMPO stated that, without adequate resources to conduct the 
performance-based planning expected by Congress and anticipated in the 
final rule, MPOs may fall short of meeting the intended purpose of the 
MAP-21. The AMPO commentated that many MPOs are concerned that the 
final rule will result in an unfunded mandate if it does not provide 
the commensurate funding, time, and flexibility for MPOs to address its 
requirements.
    In response, FHWA and FTA note that it is Congress that 
appropriates funds to support the statewide, metropolitan, and 
nonmetropolitan transportation planning programs. Under MAP-21, 
Congress authorized and appropriated $995 million for distribution to 
the States and MPOs in FY 2013 and $1.007 billion for distribution in 
FY 2014. This represents an increase of 8 percent over SAFETEA-LU 
funding levels for these programs and supports an additional 20.6 
million hours (assuming a salary rate of $48.69 per hour). The FHWA and 
FTA note that in the FAST Act, Congress authorized $1.240 billion for 
distribution to the States and MPOs in FY 2016. This represents a 24 
percent increase over MAP-21 levels.
    The Florida MPO Advisory Council and the River to Sea TPO commented 
that not all States and MPOs shared equally in the increased MAP-21 
funding. State departments of transportation and MPOs in 22 States 
received a less than 9 percent increase in metropolitan planning and 
State planning and research funds.
    The FHWA and FTA note that States and MPOs have the option to use 
other program funds that are available to support the development of 
the performance-based program plans, including data collection. The FTA

[[Page 34129]]

section 5307 urbanized area formula grants and section 5311 formula 
grants for rural areas can be used to support the development of 
transit asset management plans and transit agency safety plans. The 
FHWA NHPP, STP, and State Planning and Research and Planning funds can 
also be used to develop performance-based plans including data 
collection.
    The FHWA and the FTA also invited comments on the following:
    The FHWA and FTA assumed that implementing the performance-based 
planning provisions of the proposed rule will increase the costs of 
preparing State and MPO long-range plans, STIPs, and TIPs by an average 
of 15 percent. Based on telephone discussions with three States, and 
three MPOs, FHWA and FTA believe that this assumption is reasonable. 
The FHWA and FTA invite States and MPOs to submit comments on this 
assumption.
    While three respondents (AASHTO, CT DOT, and NJ DOT) indicated that 
the estimate of a 15 percent increase in the cost of preparing State 
and MPO long-range plans, STIPs, and TIPs was too low, none provided 
documentation to support a different assumption. The CT DOT stated that 
it believes the new costs are likely to be much higher and could 
increase costs as much as 50 percent in some of the larger regions and 
statewide. The NJ DOT wrote that the FHWA and FTA assumption that the 
additional work will increase the annual cost of preparing a long-range 
transportation plan, STIP, and TIP for States, MPOs, and operators of 
public transportation by 15 percent, on average, seems low.
    The potential costs and benefits that might be associated with the 
option for MPOs to use scenario planning during development of the 
metropolitan transportation plan.
    The North Front Range MPO, commented that preparing and obtaining 
public comment, and then running the scenarios takes considerable 
additional time and/or more staff. With only 4 years between plans for 
nonattainment areas, this adds another requirement into the packed 
schedule. In response, FHWA and FTA note that the use of scenario 
planning during the development of the MTP is an optional best 
practice.
    The potential costs and benefits that might be associated with the 
option for States and MPOs to develop a programmatic mitigation plan as 
part of the statewide or metropolitan transportation planning process.
    No comments were received in response to this request.
    The final rule will promote transparency by requiring the 
establishment of performance targets in key areas, such as safety, 
infrastructure condition, system reliability, emissions, and congestion 
and expressly linking investment decisions to the achievement of such 
targets. This would be documented in plans developed with public 
review. The final rule will promote accountability through mandating 
reports on progress toward meeting those targets.
    Beyond improved transparency and accountability, there are several 
other benefits of the final rule. Other elements of the rule may 
improve decisionmaking, such as representation by operators of public 
transportation on each MPO that serves a TMA, updating the metropolitan 
planning agreements, requiring States to have a higher level of 
involvement with nonmetropolitan local officials, and providing an 
optional process for the creation of RTPOs.
    The final rule will enhance the statewide and nonmetropolitan 
transportation planning process by requiring States to cooperate with 
nonmetropolitan local officials or RTPOs, if applicable, when 
conducting rural transportation planning. This gives local officials or 
RTPOs a stronger voice in the development of planning products and 
project selection.
    The option for MPOs to use scenario planning in the development of 
their MTPs provides a framework for improved decisionmaking through 
comparison of the performance tradeoffs of various locally determined 
scenarios for transportation investment. Although conducting scenario 
planning entails costs, savings from improved implementation could 
offset these costs. These benefits will improve the transportation 
planning process.
    The option for States and MPOs to develop a programmatic mitigation 
plan as part of the statewide and the metropolitan transportation 
planning processes provides a framework whereby States and MPOs may 
identify environmental resources early in the planning process. As a 
result, they could potentially minimize or avoid impacts to these 
resources. This has the potential to streamline project development and 
protect environmental resources, and may have benefits that outweigh 
the costs of performing the analysis.
    With respect to the NPRM on ``Additional Authorities for Planning 
and Environmental Linkages'' (Docket No. FHWA-2014-0031; FHWA RIN 2125-
AF66; FTA RIN 2132-AB21), which proposed revisions to the statewide and 
nonmetropolitan and metropolitan transportation planning regulations 
related to the use of, and reliance on, planning products developed 
during the transportation planning process for project development and 
the environmental review process, it is anticipated that the economic 
impact of this rulemaking would be minimal. The changes that this rule 
proposed are intended to streamline environmental review. These 
provisions are optional and would not have a significant cost impact 
for States, MPOs, or operators of public transportation. If used, it is 
anticipated that these optional provisions could potentially result in 
cost savings for the States, MPOs, and operators of public 
transportation by minimizing the duplication of planning and 
environmental processes and improving project delivery timeframes.
    In summary, FHWA and FTA estimate the total cost of this final rule 
is $30.9 million. Of this total, the estimated costs for all 50 States, 
the District of Columbia, and Puerto Rico and an estimated 409 MPOs 
would be approximately $28.4 million per year. Eighty percent of these 
costs are directly reimbursable through Federal transportation funds 
allocated for metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 
5303(h)) and for State planning and research (23 U.S.C. 505 and 49 
U.S.C. 5313). The estimated cost to 600 operators of public 
transportation would be approximately $2.5 million per year. Eighty 
percent of these costs are directly reimbursable through Federal 
transportation funds allocated for urbanized area formula grants (4 
U.S.C. 5307, 49 U.S.C. 5311).
    The FAST increased the mandatory set-aside in Federal funds for 
metropolitan transportation planning or Statewide Planning and Research 
funding. The States, MPOs, and operators of public transportation have 
the flexibility to use other categories of Federal highway funds for 
transportation planning, such as STP funds, if they so desire. 
Consequently, the increase in the non-Federal cost burden attributable 
to the final rule is estimated to be $6.2 million per year. Under FAST, 
in FY 2016, the total Federal, State, and local cost of the planning 
program is $1,488 million. As the cost burden of the final rule is 
estimated to be 2.1 percent of the total planning program, FHWA and FTA 
believe that the economic impact would be minimal and the benefits of 
implementation would outweigh the costs.
    The FHWA and FTA also conducted a break-even cost analysis as part 
of the regulatory cost analysis to determine at

[[Page 34130]]

what point the benefits from the final rule exceed the annual costs of 
complying with it. The total annual FAST funding programmed through 
this process is $39.7 billion in FHWA funds and $11.7 billion in FTA 
funds in FY 2016. The annual average cost of the final rule is 
estimated to be $30.9 million per year. If return on investment 
increases by at least 0.060 percent of the combined FHWA and FTA annual 
funding programs, the benefits of the final rule exceed the costs.

Information Collection--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) prior to conducting or sponsoring a 
collection of information. The FHWA and FTA have determined that the 
final rule contains collections of information for the purposes of the 
PRA. The reporting requirements for metropolitan planning UPWP, 
transportation plans, and TIPs are currently approved under OMB control 
number 2132-0529. Separately, FHWA is updating the information 
reporting requirements for State planning and research work programs, 
which has been approved by the OMB under control number 2125-0039. 
These State planning and research work program are governed under a 
separate regulation at 23 CFR 420. The FHWA is updating 23 CFR 420 and 
will be issuing a separate NPRM soon. The FTA conducted the analysis 
supporting this approval on behalf of both FTA and FHWA because 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 estimates in this justification include the burden hours and 
costs developed for the RIA prepared as part of the final rule for the 
Metropolitan Transportation Planning Program and the Statewide and 
Nonmetropolitan Planning Program to implement provisions of the MAP-21. 
To develop the estimates for the RIA, FHWA and FTA first estimated the 
pre-MAP-21 costs for specific MPO planning functions on the basis of 
costs identified through a sample of MPO annual work programs. The FHWA 
and FTA sampled a total of 17 TMA and 12 non-TMA MPOs to calculate 
costs for States and MPOs. The FHWA and FTA then estimated the average 
annual burden hours of effort and cost to implement the MAP-21 changes 
to the MPO planning functions which include: A transition to a 
performance-based (statewide and metropolitan) planning and programming 
process; cooperation by the State with local officials or RTPOs, if 
applicable, when conducting the statewide transportation planning 
process; and representation by operators of public transportation on 
MPOs that serve TMAs. The FHWA and FTA assumed that this additional 
work will increase the annual cost of preparing a long-range 
transportation plan, STIP, and TIP by the State, MPOs, and operators of 
public transportation by 15 percent, on average. The paragraphs below 
describe the burden analysis conducted by FHWA and FTA for the planning 
requirements in the final regulation, which include the changes 
introduced by MAP-21.
    Historically, FHWA and FTA have used a methodology not based on 
sampling to estimate the burden hours required of States and MPOs to 
meet the planning requirements. The historical methodology assumed very 
limited increase in the costs of developing the planning products.
Burden Analysis for the Planning Requirements in the Final Rule
    The UPWP identifies transportation planning activities in 
metropolitan areas and supports requests for funding under both FHWA 
and FTA planning programs in metropolitan areas. A similar list of 
planning activities is prepared on a statewide level as the basis for 
FHWA and FTA State planning and research (SP&R) funding. The 
metropolitan plan and statewide plan reflect the long-range goals and 
objectives determined through the metropolitan and statewide 
transportation planning processes, respectively, and have a 20-year 
planning horizon. The STIP and TIP are short-range 4-year listings of 
highway and transit improvement projects which are consistent with the 
metropolitan and statewide plans and support the request for Federal 
transportation funding under 23 U.S.C. and chapter 53 of 49 U.S.C.
    The FTA and FHWA jointly carry out the Federal mandate to improve 
metropolitan and statewide transportation under the authority of 23 
U.S.C. and chapter 53 of 49 U.S.C. Title 23 U.S.C. 104(f) and 49 U.S.C. 
5305(g) authorize funds to support transportation planning at 
metropolitan and statewide levels. As a condition to receive this 
funding, requirements are established for metropolitan and statewide 
transportation planning under 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 
and 5304. These sections call for development of transportation plans 
and TIPs in all States and metropolitan areas. The information 
collection activities to prepare federally required plans and programs, 
and the planning studies proposed for funding in UPWPs and SP&R work 
programs, are necessary to monitor and evaluate current and projected 
usage and performance of transportation systems nationwide, statewide, 
and in each urbanized area.
    The MTP and TIP are required by 49 U.S.C. 5303 and 23 U.S.C. 134, 
which state that ``metropolitan planning organizations, in cooperation 
with the State, shall develop transportation plans and programs for 
urbanized areas of the State.'' Title 49 U.S.C. 5304 and 23 U.S.C. 135 
require that each ``State shall develop a long-range transportation 
plan and STIP for all areas of the State.'' Both statutory sections 
require that ``the process for developing such plans and programs shall 
provide for consideration of all modes of transportation and shall be 
continuing, cooperative, and comprehensive.'' The States and MPOs use 
metropolitan and statewide plans, STIPs, and TIPs as the basis for 
investing Federal and non-Federal capital funds for transportation 
infrastructure investments. (Note: PRA requirements for preparation of 
the STIP are covered by OMB control number 2125-0039.)
    Title 23 CFR part 450 implements these statutory requirements. 
(Note: 23 CFR part 450 is identical to, and cross-referenced by, the 
equivalent regulation in 49 U.S.C. (49 CFR part 613).) The MPO, 
together with the State and operators of public transportation, 
prepares MTPs for each urbanized area. The State develops a long-range 
statewide transportation plan which, in metropolitan areas, is 
developed in cooperation with affected MPOs. These plans form the basis 
for development of STIPs and TIPs, the short-range programming 
documents for federally funded transportation capital investments.
    The UPWP is required by 23 CFR 450.308 for all MPOs in TMAs. The 
MPOs in urbanized areas with populations of less than 200,000, with 
prior approval by the State, FHWA, and FTA, may use a simplified 
statement of work as their planning grant application instead of 
developing a full UPWP. Details of the required planning processes 
supported by FHWA and FTA metropolitan planning funds, as required by 
23 U.S.C. 134 and 49 U.S.C. 5303, are set forth in 23 CFR part 450. The 
planning grant application is based upon the UPWP and is the mechanism 
by which grantees request Federal funding. The information contained in 
the UPWP is necessary to establish the

[[Page 34131]]

eligibility of the activities for which funding is being requested.
    Preparation of UPWPs, project listing for SP&R funding, 
metropolitan and statewide plans, STIPs, and TIPs are essential 
components of decisionmaking by State and local officials for planning 
and programming Federal transportation funds to support the priority 
transportation investment needs of their areas. In addition to serving 
as the grant application by States for FHWA and FTA planning funds in 
metropolitan areas, UPWPs are used by FHWA and FTA to establish 
national out-year budgets and regional program plans; develop policy on 
using funds; monitor State and local consistency with national planning 
and technical emphasis areas; respond to congressional inquiries and 
prepare congressional testimony; and ensure efficiency in the use and 
expenditure of Federal funds by determining that planning proposals are 
reasonable, cost effective, and supportive of full compliance with all 
applicable Federal laws and regulations.
    Title 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304 require the 
development of plans and programs in entire States and all urbanized 
areas, respectively. After approval by the Governor and MPO, 
metropolitan TIPs in attainment areas are to be incorporated directly 
into the STIP. For nonattainment and maintenance areas, as required by 
the Clean Air Act Amendments of 1990, FHWA and FTA must make a 
conformity finding on these plans and TIPs before TIPs are incorporated 
into STIPs.
    The complete STIP is then jointly reviewed and approved by FHWA and 
FTA. With that action comes a joint determination or finding by FHWA 
and FTA that metropolitan and statewide planning processes are in 
compliance with all applicable Federal laws and regulations. These 
findings, conformity determinations, and approval actions constitute 
the determination that State and metropolitan area transportation 
planning processes are complying with Federal law and regulatory 
requirements as a condition of eligibility for receiving Federal-aid. 
Without the supporting documents, these findings and planning approvals 
cannot be made as the basis for making project level grant awards.
    Since a STIP and TIP is made up of various types of capital and 
non-capital surface transportation projects, from equipment acquisition 
to major highway and transitway construction, it is essential that 
these projects be identified and described. Because the STIP/TIP is the 
basis for subsequent programming and obligation of both Federal-aid 
highway and FTA capital funds, there must be an indication of project 
cost and Federal funds required (estimated cost). The STIP and TIP is 
an integrated FHWA and FTA program. Because both agencies have several 
statutory sources of funds, each with different eligibility 
requirements, it is necessary to know what projects are proposed to be 
funded from which fund (source of Federal funds). Because the STIP and 
TIP is an integrated program of highway and transit improvements, many 
potential capital grant recipients have projects included in the 
document (identification of the recipient). For FTA funding, it is 
necessary that each individual project identify the likely capital 
grant applicant. The STIP and TIP requirement reduces the burden to 
potential capital grant applicants by imposing the programming 
requirements at one point and setting one response to these 
requirements.
    The SP&R program, UPWP, metropolitan and statewide plan, STIP, and 
TIP are adaptable to computer generation and revision. The FHWA and FTA 
have extensive technical assistance programs that encourage application 
of computer techniques. These programs reduce burdens by achieving time 
savings in technical analysis, report revisions, and clerical 
activities through automation.
    While the transit and highway funding programs for planning and 
project implementation are unique to FHWA and FTA, they cooperate to 
avoid duplication of effort. Most visible is the consolidation of 
statutory requirements for planning through the issuance of joint 
planning regulations. The States and MPOs prepare a single set of 
UPWPs, plans, STIPs, and TIPs to satisfy both FHWA and FTA 
requirements.
    The information contained in projects proposed for funding under 
the SP&R programs, UPWPs, metropolitan and State plans, STIPs, and TIPs 
are not contained in any other federally required document. However, 
where this information is already contained in State and local planning 
documents, FHWA and FTA can accept those documents provided that all 
their requirements are met, which further reduces duplication and 
unnecessary burden. The SP&R programs, statewide plans, UPWPs, 
metropolitan plans, STIPs, and TIPs have been submitted to FHWA and FTA 
for many years to support funding of the transportation planning and 
capital improvement programs for urbanized and non-urbanized areas. 
Continuing contact among FHWA division staff, FTA regional staff, 
States, MPOs, and grantees provides opportunity for grantees to seek 
changes. No major problems have developed regarding this requirement. 
The FHWA and the FTA have not received a petition to establish, amend, 
or repeal a regulation pursuant to 49 CFR 106.31.
    A 60-day Federal Register Notice on information collection was 
published on November 22, 2013 (78 FR 70094), soliciting comments prior 
to submission to OMB. The DOT received comments from the FL DOT and 
AASHTO. Both expressed concern that many respondents will exceed the 
8,017 burden hours per respondent estimated in the Notice of Request 
for Revision of an Approved Information Collection. The DOT concurs 
that some States and MPOs may exceed the estimated 8,017 average burden 
hours to meet the metropolitan and statewide transportation planning 
requirements. This is because the burden hour estimate is based upon 
the average for all States and MPOs. A 30-day Federal Register notice 
was published on January 29, 2014 (79 FR 4808).
    Since that time, the estimates have been updated to include the 
current number of MPOs in urbanized and non-urbanized areas established 
as a result of the 2010 U.S. Census; a revised number of designated 
Clean Air Act attainment and non-attainment areas; a 3 percent increase 
in the labor rates; and the total burden hours and costs to meet the 
requirements of the final rule. On the basis of these changes, the 
estimated burden hours per respondent are 9,109 hours.
    The following table summarizes the estimated burden hours for the 
collection of information for the purposes of developing and completing 
UPWPs, metropolitan and statewide transportation plans, STIPs, and 
TIPs, as required by the final rule, and provides an explanation of the 
methodology used to calculate the number of hours required per 
submission.

[[Page 34132]]



                               Unified Planning Work Programs (UPWPs)--Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                                   Total annual
         Urbanized area (UZA) population           Total number    Burden annual     hours per     Burden hours
                                                    of entities     submissions     submission
----------------------------------------------------------------------------------------------------------------
Under 200,000...................................             208             208             200          41,600
Over 200,000....................................             201             201             300          60,300
                                                 ---------------------------------------------------------------
    Total.......................................             409             409  ..............         101,900
----------------------------------------------------------------------------------------------------------------


                        Transportation Improvement Programs (TIPs and STIPs)--Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                      Average      Burden  hours
                     Entity                          Number of        annual            per        Total annual
                                                     entities       submissions     submission     burden hours
----------------------------------------------------------------------------------------------------------------
MPOs in Attainment Areas........................             276              69           6,026         415,779
MPOs in Nonattainment and Maintenance Areas.....             133              33          22,230         739,164
States..........................................              52              13          20,548         267,042
                                                 ---------------------------------------------------------------
    Total.......................................             461             115  ..............       1,421,985
----------------------------------------------------------------------------------------------------------------


                                        Transportation Plans--Final Rule
----------------------------------------------------------------------------------------------------------------
                                                     Number of    Average annual   Burden hours    Total annual
                     Entity                          entities       submissions   per submission   burden hours
----------------------------------------------------------------------------------------------------------------
MPOs in attainment areas........................             276              69          10,886         600,884
MPOs in Nonattainment or Maintenance Areas......             133              33          48,861       1,624,612
States..........................................              52              13          34,608         449,898
                                                 ---------------------------------------------------------------
    Total.......................................             461             115  ..............       2,675,394
----------------------------------------------------------------------------------------------------------------

    The respondent's cost is the cost of the State and MPO staff time 
required to compile and produce the UPWP. The UPWPs must be developed 
by identifying work activities over the next 1- or 2-year period. Given 
the complex nature of the planning requirements, we estimate that an 
average of 300 hours per respondent will be required by MPOs to prepare 
UPWPs in TMAs and 200 hours per respondent in non-TMAs. Note that 
although 23 CFR 450.308 allows MPOs in the 208 non-TMAs to prepare 
simplified statements of work, FHWA and FTA know of no MPOs that are 
developing such simplified statements. Using a staff salary of $32.59 
per hour (based on annual staff salary of $67,732), total respondent 
cost is estimated at $3,320,921. Assuming a 54 percent overhead rate, 
the total annualized cost with overhead is estimated to be $5,114,218.
    The OMB has previously approved the burden on respondents to 
develop SP&R work programs under FHWA control number 2125-0039.
    Metropolitan TIPs are prepared by MPOs in cooperation with the 
State and operators of public transportation. The TIPs are required 
every 4 years. Plans in nonattainment and maintenance areas must be 
updated and submitted every 4 years and in attainment areas every 5 
years. Although the requirements for metropolitan TIPs and plans are 
complex, particularly in nonattainment and maintenance areas, current 
burden estimates have been generated from past experiences, informal 
discussion with FHWA and FTA field staff and respondents, and a 
comparison of recent trends in the allocation of resources by 
respondents to meet the requirements. We estimate that MPOs in 
attainment areas will spend approximately 6,026 person hours in the 
development of the TIP document. Furthermore, considering the more 
stringent requirements relating to the implementation of transportation 
control measures in nonattainment and maintenance areas, and the fact 
that most of these areas are in the Nation's largest metropolitan areas 
with the most projects to program, we estimate that an average of 
22,230 person hours per submission are required for these TIPs.
    The development by States of a STIP draws heavily on the work 
cooperatively done by States and MPOs in the preparation of 
metropolitan TIPs. This work burden has already been calculated in this 
section. However, to the extent that STIPs must reflect the programming 
of transportation projects in nonmetropolitan areas, there exists some 
marginal burden in the development of the overall statewide program. We 
estimate that burden is 20,542 person hours for each STIP. Total 
respondent burden hours for the STIP/TIP development are estimated to 
be 1,421,985. Total respondent cost for STIP/TIP development without 
overhead is estimated to be $46,342,491. Total respondent cost for 
STIP/TIP development, assuming a 54 percent overhead rate, is estimated 
to be $71,367,436.
    The final rule requires that plans in nonattainment and maintenance 
areas are updated and submitted to FHWA and FTA every 4 years and that 
plans in attainment areas are updated every 5 years. We estimate that 
burden is 48,861 person hours for the preparation of the MTP in a 
nonattainment area. These plans are updated every 4 years. We estimate 
that burden is 10,886 person hours for the preparation of the MTP in an 
attainment area. These plans are updated every 5 years.
    The development by States of a long-range statewide transportation 
plan draws heavily on the work cooperatively done by States and MPOs in 
the preparation of metropolitan TIPs and plans. This work burden has 
already been calculated in this section. However, to the extent that 
statewide plans must reflect the planning of

[[Page 34133]]

transportation projects in nonmetropolitan areas, there exists some 
marginal burden in the development of the overall plan. We estimate 
that burden is 34,608 person hours for the preparation of the long-
range statewide transportation plan. Assuming an average rate of $32.59 
per hour, we estimate that the respondent cost for the metropolitan 
plan is $72,528,915 and $14,662,176 for the statewide plan. Total 
respondent cost for plan development, assuming a 54 percent overhead 
rate, is estimated to be $134,274,280.
    There are no capital or start-up costs associated directly with the 
collection of information required by the UPWPs, STIPs, TIPs, and 
plans. Any capital equipment used to provide this information in most 
cases would have been purchased to carry out general transportation and 
air quality planning activities. The total annual overhead (operation 
and maintenance costs) of providing the requested information is 
$73,991,049 as calculated in the table below:

            Total Annual Burden Costs to the States and MPOs
------------------------------------------------------------------------
                                                          Total costs
               Task                 Total costs with   without overhead
                                    overhead (2015$)        (2015$)
------------------------------------------------------------------------
UPWP..............................        $5,114,218          $3,320,921
TIP...............................        57,964,972          37,639,592
Metropolitan Plans................       111,694,529          72,528,915
STIPs.............................        13,402,464           8,702,899
Statewide Plans...................        22,579,751          14,662,176
                                   -------------------------------------
    Total.........................       210,755,934         136,858,503
------------------------------------------------------------------------


            Total Annual Burden Hours to the States and MPOs
------------------------------------------------------------------------
                                                           Total burden
                          Task                                 hours
------------------------------------------------------------------------
UPWP....................................................         101,900
TIP.....................................................       1,154,943
Metropolitan Plans......................................       2,225,496
STIPs...................................................         267,042
Statewide Plans.........................................         449,898
                                                         ---------------
  Total.................................................       4,199,279
------------------------------------------------------------------------

    Please note that each State also submits a statewide planning and 
research work program, which serves as the basis of the State's 
application for Federal financial assistance for planning and research 
activities. The information collection requirements of the SP&R work 
program have been previously approved by OMB under FHWA control number 
2125-0039.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 
5 U.S.C. 601-612), FHWA and FTA have determined that States and MPOs 
are not included in the definition of a small entity, as set forth in 5 
U.S.C. 601. Small governmental jurisdictions are limited to 
representations of populations of less than 50,000. The MPOs, by 
definition, represent urbanized areas having a minimum population of 
50,000. Because the final rule is primarily intended for States and 
MPOs, FHWA and FTA have determined that the action would not have a 
significant economic impact on a substantial number of small entities. 
Therefore, we certify that the action would not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    The final rule would not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 
109 Stat. 48). The final rule would not result in the expenditure of 
non-Federal funds by State, tribal, and local governments, in the 
aggregate, or by the private sector, of $155 million in any one year (2 
U.S.C. 1532). Eighty percent of the costs attributable to the final 
rule are directly reimbursable through Federal transportation funds 
allocated for metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 
5303(h)) and for SP&R (23 U.S.C. 505 and 49 U.S.C. 5313).
    Additionally, the definition of the term ``Federal mandate'' in the 
Unfunded Mandates Reform Act excludes financial assistance of the type 
in which State, tribal, or local 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.

Executive Order 13132 (Federalism)

    The FHWA and FTA have analyzed this action in accordance with the 
principles and criteria contained in EO 13132 and have determined that 
this action would not have sufficient federalism implications to 
warrant the preparation of a federalism assessment. The FHWA and FTA do 
not believe that this rulemaking will have substantial, direct effects 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. The FHWA and FTA have also determined 
that this action would not preempt any State law or regulation or 
affect the States' ability to discharge traditional State governmental 
functions.

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 EO 12372 regarding 
intergovernmental consultation in Federal programs and activities apply 
to these programs and were carried out as part of the outreach on the 
federalism implications of this rulemaking. This EO applies because 
State and local governments would be directly affected by the final 
rule, which is a condition on Federal-aid highway funding.

National Environmental Policy Act

    Federal agencies are required to adopt implementing procedures for 
NEPA that establish specific criteria for, and identification of, three 
classes of actions: (1) Those that normally require preparation of an 
Environmental Impact Statement, (2) those that normally require 
preparation of an Environmental Assessment, and (3) those that are 
categorically excluded from further NEPA review (40 CFR 1507.3(b)). 
This action qualifies for categorical exclusions under 23 CFR 
771.117(c)(20) (promulgation of rules, regulations, and

[[Page 34134]]

directives) and 771.117(c)(1) (activities that do not lead directly to 
construction) for FHWA, and 23 CFR 771.118(c)(4) (planning and 
administrative activities which do not involve or lead directly to 
construction) for FTA. The FHWA and FTA have evaluated whether the 
action would involve unusual or extraordinary circumstances and have 
determined that this action would not.
    The final rule provides the policies and requirements for statewide 
and MTPs and transportation improvement programs. The rule follows 
closely the requirements in 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 
and 5304. In addition, 23 U.S.C. 134(q), 135(k), and 168(f)(1) and 49 
U.S.C. 5303(q) and 5304(j) establish that NEPA does not apply to 
decisions by the Secretary concerning a metropolitan or statewide 
transportation plan or transportation improvement programs under those 
sections.

Executive Order 11988 (Floodplain Management)

    The FHWA and FTA have evaluated this action under EO 11988 
(Floodplain Management). The agencies have determined that this action 
does not have an adverse impact associated with the occupancy and 
modification of floodplains and does not provide direct or indirect 
support of floodplain development. The final rule provides the States 
and MPOs with the option of developing a programmatic mitigation plan 
as part of the transportation planning process. Floodplains could be 
one of the resources evaluated as part of these programmatic mitigation 
plans to help the States and MPOs avoid or minimize impacts to flood 
plains by future projects. The final rule also encourages early 
coordination by States and MPOs with Federal and State environmental 
resource agencies during the planning process in the interest of 
avoiding or minimizing impacts. When FHWA and FTA make a future funding 
or other approval decision on a project basis, they consider floodplain 
management.

Executive Order 13653 (Climate Preparedness and Resilience)

    The FHWA and FTA have evaluated this action under EO 13653 (Climate 
Preparedness and Resilience). The FHWA and FTA have determined that the 
final rule provides an option for the States and MPOs to consider the 
effects of climate change and resilience in the context of the 
transportation planning process, such as during the development of 
statewide or MTPs. Scenario planning, which is discussed in the final 
rule, is another option where MPOs could consider climate change and 
resilience as part of scenarios evaluated during the development of the 
MTP. The FHWA and FTA have determined that the final rule provides an 
option States and MPOs to assess climate change and resilience as part 
of the transportation planning process.

Executive Order 12988 (Civil Justice Reform)

    The final rule meets applicable standards in sections 3(a) and 
3(b)(2) of EO 12988 (Civil Justice Reform) to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under EO 13045 (Protection of Children 
from Environmental Health Risks and Safety Risks). The final rule is 
not an economically significant rule and does not concern an 
environmental risk to health or safety that may disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    The final rule would not effect a taking of private property or 
otherwise have taking implications under EO 12630 (Governmental Actions 
and Interference with Constitutionally Protected Property Rights).

Executive Order 13175 (Tribal Consultation)

    The FHWA and FTA have analyzed this action under EO 13175. The FHWA 
and FTA believe that the final rule would not have substantial direct 
effects on one or more tribes; would not impose substantial direct 
compliance costs on tribal governments; and would not preempt tribal 
laws. The final rule contains requirements for States to consult with 
tribal governments in the planning process. Tribes are required under 
25 CFR part 170 to develop long-range plans and a Tribal Transportation 
Program (TTP) for programming projects. However, the requirements in 25 
CFR part 170 would not be changed by this final rule. Therefore, a 
tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    The FHWA and FTA have analyzed this action under EO 13211 (Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use). The FHWA and FTA have determined that the final 
rule is not a significant energy action under that EO because, although 
it is a significant regulatory action under EO 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.

Executive Order 5610.2(a) (Environmental Justice)

    The EO 12898 (Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations) and DOT Order 
5610.2(a) (77 FR 27534 (available online at http://www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm)) 
require DOT agencies to achieve EJ as part of their mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects, including interrelated 
social and economic effects, of their programs, policies, and 
activities on minority and low-income populations. The DOT agencies 
must address compliance with EO 12898 and the DOT Order in all 
rulemaking activities.
    The FHWA and FTA have issued additional documents relating to 
administration of EO 12898 and the DOT Order. On June 14, 2012, FHWA 
issued an update to its EJ order, FHWA Order 6640.23A (FHWA Actions to 
Address Environmental Justice in Minority Populations and Low Income 
Populations (available online at http://www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm)). On August 15, 2012, FTA's Circular 
4703.1 became effective, which contains guidance for States and MPOs to 
incorporate EJ into their planning processes (available online at 
http://www.fta.dot.gov/documents/FTA_EJ_Circular_7.14-12_FINAL.pdf).
    The FHWA and FTA have evaluated the final rule under the EO, the 
DOT Order, the FHWA Order, and the FTA Circular. The EJ principles, in 
the context of planning, should be considered when the planning process 
is being implemented at the State and local level. As part of their 
stewardship and oversight of the federally aided transportation 
planning process of the States, MPOs and operators of public 
transportation, FHWA and FTA encourage these entities to incorporate EJ 
principles into the statewide and metropolitan planning processes and 
documents, as appropriate and consistent with the applicable Orders and 
the FTA Circular. When FHWA and FTA make a future funding or other 
approval decision on a project basis, they consider EJ.
    Nothing inherent in the final rule would disproportionately impact

[[Page 34135]]

minority or low-income populations. The final rule establishes 
procedures and other requirements to guide future State and local 
decisionmaking on programs and projects. Neither the final rule nor 23 
U.S.C. 134 and 135 dictate the outcome of those decisions. The FHWA and 
FTA have determined that the final rule would not cause 
disproportionately high and adverse human health and environmental 
effects on minority or low-income populations.

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 Part 450

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

23 CFR Part 771

    Environmental protection, Grant programs--transportation, Highways 
and roads, Historic preservation, Public lands, Recreation areas, 
Reporting and record keeping requirements.

49 CFR Part 613

    Grant programs--transportation, Highways and roads, Mass 
transportation.

    Issued in Washington, DC, on May 13, 2016, under authority 
delegated in 49 CFR 1.85 and 1.91.
Gregory G. Nadeau,
Administrator, Federal Highway Administration.
Carolyn Flowers,
Acting Administrator, Federal Transit Administration.

    In consideration of the foregoing, FHWA and FTA amend title 23, 
Code of Federal Regulations, parts 450 and 771, and title 49, Code of 
Federal Regulations, part 613, as set forth below:

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 and Nonmetropolitan Transportation Planning and 
Programming
Sec.
450.200 Purpose.
450.202 Applicability.
450.204 Definitions.
450.206 Scope of the statewide and nonmetropolitan 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 of programmatic mitigation plans.
450.216 Development and content of the long-range statewide 
transportation plan.
450.218 Development and content of the statewide transportation 
improvement program (STIP).
450.220 Self-certifications, Federal findings, and Federal 
approvals.
450.222 Project selection from the STIP.
450.224 Applicability of NEPA to statewide transportation plans and 
programs.
450.226 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 Development of programmatic mitigation plans.
450.322 Congestion management process in transportation management 
areas.
450.324 Development and content of the metropolitan transportation 
plan.
450.326 Development and content of the transportation improvement 
program (TIP).
450.328 TIP revisions and relationship to the STIP.
450.330 TIP action by the FHWA and the FTA.
450.332 Project selection from the TIP.
450.334 Annual listing of obligated projects.
450.336 Self-certifications and Federal certifications.
450.338 Applicability of NEPA to metropolitan transportation plans 
and programs.
450.340 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 1.85 and 1.90.

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, a redemonstration of fiscal constraint, or a 
conformity determination (in nonattainment and maintenance areas).
    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 or changing the 
number of stations in the case of fixed guideway transit projects). 
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 and a redemonstration of fiscal constraint. 
If an amendment involves ``non-exempt'' projects in nonattainment and 
maintenance areas, a conformity determination is required.
    Asset management means a strategic and systematic process of 
operating, maintaining, and improving physical assets, with a focus on 
both engineering and economic analysis based upon quality information, 
to identify a structured sequence of maintenance, preservation, repair, 
rehabilitation, and

[[Page 34136]]

replacement actions that will achieve and sustain a desired state of 
good repair over the lifecycle of the assets at minimum practicable 
cost.
    Attainment area means any geographic area in which levels of a 
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 
in this section) 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 an Expedited Grant Agreement (or equivalent) with the 
DOT shall be considered a multiyear 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 or any required 
interim emission reductions or other milestones in any nonattainment or 
maintenance area. The transportation conformity regulations (40 CFR 
part 93, subpart A) 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 travel demand reduction and 
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 
Metropolitan Planning Organizations (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 section 450.216(j) 
and sections 450.324(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 and 5304, by the Governor 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 urbanized areas of 200,000 or more in 
population, or a State or 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, and actions that, over time, will serve to avoid, minimize, 
rectify, reduce or eliminate impacts to environmental resources 
associated with the implementation of a long-range statewide 
transportation plan or metropolitan transportation plan.
    Expedited Grant Agreement (EGA) means a contract that defines the 
scope of a Small Starts project, the Federal financial contribution, 
and other terms and conditions, in accordance with 49 U.S.C. 
5309(h)(7).
    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

[[Page 34137]]

statewide transportation plan and STIP) that demonstrates the 
consistency 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 2 years of the TIP and 
STIP only if funds are ``available'' or ``committed.''
    Freight shippers means any entity that routinely transport cargo 
from one location to another by providers of freight transportation 
services or by their own operations, involving one or more travel 
modes.
    Full Funding Grant Agreement (FFGA) 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(k)(2).
    Governor means the Governor of any of the 50 States or the 
Commonwealth of Puerto Rico or the Mayor of the District of Columbia.
    Highway Safety Improvement Program (HSIP) means a State safety 
program with the purpose to reduce fatalities and serious injuries on 
all public roads through the implementation of the provisions of 23 
U.S.C. 130, 148, and 150 including the development of a Strategic 
Highway Safety Plan (SHSP), Railway-Highway Crossings Program, and 
program of highway safety improvement projects.
    Illustrative project means an additional transportation project 
that may 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 Environmental Protection Agency (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 (42 U.S.C. 
7505a).
    Management system means a systematic process, designed to assist 
decision makers 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 Agreement means a written agreement between 
the MPO, the State(s), and the providers of public transportation 
serving the metropolitan planning area that describes how they will 
work cooperatively to meet their mutual responsibilities in carrying 
out the metropolitan transportation planning process.
    Metropolitan Planning Area (MPA) means the geographic area 
determined by agreement between the 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 the MPO develops, adopts, and updates 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 (42 U.S.C. 
7409).
    Nonattainment area means any geographic region of the United States 
that EPA designates as a nonattainment area under section 107 of the 
Clean Air Act (42 U.S.C. 7407) for any pollutants for which an NAAQS 
exists.
    Nonmetropolitan area means a geographic area outside a designated 
metropolitan planning area.
    Nonmetropolitan local officials means elected and appointed 
officials of general purpose local government in a nonmetropolitan 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 State or 
designated recipient authorized and committed the supporting Federal 
funds in preceding or current program years, 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 maximize the safety 
and mobility of people and goods.
    Performance measure refers to ``Measure'' as defined in 23 CFR 
490.101.
    Performance metric refers to ``Metric'' as defined in 23 CFR 
490.101.
    Performance target refers to ``Target'' as defined in 23 CFR 
490.101.
    Project selection means the procedures followed by MPOs, States, 
and public transportation operators to advance projects from the first 
4 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 cargo from one 
location to another for others or for itself.

[[Page 34138]]

    Public transportation agency safety plan means a comprehensive plan 
established by a State or recipient of funds under Title 49, Chapter 53 
and in accordance with 49 U.S.C. 5329(d).
    Public transportation operator means the public entity or 
government-approved authority that 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 a 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 
sightseeing, school bus, charter, certain types of shuttle service, 
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 conformity 
regulations (40 CFR part 93, subpart A)) that is on a facility that 
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 an alternative to 
regional highway travel.
    Regional Transportation Planning Organization (RTPO) means a policy 
board of nonmetropolitan local officials or their designees created to 
carry out the regional transportation planning process.
    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.''
    Scenario planning means a planning process that evaluates the 
effects of alternative policies, plans and/or programs on the future of 
a community or region. This activity should provide information to 
decision makers as they develop the transportation plan.
    State means any one of the 50 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) (42 U.S.C. 7602(q)), the portion (or 
portions) of the implementation plan, or most recent revision thereof, 
which has been approved under section 110 of the CAA (42 U.S.C. 7410), 
or promulgated under section 110(c) of the CAA (42 U.S.C. 7410(c)), or 
promulgated or approved pursuant to regulations promulgated under 
section 301(d) of the CAA (42 U.S.C. 7601(d)) 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 4 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 comprehensive, multiyear, 
data-driven plan, developed by a State DOT in accordance with the 23 
U.S.C. 148.
    Transit Asset Management Plan means a plan that includes an 
inventory of capital assets, a condition assessment of inventoried 
assets, a decision support tool, and a prioritization of investments.
    Transit Asset Management System means a strategic and systematic 
process of operating, maintaining, and improving public transportation 
capital assets effectively, throughout the life cycles of those assets.
    Transportation Control Measure (TCM) means any measure that is 
specifically identified and committed to in the applicable SIP, 
including a substitute or additional TCM that is incorporated into the 
applicable SIP through the process established in CAA section 
176(c)(8), that is either one of the types listed in section 108 of the 
CAA (42 U.S.C. 7408) 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 4 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 for metropolitan transportation plans and long-range 
statewide transportation plans, a 4-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 (UZA) 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 GIS- or web-based surveys, 
inventories, maps, pictures, and/or displays identifying features such 
as roadway rights of way, transit, intermodal, and non-motorized 
transportation facilities, historic and cultural resources, natural 
resources, and environmentally sensitive areas, to promote improved 
understanding of existing or proposed transportation plans and 
programs.

[[Page 34139]]

Subpart B--Statewide and Nonmetropolitan Transportation Planning 
and Programming


Sec.  450.200  Purpose.

    The purpose of this subpart is to implement the provisions of 23 
U.S.C. 135, 23 U.S.C. 150, and 49 U.S.C. 5304, as amended, which 
require each State to carry out a continuing, cooperative, and 
comprehensive performance-based statewide multimodal transportation 
planning process, including the development of a long-range statewide 
transportation plan and 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, bicycle transportation 
facilities, and intermodal facilities that support intercity 
transportation, including intercity bus facilities and commuter van 
pool providers) and that fosters economic growth and development within 
and between States and urbanized areas, and take into consideration 
resiliency needs 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., MPOs, RTPOs 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 and nonmetropolitan 
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 nonmetropolitan 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;
    (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;
    (8) Emphasize the preservation of the existing transportation 
system;
    (9) Improve the resiliency and reliability of the transportation 
system and reduce or mitigate stormwater impacts of surface 
transportation; and
    (10) Enhance travel and tourism.
    (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 
(including Section 4(f) properties as defined in 23 CFR 774.17), and 
housing and community development.
    (c) Performance-based approach. (1) The statewide transportation 
planning process shall provide for the establishment and use of a 
performance-based approach to transportation decisionmaking to support 
the national goals described in 23 U.S.C. 150(b) and the general 
purposes described in 49 U.S.C. 5301.
    (2) Each State shall select and establish performance targets in 
coordination with the relevant MPOs to ensure consistency to the 
maximum extent practicable. The targets shall address the performance 
areas described in 23 U.S.C. 150(c), and the measures established under 
23 CFR part 490, where applicable, to use in tracking progress toward 
attainment of critical outcomes for the State. States shall establish 
performance targets that reflect the measures identified in 23 U.S.C. 
150(c) not later than 1 year after the effective date of the DOT final 
rule on performance measures. Each State shall select and establish 
targets under this paragraph in accordance with the appropriate target 
setting framework established at 23 CFR part 490.
    (3) In areas not represented by an MPO, the selection of public 
transportation performance targets by a State shall be coordinated, to 
the maximum extent practicable, with providers of public transportation 
to ensure consistency with the performance targets that public 
transportation providers establish under 49 U.S.C. 5326(c) and 49 
U.S.C. 5329(d).
    (4) A State shall integrate into the statewide transportation 
planning process, directly or by reference, the goals, objectives, 
performance measures, and targets described in this section, in other 
State transportation plans and transportation processes, as well as any 
plans developed pursuant to chapter 53 of title 49 by providers of 
public transportation in areas not represented by an MPO required as 
part of a performance-based program. Examples of such plans and 
processes include the HSIP, SHSP, the State Asset Management Plan for 
the National Highway System (NHS), the State Freight Plan (if the State 
has one), the Transit Asset Management Plan, and the Public 
Transportation Agency Safety Plan.
    (5) A State shall consider the performance measures and targets 
established under this paragraph when developing policies, programs, 
and investment priorities reflected in the long-range statewide 
transportation plan and statewide transportation improvement program.
    (d) The failure to consider any factor specified in paragraph (a) 
or (c) of this section shall not be subject to review 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.
    (e) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are 
available to the State to accomplish activities described in this 
subpart. At the State's option, funds provided under 23 U.S.C. 
104(b)(2) and 49 U.S.C. 5307, 5310, and 5311 may also be used for 
statewide transportation planning. A State shall document statewide 
transportation planning activities performed with funds provided under 
title 23 U.S.C. and title 49 U.S.C. Chapter 53 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

[[Page 34140]]

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) Cooperate with affected local elected and appointed officials 
with responsibilities for transportation, or, if applicable, through 
RTPOs described in section 450.210(d) in nonmetropolitan 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) In carrying out the statewide transportation planning process, 
States should apply asset management principles and techniques 
consistent with the State Asset Management Plan for the NHS and the 
Transit Asset Management Plan, and Public Transportation Agency Safety 
Plan in establishing planning goals, defining STIP priorities, and 
assessing transportation investment decisions, including transportation 
system safety, operations, preservation, and maintenance.
    (f) For non-NHS highways, States may apply principles and 
techniques consistent with other asset management plans to the 
transportation planning and programming processes, as appropriate.
    (g) 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.
    (h) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, should be 
coordinated and consistent with the statewide transportation planning 
process.


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 individuals, affected public agencies, 
representatives of public transportation employees, public ports, 
freight shippers, private providers of transportation (including 
intercity bus operators), 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 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 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.
    (3) With respect to the setting of targets, nothing in this part 
precludes a State from considering comments made as part of the State's 
public involvement process.
    (b) The State shall provide for nonmetropolitan 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 cooperating with nonmetropolitan local officials 
representing units of general purpose local government and/or local 
officials

[[Page 34141]]

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 cooperative process(es), the State shall 
provide copies of the process document(s) to the FHWA and the FTA for 
informational purposes.
    (1) At least once every 5 years, the State shall review and solicit 
comments from nonmetropolitan local officials and other interested 
parties for a period of not less than 60 calendar days regarding the 
effectiveness of the cooperative process and any proposed changes. The 
State shall direct a specific request for comments to the State 
association of counties, State municipal league, regional planning 
agencies, or directly to nonmetropolitan local officials.
    (2) The State, at its discretion, is 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 
nonmetropolitan 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 the 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 Department of the Interior in the development of 
the long-range statewide transportation plan and the STIP.
    (d) To carry out the transportation planning process required by 
this section, a Governor may establish and designate RTPOs to enhance 
the planning, coordination, and implementation of the long-range 
statewide transportation plan and STIP, with an emphasis on addressing 
the needs of nonmetropolitan areas of the State. In order to be treated 
as an RTPO for purposes of this Part, any existing regional planning 
organization must be established and designated as an RTPO under this 
section.
    (1) Where established, an RTPO shall be a multijurisdictional 
organization of nonmetropolitan local officials or their designees who 
volunteer for such organization and representatives of local 
transportation systems who volunteer for such organization.
    (2) An RTPO shall establish, at a minimum:
    (i) A policy committee, the majority of which shall consist of 
nonmetropolitan local officials, or their designees, and, as 
appropriate, additional representatives from the State, private 
business, transportation service providers, economic development 
practitioners, and the public in the region; and
    (ii) A fiscal and administrative agent, such as an existing 
regional planning and development organization, to provide professional 
planning, management, and administrative support.
    (3) The duties of an RTPO shall include:
    (i) Developing and maintaining, in cooperation with the State, 
regional long-range multimodal transportation plans;
    (ii) Developing a regional TIP for consideration by the State;
    (iii) Fostering the coordination of local planning, land use, and 
economic development plans with State, regional, and local 
transportation plans and programs;
    (iv) Providing technical assistance to local officials;
    (v) Participating in national, multistate, and State policy and 
planning development processes to ensure the regional and local input 
of nonmetropolitan areas;
    (vi) Providing a forum for public participation in the statewide 
and regional transportation planning processes;
    (vii) Considering and sharing plans and programs with neighboring 
RTPOs, MPOs, and, where appropriate, Indian Tribal Governments; and
    (viii) Conducting other duties, as necessary, to support and 
enhance the statewide planning process under Sec.  450.206.
    (4) If a State chooses not to establish or designate an RTPO, the 
State shall consult with affected nonmetropolitan local officials to 
determine projects that may be of regional significance.


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

[[Page 34142]]

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. The guidance in Appendix A applies only to 
paragraphs (a)-(c) in this section.
    (d) In addition to the process for incorporation directly or by 
reference outlined in paragraph (b) of this section, an additional 
authority for integrating planning products into the environmental 
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 
168(f):
    (1) The statutory authority in 23 U.S.C. 168 shall not be construed 
to limit in any way the continued use of processes established under 
other parts of this section or under an authority established outside 
this part, and the use of one of the processes in this section does not 
preclude the subsequent use of another process in this section or an 
authority outside of this part.
    (2) The statute does not restrict the initiation of the 
environmental review process during planning.


Sec.  450.214  Development of programmatic mitigation plans.

    (a) A State may utilize the optional framework in this section to 
develop programmatic mitigation plans as part of the statewide 
transportation planning process to address the potential environmental 
impacts of future transportation projects. The State in consultation 
with FHWA and/or FTA and with the agency or agencies with jurisdiction 
and special expertise over the resources being addressed in the plan, 
will determine:
    (1) Scope. (i) A State may develop a programmatic mitigation plan 
on a local, regional, ecosystem, watershed, statewide or similar scale.
    (ii) The plan may encompass multiple environmental resources within 
a defined geographic area(s) or may focus on a specific type(s) of 
resource(s) such as aquatic resources, parkland, or wildlife habitat.
    (iii) The plan may address or consider impacts from all projects in 
a defined geographic area(s) or may focus on a specific type(s) of 
project(s).
    (2) Contents. The programmatic mitigation plan may include:
    (i) An assessment of the existing condition of natural and human 
environmental resources within the area covered by the plan, including 
an assessment of historic and recent trends and/or any potential 
threats to those resources.
    (ii) An identification of economic, social, and natural and human 
environmental resources within the geographic area that may be impacted 
and considered for mitigation. Examples of these resources include 
wetlands, streams, rivers, stormwater, parklands, cultural resources, 
historic resources, farmlands, archeological resources, threatened or 
endangered species, and critical habitat. This may include the 
identification of areas of high conservation concern or value, and thus 
worthy of avoidance.
    (iii) An inventory of existing or planned environmental resource 
banks for the impacted resource categories such as wetland, stream, 
stormwater, habitat, species, and an inventory of federally, State, or 
locally approved in-lieu-of-fee programs.
    (iv) An assessment of potential opportunities to improve the 
overall quality of the identified environmental resources through 
strategic mitigation for impacts of transportation projects, which may 
include the prioritization of parcels or areas for acquisition and/or 
potential resource banking sites.
    (v) An adoption or development of standard measures or operating 
procedures for mitigating certain types of impacts; establishment of 
parameters for determining or calculating appropriate mitigation for 
certain types of impacts, such as mitigation ratios, or criteria for 
determining appropriate mitigation sites.
    (vi) Adaptive management procedures, such as protocols or 
procedures that involve monitoring actual impacts against predicted 
impacts over time and adjusting mitigation measures in response to 
information gathered through the monitoring.
    (vii) Acknowledgment of specific statutory or regulatory 
requirements that must be satisfied when determining appropriate 
mitigation for certain types of resources.
    (b) A State may adopt a programmatic mitigation plan developed 
pursuant to paragraph (a), or developed pursuant to an alternative 
process as provided for in paragraph (f) of this section through the 
following process:
    (1) Consult with each agency with jurisdiction over the 
environmental resources considered in the programmatic mitigation plan;
    (2) Make available a draft of the programmatic mitigation plan for 
review and comment by appropriate environmental resource agencies and 
the public;
    (3) Consider comments received from such agencies and the public on 
the draft plan; and
    (4) Address such comments in the final programmatic mitigation 
plan.
    (c) A State may integrate a programmatic mitigation plan with other 
plans, including, watershed plans, ecosystem plans, species recovery 
plans, growth management plans, State Wildlife Action Plans, and land 
use plans.
    (d) If a programmatic mitigation plan has been adopted pursuant to 
paragraph (b), any Federal agency responsible for environmental 
reviews, permits, or approvals for a transportation project shall give 
substantial weight to the recommendations in the programmatic 
mitigation plan when carrying out its responsibilities under the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
(NEPA) or other Federal environmental law.
    (e) Nothing in this section limits the use of programmatic 
approaches for reviews under NEPA.
    (f) Nothing in this section prohibits the development, as part of 
or separate from the transportation planning process, of a programmatic 
mitigation plan independent of the framework described in paragraph (a) 
of this section. Further, nothing in this section prohibits the 
adoption of a programmatic mitigation plan in the statewide and 
nonmetropolitan transportation planning process that was developed 
under another authority, independent of the framework described in 
paragraph (a).


Sec.  450.216  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 
capital, operations and management strategies, investments, procedures, 
and other measures to ensure the preservation and most efficient use of 
the existing transportation system including consideration of the role 
that intercity buses may play in reducing congestion, pollution, and 
energy

[[Page 34143]]

consumption in a cost-effective manner and strategies and investments 
that preserve and enhance intercity bus systems, including systems that 
are privately owned and operated. 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), as appropriate, that were relevant 
to the development of the long-range statewide transportation plan.
    (d) The long-range statewide transportation plan should integrate 
the priorities, goals, countermeasures, strategies, or projects 
contained in the HSIP, including the SHSP, required under 23 U.S.C. 
148, the Public Transportation Agency Safety Plan required under 49 
U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with 49 
CFR part 659, as in effect until completion of the Public 
Transportation Agency Safety Plan.
    (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) The statewide transportation plan shall include:
    (1) A description of the performance measures and performance 
targets used in assessing the performance of the transportation system 
in accordance with Sec.  450.206(c); and
    (2) A system performance report and subsequent updates evaluating 
the condition and performance of the transportation system with respect 
to the performance targets described in Sec.  450.206(c), including 
progress achieved by the MPO(s) in meeting the performance targets in 
comparison with system performance recorded in previous reports.
    (g) Within each metropolitan area of the State, the State shall 
develop the long-range statewide transportation plan in cooperation 
with the affected MPOs.
    (h) For nonmetropolitan areas, the State shall develop the long-
range statewide transportation plan in cooperation with affected 
nonmetropolitan local officials with responsibility for transportation 
or, if applicable, through RTPOs described in Sec.  450.210(d) using 
the State's cooperative process(es) established under Sec.  450.210(b).
    (i) For each area of the State under the jurisdiction of an Indian 
Tribal government, the State shall develop the long-range statewide 
transportation plan in consultation with the Tribal government and the 
Secretary of the Interior consistent with Sec.  450.210(c).
    (j) The State shall develop the long-range statewide transportation 
plan, 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.
    (k) 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 State shall develop 
the discussion in consultation with applicable Federal, State, 
regional, local and Tribal land management, wildlife, and regulatory 
agencies. The State may establish reasonable timeframes for performing 
this consultation.
    (l) In developing and updating the long-range statewide 
transportation plan, the State shall provide:
    (1) To nonmetropolitan local elected officials, or, if applicable, 
through RTPOs described in Sec.  450.210(d), an opportunity to 
participate in accordance with Sec.  450.216(h); and
    (2) To individuals, affected public agencies, representatives of 
public transportation employees, public ports, freight shippers, 
private providers of transportation (including intercity bus operators, 
employer-based cash-out program, shuttle program, or telework program), 
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 use the public 
involvement process described under Sec.  450.210(a).
    (m) The long-range statewide transportation plan may 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 include additional 
projects that the State would include in the adopted long-range 
statewide transportation plan if additional resources beyond those 
identified in the financial plan were to become available. The 
financial plan may include an assessment of the appropriateness of 
innovative finance techniques (for example, tolling, pricing, bonding, 
public-private partnerships, or other strategies) as revenue sources.
    (n) The State is not required to select any project from the 
illustrative list of additional projects included in the financial plan 
described in paragraph (m) of this section.
    (o) The State shall publish or otherwise make available the long-
range statewide transportation plan 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.  
450.210(a).
    (p) 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.
    (q) The State shall provide copies of any new or amended long-range 
statewide transportation plan documents to the FHWA and the FTA for 
informational purposes.


Sec.  450.218  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 4 years and shall be updated at least

[[Page 34144]]

every 4 years, or more frequently if the Governor of the State elects a 
more frequent update cycle. However, if the STIP covers more than 4 
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), the 
State may develop a partial STIP covering the rest of the State.
    (b) For each metropolitan area in the State, the State shall 
develop the STIP in cooperation with the MPO designated for the 
metropolitan area. The State shall include each metropolitan TIP 
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 nonmetropolitan area in the State, the State shall 
develop the STIP in cooperation with affected nonmetropolitan local 
officials with responsibility for transportation or, if applicable, 
through RTPOs described in Sec.  450.210(d) using the State's 
consultation process(es) established under Sec.  450.210(b).
    (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) Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access 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. 201(c)(4).
    (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 alternatives and associated 
transit improvements; Tribal Transportation Program projects, Federal 
Lands Transportation Program projects, and Federal Lands Access Program 
projects; HSIP projects; trails projects; and accessible pedestrian 
walkways and bicycle facilities), except the following that may 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(d) 
and 49 U.S.C. 5305(d);
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) State planning and research projects funded with Surface 
Transportation Program funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) Research, development, demonstration, and deployment projects 
funded under 49 U.S.C. 5312, and technical assistance and standards 
development projects funded under 49 U.S.C. 5314;
    (7) Project management oversight projects funded under 49 U.S.C. 
5327; and
    (8) State safety oversight programs funded under 49 U.S.C. 5329.
    (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 4 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 regulations (40 CFR part 93, subpart 
A). 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.  450.216 and, in metropolitan planning areas, consistent 
with an approved metropolitan transportation plan developed under Sec.  
450.324.
    (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 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 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. Revenue and cost estimates for the STIP must use an inflation 
rate to reflect ``year of expenditure dollars,'' based on reasonable 
financial principles and information, developed cooperatively by the 
State, MPOs, and public transportation operators.
    (m) In nonattainment and maintenance areas, projects included in 
the first 2 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

[[Page 34145]]

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. 5302).
    (n) Projects in any of the first 4 years of the STIP may be 
advanced in place of another project in the first 4 years of the STIP, 
subject to the project selection requirements of Sec.  450.222. In 
addition, subject to FHWA/FTA approval (see Sec.  450.220), the State 
may revise the STIP at any time under procedures agreed to by the 
State, MPO(s), and public transportation operators 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)). Changes that affect fiscal constraint must take place by 
amendment of the STIP.
    (o) 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.
    (p) In cases where 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 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.
    (q) A STIP shall include, to the maximum extent practicable, a 
discussion of the anticipated effect of the STIP toward achieving the 
performance targets identified by the State in the statewide 
transportation plan or other State performance-based plan(s), linking 
investment priorities to those performance targets.


Sec.  450.220  Self-certifications, Federal findings, and Federal 
approvals.

    (a) At least every 4 years, the State shall submit an updated STIP 
concurrently to the FHWA and the FTA for joint approval. The State must 
also submit STIP amendments 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 FAST Act (Pub. L. 114-357) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in DOT 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) 23 U.S.C. 324, 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 by the 
State; 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 
4 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 4 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.  450.222  Project selection from the STIP.

    (a) Except as provided in Sec.  450.218(g) and Sec.  450.220(d), 
only projects in a FHWA/FTA approved STIP are 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.  450.332.

[[Page 34146]]

    (c) In nonmetropolitan areas, with the exclusion of specific 
projects as described in this section, the State shall select projects 
from the approved STIP in cooperation with the affected nonmetropolitan 
local officials, or if applicable, through RTPOs described in Sec.  
450.210(e). The State shall select transportation projects undertaken 
on the NHS, under the Bridge and Interstate Maintenance programs in 
title 23 U.S.C. and under sections 5310 and 5311 of title 49 U.S.C. 
Chapter 53 from the approved STIP in consultation with the affected 
nonmetropolitan local officials with responsibility for transportation.
    (d) Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program projects shall be selected 
from the approved STIP in accordance with the procedures developed 
pursuant to 23 U.S.C. 201, 202, 203, and 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.  450.332(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.  450.224  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 the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).


Sec.  450.226  Phase-in of new requirements.

    (a) Prior to May 27, 2018, a State may adopt a long-range statewide 
transportation plan that has been developed using the SAFETEA-LU 
requirements or the provisions and requirements of this part. On or 
after May 27, 2018, a State may only adopt a long-range statewide 
transportation plan that it has developed according to the provisions 
and requirements of this part.
    (b) Prior to May 27, 2018 (2 years after the publication date of 
this rule), FHWA/FTA may approve a STIP update or amendment that has 
been developed using the SAFETEA-LU requirements or the provisions and 
requirements of this part. On or after May 27, 2018, FHWA/FTA may only 
approve a STIP update or amendment that a State has developed according 
to the provisions and requirements of this part, regardless of when the 
State developed the STIP.
    (c) On and after May 27, 2018 (2 years after the publication date 
of this rule), the FHWA and the FTA will take action on an updated or 
amended STIP developed under the provisions of this part, even if the 
State has not yet adopted a new long-range statewide transportation 
plan under the provisions of this part, as long as the underlying 
transportation planning process is consistent with the requirements in 
the MAP-21.
    (d) On or after May 27, 2018, a State may make an administrative 
modification to a STIP that conforms to either the SAFETEA-LU 
requirements or to the provisions and requirements of this part.
    (e) Two years from the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 
U.S.C. 5329, FHWA/FTA will only approve an updated or amended STIP that 
is based on a statewide transportation planning process that meets the 
performance-based planning requirements in this part and in such a 
rule.
    (f) Prior to 2 years from the effective date of each rule 
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 
5326, or 49 U.S.C. 5329, a State may adopt a long-range statewide 
transportation plan that it has developed using the SAFETEA-LU 
requirements or the performance-based provisions and requirements of 
this part and in such a rule. Two years on or after the effective date 
of each rule establishing performance measures under 23 U.S.C. 150(c), 
49 U.S.C. 5326, or 49 U.S.C. 5329, a State may only adopt a long-range 
statewide transportation plan that it has developed according to the 
performance-based provisions and requirements of this part and in such 
a rule.

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, 23 U.S.C. 150, and 49 U.S.C. 5303, as amended, which:
    (a) Set forth the national policy that the MPO designated for each 
urbanized area is to carry out a continuing, cooperative, and 
comprehensive performance-based multimodal transportation planning 
process, including the development of a metropolitan transportation 
plan and a 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, bicycle transportation facilities, and 
intermodal facilities that support intercity transportation, including 
intercity buses and intercity bus facilities and commuter vanpool 
providers) fosters economic growth and development, and takes into 
consideration resiliency needs, 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) To accomplish the objectives in Sec.  450.300 and Sec.  
450.306(b), metropolitan planning organizations designated under Sec.  
450.310, in cooperation with the State and public transportation 
operators, shall develop long-range transportation plans and TIPs 
through a performance-driven, outcome-based approach to planning for 
metropolitan areas of the State.
    (b) The metropolitan transportation planning process shall be 
continuous, cooperative, and comprehensive, and provide for 
consideration and

[[Page 34147]]

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;
    (8) Emphasize the preservation of the existing transportation 
system;
    (9) Improve the resiliency and reliability of the transportation 
system and reduce or mitigate stormwater impacts of surface 
transportation; and
    (10) Enhance travel and tourism.
    (c) Consideration of the planning factors in paragraph (b) 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 
(including Section 4(f) properties as defined in 23 CFR 774.17), and 
housing and community development.
    (d) Performance-based approach. (1) The metropolitan transportation 
planning process shall provide for the establishment and use of a 
performance-based approach to transportation decisionmaking to support 
the national goals described in 23 U.S.C. 150(b) and the general 
purposes described in 49 U.S.C. 5301(c).
    (2) Establishment of performance targets by metropolitan planning 
organizations. (i) Each metropolitan planning organization shall 
establish performance targets that address the performance measures or 
standards established under 23 CFR part 490 (where applicable), 49 
U.S.C. 5326(c), and 49 U.S.C. 5329(d) to use in tracking progress 
toward attainment of critical outcomes for the region of the 
metropolitan planning organization.
    (ii) The selection of targets that address performance measures 
described in 23 U.S.C. 150(c) shall be in accordance with the 
appropriate target setting framework established at 23 CFR part 490, 
and shall be coordinated with the relevant State(s) to ensure 
consistency, to the maximum extent practicable.
    (iii) The selection of performance targets that address performance 
measures described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) shall be 
coordinated, to the maximum extent practicable, with public 
transportation providers to ensure consistency with the performance 
targets that public transportation providers establish under 49 U.S.C. 
5326(c) and 49 U.S.C. 5329(d).
    (3) Each MPO shall establish the performance targets under 
paragraph (d)(2) of this section not later than 180 days after the date 
on which the relevant State or provider of public transportation 
establishes the performance targets.
    (4) An MPO shall integrate in the metropolitan transportation 
planning process, directly or by reference, the goals, objectives, 
performance measures, and targets described in other State 
transportation plans and transportation processes, as well as any plans 
developed under 49 U.S.C. chapter 53 by providers of public 
transportation, required as part of a performance-based program 
including:
    (i) The State asset management plan for the NHS, as defined in 23 
U.S.C. 119(e) and the Transit Asset Management Plan, as discussed in 49 
U.S.C. 5326;
    (ii) Applicable portions of the HSIP, including the SHSP, as 
specified in 23 U.S.C. 148;
    (iii) The Public Transportation Agency Safety Plan in 49 U.S.C. 
5329(d);
    (iv) Other safety and security planning and review processes, 
plans, and programs, as appropriate;
    (v) The Congestion Mitigation and Air Quality Improvement Program 
performance plan in 23 U.S.C. 149(l), as applicable;
    (vi) Appropriate (metropolitan) portions of the State Freight Plan 
(MAP-21 section 1118);
    (vii) The congestion management process, as defined in 23 CFR 
450.322, if applicable; and
    (viii) Other State transportation plans and transportation 
processes required as part of a performance-based program.
    (e) The failure to consider any factor specified in paragraph (b) 
or (d) 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.
    (f) An MPO shall carry out the metropolitan transportation planning 
process in coordination with the statewide transportation planning 
process required by 23 U.S.C. 135 and 49 U.S.C. 5304.
    (g) 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.
    (h) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, should be 
coordinated and consistent with the metropolitan transportation 
planning process.
    (i) 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 this part, taking 
into account the complexity of the transportation problems in the area. 
The MPO shall develop simplified procedures in cooperation with the 
State(s) and public transportation operator(s).


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

    (a) Funds provided under 23 U.S.C. 104(d), 49 U.S.C. 5305(d), and 
49 U.S.C. 5307, are available to MPOs to accomplish activities 
described in this subpart. At the State's option, funds provided under 
23 U.S.C. 104(b)(2) and 23 U.S.C. 505 may also be provided to MPOs for 
metropolitan transportation planning. At the option of the State and 
operators of public transportation, funds provided under 49 U.S.C. 
5305(e) may also be provided to MPOs for activities that support 
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)(4) for

[[Page 34148]]

metropolitan transportation planning activities.
    (b) An MPO shall document metropolitan transportation planning 
activities performed with funds provided under title 23 U.S.C. and 
title 49 U.S.C. Chapter 53 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 1- or 2-year period by major activity and task (including 
activities that address the planning factors in Sec.  450.306(b)), 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 shall include a description of the major activities to be 
performed during the next 1- or 2-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, as 
amended (Program Guidance for Metropolitan Planning and State Planning 
and Research Program Grants).


Sec.  450.310  Metropolitan planning organization designation and 
redesignation.

    (a) To carry out the metropolitan transportation planning process 
under this subpart, an 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) The FHWA and the FTA shall identify as a 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 
urbanized area as a TMA on the request of the Governor and the MPO 
designated for that area.
    (d) TMA structure:
    (1) Not later than October 1, 2014, each metropolitan planning 
organization that serves a designated TMA shall consist of:
    (i) Local elected officials;
    (ii) Officials of public agencies that administer or operate major 
modes of transportation in the metropolitan area, including 
representation by providers of public transportation; and
    (iii) Appropriate State officials.
    (2) An MPO may be restructured to meet the requirements of this 
paragraph (d) without undertaking a redesignation.
    (3) Representation. (i) Designation or selection of officials or 
representatives under paragraph (d)(1) of this section shall be 
determined by the MPO according to the bylaws or enabling statute of 
the organization.
    (ii) Subject to the bylaws or enabling statute of the MPO, a 
representative of a provider of public transportation may also serve as 
a representative of a local municipality.
    (iii) An official described in paragraph (d)(1)(ii) shall have 
responsibilities, actions, duties, voting rights, and any other 
authority commensurate with other officials described in paragraph 
(d)(1) of this section.
    (4) Nothing in this section shall be construed to interfere with 
the authority, under any State law in effect on December 18, 1991, of a 
public agency with multimodal transportation responsibilities--
    (i) To develop the plans and TIPs for adoption by an MPO; and
    (ii) To develop long-range capital plans, coordinate transit 
services and projects, and carry out other activities pursuant to State 
law.
    (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) 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.
    (j) 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 
responsibility of the MPO, or in decisionmaking procedures established 
under MPO by-laws.
    (k) 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).

[[Page 34149]]

    (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 (j) of this 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 
described in paragraph (d) of this section 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.
    (m) 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.


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.
    (1) 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.
    (2) 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, the appropriate 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 MPO (in cooperation with the State and public 
transportation operator(s)) shall review the MPA boundaries after each 
Census to determine if existing MPA boundaries meet the minimum 
statutory requirements for new and updated urbanized area(s), and shall 
adjust them 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, 
improves access to 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 providers of public 
transportation 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 providers of 
public transportation 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 the 
development of financial plans that support the metropolitan 
transportation plan (see Sec.  450.324) and the metropolitan TIP (see 
Sec.  450.326), and development of the annual listing of obligated 
projects (see Sec.  450.334).
    (b) The MPO, the State(s), and the providers of public 
transportation should periodically review and update the agreement, as 
appropriate, to reflect effective changes.
    (c) 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 regulations (40 CFR part 93, subpart A). 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.
    (d) 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

[[Page 34150]]

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.
    (e) 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 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.
    (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, 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.
    (g) 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).
    (h)(1) The MPO(s), State(s), and the providers of public 
transportation shall jointly agree upon and develop specific written 
provisions for cooperatively developing and sharing information related 
to transportation performance data, the selection of performance 
targets, the reporting of performance targets, the reporting of 
performance to be used in tracking progress toward attainment of 
critical outcomes for the region of the MPO (see Sec.  450.306(d)), and 
the collection of data for the State asset management plan for the NHS 
for each of the following circumstances:
    (i) When one MPO serves an urbanized area,
    (ii) When more than one MPO serves an urbanized area, and
    (iii) When an urbanized area that has been designated as a TMA 
overlaps into an adjacent MPA serving an urbanized area that is not a 
TMA.
    (2) These provisions shall be documented either:
    (i) As part of the metropolitan planning agreements required under 
(a), (e), and (g) of this section, or
    (ii) Documented in some other means outside of the metropolitan 
planning agreements as determined cooperatively by the MPO(s), 
State(s), and providers of public transportation.


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 individuals, affected public 
agencies, representatives of public transportation employees, public 
ports, freight shippers, providers of freight transportation services, 
private providers of transportation (including intercity bus operators, 
employer-based commuting programs, such as carpool program, vanpool 
program, transit benefit program, parking cash-out program, shuttle 
program, or telework program), 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 MPO shall develop the participation plan 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 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 that 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, subpart A), a summary, 
analysis, and report on the disposition of comments shall be made as 
part of

[[Page 34151]]

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, 
tourism, natural disaster risk reduction, environmental protection, 
airport operations, or freight movements) or coordinate its planning 
process (to the maximum extent practicable) with such planning 
activities. In addition, the MPO shall develop the metropolitan 
transportation plans and TIPs 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. 201-204.
    (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 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) 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. The guidance in Appendix A applies 
only to paragraphs (a)-(c) in this section.
    (e) In addition to the process for incorporation directly or by 
reference outlined in paragraph (b) of this section, an additional 
authority for integrating planning products into the environmental 
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 
168(f):
    (1) The statutory authority in 23 U.S.C. 168 shall not be construed 
to limit in any way the continued use of processes established under 
other parts of this section or under an authority established outside 
of this part, and the use of one of the processes in this section does 
not preclude the subsequent use of another process in this section or 
an authority outside of this part.
    (2) The statute does not restrict the initiation of the 
environmental review process during planning.


Sec.  450.320  Development of programmatic mitigation plans.

    (a) An MPO may utilize the optional framework in this section to 
develop programmatic mitigation plans as part of the metropolitan 
transportation planning process to address the potential environmental 
impacts of future transportation projects. The MPO, in consultation 
with the FHWA and/or the FTA and with the agency or agencies with 
jurisdiction and special expertise over the resources being addressed 
in the plan, will determine:
    (1) Scope. (i) An MPO may develop a programmatic mitigation plan on 
a local, regional, ecosystem, watershed, statewide or similar scale.

[[Page 34152]]

    (ii) The plan may encompass multiple environmental resources within 
a defined geographic area(s) or may focus on a specific type(s) of 
resource(s) such as aquatic resources, parkland, or wildlife habitat.
    (iii) The plan may address or consider impacts from all projects in 
a defined geographic area(s) or may focus on a specific type(s) of 
project(s).
    (2) Contents. The programmatic mitigation plan may include:
    (i) An assessment of the existing condition of natural and human 
environmental resources within the area covered by the plan, including 
an assessment of historic and recent trends and/or any potential 
threats to those resources.
    (ii) An identification of economic, social, and natural and human 
environmental resources within the geographic area that may be impacted 
and considered for mitigation. Examples of these resources include 
wetlands, streams, rivers, stormwater, parklands, cultural resources, 
historic resources, farmlands, archeological resources, threatened or 
endangered species, and critical habitat. This may include the 
identification of areas of high conservation concern or value and thus 
worthy of avoidance.
    (iii) An inventory of existing or planned environmental resource 
banks for the impacted resource categories such as wetland, stream, 
stormwater, habitat, species, and an inventory of federally, State, or 
locally approved in-lieu-of-fee programs.
    (iv) An assessment of potential opportunities to improve the 
overall quality of the identified environmental resources through 
strategic mitigation for impacts of transportation projects which may 
include the prioritization of parcels or areas for acquisition and/or 
potential resource banking sites.
    (v) An adoption or development of standard measures or operating 
procedures for mitigating certain types of impacts; establishment of 
parameters for determining or calculating appropriate mitigation for 
certain types of impacts, such as mitigation ratios, or criteria for 
determining appropriate mitigation sites.
    (vi) Adaptive management procedures, such as protocols or 
procedures that involve monitoring actual impacts against predicted 
impacts over time and adjusting mitigation measures in response to 
information gathered through the monitoring.
    (vii) Acknowledgement of specific statutory or regulatory 
requirements that must be satisfied when determining appropriate 
mitigation for certain types of resources.
    (b) A MPO may adopt a programmatic mitigation plan developed 
pursuant to paragraph (a), or developed pursuant to an alternative 
process as provided for in paragraph (f) of this section through the 
following process:
    (1) Consult with each agency with jurisdiction over the 
environmental resources considered in the programmatic mitigation plan;
    (2) Make available a draft of the programmatic mitigation plan for 
review and comment by appropriate environmental resource agencies and 
the public;
    (3) Consider comments received from such agencies and the public on 
the draft plan; and
    (4) Address such comments in the final programmatic mitigation 
plan.
    (c) A programmatic mitigation plan may be integrated with other 
plans, including watershed plans, ecosystem plans, species recovery 
plans, growth management plans, State Wildlife Action Plans, and land 
use plans.
    (d) If a programmatic mitigation plan has been adopted pursuant to 
paragraph (b), any Federal agency responsible for environmental 
reviews, permits, or approvals for a transportation project shall give 
substantial weight to the recommendations in the programmatic 
mitigation plan when carrying out its responsibilities under the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 
(NEPA) or other Federal environmental law.
    (e) Nothing in this section limits the use of programmatic 
approaches for reviews under NEPA.
    (f) Nothing in this section prohibits the development, as part of 
or separate from the transportation planning process, of a programmatic 
mitigation plan independent of the framework described in paragraph (a) 
of this section. Further, nothing in this section prohibits the 
adoption of a programmatic mitigation plan in the metropolitan planning 
process that was developed under another authority, independent of the 
framework described in paragraph (a).


Sec.  450.322  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 (including intercity bus operators, employer-based commuting 
programs such as a carpool program, vanpool program, transit benefit 
program, parking cash-out program, shuttle program, or telework 
program), job access projects, 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.
    (c) 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, 
improve transportation system management and operations, and improve 
efficient service integration within and across modes, including 
highway, transit, passenger and freight rail operations, and non-
motorized transport. 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.
    (d) 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 underlying 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

[[Page 34153]]

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, including providers of public transportation;
    (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;
    (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 decision makers and the public to provide guidance on 
selection of effective strategies for future implementation.
    (e) 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.
    (f) 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.
    (g) 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.
    (h) Congestion management plan. A MPO serving a TMA may develop a 
plan that includes projects and strategies that will be considered in 
the TIP of such MPO.
    (1) Such plan shall:
    (i) Develop regional goals to reduce vehicle miles traveled during 
peak commuting hours and improve transportation connections between 
areas with high job concentration and areas with high concentrations of 
low-income households;
    (ii) Identify existing public transportation services, employer 
based commuter programs, and other existing transportation services 
that support access to jobs in the region; and
    (iii) Identify proposed projects and programs to reduce congestion 
and increase job access opportunities.
    (2) In developing the congestion management plan, an MPO shall 
consult with employers, private and nonprofit providers of public 
transportation, transportation management organizations, and 
organizations that provide job access reverse commute projects or job-
related services to low-income individuals.


Sec.  450.324  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 formulating the 
transportation plan, the MPO shall consider factors described in Sec.  
450.306 as the factors relate to a minimum 20-year forecast period. 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 provide for the development of an 
integrated multimodal transportation system (including accessible 
pedestrian walkways and bicycle transportation facilities) 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 4 years in air quality nonattainment and maintenance areas 
and at least every 5 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 MPO shall approve the transportation plan (and any 
revisions) and submit it 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

[[Page 34154]]

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 used 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 current and 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, public transportation facilities, intercity bus 
facilities, multimodal and intermodal facilities, nonmotorized 
transportation facilities (e.g., 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.
    (3) A description of the performance measures and performance 
targets used in assessing the performance of the transportation system 
in accordance with Sec.  450.306(d).
    (4) A system performance report and subsequent updates evaluating 
the condition and performance of the transportation system with respect 
to the performance targets described in Sec.  450.306(d), including--
    (i) Progress achieved by the metropolitan planning organization in 
meeting the performance targets in comparison with system performance 
recorded in previous reports, including baseline data; and
    (ii) For metropolitan planning organizations that voluntarily elect 
to develop multiple scenarios, an analysis of how the preferred 
scenario has improved the conditions and performance of the 
transportation system and how changes in local policies and investments 
have impacted the costs necessary to achieve the identified performance 
targets.
    (5) 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;
    (6) 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.
    (7) Assessment of capital investment and other strategies to 
preserve the existing and projected future metropolitan transportation 
infrastructure, provide for multimodal capacity increases based on 
regional priorities and needs, and reduce the vulnerability of the 
existing transportation infrastructure to natural disasters. 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.
    (8) Transportation and transit enhancement activities, including 
consideration of the role that intercity buses may play in reducing 
congestion, pollution, and energy consumption in a cost-effective 
manner and strategies and investments that preserve and enhance 
intercity bus systems, including systems that are privately owned and 
operated, and including transportation alternatives, as defined in 23 
U.S.C. 101(a), and associated transit improvements, as described in 49 
U.S.C. 5302(a), as appropriate;
    (9) 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 
regulations (40 CFR part 93, subpart A). In all areas (regardless of 
air quality designation), all proposed improvements shall be described 
in sufficient detail to develop cost estimates;
    (10) 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 MPO shall develop the discussion 
in consultation with applicable Federal, State, and Tribal land 
management, wildlife, and regulatory agencies. The MPO may establish 
reasonable timeframes for performing this consultation;
    (11) 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 the 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. The financial plan may include an assessment of the 
appropriateness of innovative finance techniques (for example, tolling, 
pricing, bonding, public private partnerships, or other strategies) as 
revenue sources for projects in the plan.
    (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. 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

[[Page 34155]]

implementation of TCMs in the applicable SIP.
    (vii) For illustrative purposes, the financial plan may 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.
    (12) Pedestrian walkway and bicycle transportation facilities in 
accordance with 23 U.S.C. 217(g).
    (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 integrate the 
priorities, goals, countermeasures, strategies, or projects for the 
metropolitan planning area contained in the HSIP, including the SHSP 
required under 23 U.S.C. 148, the Public Transportation Agency Safety 
Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan 
in accordance with 49 CFR part 659, as in effect until completion of 
the Public Transportation Agency Safety Plan, and may incorporate or 
reference applicable emergency relief and disaster preparedness plans 
and strategies and policies that support homeland security, as 
appropriate, to safeguard the personal security of all motorized and 
non-motorized users.
    (i) An MPO may, while fitting the needs and complexity of its 
community, voluntarily elect to develop multiple scenarios for 
consideration as part of the development of the metropolitan 
transportation plan.
    (1) An MPO that chooses to develop multiple scenarios under this 
paragraph (i) is encouraged to consider:
    (i) Potential regional investment strategies for the planning 
horizon;
    (ii) Assumed distribution of population and employment;
    (iii) A scenario that, to the maximum extent practicable, maintains 
baseline conditions for the performance areas identified in Sec.  
450.306(d) and measures established under 23 CFR part 490;
    (iv) A scenario that improves the baseline conditions for as many 
of the performance measures identified in Sec.  450.306(d) as possible;
    (v) Revenue constrained scenarios based on the total revenues 
expected to be available over the forecast period of the plan; and
    (vi) Estimated costs and potential revenues available to support 
each scenario.
    (2) In addition to the performance areas identified in 23 U.S.C. 
150(c), 49 U.S.C. 5326(c), and 5329(d), and the measures established 
under 23 CFR part 490, MPOs may evaluate scenarios developed under this 
paragraph using locally developed measures.
    (j) The MPO shall provide individuals, affected public agencies, 
representatives of public transportation employees, public ports, 
freight shippers, providers of freight transportation services, private 
providers of transportation (including intercity bus operators, 
employer-based commuting programs, such as carpool program, vanpool 
program, transit benefit program, parking cashout program, shuttle 
program, or telework program), 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).
    (k) The MPO shall publish or otherwise make readily available the 
metropolitan transportation plan for public review, including (to the 
maximum extent practicable) in electronically accessible formats and 
means, such as the World Wide Web.
    (l) A State or MPO is not required to select any project from the 
illustrative list of additional projects included in the financial plan 
under paragraph (f)(11) of this section.
    (m) 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, subpart A). A 12-month 
conformity lapse grace period will be implemented when an area misses 
an applicable deadline, in accordance with the Clean Air Act and the 
transportation conformity regulations (40 CFR part 93, subpart A). At 
the end of this 12-month grace period, the existing conformity 
determination will lapse. 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, subpart A. An interim metropolitan 
transportation 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.  450.326  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 reflect the investment 
priorities established in the current metropolitan transportation plan 
and shall cover a period of no less than 4 years, be updated at least 
every 4 years, and be approved by the MPO and the Governor. However, if 
the TIP covers more than 4 years, the FHWA and the FTA will consider 
the projects in the additional years as informational. The MPO may 
update the TIP 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, subpart A).
    (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

[[Page 34156]]

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 MPO shall publish or otherwise make readily available 
the TIP 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 be designed such that once implemented, it makes 
progress toward achieving the performance targets established under 
Sec.  450.306(d).
    (d) The TIP shall include, to the maximum extent practicable, a 
description of the anticipated effect of the TIP toward achieving the 
performance targets identified in the metropolitan transportation plan, 
linking investment priorities to those performance targets.
    (e) 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 alternatives; 
associated transit improvements; Tribal Transportation Program, Federal 
Lands Transportation Program, and Federal Lands Access Program 
projects; HSIP projects; trails projects; accessible pedestrian 
walkways; and bicycle facilities), except the following that may 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(d), 
and 49 U.S.C. 5305(d);
    (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, metropolitan planning 
projects funded with Surface Transportation Program 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.
    (f) 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.
    (g) 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 4 
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 that 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 
regulations (40 CFR part 93, subpart A); and
    (7) In areas with Americans with Disabilities Act required 
paratransit and key station plans, identification of those projects 
that will implement these plans.
    (h) 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 regulations (40 CFR part 93, subpart A). 
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.
    (i) Each project or project phase included in the TIP shall be 
consistent with the approved metropolitan transportation plan.
    (j) 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)(6)) and public 
transportation (as defined by title 49 U.S.C. Chapter 53). In addition, 
for illustrative purposes, the financial plan may 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. 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).
    (k) 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 2 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

[[Page 34157]]

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 regulations (40 CFR 
part 93, subpart A) and shall provide for their timely implementation.
    (l) 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.
    (m) Procedures or agreements that distribute suballocated Surface 
Transportation Program funds 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.
    (n) 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.
    (o) In metropolitan nonattainment and maintenance areas, a 12-month 
conformity lapse grace period will be implemented when an area misses 
an applicable deadline, according to the Clean Air Act and the 
transportation conformity regulations (40 CFR part 93, subpart A). At 
the end of this 12-month grace period, the existing conformity 
determination will lapse. 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.
    (p) Projects in any of the first 4 years of the TIP may be advanced 
in place of another project in the first 4 years of the TIP, subject to 
the project selection requirements of Sec.  450.332. In addition, the 
MPO may revise the TIP 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.  450.330).


Sec.  450.328  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. 
The MPO shall use public participation procedures consistent with Sec.  
450.316(a) in revising the TIP, except that these procedures are not 
required for administrative modifications.
    (b) After approval by the MPO and the Governor, the State shall 
include the TIP without change, directly or by reference, in the STIP 
required under 23 U.S.C. 135. In nonattainment and maintenance areas, 
the FHWA and the FTA must make a conformity finding on the TIP 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 it has included a TIP including projects under the 
jurisdiction of these agencies in the STIP.


Sec.  450.330  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.  450.336, 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 an MPO has not updated the metropolitan transportation plan 
in accordance with the cycles defined in Sec.  450.324(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.  450.326(a). Until the MPO approves (in attainment areas) or 
the FHWA and the FTA issue a conformity determination on (in 
nonattainment and maintenance areas) the updated metropolitan 
transportation plan, the MPO may not amend the TIP.
    (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.  450.220(b).
    (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.

[[Page 34158]]

Sec.  450.332  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.  450.326 has been developed and approved, the 
first year of the TIP will 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, the MPO, the State, and the public transportation 
operator(s) if requested by the MPO, the State, or the public 
transportation operator(s) shall jointly develop a revised ``agreed 
to'' list of projects. 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, the State and/or 
the public transportation operator(s), in cooperation with the MPO 
shall select projects to be implemented using title 23 U.S.C. funds 
(other than Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program projects) or funds under 
title 49 U.S.C. Chapter 53, from the approved metropolitan TIP. Tribal 
Transportation Program, Federal Lands Transportation Program, and 
Federal Lands Access Program projects shall be selected in accordance 
with procedures developed pursuant to 23 U.S.C. 201, 202, 203, and 204.
    (c) In areas designated as TMAs, the MPO shall select all 23 U.S.C. 
and 49 U.S.C. Chapter 53 funded projects (excluding projects on the NHS 
and Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program) in consultation with the 
State and public transportation operator(s) from the approved TIP and 
in accordance with the priorities in the approved TIP. The State shall 
select projects on the NHS in cooperation with the MPO, from the 
approved TIP. Tribal Transportation Program, Federal Lands 
Transportation Program, and Federal Lands Access Program projects shall 
be selected in accordance with procedures developed pursuant to 23 
U.S.C. 201, 202, 203, and 204.
    (d) Except as provided in Sec.  450.326(e) and Sec.  450.330(f), 
projects not included in the federally approved STIP are not 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, subpart A).


Sec.  450.334  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.  
450.326(g)(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.  450.336  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 4 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 FAST Act (Pub. L. 114-357) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in DOT 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 4 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 FTA shall take one of the following actions:
    (i) If the process meets the requirements of this part and the MPO 
and the Governor have approved a TIP, jointly certify the 
transportation planning process;
    (ii) If the process substantially meets the requirements of this 
part and the MPO and the Governor have approved a TIP, 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

[[Page 34159]]

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 4 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 FHWA and the FTA shall notify the MPO(s), the State(s), and 
public transportation operator(s) 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.  450.338  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 the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).


Sec.  450.340  Phase-in of new requirements.

    (a) Prior to May 27, 2018, an MPO may adopt a metropolitan 
transportation plan that has been developed using the SAFETEA-LU 
requirements or the provisions and requirements of this part. On or 
after May 27, 2018, an MPO may not adopt a metropolitan transportation 
plan that has not been developed according to the provisions and 
requirements of this part.
    (b) Prior to May 27, 2018 (2 years after the publication date of 
this rule), FHWA/FTA may determine the conformity of, or approve as 
part of a STIP, a TIP that has been developed using SAFETEA-LU 
requirements or the provisions and requirements of this part. On or 
after May 27, 2018 (2 years after the publication date of this rule), 
FHWA/FTA may only determine the conformity of, or approve as part of a 
STIP, a TIP that has been developed according to the provisions and 
requirements of this part, regardless of when the MPO developed the 
TIP.
    (c) On and after May 27, 2018 (2 years after the issuance date of 
this rule), the FHWA and the FTA will take action (i.e., conformity 
determinations and STIP approvals) on an updated or amended 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 MAP-21.
    (d) On or after May 27, 2018 (2 years after the publication date of 
this rule), an MPO may make an administrative modification to a TIP 
that conforms to either the SAFETEA-LU or to the provisions and 
requirements of this part.
    (e) Two years from the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, and 49 
U.S.C. 5329 FHWA/FTA will only determine the conformity of, or approve 
as part of a STIP, a TIP that is based on a metropolitan transportation 
planning process that meets the performance based planning requirements 
in this part and in such a rule.
    (f) Prior to 2 years from the effective date of each rule 
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 
5326, or 49 U.S.C. 5329, an MPO may adopt a metropolitan transportation 
plan that has been developed using the SAFETEA-LU requirements or the 
performance-based planning requirements of this part and in such a 
rule. Two years on or after the effective date of each rule 
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 
5326, or 49 U.S.C. 5329, an MPO may only adopt a metropolitan 
transportation plan that has been developed according to the 
performance-based provisions and requirements of this part and in such 
a rule.
    (g) A newly designated TMA shall implement the congestion 
management process described in Sec.  450.322 within 18 months of 
designation.

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

[[Page 34160]]

NEPA review. Therefore, initiating the NEPA process as part of, or 
concurrently with, a 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.

[[Page 34161]]

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?

    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 decision-making 
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

[[Page 34162]]

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 
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.

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 or the ``Least Environmentally Damaging 
Practicable Alternative'' under the Clean Water Act.

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.
    Development of planning Alternatives Analysis studies, required 
prior to MAP-21 for projects seeking funds through FTA's Capital 
Investment Grant program, are now optional, but may still be used to 
narrow the alternatives prior to the NEPA review, just as other 
planning studies may be used. In fact, through planning studies, 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. 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

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;

[[Page 34163]]

    (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), STP, and Equity 
Bonus); and
     FTA planning and research funds (49 U.S.C. 5303), 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 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

[[Page 34164]]

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 
2015), over 200 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 work plans 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 Web site 
(http://www.fhwa.dot.gov/environment/index.htm) and FTA's 
environmental streamlining Web site (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 Web site is 
continuously updated with news and links to information of interest 
to transportation and environmental professionals 
(www.transportation.environment.org).

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

0
2. The authority citation for part 771 is revised to read as follows:

    Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 
139, 168, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR parts 1500-
1508; 49 CFR 1.81, 1.85; Pub. L. 109-59, 119 Stat. 1144, sections 
6002 and 6010; Pub. L. 112-141, 126 Stat. 405, sections 1310, 1315, 
1316, 1317, and 1318.


0
3. Amend Sec.  771.111 as follows:
0
a. Remove footnote 3;
0
b. Redesignate footnotes 4 and 5 as footnotes 3 and 4, respectively;
0
c. Revise paragraph (a)(2) to read as follows:


Sec.  771.111  Early coordination, public involvement, and project 
development.

* * * * *
    (a) * * *
    (2) The information and results produced by, or in support of, the 
transportation planning process may be incorporated into environmental 
review documents in accordance with 40 CFR 1502.21, and 23 CFR 
450.212(b) or 450.318(b). In addition, planning products may be adopted 
and used in accordance with 23 CFR 450.212(d) or 450.318(e), which 
implement 23 U.S.C. 168.
* * * * *


Sec.  771.139  [Amended]

0
4. Redesignate footnote 6 as footnote 5.

Title 49--Transportation

0
5. Revise 49 CFR part 613 to read as follows:

PART 613--METROPOLITAN AND STATEWIDE AND NONMETROPOLITAN PLANNING

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

    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 1.85, 
1.51(f) and 21.7(a).

Subpart A--Metropolitan Transportation Planning and Programming


Sec.  613.100  Metropolitan transportation planning and programming.

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

Subpart B--Statewide and Nonmetropolitan Transportation Planning 
and Programming


Sec.  613.200  Statewide and nonmetropolitan transportation planning 
and programming.

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

[FR Doc. 2016-11964 Filed 5-26-16; 8:45 am]
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