[Federal Register: February 14, 2007 (Volume 72, Number 30)]
[Rules and Regulations]
[Page 7223-7286]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14fe07-15]
[[Page 7223]]
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Part III
Department of Transportation
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Federal Highway Administration
23 CFR Parts 450 and 500
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Federal Transit Administration
49 CFR Part 613
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Statewide Transportation Planning; Metropolitan Transportation
Planning; Final Rule
[[Page 7224]]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 450 and 500
Federal Transit Administration
49 CFR Part 613
[Docket No. FHWA-2005-22986]
RIN 2125-AF09; FTA RIN 2132-AA82
Statewide Transportation Planning; Metropolitan Transportation
Planning
AGENCIES: Federal Highway Administration (FHWA); Federal Transit
Administration (FTA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule revises the regulations governing the
development of metropolitan transportation plans and programs for
urbanized areas, State transportation plans and programs and the
regulations for Congestion Management Systems. The revision results
from the passage of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L.
109-59, August 10, 2005), which also incorporates changes initiated in
its predecessor legislation, the Transportation Equity Act for the 21st
Century (TEA-21) (Pub. L. 105-178, June 9, 1998) and generally will
make the regulations consistent with current statutory requirements.
EFFECTIVE DATE: March 16, 2007.
FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Larry D. Anderson,
Planning Oversight and Stewardship Team (HEPP-10), (202) 366-2374, Mr.
Robert Ritter, Planning Capacity Building Team (HEPP-20), (202) 493-
2139, or Ms. Diane Liff, Office of the Chief Counsel (HCC-10), (202)
366-6203. For the FTA: Mr. Charles Goodman, Office of Planning and
Environment, (202) 366-1944, Mr. Darin Allan, Office of Planning and
Environment, (202) 366-6694, or Mr. Christopher VanWyk, Office of Chief
Counsel, (202) 366-1733. Both agencies are located at 400 Seventh
Street SW., Washington, DC 20590. Office hours are from 7:45 a.m. to
4:15 p.m for FHWA, and 9 a.m. to 5:30 p.m. for FTA, Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
Interested parties may access all comments on the NPRM received by
the U.S. Department of Transportation (USDOT) online through the Docket
Management System (DMS) at http://dms.dot.gov. The DMS Web site is
available 24 hours each day, 365 days each year. Follow the
instructions online. Additional assistance is available at the help
section of the Web site.
An electronic copy of this final rule may be downloaded using the
Office of the Federal Register's Web page at: http://www.archives.gov and the Government Printing Office's Web page at: http://
http://www.gpoaccess.gov/index.html.
Background
The regulations found at 23 CFR 450 and 500 and 49 CFR 613 outline
the requirements for State Departments of Transportation (DOTs),
Metropolitan Planning Organizations (MPOs) and public transportation
operators to conduct a continuing, comprehensive and coordinated
transportation planning and programming process in metropolitan areas
and States. These regulations have not been comprehensively updated or
revised since October 28, 1993. Since that time, Congress has enacted
several laws that affect the requirements outlined in these regulations
(e.g. such as the TEA-21 and the SAFETEA-LU). Therefore, the agencies
needed to update these regulations to be consistent with current
statutory requirements.
Notice of Proposed Rulemaking:
On June 9, 2006, the agencies published, in the Federal Register, a
notice of proposed rulemaking (NPRM) proposing to revise the
regulations governing the development of statewide and metropolitan
transportation plans and programs and the regulations for Congestion
Management Systems (71 FR 33510). The comment period remained open
until September 7, 2006. During the comment period on the proposed
rule, the FTA and the FHWA held six public outreach workshops and a
national telecast, also available on the World Wide Web. Those meetings
provided an opportunity for FTA and FHWA to provide an overview of the
NPRM and offer clarification of selected provisions. Comments were not
solicited at those meetings, and attendees were encouraged to submit
all comments to the official docket. A summary of the issues raised at
the meetings and the general response of the FTA and the FHWA
presenters, along with copies of the materials presented at the
meeting, is included in the docket (item Number 27).
In addition, the FHWA and the FTA responded to requests for
presentations at several regularly scheduled meetings or conferences of
national and regional professional, industry or advocacy organizations
during the comment period of the NPRM.
Discussion of Comments
In response to the NPRM, we received over 150 documents
(representing more than 1,600 comments) submitted to the docket as
reflected in the summary below (and spreadsheet on file in the docket).
The following discussion summarizes our response. We received diverse
and even opposing comments. General comments concerning the rule are
addressed initially, followed by specific responses to individual
sections of the regulatory proposals.
We categorized the comments received by the type of organization
that submitted the comments. The following categories are used
throughout this discussion: State DOTs; MPOs, councils of government
(COGs) and regional planning agencies; national and regional
professional, industry or advocacy organization (which includes
organizations representing State DOTs, MPOs, COGs or other agencies
whose individual comments may be included in a different category),
local/regional transit agency; general public; city/county (other sub-
State government); State (other agency, Governor, Legislator); Federal
agency and other.
State DOTs submitted almost one-quarter of the documents, which
account for almost one-third of all comments. MPOs, COGs and regional
planning agencies submitted slightly more than one-third of the
documents, also accounting for approximately one-third of the comments.
National and regional professional, industry or advocacy organizations
submitted over one-quarter of the documents and approximately one-
quarter of the comments. Local/regional transit agencies submitted
approximately 5 percent of the documents. Other organizations or
individuals submitted the remainder. Most State DOTs and some other
commenters wrote in support of the comments submitted by the American
Association of State Highway and Transportation Officials (AASHTO).
Many MPOs and COGs and some other commenters wrote in support of the
comments submitted by the Association of Metropolitan Planning
Organizations (AMPO) and/or the National Association of Regional
Councils (NARC). Several public transportation operators and others
wrote in support of the comments submitted by the American Public
Transportation Association (APTA).
The FHWA and the FTA received comments on almost all sections of
the
[[Page 7225]]
rule. The largest number of individual comments we received were on
fiscal constraint issues. Other sections with more than five percent of
the overall comments included: Sec. 450.104 (Definitions), Sec.
450.216 (Development and content of the statewide transportation
improvement program (STIP)), Sec. 450.322 (Development and content of
the metropolitan transportation plan), and Sec. 450.324 (Development
and content of the transportation improvement program).
Several national and regional advocacy organizations, a few State
DOTs and MPOs, some transit agencies and others suggested changes that
go beyond what is required by statute. The FHWA and the FTA have
adhered closely to the statutory language in drafting the regulation.
Over time, and as necessary, the FHWA and the FTA will continue to
issue additional guidance and disseminate information on noteworthy
practices that may address these suggestions.
In response to several comments, specific regulatory reference to a
Regional Transit Security Strategy (RTSS), including its definition,
was removed due to the concern for possible disclosure of security-
sensitive information in the planning process. Further, an RTSS is not
required universally of all metropolitan areas and States. Regulatory
language in both the metropolitan and statewide transportation planning
sections was revised to make broad reference to the need for
coordination with ``appropriate'' transit security-related plans,
programs, and decision-making processes.
One national and regional professional, industry or advocacy
organization suggested the incorporation of the Real Time System
Management Information Program (required by Sec. 1201 of the SAFETEA-
LU) into the statewide transportation planning process. While the FHWA
and the FTA agree that current, good quality data can improve effective
transportation decisions and is key to effective operation and
management strategies, we recognize each State's need to determine
their appropriate statewide coordinated data collection program to
support their individual planning process. We encourage the States to
consider including real-time data, provided by the Real Time System
Management Information Program, but have not included a requirement in
this rule.
The FHWA and the FTA were asked to evaluate whether the leadership
posts on MPO boards were acting in an impartial manner. A few
organizations expressed concern that non-metropolitan or non-elected
officials who serve as board chairs may have conflicts of interest that
undermine local control of transportation funding. The FHWA and the FTA
will consider conducting such a study as part of their discretionary
research programs. Currently, we do not have enough information on this
subject for incorporation into this rule.
Several documents providing research, data, and analysis on various
issues related to transportation, planning and environment were
submitted to the docket. The FHWA and the FTA have reviewed these
documents and considered the information in developing this rule.
The FHWA and the FTA were asked to recognize regional planning
organizations/regional transportation planning organizations (RPOs/
RTPOs) throughout the rule as stakeholders and interested parties in
the transportation planning process in States where they are
established by law. Although the rule is silent on RPOs/RTPOs, Sec.
450.208(a)(6) highlights that statewide transportation planning needs
to coordinate with related planning activities being conducted outside
of metropolitan planning areas. The FHWA and the FTA recognize that the
RPO/RTPO planning process and activities should be input into the
statewide transportation planning process. Further, many of the RPOs/
RTPOs are recognized as forms of local government, and are addressed in
Sec. 420.210 (Interested parties, public involvement and
consultation).
A few commenters observed that many small MPOs have very little
funding from USDOT or non-USDOT sources, have very limited staffs, and
limited consultant or technical support resources of their own. The
FHWA and the FTA were urged to find ways to scale the regulatory
requirements to fit the size and scope of smaller MPOs. We noted this
comment and have tried to provide as much flexibility in the rule as
practicable. We have provided some streamlined requirements for the
non-transportation management area (TMA) MPOs, such as Simplified
Statement of Work and grouping of projects within the transportation
improvement program (TIP). The MPO is responsible for developing a
planning process that is appropriate for its communities, given the
resources and technical capability of the MPO.
Several State DOTs and a national and regional advocacy
organization objected to including guidance documents with the
regulations as Appendices A and B. These commenters noted that by
including these documents with the regulation as appendices, the
guidance documents would have the force and effect of law and, as a
result, would ``open up FHWA and FTA (and thus the States and MPOs) to
litigation challenges based on a selective reading of short passages in
these lengthy documents.'' Therefore, these commenters requested
removal of the appendices. Additionally, these commenters were
concerned that including these guidance documents with the regulation
would make it more difficult to change these documents in response to
evolving practices, as any change would require a rulemaking action.
The Office of the Federal Register, pursuant to the Federal
Register Act (44 U.S.C. Chapter 15) has established criteria for
publishing material in the Federal Register and the Code of Federal
Regulations. Under these criteria, agencies may use an appendix to
improve upon the quality or use of a regulation, but not to impose
requirements or restrictions. Additionally, agencies may not use an
appendix as a substitute for regulatory text.\1\ The information the
FHWA and the FTA proposed to include in appendices A and B is intended
to be non-binding guidance. Therefore, we believe that State DOTs and
MPOs would not be subject to increased litigation based on inclusion of
these appendices.
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\1\ Federal Register Document Drafting Handbook, October 1998
Revision. National Archives and Records Administration, Office of
the Federal Register. It is available at the following URL: http://www.archives.gov/federal-register/write/handbook/ddh.pdf
.
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We believe that Appendix A, Linking the Transportation Planning and
NEPA Processes, provides explanatory information that amplifies the
rule and does not add any additional requirements and would not be
subject to many changes. Therefore, we have decided to keep Appendix A,
but are adding a disclaimer to this effect in the introduction of
Appendix A highlighting its non-binding status. In addition, we have
made some minor changes to the text of Appendix A to ensure that it is
consistent with the environmental streamlining requirements of Sec.
6002 of the SAFETEA-LU.
As for Appendix B, Fiscal Constraint of Transportation Plans and
Programs, the FHWA and the FTA agree with these commenters that
modifications to this document may be more frequently required to
respond to evolving practices. Therefore, the FHWA and the FTA have
decided to remove Appendix
[[Page 7226]]
B from the rule. However, there are three elements within that appendix
that the agencies believe should be a part of the regulatory text for
clarity and completeness. These elements are: (1) Treatment of highway
and transit operations and maintenance costs and revenues; (2) use of
``year of expenditure dollars'' in developing cost and revenue
estimates; and (3) use of ``cost ranges/cost bands'' in the outer years
of the metropolitan transportation plan. Please see the responses to
the comments on Appendix B for additional background information and
explanation. Consequently, we have included language in Sec. 450.216
(Development and content of the statewide transportation improvement
program (STIP)), Sec. 450.322 (Development and content of the
metropolitan transportation plan), and Sec. 450.324 (Development and
content of the transportation improvement program (TIP)) to address
these issues within the regulation. The material contained in the
proposed Appendix B will be made available as a guidance document on
the agencies' Web sites.
Section-by-Section Discussion
The discussion in this section compares the NPRM with the final
rule and discusses comments submitted on each section along with an
explanation of any changes we made from the NPRM to the final rule. All
references to revisions or changes are to changes in language that we
originally proposed in the NPRM.
23 CFR Part 450
Subpart A--Transportation Planning and Programming Definitions
Section 450.100 Purpose
No comments were received on this section and no changes were made.
Section 450.102 Applicability
No comments were received on this section and no changes were made.
Section 450.104 Definitions
There were more than 45 documents with over 225 comments submitted
on this section, with half of the documents coming from MPOs and almost
one-fourth each from State DOTs and national and regional advocacy
groups. Transit agencies, city/county agencies and the general public
also commented on this section. Some of those that commented on this
section recommended specific changes to examples or lists included in
various definitions. It is important to note that the recommended lists
in these definitions are intended to be advisory and not exhaustive;
therefore, we did not make changes to the lists of examples.
Several definitions were revised based on comments received. These
changes are described below.
Many State DOTs and MPOs as well as several national and regional
advocacy organizations were concerned about the definitions of
``administrative modification'' and ``amendment.'' Commenters requested
greater distinction between the two terms.
Several of those that commented on this section requested that the
words ``minor revision'' be included in the definition of
``administrative modification.'' This change has been made. The
examples in this definition have also been clarified, including ``minor
changes to project/project phase initiation dates.'' It is important to
note that while an ``administrative modification'' can change the
initiation date, it cannot affect the completion date of the project as
modeled in the regional emissions analysis in nonattainment or
maintenance areas. A change in the project/project phase completion
date in a nonattainment or maintenance area would be considered an
``amendment.'' Finally, based on comments, the term ``not significant''
was removed.
Commenters suggested that the term ``amendment'' include the words
``major change'' and use ``major'' in the examples. These changes have
been made. State DOTs and MPOs should work with the FHWA and the FTA to
identify thresholds for a ``major'' change in project cost. Examples of
thresholds could include, but are not limited to, project cost increase
that exceeds 20 percent of the total project cost; or project cost
increase that exceeds a certain dollar amount, for example, the
increase in costs exceeds the programmed amount by $50,000 or $100,000.
Further, some State DOTs and advocacy organizations wrote that
changes in illustrative projects should not require an amendment. We
agree. A sentence has been added to the definition of ``amendment'' to
clarify this point. Also, most State DOTs that commented on this
section noted that ``amendment'' should apply differently to long-range
statewide transportation plans, since they are not subject to fiscal
constraint. A sentence was added to the definition to clarify the long-
range statewide transportation plan context.
After consultation with EPA, the definition of ``attainment area''
was revised to be consistent with the definition in the glossary of the
Environmental Protection Agency's (EPA) Plain English Guide to the
Clean Air Act.\2\ We also included in this definition a clarification
that a ``maintenance area'' is not considered an attainment area for
transportation planning purposes.
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\2\ This document, ``Plain English Guide to the Clean Air Act''
is available via the Internet at the following URL: http://www.epa.gov/air/oaqps/peg_caa/pegcaain.html
.
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A few commenters expressed confusion about the definitions of
``Available funds'' and ``Committed funds'' as they relate to air
quality conformity. We have simplified these definitions to remove the
phrase ``for projects or project phases in the first two years of a TIP
and/or STIP in air quality nonattainment and maintenance areas.'' By
deleting this phrase, however, we have not removed the requirement that
projects in the first two years of a STIP and/or TIP in air quality
nonattainment and maintenance areas be available or committed. This is
still part of the definition under fiscal constraint. The requirement
that these terms only apply to the first two years is already embedded
in the regulation and does not need to be repeated in the definition of
the terms ``Available'' and ``Committed.''
A national and regional advocacy organization and a few transit
agencies suggested that ``Full funding grant agreement'' and ``Project
construction grant agreement'' be added to the examples of ``Committed
funds.'' This change has been made. We also received a comment that the
requirement for private funds to be in writing as part of ``Committed
funds'' would limit private participation in transportation projects.
The FHWA and the FTA find that a written commitment is necessary to
ensure that the private funds ultimately are provided and is integral
to the concept of ``committed funds.'' This change was not made.
After consultation with the EPA, the definition of ``conformity''
was revised based on language from the EPA's conformity Web page \3\
and in the EPA's conformity rule (40 CFR 93.100).\4\
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\3\ EPA's conformity web page can be found at the following URL:
http://www.epa.gov/otaq/stateresources/transconf/index.htm.
\4\ This document is available via the Internet at the following
URL: http://www.fhwa.dot.gov/environment/conformity/rule.htm.
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Many MPOs wrote regarding the definition of ``congestion management
process'' that the definition should reference Transportation System
Management and Operations (TSMO), rather than ``management and
operation'' to reinforce the principles of this emerging practice. The
FHWA and the FTA do not believe this change would enhance the
definition and note
[[Page 7227]]
that the term ``operations and management'' is taken directly from
statute. No change was made.
Many national and regional advocacy organizations and MPOs and COGs
that commented on this section were concerned about the different uses
of the term ``consultation'' in the definitions section and in Sections
450.214 (Development and content of the long-range statewide
transportation plan) and 450.322 (Development and content of the
metropolitan transportation plan). The definition of consultation used
in Sec. 450.214 (Development and content of the long-range statewide
transportation plan) and Sec. 450.322 (Development and content of the
metropolitan transportation plan) is consistent with the definition in
the statute found at 23 U.S.C. 134(i)(4), 23 U.S.C. 135(f)(2), 49
U.S.C. 5303(i)(4), and 49 U.S.C. 5304(f)(2) and is applicable for those
sections. This section presents a broad definition of ``consultation''
for use throughout the rest of the rule. We have added a note to the
definition of ``consultation'' to recognize that this definition is not
the one used in Sec. Sec. 450.214 and 450.322.
Many national and regional advocacy organizations and several MPOs
and COGs that commented on this section also asked that
``periodically'' be removed from the definition of ``consultation'' to
better reflect that consideration of the other party's view and
providing them with information should occur on a regular and ongoing
basis, not a periodic basis. This definition is taken from the existing
rule developed in an extensive rulemaking process in January 2003 on
the non-metropolitan local official consultation process and agreed to
by a number of stakeholders at that time (68 FR 7419). Further, the
FHWA and the FTA consider ``periodically'' to mean frequently, on
regular intervals. This change was not made.
Many transit agencies and State DOTs as well as several MPOs, COGs
and others requested changes to the definition of ``coordinated public
transit-human services transportation plan'' to reduce the degree of
procedural detail. Accordingly, the definition was changed to be
consistent with that used in the proposed FTA Circulars for
implementing the 49 U.S.C. 5310, 5316, and 5317 programs (New Freedom
Program Guidance, The Job Access And Reverse Commute (JARC) Program,
Elderly Individuals And Individuals With Disabilities Program)
published in the September 2006.\5\ In addition, commenters proposed
the addition of guidelines for preparing the coordinated public
transit-human services transportation plan, including geographic scope,
approval authority, and determination of lead agency. To ensure maximum
flexibility for localities to tailor the coordinated public transit-
human services transportation plan preparation process to their areas,
we will disseminate non-regulatory guidance on optional approaches and
examples of effective practice, along with training and technical
assistance.
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\5\ These documents, ``Elderly Individuals and Individuals With
Disabilities, Job Access and Reverse Commute,'' and ``New Freedom
Programs: Coordinated Planning Guidance for FY 2007 and Proposed
Circulars'' were published September 6, 2006, and are available via
the internet at the following URLs: http://www.fta.dot.gov/publications/ publications--5607.html or http://edocket.access.gpo.gov/2006/pdf/E6-14733.pdf.
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Several MPOs and COGs expressed concern about the definition of
``coordination'' because there is no resolution mechanism if agencies
cannot come to agreement. The FHWA and the FTA support the development
of a dispute resolution process for ``coordination'' and
``consultation.'' However, such a process is not required by statute
and is, therefore, not included in this rule. This does not preclude
State DOTs and/or MPOs from developing their own dispute resolution
processes as part of the transportation planning process.
After further review, the FHWA and the FTA have removed the term
``exclusive'' from the list of examples in the definition of ``design
concept.'' We do not want to imply that only ``exclusive busways'' can
be identified as a type of project.
A proposal was offered to define the term ``designated recipient''
to clarify this term in the rule. This definition has been added to
this section
Many State DOTs and some national and regional advocacy
organizations that commented on the definition of ``environmental
mitigation activities'' suggested deleting ``rectify or reduce'' from
the definition because these terms are redundant. The FHWA and the FTA
believe that the terms ``rectify'' and ``reduce'' are related more to
the discussion of specific projects, not the broad planning context. We
agree with this comment and have deleted these words. In addition, MPOs
and COGs and a few State DOTs and others suggested simplifying the
definition by removing statements of regulatory action. We agree and
have deleted the last sentence of the definition which reiterated
requirements in the body of the rule. Finally, we have modified the
definition to be clear that strategies may not necessarily address
potential project-level impacts.
Several major concerns were expressed regarding the definition for
``Financially constrained or Fiscal constraint.'' Most commenters
requested that three portions of the definition be deleted: (1) The
phrase ``by source,'' (2) the phrase ``each program year,'' and (3) the
phrase ``while the existing system is adequately maintained and
operated.'' The requirement for demonstrating fiscal constraint by year
and by source is consistent with, and carries forth language in, the
planning rule adopted in October 1993 (58 FR 5804). The FHWA and the
FTA consider demonstrating funding by year and by source necessary for
decision-makers and the public to have confidence in the STIP and TIP
as financially constrained. However, in response to concerns raised, we
have changed the definition related to ``by source'' to be consistent
with the October 1993 planning rule. This change clarifies that fiscal
constraint documentation should include committed, available, or
reasonably available revenue sources.
Additionally, as a result of the extensive comments provided on
Appendix B (Fiscal constraint of transportation plans and programs) we
have changed the phrase ``while the existing system is adequately
maintained and operated'' to ``with reasonable assurance that the
federally supported transportation system is being adequately operated
and maintained.'' We believe this change provides flexibility and
addresses the commenters' concerns that the FHWA and the FTA were
overreaching beyond the Federally supported transportation system.
Please see the responses to the comments on Appendix B for additional
background information and explanation. Finally, we have also clarified
the definition to explicitly refer to ``the metropolitan transportation
plan, TIP and STIP.''
Many State DOTs, a few national and regional advocacy
organizations, and some MPOs and COGs wrote that the definition of
``financial plans'' should be changed to note that financial plans are
not required for STIPs and are not required for illustrative projects.
The FHWA and the FTA agree with both comments. We have added a note to
the definition that financial plans are not required for STIPs. We also
agree that financial plans are not required for illustrative projects.
Sec. 450.216(m) states that ``The financial plan may include, for
illustrative purposes, additional projects that would be included in
the
[[Page 7228]]
adopted STIP if reasonable additional resources beyond those identified
in the financial plan were available.'' We do not believe it is
necessary to add a note to the definition regarding illustrative
projects.
Several State DOTs also wrote requesting that the phrase ``as well
as operating and maintaining the entire transportation system'' be
removed from the definition of ``financial plans.'' This change has
been made
Proposals were offered to define the terms ``full funding grant
agreement'' to clarify this term in the rule. This definition has been
added to this section.
In response to comments regarding financial plans and fiscal
constraint requirements, we have modified the definition of
``illustrative project'' to clarify that ``illustrative projects''
refer to additional transportation projects that would be included in
financially constrained transportation plans and programs if
``additional resources were to become available.'' This definition also
notes that illustrative projects may (but are not required to) be
included in the financial plan.
Representatives of a State DOT and a national and regional advocacy
organization requested the inclusion of detailed methodologies for
engaging private service providers in the transportation planning
process, as well as standards for ascertaining compliance with private
enterprise provisions and a complaint process. To ensure maximum
flexibility for localities to tailor programs to the needs of private
service providers in their areas, we will rely upon non-regulatory
guidance, training, and technical assistance for disseminating
information on optional approaches to private sector participation.
The FHWA and the FTA noted that the proposed rule used an incorrect
Clean Air Act reference in the definition of ``Maintenance area.'' This
reference has been corrected.
After further review, the FHWA and the FTA have made slight changes
to the definition of ``management systems'' to be more permissive. The
phrase ``and safety'' was changed to ``or safety'' and ``includes'' was
changed to ``can include.''
Some State DOTs and national and regional advocacy groups
recommended removing the phrase ``in the preceding program year'' from
the definition of ``obligated projects.'' The FHWA and the FTA find
that the phrase ``in the preceding program year'' is important in the
context of the annual listing of obligated projects (See Sec. 450.332
(Annual listing of obligated projects)) to clarify what projects should
be included in the list, since TIPs cover multiple years. Therefore,
this change was not made. However, we did change the definition to
emphasize that funds need to be ``authorized by the FHWA or awarded as
a grant by the FTA.''
Several State DOTs, MPOs and COGs and some national and regional
advocacy organizations and transit agencies expressed confusion over
the terms ``management and operations'' and ``operations and
management'' as related to the term they propose be included in the
rule, ``Transportation System Management and Operations (TSMO).'' The
SAFETEA-LU defined ``Operational and Management Strategies'' and its
relationship to metropolitan long-range transportation plans.
(Operational and management strategies means actions and strategies
aimed at improving the performance of existing and planned
transportation facilities to relieve vehicular congestion and
maximizing the safety and mobility of people and goods (23 U.S.C.
134(i)(2)(D) and 49 U.S.C. 5303(i)(2)(D)). This definition is included
in the rule with one change. We have removed the modifier ``vehicular''
to emphasize that operational and management strategies should be
considered for all modes. The FHWA and the FTA find this term, for
practical purposes, to be the same as the term Transportation System
Management and Operations currently commonly in use by agencies
involved with transportation. We have chosen to continue using the term
``operational and management strategies'' as that is the term used in
SAFETEA-LU.
Several State DOTs, MPOs and COGs and some national and regional
advocacy organizations and transit agencies also asked for
clarification of the term ``operations and maintenance.'' The terms
``operations'' and ``maintenance'' are used in these regulations as
defined in 23 U.S.C. 101. Therefore, we have not repeated the
definitions here.
A proposal was offered to define the term ``project construction
grant agreement'' to clarify this term in the rule. This definition has
been added to this section.
After further review, we have determined it is necessary to clarify
the definition of ``project selection'' to emphasize these are
procedures used by MPOs, States, and public transportation operators.
Based on comments, we have changed the term ``business'' in the
definition of ``provider of freight transportation services'' to
``entity.'' Freight transportation providers may include other concerns
besides businesses.
A proposal was offered to define the term ``public transportation
operator'' to clarify this term in the rule. This definition has been
added to this section.
Several State DOTs and MPOs and COGs as well as some transit
agencies and national and regional advocacy organizations noted that
the definition of ``regionally significant project'' should not include
a reference to ``all capacity expanding projects.'' After consultation
with the EPA, the FHWA and the FTA have changed this definition to be
consistent with the EPA's transportation conformity rule (40 CFR
93.101).
Several of the State DOTs, many transit agencies, and a few of the
national advocacy organizations and MPOs and COGs commented that the
word ``overarching'' in the definition of ``Regional Transit Security
Strategies'' was ambiguous. Other MPOs and COGs, transit agencies and
national and regional advocacy organizations wrote that the definition
was overly specific without defining who would be held responsible to
develop the strategy and also expressed concern about possible
disclosure of security-sensitive information in the planning process.
Subsequent to publication of the NPRM, the FHWA and the FTA determined
that the Department of Homeland Security does not require Regional
Transit Security Strategies in all metropolitan areas, at all times. As
a result, this term has been removed from this section and references
to the term in Sec. 450.208(h), Sec. 450.214(e), and Sec. 450.306(g)
also have been removed from the rule. Alternatively, this language has
been replaced, in these sections, with a reference to ``other transit
safety and security planning and review processes, plans, and programs,
as appropriate.''
The docket included several comments regarding the definitions for
``revision,'' ``amendment,'' ``administrative modification,'' and
``update.'' The definition of ``revision'' has been revised to use the
terms ``major'' and ``minor'' rather than ``significant'' and ``non-
significant,'' consistent with the comments received and changes to the
related terms.
A State DOT commented on the definition of ``State implementation
plan (SIP).'' After consultation with EPA, this definition was revised
to cite applicable sections of the Clear Air Act and to be consistent
with the definition in the Clean Air Act and EPA's conformity rule (40
CFR 93.101) for ``applicable implementation plan.''
The docket included a comment requesting clarification of the term
``staged'' in the definition for
[[Page 7229]]
``Statewide transportation improvement program (STIP).'' We have
clarified this definition to describe the STIP as a ``prioritized
listing/program'' and to reiterate that it must cover a period of four
years. Similar changes were made to the definition of ``Transportation
improvement program (TIP).''
Some State DOTs and a national and regional advocacy organization
suggested that the reference to ``in order to meet the regular schedule
as prescribed by Federal statute'' be removed from the definition of
``Update.'' A few MPOs and COGs questioned what would constitute an
``update'' and what was meant by ``complete change.'' We agree with
these concerns, have removed these phrases and revised and simplified
this definition to ``Update means making current a long-range statewide
transportation plan, metropolitan transportation plan, TIP, or STIP
through a comprehensive review.'' Based on comments, we note in this
definition that an ``update'' requires a 20-year horizon year for
metropolitan transportation plans and long-range statewide
transportation plans and a four-year program period for TIPs and STIPs.
Several MPOs and other organizations asked for clarification of the
term ``visualization.'' The FHWA and the FTA have changed ``employed''
to ``used'' in the ``Visualization techniques'' definition. Further, we
agree that there is a need for more technical information on the use of
visualization techniques and we intend to provide technical reports and
guidance subsequent to the publication of this rule.
Proposals were offered to define the terms ``advanced
construction,'' ``encouraged to,'' ``intercity bus,'' ``interested
parties,'' ``MPO staff,'' ``public transportation provider,''
``reasonable access,'' ``shall,'' and ``should.'' The FHWA and the FTA
believe these terms are generally well understood and do not require
additional detail.
Subpart B--Statewide Transportation Planning and Programming
Section 450.200 Purpose
No comments were received on this section and no changes were made.
Section 450.202 Applicability
No comments were received on this section and no changes were made.
Section 450.204 Definitions
No comments were received on this section and no changes were made.
Section 450.206 Scope of the Statewide Transportation Planning Process
There were more than 20 separate comments on this section with the
most coming from State DOTs, followed by national and regional advocacy
organizations. A small number of comments came from MPOs and COGs and
providers of public transportation.
In comments on this section and Sec. 450.306 (Scope of the
metropolitan transportation planning process), many MPOs and COGs, some
national and regional advocacy organizations and a few State DOTs noted
that paragraph (a)(3) embellished the statutory language for the
``security'' planning factor. Organizations that commented on this
issue were concerned that the expanded language would require State
DOTs and MPOs to go far beyond their traditional responsibilities in
planning and developing transportation projects, which was not intended
by the SAFETEA-LU. The FHWA and the FTA agree and have revised the
language in paragraph (a)(3) to match the language in statute.
Most of the State DOTs and several of the national and regional
advocacy organizations that commented on this section said that the
text in paragraph (b) should be revised similar to the text in the
October 1993 planning rule acknowledging that the degree of
consideration will reflect the scale and complexity of issues within
the State. The FHWA and the FTA agree with these comments and have
revised the rule accordingly. We have adopted the October 1993 planning
rule language with one change. The phrase ``transportation problems''
was changed to ``transportation systems development.''
After further review, we have clarified paragraph (c) to be more
specific and to mirror the language in 23 U.S.C. 135(d)(2) and 49
U.S.C. 5304(d)(2). The paragraph now specifically refers to ``any court
under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5
U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7'' and to the ``statewide
transportation'' planning process finding.
A small number of national and regional advocacy organizations and
State DOTs that commented on this section said they would like the FHWA
and the FTA to develop and/or encourage the use of performance measures
when State DOTs consider the planning factors listed in this section.
While the FHWA and the FTA encourage the use of performance measures,
the flexibility afforded the State DOTs and MPOs in implementing the
transportation planning process gives them wide latitude to develop a
process that is appropriate for their jurisdiction. We believe this
issue is best addressed in guidance and technical assistance.
Section 450.208 Coordination of Planning Process Activities
There were almost 100 separate comments on this section mostly from
State DOTs, followed by national and regional advocacy organizations. A
number of comments came from MPOs and COGs with a small number from
public transportation providers or Federal agencies.
In some of the comments from national and regional advocacy
organizations, MPOs and COGs, and others, the FHWA and the FTA were
asked to expand the scope of the transportation planning process to
include a variety of other issues and concerns. In response to these
comments, we have added ``at a minimum'' to paragraph (a) to emphasize
the flexibility for State DOTs to include more in their statewide
transportation planning process than is listed in this section.
Several MPOs and COGs that had comments on this section suggested
clarification of paragraph (a)(1) regarding the State's use of
information and studies provided by MPOs. The text from this paragraph
in part carries forward but simplifies text from 23 CFR 450.210 of the
October 1993 planning rule. The FHWA and the FTA find that the language
provides reasonable flexibility to respond to different circumstances
while reinforcing the importance of information and technical studies
as a foundation in transportation planning. No changes were made to
this paragraph.
Many of the State DOTs that commented on this section indicated
that coordination referenced in paragraph (a)(2) should not extend to
private businesses. At the same time, many of the MPOs, COGs and
national and regional advocacy organizations, as well as a public
transportation provider that commented on this section wrote in support
of the section and some requested that ``consult'' replace
``coordinate.''
The requirements in this paragraph come from the statutory
language; therefore, no change was made. The FHWA and the FTA want to
provide State DOTs flexibility to determine how to coordinate with
statewide trade and economic planning activities and the level or
coordination that needs to take place within the planning process. The
[[Page 7230]]
FHWA has made available information related to Public-Private
Partnership opportunities, including analyses of contractual agreements
formed between public agencies and private sector entities, on its Web
site at: http://www.fhwa.dot.gov/ppp/. If necessary, we will provide
guidance subsequent to the rule if more clarity is needed regarding
this coordination.
Many of the State DOTs that commented on this section said that
coordination in paragraph (a)(3) exceeds the requirement in the
statute. At the same time, several of the national and regional
advocacy organizations and a Federal agency commented in support of the
language in the proposed rule. The FHWA and the FTA find that the
proposed language does exceed the intent of the statute, and have
revised the rule to more closely reflect the statutory language, by
changing ``coordinate planning'' to ``consider the concerns of.''
Many of the State DOTs that commented on this section suggested
placing the word ``affected'' before ``local elected officials'' in
paragraph (a)(4). At the same time, some of the MPOs and COGs and
national and regional advocacy organizations that provided comments on
this section suggested changing ``consider'' to ``consult,'' which is
used in Sec. 450.210 (Interested parties, public involvement, and
consultation). The text follows the statutory language. The FHWA and
the FTA considered both groups of comments and determined that using
the statutory language for this paragraph without amplification best
meets the intent of the statute.
Many of the State DOTs that commented on this section said that the
text in paragraph (a)(6) should follow the statutory language (23
U.S.C. 135(e)(1)(3) and 49 U.S.C. 5304(e)(1)(3)). The FHWA and the FTA
agree and revised the rule accordingly.
Several of the State DOTs that commented on this section objected
to the phrase ``establish a forum'' in paragraph (a)(7), while a
smaller number supported the text. The FHWA and the FTA want to
emphasize the importance of information and technical studies as a
foundation in transportation planning. While there is no statutory
basis to require ``establish[ing] a forum,'' this paragraph has been
revised to more closely reflect the intent from Sec. 450.210(a)(1) and
(a)(3) of the October 1993 rule regarding coordination of data
collection and analyses with MPOs and public transportation operators.
After further review, the FHWA and the FTA have modified the last
sentence of paragraph (c) to be consistent with 23 U.S.C. 135(c)(2) and
49 U.S.C. 5304(c)(2) regarding multistate agreements and compacts.
Many of the State DOTs and a few of the national and regional
advocacy organizations that provided comments on this section said the
text in paragraphs (e) and (f) went beyond statutory requirements. The
FHWA and the FTA agree with these comments and revised the rule
accordingly by changing ``are encouraged to'' to ``may'' in paragraph
(e) and adding ``to the maximum extent practicable'' to paragraph (f).
Most transit agencies, several State DOTs, MPOs, COGs, and others
that commented on this section expressed concern or confusion about the
requirement in paragraph (g) for the statewide transportation planning
process to be consistent with the development of coordinated public
transit-human services transportation plans. Several commenters
requested the addition of procedural detail on the coordinated public
transit-human services transportation plan, including geographic scope,
approval authority, and determination of lead agency. Some commenters
recommended removing the requirement entirely. We also received a
comment questioning whether metropolitan and statewide transportation
planning processes should be consistent with the coordinated public
transit-human services transportation plan, or vice versa.
To ensure maximum flexibility for localities to undertake a
coordinated planning process that may be uniquely tailored to their
area, we have not included additional detailed requirements in the
rule. The FHWA and the FTA will disseminate non-regulatory guidance,
complemented by a wide array of effective practice case studies and
supported by training and technical assistance, on the coordinated
public transit-human services transportation plan. The definition of
the coordinated public transit-human services transportation plan was
changed to be consistent with that used in the proposed FTA Circulars
for implementing the 49 U.S.C. 5310, 5316, and 5317 programs (New
Freedom Program Guidance And Application Instructions, The Job Access
And Reverse Commute (JARC) Program Guidance And Application
Instructions, Elderly Individuals And Individuals With Disabilities
Program Guidance And Application Instructions) respectively, published
on September 6, 2006.\6\ Additionally, provisions for promoting
consistency between the planning processes were revised to clarify that
the coordinated public transit-human services transportation plan
should be prepared in full coordination and be consistent with the
metropolitan transportation planning process. The revisions also are
intended to add flexibility in how the coordinated transportation plans
would be prepared.
---------------------------------------------------------------------------
\6\ These documents, ``Elderly Individuals and Individuals With
Disabilities, Job Access and Reverse Commute,'' and ``New Freedom
Programs: Coordinated Planning Guidance for FY 2007 and Proposed
Circulars'' were published September 6, 2006, and are available via
the internet at the following URL: http://www.fta.dot.gov/
publications/publications--5607.html.
---------------------------------------------------------------------------
Many of the State DOTs, several transit agencies, and a few of the
national and regional advocacy organizations that provided comments on
this section, said the text in paragraph (h) went beyond statutory
requirements. Several transit agencies and a few State DOTs and others
suggested deleting paragraph (h) due to the confidential nature of
Regional Transit Security Strategies (RTSS). An RTSS is not required of
all metropolitan areas and States across the U.S. Reference to the RTSS
was removed from paragraph (h). Instead, we have added a reference to
``other transit safety and security planning and review processes,
plans, and programs, as appropriate.''
Section 450.210 Interested Parties, Public Involvement, and
Consultation
The docket included 33 documents that contained about 60 comments
on this section, with many from State DOTs, national and regional
advocacy organizations and MPOs and COGs.
Many of the State DOTs and some of the national and regional
advocacy organizations said that State DOTs should not be required to
document the public involvement process. The FHWA and the FTA find that
an essential element of an effective public involvement process is the
opportunity for the public to understand when, how, and where public
comment can occur. It is important to open, effective public
involvement that the process be documented and available for public
review. Therefore, we have retained the requirement for a documented
public involvement process.
Some of the MPOs and some of the national and regional advocacy
organizations said they would like to expand the list of interested
parties in paragraph (a)(1)(i). Representatives of private bus
operators requested specific mention in the regulation.
[[Page 7231]]
The list of interested parties in the regulation is consistent with
23 U.S.C. 135(f)(3)(A) and 49 U.S.C. 5304(f)(3)(A), as amended by the
SAFETEA-LU, and is sufficiently broad to encompass and have relevance
to all of the suggested additional parties. The list illustrates groups
that typically have an interest in statewide transportation planning,
but does not preclude States from providing information about
transportation planning to other types of individuals or organizations.
The FHWA and the FTA note that 49 U.S.C. 5307(c) requires grant
recipients to make available to the public information on the proposed
program of projects and associated funding.
Specifically in regard to MPOs, States shall coordinate with MPOs
under Sec. 450.208 (Coordination of planning process activities).
Therefore, a reference to MPOs here would be redundant and potentially
confusing since this section does not require coordination with
interested parties. No change was made to add MPOs to this paragraph.
Many of the State DOTs and some of the national and regional
advocacy organizations also said that State DOTs should not be required
to document the non-metropolitan local official consultation process.
The rule does not change the regulations published in the Federal
Register on January 23 (68 FR 3176) and February 14, 2003 (68 FR 7418)
regarding consultation with non-metropolitan local officials. Those
regulations were developed based on significant review and comment by
State DOTs and non-metropolitan local officials and their
representatives. At that time most State DOTs and national and regional
advocacy organizations supported the regulations. Therefore, the only
change we have made to paragraph (b) is to change ``revisions'' to
``changes,'' since ``revision'' is now specifically defined in the rule
and, by that definition, is not an appropriate term for this paragraph.
Some of the State DOTs and some national and regional advocacy
organizations said that the text encouraging State DOTs to document
their process for consulting with Indian Tribal Governments should be
eliminated. The commenters believe that documenting this consultation
process goes beyond requirements in statute. We disagree. The FHWA and
the FTA support efforts to consult with Indian Tribal governments and
find that documentation of consultation processes are essential to a
party's ability to understand when, how, and where the party can be
involved. Upon further consideration, to strengthen the involvement of
Indian Tribal governments in the statewide transportation planning
process, we have changed paragraph (c) from ``States are encouraged
to'' to ``States shall, to the extent practicable.''
Section 450.212 Transportation Planning Studies and Project Development
Section 1308 of the TEA-21 required the Secretary to eliminate the
major investment study (MIS) set forth in Sec. 450.318 of title 23,
Code of Federal Regulations, as a separate requirement, and promulgate
regulations to integrate such requirement, as appropriate, as part of
the analysis required to be undertaken pursuant to the planning
provisions of title 23 U.S.C. and title 49 U.S.C. Chapter 53 and the
National Environmental Policy Act of 1969 (NEPA) for Federal-aid
highway and transit projects. The purpose of this section and Sec.
450.318 (Transportation planning studies and project development) is to
implement this requirement of Section 1308 of the TEA-21 and eliminate
the MIS as a stand-alone requirement. A phrase has been added to
paragraph (a) to clarify the purpose of this section.
The docket included more than 20 documents that contained more than
50 comments on this section with about two-thirds from State DOTs and
the rest from MPOs or COGs, and national and regional advocacy
organizations. The comments on this section were similar to, and often
referenced, the comments on Sec. 450.318 (Transportation planning
studies and project development).
Most of the comments received supported the concept of linking
planning and NEPA but opposed including Appendix A in the rule. The
purpose of an Appendix to a regulation is to improve the quality or use
of a rule, without imposing new requirements or restrictions.
Appendices provide supplemental, background or explanatory information
that illustrates or amplifies a rule. Because Appendix A provides
amplifying information about how State DOTs, MPOs and public
transportation operators can choose to conduct transportation planning-
level choices and analyses so they may be adopted or incorporated into
the process required by NEPA, but does not impose new requirements, the
FHWA and the FTA find that Appendix A is useful information to be
included in support of this and other sections of the rule. A phrase
has been added to paragraph (c) to clarify this point. Additionally, we
have added disclaimer language at the introduction of Appendix A.
The FHWA and the FTA recognize commenters' concerns about Appendix
A, including the recommendation that this information be kept as
guidance rather than be made a part of the rule. First, information in
an Appendix to a regulation does not carry regulatory authority in
itself, but rather serves as guidance to further explain the
regulation. Secondly, as stated above, Section 1308 of TEA-21 required
the Secretary to eliminate the MIS as a separate requirement, and
promulgate regulations to integrate such requirement, as appropriate,
as part of the transportation planning process. Appendix A fulfills
that Congressional direction by providing explanatory information
regarding how the MIS requirement can be integrated into the
transportation planning process. Inclusion of this explanatory
information as an Appendix to the regulation will make the information
more readily available to users of the regulation, and will provide
notice to all interested persons of the agencies' official guidance on
MIS integration with the planning process. Attachment of Appendix A to
this rule will provide convenient reference for State DOTs, MPOs and
public transportation operator(s) who choose to incorporate planning
results and decisions in the NEPA process. It will also make the
information readily available to the public. Additionally, the FHWA and
the FTA will work with Federal environmental, regulatory, and resource
agencies to incorporate the principles of Appendix A in their day-to-
day NEPA policies and procedures related to their involvement in
highway and transit projects. For the reasons stated above, after
careful consideration of all comments, the FHWA and the FTA have
decided to attach Appendix A to the final rule as proposed in the NPRM.
Most State DOTs and several MPOs and COGs, and national and
regional advocacy organizations that commented on this section were
concerned that the language in paragraph (a) is too restrictive. The
FHWA and the FTA agree that planning studies need not ``meet the
requirements of NEPA'' to be incorporated into NEPA documents. Instead,
we have changed the language in paragraph (a) to ``consistent with''
NEPA. In addition, we have added the phrase ``multimodal, systems-
level'' before ``corridor or subarea'' to emphasize the ``planning''
venue for environmental consideration.
Commenters on this section also requested that the rule clarify
that the State DOT has the responsibility for conducting corridor or
subarea studies in the statewide transportation planning
[[Page 7232]]
process. The FHWA and the FTA recognize that the State DOT is
responsible for the statewide transportation planning process. However,
we do not want to preclude MPOs or public transportation operators, in
consultation or jointly with the State DOT, from conducting corridor or
subarea studies. Therefore, we have changed paragraph (a) to add the
sentence ``To the extent practicable, development of these
transportation planning studies shall involve consultation with, or
joint efforts among, the State(s), MPO(s), and/or public transportation
operator(s).''
Some State DOTs suggested incorporating planning decisions rather
than documents into the NEPA process. The FHWA and the FTA find that
decisions made as part of the planning studies may be used as part of
the overall project development process and have changed paragraph (a)
to include the word ``decisions'' as well as ``results.'' It is
important to note, however, that a decision made during the
transportation planning process should be presented in a documented
study or other source materials to be included in the project
development process. Documented studies or other source materials may
be incorporated directly or by reference into NEPA documents, as noted
in Sec. 450.212(b). We have added ``or other source material'' to
paragraph (b) to recognize source materials other than planning studies
may be used as part of the overall project development process.
It is important to note that this section does not require NEPA-
level evaluation in the transportation planning process. Planning
studies need to be of sufficient disclosure and embrace the principles
of NEPA so as to provide a strong foundation for the inclusion of
planning decisions in the NEPA process. The FHWA and the FTA also
reiterate the voluntary nature of this section and the amplifying
information in Appendix A. States, transit operators and/or MPOs may
choose to undertake studies which may be used in the NEPA process, but
are not required to do so.
Several State DOTs and national and regional advocacy organizations
were concerned about the identification and discussion of environmental
mitigation. They did not believe that detail on environmental
mitigation activities was appropriate in the transportation planning
process. The FHWA and the FTA agree. Paragraph (a)(5) calls for
``preliminary identification of environmental impacts and environmental
mitigation.'' The FHWA and the FTA believe that the term
``preliminary'' adequately indicates that State DOTs are not expected
to provide the same level of detail on impacts and mitigation as would
be expected during the NEPA process.
Based on comments on Appendix A, we added the phrase ``directly
or'' in paragraph (b), to indicate the use of publicly available
planning documents for subsequent NEPA documents.
Also based on comments on Appendix A, we added the phrase
``systems-level'' in paragraph (b)(2), to emphasize that these corridor
or subarea studies are conducted during the planning process at a
broader scale than project specific studies under NEPA.
Several State DOTs and many others who submitted comments on this
section noted that the word ``continual'' in paragraph (b)(2)(iii)
provides the public with more opportunity to comment than is necessary.
We agree and have replaced ``continual'' with ``reasonable'' in this
paragraph, consistent with the terminology in Sec. 450.316(a)
(Interested parties, participation and consultation). Also in paragraph
(b)(2)(iii) a number of commenters noted that the paragraph references
the metropolitan transportation planning process when it should
reference the statewide transportation planning process. This change
has been made.
Several State DOTs and a national and regional advocacy
organization suggested adding a ``savings clause'' in a new paragraph.
A savings clause would lessen the likelihood that the new provisions
regarding corridor or subarea studies would have unintended
consequences. The specific elements requested to be included in the
``savings clause'' were statements that: (a) The corridor and subarea
studies are voluntary; (b) corridor and subarea studies can be
incorporated into the NEPA process even if they are not specifically
mentioned in the long-range statewide transportation plan; (c) corridor
and subarea studies are not the sole means for linking planning and
NEPA; and (d) reiterate the statutory prohibition on applying NEPA
requirements to the transportation planning process. The concepts
recommended in the ``savings clause'' all reiterate provisions found
elsewhere in the rule or statute. The FHWA and the FTA do not agree
that it is necessary to repeat those provisions in this section.
The docket included a comment that corridor or subarea studies
should be required, not voluntary, to be included in NEPA studies.
Given the opposition to requiring NEPA-level analysis in the
transportation planning process, the FHWA and the FTA find that the
permissive nature of this section and Appendix A strikes the
appropriate balance.
The docket also included a question asking what needs to be
included in an agreement with the NEPA lead agencies to accomplish this
integration. The FHWA and the FTA have determined that identification
of what information appropriately belongs in the agreement should be
disseminated as non-regulatory guidance, complemented by a wide array
of effective practice case studies and supported by training and
technical assistance. No change was made to the rule. We have not
required that corridor or subarea studies be included or incorporated
into NEPA studies.
Section 450.214 Development and Content of the Long-Range Statewide
Transportation Plan
The docket included approximately 50 documents that contained about
50 comments on this section with about one-third from State DOTs, one-
half from national and regional advocacy organizations, and the rest
from MPOs and COGs, city/county/State agencies, general public and
transit agencies.
Many comments were received regarding the comparison of
transportation plans with conservation plans. According to statute (23
U.S.C. 135(f)(2)(D) and 49 U.S.C. 5304(f)(2)(D)), for long-range
statewide transportation plans, comparison must be made to both
conservation plans and inventories of natural/historic resources;
whereas language relating to metropolitan transportation plans (23
U.S.C. 134(i)(4)(B) and 49 U.S.C. 5303(i)(4)(B)) requires comparison to
State conservation plans/maps or comparison to inventories of natural
or historic resources. The rule language is consistent with what is in
statute. Therefore, no changes were made to the rule language.
A few comments were received pertaining to the lack of a required
financial plan for the long-range statewide transportation plan. Most
of the MPOs and COGs and several of the national and regional advocacy
organizations were in favor of adding this requirement. One State DOT
voiced opinion that this should remain an option, but not be mandated.
The FHWA and the FTA agree that the long-range statewide
transportation plan may include a financial plan. This optional
financial plan is different from the fiscal constraint requirement for
the STIP. This financial plan is a broad look at the future revenue
forecast and strategies needed to fund future projects over a 20-year
horizon. However, the
[[Page 7233]]
SAFETEA-LU made it clear that the financial plan should not be required
for a long-range statewide transportation plan. Therefore, no change
was made to the rule.
A few comments were received stating that the 20-year horizon for
the long-range statewide transportation plan should only be required as
of the effective date of the plan adoption, which would be similar to
language used for the effective date of the metropolitan transportation
plan. The FWHA and the FTA agree with this comment and have added ``at
the time of adoption'' to paragraph (a).
DOT Congestion Initiative: On May 16, 2006, the U.S. Secretary of
Transportation announced a national initiative to address congestion
related to highway, freight and aviation. The intent of the ``National
Strategy to Reduce Congestion on America's Transportation Network'' \7\
is to provide a blueprint for Federal, State and local officials to
tackle congestion. The States and MPO(s) are encouraged to seek Urban
Partnership Agreements with a handful of communities willing to
demonstrate new congestion relief strategies and encourages States to
pass legislation giving the private sector a broader opportunity to
invest in transportation. It calls for more widespread deployment of
new operational technologies and practices that end traffic tie ups,
designates new interstate ``corridors of the future,'' targets port and
border congestion, and expands aviation capacity.
---------------------------------------------------------------------------
\7\ This document, ``An Overview of the National Strategy to
Reduce Congestion on America's Transportation Network'' dated May,
2006, is available via the internet at the following URL: http://www.fightgridlocknow.gov
.
---------------------------------------------------------------------------
U.S. DOT encourages the State DOTs and MPOs to consider and
implement strategies, specifically related to highway and transit
operations and expansion, freight, transportation pricing, other
vehicle-based charges techniques, etc. The mechanism that the State
DOTs and MPOs employ to explore these strategies is within their
discretion. The U.S. DOT will focus its resources, funding, staff and
technology to cut traffic jams and relieve freight bottlenecks.
To encourage States to address congestion in the long-range
statewide transportation plan, the following sentence was added to
paragraph (b): ``The long-range statewide transportation plan may
consider projects and strategies that address areas or corridors where
current or projected congestion threatens the efficient functioning of
key elements of the State's transportation system.''
Several comments were received stating that the security
requirements of paragraph (e) go beyond what was intended in the
SAFETEA-LU. Based on these comments, the concern for possible
disclosure of security-sensitive information in the planning process
and the determination that a Regional Transit Security Study is not
required universally of all metropolitan areas and States, this
reference has been removed from the rule and instead we have added a
reference to ``other transit safety and security planning and review
processes, plans, and programs, as appropriate.'' Several commenters
also were concerned about the distinction between ``homeland'' and
``personal'' security in the planning factors found at Sec. 450.206
(Scope of the statewide transportation planning process). This
distinction has been removed from Sec. 450.206 (Scope of the statewide
transportation planning process) and Sec. 450.306 (Scope of the
metropolitan transportation planning process).
Some State DOTs and a few advocacy organizations commented that
``types of'' should be added to the discussion of potential
environmental mitigation activities requirement in paragraph (j) to
emphasize the policy or strategic nature of these discussions. The rule
language is consistent with statute (23 U.S.C. 135(f)(4) and 49 U.S.C.
5304(f)(4)), therefore this change was not made. However, we have added
a sentence to this paragraph recognizing that long-range statewide
transportation plans may focus on ``policies, programs, or strategies,
rather than at the project level.'' The last sentence of this paragraph
was also deleted because Appendix A does not provide additional
information relevant to the subject of this paragraph.
In paragraph (l), in response to comments from State DOTs, national
and regional advocacy organizations and several others, we have added
the phrase ``but is not required to.'' The purpose of this addition is
to reinforce that the financial plan is not required to include
illustrative projects. We also corrected the language in the last
sentence: ``were available'' was changed to ``were to become
available.''
Several State DOTs and a few national and regional advocacy
organizations requested in regard to paragraph (p) that long-range
statewide transportation plans be provided to the FHWA and the FTA only
when ``amended'' not ``revised.'' We agree and have made this change.
Section 450.216 Development and Content of the Statewide Transportation
Improvement Program (STIP)
The FHWA and the FTA received over 100 separate comments on this
section with the most from State DOTs followed by national and regional
advocacy organizations. MPOs and COGs, local governments and public
transportation providers also provided comments on this section.
Several State DOTs and national and regional advocacy organizations
and a few MPOs and COGs said in regards to paragraph (a) that State
DOTs should be allowed to have a statewide transportation improvement
program (STIP) of more than four years where the additional year(s) are
not illustrative.
The four-year scope is consistent with the time period required by
the SAFETEA-LU. While State DOTs are not prohibited from developing
STIPs covering a longer time period, in accordance with statute, the
FHWA and the FTA can only recognize and take subsequent action on
projects included in the first four years of the STIP. State DOTs may
show projects as illustrative after the first four years, as well as in
the long-range statewide transportation plan. Therefore, no change was
made to this section of the rule.
After consultation with EPA and in response to comments from a few
national and regional advocacy organizations, the language in paragraph
(b) has been changed to clarify that projects in the ``donut areas'' of
a nonattainment or maintenance area must be included in the regional
emissions analysis that supported the conformity determination of the
associated metropolitan TIP before they are added to the STIP. The
transportation conformity rule (40 CFR part 93) covers the requirements
for including projects in the ``donut area'' in the regional emissions
analysis.
A public transportation provider said in regard to paragraph (g)
that security projects should be added to the list of projects exempted
from listing in the STIP. Because security projects are often funded
with title 49 U.S.C. Chapter 53 or title 23 U.S.C. funds, they must be
included in the STIP. No change was made to this paragraph.
However, after further review, the FHWA and the FTA have determined
it is appropriate to remove the phrase ``federally supported'' from the
beginning of paragraph (g) because it is redundant. The paragraph
already requires projects to be included if they are funded under title
23 U.S.C. and title 49 U.S.C. Chapter 53. We have also changed
paragraph (g) to allow the
[[Page 7234]]
inclusion of the exempted projects, but do not require that they be
included. Further, we have added ``Safety projects funded under 23
U.S.C. 402'' to paragraph (g)(1) to be consistent with the October 1993
planning rule.
When proposing Appendix B to the rule, the FHWA and the FTA
intended to raise the level of awareness and importance in developing
fiscally constrained transportation plans, TIPs, and STIPs to States,
MPOs, and public transportation operators. Since its introduction under
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)
(Pub. L. 102-240), fiscal constraint has remained a prominent aspect of
transportation plan and program development, carrying through to the
TEA-21 and now to the SAFETEA-LU. The FHWA and the FTA acknowledge that
Appendix B contains a combination of guidance, amplifying information
and additional criteria. Given the level of controversy regarding
Appendix B, it has been removed from the rule. Therefore, the sentence
referencing Appendix B in paragraph (l) has been deleted.
Many State DOTs and several national and regional advocacy
organizations commented in regard to paragraph (h), that they should
not have to demonstrate financial constraint for projects included in
the STIP funded with non-FHWA and non-FTA funds. However, this
requirement is consistent with and carries forward the requirement that
was implemented with the October 1993 planning rule. In addition, for
informational purposes and air quality analysis in nonattainment and
maintenance areas, regionally significant non-Federal projects shall be
included in the STIP. Therefore, the FHWA and the FTA have retained
this portion of paragraph (h). We have, however, simplified the
paragraph slightly to combine the last two sentences.
Most State DOTs and national and regional advocacy organizations
that commented on this section, recommended in regards to paragraph (i)
that after the first year of the STIP, only the ``likely'' or
``possible'' (rather than ``proposed'') categories of funds should be
identified by source and year. The FHWA and the FTA agree with this
suggestion, with the exception of projects in nonattainment and
maintenance areas for which funding in the first two years must be
available or committed. Paragraph (i)(3) has been changed to
specifically reference the amount of ``Federal funds'' proposed to be
obligated and to identify separate standards for the first year and for
the subsequent years of the STIP.
One of the features of Appendix B that the FHWA and the FTA find
merits inclusion in the rule is ``year of expenditure dollars.'' The
following has been added to paragraph (l): ``Revenue and cost estimates
for the STIP must use an inflation rate(s) to reflect `year of
expenditure dollars,' based on reasonable financial principles and
information, developed cooperatively by the State, MPOs, and public
transportation operators.'' This language expresses the desire of the
FHWA and the FTA for revenue and cost estimates to be reflected in
``year of expenditure dollars.'' We recognize that it might take some
time for State DOTs and MPOs to convert their metropolitan
transportation plans, STIPs and TIPs to reflect this requirement.
Therefore, we will allow a grace period until December 11, 2007, during
which time State DOTs and MPOs may reflect revenue and cost estimates
in ``constant dollars.'' After December 11, 2007, revenues and cost
estimates must use ``year of expenditure'' dollars. This requirement is
consistent with the January 27, 2006, document ``Interim FHWA Major
Project Guidance.'' \8\ Please see the responses to the comments on
Appendix B to the NPRM for additional background information and
explanation. In addition, to reinforce that the financial plan is not
required to include illustrative projects, we have added the phrase
``but is not required to'' to this paragraph. Finally, we have deleted
the reference to Appendix B in this paragraph because Appendix B is not
included as part of this rule.
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\8\ This document, ``Interim FHWA Major Project Guidance,''
dated January 27, 2006, is available via the internet at the
following URL: http://www.fhwa.dot.gov/programadmin/mega/012706.cfm.
---------------------------------------------------------------------------
Regarding paragraph (m), many State DOTs, national and regional
advocacy organizations and a few MPOs and COGs questioned having to
demonstrate their ability to adequately operate and maintain the entire
transportation system. The FHWA and the FTA have revised paragraph (m)
to delete the phrase ``while the entire transportation system is being
adequately operated and maintained.'' Instead, we have added ``while
federally-supported facilities are being adequately operated and
maintained.'' Further, as discussed in the response to the comments on
Appendix B, we have added to this paragraph: ``For purposes of
transportation operations and maintenance, the STIP shall include
financial information containing system-level estimates of costs and
revenue sources reasonably expected to be available to adequately
operate and maintain Federal-aid highways (as defined by 23 U.S.C.
101(a)(5)) and public transportation (as defined by title 49 U.S.C.
Chapter 53).''
Many State DOTs and several national and regional advocacy
organizations said regarding paragraph (m) that State DOTs should not
have to demonstrate financial constraint in the STIP by year or by
source of funding. Based on nearly 13 years of implementing this
requirement, the FHWA and the FTA consider demonstrating funding by
year necessary for decision-makers and the public to have confidence in
the STIP as financially constrained. This change was not made. The
specific reference to ``by source'' has been removed. However, the
requirement for State DOTs to identify strategies for ensuring the
availability of any proposed funding sources is retained. Please see
the responses to the comments on Appendix B for additional background
information and explanation as to why we have included this language in
Sec. 450.216.
After further review, the FHWA and the FTA determined that
paragraph (n) is redundant. The same information is included in
paragraph (b). Therefore, paragraph (n) was removed.
One State DOT and one local agency said that the regulation should
include language emphasizing and expanding bicycle and pedestrian
program guidance. The FHWA and the FTA find that the language in the
guidance documents issued by the FHWA and the FTA on February 6,
2006,\9\ is sufficient to address bicycle and pedestrian needs without
being raised to the level of regulatory language.
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\9\ The guidance memo entitled ``Flexible Funding for Highway
and Transit and Funding for Bicycle and Pedestrian Programs,'' dated
February 6, 2006, is available via the internet at the following
URL: http://www.fhwa.dot.gov/hep/flexfund.htm.
---------------------------------------------------------------------------
Many State DOTs and national and regional advocacy organizations
that provided comments on this section said in regards to paragraph (o)
(now paragraph (n)), that all changes that affect fiscal constraint
should not require an amendment. We have slightly modified the
paragraph to remove ``all'' from the last sentence, but note that this
change does not remove the requirement that any change that affects
fiscal constraint requires an amendment. By definition, an amendment is
``a revision that requires public review and comment, redemonstration
of fiscal constraint, or a conformity determination (for `non-exempt'
projects in nonattainment and maintenance areas). (See Sec. 450.104
(Definitions)).
[[Page 7235]]
The FHWA and the FTA note that nearly all comments on Sec. 450.324
(Development and content of the transportation improvement program
(TIP)) regarding the question posed in the preamble of the NPRM
``whether the FHWA and the FTA should require MPOs submitting TIP
amendments to demonstrate that funds are `available or committed' for
projects identified in the TIP in the year the TIP amendment is
submitted and the following year'' opposed a change. Almost all
commenters mentioned that such a change would require reviewing the
financial assumptions for the entire program, thereby causing an undue
burden. Commenters suggested showing financial constraint only for the
incremental change. The same question was posed in this section of the
NPRM. Although commenters did not respond to the question in comments
on this section, based on the comments on Sec. 450.324 no change was
made to the rule. However, the FHWA and the FTA are concerned for the
potential impact of individual amendments on the funding commitments
and schedules for the other projects in the STIP. For this reason, the
financial constraint determination occasioned by the STIP amendment
will necessitate review of all projects and revenue sources in the
STIP. The FHWA and the FTA will address any concerns on this issue
through subsequent guidance.
Many State DOTs, MPOs and COGs as well as some national and
regional advocacy organizations and a few public transportation
providers and local government agencies asked for clarification on
fiscal constraint if the financial situation in the State or
metropolitan region changes. The FHWA and the FTA have added a new
paragraph (o) to clarify that where a revenue source is removed or
substantially reduced after the FHWA and the FTA find a STIP to be
fiscally constrained, the FHWA and the FTA will not withdraw its
determination of fiscal constraint but that the FHWA and the FTA will
not act on an updated or amended STIP which does not reflect the
changed revenue situation.
Section 450.218 Self-Certification, Federal Findings, and Federal
Approvals
The docket included about 20 documents that contained approximately
30 comments on this section with about one-half from State DOTs, one-
quarter from national and regional advocacy organizations, and the rest
from MPOs and COGs, and city/county governments.
Several comments were made under this section that should have
referenced 450.220(e) and the question posed in the preamble to the
NPRM ``whether States should be required to prepare an `agreed to' list
of projects at the beginning of each of the four years in the STIP,
rather than only the first year and whether a STIP amendment should be
required to move projects between years in the STIP if an `agreed to'
list is required for each year.'' These comments have been reflected in
the discussion of and final language for Sec. 450.220(e).
Many commenters, including almost all State DOTs, in regards to
paragraph (a), asserted their belief that the October 1993 planning
rule requires joint FHWA and FTA approval of STIP amendments only ``as
necessary'' so that, in most cases, either the FHWA or the FTA could
approve the amendment. This is not the case. The October 1993 planning
rule at 23 CFR 450.220(a) did require joint approval for all new STIPs
and STIP amendments ``as necessary.'' The FHWA and the FTA have
reviewed this requirement and determined that joint approval remains
necessary. However, we note that through the internal Planning
Collaboration Initiative, the FHWA and the FTA have developed a number
of streamlined internal processes and agreements to expedite review and
approval of STIP amendments. Based on these agreements and experience
with the current regulation, we do not believe requiring joint approval
will slow down the approval process or impose new workloads on the FHWA
and the FTA. Joint approval of STIP amendments is necessary as part of
our stewardship and oversight responsibility.
We have clarified paragraph (a) to specifically state that ``STIP
amendments shall also be submitted to the FHWA and the FTA for joint
approval'' and that ``at the time the entire STIP or STIP amendment is
submitted,'' the State shall certify the planning process is being
carried out in accordance with requirements.
After further review of this section, the FHWA and the FTA have
updated the list of applicable requirements in paragraph (a). Reference
to ``23 CFR parts 200 and 300 have been removed'' from paragraph
(a)(2). Instead, a more specific reference to ``23 CFR part 230,
regarding implementation of an equal employment opportunity program on
Federal and Federal-aid highway construction contracts'' was added as
paragraph (a)(5). This is the specific portion of 23 CFR parts 200 and
300 that needs to be reviewed and is not related to Title VI of the
Civil Rights Act of 1964 in paragraph (a)(2). In addition, we have
added a new paragraph (a)(3) ``49 U.S.C. 5332, prohibiting
discrimination on the basis of race, color, creed, national origin,
sex, or age in employment or business opportunity.'' Upon further
review of this section, the FHWA and the FTA determined that 49 U.S.C.
5332 should be included in this list of requirements.
Several comments to the docket expressed concern regarding the need
for approval of the STIP when submitted to the FHWA and the FTA. While
we still require joint approval, we have revised paragraph (b) to
delete the proposed time frames of ``every four years'' or ``at the
time the amended STIP is submitted.'' We will also make a joint finding
on the ``STIP,'' rather than ``the projects in the STIP.''
Some commenters raised questions regarding the authority in
paragraph (c) for the FHWA and the FTA approval of a STIP to continue
for up to 180 days under extenuating circumstances even though a State
has missed the deadline for its four-year update. Several comments
suggested that the 180 calendar day limit for STIP extensions should be
expanded and most supported not putting any time limit on the STIP
extension period. At the same time, some national and regional advocacy
organizations opposed allowing any STIP extensions. This provision has
been in the planning regulations since the original rule relating to
STIPs was adopted in October 1993, following the enactment of the
ISTEA. Although the statute specifies that STIPs shall be updated every
four years, Congress did not specify any consequences of missing this
deadline by failing to complete the update within the specified period.
Because Congress was silent on the consequences of the failure to
update the STIP within the four-year period, the FHWA and the FTA have
some latitude in interpreting Congress' intent. This discretion is
further manifested in the statute by the fact that the FHWA and the FTA
are given responsibility to approve the STIP (23 U.S.C. 135(g)(6) and
49 U.S.C. 5304(g)(6)). Since the October 1993 planning rule, the FHWA
and the FTA have interpreted the update requirement strictly, believing
that Congress intended the process to work on a regular cycle, and that
regular updates were essential to the viability of the transportation
planning process. Therefore, we have concluded that approval of the
STIP should only continue past the update time period specified in
statute when there are extenuating circumstances beyond the control of
the State DOT that causes it to miss its update deadline.
[[Page 7236]]
Examples of extenuating circumstances include (but are not limited
to): (a) late action by the Governor or State legislature on revenue
that was reasonably expected to be available for transportation
projects in the STIP, whereby instances have occurred when the STIP was
nearing the completion of the update process (public review and
comments had been received), but just before adoption the funding was
severely restricted, thus a new update process (based on new fiscal
constraint reality) needed to be commenced; or (b) disasters, both
natural and man-made, have caused States to divert both funding and
staff resources away from the STIP update process.
Further, the FHWA and the FTA believe that such an approval cannot
extend indefinitely, but only be of limited duration (i.e., 180
calendar days). Therefore, we have retained the provision in paragraph
(c) for an extension of the STIP update under extenuating
circumstances. However, paragraph (c) has been slightly modified to
clarify that, while the FHWA and the FTA approval may continue for a
limited period of time based on extenuating circumstances, the
statutory deadline for the update has not been changed. We have also
clarified that the 180-day period refers to ``calendar days.''
Many comments were received questioning why the existing
flexibility to maintain or establish operations for highway operating
assistance was eliminated here and in Sec. 450.328 (TIP actions by the
FHWA and the FTA). This was an erroneous omission in the NPRM and the
language has been restored to correct this error.
A small number of national and regional advocacy organizations
expressed concern that the rule does not provide enough detail on the
standards that the FHWA, the FTA and State DOTs should apply in making
a statewide planning finding. We believe that the entire context of the
rule and of the statute sufficiently identify the criteria to be used
in making a finding that the transportation planning process meets or
substantially meets these requirements. We do not believe additional
detail is required in the rule. However, if necessary, the FHWA and the
FTA will provide non-regulatory guidance, training and technical
assistance.
Section 450.220 Project Selection From the STIP
The docket included 20 documents that contained about 20 comments
on this section. The majority of the comments were from State DOTs.
MPOs and COGs, as well as transit agencies, city/county governments,
and national and regional advocacy groups, also provided comments.
All of the comments pertained to the two questions posed in the
preamble to the NPRM: ``whether States should be required to prepare an
`agreed to' list of projects at the beginning of each of the four years
in the STIP, rather than only the first year'' and ``whether a STIP
amendment should be required to move projects between years in the
STIP, if an `agreed to' list is required for each year.''
Predominantly, comments asserted that requiring a State DOT or MPO to
submit an agreed-to list at the beginning of each of the four years of
the TIP/STIP or requiring an amendment to move projects between years
in the STIP unnecessarily limited flexibility and thus should not be a
requirement. The FHWA and the FTA agree with the majority of the
comments. Therefore, no change was made to the rule language.
We have clarified paragraph (b) to indicate that project selection
shall be made according to procedures provided in Sec. 450.330
(Project Selection From the TIP).
Section 450.222 Applicability of NEPA to Statewide Transportation Plans
and Programs
The docket includes very few comments on this section. One concern
expressed is that this section or Appendix A would make planning
reviewable under NEPA. The purpose of this section, however, is to
reiterate the statutory provisions that clearly say that the statewide
transportation planning process decisions are not subject to review
under NEPA. We have changed this section to mirror the language in 23
U.S.C. 135(j) and 49 U.S.C. 5304(j).
Section 450.224 Phase-In of New Requirements
The docket included 30 documents that contained almost 100 comments
on this section with about half from State DOTs, one-fifth from
national and regional advocacy organizations, one-fifth from MPOs and
COGs, and the rest from city/county/State agencies.
All comments received indicated that it will be difficult to meet
the SAFETEA-LU July 1, 2007, deadline. Subsequent to the preparation of
the proposed rule, but prior to its publication, the FHWA and the FTA
disseminated additional guidance regarding the phase-in requirements on
May 2, 2006.\10\ Many of the comments to the docket addressed issues
that were clarified in our May 2, 2006, guidance. The provisions of the
guidance have been incorporated into the regulation. Specifically, we
have clarified that long-range statewide transportation plans and STIPs
adopted and approved prior to July 1, 2007, may be developed using the
TEA-21 requirements or the provisions and requirements of this part.
---------------------------------------------------------------------------
\10\ This guidance document, ``SAFETEA-LU Deadline for New
Planning Requirements'', dated May 2, 2006, is available on the
following URL: http://www.fhwa.dot.gov/hep/plandeadline.htm.
---------------------------------------------------------------------------
We have also clarified, in paragraph (a), what actions may be taken
prior to July 1, 2007, on long-range statewide transportation plans and
STIPs.
One MPO, half of the national and regional advocacy organizations
and a quarter of the State DOTs commented that the regulations should
clearly state that partial STIP approvals are allowable if one MPO or
region is not SAFETEA-LU compliant. Because the regulation already
allows for approval of partial STIPs (see Sec. 450.218(b)(1)(iii)), no
change was made to the regulation. Approval of partial STIPs is
acceptable, primarily when difficulties are encountered in
cooperatively developing the STIP portion for a particular metropolitan
area or for a Federal Lands agency. If an MPO is able to produce a TIP
that is SAFETEA-LU compliant, the Federal action would be to amend that
TIP into the STIP, making the portion of the STIP that covers that
region SAFETEA-LU compliant.
Most of the national and regional advocacy organizations and most
of the State DOTs commented that the deadline for transportation plan,
STIP and TIP action should apply to State/MPO approval action rather
than the FHWA/FTA conformity finding. The FHWA and the FTA issued
guidance on ``Clarification of Plan Requirements in Nonattainment and
Maintenance Areas'' on May 25, 2001.\11\ Since the FHWA and the FTA do
not determine conformity of STIPs, we are revising this section to
eliminate conformity determinations. However, the rest of the rule
language is consistent with current practice, and therefore, no other
change was made.
---------------------------------------------------------------------------
\11\ This guidance document, ``Clarification of Plan
Requirements in Nonattainment and Maintenance Areas,'' dated May 25,
2001, can be found via the internet at the following URL: http://www.fhwa.dot.gov/environment/conformity/planup_m.htm
.
---------------------------------------------------------------------------
Most of the commenters stated that 23 U.S.C. 135(b) requires only
``updates'' to reflect changes required by SAFETEA-LU after July 1,
2007, not ``amendments.'' The comments noted that requiring a STIP re-
adoption for minor amendments would be a
[[Page 7237]]
substantial burden and is a stricter interpretation of the statute than
Congress intended. Prior to the adoption of this rule, there has not
been an accepted definition of or distinction between the terms
``update'' or ``amendment.'' As established in Section 450.104
(Definitions) of this rule, the FHWA and the FTA consider an amendment
to the STIP to be a major change to the transportation plan or program.
The FHWA and the FTA believe that any major change to the
transportation plan or program, whether called an ``amendment'' or an
``update'' under this regulation, is considered for this purpose an
``update'' as referenced in 23 U.S.C. 135(b). However, an
``administrative modification'' would not be covered by this
requirement. This rule clarifies the definition of these terms for the
future.
One national and regional advocacy organization stated that
Congress specified that the SAFETEA-LU phase-in period should begin on
July 1, 2007, not be completed by that date. The FHWA and the FTA
believe that this is an incorrect interpretation of the statute. The
FHWA and the FTA agree that administrative modifications can be made to
STIPs after July 1, 2007, but amendments or revisions that would add or
delete a major new project to a TIP, STIP, or transportation plan would
not be acceptable after July 1, 2007, in the absence of meeting the
provisions and requirements of this part. This information has been
included in paragraph (c).
Subpart C--Metropolitan Transportation Planning and Programming
Section 450.300 Purpose
No comments were received on this section and no changes were made.
Section 450.302 Applicability
No comments were received on this section and no changes were made.
Section 450.304 Definitions
No comments were received on this section and no changes were made.
Section 450.306 Scope of the Metropolitan Transportation Planning
Process
The docket included about 80 separate comments on this section with
almost half from MPOs and COGs. Several national and regional advocacy
organizations also commented on this section. Most of the remaining
comments came from State DOTs and transit agencies. City/county
governments and others also commented on this section.
In comments on this section and Sec. 450.206 (Scope of the
statewide transportation planning process), many MPOs and COGs, some
national and regional advocacy organizations and a few State DOTs noted
that paragraph (a)(3) embellished the statutory language for the
``security'' planning factor. Organizations that commented on this
issue were concerned that the expanded language would require State
DOTs and MPOs to go far beyond their traditional responsibilities in
planning and developing transportation projects, which was not intended
by the SAFETEA-LU. The FHWA and the FTA agree and have revised the
language in paragraph (a)(3) to match the language in the statute.
After further review, the FHWA and the FTA have changed the word
``should'' to ``shall'' in paragraph (b) to be consistent with
statutory language in 23 U.S.C. 134(h)(1) and 49 U.S.C. 5303(h)(1).
Most of the State DOTs and several of the national and regional
advocacy organizations that commented on similar text in Sec. 450.206
(Scope of the statewide transportation planning process) said that the
text in paragraph (b) of that section should be revised to be similar
to the text in the October 1993 planning rule acknowledging that the
degree of consideration will reflect the scales and complexity of
issues within the State. The FHWA and the FTA agree with those comments
and revised this section, as well, to be consistent. We have included
the language from the October 1993 planning rule with one change. The
phrase ``transportation problems'' was changed to ``transportation
system development.''
After further review, we have clarified paragraph (c) to mirror the
language in 23 U.S.C. 134(h)(2) and 49 U.S.C. 5303(h)(2). The paragraph
now specifically refers to ``any court under title 23 U.S.C., 49 U.S.C.
Chapter 53, subchapter II of title 5 U.S.C. Chapter 5, or title 5
U.S.C. Chapter 7.''
Some MPOs and COGs and a few national and regional advocacy
organizations asked for clarification on the meaning of asset
management principles and information on how to link them to
performance measures. The FHWA and the FTA have changed ``are
encouraged to'' to ``may'' in paragraph (e) to provide additional
flexibility for MPOs, State DOTs, and public transportation operators
to apply asset management principles appropriate to their individual
context. If necessary, the FHWA and the FTA will provide additional
non-regulatory guidance, training and technical assistance.
Many of the State DOTs and a few of the national and regional
advocacy organizations that provided comments on this topic said the
text in paragraph (f) went beyond statutory requirements. The FHWA and
the FTA agree with these comments and revised the rule accordingly by
adding ``to the maximum extent practicable'' in paragraph (f).
Most transit agencies, several State DOTs, MPOs and COGs, and
others provided comments on the requirement in paragraph (g) for the
metropolitan transportation planning process to be consistent with the
development of coordinated public transit-human services transportation
plans. In general, commenters requested additional information on the
plans, who was responsible for developing the plans and how they were
to be consistent. Some commenters recommended removing the requirement
entirely.
Communities have broad flexibility in determining the roles and
responsibilities in this area, including selecting the organization
charged with developing the coordinated public transit-human services
transportation plan. The FHWA and the FTA encourage review of the
proposed FTA Circulars for implementing the 49 U.S.C. 5310, 5316, and
5317 programs (New Freedom Program Guidance, The Job Access And Reverse
Commute (JARC) Program, Elderly Individuals and Individuals With
Disabilities Program), published on September 6, 2006.\12\ Consistency
between public transit-human services planning and the metropolitan
transportation planning process is required. The provisions for
promoting consistency between the planning processes were revised to
clarify and add flexibility. In order to receive funding in title 49
U.S.C. Chapter 53, projects from the coordinated public transit-human
services transportation plans must be incorporated into the
metropolitan transportation plan, TIP and STIP. And, in areas with a
population greater than 200,000, solicitation of projects for
implementation from the public transit-human services transportation
plan must be done in cooperation with the MPO.
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\12\ These documents, ``Elderly Individuals and Individuals With
Disabilities, Job Access and Reverse Commute, and New Freedom
Programs: Coordinated Planning Guidance for FY 2007 and Proposed
Circulars'' was published September 6, 2006, and are available via
the internet at the following URLs: http://www.fta.dot.gov/publications/publications--5607.html or http://edocket.access.gpo.gov/2006/pdf/E6-14733.pdf.
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Several transit agencies and a few State DOTs and others suggested
deleting the portion of paragraph (h)
[[Page 7238]]
related to Regional Transit Security Strategies (RTSS) due to the
confidential nature of these plans. Reference to the RTSS was removed
from paragraph (h). Instead, we have added a reference to ``other
transit safety and security planning and review processes, plans, and
programs, as appropriate.''
Section 450.308 Funding for Transportation Planning and Unified
Planning Work Programs
There were a few comments on this section from MPOs and COGs. Those
that commented on this section supported the flexibility provided in
paragraph (d) and several requested clarification on issues such as the
definition of ``MPO staff,'' and different processes expected of non-
TMA and TMA MPOs. If necessary, the FHWA and the FTA will provide
additional clarification through development of technical reports or
guidance; however we did not make any changes to this section.
Section 450.310 Metropolitan Planning Organization Designation and
Redesignation
The docket included about 30 separate comments on this section with
the most coming from national and regional advocacy organizations. Most
of the remaining comments came from State DOTs, MPOs and COGs. Local
agencies also commented on this section.
Several of the MPOs and COGs and national and regional advocacy
organizations that provided comments on this section worried that the
Census' continuous sample American Community Survey (ACS) would change
the official populations in urbanized areas more often than once a
decade, and recommended that paragraph (a) should specifically state
that urbanized area populations be based only on each decennial Census.
The Census Bureau historically has identified and defined the
boundaries and official population of urbanized areas only in
conjunction with each decennial Census. This practice will not change
as a result of the ACS. The ACS is collected in a nationwide sample of
households, and does not constitute a full enumeration of the U. S.
population. Consequently, it does not provide the necessary basis for
adjusting the boundaries of an urbanized area or revising its total
population. Moreover, changing this paragraph would preclude the option
for a fast growing urban area to request (and pay for conducting) a
special mid-decade Census for the purpose of determining whether its
population increased beyond the threshold for designation as an MPO or
TMA. While this has been done infrequently in the past, the FHWA and
the FTA do not want to prohibit this option. Therefore, no change was
made to this paragraph.
A few national and regional advocacy organizations and State DOTs
had comments on paragraph (c), ranging from deleting language that they
said went beyond statute to clarifying the phrase ``to the extent
possible'' to including the public in designation. The language in this
paragraph was carried forward from the October 1993 planning rule.
However, the FHWA and the FTA agree that the implied regulatory
standing was unclear. This paragraph has been changed to mirror the
language in 23 U.S.C. 134(f)(2) and 49 U.S.C. 5303(f)(2). The intent of
this paragraph is to encourage States to enact legislation that gives
MPOs specific authority to carry out transportation planning for the
entire metropolitan planning area they serve. Without such enabling
legislation, MPOs may lack the necessary leverage to effectively
coordinate transportation projects across local jurisdictions.
A national and regional advocacy organization suggested language be
added to paragraph (d) to encourage broad representation, especially
from public transportation operators, on MPO policy boards. The statute
(23 U.S.C. 134(d)(2)(B) and 49 U.S.C. 5303(d)(2)(B)) explicitly
provides for public transportation agencies to be included on policy
boards. To clarify this issue, paragraph (d) has been changed to better
reflect the language in the statute. Further, we have added language to
the rule to encourage MPOs to increase the representation of local
elected officials and public transportation agencies on their policy
boards, subject to the requirements of paragraph (k) of this section.
After further review, we have changed the language in paragraph (e)
from ``should'' to ``shall'' to be consistent with statute (23 U.S.C.
134(d)(1) and 49 U.S.C. 5303(d)(1)).
A question was asked about the purpose of paragraph (f). This is
not a new paragraph. In fact, it first appears in Federal statute (23
U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3)) as a means of
``grandfathering'' in those multimodal transportation agencies that
were in existence at the time of enactment of ISTEA, which were serving
many of the functions of an MPO. This paragraph continues to appear in
the SAFETEA-LU (23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3), but was
not explicitly included in past versions of the metropolitan
transportation planning regulations. The FHWA and the FTA agree that it
is no longer necessary and have removed it from the rule. Most agencies
covered by the provisions of 23 U.S.C. 134(d)(3) and 49 U.S.C.
5303(d)(3) have already been officially designated as an MPO, and this
option still will have the force of law in the statute.
Some commenters suggested that paragraph (g) (now paragraph (f))
should allow MPOs to use non-profit organizations for staff work. This
paragraph brings forward the language from the October 1993 planning
rule. Nothing in this paragraph prohibits an MPO from using the staff
resources of other agencies, non-profit organizations, or contractors
to carry out selected elements of the metropolitan planning process.
However, to clarify this issue, we have added ``non-profit
organizations, or contractors'' to this paragraph.
A few MPOs recommended deleting ``current MPO board members'' as
one definition for units of general purpose local government from
paragraph (k) (now paragraph (j)). The FHWA and the FTA agree that
allowing the option of ``local elected officials currently serving on
the MPO'' to represent all units of general purpose local government
for the purposes of redesignation could result in unintended problems.
The FHWA and the FTA have deleted ``local elected officials currently
serving on the MPO'' from this paragraph and moved the remaining text
into the body of paragraph (j).
Many of the State DOTs and a few of the national and regional
advocacy organizations and MPOs and COGs that commented on this section
had specific comments on paragraph (l) (now paragraph (k)) saying that
the paragraph goes beyond statutory requirements and should be deleted
and requesting clarification and minor word changes. The intent of this
paragraph is that while an MPO may identify the need for redesignation,
actual redesignation must be carried out in accordance with statutory
redesignation procedures. The FHWA and the FTA have added language to
this paragraph to clarify that redesignation is in accordance with the
provisions of this section (Sec. 450.310). We have also modified
paragraph (m) (now paragraph (l)) to reference the substantial change
discussion in paragraph (k).
The docket contained a comment in regards to paragraph (l) (now
paragraph (k)) that Sec. 4404 of the SAFETEA-LU provides specific
designation and redesignation authority for the States of Alaska and
Hawaii. Because Sec. 4404 of the SAFETEA-LU does not apply
[[Page 7239]]
universally to all MPOs, it is not included in the rule.
Section 450.312 Metropolitan Planning Area Boundaries
The docket included a few comments on this section with the most
coming from MPOs and COGs and the remaining comments from State DOTs
and national and regional advocacy organizations. Several of the
comments provided general support for this section of the planning rule
as written.
A few of the comments related to paragraph (b) and asked for minor
text changes or clarification on how the section may limit flexibility.
The FHWA and the FTA revised the paragraph to make it more consistent
with statutory text and, thus, it should not limit flexibility beyond
statutory requirements. We also added a reference to the requirements
in Sec. 450.310(b) to reiterate that the MPA boundary may be
established to coincide only if there is agreement of the Governor and
the affected MPO in the same manner as is required for designating an
MPO in the first place.
One of the comments regarding paragraph (d) asked for clarification
for requiring that the metropolitan planning area (MPA) boundary
coincide with regional economic development or growth forecasting
areas, in particular, for complex areas having multiple, non-coincident
boundaries. This paragraph says that metropolitan planning boundaries
``may'' be established to coincide with regional economic and growth
forecasting areas. This paragraph is permissive, not mandatory.
Instead, this paragraph provides MPOs with the flexibility to allow
their planning boundaries to coincide with other, established
boundaries, but does not require them to do so. For clarification and
simplicity, the word ``the'' was deleted from the beginning of this
paragraph.
In response to comments on this section, we have also clarified
paragraph (h) to indicate that all boundary adjustments that change the
composition of the MPO may require redesignation of one or more such
MPOs, rather than only boundary changes that ``significantly'' change
the composition of the MPO.
Section 450.314 Metropolitan Planning Agreements
The docket included more than 70 comments on this section, with the
most coming from State DOTs, followed by MPOs and COGs. The remaining
comments were from national and regional advocacy organizations, local
agencies and public transportation providers.
Most of the State DOTs and MPOs, many of the national and regional
advocacy organizations, and a few of the public transportation
providers and local agencies that commented on paragraph (a) expressed
concern about an unintended burden resulting from the requirements
outlined in this paragraph and requested clarification. Some suggested
text changes such as using the term ``memorandum of understanding'' in
place of ``agreement.'' The MPO agreements are intended to document the
cooperative arrangements among the various agency participants that
participate in the metropolitan transportation planning process. The
FHWA and the FTA encourage a single agreement. However, the rule
language has been changed to reflect the option for multiple
agreements. Removing the implied requirement for a single written
agreement should allow many current planning agreements to satisfy the
provisions of this paragraph provided they are written documents.
Many of the State DOTs that commented on this section said they
find paragraph (a)(1) too prescriptive and redundant with requirements
in other sections of the planning rule. On the other hand, several MPOs
and COGs and national and regional advocacy organizations that provided
comments on this section wrote to support the proposed rule language in
this paragraph. The FHWA and the FTA believe the information in this
paragraph is helpful to identify what shall be included in the written
agreement(s). No change was made to this language, but it has been
moved into the body of paragraph (a).
Many of the State DOTs that commented on this section said they
found paragraph (a)(2) too prescriptive and redundant with requirements
in other sections of the planning rule. Several MPOs and COGs and
national and regional advocacy organizations said they would like
clarification or minor text changes in this paragraph. A small number
of MPOs and COGs and national and regional advocacy organizations that
provided comments on this section wrote to support the proposed rule
language in this paragraph. The FHWA and the FTA removed this paragraph
from the final rule since the issues are adequately addressed in Sec.
450.316 (Interested parties, participation, and consultation).
The docket includes a comment on this section objecting to the
requirement in paragraph (f) that a planning agreement between two or
more MPOs serving part of a TMA shall address specific TMA
requirements, such as the suballocation of Surface Transportation
Program (STP) funds. The FHWA and the FTA revised the final rule to
clarify that the entire adjacent urbanized area does not need to be
treated as a TMA. However, a written agreement shall be established
between the MPOs with MPA boundaries including a portion of the TMA,
which clearly identifies the roles and responsibilities of each MPO in
meeting specific TMA requirements (e.g. congestion management process,
STP funds suballocated to the urbanized area over 200,000 population,
and project selection).
Representatives of State DOTs and private bus operators requested
the inclusion of detailed methodologies for engaging private service
providers in the transportation planning process, as well as standards
for ascertaining compliance with private enterprise provisions and a
complaint process. To ensure maximum flexibility for localities to
tailor programs to the needs of private service providers in their
areas, the FHWA and the FTA will use non-regulatory guidance, training,
and technical assistance, as necessary, for disseminating information
on optional approaches to private sector participation.
Section 450.316 Interested Parties, Participation, and Consultation
The FHWA and the FTA received more than 80 comments on this section
with the most coming from MPOs and COGs, followed by national and
regional advocacy organizations. Public transportation providers, State
DOTs and local agencies also provided comments on this section. In
general, many of the MPOs and some of the others who provided comments
on this section said that they supported the rule as written or with
minor changes.
A few MPOs in regards to paragraph (a) asked about the difference
between the participation plan identified in this rule and the public
involvement plan under the prior two authorizations, the ISTEA and the
TEA-21. The participation plan in this section has several elements not
required of the public involvement plan: the participation plan shall
be developed in consultation with all interested parties; and the
participation plan shall include procedures for employing visualization
techniques and making public information available in electronically
accessible formats and means.
There were a variety of comments regarding the list of interested
parties in paragraph (a) from several MPOs and COGs, national and
regional advocacy
[[Page 7240]]
organizations and public transportation providers. The comments ranged
from specifically including additional groups by reference to adding
``non-citizens'' or ``the public'' and ``limited English proficiency''
to adding definitions for the groups that are in the list to making the
list optional. The FHWA and the FTA find that, with a general reference
to ``other interested parties,'' MPOs have adequate flexibility to
develop and implement a participation plan that provides an appropriate
list of interested parties for their individual metropolitan area. MPOs
are encouraged to broaden the list of interested parties beyond those
listed in statute, as appropriate. The list in the rule has been
modified to match the language in the statute (23 U.S.C. 134(i)(5) and
49 U.S.C. 5303(i)(5)). No additional groups were added. The FHWA and
the FTA note that 49 U.S.C. 5307(c) requires grant recipients to make
available to the public information on the proposed program of projects
and associated funding.
Representatives of a State DOT and private bus operators requested
the inclusion of detailed methodologies for engaging private service
providers in the transportation planning process, as well as standards
for ascertaining compliance with private enterprise provisions and a
complaint process. These commenters also requested that the private bus
operators be specifically included in the list of interested parties.
To ensure maximum flexibility for localities to tailor programs to the
needs of private service providers in their areas, we will rely upon
non-regulatory guidance, training, and technical assistance for
disseminating information on optional approaches to private sector
participation.
A Federal agency commented that the public or an agency should be
able to identify itself to the MPO as an appropriate contact without
having to be identified to participate by the MPO. The FHWA and the FTA
agree. If an MPO is approached, the MPO should consider the request and
determine whether the consultation is appropriate. We believe that this
flexibility is allowed within the existing rule language. No change has
been made to this section of the rule.
A few MPOs and COGs that commented on this section asked for a
definition of ``reasonable access'' under paragraph (a)(1)(ii). This
requirement carries forward what was in the October 1993 planning rule.
The FHWA and the FTA find that MPOs have had adequate flexibility to
define ``reasonable access'' when they developed and revised their
public involvement plan and will continue to have that flexibility with
the requirements for a participation plan. This definition was not
added to the rule.
Many MPOs and COGs and some of the other organizations that
commented on this section wrote to support the requirement for
employing visualization in paragraph (a)(1)(iii). Several MPOs and COGs
asked for clarification or subsequent guidance on effective and
appropriate use of visualization techniques. The FHWA and the FTA agree
that there is a need for more technical information on the use of
visualization techniques and will provide technical reports and non-
regulatory guidance, as necessary, subsequent to the publication of
this rule.
A few MPOs and COGs said in reference to paragraph (a)(1)(iv) that
making technical information available could be overly burdensome. This
requirement conforms to the requirement in statute (23 U.S.C. 134
(i)(5) and 49 U.S.C. 5303(i)(5)). MPOs have flexibility to define
specific techniques for making information available when they develop
and revise their public participation plan.
Several MPOs and COGs and a public transportation provider wrote in
reference to paragraph (a)(1)(vi) that the term ``explicit
consideration'' could be burdensome and needs clarification. This
language was similar to a requirement under the public involvement plan
and based on that experience, the FHWA and the FTA believe that MPOs
have adequate flexibility to define specific techniques when they
develop and revise their public participation plan. If needed, the FHWA
and the FTA will provide