Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning, 34049-34164 [2016-11964]

Download as PDF Vol. 81 Friday, No. 103 May 27, 2016 Part III Department of Transportation Federal Highway Administration 23 CFR Parts 450 and 771 Federal Transit Administration mstockstill on DSK3G9T082PROD with RULES3 49 CFR Part 613 Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning; Final Rule VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27MYR3.SGM 27MYR3 34050 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Highway Administration DATES: 23 CFR Parts 450 and 771 49 CFR Part 613 [Docket No. FHWA–2013–0037] RIN 2125–AF52; 2132–AB10 Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning Federal Highway Administration (FHWA), Federal Transit Administration (FTA); U.S. Department of Transportation (DOT). ACTION: Final rule. AGENCY: mstockstill on DSK3G9T082PROD with RULES3 For the FHWA: Mr. Harlan W. Miller, Office of Planning, Environment, and Realty, (202) 366–0847; or Ms. Jennifer Mayo, Office of the Chief Counsel, (202) 366– 1523. For the FTA: Ms. Sherry Riklin, Office of Planning and Environment, (202) 366–5407; Mr. Dwayne Weeks, Office of Planning and Environment, (202) 493–0316; or Mr. Christopher Hall, Office of Chief Counsel, (202) 366–5218. Both agencies are located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t. for FHWA, and 9:00 a.m. to 5:30 p.m., e.t. for FTA, Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: The FHWA and FTA are jointly issuing this final rule to update the regulations governing the development of metropolitan transportation plans (MTP) and programs for urbanized areas, longrange statewide transportation plans and programs, and the congestion management process as well as revisions related to the use of and reliance on planning products developed during the planning process for project development and the environmental review process. The changes reflect the passage of the Moving Ahead for Progress in the 21st Century Act (MAP–21) and the Fixing America’s Surface Transportation (FAST) Act. The MAP–21 continues many provisions related to transportation planning from prior laws; however, it introduces transformational changes and adds some new provisions. The FAST Act makes minor edits to existing provisions. The changes make the regulations consistent with current statutory requirements and implement the following: A new mandate for State departments of transportation (hereafter referred to simply as ‘‘States’’) and metropolitan planning organizations (MPO) to take a performance-based approach to planning and programming; a new emphasis on the nonmetropolitan transportation planning process, by requiring States to have a higher level of involvement with nonmetropolitan local officials and providing a process for the creation of regional transportation planning organizations (RTPO); a structural change to the membership of the larger MPOs; a new framework for voluntary scenario planning; new authority for the integration of the planning and environmental review SUMMARY: 18:54 May 26, 2016 Effective June 27, 2016. FOR FURTHER INFORMATION CONTACT: Federal Transit Administration VerDate Sep<11>2014 processes; and a process for programmatic mitigation plans. Jkt 238001 Electronic Access and Filing This document, the notices of proposed rulemakings (NPRM) published on June 2, 2014 (79 FR 31784), and September 10, 2014 (79 FR 53673), and all comments received may be viewed online through the Federal eRulemaking portal at https:// www.regulations.gov. The Web site is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register’s home page at: https:// www.federalregister.gov and the Government Printing Office’s Web site at: https://www.gpo.gov. Table of Contents for Supplementary Information I. Executive Summary A. Purpose of the Regulatory Action B. Summary of Major Provisions and Key Changes From NPRM 1. Performance-Based Planning and Programming 2. New Emphasis on Nonmetropolitan Transportation Planning 3. Additions to the Metropolitan Planning Program 4. Use of Planning Products in Project Development 5. Programmatic Mitigation 6. Other Changes 7. Changes Resulting From the FAST Act C. Costs and Benefits II. Acronyms and Abbreviations III. Background IV. Summary of Comments A. Specific Topics for Which FHWA and FTA Requested Comments B. Recurring Comment Themes on Major Provisions of the Rule V. Section-by-Section Discussion VI. Regulatory Analyses and Notices PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 I. Executive Summary A. Purpose of the Regulatory Action The MAP–21 transformed the Federalaid highway program and the Federal transit program by requiring a transition to performance-driven, outcome-based approaches to key areas. With respect to planning, although MAP–21 leaves the basic framework of the planning process largely untouched, the statute introduced critical changes to the planning process by requiring States, MPOs, and operators of public transportation to link investment priorities to the achievement of performance targets that they would establish to address performance measures in key areas such as safety, infrastructure condition, congestion, system reliability, emissions, and freight movement. With respect to planning, the FAST Act left the provisions from MAP–21 intact and made minor revisions to existing provisions. Accordingly, the final rule establishes that the statewide and metropolitan transportation planning processes must provide for the use of a performancebased approach to decisionmaking in support of the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301. The final rule requires that States, MPOs, and operators of public transportation establish targets in key national performance areas to document expectations for future performance and that States, MPOs, and operators of public transportation must coordinate the targets that they set for key areas. It further establishes that MPOs must reflect those targets in the MTPs and that States must reflect those targets in their long-range statewide transportation plans. The final rule establishes that the States and MPOs must each describe the anticipated effect of their respective transportation improvement programs toward achieving their targets. As MAP–21 contained new performance-related provisions requiring States, MPOs, and operators of public transportation to develop other performance-based plans and processes, the final rule establishes that States and MPOs must integrate the goals, objectives, performance measures, and targets of those other performancebased plans and processes into their planning processes. To support the effective implementation of a performance-based planning process, the final rule establishes that every MPO serving an area designated as a transportation management area (TMA) must include on its policy board an official (or officials) who is formally designated to E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations represent the collective interests of the operators of public transportation in the metropolitan planning area (MPA) and will have equal decisionmaking rights and authorities as other officials on its policy board. It also establishes the option for MPOs to use scenario planning during the development of their MTPs. Scenario planning is an analytical framework to inform decisionmakers about the implications of various investments and policies on transportation system condition and performance. To continue implementation of the MAP–21 project delivery provisions concerning coordination between the transportation planning process and the environmental review process, the final rule amends the existing planning regulations to add a reference to a new statutory process for integrating planning and the environmental review activities, but preserves other authorities for integration. It also establishes an optional framework for the States and MPOs to develop programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes. To support FAST’s minor amendments to the planning process, this final rule amends the existing planning regulations to add new planning factors for States and MPOs to consider and implement as part of the planning process. It adds ‘‘takes into consideration resiliency needs’’ to the purposes of the statewide and nonmetropolitan and the metropolitan transportation planning processes. It adds new parties that States and MPOs shall provide early and continuous involvement opportunities to in the transportation planning process and that States and MPOs shall allow to comment on the long-range statewide transportation plan and the metropolitan transportation plans. It provides MPO’s serving TMA’s with an optional framework for developing a congestion management plan, and it adds consideration of the role intercity buses may play to the long-range statewide transportation plan and the metropolitan transportation plan. It also makes reducing the vulnerability of the existing transportation infrastructure to natural disasters a part of the metropolitan transportation plan. It provides structure for the transit representation on MPOs serving TMA areas. It also provides a revised new authority for the use of planning information in the environmental review process that States and MPOs may use. The final rule also contains FAST’s requirement that long-range statewide transportation plans shall VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 include a description of performance measures and targets and shall include a system performance report. Previously under MAP–21 this requirement was a ‘‘should.’’ These new or revised provisions from the FAST Act have been included in the final rule without changing the language used in the FAST Act. B. Summary of Major Provisions and Key Changes From NPRM The final rule retains the major provisions of the NPRM with some changes based on the review and analysis of comments received. In the final rule, FHWA and FTA make the statewide, metropolitan, and nonmetropolitan transportation planning regulations consistent with current statutory requirements. The final rule establishes the following: A new mandate for States and MPOs to take a performance-based approach to planning and programming; a new emphasis on the nonmetropolitan transportation planning process, by requiring States to have a higher level of involvement with nonmetropolitan local officials and providing a process for the creation of RTPOs; a structural change to the membership of the larger MPOs; a new framework for voluntary scenario planning; new authority for the integration of the planning and environmental review processes; and a process for programmatic mitigation plans. Section references below refer to the sections of the regulatory text for title 23 of the Code of Federal Regulations (CFR). 1. Performance-Based Planning and Programming The MAP–21 transformed the Federalaid highway program and the Federal transit program by requiring a transition to a performance-driven, outcome-based program that provides for a greater level of transparency and accountability, improved project decisionmaking, and more efficient investment of Federal transportation funds.1 As part of this new performance-based approach, recipients of Federal-aid highway program funds and Federal transit funds are required to link the investment priorities contained in the Statewide Transportation Improvement Program (STIP) and Transportation Improvement Program (TIP) to achievement of performance targets. In a series of rulemakings, FHWA and FTA will establish national performance measures in key areas, including safety, infrastructure condition, congestion, 1 See, PO 00000 e.g., 23 U.S.C. 150(a). Frm 00003 Fmt 4701 Sfmt 4700 34051 system reliability, emissions, and freight movement. Sections 450.206 and 450.306 were amended to establish the requirement that States, MPOs, and operators of public transportation use these measures to establish targets in the key national performance areas to document expectations for future performance.2 The final rule further establishes that States and MPOs must coordinate their respective targets with each other to ensure consistency to the maximum extent practicable. Although proposed in the NPRM, the final rule does not require that States select and establish performance targets in coordination with Federal Lands Management agencies. The final rule requires that for transit-related targets, States and MPOs must coordinate their selection of targets relating to transit safety and transit state of good repair to the maximum extent practicable with operators of public transportation to ensure consistency with other performance-based provisions applicable to operators of public transportation. The MAP–21 performance-related provisions also require States, MPOs, and operators of public transportation to develop other performance-based plans and processes or add new requirements on existing performance-based plans and processes. These performance-based plans and processes include the Congestion Mitigation and Air Quality Improvement (CMAQ) Program performance plan, the strategic highway safety plan, the public transportation agency safety plan, the highway and transit asset management plans, and the State freight plan. Sections 450.206 and 450.306 were further amended to establish that States and MPOs integrate the goals, objectives, performance measures, and targets of these other performance plans and processes into their planning process.3 This integration would help ensure that key performance elements of these other performance plans are considered as part of the investment decisionmaking process. To provide States and MPOs with the needed flexibility to develop their approaches to integrating the performance-based plans into their planning processes as requested by multiple commenters, FHWA and FTA deleted proposed sections that would require the consideration of elements of these plans in the development of the 2 See 23 U.S.C. 134(h)(2), 23 U.S.C. 135(d)(2), 49 U.S.C. 5303(h)(2), and 49 U.S.C. 5304(d)(2). 3 See 23 U.S.C. 134(h)(2)(D), 23 U.S.C. 135(d)(2)(C), 49 U.S.C. 5303(h)(2)(D), and 49 U.S.C. 5304(d)(2)(C). E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34052 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations long-range statewide transportation plans,4 MTPs,5 TIPs,6 and STIPs.7 Section 450.208 in the NPRM and in the final rule discusses coordination of planning process activities. Section 450.208(e) of the NPRM proposed that, in carrying out the statewide transportation planning process, States shall apply asset management principles and techniques, consistent with the State Asset Management Plan for the National Highway System (NHS), the Transit Asset Management Plan, and the Public Transportation Safety Plan. Because this is not a statutory requirement and the statewide and nonmetropolitan transportation planning process is much broader than an asset management plan, FHWA and FTA changed ‘‘shall’’ to ‘‘should’’ in this provision. Section 450.208(g) in the NPRM would have required that a State integrate the goals, objectives, performance measures, and targets into the statewide transportation planning process, as appropriate from a specified list of performance-based plans—a requirement that was also listed in section 450.206(c). This requirement remains, however, the paragraph in section 450.208(g) was deleted from the final rule as it duplicates section 450.206(c)(4). Section 450.210 requires that States shall provide opportunities for public review and comment at key decision points in the transportation planning process and for nonmetropolitan local official participation in the development of the long-range State plan and the STIP. Consistent with the requirement to engage the public in the transportation planning process, FHWA and FTA added section 450.210(a)(3) to the final rule, which states that: ‘‘With respect to the setting of targets, nothing in this part precludes a State from considering comments made as part of the State’s public involvement process.’’ Section 450.314 was amended to require that MPOs identify how they will cooperatively implement these performance-based planning provisions with States and operators of public transportation. Rather than requiring a reopening of metropolitan planning agreements as proposed in the NPRM, the final rule provides the option documenting it either as part of the metropolitan planning agreements, or documenting it in some other means outside of the metropolitan planning 4 Proposed section 450.216(n). 5 Proposed section 450.324((f)(7). 6 Proposed section 450.218(o) and proposed section 450.218(r). 7 Proposed section 450.326(d) and proposed section 450.326(m). VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 agreements as determined cooperatively by the MPO(s), State(s), and providers of public transportation. Whichever option is selected, section 450.314(h) establishes that the MPO(s), the State(s), and the providers of public transportation must jointly agree upon and document in writing the coordinated processes for the collection of performance data, the selection of performance targets for the metropolitan area, the reporting of metropolitan area targets, and the reporting of actual system performance related to those targets. The documentation must also describe the roles and responsibilities for the collection of data for the NHS. Including this description is critical because of the new requirements for a State asset management plan for the NHS and establishment of performance measures and targets.8 Sections 450.216 and 450.324 discuss the development of the long-range statewide transportation plan and the MTP. In the final rule, section 450.324 was amended to establish that, once performance targets are selected by MPOs, MPOs must reflect those targets in their MTPs. As a result of FAST, the amended section 450.216 requires States to do the same. Accordingly, amended section 450.324 establishes 9 that, in their transportation plans, MPOs would need to describe these performance targets, evaluate the condition and performance of the transportation system, and report on progress toward the achievement of their performance targets.10 Amended section 450.216 requires States to include similar information in their transportation plans.11 Sections 450.216(n) and 450.324(f)(7) of the NPRM proposed that the long-range statewide transportation plan and the MTP should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plan(s). As the language is not statutory, and many commented that it could generate confusion and inconsistent enforcement, FHWA and FTA removed these subparagraphs from the final rule. However, FHWA and FTA note that the statute, section 450.206(c)(4), and section 450.306(d)(4) require that States and MPOs integrate the goals, objectives, performance measures, and targets described in other performancebased plans into their planning 8 Federal-aid Highway Risk-Based Asset Management Plan Rule for the National Highway System (NHS) [RIN 2125–AF57]. 9 See proposed sections 450.216, 450.218, 450.324 and 450.326. 10 See 23 U.S.C. 134(i)(2) and 49 U.S.C. 5303(i)(2). 11 23 U.S.C. 135(f)(7) and 49 U.S.C. 5304(f)(7). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 processes. The final rule will provide States and MPOs the flexibility to determine how to integrate the performance-based plans into their planning processes. Sections 450.218 and 450.326 were amended to establish that, as part of the State and MPO programs of projects (the STIPs and TIPs, respectively), the States and MPOs must describe, to the maximum extent practicable, the anticipated effect of the investment priorities (or their program of transportation improvement projects) toward achieving the performance targets.12 As the long-range plans, STIPs, and TIPs direct investment priorities, it is critical to ensure that performance targets are considered during the development of these documents. However, sections 450.218(r) and 450.328(d), which proposed that a STIP (and TIP) should be consistent with the strategies to achieve targets presented in other performance management plans such as the highway and transit asset management plans, the Strategic Highway Safety Plan, the public transportation agency safety plan, the CMAQ performance plan, and the State freight plan (if one exists), are not included in the final rule. The FHWA and FTA removed this paragraph in the final rule, noting that the statute and sections 450.206(c)(4) and 450.306(d)(4) require that States and MPOs integrate the goals, objectives, performance measures, and targets described in other performancebased plans into their planning processes. The FHWA and FTA wish to provide States and MPOs the flexibility to determine how State asset management plans for the NHS and public transit asset management plans are considered when STIPs and TIPs are being developed. Finally, proposed section 450.326(n) was changed to 450.326(m) in the final rule. The phrase ‘‘or funds under 49 U.S.C. 5307’’ was deleted from this paragraph as it is not consistent with FTA Circular C9030.1E, which permits section 5307 funds to be suballocated according to a formula. 2. New Emphasis on Nonmetropolitan Transportation Planning This regulation also places a new emphasis on the importance of nonmetropolitan transportation planning. This new emphasis, as proposed in the NPRM, is retained in the final rule without change. The final rule retains sections 450.208–450.210 12 See 23 U.S.C. 134(j)(2)(D), 23 U.S.C. 135(g)(4), 49 U.S.C. 5303(j)(2)(D), and 49 U.S.C. 5304(g)(4). E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 and 450.216, without alteration from the NPRM, in which State ‘‘consultation’’ with local officials or RTPOs, if applicable, was changed to ‘‘cooperation’’ and States have the option to establish and designate RTPOs to conduct transportation planning in nonmetropolitan areas. Section 450.210(d)(1) provides the option that a State may establish an RTPO which shall be a multijurisdictional organization of nonmetropolitan local officials or their designees who volunteer for such organizations and representatives of local transportation systems who volunteer for such organizations. The FHWA and FTA note that the establishment of an RTPO by a State is optional and that a State can choose to retain its existing rural planning organizations (RPO). However, the final rule affirms that in order to be treated as an RTPO under this regulation, any existing regional planning organization must be established and designated as an RTPO under the provisions of this section. The final rule describes its required structure and responsibilities. Related to the new emphasis on nonmetropolitan transportation planning, FHWA and FTA did not include the proposed change to the definition of ‘‘consideration’’ in section 450.104. Multiple commenters noted that to require States and MPOs to take into account the consequences, in addition to the opinions, actions, and relevant information from other parties when making a decision or determining a course of action, would be extraordinarily burdensome and with limited benefit. The FHWA and FTA also corrected sections 450.216(h) and 450.218(c) to refer to the new requirements for a cooperative process in section 450.210. and is unchanged. The new section 450.310(d)(3) requires that representation by operators of public transportation be added to this list of officials. The final rule establishes that every MPO that serves an area designated as a TMA must include an official (or officials) who is formally designated to represent the collective interests of the operators of public transportation in the MPA and will have equal decisionmaking rights and authorities as other officials on its policy board. Related to this requirement, FHWA and FTA did not include the proposed definitions for ‘‘local official’’ and ‘‘major modes of transportation’’ in the final rule. As the NPRM already included a definition of ‘‘nonmetropolitan local official,’’ and section 450.310 identifies ‘‘local elected official,’’ FHWA and FTA deleted the definition of ‘‘local official.’’ With respect to ‘‘major modes of transportation,’’ FHWA and FTA concur with comments that the definition is overly broad and could be read to include all forms of transportation, including non-major modes, and that MPOs are in the best position to define what constitutes a major mode of transportation in their respective MPAs. The FHWA and FTA will continue to work with each MPO to determine what major modes exist in their MPA so that they are included appropriately in the MPO structure. The second change in section 450.324 of the final rule provides that MPOs may use scenario planning during the development of their plans. Scenario planning is an analytical framework to inform decisionmakers about the implications of various investments and policies on transportation system condition and performance during the development of their plan. 3. Additions to the Metropolitan Planning Process The MAP–21 made two changes specific to the metropolitan planning process to support the effective implementation of performance-based approach to planning and programming. The first change affects the policy board structure of large MPOs. For each MPO serving a TMA, the planning statutes and this final regulation identify a list of government or agency officials that must be on that policy board. The June 2, 2014, FHWA and FTA Guidance on Transit Representation on the TMA MPO 13 is superseded by revisions to section 450.310 in the final rule. Section 450.310(d)(3) in the NPRM became section 450.310(d)(4) in the final rule 4. Use of Planning Products in Project Development In addition to changing the planning statutes, the MAP–21 and FAST made changes to project delivery provisions concerning coordination between the transportation planning process and the environmental review process. The FHWA and FTA have long supported the use of planning products and decisions during the environmental review process, an approach referred to as Planning and Environmental Linkages (PEL). Under PEL, Federal agencies use and rely on planning analyses, studies, decisions, or other information for the project development and environmental review of transportation projects. With PEL, FHWA and FTA may, for example: Establish a project’s purpose and need 13 79 FR 31214. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 34053 by relying on the goal and objective developed during the planning process; eliminate the need to further consider alternatives deemed to be unreasonable by relying on analyses conducted to evaluate the alternatives during planning; rely on future land use plans as a source of information for the cumulative impacts analysis required under National Environmental Policy Act (NEPA); carry forward suitable mitigation measures and approaches identified through the planning process; or establish the modal choice selections for the consideration of reasonable alternatives to address the identified need, provided that such strategies are consistent with NEPA for the particular project. The final rule explicitly recognizes a variety of PEL methods that may be used to integrate planning with environmental reviews. The PEL provisions are in sections 450.212 and 450.318. Only sections 450.212(d) and 450.318(e) are new provisions, added as a result of the PEL authority created in the MAP–21 and substantially amended in FAST. In the final rule, sections 450.212(a) and 450.318(a) describe the PEL approach developed by FHWA and FTA, based on NEPA regulations, guidance, and case law. Sections 450.212(b) and 450.318(b) retain the prior rule’s provisions on using documents and other source materials through incorporation by reference pursuant to NEPA regulations at 40 CFR 1502.21. Sections 450.212(c), 450.318(c), and 450.318(d) keep language from the prior rule addressing integration by means of agreement of the NEPA lead agencies, including the use of tiering, incorporation of planning corridor or subarea studies into the NEPA document, and other means. Sections 450.212(c) and 450.318(d) retain the prior rule’s description of the non-binding guidance in Appendix A to part 450, which discusses the integration of planning and environmental reviews. The FHWA and FTA made minor revisions to Appendix A in the final rule. These revisions include deleting the text in the response to question 16 that describes 49 U.S.C. 5313(b) funds as an eligible source of funds for conducting environmental studies and analyses within transportation planning. This change was made because 49 U.S.C. 5313(b) funds are not an eligible source of planning funds for conducting environmental studies and analyses within transportation planning. In another revision to Appendix A in the final rule, under the response to question 18, FHWA and FTA have E:\FR\FM\27MYR3.SGM 27MYR3 34054 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 updated the number of positions that were being funded with Federal and State funds to support focused and accelerated project review by a variety of local, State, and tribal agencies from 246 positions (as of 2003) to over 200 positions (as of 2015). This change was made to update the number of positions funded to accelerate project review at local, State, tribal, and Federal agencies to reflect more recent information. The FHWA and FTA have added language in 450.212(c) and 450.318(d) to clarify that Appendix A applies only to PEL authorities in sections 450.212(a)–(c) and 450.318(a)–(c). Sections 450.212(d) and 450.318(e) add a reference to the statutory provision, 23 U.S.C. 168, added by MAP–21 and amended by FAST. The numbering for the new provisions is different in the final rule than in the NPRM. This is because sections 450.318(d) of the prior rule was deleted, as proposed in the planning NPRM. In addition, FHWA and FTA replaced the text from the PEL NPRM and in its place inserted references to the section 168 provisions. 5. Programmatic Mitigation Sections 450.214 and 450.320 discuss an optional framework for developing programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes. The FHWA and FTA have largely retained the language in the NPRM for these sections, with the exception of a few changes. In sections 450.214 and 450.320, additional language has been added to make it clear that this provision for developing programmatic mitigation plans as part of the statewide or the metropolitan transportation planning process is optional. In sections 450.214(a)(2)(ii) and 450.320(a)(2)(ii), the final rule added archeological resources to the list of examples of resources in the NPRM that may be identified in a programmatic mitigation plan. In the same paragraph, the phrase ‘‘threatened or endangered species critical habitat’’ has been corrected from the NPRM to read ‘‘threatened and endangered species and critical habitat’’ in the final rule. In sections 450.214(a)(2)(iii) and 450.320(a)(2)(iii), the final rule added stormwater to the list of examples of resource categories described in the NPRM for existing or planned environmental resource banks that may be identified in a programmatic mitigation plan. New language has been added in sections 450.214(f) and 450.320(f) of this section to make it clear that a programmatic mitigation plan may be developed as part of, or separately from, the planning VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 process and that a programmatic mitigation plan developed separately from the planning process under another authority may be adopted in the statewide or metropolitan planning process. Section 1306 of FAST amends 23 U.S.C. 169(f) to change ‘‘may use’’ to ‘‘shall give substantial weight to’’ and changes ‘‘any other environmental laws and regulations’’ to ‘‘other Federal environmental law’’ such that a Federal agency responsible for environmental reviews ‘‘shall give substantial weight to’’ the recommendations in the programmatic mitigation plan when carrying out its responsibilities under NEPA or ‘‘other Federal environmental law.’’ Sections 450.214(d) and 450.320(d) of the final rule are amended to reflect these changes. 6. Other Changes The definitions for ‘‘conformity’’ and ‘‘consideration’’ proposed in the NPRM were amended in the final rule. 7. Changes Resulting From the FAST Act Sections 450.200 and 450.300 add intermodal facilities that support intercity transportation including intercity bus facilities and commuter van pool providers to the purposes of the statewide and metropolitan transportation planning processes. Sections 450.200 and 450.300 add a new requirement to take into consideration resiliency needs to the purposes of the statewide and nonmetropolitan and the metropolitan transportation planning processes. Sections 450.206(a)(9) and (10) and 450.306(b)(9) and (10) add two new planning factors to the scope of the statewide and nonmetropolitan and the metropolitan transportation planning processes that States and MPOs shall consider and implement: Improve resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and enhance travel and tourism. Section 450.210(a)(1)(i) adds public ports and intercity bus operators to the list of entities that a State shall provide public involvement opportunities to as part of the statewide and nonmetropolitan transportation planning process. Section 450.216(b) adds that the long-range statewide transportation plan shall include consideration of the role of intercity buses may play in reducing congestion, pollution, and energy consumption. In section 450.216(l)(2), public ports has been added to the list of interested parties that a State shall provide a reasonable opportunity to comment on PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 the proposed long-range statewide transportation plan exactly as described in FAST section 1201 (23 U.S.C. 135(f)(3)(A)(ii)). Also, in section 450.216(l)(2), examples of providers of private providers of public transportation have been added to the final rule exactly as described in FAST section 1202 (23 U.S.C. (f)(3)(A)(ii)) including intercity bus operators, employer based cash-out program, shuttle program, or telework program. Sections 450.216(f)(1) and (2) provide that States shall include a description of performance measures and targets and a system performance report in the longrange statewide transportation plan (previously under MAP–21 this was a ‘‘should’’). Section 1306 of FAST amends 23 U.S.C. 169(f) to change ‘‘may use’’ to ‘‘shall give substantial weight to’’ and changes ‘‘any other environmental laws and regulations’’ to ‘‘other Federal environmental law’’ such that a Federal agency responsible for environmental reviews ‘‘shall give substantial weight to’’ the recommendations in the programmatic mitigation plan when carrying out its responsibilities under NEPA or ‘‘other Federal environmental law.’’ Sections 450.214(d) and 450.320(d) of the final rule are amended to reflect these changes exactly as discussed in section 1306 of FAST. Sections 450.316(a) and (b) provide that MPOs must provide public ports with a reasonable opportunity to comment on the MTP. Section 450.316(b) provides that MPOs should consult with officials responsible for tourism and natural disaster risk reduction when developing MTPs and TIPs. Section 450.322 provides an optional framework for an MPO serving a TMA to develop a congestion management plan (the requirement for a congestion management process for MPOs serving a TMA has been retained). Section 450.324(f)(7) adds a new requirement to assess capital investment and other strategies that reduce the vulnerability of the existing transportation infrastructure to natural disasters to the MTP. Section 450.324(f)(8) adds consideration of the role intercity buses may play in reducing congestion, pollution, and energy consumption as part of the MTP. Section 450.324(j) adds public ports to the list of entities a MPO shall provide opportunity to comment on the MTP and also adds a list of examples of private providers of transportation. In making the changes to the final rule based on the amendments to 23 U.S.C. 134 and 135 from FAST, FHWA and FTA have used the exact language in the regulations that was used in the Act, E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations 34055 and have included it in the final rule without alteration. TABLE 1—SUMMARY OF KEY CHANGES FROM THE PLANNING NPRMS TO THE FINAL RULE Topic Performance-Based Programming. NPRM section(s) Planning and Key changes from NPRMs to final rule 450.206(c) ............................. Coordination of the planning process—the requirement that the State should select and establish performance targets in coordination with Federal Lands Management agencies in section 450.206(c) was deleted. Coordination of the planning process—In section 450.208(g), the requirement that the State shall integrate other performance-based plans into the statewide planning process was deleted as it is already covered in the scope of the planning process in section 450.206(c)(4). Interested parties—In section 450.210(a), additional language was added in section 450.210(a)(3): ‘‘With respect to the setting of targets, nothing in in this part precludes a State from considering comments made as part of the State’s public involvement process.’’ Development and content of the STIP and TIP—In sections 450.218(r) and 450.328(d), the requirement that the discussion in the STIP and TIP be consistent with the strategies to achieve targets presented in other performance management plans such as the highway and transit asset management plans, the Strategic Highway Safety Plan (SHSP), the public agency safety plan, the CMAQ performance plan, and the State freight plan (if one exists) was deleted. Metropolitan Planning Agreements —Proposed changes to sections 450.314(a), (e), and (g) were deleted and replaced by new section 450.314(h) which requires States, MPOs, and operators of public transportation to cooperatively develop and include specific provisions for cooperatively developing and sharing information related to transportation performance data, the selection of performance targets, the reporting of performance targets, the reporting of performance, and data collection for the State asset management system for the NHS as part of the metropolitan planning agreement or in some mutually agreed upon and documented means. The June 2, 2014 FHWA/FTA Guidance on Transit Representation on a TMA MPO published with the NPRM is superseded by revisions to section 450.310 this final regulation. 450.208(g) ............................. 450.210(a)(3) ........................ 450.218(r), 450.328(d) .......... 450.314(a), (e), and (g) ........ Additions to the Metropolitan Planning Process. New Authority for Using Planning Information in the Environmental Review Process. Programmatic Mitigation Plans .......... 450.310 and June 2, 2014 FTA/FHWA Guidance on Transit Representation on a TMA MPO. 450.212(d), 450.318(e) ......... 450.214 and 450.320 ............ 450.214(a)(2)(iii) and 450.320(a)(2)(iii). 450.214(b, d, and f) and 450.320(b, d, and f). 450.214(a)(2)(ii and iii) and 450.320(a)(2)(ii and iii). Other Changes (Asset Management) 450.208(e) ............................. 450.218(o), 450.326(m) ........ mstockstill on DSK3G9T082PROD with RULES3 450.216(n), 450.324(f)(7) ...... Other Changes (misc.) ...................... 450.104 ................................. 450.324(a) ............................. 450.326(n) ............................. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 PO 00000 Frm 00007 Added a reference to the additional PEL authority in 23 U.S.C. 168. Language was added to clarify that developing programmatic mitigation plans as part of the statewide or the metropolitan transportation planning process is optional. Stormwater was added to the list of examples of environmental resource categories described in the NPRM that may be identified in a programmatic mitigation plan. Changed to make it clear that a State or MPO may adopt a programmatic mitigation plan(s) that is developed outside of the planning process. Archeological resources was added to the list of examples of resources that may be identified in a programmatic mitigation plan. The phrase ‘‘endangered species critical habit’’ was corrected to read ‘‘endangered species, and critical habitat.’’ Coordination of Planning Process Activities—‘‘shall’’ was changed to ‘‘should’’ (‘‘In carrying out the statewide transportation planning process, States ‘‘should’’ apply asset management principles consistent with the NHS Asset Management Plan, the Transit Asset Management plan, and Public Transportation Agency Safety Plan . . .’’). Development and content of the STIP (section 450.218(o)) and TIP (section 450.326(m))—The phrase ‘‘The STIP and TIP should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plan(s) . . .’’ was deleted. Development and content of the long-range statewide transportation plan (450.216(n)) and Development and content of the MTP (450.324(f)(7))—The phrase ‘‘. . . long-range statewide transportation plans and metropolitan transportation plans should be informed by the financial plan and the investment strategies from the asset management plan for the NHS and investment priorities of the public transit asset management plans(s) . . .’’ is deleted from the final rule. Definitions—The proposed definitions for local official and for major modes of transportation are deleted from the final rule. The proposed definitions for, conformity, and consideration are amended in the final rule. The word ‘‘minimum’’ is added to the phrase a transportation plan addressing no less than a ‘‘minimum’’ 20-year planning horizon. Sec. 450.326(n) becomes 450.326(m) in the final rule and the phrase ‘‘or funds under 49 U.S.C. 5307’’ is deleted. Fmt 4701 Sfmt 4700 E:\FR\FM\27MYR3.SGM 27MYR3 34056 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations TABLE 1—SUMMARY OF KEY CHANGES FROM THE PLANNING NPRMS TO THE FINAL RULE—Continued Topic NPRM section(s) Key changes from NPRMs to final rule Other Changes (from FAST) ............. 450.200 and 450.300 ............ Intermodal facilities that support intercity transportation, including intercity bus facilities and commuter van pool providers is added to the purpose of the statewide and metropolitan multimodal transportation planning processes. Adds ‘‘takes into consideration resiliency needs’’ to the purpose of the statewide and nonmetropolitan and the metropolitan transportation planning processes. Two new planning factors are added to the scope of the statewide and nonmetropolitan and the metropolitan transportation planning processes: (Improve resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and enhance travel and tourism). Public ports and intercity bus operators are added to the list of entities that a State shall provide early and continuous public involvement opportunities as part of the statewide transportation planning process. New authority for using planning information in the environmental review process, sections 450.212(d) and 450.318(e) are added to reference FAST section 1305 (23 U.S.C. 168). Programmatic mitigation plans—changes ‘‘may use’’ to ‘‘shall give substantial weight to’’ and changes ‘‘any other environmental laws and regulations’’ to ‘‘other Federal environmental law’’—A Federal agency responsible for environmental reviews ‘‘shall give substantial weight to’’ the recommendations in the programmatic mitigation plan when carrying out its responsibilities under the National Environmental Policy Act of 1969 or ‘‘other Federal environmental law.’’ Development and content of the long-range statewide transportation plan and the metropolitan transportation plan. Section 450.216(b) adds requirement for consideration of the role of intercity buses in reducing congestion, pollution, and energy consumption as part of the long-range statewide transportation plan. Section 450.216(f)(1) and (2) ‘‘should’’ becomes ‘‘shall’’—The statewide transportation plan ‘‘shall’’ include a description of performance measures and targets and shall include a system performance report. Section 450.216(l)(2) adds public ports to the list of entities States shall provide a reasonable opportunity to comment on the plan and adds examples of private providers of transportation. Section 450.324(f)(2) adds public transportation facilities and intercity bus facilities to the list of existing and proposed transportation facilities to be included in the metropolitan transportation plan. Section 450.324(f)(7) adds ‘‘reduce the vulnerability of the existing transportation infrastructure to natural disasters’’ to the assessment of capital investment and other strategies to preserve the existing and projected future metropolitan transportation infrastructure in the metropolitan transportation plan. Section 450.324(f)(8) adds consideration of the role intercity buses may play in reducing congestion, pollution, and energy consumption as part of the metropolitan transportation plan. Section 450.324(j) adds public ports to the list of entities that an MPO shall provide a reasonable opportunity to comment on the metropolitan transportation plan. Section 450.324(j) adds a list of examples of private providers of transportation. Describes TMA MPO structure. Interested parties, participation, and consultation. Section 450.316(a)—adds public ports to the list of entities that an MPO shall provide a reasonable opportunity to comment on the metropolitan transportation plan. Section 450.324(j) adds a list of examples of private providers of transportation. Section 450.316(b)—adds officials responsible for tourism and natural disaster risk reduction to the list of agencies and officials that an MPO should consult with in developing metropolitan transportation plans and TIPs. Congestion management process. Adds a list of examples in section 450.322(a) of travel demand reduction strategies. Adds job access projects as a congestion management strategy. Adds new section 450.322(h)—A MPO serving a TMA may develop a congestion management plan. 450.206(a)(9 and 10) and 450.306(b)(9 and 10). 450.210(a)(1)(i) ..................... 450.212(d) and 450.450.318(e). 450.214(d) and 450.320(d) ... 450.216 and 450.324 ............ 450.310(d) ............................. 450.316 ................................. 450.322 ................................. mstockstill on DSK3G9T082PROD with RULES3 C. Costs and Benefits The FHWA and FTA estimated the incremental costs associated with the new requirements in the final rule that represent a change to current planning practices for States, MPOs, and operators of public transportation. The FHWA and FTA derived the costs by assessing the expected increase in the VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 level of effort and costs associated with carrying out several specific transportation planning functions, such as the development of metropolitan and statewide long-range transportation plans, TIPs, and STIPs. The changes in the final rule that are related to environmental reviews are optional and would not have a significant cost impact PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 for States, MPOs, or operators of public transportation. It is anticipated that these optional environmental streamlining provisions could result in costs savings by minimizing the potential duplication of planning and environmental processes and by improved project delivery timeframes. E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations To estimate the incremental costs associated with the new requirements in the final rule that represent a change to current planning practices, FHWA and FTA assumed that implementing the performance-based planning provisions would increase the costs of preparing State and MPO long-range plans, TIPs, and STIPs by an average of 15 percent, based on an analysis of current costs and discussions with States and MPOs that have implemented a performancebased approach to transportation planning and programming. Following this approach, FHWA and FTA estimate the updated total cost for implementation of the changes to the planning process resulting from the final rule is $30.9 million annually (as compared to the estimate of $30.8 million in the NPRM). To implement the changes in support of a more efficient, performance-based planning process, FHWA and FTA estimate that the aggregate increase in costs attributable to the final rule for all 50 States, the District of Columbia, and Puerto Rico and 409 MPOs is approximately $28.4 million per year (as compared to the estimate of $28.3 million in the NPRM). These costs are primarily attributed to an increase in staff time needed to meet the new requirements. For the estimated 600 operators of public transportation that operate within MPAs, the total cost would be $2.5 million per year to coordinate with MPOs in their selection of performance targets for transit state of good repair and transit safety. The FHWA and FTA updated the total cost estimate for the changes made from the NPRM to the final rule based on additional information on the number of MPOs that was not available at the time the NPRM was issued. The costs are revised for the final rule because FHWA and FTA assumed in the NPRM that there would be 420 MPOs (210 TMA MPOs and 210 non-TMA MPOs) after the 2010 census. This assumption was based on the fact that there were 384 existing MPOs at the time in addition to 36 new urbanized areas resulting from the 2010 census. The actual number of MPOs has turned out to be slightly lower (201 TMA MPOs and 208 non- TMA MPOs) because several of the new urbanized areas resulting from the 2010 census merged into existing MPOs instead of forming new MPOs. The costs were also adjusted for inflation from 2012 to 2014. The FHWA and FTA expect that the final rule changes to the planning process will result in some significant benefits, including improved decisionmaking through increased transparency and accountability, and support of the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301. The final rule would promote transparency by requiring the establishment of performance targets in key areas, such as safety, infrastructure condition, system reliability, emissions, and congestion and by expressly linking investment decisions to the achievement of such targets. This would be documented in plans or programs developed with public review. The FHWA and FTA expect that the planning process would become more transparent as investments of Federal funds would be based on a decisionmaking process that is focused on transportation system performance, and the specific transportation system performance goals, measures, and targets that drive investment decisions would be known to the public, elected officials, and other interested parties. The proposal would establish accountability through mandating reports on progress toward meeting those targets. In addition, FHWA and FTA expect that these regulatory changes would make the planning process more accountable by having States, MPOs, and operators of public transportation identify desired transportation system performance outcomes related to the national performance areas and that investments made would be more focused on achieving these system performance outcomes. Other elements of the final rule would improve decisionmaking, such as including representation by operators of public transportation on each MPO that serves a TMA, establishing agreements in metropolitan areas identifying roles and responsibilities for performance-based 34057 planning, requiring States to have a higher level of involvement with nonmetropolitan local officials, and providing an optional process for the creation of RTPOs. The FHWA and FTA have not been able to locate data or empirical studies to assist in monetizing or quantifying the benefits of the final rule. Estimates of the benefits of the final rule would be difficult to develop. Therefore, in order to evaluate benefits, FHWA and FTA used a break-even analysis as the primary approach to quantify benefits. The approach determines the point at which benefits from the final rule exceed the annual costs of compliance. The total annual MAP–21 funding programmed through this process in FY 2014 is $37.8 billion in FHWA funds and $10.7 billion in FTA funds. Under FAST, the total annual funding programmed through this process in FY 2016 is $39.7 billion in FHWA funds and $11.7 billion in FTA funds. The annual average cost for implementing this regulation is estimated to be $30.9 million per year. If return on investment increases by at least 0.064 percent of the combined FHWA and FTA annual funding programs, the benefits of the regulation exceed the costs. The total Federal, State, and local cost in FY 2014 of the planning program is $1,493,868,000. Generally, 80 percent of these eligible costs are directly reimbursable through Federal transportation funds allocated for metropolitan planning (23 U.S.C. 104(d) and 49 U.S.C. 5305(f)) and for State planning and research (23 U.S.C. 505 and 49 U.S.C. 5305(f)). States, MPOs, and operators of public transportation have the flexibility to use some FHWA Federal capital funds or some FTA formula program funds for transportation planning (23 U.S.C. 133(b)(1), 49 U.S.C. 5307(a)(1)(B), and 5311(B)(1)(A)). As the cost burden of the final rule is estimated to be 2.5 percent of the total planning program, FHWA and FTA believe the economic impact is minimal and the benefits of implementation outweigh the costs. The table below is a summary of the costs and benefits calculated for the final rule. mstockstill on DSK3G9T082PROD with RULES3 TABLE 2—SUMMARY OF AVERAGE ANNUAL REGULATORY COSTS AND BURDEN HOURS OF EFFORT DUE TO THE CHANGES IN THE REGULATIONS RESULTING FROM MAP–21 [2014 dollars] Total additional cost Entity TMA MPOs (201) ......................................................................................................................... VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 $18,141,200 E:\FR\FM\27MYR3.SGM 27MYR3 Non-Federal share (20%) $3,628,200 Average additional person hours per agency 1,800 34058 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations TABLE 2—SUMMARY OF AVERAGE ANNUAL REGULATORY COSTS AND BURDEN HOURS OF EFFORT DUE TO THE CHANGES IN THE REGULATIONS RESULTING FROM MAP–21—Continued [2014 dollars] Total additional cost Entity Non-Federal share (20%) Average additional person hours per agency Non-TMA MPOs (208) ................................................................................................................. States (50), the District of Columbia, and Puerto Rico ............................................................... Operators of Public Transportation (600) .................................................................................... 3,990,500 6,257,800 2,510,000 798,100 1,251,600 502,000 400 2,400 100 Total ...................................................................................................................................... 30,899,500 6,179,900 ........................ II. Acronyms and Abbreviations mstockstill on DSK3G9T082PROD with RULES3 Acronym Full name 3–C .............................................. AASHTO ...................................... AK DOT ....................................... AMPO .......................................... AOG ............................................. APTA ........................................... ARC ............................................. ARTBA ......................................... ASHTD ........................................ Assoc. .......................................... BART ........................................... CAA ............................................. CALTRANS ................................. CEDS ........................................... CEQ ............................................. CFR ............................................. CMAQ .......................................... CMP ............................................. CO DOT ...................................... COG ............................................ CT DOT ....................................... DC DOT ....................................... DOT ............................................. DRCOG ....................................... DVRPC ........................................ EA ................................................ EDD ............................................. EGA ............................................. EIS ............................................... EJ ................................................ EO ............................................... EPA ............................................. FAST Act ..................................... FFGA ........................................... FHWA .......................................... FL DOT ........................................ FMATS ........................................ FONSI .......................................... FRESC ........................................ FTA .............................................. FY ................................................ GA DOT ....................................... GIS .............................................. H–GAC ........................................ HI DOT ........................................ HSIP ............................................ HUD ............................................. IA DOT ........................................ IAC ............................................... ID DOT ........................................ ISTEA .......................................... ITS ............................................... KY TC .......................................... MAP–21 ....................................... MARC .......................................... VerDate Sep<11>2014 18:54 May 26, 2016 Cooperative, Continuous, and Comprehensive. American Association of State Highway and Transportation Officials. Alaska Department of Transportation. Association of Metropolitan Planning Organizations. Association of Governments. American Public Transportation Association. Atlanta Regional Commission. American Road & Transportation Builders Association. Arkansas State Highway and Transportation Department. Association. Bay Area Rapid Transit. Clean Air Act. California Department of Transportation. Comprehensive Economic Development Strategies. Council on Environmental Quality. Code of Federal Regulations. Congestion Mitigation and Air Quality Improvement Program. Congestion Management Process. Colorado Department of Transportation. Council of Governments. Connecticut Department of Transportation. District of Columbia Department of Transportation. Department of Transportation. Denver Regional Council of Governments. Delaware Valley Regional Planning Commission. Environmental Assessment. Economic Development District. Expedited Grant Agreement. Environmental Impact Statement. Environmental Justice. Executive Order. Environmental Protection Agency. Fixing America’s Surface Transportation Act. Full Funding Grant Agreement. Federal Highway Administration. Florida Department of Transportation. Fairbanks Metropolitan Area Transportation System. Finding of No Significant Impact. Front Range Economic Strategy Center. Federal Transit Administration. Fiscal Year. Georgia Department of Transportation. Geographic Information Systems. Houston-Galveston Area Council. Hawaii DOT. Highway Safety Improvement Program. Housing and Urban Development. Iowa Department of Transportation. Interagency Consultation. Idaho Department of Transportation. Intermodal Surface Transportation Efficiency Act of 1991. Intelligent Transportation System. Kentucky Transportation Cabinet. Moving Ahead for Progress in the 21st Century Act. Mid-America Regional Council. Jkt 238001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 Acronym Full name MA DOT ...................................... MAG ............................................ MD DOT ...................................... ME DOT ...................................... MT DOT ....................................... MI DOT ........................................ MN DOT ...................................... MO DOT ...................................... MPA ............................................. MPO ............................................ MTA ............................................. MTC ............................................. MTP ............................................. NAAQS ........................................ NACTO ........................................ NADO .......................................... NARC .......................................... NARP ........................................... NCCOG ....................................... NC DOT ....................................... NCHRP ........................................ NCTCOG ..................................... NDDOT ........................................ NEPA ........................................... NHPP ........................................... NHS ............................................. NIRPC ......................................... NJ DOT ....................................... NJ Transit .................................... NJTPA ......................................... NPRM .......................................... NRDC .......................................... NYMTA ........................................ NYMTC ........................................ NYS DOT .................................... OK DOT ....................................... OMB ............................................ OR DOT ...................................... PA DOT ....................................... PEL .............................................. PL ................................................ PM 10 .......................................... PM 2.5 ......................................... PRA ............................................. PSRC ........................................... RDC ............................................. RDD ............................................. RI DOT ........................................ RIA ............................................... RIN .............................................. RMAP .......................................... ROD ............................................. RPC ............................................. RPDC .......................................... RPO ............................................. RTC ............................................. RTD ............................................. RTPO ........................................... SACOG ........................................ SAFETEA–LU .............................. SANDAG ..................................... SASHTO ...................................... SCAG .......................................... SCCRTC ...................................... SCVTA ......................................... SD DOT ....................................... SDAG .......................................... SE WI MPO ................................. Seattle DOT ................................. SELC ........................................... SEMCOG ..................................... SFRTA ......................................... SHSP ........................................... SIP ............................................... VerDate Sep<11>2014 18:54 May 26, 2016 Massachusetts Department of Transportation. Maricopa Association of Governments. Maryland Department of Transportation. Maine Department of Transportation. Montana Department of Transportation. Michigan Department of Transportation. Minnesota Department of Transportation. Missouri Department of Transportation. Metropolitan Planning Area. Metropolitan Planning Organizations. Metropolitan Transportation Authority. Metropolitan Transportation Commission. Metropolitan Transportation Plan. National Ambient Air Quality Standards. National Association of City Transportation Officials. National Association of Development Organizations. National Association of Regional Councils. National Association of Railroad Passengers. North Carolina Councils of Governments. North Carolina Department of Transportation. National Cooperative Highway Research Program. North Central Texas Council of Governments. North Dakota Department of Transportation. National Environmental Policy Act. National Highway Performance Program. National Highway System. Northwestern Indiana Regional Planning Commission. New Jersey Department of Transportation. New Jersey Transit. North Jersey Transportation Planning Authority. Notice of Proposed Rulemakings. Natural Resources Defense Council. New York Metropolitan Transportation Agency. New York Metropolitan Transportation Council. New York State Department of Transportation. Oklahoma Department of Transportation. Office of Management and Budget. Oregon Department of Transportation. Pennsylvania Department of Transportation. Planning and Environmental Linkages. Metropolitan Planning Funds. Particulate Matter up to 10 micrometers in size. Particulate Matter up to 2.5 micrometers in size. Paperwork Reduction Act. Puget Sound Regional Council. Regional Development Commission. Regional Development District. Rhode Island Department of Transportation. Regulatory Impact Analysis. Regulation Identification Number. Rockford Metropolitan Agency for Planning. Record of Decision. Regional Planning Commission. Regional Planning and Development Commission. Rural Planning Organization. Regional Transportation Council. Regional Transportation District. Regional Transportation Planning Organization. Sacramento Area Council of Governments. Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users. San Diego Association of Governments. Southeastern Association of State Highway and Transportation Officials. Southern California Association of Governments. Santa Cruz County Regional Transportation Commission. Santa Clara Valley Transportation Authority. South Dakota Department of Transportation. San Diego Association of Governments. Southeastern Wisconsin Metropolitan Planning Organization. Seattle Department of Transportation. Southern Environmental Law Center. Southeast Michigan Council of Governments. South Florida Regional Transportation Authority. Strategic Highway Safety Plan. State Implementation Plan. Jkt 238001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\27MYR3.SGM 27MYR3 34059 34060 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations Acronym Full name SJCOG ........................................ SOV ............................................. SPR ............................................. STIP ............................................. STP .............................................. TCA ............................................. TCM ............................................. TEA–21 ........................................ TIP ............................................... TMA ............................................. TN DOT ....................................... TPO ............................................. TriMet .......................................... TTP .............................................. TX DOT ....................................... UPWP .......................................... U.S.C. .......................................... USDOT ........................................ UT DOT ....................................... UZA ............................................. VA DOT ....................................... VMT ............................................. VT DOT ....................................... WFRC .......................................... WI DOT ....................................... WMATA ....................................... WA State DOT ............................ WY DOT ...................................... San Joaquin Council of Governments. Single Occupancy Vehicles. State Planning and Research. Statewide Transportation Improvement Program. Surface Transportation Program. Transportation Corridor Agencies. Transportation Control Measure. Transportation Equity Act for the 21st Century. Transportation Improvement Program. Transportation Management Area. Tennessee Department of Transportation. Transportation Planning Organization. Tri-County Metropolitan Transportation District of Oregon. Tribal Transportation Program. Texas Department of Transportation. Unified Planning Work Program. United States Code. U.S. Department of Transportation. Utah DOT. Urbanized Area. Virginia Department of Transportation. Vehicle Miles Traveled. Vermont Department of Transportation or Vermont Agency of Transportation. Wasatch Front Regional Council. Wisconsin Department of Transportation. Washington Metropolitan Area Transit Authority. Washington State Department of Transportation. Wyoming Department of Transportation. mstockstill on DSK3G9T082PROD with RULES3 III. Background On June 2, 2014, FHWA and FTA published an NPRM at 79 FR 31784 proposing the following changes to 23 CFR part 450: That the statewide and metropolitan transportation planning processes provide for the use of a performance-based approach to decisionmaking; that each MPO that serves an area designated as a TMA include an official (or officials) who is formally designated to represent operators of public transportation in the MPA on its policy board; that MPOs be given the option to use scenario planning during the development of their MTP; that States work more closely with nonmetropolitan areas; and that States have the option of designating RTPOs to help address the planning needs of the State’s nonmetropolitan areas. It also proposed revisions to the existing PEL provisions, and an optional framework for developing programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes for States and MPOs based on 23 U.S.C. 169 as established by section 1311 of MAP–21. The public comment period for the NPRM was scheduled to close on September 2, 2014. The FHWA and FTA extended the comment period 30 days to October 2, 2014, based on concerns expressed by the American Association of State Highway & Transportation Officials (AASHTO) that the closing date did not provide VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 sufficient time to review and provide comprehensive comments (79 FR 51922). In addition, on September 10, 2014, FHWA and FTA published a separate ‘‘Section 168 NPRM’’ at 79 FR 53673 proposing to add implementing regulations for 23 U.S.C. 168, ‘‘integration of planning and environmental review,’’ at 23 CFR 450.212(d)–(f) and 450.318(f)–(h). The regulations would create an additional process for integrating planning and the environmental review activities (planning and environmental linkages) based on 23 U.S.C. 168 as established by section 1310 of MAP–21. The comment period for the section 168 NPRM closed on November 10, 2014. The final rule combines the two rulemakings, covering changes proposed in the Planning NPRM and those proposed in the Section 168 NPRM. The final rule covers the statewide and metropolitan planning processes and includes the integration of planning and environmental review and programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes for States and MPOs. A. Introduction to the Planning Process The Statewide and Nonmetropolitan Transportation Planning program and the Metropolitan Transportation Planning program provide funding to support cooperative, continuous, and comprehensive (3–C) planning for PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 making transportation investment decisions throughout each State, in metropolitan and nonmetropolitan areas. Since the Federal-Aid Highway Act of 1962, Federal authorizing legislation for the expenditure of surface transportation funds has required MTPs, long-range statewide transportation plans, and TIPs to be developed through a 3–C planning process. Over successive reauthorization cycles, including the passage of the MAP–21 in July 2012, Congress has revised and expanded the requirements for 3–C planning. B. What do the MAP–21 and the FAST do? While the MAP–21 left the basic framework of the planning process largely unchanged, it introduced transformational changes to increase transparency and accountability. Most significantly, States and MPOs must take a performance-based approach to planning and programming, linking investment decisionmaking to the achievement of performance targets. Along with its emphasis on performance-based planning and programming, MAP–21 emphasized the nonmetropolitan transportation planning process by requiring States to have a higher level of involvement with nonmetropolitan local officials and providing for the optional creation of RTPOs. The MAP–21 also made some structural changes to the membership of the MPOs that serve TMAs. Finally, MAP–21 included voluntary provisions E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations related to scenario planning, developing programmatic mitigation plans, and the use of planning products in the environmental review process. Many of these non-performance management changes codify existing best planning practices. The FAST makes minor changes to existing planning provisions. It adds two new planning factors to be considered and implemented in the planning process, it adds new stakeholders to be included in the planning process, and it substantially amends the new authority provided by MAP–21 for using planning products in the environmental review process. mstockstill on DSK3G9T082PROD with RULES3 C. Stakeholder Engagement After the publication of the NPRM on June 2, 2014, FHWA and FTA continued to engage stakeholders during the NPRM comment period. The FHWA and FTA hosted two national webinars with stakeholders on the content of the NPRM. The FHWA and FTA also responded to requests for presentations at regularly scheduled meetings or conferences of national and regional professional, industry, or advocacy organizations during the comment period of the NPRM. Those webinars and meetings provided an opportunity for FHWA and FTA to provide an overview of the NPRM and offer clarifications of selected provisions. Comments were not solicited at those meetings, and attendees were encouraged to submit all comments to the official docket. A summary of those webinars and meetings is included in the docket. IV. Summary of Comments The FHWA and FTA received a total of 162 comment letters that were submitted to the docket. Fifty-one of these comment letters were received from MPOs, 36 from States, 27 from advocacy organizations, 18 from regional planning organizations, 16 from associations representing public transportation agencies, 9 from operators of public transportation, 2 from the public, 2 from local governments, and 1 from a Tribal government. Collectively, these comment letters contained a total of approximately 989 individual comments. In addition, a total of 38 comment letters were submitted to the docket proposing to implement changes to planning and environmental linkages resulting from section 1310 of MAP–21. Fourteen of the comment letters were received from States, 9 from MPOs, 5 from advocacy groups, 4 from the public, 3 from associations representing VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 public transportation agencies, 2 from operators of public transportation, 1 from a regional planning organization, and 1 from a State environmental resource agency. Cumulatively, these comment letters contained over 100 individual comments. After reviewing the comments received in response to the two NPRMs, FHWA and FTA decided to consolidate the Planning rule and the ‘‘Additional Authorities or Planning and Environmental Linkages’’ rule into a single final rule. The FHWA and FTA believe that a consolidated final rule will help stakeholders understand the range of options for integrating planning and environmental review, including the pre-existing regulations for integrating planning and environmental review in sections 450.212 and 450.318, and the new section 168 authorities adopted in the final rule. The FHWA and FTA carefully considered the comments received from the stakeholders. The comments and summaries of analyses and determinations are discussed in the following sections. A. Selected Topics for Which FHWA and FTA Requested Comments Performance Target Setting The FTA and FHWA requested public comment on the following questions relating to target setting: (1) What obstacles do States, MPOs, and operators of public transportation foresee to the coordination among them that is necessary in order to establish targets? (2) What mechanisms currently exist or could be created to facilitate coordination? (3) What role should FHWA and FTA play in assisting States, MPOs, and operators of public transportation in complying with these new target-setting requirements? (4) What mechanisms exist or could be created to share data effectively among States, MPOs, and operators of public transportation? For those States, MPOs, and operators of public transportation that already utilize some type of performance management framework, are there best practices that they can share? Comments were received from at least 25 separate entities on these questions including AASHTO, APTA, ARC, CO DOT, CT DOT, DRCOG, FL MPO Advisory Council, H–GAC, MD DOT, MTC, MI DOT, NACTO, NJ DOT, NYS DOT, NCTCOG/RTC, the Northeast Ohio Areawide Coordinating Agency, the River to Sea Transportation Planning Organization (TPO), SACOG, SANDAG, SCAG, SJCOG, TN DOT, WMATA, and WI DOT. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 34061 What obstacles do States, MPO, and operators of public transportation foresee to the coordination among them that is necessary in order to establish targets? Several commenters noted that the establishment of performance targets will require unprecedented levels of coordination and cooperation between States, MPOs, and operators of public transportation (AMPO, H–GAC, and NCTCOG/RTC). See section IV(B) (Recurring comment themes) for detailed discussion and FHWA and FTA responses to coordination on target setting. The AMPO and ARC stated that they would prefer a single effective date for all of the MAP–21 performance measures rules to minimize confusion during the implementation of the measures and in the reporting of results. The H–GAC commented that there is potential for confusion between the target setting provisions proposed under 23 CFR 490 and 23 CFR 450. The MI DOT, MTC, SACOG, SANDAG, SCAG, SJCOG, and VA DOT stated that it is difficult to comment on the merits of the performance-based planning framework as the majority of measures and targetsetting methodologies have not yet been released. See section IV(B) (Recurring comment themes) for more discussion and responses to these comments. The MD DOT, NJ DOT, and TN DOT commented that setting performance targets will be a significant challenge in interstate MPOs that have membership in multiple States, since each State differs with respect to legal framework, resource availability, policies, goals, and priorities. The MD DOT and TN DOT indicated that it is not clear who will have the ultimate authority in establishing targets when a State or MPO cannot come to agreement. See section IV(B) (Recurring comment themes) for more discussion of this issue and FHWA and FTA responses. The MTC, SACOG, SANDAG, SCAG, and SJCOG were concerned that the future Federal performance regulations will overwhelm policymakers by diluting robust processes established on the State or regional level with the addition of more measures and targets. In response, FHWA and FTA believe that States and MPOs should utilize their existing processes to the maximum extent possible. Discussion on the specific measures and target setting under the Federal performance requirements is outside the scope of the final rule. The AMPO and ARC stated that the transition to performance-based planning will be challenging, in part E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34062 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations because different organizations have different structures and priorities, and in part because of the financial burdens of data collection and analysis. The FHWA and FTA agree that the transition to performance-based planning will be challenging. However, as discussed in section IV(B) (Recurring comment themes), interagency coordination will be key to successful implementation. The financial burdens of data collection and analysis for target setting are outside the scope of the final rule. Several commenters (ARC, NJ DOT, and TN DOT) stated that it is not uncommon for States, MPOs, and operators of public transportation to have different priorities that may conflict with each other, and that this may lead to conflicts when setting performance targets and trying to achieve them. Several MPOs commented that they have to balance multiple objectives when working with communities and that this may lead to conflicts with their State. Another commenter noted that data collection will be a major challenge that needs to be addressed by the MPOs with their local members, particularly as it relates to data needed on locally owned systems. A few commenters stated that they are concerned as to whether the analytical tools and framework will exist to allow States, MPOs, and operators of public transportation to identify realistic and attainable targets for each required measure. One operator of public transportation (WMATA) commented that there is not a uniform approach to performance management among operators of public transportation, either in setting targets or in tracking progress toward achievement of targets. In response to these comments, FHWA and FTA emphasize the importance of early and ongoing interagency coordination during performance-based planning and programming. The approach used by operators of public transportation for setting targets is outside the scope of this rule. See FHWA and FTA response below to the question on ‘‘What role should FHWA and FTA play in assisting States, MPOs, and operators of public transportation in complying with these new target-setting requirements?’’ regarding technical assistance FHWA and FTA plan to provide regarding approaches to tracking progress toward achievement of targets. What mechanisms currently exist or could be created to facilitate coordination? The ARC, CO DOT, CT DOT, Florida MPO Advisory Council, MI DOT, NYS DOT, River to Sea Transportation VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Planning Organization (TPO), and RMAP indicated that they have wellestablished, long-standing, formal forums or work groups for ongoing discussion and coordination of planning issues and topic areas among the States, MPOs, and operators of public transportation within a particular State, and that these forums typically meet on a regularly scheduled basis (i.e., monthly or quarterly). These same commenters stated that through these forums, they have built relationships between the various planning organizations within their State for successful collaboration and cooperation. The commenters further stated that these established forums are ideal for coordinating the development and implementation of performance management as part of the planning process, including data collection and analysis, performance target setting, use of analytical tools, standards and consistency, and system performance reporting. Several of the commenters stated that they are already using these established forums within their respective States for coordinating planning issues to implement performance-based planning and programming among the States, MPOs, and operators of public transportation. The Florida MPO Advisory Council commented that it has formed alliances of MPOs to address transportation planning issues at a multi-MPO level. The FHWA and FTA agree that these examples of practice provided by commenters on how to facilitate coordination are good practices and that the development and implementation of ongoing, multiagency, and multidisciplinary forums that meet on a regular basis is an ideal way to establish relationships among the States, and MPOs, and operators of public transportation within a State. The ARC commented that it has examples of mechanisms to facilitate interagency coordination such as an interagency consultation concept used for air quality planning and MPO technical committees. The FMATS commented that they want the MPO to be required to participate in the development of HSIP projects and the State Asset Management Plan for the NHS. In response to this comment, FHWA and FTA agree that it would be desirable for States to include the MPOs in the development of the projects for the Highway Safety Improvement Program (HSIP) and in the development of the State Asset Management Plan for the NHS because those plans contribute to performance-based planning and programming. However, there are separate NPRMs and rules governing PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 those documents and processes and they are outside the scope of the final rule. The FMATS also commented that the first round of performance target setting should be a joint process and facilitated by FHWA and FTA. In response, FHWA and FTA note that the final rule requires that States and MPOs coordinate during the target setting process (sections 450.206 and 450.306). The final rule also requires MPOs and operators of public transportation to coordinate target setting on transit performance measures in the metropolitan areas (section 450.306) and States must coordinate with operators of public transportation for target setting on transit performance measures outside of the metropolitan areas (section 450.206). What role should FHWA and FTA play in assisting States, MPOs, and operators of public transportation in complying with these new target-setting requirements? The ARC and CO DOT commented that FHWA and FTA could provide technical assistance and best practices or peer review summaries on a regular basis to assist the States, MPOs, and operators of public transportation in complying with the new target setting requirements. The CT DOT suggested that FHWA and FTA could provide guidance to States, MPOs, and operators of public transportation to implement the new target setting requirements. At least one commenter stated that the ability to use Federal funds for the necessary data collection efforts to support performance management is important. The CO DOT, CT DOT, Florida MPO Advisory Council, MI DOT, and NJ DOT suggested that FHWA and FTA could conduct best practices research and share the results in regional and statewide forums and with individual MPOs during transportation planning certification reviews. The Florida MPO Advisory Council and MI DOT also suggested that FHWA and FTA actively participate in established processes to set and implement performance targets in the States. Others stated that FHWA and FTA already participate in these processes in some States. The MI DOT suggested that FHWA and FTA develop training sessions to ensure that planning agencies are fully aware of all the new requirements and timelines associated with the rules. The WI DOT recommended that FHWA and FTA provide further guidance on best practices related to the coordination process among States, MPOs, and operators of public transportation. The WA State DOT suggested that FHWA E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations and FTA could provide further guidance and best practices for the coordination of data at a statewide level and that FHWA and FTA could mediate differences between States and MPOs during the target setting process by providing guidance as to the intent of the rules. The MD DOT commented that a consistent presence of FHWA and FTA in MPO meetings to help facilitate performance measures and targets discussions would be helpful. Several commenters suggested that there needs to be substantial collaborative effort by Federal and grantee stakeholders to develop common data collection and reporting processes. The MI DOT was concerned whether the analytical tools and framework exists to allow States, MPOs, and transit agencies to identify realistic and attainable targets for the national performance measures. In response, FHWA and FTA plan to provide technical assistance to the States, MPOs, and operators of public transportation through a number of means, including the issuance of guidance, conducting peer reviews and workshops, sharing best practices, and conducting training on topics such as target setting, implementation of performance-based planning and programming, interagency coordination, data collection, and performance progress reporting. Performance-based planning and programming will also become a topic of discussion at future TMA planning certification reviews. The APTA commented that FHWA and FTA should not allow these changes in the planning process to slow project development, and that these changes to the planning process should encourage accelerated project development through more consistent and complete information flow. The FHWA and FTA agree that these changes to the planning process should not slow project development and that, in fact, they may accelerate project development by providing more focus on national goal areas. The MI DOT, MTC, SACOG, SANDAG, SCAG, and SJCOG suggested that FHWA and FTA should limit the numbers of required measures. The commenters stated that fewer measures are preferable to a large number of measures. The FHWA and FTA respond that the number of performance measures that will be established is outside the scope of the final rule. What mechanisms exist or could be created to share data effectively amongst States, MPOs, and operators of public transportation? The ARC, MI DOT, and NACTO suggested that FHWA and FTA could VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 share data nationally as a mechanism to achieve consistency of effort across applications, and to reduce duplication of effort among States, MPOs, and operators of public transportation. A few commenters noted that FHWA and FTA could support the implementation of performance management by providing easy access to national data sources. The ARC commented that joint procurement and sharing of data with States and MPOs and the use of the national transit database could be methods for effectively sharing data among States, MPOs, and operators of public transportation. See also comments provided under the previous question on ‘‘What mechanisms currently exist or could be created to facilitate coordination?’’ for additional examples of mechanisms for sharing data among States, MPOs, and operators of public transportation. In response to this comment, FHWA and FTA note that sharing data nationally and providing easy access to national data sources to achieve consistency is outside the scope of this rule. For those States, MPOs, and operators of public transportation that already utilize some type of performance management framework, are there best practices that they can share? The ARC, DRCOG, MD DOT, MI DOT, MTC, SACOG, SANDAG, SCAG, and SJCOG commented that they have already implemented performancebased planning and programming and have long-standing, successful processes in place for establishing performance measures, performance targets, and reporting on progress toward achievement of performance targets. The CT DOT stated that it anticipates taking a lead role in an open process working with the MPOs and operators of public transportation on target setting since the State owns an overwhelming majority of the transportation systems affected by the MAP–21 performance measures. The CT DOT stated that it also collects, stores, and analyzes most of the data associated with those systems. The MD DOT commented that the State should have the ultimate responsibility regarding target setting within the State. The DRCOG commented that targets should be set to encourage continuous improvement rather than a concrete objective goal. The commenter further stated that establishing strict, inflexible targets encourages aiming low to achieve an arbitrary plateau not necessarily linked to quality. The DRCOG advised against project-byproject performance measures, and PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 34063 instead recommended that performance measures and targets should be applied at a system or programmatic level. At least one commenter stated that it will be important that funding is aligned with the performance targets in order to achieve them. A few commenters said that they look to utilize current database information for tracking performance measures first before developing new systems for data collection. Commenters also suggested that the framework for target setting be flexible enough to allow for an adjustment in targets, strategies, and processes as agencies learn and acquire experience with performance management. The AASHTO, AMPO, CT DOT, and H–GAC stated that there is a need for flexibility when establishing reasonable and appropriate performance targets. They further commented that it will take time to implement performance management and performance-based planning, and that there is potential for significant conflicts to arise during the development of targets. The ARC was concerned that there might be misleading comparisons on how performance results might be portrayed and interpreted. Another commenter stated that, when relying on a limited number of high level performance metrics, it may not present a comprehensive picture of the effectiveness of a region’s performance. The Florida MPO Advisory Council and MD DOT commented that MPOs should be allowed the flexibility to develop and set targets that suit the unique needs of their specific metropolitan area. In response to these comments, FHWA and FTA agree that there is a need for flexibility in setting targets. There is flexibility in that States and MPOs are responsible for setting their respective targets for the national performance areas. When setting targets for FHWA performance measures, the final rule requires States and MPOs to coordinate with each other and set targets that are consistent to the maximum extent practical. Operators of public transportation and MPOs are required to coordinate to the maximum extent practicable when setting transit performance targets. As part of coordination when setting targets, States, MPOs, and operators of public transportation should seek to minimize conflicts. This requires close coordination between the States and MPOs in areas such as the collection and use of data, use of analytical tools, setting of targets, and the identification of strategies to achieve the targets. Operators of public transportation are responsible for setting performance E:\FR\FM\27MYR3.SGM 27MYR3 34064 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 targets for the transit performance measures in metropolitan areas in coordination with the affected MPOs. Although the final rule provides MPOs up to 180 days to set targets after their State sets performance targets, FHWA and FTA strongly encourage States and MPOs to set performance targets at the same time and in coordination with each other. Transportation planning must be cooperative because no single agency has responsibility for the entire transportation system. For example, some roads that are part of the Interstate System are subject to certain standards and are usually maintained by a State. Others are county arterials or city streets which are designed, operated, and maintained by counties or local municipalities. Transit systems are often built, operated, and maintained by a separate entity. See section IV.(B.) for more discussion on interagency coordination. States and MPOs may have situations where they need to evaluate competing priorities as they make decisions about setting targets for the national performance areas. Scenario planning is one possible tool that States and MPOs can use to evaluate the effect of various scenarios on system performance in order to develop the metropolitan and statewide long-range transportation plans. The FHWA and FTA also agree with the comment that a limited number of high level performance metrics for the national performance areas may not present a comprehensive picture of the effectiveness of a region’s performance. States and MPOs are encouraged, but not required, to develop and implement additional performance measures beyond the required national measures that they feel are appropriate to meet their system planning needs. In setting targets as part of their planning process, the States and MPOs are strongly encouraged to engage many of the same stakeholders that they normally engage as part of their planning process. Regional Planning Coordination In the NPRM, FHWA and FTA sought public comment on how regional planning coordination can be further improved in situations where multiple MPOs serve one or several adjacent urbanized areas. The FHWA and FTA also sought public comment on additional mechanisms that could be created to improve regional coordination in situations where there may be multiple MPOs serving a common urbanized area or adjacent urbanized areas. Comments were submitted to the docket on these questions from nine VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 entities, including AASHTO, ARC, CO DOT, CT DOT, MD DOT, NRDC, NJ DOT, RMAP, and WI DOT. How can regional planning coordination be further improved in situations where multiple MPOs serve one or several adjacent urbanized areas? The AASHTO, CT DOT, and MD DOT suggested that FHWA and FTA develop resource documents and best practice guides to support regional planning coordination as it relates to performance management implementation, and that these resources and best practices be made available at a centralized DOT online vehicle. The MD DOT suggested that FHWA, FTA, and the National Highway and Transit Institutes provide training classes on how States and MPOs can execute and implement these requirements. The MD DOT also suggested that FHWA and FTA could provide access to professional experts to address State and MPO staff questions. The FHWA and FTA agree that training and technical support can improve the coordination of regional planning. As part of FHWA’s Every Day Counts initiative, FHWA and FTA are supporting the Regional Models of Cooperation effort, which provides a framework and process for States and MPOs to develop multijurisdictional transportation plans and agreements to improve communication, collaboration, policy implementation, technology use, and performance management across agency boundaries. See https:// www.fhwa.dot.gov/everydaycounts/edc3/regional.cfm. The FHWA and FTA are also in the process of developing a training course on performance-based planning and programming which will be available at the publication of the final rule. The FHWA Office of Transportation Performance Management (TPM) offers support and assistance to States, MPOs, and operators of public transportation implementing MAP–21 performance provisions. Examples of support include workshops on TPM, peer-to-peer exchanges and demonstration workshops, and ‘‘Let’s Talk Performance’’ Webinars, which can be found at https://www.fhwa.dot.gov/tpm/ resources/presentations.cfm. The CT DOT proposed that States and MPOs coordinate the collection and analysis of data regarding travel patterns to, through, and among adjacent MPOs. Examples would include traffic counts, household surveys, big data purchases (e.g., cell phone data) that would be beneficial to all decisionmakers. It further noted that it is coordinating efforts with local officials to reorganize the boundaries of MPOs so that they PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 more closely resemble TMA boundaries and/or major transportation corridors that meet a minimum population threshold. It also supports efforts of MPOs to work on joint projects and studies with other MPOs that share urbanized areas and transportation corridors. The NJ DOT commented that an MPO historically has led numerous multistate coordination efforts and noted that States and MPOs are assessing whether that MPO should be the lead facilitator in coordinating target setting that best serves the needs of the entire metropolitan area. What additional mechanisms could be created to improve regional coordination in situations where there may be multiple MPOs serving a common urbanized area or adjacent urbanized areas? The FHWA and FTA received comments from ARC, Florida MPO Advisory Council, and NRDC. The ARC noted that, in complex regions that have multiple urbanized areas and/or MPOs, it will be critical for the Federal partners to build on the Interagency Consultation (IAC) concept used for air quality planning in nonattainment areas. While not suggesting that existing air quality IAC groups be reconstituted and their mission changed, a similar concept could be used to coordinate setting targets for the metropolitan area. The ARC, which is located in a metropolitan statistical area with multiple urbanized areas, shared that it hosts and facilitates a number of standing technical committees, such as a Technical Coordinating Committee, comprised of staff from cities, counties, and State agencies, and a Transit Operators Subcommittee, which is composed of representatives of all operators of public transportation throughout the region. In addition, it regularly convenes working groups and task forces to meet for a specified period of time to focus on specific issues of a time sensitive nature. For example, it convened a Project Delivery Task Force to address systemic issues related to the implementation of transportation projects in its region. The ARC explained that the these task force meetings have been extremely well attended and have provided a structured and energetic forum for agencies at all levels to discuss challenges, provide constructive criticism, and offer solutions. Based on the success of this initiative, the ARC suggests that MPOs form task forces to discuss the implementation of a performance management approach to planning and programming in metropolitan areas. The NRDC encouraged that MPOs use the E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 existing consortium framework from the HUD Sustainable Communities Initiative planning process (supported by the Inter-Agency Partnership for Sustainable Communities at HUD, DOT, and EPA). The FHWA and FTA applaud MPO efforts to coordinate their technical and decisionmaking processes and note that the final rule will provide States, MPOs and operators of public transportation with the flexibility to determine how best they can work together to implement a performance-based approach to planning and programming and the agility to adjust their roles and responsibilities as they implement their approaches. Under section 450.314 (Metropolitan Planning Agreements), MPOs will be required to identify, through either an updated metropolitan planning agreement, an MOU, or adopted operating procedures, the coordinated processes for the collection of performance data, the selection of performance targets for the metropolitan area, the reporting of metropolitan area targets, the reporting of actual system performance related to those targets, and the roles and responsibilities for the collection of data for the NHS. While beyond the scope of this rulemaking, NRDC endorsed the provisions under section 1202 of DOT’s GROW AMERICA Act proposal which are intended to align MPO boundaries with metropolitan statistical areas. They noted that this would have multiple benefits in areas where a consolidated planning structure would continue the efficacy of the MPO as it would allow for more coordinated planning, optimize the use of scarce resources for planning, and allow for easier use of data sets due to a match between governance and statistical units of geography. B. Recurring Comment Themes on Major Provisions of the Rule This section contains a consolidated summary of comments and FHWA and FTA responses on major provisions of the rule. The key topic areas covered in this section include: State, MPO, and operator of public transportation coordination on performance-based planning and programming; traditionally underserved populations, environmental justice (EJ), Title VI of the Civil Rights Act of 1964 (as amended), equity, and the transportation planning process; asset management and the transportation planning process; common effective date and phase-in of new requirements; and other changes proposed by commenters. This section is written in narrative format with the exception of the discussion on traditionally VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 underserved populations, EJ, Title VI of the Civil Rights Act of 1964 (as amended), equity, and the transportation planning process which, because of the level of detail, specificity, and uniqueness of the individual comments on the topic area, FHWA and FTA have organized in a comment and response format for ease of providing clarity in the responses. • State, MPO, and Operator of Public Transportation Coordination on Performance-Based Planning and Programming At least 48 commenters provided comments on the topic of coordination (Albany MPO, AASHTO, AMPO, APTA, ARC, Board of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC DOT, DRCOG, DVRPC, FMATS, FL DOT, Florida MPO Advisory Council, HI DOT, H–GAC, IA DOT, MAG, MARC, Miami-Dade MPO, MT DOT, MTC, NACTO, NARC, NJTPA, North Florida TPO, NYMTC, (NYMTA), New York State Association of MPOs, NYS DOT, OR DOT, PA DOT, River to Sea TPO, SACOG, SANDAG, San Luis Obispo Council of Governments (COG), SCCRTC, SCAG, SJCOG, SEMCOG, Transportation for America, TX DOT, WA State DOT, and Wilmington MPO)) as it relates to coordination among States, MPOs, and operators of public transportation on the new requirements for performance-based planning and programming. Twenty-five of the commenters were from MPOs, 13 were from States, 8 were from associations, 1 was from an operator of public transportation, and 1 was from an advocacy organization. The comments were received on several sections in the NPRM, including sections 450.206, 450.208, 459.216, 450.218, 450.306, 450.314, 450.324, and 450.326. These sections include the scope of the statewide and metropolitan planning processes, coordination of the statewide transportation planning process, metropolitan planning agreements, development and content of the STIP and TIP, and development and content of the long-range statewide transportation plan and the MPO MTP. The Federal-Aid Highway Act of 1962 set forward requirements for a 3–C transportation planning process in metropolitan areas. Subsequent acts required the designation of an MPO by the Governor and local officials in census designated urbanized areas. The 1993 planning regulations that resulted from the 1991 passage of ISTEA added provisions for cooperatively developed, written metropolitan planning agreements that outline the planning PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 34065 roles and responsibilities of the States, MPOs, and operators of public transportation in metropolitan areas. Section 450.306(a) continues the longstanding requirement that MPOs are required to conduct the metropolitan transportation planning process in the metropolitan area, including the development of an MTP and TIP, in cooperation with the State and operators of public transportation and expands the metropolitan planning process to make it performance-driven and outcome-based. States are required to cooperate with MPOs when conducting the statewide planning process, including during the development of the long-range statewide transportation plan and the STIP (sections 450.216(g), 450.218(b)). Cooperation means that the parties involved in carrying out the transportation planning and programming process work together to achieve a common goal or objective (section 450.104). Coordination means the cooperative development of plans, programs, and schedules among agencies and entities with legal standing and adjustment of such plans, programs, and schedules to achieve general consistency, as appropriate (section 450.104). The final rule includes provisions for coordination on performance-based planning and programming among States, MPOs, and operators of public transportation in metropolitan areas. The new requirement for performancebased planning and programming expands the cooperation and coordination role among States and MPOs in the transportation planning process by requiring coordination on target setting for the FHWA required performance measures. Similarly, the role of operators of public transportation is also expanded as States and MPOs are required to coordinate with operators of public transportation on target setting for the FTA required performance measures. Several commenters emphasized the importance of coordination (H–GAC, MAG, MARC, and NCTCOG/RTC) among all metropolitan planning partners, including the States, MPOs, and operators of public transportation for successful implementation of the new requirements for performance management. The FHWA and FTA agree that coordination of performance management between the States, MPOs, and operators of public transportation is critical to successful implementation of performance management and achievement of targets. Coordination needs to include not only target setting, but also the data collection necessary to E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34066 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations support setting targets, identification of investments and strategies to achieve targets, and reporting of progress toward achieving targets. The final rule includes the new requirement that the State coordinate with the relevant MPOs when setting FHWA performance targets (section 450.206(c)(2)), and, similarly, that MPOs coordinate with the relevant State (section 450.306(d)(2)(ii)) when the MPO is setting FHWA performance targets. States have up to 1 year from the effective date of each performance management final rule to set performance targets for that performance measure (section 450.206(c)(2)), and the MPOs have 180days after the State or operator of public transportation sets performance targets to set its own targets (section 450(d)(3)). This final rule requires that, as part of the State and MPO coordination on FHWA target setting, the performance targets be consistent to the maximum extent practicable. Although the final rule allows the MPO up to 180 days to set performance targets after the State sets its targets, FHWA and FTA believe it is important that the State and MPO work together on FHWA target setting and, ideally, the State and MPO should be setting their targets at the same time in coordination with each other to ensure that they are consistent to the maximum extent practicable. The MPOs and operators of public transportation should coordinate to the maximum extent practicable in metropolitan areas on target selection for the public transportation performance targets. The MPOs have up to 180 days to set transit performance targets for the metropolitan area’s transit performance measures after operators of public transportation set transit performance targets. State and MPO coordination on target setting will be crucial to successful implementation of performance management and the performance-based planning and programming process that supports performance management. Although States, MPOs, and operators of public transportation are required to establish performance targets for the federally required performance measures based on the phase-in schedules and timeframes described in the final rule, FHWA and FTA think it is important to note that they coordinate on their target setting in advance of establishing those targets. As such, State, MPO, and operator of public transportation coordination on target setting will need to begin in advance of when the targets are required to be established. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Scope of the Metropolitan and Statewide Transportation Planning Processes (Sections 450.206 and 450.306) Several comments received on section 450.306(d) emphasized the importance of coordination (H–GAC, MAG, MARC, and NCTCOG/RTC) among all metropolitan planning partners, including the States, MPOs, and operators of public transportation for successful implementation of performance management. The FHWA and FTA agree. Coordination of performance management among the States, MPOs, and operators of public transportation is critical to successful performance management and achievement of targets. Coordination needs to include not only target setting, but also the identification of investments and strategies to achieve those targets. The WA State DOT commented that there is a need for more explicit explanations on the relationships and roles between the States and MPOs in section 450.306(d). The commenter further stated that it is unclear if MPOs are required to match the targets set by the State. The FHWA and FTA respond that States and MPOs are each required to set performance targets for the federally required performance measures. When setting performance targets for the federally required performance measures, MPOs are not required to match State targets; however, States and MPOs are required to coordinate to ensure consistency to the maximum extent practicable when setting the highway-related performance targets. Similarly, States (in areas not represented by an MPO) and MPOs (in MPAs) are to coordinate the selection of State and MPO transit-related performance targets to the maximum extent practicable with operators of public transportation to ensure consistency with the transit safety and state of good repair targets. No changes have been made to this section as a result of this comment. The MTC, SACOG, SANDAG, SCAG, and SJCOG commented on the difficulty of coordination on target setting when there are a large number of agencies. The WA State DOT commented that there is a need for more explicit explanations on the relationships and roles between the States and MPOs. The MD DOT, NJ DOT, and TN DOT commented that setting of performance targets will be a significant challenge in interstate MPOs that have membership in multiple States, since each State differs with respect to legal framework, resource availability, policies, goals, and PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 priorities. A few States (MD DOT and TN DOT) indicated that it is not clear who will have the ultimate authority in establishing targets when a State or MPO cannot agree. The commenters further stated that funding constraints may make it difficult to move in the desired direction for many performance targets. They are also concerned about the implementation costs and resources required of smaller MPOs. The DC DOT and NJTPA commented on the new provisions for performance-based planning in section 450.306(d) because of the difficulty in coordinating target setting in situations where there may be multiple States, MPOs, and/or operators of public transportation involved, such as in bi-State or tri-State metropolitan regions. In response to these comments, FHWA and FTA note that section 450.314(h) of the rule describes methods for States, MPOs, and operators of public transportation in metropolitan areas to mutually agree upon and document the roles and responsibilities for conducting performance-based planning and programming through the metropolitan planning agreement or by some other means. The FHWA and FTA also note the longstanding requirement in 23 U.S.C. 134(i)(2)(E)(iii) and 49 U.S.C. 5303(i)(2)(E)(iii) which provide that the State, MPO, and operator of public transportation shall cooperatively develop estimates of funds that will be available to support plan and TIP implementation. The availability of funding would certainly influence target setting, and the cooperative development of the funding estimates should help further encourage the States, MPOs, and operators of public transportation to work together. Comments on the costs of implementation and resources for MPOs to undertake these new requirements, including for smaller MPOs, are addressed separately in this document under the section addressing the regulatory impact analysis (RIA) for this rule. The APTA commented that areas with multiple MPOs should be encouraged to coordinate across urbanized areas through informal means. The FHWA and FTA response to this comment is that the regulations at section 450.314(h) require that the State(s), MPO(s), and operator(s) of public transportation serving a single urbanized area mutually agree upon and document specific written provisions for interagency coordination on performance-based planning and programming, either as part of the metropolitan planning agreement, or by E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations some other means as mutually agreed upon by the MPO(s), State(s), and operator(s) of public transportation. It is up to the agencies to mutually decide how that coordination will take place. Sections 450.206(c)(4) and 450.306(d)(4) of the final rule require that the State and the MPOs are required to integrate into the statewide and the metropolitan transportation planning processes, directly or by reference, the goals, objectives, performance, measures, and targets in other State transportation plans and transportation processes, as well as any plans developed pursuant to chapter 53 of title 49 by operators of public transportation in areas not represented by an MPO required as part of a performance-based program. Examples of such plans and processes include the HSIP, SHSP, the State asset management plan for the NHS, the State Freight Plan, the Transit Asset Management Plan, and the Public Transportation Agency Safety Plan. Several commenters (Albany MPO, AMPO, DVRPC, NARC, New York State Association of MPOs, NYMTC, PA DOT, and San Luis Obispo COG) remarked that this requirement appears to be in conflict with sections 450.306(d)(2)(i), (ii), and (iii), which state that each MPO shall establish performance targets, and the selection of targets shall be coordinated with the State and, to the maximum extent practicable, coordinated with operators of public transportation. The FHWA and FTA response to this comment is that these provisions do not conflict. They reflect the need for close coordination between States, MPOs, and operators of public transportation during the target setting process to ensure that the targets are coordinated and consistent to the maximum extent practicable. This would suggest that State, MPO, and operator of public transportation coordination during the development of other performance-based plans and processes (such as the State asset management plan for the NHS and transit asset management plans, safety plans, freight plans, and congestion plans) is desirable because these plans could affect the performance targets and the investments that support those targets. Early coordination on the development of these other performance-based plans and processes could ease their integration into the statewide and the metropolitan transportation planning processes. The San Luis Obispo COG and SCCRTC commented on section 450.306, scope of the metropolitan planning process. They felt that decisionmaking for metropolitan VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 projects often lies with the State, and as a result, the ability for an MPO to succeed at performance-based planning and at achieving performance targets is constrained. In response to this comment, FHWA and FTA reiterate the importance of early and ongoing State and MPO coordination on performancebased planning and programming, particularly with target setting and the identification of investments and strategies necessary to achieve targets. The FHWA and FTA note that it is an MPOs responsibility to develop the TIP (23 CFR 450.326), in cooperation with the State(s) and any affected public transportation operator(s), and to review and update the MTP (23 CFR 450.324(c)). The FHWA and FTA note that the State is required to develop the STIP in cooperation with the MPO designated for the metropolitan area (23 CFR 450.218(b)) and the State shall include each metropolitan TIP without changes in the STIP, directly or by reference, after approval of the TIP by the MPO and the Governor (23 CFR 450.218(b)). Many commenters indicated that they disagreed with the requirement to amend the metropolitan planning agreement, stating that it is inflexible, that there would be a need to update the agreements frequently, and that updates take a long time. In reviewing these comments, FHWA and FTA decided to retain the requirement that there be mutually developed written documentation describing the interagency roles and responsibilities for performance-based planning in a metropolitan area. However, the final rule allows for flexibility, in that it may be documented as part of the metropolitan planning agreement, or in some other form mutually agreed upon by the States, MPOs, and operators of public transportation. Coordination of Statewide Planning Process Activities (Section 450.208) Regarding the coordination of planning process activities in section 450.208, NYS DOT commented that in multijurisdictional mega-regions, flexibility is needed to coordinate performance management requirements among States, MPOs, and interstate agencies or authorities. The commenter further stated that this flexibility is needed due to the complexity of transportation facilities and services that may straddle several MPO and State boundaries. The SEMCOG commented that there should be flexibility to allow MPOs to develop cooperative procedures for performance-based planning that are best for the local situation. The FHWA and FTA agree PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 34067 that States, MPOs, and interstate agencies and authorities need the flexibility to determine how best to coordinate their respective transportation planning activities and believe that the final rule provides for flexibility. Section 450.314(h) provides States, MPOs, and operators of public transportation options for mutually identifying the agency roles and responsibilities for performance-based planning and programming in metropolitan areas in writing, either through the metropolitan planning agreements or by some other mutually determined means. Development and Content of LongRange Statewide Transportation Plans, MTPs, STIPs, and TIPs (Sections 450.216, 450.218, 450.324, and 450.326) The FMATS commented that it is essential for States to develop performance targets in full coordination with MPOs and the nonmetropolitan planning areas to ensure that performance targets are considered during the development of TIPs and STIPs, and that investment priorities are tied to targets. The FHWA and FTA agree that State and MPO coordination is a key part of target setting. It is also key that MPOs and operators of public transportation coordinate in metropolitan areas and that States coordinate with rural operators of public transportation as part of target setting for transit measures. The MiamiDade MPO stated that it is important for States to coordinate the STIP with MPOs and that the STIP be consistent with the metropolitan plans, especially in TMAs. In response to this comment, FHWA and FTA reiterate that the STIP and the TIP must be consistent with the long-range statewide transportation plan (section 450.218(k)) and the MTP (section 450.326(i)), respectively, and that that the STIP must incorporate the TIP without alteration (section 450.218(b)). Section 450.314 Metropolitan Planning Agreements Section 450.314 discusses the requirement that States, MPOs, and operators of public transportation serving an MPA cooperatively establish a metropolitan planning agreement. These agreements determine the mutual responsibilities of the parties in carrying out the metropolitan transportation planning process. Forty-three commenters (Albany MPO, AASHTO, AMPO, APTA, ARC, Board of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC DOT, DRCOG, DVRPC, FL DOT, Florida MPO Advisory Council, E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34068 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations FMATS, H–GAC, HI DOT, IA DOT, MAG, MARC, Metropolitan Transportation Council MPO, MT DOT, MTC, NACTO, NARC, New York State Association of MPOs, NJTPA, NC DOT, North Florida TPO, NYMTA, NYMTC, NYS DOT, OR DOT, PA DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, Transportation for America, TX DOT, and Wilmington MPO) provided comments on this section. Twenty-one of the commenters were from MPOs, 13 were from States, 7 were from transportation associations, 1 was from an operator of public transportation, and 1 was from an advocacy organization. The requirement to have metropolitan planning agreements is long-standing, dating to the 1993 planning regulations that resulted from the passage of ISTEA in 1991. The metropolitan planning agreements serve as a basis for describing the interagency coordination that is part of the 3–C planning process. In the NPRM, FHWA and FTA proposed to add new provisions in this section to require that the States, MPOs, and operators of public transportation update the metropolitan planning agreements to include new interagency coordination provisions for State, MPO, and operator of public transportation on performance-based planning and programming and on the collection of data for the State asset management plan for the NHS. Specifically, sections 450.314(a), (e), and (g) in the NPRM would have required that the metropolitan planning agreements include specific provisions for cooperatively developing and sharing information related to transportation systems performance data, the selection of performance targets, the reporting of performance targets, the reporting of system performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (section 450.306(d)), and the collection of data for the State asset management plan for the NHS. The NPRM proposed the addition of this new provision to the metropolitan planning agreements for two reasons: (1) To document the coordination necessary to successfully implement performance-based planning in metropolitan areas, and (2) to document coordination on the collection of data for the NHS for the State asset management plan (given that there are NHS highways in metropolitan areas and that some NHS roads are not on the State highway system but instead are under the ownership of local jurisdictions). Nearly all of the comments on this section focused on the proposed requirements for including specific VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 provisions in the metropolitan planning agreements for cooperatively developing and sharing information related to transportation systems performance data, the selection of performance targets, the reporting of performance targets, the reporting of system performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (see section 450.306(d)), and the collection of data for the State asset management plan for the NHS. The commenters near universally stated that it would be difficult, time consuming, expensive, and require extensive review to carry this out and that these changes should not be included in the final rule. They further indicated that including the provision as part of the metropolitan planning agreement creates inflexibility because it would be difficult and time consuming to change the agreements as roles of the agencies might shift over time and the agreements might be subject to frequent change. Nearly all of the commenters (AASHTO, Albany MPO, AMPO, ARC, Board of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CT DOT, DC DOT, DRCOG, DVRPC, FL DOT, Florida MPO Advisory Council, H–GAC, HI DOT, IA DOT, Metropolitan Council MPO, MTC, MT DOT, NACTO, NARC, NJTPA, North Florida TPO, NYMTA, NYMTC, OR DOT, PA DOT, River to Sea TPO, Transportation for America, and TX DOT) stated that they did not support these new requirements. These commenters suggested that they should not be included in the final rule, should be made optional, or should be done by more flexible means outside of the metropolitan planning agreement itself because of the difficulty in amending these agreements. As part of their comments to the docket, many commenters provided examples of locally preferred, less formal methods of documentation for coordination (in place of using the metropolitan planning agreement). The alternative methods of documenting coordination suggested by the commenters include: MPO operating procedures (AASHTO, CT DOT, and TX DOT), Unified Planning Work Program (UPWP) (CT DOT), handshake agreements (ARC), resolution (Board of the French Broad River MPO, Charlotte Regional TPO, and Wilmington Urban Area MPO), and a secondary agreement separate from the metropolitan planning agreement (FMATS). The New York State Association of MPOs suggested documenting coordination methods through addendums or amendments to the existing metropolitan planning agreements without having to open PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 existing agreements. The NYMTA commented that it prefers that the agency roles and responsibilities be identified outside the metropolitan planning agreement in a more informal manner. The CO DOT commented that the metropolitan planning agreement should be flexible, especially for the proposed new elements on performance-based planning. While many commenters (AASHTO, ARC, DVRPC, FMATS, MTC, New York State Association of MPOs, NYMTA, PA DOT, SANDAG, SCAG, SJCOOG, and Transportation for America) further stated that although they disagreed with the proposal requiring that the metropolitan planning agreements be modified, they recognized the importance of ensuring all planning agencies are coordinating and collaborating together on regional planning issues, including performancebased planning. After reviewing these comments, FHWA and FTA have decided to modify the final rule to make it more flexible while still fulfilling a requirement to jointly agree upon and document mutual responsibilities for coordination in support of performance-based planning. In the final rule, FHWA and FTA have deleted the provisions for documenting the mutual responsibilities for interagency coordination on performance-based planning and for coordination on data collection on the NHS from sections 450.314(a), (e), and (g), and added new section 450.314(h). The new section 450.314(h) requires that States, MPOs, and operators of public transportation jointly agree upon and develop specific written provisions for cooperatively developing and sharing information related to transportation performance data, the selection of performance targets, the reporting of performance targets, the reporting of performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (see section 450.306(d)), and the collection of data for the State asset management plan for the NHS. The provision requiring documentation of mutual responsibilities for State, MPO, and operator of public transportation coordination in the final rule is more flexible than what was proposed in the NPRM in that these provisions for coordination shall be documented either: (1) As part of the metropolitan planning agreements required under sections 450.314(a), (e), and (g), or (2) in some other means outside of the metropolitan planning agreement as determined jointly by the States, MPOs, and operators of public transportation. E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations Similar to the NPRM, section 450.314(a), (e), and (g), and section 450.314(h) of the final rule requires documentation of responsibilities for coordination in each of the following circumstances: (1) When one MPO serves an urbanized area, (2) when more than one MPO serves an urbanized area, and (3) when an urbanized area that has been designated as a TMA overlaps into an adjacent MPA serving an urbanized area that is not a TMA. As a result, the language for the metropolitan planning agreements, as it relates to performancebased planning and for the data collection for the NHS, is unchanged in the final rule with the exception that it has been made more flexible to provide States, MPOs, and operators of public transportation more options in how they establish written methods for coordination. In the final rule, FHWA and FTA still require the States, MPOs, and operators of public transportation to mutually identify the roles and responsibilities of each agency for performance-based planning and for collection of data for the NHS in a documented manner. However, the option is provided to jointly agree upon and document the methods for coordination either through amending the existing metropolitan planning agreement or through another mechanism outside of the metropolitan planning agreement. This mechanism can be mutually agreed on by the States, MPOs, and operators of public transportation. Four commenters (Albany MPO, DVRPC, New York State Association of MPOs, and NYMTC) were concerned that it will be difficult to establish agreements because some of the data and analytical tools necessary for performance-based planning might not yet be available and that several of the other NPRMs establishing performance measures for the performance-based programs have not yet been released. The FHWA and FTA response is that under section 450.340 of the final rule (phase-in of new requirements), MPOs have 2 years from the issuance of the other performance management final rules before they have to comply with the performance-based planning requirements of the final rule, including compliance with the requirement to document the interagency coordination on performance-based planning and data collection for the NHS as required in section 450.314. As a result, FHWA and FTA made no changes to the final rule based on this comment. Transportation for America commented that it wants stronger local decisionmaking through improved State and MPO coordination regarding NHS VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 within MPO boundaries, and that they would rather have coordination than cooperation. In response to this comment, FHWA and FTA note that section 450.314(h) requires States and MPOs to mutually determine and document the roles and responsibilities of each agency for the collection of data for the NHS in the MPA of the MPO in writing as part of the metropolitan planning agreement, or in some other mutually agreed to format. No changes are made to the final rule based on this comment. Two commenters (FMATS and MARC) remarked that it is critical to describe and clarify the roles and responsibilities of parties responsible for the collection of data on the NHS because of the new requirements for a State asset management plan for the NHS and the establishment of performance measures and targets. The FMATS further stated that a conflict resolution process should be included as part of the agreement. The MARC commented that MAP–21 added many locally owned and operated principal arterial routes to the NHS and that States should have primary responsibility for data collection on the NHS with the option of providing funding to others to collect. The FHWA and FTA respond that the final rule does not establish who has primary responsibility for data collection for the NHS routes that are off the State system. However, that should be part of what is cooperatively described by the States, MPOs, and operators of public transportation in their documentation prepared to fulfill the requirements of section 450.314(h). In regards to the FMATS comment about establishing a conflict resolution process, FHWA and FTA respond that States, MPOs, and operators of public transportation are not required to establish a conflict resolution process. However, they may choose to do so. The FHWA and FTA did not make any changes to the final rule as a result of these comments. The CO DOT and NC DOT commented that FHWA and FTA should provide the States, MPOs, and operators of public transportation the flexibility to determine the specific elements that are appropriate for inclusion in the metropolitan planning agreement. In response to these comments, States, MPOs, and operators of public transportation are provided the flexibility to determine the specific elements that are appropriate for inclusion in the metropolitan planning agreement provided that, at a minimum, they include the requirement elements described in section 450.314. The NJ PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 34069 DOT stated that it already has in place various agreements with its transportation partners that were reached through a collaborative process, and it would rather use these or other less formal documents than the metropolitan planning agreement. The FHWA and FTA response to this comment is that for the documentation on coordination for performance-based planning and for data collection for the NHS, States, MPOs, and operator of public transportation may collaboratively decide to document their methods for coordination outside of the metropolitan planning agreement as part of other less formal written agreements or through some other means. The FMATS commented that that when a State updates it long-range statewide transportation plan or other performance-based plans, it is critical that it coordinate with MPOs because the State plans have impacts on the MPOs planning process. The FHWA and FTA response to this comment is that the metropolitan planning agreement, or another cooperatively developed agreement outside of the planning agreement could be a good place for describing this coordination. The DVRPC stated that a single agreement might not be possible, for example in regions with multiple States. The FHWA and FTA response to this comment is that while a single agreement is preferred, it might not always be realistic, particularly in situations where there are multiple States involved and that, if necessary, there might be more than one agreement. The NYMTA encouraged FHWA and FTA to provide examples of best practices on State, MPO, and operator of public transportation coordination that MPOs may implement. The APTA commented that FHWA and FTA could support coordination through guidance and technical assistance. The FHWA and FTA agree that sharing best practices on performance-based planning including sharing methods of coordination is useful and would benefit the state of the practice. The FHWA and FTA are already in the process of, and plan to continue developing guidance, workshops, peer exchanges, and other materials as appropriate to help disseminate best practices for performance-based planning and programming, including best practices on interagency coordination. The MN DOT commented that it would like to see more clarification concerning bi-State MPOs in regards to coordination efforts for target setting in the final rule. The FHWA and FTA E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34070 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations reiterate that, similar to what was required in the NPRM under sections 450.314(a), (e), and (g), section 450.314(h) in the final rule requires documentation of responsibilities for coordination for each of the following circumstances: (1) When one MPO serves an urbanized area, (2) when more than one MPO serves an urbanized area, and (3) when an urbanized area that has been designated as a TMA overlaps into an adjacent MPA serving an urbanized area that is not a TMA. A bi-State MPO could exist in any of these circumstances, because some urbanized areas cross State lines. Under these requirements, a bi-State MPO would have written agreements that include both States. The States, MPOs, and operators of public transportation would mutually identify and document their methods, roles, and responsibilities for coordination on performance-based planning and programming as part of the metropolitan planning agreement or by some other means. Provisions for target setting for biState MPOs that are for specific performance measures are outside the context of the final rule. There are other rules on target setting for the specific federally required performance measures. In the NPRM, sections 450.314(a), (e), and (g) used the words ‘‘system’’ and ‘‘systems’’ when referring to transportation systems performance data and when referring to the reporting of system performance. As described previously, FHWA and FTA added new section 450.314(h) instead of revising sections 450.314(a), (e), and (g). At least one commenter (MAG) asked for clarification on what the word ‘‘system’’ is referring to. The FHWA and FTA feel that the use of the words in this section is confusing, vague, undefined, and subject to misinterpretation and has removed them from section 450.314(h). In summary, FHWA and FTA feel strongly that interagency coordination is an important part of successful implementation of the 3–C planning process, including the new requirements for performance-based planning. The requirement for cooperatively documenting the mutual responsibilities for carrying out the 3–C metropolitan transportation planning process has a long history dating back to the 1993 planning regulations. Performance-based planning is the newest addition to the 3–C planning process. Documenting the mutual responsibilities of the States, MPOs, and operators of public transportation in writing, either through the metropolitan planning agreement or through another means, is crucial to the successful VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 implementation of the coordination that is necessary for the successful implementation of performance-based planning. For this reason, the final rule retains the requirement to document the methods for interagency coordination on performance-based planning and for data collection for the State asset management plan for the NHS. However, the final rule provides flexibility in how it may be documented. The FHWA and FTA reiterate the importance of coordination to the effectiveness of performance-based planning and programming. Consequently, FHWA and FTA intend to initiate a rulemaking that will propose methods for improving MPO coordination in the transportation planning process, which recognizes the critical role that MPOs play in ensuring the economic well-being of a region and in identifying efficient improvements that serve its mobility needs. This targeted rulemaking will address the coordination challenges and inefficiencies that may result where there are multiple MPOs designated within a single urbanized area. The rulemaking may clarify the statutory requirement for the State and MPO to determine whether it is appropriate to designate multiple MPOs within a region, based on the size and complexity of the area. To further a 3– C transportation planning process, it may describe the coordination and collaboration requirements for MPOs already designated in regions with other MPOs. The changes under consideration are intended to enable MPOs to speak with a stronger, more unified voice, to increase efficiencies, to accelerate project delivery, and to improve the extent to which transportation investments reflect the needs and priorities of that region. To date, FHWA and FTA have conducted numerous workshops, peer exchanges, and best practice studies to provide information and examples of performance-based planning and programming practices for use by the States, MPOs, and operators of public transportation, including information on interagency coordination. These resources are intended to aid the planning agencies in their transition to performance-based planning and programming. Many of these resources include elements of interagency coordination practices. This material is available at: https://www.fhwa.dot.gov/ planning/performance_based_ planning/. The FHWA and FTA plan to continue to develop and share additional resources on performancebased planning and programming in the PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 future, including resources on interagency coordination. • Traditionally Underserved Populations, Environmental Justice, Title VI of the Civil Rights Act of 1964 (as Amended), Equity, and the Transportation Planning Process At least 12 commenters discussed the relationships between traditionally underserved populations and the transportation planning process (Community Labor United, Enterprise Community Partners, Front Range Economic Strategy Center, National Association of Social Workers, National Housing Conference, NRDC, Partnership for Active Transportation, Partnership for Working Families, Policy Link, Public Advocates, Sierra Club, and United Spinal Association). The comments focused on two elements: (1) Participation of traditionally underserved populations in the planning process itself, and (2) consideration of traditionally underserved populations in the planning process, including the development of key planning documents such as transportation plans and programs. Related topic areas on which FHWA and FTA received comments included equity, EJ (Executive Order (E.O.) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 1994), and Title VI of the Civil Rights Act of 1964 (as amended, 42 U.S.C. 2000d–1). These comments were submitted on several sections of the planning regulations including scope of the statewide and nonmetropolitan and metropolitan planning processes (sections 450.206 and 450.306) and development and content of the longrange statewide transportation plan, MTP, STIP, and TIP (sections 450.216, 450.218, 450.325, and 450.326). Comments were also received on sections of the NPRM concerning Federal findings and approvals (section 450.220) and self-certifications and Federal certifications (section 450.336). Given the level of detail, specificity, and uniqueness of the individual comments on this topic area, FHWA and FTA have organized this section in a comment and response format for ease of providing clarity in the responses. Comment: The Nine to Five National Association of Working Women commented that an equitable transportation system is critical to creating thriving communities of opportunity. The commenter stated that where and how we decide to make transportation investments is critical to communities’ access to economic E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations opportunity. The commenter further stated that low income and minority communities face tremendous barriers in access to transportation that can get them to critical places like school, work, child care, appointments, and grocery stores, and that reducing those barriers will require targeted investments. Response: The FHWA and FTA agree that the transportation system plays a critical role in connecting Americans to opportunity by providing people with reliable and affordable connections to employment, education, services, other opportunities, creating career pathways into transportation jobs, and revitalizing neighborhoods and regions. The FHWA and FTA emphasize transportation system connectivity to create economic growth and spark community revitalization, particularly for disadvantaged groups like low-income, minority, older adults, or individuals with disabilities. The FHWA and FTA and the Office of the Secretary of Transportation are actively working with States, MPOs, operators of public transportation, and others on an initiative called Ladders of Opportunity. Ladders of Opportunity is an outreach effort that encourages MPOs, States, and operators of public transportation to consider connectivity and access for traditionally underserved populations to employment, health care, healthy food, and other essential services using Geographic Information Systems (GIS) based analysis tools and data. Ladders of Opportunity and connectivity have been part of the planning emphasis areas of the FHWA and FTA for Federal fiscal years 2015 and 2016. The FHWA and FTA have developed several case study examples of analysis of connectivity and shared it with States and MPOs via Webinars and a workshop. Under the Ladders of Opportunity initiative, the MPOs are being encouraged to include funded work program activities to include an analysis of connectivity gaps with their MTP and TIP development. The FHWA and FTA will continue to conduct outreach and training on this topic and encourage MPOs to include a connectivity analysis as part of their planning process and plan and TIP development. Comment: The Enterprise Community Partners, NRDC, and National Housing Conference, suggested that there be a requirement to include housing and community development representatives and consider those topics in the in the scope of the statewide and metropolitan planning processes (sections 450.206 and 450.306). VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Response: The FHWA and FTA note that under sections 450.206 and 450.306 it is required that the statewide and metropolitan planning process promotes consistency between transportation improvements and State and local planned growth and economic development patterns. The FHWA and FTA also note that under sections 450.210(a) and 450.316(a), States and MPOs are required to provide individuals, affected public agencies, representatives of the disabled, and other interested parties an opportunity to be involved in the statewide and the metropolitan transportation planning processes. The FHWA and FTA believe that these affected public agencies and other interested parties should include housing and community development representatives. Comment: Several commenters suggested that FHWA and FTA should consider that scenario planning in the development of the MTP be used by MPOs to analyze the impact of investments and policies on the transportation system, including prioritizing the needs of low-income populations, minorities, or people with disabilities. On section 450.324(i), voluntary use of scenario planning in the development of the metropolitan transportation plan, at least seven advocacy groups (Community Labor United, Front Range Economic Center, National Association of Social Workers, Partnership for Working Families, PolicyLink, Public Advocates, United Spinal Association) suggested that scenario planning be used by MPOs to analyze the impact of investments and policies on the transportation system including prioritizing the needs of low-income populations, minorities, or people with disabilities. One advocacy group (National Housing Conference) suggested that MPOs should consider housing needs when conducting scenario planning. Response: The FHWA and FTA agree with the commenters that scenario planning could help an MPO conduct an analysis of the impact of investments on low-income, minority, or disabled populations. However, FHWA and FTA reiterate that the use of scenario planning by the MPOs as part of developing the MTP is optional under the final rule (section 450.324(i)). The FHWA and FTA have a long-standing history of working with MPOs on the implementation of EJ into the planning process and Title VI. Similarly, MPOs could choose to evaluate housing needs as part of scenario planning, but are not required. That decision is left to the individual MPOs to decide. Based on PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 34071 these comments, no changes are made to the final rule. The FHWA and FTA strongly support scenario planning as a best practice for developing the MTP. The NPRM and the final rule provide an optional framework for MPOs to use scenario planning in the development of their MTPs at section 450.324(i). The FHWA and FTA have developed considerable resources, examples of practice, and peer exchanges in support of promoting scenario planning. They are available at: https://www.fhwa.dot.gov/planning/ scenario_and_visualization/scenario_ planning/. Comment: An EJ, equity, and Title VI analysis should be part of the scope of the statewide and metropolitan planning processes. Nearly all of the commenters who provided comments on the relationships between traditionally underserved populations and the transportation planning process stated that States and MPOs should conduct an analysis of the impact of transportation plans, STIPs, and TIPs on EJ communities and Title VI in the interest of ensuring that investments are made in ways that help all communities prosper and achieve equitable investments. Several commenters recommended that performance measures be used to prioritize projects and expand equity and access to economic opportunity, public transit, access to jobs, affordable housing, pedestrian safety, and transportation costs for the benefit of traditionally underserved populations. Others recommended that MTPs should be evaluated by their potential to connect the traditionally underserved to opportunities by providing them with reliable and affordable connections to employment, education, services, and other opportunities; creating career pathways into transportation jobs; and revitalizing neighborhoods and regions. Public Advocates suggested that MPOs should complete a comprehensive study of current conditions of disadvantaged communities as part of an equity analysis. They further stated that MPOs should routinely gather, analyze, and report relevant transit rider and demographic data and disaggregate by race and income. The Center for Social Inclusion stated that MPOs should conduct an equity analysis assessment of the TIP investments because they are short-term, in addition to an analysis of the MTP, which is longer term. Response: The FHWA and FTA have been working actively with the States and MPOs to implement EJ principles into the statewide and metropolitan transportation planning and project development processes in accordance E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34072 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations with Executive Order 12898. The FHWA and FTA also require States and MPOs to comply with the requirements of Title VI and periodically review their compliance as part of TMA planning certification and through other Title VI reviews. The FHWA and FTA do not prescribe specifically how a State, MPO, or operator of public transportation conducts its analysis of EJ or Title VI. That is left to the specific agencies to decide based on their needs and situations. The FHWA and FTA provide examples of good practice and training that States, MPOs, and operators of public transportation can use to guide their practices. Comment: The NRDC suggested that FHWA and FTA should establish a framework for MPOs to demonstrate to them and local communities how they are incorporating EO 12898 into their planning process. Response: The FHWA and FTA typically discuss efforts at integrating EJ into the planning process and EO 12898 during certification reviews of TMAs. Comment: The Nine to Five National Association of Working Women stated that developing State and metropolitan planning guidance that includes the voices of directly affected communities and prioritizes enhanced mobility and opportunity for the most vulnerable populations, transit investments can go a long way to supporting improved social and economic outcomes in these communities. Response: The FHWA and FTA note that under section 450.210(a)(1)(vii), the final rule continues the long-standing requirement that States develop and use a documented public involvement process that provides opportunities for public review and comment at key decision points in the statewide and nonmetropolitan transportation planning process. The State’s public involvement process is required to include seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services (section 450.210(a)(1)(viii)). The MPOs are required to develop a participation plan in consultation with all interested parties. Similar to the State’s documented public involvement process, the MPO public participation plan is required to include a process for seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services (section 450.316(a)(1)(vii)). VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Both the States and the MPOs are also required to provide adequate notice of public participation activities and a reasonable opportunity to comment on the long-range transportation plan, STIP, and TIP. The final rule also continues the long-standing requirement that both States and MPOs must hold any public meetings at convenient times and accessible locations, provide the public timely notice and reasonable access to information about transportation issues and process, and demonstrate explicit consideration and response to public input received on the long-range plan, STIP, and TIP (sections 450.210 and 450.316). Comment: Nearly all of the advocacy groups commented that FHWA and FTA should provide guidance on EJ based on EO 12898. Several commenters suggested that best practices from academic research should be used in equity analysis design and be recommended by FHWA and FTA. Response: The FHWA and FTA have a longstanding practice of undertaking research studies and identifying best practices and case studies in EJ, including equity analysis. This information is available at: https:// www.fhwa.dot.gov/environment/ environmental_justice/. This site is updated frequently with new resource material. The FHWA and FTA also offer training on EJ and Title VI on request. Comment: Several advocacy groups (Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Partnership for Working Families, PolicyLink, Public Advocaes, The Leadership Conference on Civil and Human Rights, and United Spinal Association) commented that EO 12898 and Title VI of the Civil Rights Act of 1964, as amended, should be part of the State and the MPO self-certification and topics of review in FHWA and FTA TMA transportation planning certification. They suggested that in sections 450.220 and 450.336 States and MPOs should be required to self-certify compliance with EO 12898 and Title VI and that FHWA and FTA should review compliance as part of the TMA transportation planning certification review. Response: States and MPOs are required by the final rule to certify compliance with Title VI. The FHWA and FTA do not require States and MPOs to self-certify compliance to the EO because it is only intended to improve the internal management of the Executive Branch and is directed to Federal agencies. Also, as stated in section 6–609 of the EO, it does not create substantive rights. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 Consistent with this approach, all of the requirements identified in sections 450.220 and 450.336 are based on law, not EOs. However, FHWA and FTA encourage States, MPOs, and operators of public transportation to incorporate EJ principles into the planning processes and documents. The FHWA and FTA consider EJ when making future funding or other approval decisions on a project basis, as required by EO 12898. The FHWA and FTA further respond that EJ is typically discussed as part of TMA planning certification reviews. The FHWA and FTA have a longstanding history of working with States and MPOs to implement EJ as part of the transportation planning and project development processes. States and MPOs are required by the final rule to certify compliance with Title VI (sections 450.220 and 450.336). The FHWA and FTA typically discuss compliance with Title VI as part of TMA planning certification reviews. The FHWA and FTA note that Title VI of the Civil Rights Act of 1964 is a Federal law that protects persons from discrimination based on race, color, or national origin in programs and activities that receive Federal financial assistance. These regulations require States to certify that the transportation planning process is being carried out in accordance with all applicable requirements of Title VI (42 U.S.C. 2000d-1) and 49 CFR part 21 at the time that the STIP or STIP amendments are submitted to FHWA and FTA for joint approval (section 450.220(a)(2)). The MPOs must make similar certification concurrent with the submittal of the TIP to FHWA and FTA as part of the STIP approval (section 450.336(a)(3)). The FHWA and FTA typically review compliance with Title VI as part of the planning certification review of TMAs, and also review Title VI complaints as part of other reviews that are outside the scope of the final rule. Comment: The National Association of Social Workers, NRDC, Policy Link, Sierra Club, and United Spinal Association commented that MPOs should establish governing bodies that are inclusive of the communities they serve, and that the decisionmaking bodies should reflect the diversity of interests based on age, race, ethnicity, disability, and income. Response: The FHWA and FTA note that the policy board for MPOs that serve TMAs are to be established in accordance with the requirements in the final rule at section 450.310, which is reflective of the law at 23 U.S.C. 134(d) and 49 U.S.C. 5303(d). This section requires specific representation from E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations local elected officials, officials of public agencies that administer or operate major modes of transportation in the metropolitan area, representation by operators of public transportation, and appropriate State officials. The FHWA and FTA encourage MPOs to seek representation from minority communities as part of meeting the requirements of section 450.310. As discussed elsewhere in this summary, MPOs are required to self-certify compliance with Title VI and FHWA and FTA periodically review this selfcertification. Comment: The Center for Social Inclusion, Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Policy Link, Public Advocates, and United Spinal Association commented that FHWA and FTA should collect and share data on travel behavior that is disaggregated by race and income. They also commented that FHWA and FTA should facilitate local and targeted hiring on transportation projects. One commenter suggested that FHWA and FTA should do a comprehensive study on the current condition of targeted communities. Response: The FHWA and FTA response to these comments is that these requests are outside the scope of this rule. Comment: Several commenters (United Spinal Association, Public Advocates, Policy Link, Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Partnership for Working Families) encouraged FHWA and FTA to consider incentivizing implementation of equity-based performance measures in its Transportation Investment Generating Economic Recovery (TIGER) program. The Center for Social Inclusion suggested that a competitive grant program similar to TIGER should be established to incentivize States, MPOs, and operators of public transportation to coordinate and conduct project level equity analysis. Response: The FHWA and FTA note that the TIGER grantees work with DOT modal administrations to choose between two and four project-level performance measures from a list of measures that directly relate to the five departmental strategic goals, which include the goal of fostering quality of life for all. This does not preclude any grantee from developing additional performance measures for internal analytic purposes, which could more directly reflect their community’s strategic goals and priorities, such as equity-based performance measures. In VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 response to other comments that suggested creating other grant programs similar to TIGER and include equitybased performance measures as part of those programs, FHWA and FTA note that the TIGER grant program is established under appropriations bills and that FHWA and FTA could not establish other grant programs similar to TIGER because it requires specific statutory authority to do so. The FHWA and FTA also note that the TIGER grant program and any other similar programs are outside the scope of the final rule. Comment: The FHWA and FTA should prepare a quadrennial national report of non-discrimination that includes demographic data, inventory of complaints filed, compliance reviews conducted, an assessment of impediments to non-discrimination, and recommendations for compliance. Some commenters (National Association of Social Workers, Policy Link, The Leadership Conference on Civil Rights, and United Spinal Association) suggested that FHWA and FTA prepare a quadrennial national report of non-discrimination that includes demographic data, an inventory of complaints filed, compliance reviews conducted, an assessment of impediments to nondiscrimination, and recommendations for compliance. These same commenters argued that the information collected would aid FHWA and FTA in monitoring State and MPO progress in prioritizing investments that increase mobility and access to centers of employment. Response: The FHWA and FTA respond that this comment is outside the scope of the final rule. Comment: Several commenters suggested specific performance measures be incorporated into the planning process for the purposes of analyzing equity, EJ, and Title VI. Community Labor United, the Front Range Economic Strategy Center, the National Association of Social Workers, NRDC, Partnership for Working Families, Policy Link, and United Spinal Association suggested that the DOT should incentivize States and MPOs to set performance measures and prioritize projects that expand economic opportunity for low-income and minority communities. Some suggested a number of specific performance measures be incorporated into the planning process such as housing and transportation costs, fatalities and injuries, security (distances police and fire professionals have to travel to the scene of accidents and crimes), system connectivity, energy conservation, system preservation, and person PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 34073 throughput. The Center for Social Inclusion stated that there should be a comprehensive equity performance measure. Response: The FHWA and FTA note that the final rule does not establish specific performance measures and the discussion of specific performance measures is outside of its scope. There are other FHWA and FTA rulemakings in varying stages of development that will address performance measures. The FHWA notes that 23 U.S.C. 150 prescribes that FHWA and FHWA is expressly limited to establishing performance measures only for areas identified in that statute. Comment: One commenter (NRDC) stated that FHWA and FTA should consider that the congestion reduction goal should be changed to congestion management to reflect the fact that congestion can sometimes be a symptom of a healthy economy. Response: Congress specifically established Congestion Reduction as a national goal for the Federal-aid highway program as provided in 23 U.S.C. 150(b)(3). The FHWA and FTA note that these regulations do include a congestion management process requirement for TMAs in section 450.322 as required under 23 U.S.C. 134(k)(3). Based on these comments, FHWA and FTA are not making any changes to the regulations. The FHWA and FTA will continue to make resources, best practices, workshops, peer exchanges, and guidance available to the States, MPOs, and operators of public transportation on these topics (equity, EJ, Title VI, and scenario planning) and work to assist them with implementing these practices into their planning processes. Comment: At least one commenter (9 to 5, National Association of Working Women), suggested that FHWA and FTA should consider collecting and disseminating best practices and should consider providing technical assistance and funding support for State and MPO public engagement efforts. Response: The FHWA and FTA collect and disseminate best practices and provide technical support for State and MPO public engagement efforts. Under the Public Transportation Participation Pilot Program, created as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), FTA sponsored applied research to develop innovative approaches to improving public participation in the planning of public transportation. The research focused on improving data collection analysis and transportation access for all users of the public transportation E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34074 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations systems; supporting public participation through the project development phases; using innovative techniques to improve the coordination of transportation alternatives; enhancing the coordination of public transportation benefits and services; contracting with stakeholders to focus on the delivery of transportation plans and programs; and measuring and reporting on the annual performance of the transportation systems. The results of the research can be found at https:// www.fta.dot.gov/12347_5925.html. Similarly, FHWA has developed material and resources on best practices for public participation that are available at: https://www.fhwa.dot.gov/ planning/public_involvement/. The FHWA and FTA note that section 450.308(a) describes funds that are available to MPOs to accomplish the activities described in 23 U.S.C. 134, metropolitan transportation planning, including public participation. Section 450.206(e) describes funds that are available to the States to accomplish the requirements of 23 U.S.C. 135, statewide and nonmetropolitan transportation planning, including public involvement. The FHWA and FTA appreciate that many commenters shared many examples of best practices which are highlighted below: • Massachusetts: Community Labor United’s Public Transit-Public Good Coalition advocated for the inclusion of comprehensive service assessments in the State transportation funding bill (H3535). • Washington: King County Metro Transit’s Strategic Plan for Public Transportation provides annual goals and assessment of 46 indicators that prioritize social equity. • California: California’s Transportation Alternatives Program includes performance measures that prioritize mobility and safety for bicyclists and pedestrians, especially in disadvantaged communities. • Georgia: The Atlanta Regional Commission developed Equitable Target Areas for greater outreach and planning attention. That process can be found here https://www.atlantaregional.com/ transportation/community-engagement/ social-equity). • U.S. Government: HUD’s Sustainable Communities Initiative to glean effective strategies for advancing inclusive governance and community engagement. • Colorado: The Denver Regional Equity Atlas was developed by DRCOG and Mile High Connects. The atlas explores population and demographic characteristics across the region, including jobs, economic development VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 opportunities, transportation mobility, and affordable and quality housing options. • California: The San Francisco Bay Area undertook a scenario planning and vision process that would produce an integrated long-range transportation and land-use/housing plan for the San Francisco Bay Area. This process resulted in development of the Equity, Environment, and Jobs scenario. • Louisiana: A survey of low-income riders conducted by the Regional Transit Authority (RTA) in New Orleans revealed that transit-dependent workers with early-morning or late-night shifts were unable to access public transportation to get between work and home. • Asset Management and the Transportation Planning Process In section 450.208(e) (coordination of planning process activities), AASHTO, CO DOT, ID DOT, MT DOT, ND DOT, OR DOT, SD DOT, TX DOT, and WY DOT expressed concerns with section 450.208(e) of the NPRM, which stated that, in carrying out the statewide transportation planning process, States shall apply asset management principles and techniques, consistent with the State NHS Asset Management Plan, the Transit Asset Management Plan, and the Public Transportation Safety Plan. The commenters stated that the statewide planning process is much broader than an asset management plan, and that as a requirement, it may have unintended consequences. The commenters suggested that it be deleted or modified. The WI DOT commented that it wants clarification on what section 450.208(e) means. In response to these comments, FHWA and FTA retained this provision. However, ‘‘shall’’ is changed to ‘‘should’’ in the final rule. The FHWA and FTA believe that asset management principles and techniques, consistent with the State NHS Asset Management Plan and the Transit Asset Management Plan, and the Public Transportation Safety Plan, should contribute to defining STIP priorities and assessing transportation investment decisions. It is changed from shall to should in the final rule because, as noted in the comments received on the NPRM, it is not a statutory requirement. The FHWA and FTA feel that the use of the word ‘‘shall’’ might be implied to mean that strategies, projects, and financial plans resulting from the asset management plans would be required to be included directly in the STIP. The FHWA and FTA feel that by changing ‘‘shall’’ to ‘‘should,’’ it conveys the message that States should review the asset PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 management plans when developing the STIP, but are not required to incorporate them into the STIP. The FHWA and FTA retained the provision in section 450.208(f) that for non-NHS highways, States may apply principles and techniques consistent with other asset management plans to the transportation planning and programming process, as appropriate. No comments were received on this provision. Sections 450.218 and 450.326 describe the development of the STIP and TIP. At sections 450.218(o) and 450.326(m) in the NPRM, FHWA and FTA included the requirement that the STIP and the TIPs should be informed by the financial plan and the investment strategies from the asset management plan for the NHS, and the investment priorities of the public transit asset management plans. Similarly, in the NPRM at sections 450.216(n) and 450.324(f)(7), FHWA and FTA included the statement that the long-range statewide transportation plan and the MTPs should be informed by the financial plan and the investment strategies from the asset management plan for the NHS and the investment priorities of the public transit asset management plans. These provisions were proposed in the NPRM by FHWA and FTA to better link the State and MPO long-range plans and programs to the federally required State NHS asset management plan and the transit asset management plans. Numerous comments (DVRPC, AASHTO, ASHTD, ID DOT, MI DOT, MT DOT, ND DOT, SD DOT, SEMCOG, and WY DOT) stated that this requirement was confusing; that it was unclear what FHWA and FTA’s expectations were; that it was not based on statute; and that it should be deleted from the final rule. The States further commented that it infringes on their flexibility to determine the content of their long-range transportation plan, including whether to create a policy-or project-based plan. Most commenters stated that it could be interpreted and applied inconsistently. After reviewing the comments, FHWA and FTA agree that this language is ambiguous regarding what the States and MPOs would be expected to do, and that it would be difficult to implement consistently across all the States and MPOs. The FHWA and FTA also note that, adding to the inconsistency, the financial plans for the MPO MTP, the TIP and the STIP are required to be fiscally constrained, while the financial plans for the asset management plans are not. States may, but are not required to develop a list of projects as part of the E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations State asset management plan for the NHS. Based on these comments and inconsistencies, FHWA and FTA removed this requirement from the final rule. However, the final rule retains the language at sections 450.206(c)(4) and 450.306(d)(4) of the NPRM that requires the integration of elements of other State and transit performance-based plans and processes into the Statewide and metropolitan transportation planning processes. These other plans include the federally required State asset management plan for the NHS and the transit asset management plan. Integration of elements of other performance-based plans and processes means that elements of these other plans and processes should be considered by the State and MPOs as they develop the long-range statewide transportation plan, MTP, STIP, and TIP. The FHWA and FTA feel that this provision is sufficient to link the asset management plans into the statewide and metropolitan transportation planning processes, and is consistent with the statutory requirements at 23 U.S.C. 134(h)(2)(D) and 135(d)(2)(C), and 49 U.S.C. 5303(h)(2)(D) and 5304(d)(2)(C). • Common Effective Date for Performance Related Rules and Phase-In of New Requirements mstockstill on DSK3G9T082PROD with RULES3 Common Effective Date At least 26 commenters (AASHTO, AK DOT, Albany MPO, AMPO, ASHTD, CO DOT, CT DOT, FMATS, GA DOT, H–GAC, IA DOT, MD DOT, MI DOT, MN DOT, MO DOT, NARC, NC DOT, NJ DOT, North Florida TPO, NYS DOT, PSRC, RI DOT, San Luis Obispo COG, SEMCOG, TX DOT, and WA State DOT) commented that all of the new performance management requirements in the final rule should have a single effective date and that the planning requirements should be coordinated with the implementation of the other performance management requirements. They commented that this would ensure that States and MPOs are not establishing different targets for different time periods for different measures and incorporating targets for some measures into their planning processes, but not others. The TX DOT further commented that having one effective date for all of the performance management rules would enable the States and MPOs to work together and ensure the necessary data and analysis techniques are available. The IA DOT commented that it is concerned that the comment period for the planning NPRM closed before all the other FHWA and FTA performance- VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 related rules were published. The DRCOG and RTD expressed concern that because the other performance rules have not been published, it is not clear on how coordination of all the rules will work out, particularly the relationship of the measures and targets and the requirements of any plans that implement them. The RMAP is concerned with overlapping effective dates for the various performance related rules. The FHWA and FTA response to this comment is that FHWA proposed in the prior performance management NPRMs to establish one common effective date for its three performance measure final rules. However, due to the length of the rulemaking process, FHWA is now proposing that each of three performance measures rules have individual effective dates. This would allow FHWA and the States to begin implementing some of the performance requirements much sooner than waiting for the rulemaking process to be complete for all the rules. The first performance measures rule related to the HSIP has been finalized and could be implemented in its entirety before the other two rules. Earlier implementation of this rule is consistent with a DOT priority of improving the safety mission across the DOT. The FHWA also believes that individual implementation dates will help States transition to performancebased planning. Based on the timing of each individual rulemaking, FHWA would provide additional guidance to stakeholders on how to best integrate the new requirements into their existing processes. Under this approach, FHWA expects that even though the implementation for each rule would occur as that rule was finalized, implementation for the second and the third performance measure final rules would ultimately be aligned through a common performance period. In the second performance management measure NPRM, FHWA proposed that the first 4-year performance period would start on January 1, 2016. However, FHWA proposes in the third performance management NPRM that the first performance period would begin on January 1, 2018. This would align the performance periods and reporting requirements for the proposed measures in the second and third performance management measure NPRMs. The FHWA intends to place a timeline that illustrates how this transition could be implemented on the docket for the third performance management rule. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 34075 Phase-In of New Requirements Concerning section 450.226 (phase-in of new requirements), IA DOT asked whether the 2-year compliance date also applies to amendments to long-range statewide transportation plans. The FHWA and FTA response to this comment is that it applies to both amendments and to updates to STIPs and to long-range statewide transportation plans. This is described in the regulatory text at 450.226 and is based on 23 U.S.C. 135(l). For section 450.226, one commenter (DC DOT) suggested that FHWA and FTA consider changing the language in the final rule such that only STIP (and TIP) updates would be required to comply with the performance management requirements after the 2year transition period instead of requiring compliance with STIP (and TIP) amendments and updates. The commenter stated that this would provide an additional 2 years of transition time during which amendments could be made to the STIPs and TIPs because they only have to be updated at least once every 4 years and that allowing amendments for an additional 2 years would reduce the possibility of delays in project implementation. The FHWA and FTA do not agree with this comment and believe that the 2-year transition provided for by MAP–21 and final rule is adequate. The FHWA and FTA believe that 23 U.S.C. 135(l) provides for a 2-year transition after the publication of the final planning rule. Title 23 U.S.C. 135(l) provides that States shall reflect changes made to the long-range statewide transportation plan or STIP updates not later than 2 years after the date of issuance of guidance by the Secretary. The FHWA and FTA believe that the issuance of guidance as described in 23 U.S.C. 135(l) means issuance of the final rule by FHWA and FTA. The FHWA and FTA have interpreted this to mean that STIP updates and amendments would have to comply with the MAP–21 requirements, including the performance-based planning requirements of this rule, after the transition period. The FHWA and FTA note that although States and MPOs have a 2-year transition period for reflecting the performance-based planning requirements in the underlying planning documents, they must set targets on the schedules discussed in sections 450.206(c)(2) and 450.306(d)(3) and below. Also, when setting targets, States and MPOs are required to coordinate as described in the final rule E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34076 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations in sections 450.206(c)(2) and 450.306(d)(3). No changes are made to the final rule based on these comments. The final rule includes similar transition requirements for the MPO MTP and TIP in section 430.340. See the NPRM section by section analysis for section 450.340 for more discussion on why the rule also applies the transition period to MPOs. No changes are made to the final rule based on these comments. For sections 450.226 and 450.340, one commenter (DRCOG) stated that the phase-in schedule is unclear. The NPRM stated that States have 1 year to establish performance targets, and MPOs have 180-days to set targets after the States set targets (1.5 years total), but the NPRM also referenced a 2 year phase-in period to develop and coordinate targets. In response to this comment, FHWA and FTA note that it is correct that States must establish targets within 1 year of the effective dates of the performance management rules and MPOs must establish targets within 180days of when their respective States set targets. While these targets have to be set by the States and the MPOs on this timeframe, these targets and the other performance-based planning requirements of the final rule do not have to be reflected in the long-range statewide transportation plan, MTP, STIP, and TIP until 2 years after the effective dates of this final rule and the performance management rules establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 U.S.C. 5329. Also concerning section 450.340, two commenters (IA DOT, WFRC) commented that it is unclear if the 2year compliance date also applies to amending long-range statewide transportation plans and MTPs, or if it applies only to updated plans. The FHWA and FTA response to this comment is that the 2-year compliance date applies to both amended and updated long-range statewide transportation plans and MTPs. The New York State Association of MPOs and NYMTC commented that FHWA and FTA should not require MPOs to incorporate performance-based planning provisions into their MTPs or TIPs until 2 years after the last final rule related to performance-based planning is published in the Federal Register. The FHWA and FTA response to this comment is that, as described in sections 450.226 and 450.340, the phase-in of the performance-based planning requirements are triggered by the effective date of this final rule and the effective dates for the individual VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 final rules for the other performance management rules. The FHWA and FTA believe that this will not be too burdensome given that this regulation provides a 2-year transition period rule after the effective dates of this rule and the performance management rules for the planning process and the planning documents to reflect the performancebased requirements in this rule. Updates or amendments to the long-range statewide transportation plan and the MTP(s) and the STIP and TIPs that occur on or after the date that is 2 years after the effective date of the performance management rule(s) must be developed according to the performance-based provisions and requirements of this regulation and in such rule(s). The WA State DOT commented that FHWA and FTA should consider delaying the implementation of the performance management requirements of the final rule from 2 years after the publication date to 2 years after the publication date of the final rule and the issuance of guidance. In response to this comment, FHWA and FTA believe that the final rule and the other performance management final rules are the guidance referred in 23 U.S.C. 135(l). No changes are being made to the final rule as a result of this comment. The NJ DOT and NARC stated that FHWA and FTA should consider additional flexibility for States, MPOs, and operators of public transportation in complying with the 2-year phase–in requirements for developing and updating their planning documents to the new planning regulations. The commenter is concerned with having as many as five different compliance dates which the commenter felt could cause confusion and make it difficult to coordinate. In response, see the FHWA and FTA responses to comments on one common effective date elsewhere in this section. The DRCOG and RTD want FHWA and FTA to recognize and reconcile the timing and durations of the long-range statewide transportation plan, the MPO MTP, and the other performance-based plans and processes, such as the federally required transit asset management plans and the State asset management plan for the NHS. In response to this comment, FHWA and FTA note that Congress established that FHWA and FTA shall not require States to deviate from their established planning update cycle to implement the changes in the final rule (23 U.S.C. 135(l)). The FHWA and FTA extended this same flexibility to the MPOs. The FHWA and FTA reflected this requirement in the phase-in of new PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 requirements under sections 450.226 and 450.340. The FHWA and FTA hope that, after the phase in of these requirements, the States, MPOs, and operators of public transportation within each State will work together to align their processes and procedures, to the extent they deem practicable, for purposes of coordinating performancebased planning and programming and the associated documents such as the various performance related plans, programs, and processes. Returning to section 450.226, DRCOG and RTD commented that the phase-in schedule is unclear and that it would like for MPOs to have 2 years to set targets after States. The FHWA and FTA believe that Congress established in 23 U.S.C. 134(h)(2)(C) to provide up to 180 days for MPOs to set performance targets after their respective State sets targets. Section 450.306(d)(3) in the final rule reflects that intent. The IA DOT requested clarification on sections 450.226 and 450.340 as to which final effective date (this rule or the performance measures rules) is being required when discussing the 2year compliance date for the phase-in period of performance-based planning requirements in the final rule. In response to this comment, FHWA and FTA note that under sections 450.226 and 450.340, States and MPOs have 2 years from the effective date of each performance measures rule, and 2 years from the effective date of this final rule, whichever is later, to meet the performance-based planning and programming requirements. The MN DOT commented that the effective date should be far enough in the future to provide time for the longrange statewide transportation plan and STIP development to go through appropriate public review. In response to this comment, FHWA and FTA believe that the 2-year phase-in period provided in section 450.226 after the effective date of the final rule is sufficient time for States to undertake appropriate public review as part of updating the long-range statewide transportation plan and STIP. • Other Changes Proposed by Commenters Performance Measures Concerning section 450.206 (scope of the statewide and nonmetropolitan transportation planning process), SFRTA suggested that the final rule should emphasize the development of standardized environmental performance measures into the statewide, metropolitan, and nonmetropolitan transportation E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations planning processes. The FHWA and FTA response to this comment is that environmental performance measures are not included in the list of performance measures that MAP–21 requires FHWA and FTA to establish. Title 23 U.S.C. 150(c)(2)(C) precludes FHWA from establishing any national performance measures outside those areas identified in 23 U.S.C. 150. The FHWA and FTA also note that the establishment of specific performance measures is outside the scope of the final rule. The ARTBA provided comments on specific examples of suggested performance measures for consideration by FHWA and FTA, such as freight, safety, and the economic costs of congestion. The FMATS, NRDC, Partnership for Active Transportation, and SFRTA commented on specific performance measures that they felt should be considered by FHWA and FTA in the new performance-based planning and target setting requirements described in subsection 450.306(d). Concerning sections 450.324 and 450.326 (development and content of the MTP and TIP), the National Housing Conference and the Center for Social Inclusion commented that spending decisions should be linked to performance measures and ensure that those measures promote sustainable development and a more holistic view of how transportation investments can serve the broader community. They also commented that an equity analysis, which includes performance measures specific to equity, should be done on the MTP and the TIP. The FHWA and FTA response to these comments is that recommendations for specific performance measures are outside the scope of the final rule. The federally required performance measures are being established through other FHWA and FTA rulemakings. Returning to section 450.206, APTA commented that FHWA and FTA should not impose project-by-project performance measures or require project-by-project reporting on performance. On section 450.218(r) of the NPRM (development and content of the STIP), AASHTO, CT DOT, FL DOT, GA DOT, ID DOT, MT DOT, NC DOT, ND DOT, NYS DOT, SD DOT, TriMet, WI DOT, and WY DOT commented that States should not be required to include information on individual projects and should not be required to link individual projects with specific performance measures as part of the discussion on the anticipated effect of the STIP toward achieving the performance targets in the long-range statewide transportation plan (note VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 section 450.218(r) in the NPRM is section 450.218(q) in the final rule). On section 450.324(f)(4) (development and content of the MTP), several commenters (ARC, DVRPC, NYMTA, NYMTC, and PA DOT) commented that the required system performance report in the MTP should only consider conditions and trends at the system level, and should not be required to conduct a project specific analysis. On section 450.326(d) (development and content of the TIP), AASHTO, Albany MPO, DVRPC, Florida MPO Advisory Council, H–GAC, IA DOT, MAG, MARC, NARC, North Florida TPO, NYMTA, Orange County Transportation Authority, PA DOT, San Luis Obispo COG, Santa Cruz County RTC, and TriMet commented that the required discussion on the anticipated effect of the TIP toward achieving the performance targets should not be on a project basis. They suggested that it should instead be on the basis of the entire program in the TIP. Transportation for America commented that it wanted a clear statement in the final rule requiring States and MPOs to evaluate projects according to the federally required performance measures. The FHWA and FTA response to these comments is that that the final rule does not require project-by-project performance measures or reporting of performance at the individual project level. Reporting in the TIP will be on the performance of the program in the TIP. The FHWA and FTA believe that this is clear and that no changes to the final rule are necessary. With regards to any specific requirements for target setting or reporting in other rules or guidance, that is outside the scope of the final rule. The specific performance measures will be established under other FHWA and FTA performance rules or guidance. Based on these comments, no changes have been made to the final rule. The ARC, MARC, DRCOG, and RTD requested flexibility in reporting and documenting targets for performance measures and progress reporting on meeting targets as required under sections 450.306, 450.324, and 450.326 as part of the MTP and the TIP. The DRCOG and RTD also expressed concern about setting transit targets and want flexibility in how they do it. The NYMTA commented on section 450.306 that there should be flexibility in setting targets. The NYMTA commented that they should be able to set their own targets, and the targets should not be required to be realistic or ‘‘hard.’’ The MARC also asked for clarification as to whether the documentation for the PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 34077 system performance plan required in section 450.324(f)(4) for the MTP could be in a separate document and referenced in the plan. The ARC asked if the description of how the TIP helps achieve the performance measures in the MTP (section 450.326(d)) could be documented through a separate document and not directly in the TIP. The GA DOT commented that reporting should be done in a nonburdensome manner. The WI DOT commented on section 450.206(c) that States should have flexibility in setting targets. The FHWA and FTA response to these comments is that under the final rule, MPOs and operators of public transportation are required to coordinate to the maximum extent practicable when setting transit performance targets. The MPOs must include transit targets as part of the MTP and describe progress toward achieving those targets with each update of the plan. In the TIP and STIP, States and MPOs must describe how those plans make progress toward achievement of targets. The requirements for setting specific, federally required targets for MPOs and operators of public transportation are outside the scope of the final rule. The FHWA and FTA note that there other rules specific to transit and highway performance targets. The FHWA and FTA plan to issue guidance on the performance-based planning reporting requirements for updates to the STIPs, TIPs, and the long-range statewide transportation plan, and the metropolitan transportation plan after the issuance of the final rule. With regards to the comment requesting clarification as to whether the documentation for the system performance plan required in section 450.324(f)(4) for the MTP could be in a separate document and referenced in the plan, FHWA and FTA respond that it should be included as part of the MTP. Similarly, the documentation for the requirements of section 450.326(d) on the anticipated effect of the TIP toward achieving the performance targets in the MTP should be included directly in the TIP. The FMATS commented that it wants FHWA and FTA to be flexible in evaluating MPO system performance reports because, for NHS projects, there may be different priorities at the MPO level than at the State level for the NHS. In response, FHWA and FTA note that the final rule requires States and MPOs to coordinate when setting performance targets for the metropolitan area, including those targets that may be associated with the NHS. When reviewing the metropolitan transportation planning process, FHWA E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34078 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations and FTA will be reviewing the State and MPO coordination on target setting in addition to the reporting requirements for the MTP and TIP. The FHWA and FTA reiterate that the final rule requires that the State and MPO performance targets for the metropolitan area should be coordinated and consistent to the maximum extent practicable (sections 450.206 and 450.306). The ARC commented that it is unlikely that the 4-year TIP will result in meeting targets. In response, FHWA and FTA note that, as described in section 450.326(c), the TIP shall be designed by the MPO such that once implemented, it makes progress toward achieving the performance targets in the MTP. The FHWA and FTA further note that as an MPO sets targets under section 450.306(d)(2), it should select targets that are realistic given available funding. The MN DOT commented that the rules should explicitly identify who has ultimate authority for establishing the targets in case of conflict. The MT DOT commented that States must retain authority in target setting. In response to these comments, FHWA and FTA note that States are responsible and have authority for establishing State targets as described in section 450.206. The MPOs are responsible for setting MPO targets in metropolitan areas as described in section 450.306. Operators of public transportation are responsible for setting transit targets in metropolitan areas as described in section 450.306. The FHWA and FTA reiterate that, as described in sections 450.206 and 450.306, States and MPOs are required to coordinate when establishing targets to ensure consistency of their targets to the maximum extent practicable. The MPOs and operators of public transportation are to coordinate to the maximum extent practicable when setting targets for a metropolitan area. No one agency has ultimate authority for establishing targets. No changes are made to the final rule as a result of this comment. The SCVTA commented that both the final rule and the preamble should be clear that operators of public transportation should cooperate with States and MPOs to assist them in their target setting, but States and MPOs have no required role in target setting being done by operators of public transportation. The commenter further noted that proposed sections 450.206 and 450.306 of the NPRM appear to reflect this concept. However, the preamble to the NPRM could cause some to interpret these sections differently. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 In response to these comments, FHWA and FTA reiterate that the NPRM and the final rule require States and MPOs to coordinate to ensure consistency to the maximum extent practicable when setting targets for the performance areas described in 23 U.S.C. 150(c) and the measures established under 23 CFR part 490 (sections 450.206(c)(2) and 450.306(d)(2)(ii)). The final rule requires MPOs to coordinate to the maximum extent practicable with operators of public transportation when selecting performance targets that address performance measures described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) (section 450.306(d)(2)(iii)). The final rule also requires that States coordinate to the maximum extent practicable with operators of public transportation in areas not represented by an MPO, when selecting targets for public transportation performance measures, to ensure consistency with the performance targets that operators of public transportation establish under 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) (section 450.206(c)(3)). The FL DOT commented that performance measures should not be used for apportioning funds among States. Similarly, the NYMTA commented that there should not be a link between targets and funding. The FHWA and FTA respond that this comment is outside the scope of the final rule. There are other FHWA and FTA rules on the specific performance measures, target setting for those measures, and any consequences for not achieving targets. The FL DOT commented that the requirement for performance reporting of the federally required performance measures as part of the long-range statewide transportation plan and STIP does not extend to other locally determined performance measures outside of the federally required measures. The FHWA and FTA agree with this comment. No changes are made to the final rule as a result of these comments. The DRCOG and RTD commented that the final rule does not identify the consequences for not making significant progress on meeting performance targets. The FHWA and FTA response to this comment is that it is outside the scope of this final rule. However, FHWA and FTA note that such consequences would be identified in the corresponding MAP–21 rulemakings related to performance management, which will include opportunities for comment. The ARC commented that they do not want the imposition of overly rigid targets. The FHWA and FTA response to PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 this comment is that under section 450.306(d)(2) of the final rule, each MPO sets its own targets in coordination with the State and operators of public transportation. Other FHWA and FTA performance rules may have more criteria for setting performance targets. However, that is outside the scope of the final rule. The MARC commented that FHWA and FTA should support target setting through technical assistance. In response to this comment, FHWA and FTA note that this is outside the scope of the final rule and is more appropriate for the other FHWA and FTA performance measures rules that establish the specific performance measures. The FMATS expressed concern about the timing for target setting, particularly a 1-year target period, and would like targets set based on the MTP schedule and the long-range statewide plan schedule. In response to this comment, FHWA and FTA note that the target update process is in the other performance measures rules and is outside the scope of the final rule. The final rule requires States to initially set targets for the measures identified in 23 U.S.C. 150(c) within 1 year of the effective date for the other DOT final rules on performance measures (section 450.206(c)(2)) (23 U.S.C. 135(d)(2)(B)) in accordance with the appropriate target setting framework established at 23 CFR part 490. The final rule requires MPOs to set targets that address performance measures described in 23 U.S.C. 150(c) and 49 U.S.C. 5326(c)–(d) within 180 days after the completion of same by the State or operator of public transportation (section 450.306(d)(3) (23 U.S.C. 134(h)(2)(C)). The FHWA and FTA believe such a deadline reflects congressional intent in the MAP–21. The ARTBA commented that it wanted to be clear that the focus of NHPP funds is highway and bridge projects. The ARTBA also commented that, in light of section 1503(c) of the MAP–21 (project approval and oversight), the more information the public has, the more transparent and accountable the process will be. Section 1503(c) of the MAP–21 requires that DOT annually compile and submit a report containing a summary of annual expenditure data for funds made available under title 23 U.S.C. and chapter 53 of title 49 U.S.C. to Congress, and make the report publicly available on the DOT’s public Web site. The FHWA and FTA response to these comments is that they are outside the scope of the final rule. E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 Integration of Other State PerformanceBased Plans and Programs Into the Planning Process Section 450.208 describes coordination of planning process activities. Section 450.206 describes the scope of the statewide and nonmetropolitan transportation planning process. In the NPRM at section 450.208(g), FHWA and FTA included language on the integration of elements of other State performancebased plans and processes into the statewide transportation planning process and listed examples of these other plans and processes. Concerning section 450.208(g), AASHTO, CT DOT, NJ DOT, and NC DOT requested that FHWA and FTA eliminate redundant references to the integration of goals and objectives into the statewide planning process, as proposed in the NPRM. The commenters stated that this provision in section 450.208(g) is unnecessary because it is duplicative of the requirement in section 450.206(c)(4). After reviewing the comments, FHWA and FTA agree that section 450.208(g) has the same meaning, essentially repeats section 450.206(c)(4), and is therefore unnecessary. The FHWA and FTA have removed section 450.208(g) from the final rule while retaining section 450.206(c)(4). The ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT also commented on section 450.308(g). They suggested that FHWA and FTA should remove the list of examples of State performance-based plans and processes listed in this section because it should be left up to the State to decide which plans and processes to integrate into the planning process. The IA DOT expressed concern with section 450.208(g) integrating a large number of plans into its planning process. In response to these comments, as noted above, FHWA and FTA have eliminated section 450.208(g) because it repeats the requirements of section 450.206(c)(4). Section 450.206(c)(4) retains the requirement to integrate elements from other federally required performance-based plans and processes into the statewide transportation planning process. Section 450.306(d)(4) maintains similar requirements for metropolitan areas. The FHWA and FTA believe that in 23 U.S.C. 134(h)(2)(D) and 135(d)(2)(C), Congress intended for elements of other performance-based plans and processes to be integrated into the statewide and metropolitan transportation planning processes. The FHWA and FTA believe that such intent is reflected in the final rule (sections VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 450.206(c)(4) and 450.306(d)(4)). The FHWA and FTA also provided specific examples of federally required performance-based plans and processes to provide more clarity in these sections of the rule and reflect Congress’s intent. Therefore, no changes are made to the final rule as a result of this comment. Differences Between State and MPO Requirements in the Final Rule Concerning section 450.216 (development and content of the longrange statewide transportation plan), FMATS, NARC, NRDC, San Luis Obispo COG, and Transportation for America commented that differences between the State and metropolitan planning sections of the final rule should be reconsidered. Namely that for the regulations governing the long-range statewide transportation plan, the word ‘‘should’’ is sometimes used, whereas for the MTP in section 450.324, the word ‘‘shall’’ is sometimes used (e.g., with fiscal constraint and the accompanying financial plan). The commenters made a similar comment regarding the inclusion of performance targets in the long-range statewide transportation plans, that States are held to a lower standard (‘‘should’’) in the long-range statewide transportation plan, than the MPOs (‘‘shall’’) in the MTPs. On section 450.218 (development and content of the STIP), the NRDC commented that they disapprove of the differences between the sections of the final rule covering STIPs and the sections covering TIPs, particularly the use of the words ‘‘may’’ and ‘‘shall,’’ and that the provisions in the regulations for the State STIP should mirror those for the MPO TIP. For example, in paragraph (l), the STIP may include a financial plan, whereas in section 450.324(f)(11), the TIP shall include a financial plan. The FHWA and FTA acknowledge that the statewide long-range transportation plan and MTP provisions and the STIP and TIP provisions do not mirror each other with regard to the use of the words ‘‘may,’’ ‘‘should,’’ and ‘‘shall.’’ The FHWA and FTA disagree that the differences between the statewide and metropolitan sections should be reconciled in regards to the usage of those words. The FHWA and FTA note that Congress specifically draws this distinction between the statewide and the MTPs in the statute and the final rule reflects that requirement. The final rule is also historically consistent with how the statute has distinguished between States and MPOs. The FHWA and FTA note that the use of the words ‘‘should’’ and ‘‘shall’’ in the final rule is PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 34079 consistent with statutory language. The FHWA and FTA note that, in one instance, the FAST Act amended 23 U.S.C. 135(f)(7) and changed the State requirement from ‘‘should’’ to ‘‘shall,’’ specifically, when requiring a State to include a description of the performance measures and targets and a systems performance report in the longrange statewide transportation plan. This change is made in the final rule in sections 450.216(f)(1) and (2). No other changes are made to the final rule based on these comments. Integration of Health Into the Transportation Planning Process The Partnership for Active Transportation and the Sierra Club commented on sections 450.206 and 450.306. They commented that health should be integrated into the planning process and that FHWA and FTA also include performance measures relating to how transportation infrastructure promotes healthy living. The commenters further stated that the final rule does not address safety issues of active transportation users. However, they appreciate that the final rule does contain explicit language on nonmotorized transportation facilities, including pedestrian walkways and bicycle facilities. The Sierra Club further commented that the performance metrics that identify the impacts of investments on individual and community health should be more reliably identified on a disaggregated basis in travel modeling. The FHWA and FTA response to these comments is that FHWA and FTA are actively working with transportation planning stakeholders and undertaking research to identify ways that health can be integrated into the transportation planning process. This research is focused on better consideration of health outcomes in transportation by promoting safety; improving air quality; protecting the natural environment; improving social equity by improving access to jobs, healthcare, and community services; and on opportunities for the positive effects of walking, biking, public transportation, and ride sharing. The results of this research are available online at: https:// www.fhwa.dot.gov/planning/health_in_ transportation/. The FHWA and FTA continue to update this Web site with new material. The FHWA and FTA do not feel that it is appropriate at this time to include public health within the scope of the final rule, and that it is left up to the States and MPOs to decide whether or not they want to include health considerations in their transportation E:\FR\FM\27MYR3.SGM 27MYR3 34080 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations planning processes. The FHWA and FTA provide research and examples of best practices to the States and MPOs on this topic area, which can be used in their planning processes and integrated to the degree they feel is appropriate. The discussion of specific performance measures, including measures for health considerations in transportation, is outside the scope of the final rule because this rule does not establish specific performance measures. Based on this comment, the FHWA and FTA made no changes to the final rule. mstockstill on DSK3G9T082PROD with RULES3 Integration of Climate Change Into the Transportation Planning Process and Reducing Carbon Dioxide Emissions The VT DOT recommended incorporating climate resilience as one of the components of the statewide transportation planning process. The FHWA and FTA believe that including climate resilience as a component of the statewide and the metropolitan transportation planning process is a good practice, and have developed resource materials in the form of peer exchanges, workshops, guidebooks, and other references for States, MPOs, and operators of public transportation on this topic that are available on FHWA’s climate change Web site at: https:// www.fhwa.dot.gov/environment/ climate_change/. The FHWA and FTA will continue to update this Web site with new material. It is clear that reducing CO2 emissions is critical and timely. On-road sources account for over 80 percent of U.S. transportation sector greenhouse gasses (GHG). In an historic accord in Paris, the U.S. and over 190 other countries agreed to reduce GHG emissions, with the goal of limiting global temperature rise to less than 2° C above pre-industrial levels by 2050. According to the Intergovernmental Panel on Climate Change (IPCC), human activity is changing the earth’s climate by causing the buildup of heat-trapping GHG emissions through the burning of fossil fuels and other human processes.14 Transportation sources globally have been a rapidly increasing source of GHGs. Since 1970, GHGs produced by the transportation sector have more than doubled, increasing at a faster rate than any other end-use sector. The GHGs from total global on-road sources have more than tripled, accounting for more than 80 percent of the increase in total global 14 The IPCC Document: IPCC, 2014: Summary for Policymakers. In: Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 transportation GHG emissions.15 In the U.S., GHG emissions from on-road sources represent approximately 23 percent of economy-wide GHGs, but have accounted for more than twothirds of the net increase in total U.S. GHGs since 1990,16 during which time vehicle miles traveled (VMT) also increased by more than 30 percent.17 A well-established scientific record has linked increasing GHG concentrations with a range of climatic effects, including increased global temperatures that have the potential to result in dangerous and potentially irreversible changes in climate and weather. In December 2015, the Conference of Parties nations recognized the need for deep reductions in global emissions to hold the increase in global average temperature to well below 2 °C above pre-industrial levels, and are pursuing efforts to limit temperature increases to 1.5 °C. To that end, the accord calls on developed countries to take a leadership role in identifying economy-wide absolute emissions reduction targets and implementing mitigation programs. Also, as part of a 2014 bilateral agreement with China, the U.S. pledged to reduce GHG emissions to 26–28 percent below 2005 levels by 2025, with this emissions reduction pathway intended to support economywide reductions of 80 percent or more by 2050. The FHWA recognizes that achieving U.S. climate goals will likely require significant GHG reductions from onroad transportation sources. To support the consideration of GHG emissions in transportation planning and decisionmaking, FHWA has developed a variety of resources to quantify on-road GHG emissions, evaluate GHG reduction strategies, and integrate climate analysis into the transportation planning process. The FHWA already encourages transportation agencies to consider GHG emissions as part of their performancebased decisionmaking, and has developed a handbook to assist State DOTs and MPOs interested in addressing GHG emissions through performance-based planning and 15 Sims, et al. 2014: Transport: In Climate Change 2014, Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. p. 605. 16 This is the first year of official U.S. data. 17 U.S. Environmental Protection Agency, 2015. Inventory of U.S. Greenhouse Gas Emissions and Sinks, 1990–2015. Washington, DC. Tables 2–1 and 2–13. Federal Highway Administration, 2013 Status of the Nation’s Highways, Bridges, and Transit: Conditions & Performance. Washington, DC. Exhibit 1–3. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 programming.18 The FHWA has developed tools to help State and local transportation agencies address GHG emissions associated with their systems. These include the Energy and Emissions Reduction Policy Analysis Tool (EERPAT),19 a model that evaluates the impacts of CO2 reduction policies for surface transportation, and the Infrastructure Carbon Estimator (ICE),20 a tool that specifically evaluates CO2 associated with the construction and maintenance of transportation infrastructure. The FHWA is also currently conducting a number of pilots to analyze the potential GHG emission reductions associated with various transportation-related mitigation strategies.21 Even with these efforts, FHWA recognizes that more will be needed to meet the U.S. climate goals. The FHWA is considering how GHG emissions could be estimated and used to inform planning and programming decisions to reduce long term emissions. As part of the rulemaking process for the National Performance Measures for Assessing System Performance, CMAQ Congestion, CMAQ On-Road Mobile Source Emissions, and Freight Movement, FHWA is seeking comment on the potential establishment and effectiveness of a measure as a planning, programming, and reporting tool. The FHWA and FTA note that, in response to amendments to 23 U.S.C. 134 and 135 resulting from the FAST Act, this final rule includes a new planning factor that States and MPOs should consider and implement on improving resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation as part of the statewide and metropolitan planning process (sections 450.206(a)(9) and (10) and sections 450.306(b)(9) and (10)). This final rule in section 450.316(b) adds a new requirement for MPOs to coordinate with officials responsible for natural disaster risk reduction when developing a MTP and TIP. In sections 450.200 and 450.300(a), States and 18 A Performance-Based Approach to Addressing Greenhouse Gas Emissions through Transportation Planning, available at https://www.fhwa.dot.gov/ environment/climate_change/mitigation/ publications_and_tools/ghg_planning/ghg_ planning.pdf. 19 The Energy and Emissions Reduction Policy Analysis Tool (EERPAT), available at https:// www.planning.dot.gov/FHWA_tool/. 20 The Infrastructure Carbon Estimator (ICE), available at https://www.fhwa.dot.gov/environment/ climate_change/mitigation/publications_and_tools/ carbon_estimator/. 21 FHWA’s Greenhouse Gas/Energy Analysis Demonstration projects are described at https:// www.fhwa.dot.gov/environment/climate_change/ mitigation/ongoing_and_current_research/ summary/index.cfm. E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 MPOs are required to take into consideration resiliency needs as part of the metropolitan transportation planning process. Section 450.324(f)(7) adds a requirement to reduce the vulnerability of the existing transportation infrastructure to natural disasters to the assessment of capital investment and other strategies to preserve the existing and projected future metropolitan transportation infrastructure in the metropolitan transportation plan. The FHWA and FTA will continue to develop and share best practices, research, workshops, and peer exchanges on this topic for use by States and MPOs to aid with the implementation of their planning processes. Other Topics The North Central Pennsylvania Regional Planning and Development Commission (RPDC) requested that there be a review of NHS and principle arterials and functional classification systems. The FHWA and FTA response to this comment is that it is outside the scope of the final rule. The North Central Pennsylvania RPDC commented that regional Unified Planning Work Programs (UPWP) are an eligible means to structure planning activities. The FHWA and FTA response to this comment is that section 450.308 describes the requirements for an MPO UPWP. The UPWP documents metropolitan transportation planning activities performed with funds provided under 23 U.S.C. and 49 U.S.C. chapter 53, in accordance with this section and 23 CFR part 420, and contains a discussion of the planning priorities for the MPA. The DRCOG and RTD commented that they wanted the final rule to be clearer on how funding will be made available and how funding will be distributed among entities. The FHWA and FTA respond that this comment is outside the scope of the final rule. The Partnership for Active Transportation stated that planners should be required to collect and aggregate data relating to active transportation infrastructure and its use. The FHWA and FTA response to this comment is that section 450.216(a) requires the State to develop a longrange statewide transportation plan that provides for the development and implementation of a multimodal transportation system for the State, including non-motorized modes. In meeting this requirement, the long-range statewide transportation plan may be a policy plan, so it is up to the individual States to determine the degree to which VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 they collect and aggregate data relating to active transportation infrastructure and use. In section 450.324(b), MPOs are required to include strategies and actions in their MTPs that provide for the development of an integrated multimodal transportation system, including accessible pedestrian walkways and bicycle transportation facilities. Section 450.324(f)(2) requires that MPOs include existing and planned facilities in the MTP, including nonmotorized transportation facilities. Section 450.324(f)(1) requires that the MTP include the current and projected demand of persons and goods in the MPA over the period of the MTP. With regards to collecting data on the usage of active transportation, it is up to the individual MPOs to decide what and how much data they need to collect on active transportation usage to meet the MTP requirements in sections 450.324(b), (f)(1), and (f)(2). The County of Maui, HI commented that it is concerned about a one-size-fitsall final rule, particularly in relation to the smaller MPOs, and that it wants significant reductions to the final rule for small communities that have recently emerged from a rural status. In response to this comment, FHWA and FTA note that section 450.308(d) of the rule provides that an MPO in an urbanized area not designated as a TMA may prepare a simplified statement of work, in cooperation with the State and the operators of public transportation, in lieu of a UPWP. The FHWA and FTA also note that under section 450.306(i), an MPO in an urbanized area not designated as a TMA but in an air quality attainment area may, taking into account the complexity of the transportation problems in the area, propose and submit for approval to FHWA and FTA a procedure for developing an abbreviated MTP and TIP. The MPO shall develop the simplified procedures in cooperation with the State and the operators of public transportation. The FHWA and FTA believe these provisions provide significant flexibility for MPOs serving non-TMA urbanized areas that are in air quality attainment areas. No changes are made to the final rule based on this comment. V. Section-by-Section Discussion The section-by-section discussion of statewide and nonmetropolitan planning and metropolitan planning summarizes the public comments received and the FHWA and FTA responses. It also serves as a summary of any changes to the regulatory text in the NPRMs that are made in the final PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 34081 rule as a result of the comments. For topics on which there are recurring comments in multiple sections, FHWA and FTA have consolidated the comments and responses in section IV(B), leaving references to the comment in this section so the reader can return to review them. The FHWA and FTA have changed the term ‘‘decisionmaking’’ to read ‘‘decision-making’’ in the final rule. In response to a comment from the WI DOT, FHWA and FTA also changed the final rule to refer to the ‘‘long-range statewide transportation plan’’ consistently throughout. The Memphis Urban Area MPO submitted several comments on the NEPA process. The FHWA and FTA note that the NEPA process is outside the scope of the final rule. The MD DOT made a general comment that FHWA and FTA should limit the rulemaking to what is required by statute. The FHWA and FTA response to this comment is that, when drafting the final rule, FHWA and FTA had an overarching goal of staying as close to the statutory requirements as possible. The AASHTO commented that it wanted consistent usage, or definitional distinctions, of similar terms such as ‘‘transit operator’’ and ‘‘transit provider’’ in the final rule. The FHWA and FTA response to this comment is that those terms are meant to mean the same thing. In order to be consistent, FHWA and FTA used the term ‘‘operator of public transportation’’ throughout the document. The AASHTO and the WA State DOT commented that they wanted consistent use of terms for the asset management plan for the NHS. The FHWA and FTA response to this comment is that FHWA and FTA have tried to use the term State asset management plan for the NHS consistently throughout this document. Subpart A—Transportation Planning and Programming Definitions Section 450.100 Purpose No comments were received on this section. The FHWA and FTA did not make any changes in the final rule to the language proposed in the NPRM for this section. Section 450.102 Applicability No comments were received on this section. The FHWA and FTA did not make any changes in the final rule to the language proposed in the NPRM for this section. Section 450.104 Definitions The FHWA and FTA received 33 comments on proposed changes to terms E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34082 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations and definitions in section 450.104. Commenters included Albany MPO, AASHTO, AMPO, Capital Area MPO, CT DOT, ID DOT, MT DOT, ND DOT, SD DOT, WY DOT, Florida MPO Advisory Council, Houston MPO, IA DOT, ME DOT, MN DOT, MT DOT, NARC, the National Housing Conference, the National Trust for Historic Preservation, NCTCOG/RTC, ND DOT, NRDC, NJ DOT, NYMTA, OK DOT, Portland Metro (a transit operator), Richmond MPO, SCCRTC, TN DOT, TX DOT, WFRC, WA State DOT, Westchester County Department of Public Works and Transportation, and WY DOT. Fifteen of the comments were from States, eight were from MPOs, five were from associations representing public transportation agencies, three were from advocacy groups, one was from a regional planning agency, and one was from a local government. The OK DOT requested that FHWA and FTA ensure that the proposed definitions retain the verbiage in 23 U.S.C. 134 and 23 U.S.C. 135 and that they are clear and serve the intent of the law. The FHWA and FTA concur with this comment and strive to ensure that all definitions proposed are clear and consistent with 23 U.S.C.134 and 135 and 49 U.S.C. 5303 and 5304. Amendment—Five comments (NARC, NYMTA, SCCRTC, TN DOT, and WFRC) sought clarity with respect to the proposed changes to the definition of the term ‘‘amendment.’’ In the NPRM, FHWA and FTA proposed to change the definition of amendment to clarify that a conformity determination is not a criterion for determining the need for an amendment in nonattainment and maintenance areas, and also proposed to add a transit example of a change in design concept or scope to the definition of amendment. The TN DOT stated that the proposed revision to more accurately reflect the relationship of the Clean Air Act’s transportation conformity requirements to the planning process was confusing, noting that TIP amendments usually trigger a conformity determination not vice versa. The FHWA and FTA response to this comment is that, as described in the NPRM’s section-by-section analysis, the proposed definition clarifies that a conformity determination is not a criterion for determining the need for an amendment in nonattainment and maintenance areas. Three commenters (NARC, SCCRTC, and WFRC) requested that FHWA and FTA not include the proposed phrase ‘‘changing the number of stations in the case of fixed guideway transit projects’’ to the list of examples of major changes VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 in design concept or design scope as they feel requiring amendments for every time the number of stations changes is too burdensome. In response to this comment, FHWA and FTA included the phrase ‘‘changing the number of stations in the case of fixed guideway transit projects’’ in the final rule, as proposed in the NPRM in order to add a transit example of a change in design concept or design scope to the definition. The NYMTA commented that the definition of amendment should be revised to note that an amendment to a TIP does not trigger a reassessment of the TIP’s impact on achieving performance targets. The FHWA and FTA respond that the commenter is correct, amendments to a TIP do not trigger the requirement in section 450.326(d) to include a description of the anticipated effect of the TIP toward achieving the performance targets. Only an update to the TIP triggers the requirements in section 450.326(d). The FHWA and FTA do not believe it is necessary or desirable to include this as part of the definition of amendment in section 450.104 as it would make the definition lengthy and overly complicated. In response to these comments, FHWA and FTA did not change the definition of amendment in the final rule. Asset Management—The TX DOT requested that the new definition of the term ‘‘asset management’’ references the NHS since 23 U.S.C. 119(e) specifies a risk-based asset management plan for the NHS only. The FHWA and FTA retained the definition as proposed because it is identical to the definition in section 1103 of the MAP–21 (23 U.S.C. 101(a)(2)) and refers to the asset management plan requirements for both the NHS and public transportation agencies. The FHWA and FTA also note that the asset management plan for the NHS may also include non-NHS assets. The IA DOT noted that the lack of definitions for performance measures, performances targets, transit asset management plan, and transit asset management system makes it difficult to interpret the regulations related to these items. In response, FHWA and FTA note that the definitions for performance measures, performance targets, transit asset management plan, and transit asset management system will be provided in the rulemakings on those topics. Attainment Area—The FHWA and FTA did not propose changing the definition of attainment area in the NPRM or in the final rule. However, FHWA and FTA clarify that a maintenance area that has satisfied the maintenance planning period PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 requirements as stated in section 175A of the Clean Air Act is considered an attainment area for transportation planning purposes. In general, the maintenance planning period extends 20 years from the effective date of the Environmental Protection Agency’s (EPA) approval of the 10-year maintenance plan and redesignation of the area to attainment for the NAAQS. For example, a carbon monoxide (CO) area was redesignated as an attainment area and the EPA approved its first 10year maintenance plan for CO effective April 30, 1993; and the area has a second maintenance plan, effective April 30, 2003. In this example, the CO area would be considered an attainment area for transportation planning purposes after April 30, 2013, if the area is attainment for all other transportation related pollutants. Conformity—The AASHTO requested that FHWA and FTA edit the proposed definition of conformity by replacing the phrase ‘‘in any area’’ with ‘‘in a nonattainment or maintenance area,’’ as SIPs also apply to attainment areas, whereas conformity does not. The AMPO commented that it wanted to change ‘‘in any area’’ to ‘‘in an adequate or approved SIP in a nonattainment or maintenance area.’’ In response to these comments, the definition has been changed to replace ‘‘in any area’’ with ‘‘in a nonattainment or maintenance area,’’ as suggested by AASHTO and AMPO. The FHWA and FTA do not believe that the additional text suggested by AMPO ‘‘in an adequate or approved SIP’’ provides additional clarity. The FHWA and FTA made no changes based on this additional comment. In the final rule, the term conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement that ensures that Federal funding and approval are given to transportation plans, programs, and projects that are consistent with the air quality goals established by a SSIP. Conformity, to the purpose of the SIP, means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS, any required interim emission reductions, or other milestones in a non-attainment or maintenance area. The transportation conformity regulations (40 CFR part 93, subpart A) sets forth policy, criteria, and procedures for demonstrating and assuring conformity of transportation activities. Consideration—The AASHTO, six States (ID DOT, MT DOT, ND DOT, SD DOT, TX DOT, and WY DOT) and one MPO (H–GAC) requested that FHWA and FTA not include the word E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations ‘‘consequences’’ in the proposed definition of ‘‘consideration’’ as an item to take into account in the consideration process. They expressed concern that including consequences would complicate the planning process, especially given the considerable workload needed to be done by States and MPOs as they move toward a performance-based planning and programming process. They note that the current definition has been in place for an extended period and that it is fair to believe that the Congress did not contemplate that DOT would be revisiting it at the same time that it works to implement the new provisions in the MAP–21. The FHWA and FTA agree that to take into account the consequences of a course of action is a vague expectation that could be difficult to define. Consequently, the final rule does not include the term ‘‘consequences’’ in the definition of ‘‘consideration.’’ In the final rule, consideration means that one or more parties take into account the opinions, action, and relevant information from other parties in making a decision or determining a course of action. Local Official—Three commenters (Florida MPO Advisory Council, RTC/ NCTCOG, and NYMTA) sought additional clarity with respect to the proposed definition of ‘‘local official.’’ The FHWA and FTA proposed to add a definition because of the new emphasis under the MAP–21 on nonmetropolitan transportation planning. The FHWA and FTA proposed that ‘‘local official’’ would be defined as an elected or appointed official of general purpose local government with responsibility for transportation. In general, the commenters sought clarity on how the definition of local official related to the term ‘‘local elected official’’ used in section 450.310(d)(i) as one of the categories of individuals who may serve on an MPO in a designated TMA. As the rule already includes a definition of ‘‘nonmetropolitan local official,’’ FHWA and FTA deleted the definition of ‘‘local official.’’ Long-range statewide transportation plan—The AASHTO and NJ DOT requested that FHWA and FTA use the term ‘‘long-range statewide transportation plan’’ consistently throughout the rule to ensure consistency and clarity. They noted that there are many references in subpart B (450.206(c)(5) and 450.216(f)) that refer to the ‘‘statewide transportation plan’’ where those references are intended to refer to the ‘‘long-range statewide transportation plan.’’ The FHWA and FTA concur with these comments and VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 will ensure that the term long-range statewide transportation plan is used consistently throughout the final rule. Major Mode of Transportation—The Albany MPO, AMPO, and NARC requested that FHWA and FTA delete the definition of major modes of transportation because, as proposed, the definition is overly broad and could be interpreted to include all forms of transportation, including non-major modes. They note that MPOs are in the best position to define what constitutes a major mode of transportation in their respective MPAs. The FHWA and FTA agree that the major modes could vary among MPOs and that they are in the best position to decide which are the major modes of transportation that operate in their metropolitan area. The FHWA and FTA deleted the definition in the final rule. The FHWA and FTA will continue to work with each MPO to determine what major modes exist in their region. Metropolitan Planning Agreement— The MN DOT noted that FHWA and FTA should not use the acronym ‘‘MPA’’ when referencing the metropolitan planning agreement as it could also stand for ‘‘metropolitan planning area.’’ As these are distinctly different, FHWA and FTA will apply the acronym ‘‘MPA’’ to only reference ‘‘metropolitan planning area’’ throughout this rule to avoid confusion. Two advocacy organizations (National Trust for Historic Preservation and NRDC) expressed support for the definition since it explicitly requires more structured coordination between public transportation agencies and MPOs. Scenario planning—Three States (CT DOT, ME DOT, and WA State DOT) and one MPO (Capital Area MPO) submitted comments on the definition of ‘‘scenario planning.’’ While two States (ME DOT and WA State DOT) endorsed the definition, another (CT DOT) expressed concern that the proposed definition is not sufficiently descriptive and would be subject to a variety of interpretations. The CT DOT noted that, as written, the definition provides little guidance for making the final decision between the analyzed scenarios, and recommended a more complete definition by including language about choosing the most practical or likely scenario. In response to this comment, FHWA and FTA note that the definition is intended to be broad and that a more fulsome discussion of ‘‘scenario planning’’ is included in section 450.324(i) (Development and content of the metropolitan transportation plan). In addition, the Capital Area MPO requested that the scenario planning PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 34083 definition be revised to mean: ‘‘A planning process that evaluates the effects of alternative policies, plans, and/or programs on the future of a community or region. This activity can provide additional information to decisionmakers as they develop the transportation plan and other programs and policies.’’ The FHWA and FTA believe the broad definition of scenario planning, as proposed in the NPRM, reflects the intent of Congress in 23 U.S.C. 134(i)(4)(A) and will retain the definition in the final rule. Visualization Techniques—The National Trust for Historic Preservation and NJ DOT noted that the proposed definition of visualization techniques is too narrow and requested that the definition include that visualization techniques be searchable and interactive. The FHWA and FTA appreciate that the technology of visualization is rapidly progressing but are sensitive to the fact that not all MPOs have the technical capacity or resources to support higher levels of sophistication. The FHWA and FTA retained the definition of visualization techniques as proposed in the NPRM and will work to increase the technical capacity of MPOs to develop searchable and interactive inventories of transportation facilities and resources. In addition to comments on the definitions proposed in section 450.104, a number of commenters requested additional definitions. The AASHTO requested that FHWA and FTA provide a discussion on the difference between the definitions of terms such as ‘‘shall’’ and ‘‘should.’’ In response, FHWA and FTA have stated that ‘‘shall’’ denotes a requirement whereas ‘‘should’’ is optional. Subpart B—Statewide and Nonmetropolitan Transportation Planning and Programming The NPRM proposed a change to the title of subpart B from ‘‘Statewide Transportation Planning and Programming’’ to ‘‘Statewide and Nonmetropolitan Transportation Planning’’ to reflect statutory changes. The addition of ‘‘Nonmetropolitan’’ to the title epitomized the MAP–21’s new emphasis on the importance of nonmetropolitan transportation planning. No comments were submitted to the docket on this proposed change. The final rule retains those changes. Section 450.200 Purpose Section 450.200 describes the purpose of subpart B (statewide and nonmetropolitan transportation planning and programming). No comments were received on this section. E:\FR\FM\27MYR3.SGM 27MYR3 34084 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations The FHWA and FTA made no changes to this section based on comments received on the NPRM. Sections 1202 and 1201 of the FAST Act, codified at 23 U.S.C. 135(a)(2) and 23 U.S.C. 134(a)(1) respectively, added intermodal facilities that support intercity transportation, including intercity bus facilities and commuter van pool providers to the purpose of the statewide and metropolitan multimodal transportation planning processes. The final rule at sections 450.200 and 450.300 is amended to reflect this change. Section 1201 and 1202 of the FAST Act amends 23 U.S.C. 134(a)(1) and adds ‘‘takes into consideration resiliency needs’’ to the purpose of the of the metropolitan transportation planning process and the statewide and nonmetropolitan transportation planning process (23 U.S.C. 135(a)(2)). The final rule at sections 450.300(a) and 450.200 are amended to add this change. Section 450.202 Applicability Section 450.202 describes the applicability (to States, MPOs, RTPOs, and operators of public transportation) of subpart B on statewide and nonmetropolitan transportation planning and programming. No comments were received on this section. The FHWA and FTA made no changes to the final rule. mstockstill on DSK3G9T082PROD with RULES3 Section 450.204 Definitions No comments were received on this section. The FHWA and FTA made no changes to the final rule. Section 450.206 Scope of the Statewide Transportation and Nonmetropolitan Planning Process Section 450.206 describes the scope of the statewide transportation and nonmetropolitan planning process. Fifty-three commenters (AASHTO, AK DOT, APTA, ARC, ARTBA, California Association for Coordinated Transportation, CALTRANS, CO DOT, Community Labor United, CT DOT, Danville MPO, DC DOT, Enterprise Community Partners, FL DOT, FMATS, Front Range Economic Strategy Center, MARC, MD DOT, ME DOT, MI DOT, Miami-Dade MPO, MN DOT, MO DOT, MTC, NARC, National Association of Social Workers, National Housing Conference, National Trust for Historic Preservation, NC DOT, ND DOT, NJ DOT, North Central Pennsylvania RPDC, NRDC, NYMTC, NYS DOT, OK DOT, Orange County Transportation Authority, PA DOT, Partnership for Active Transportation, Partnership for Working Families, Policy Link, Public VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Advocates, SACOG, San Luis Obispo MPO, SANDAG,, Santa Cruz MPO, SCAG, SCVTA, SEMCOG, SFRTA, SJCOG, Southeast Alabama RPO, TX DOT, United Spinal Association, VA DOT, VT DOT, WA State DOT, West Piedmont Planning District, WI DO, and WY DOT) submitted comments to the docket on this section. Twenty-four comments were received from State, 12 from advocacy organizations, 10 from MPOs, 5 from operators of public transportation, and 2 from regional planning organizations. The NYS DOT stated that it is generally supportive of the performance-based approach to the transportation planning process. They further stated that they also agree and support the requirement in the final rule that each State, and the MPOs within the State, must establish performance targets in coordination with each other to ensure consistency to the maximum extent practicable. The San Luis Obispo COG expressed its concern that the NPRM imposes different requirements on States and MPOs. Namely, that MPOs are required to include performance targets and a system performance report in their MTP. While States may, but are not required to, include these same elements in the long-range statewide transportation plan. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The SFRTA suggested that the final rule should emphasize the development of standardized environmental performance measures into the statewide, metropolitan and nonmetropolitan transportation planning processes. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The APTA commented that FHWA and FTA should not impose project-byproject performance measures or require project-by-project reporting on performance. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The NRDC commented on specific performance measures that FHWA and FTA should consider. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.206(a) Several advocacy groups (Front Range Economic Strategy Center, Partnership for Working Families, PolicyLink, Public Advocates, and United Spinal Association) commented that the PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 planning process, the use of performance measures, and prioritization of projects by States and MPOs should encourage the States and MPOs to consider expansion of economic opportunity for low-income communities and minority communities through improved transportation. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Sections 1202 and 1201 of the FAST Act amended 23 U.S.C. 134(h)(1) and 23 U.S.C. 135(d)(1) respectively to add two new planning factors to the scope of the statewide and nonmetropolitan and the metropolitan transportation planning processes: improve resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and enhance travel and tourism. The final rule at sections 450.206(a)(9) and (10) and 450.306(b)(9) and (10) are amended to reflect these new planning factors. Section 450.206(b) The National Trust for Historic Preservation commented that section 450.206(b) should also make reference to historic resources as part of the planning factors to show that historic preservation may be related to the transportation planning process. The FHWA and FTA received a similar comment from the National Trust for Historic Preservation during the development of the NPRM and added language under paragraph (b) in this section that includes section 4(f) properties as defined in 23 CFR 774.17 as one of several examples to consider for establishing the degree of consideration and implementation of the planning factors. This proposed change has been retained in the final rule. Section 450.306(c) retains similar language. Based on this comment, FHWA and FTA made no changes to the final rule. Section 450.206(c)(2) The AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, TX DOT, VT DOT, and WY DOT commented that section 450.206(c)(2) should not reference the performance measures and performance target setting framework that will be established for the performance measures identified in 23 U.S.C. 150(c) at 23 CFR part 490 because it is confusing. The FHWA and FTA do not agree with this comment. The FHWA regulations at 23 CFR part 490 establish the performance measures and the performance target setting framework that the States will need to address when setting performance targets for specific performance measures. These E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations are the same performance targets required of the States under the planning regulations. The targets will address the specific measures established under 23 CFR part 490. The NJ DOT commented on section 450.206(c)(2) that States should set performance measures, not FHWA and FTA. The FHWA and FTA response to this comment is that under 23 U.S.C. 150, FHWA is required to set the national performance measures described in 23 U.S.C. 150(c). The FHWA and FTA further note that under 23 U.S.C. 135(d)(2)(B)(i)(I), States are required to set performance targets for those national performance measures. States may set additional performance measures outside of those required under 23 U.S.C. 150(c). The AASHTO, AR DOT, CO DOT, ID DOT, MN DOT, MT DOT, ND DOT, NYS DOT, SD DOT, TX DOT, and WY DOT commented that there is no specific requirement in the MAP–21 for States to coordinate with Federal land management agencies when setting performance targets and that this provision in section 450.206(c)(2) should be removed from the final rule. The FHWA and FTA agree with this comment and removed the provision. In the final rule, section 450.208(a)(3) requires that, in carrying out the statewide transportation planning process, each State shall consider the concerns of Federal land management agencies that have jurisdiction over land within the boundaries of the State. The FHWA and FTA believe that, given the requirements of section 450.208(a)(3), States should consider the needs of Federal land management agencies that have jurisdiction over land within the boundaries of the State when setting performance targets. The FHWA and FTA note that there was an error in the section-by-section discussion on this topic in the preamble to the NPRM, as opposed to the proposed regulatory text of section 450.206(c)(2) in the NPRM. The NPRM regulatory text stated that each State should select and establish performance targets in coordination with affected Federal land management agencies as appropriate. The section-bysection discussion in the preamble said States would coordinate the establishment of performance targets with affected Federal land management agencies. In summary, FHWA and FTA removed the requirement in section 450.206(c)(2) that States should select and establish targets in coordination with Federal land management agencies. However, FHWA and FTA note that under section 450.206(c), target setting is part of the statewide VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 transportation planning process, and that under section 450.208(a)(3), States shall consider the concerns of Federal land management agencies when carrying out the statewide transportation planning process (including target setting). The AASHTO and VT DOT stated that the final rule should avoid changes to the NPRM that would weaken the States authority to set performance targets. The FL DOT and ASHTD stated the final rule should confirm State discretion in target setting and reporting. The FHWA and FTA respond that the final rule does not weaken the authority of States (or MPOs or public operators of public transportation) to set performance targets. The FHWA and FTA intend to issue guidance on sections 450.216(f)(2) and 450.324(f)(4) after this final rule on State and MPO progress reporting as part of the long-range statewide transportation plan and the MTP. The NC DOT stated that the final rule should make it clear that the States have the flexibility to set their own performance targets and performance measures. The FHWA and FTA agree that States have the flexibility to set their own performance targets. In setting those targets, they will be required to use the performance measures set by FHWA and FTA in the other related performance management rules or guidance. No changes were made to this section based on these comments. Section 450.206(c)(3) Section 450.206(c)(3) provides that in areas not represented by MPOs, States would be required to coordinate, to the maximum extent practicable, the selection of the public transportation performance targets with operators of public transportation to ensure consistency. The AASHTO, CO DOT, ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT commented that in section 450.206(c)(3) the word ‘‘areas’’ should be replaced with ‘‘urbanized areas.’’ The NPRM preamble discussion in the section-by-section analysis for sections 450.206(c)(3) provides an explanation for FHWA and FTA use of the word ‘‘areas’’ instead of ‘‘urbanized areas’’ in this section. In the NPRM, FHWA and FTA noted that 23 U.S.C. 135(d)(2)(B)(ii) and 49 U.S.C. 5304(d)(2)(B)(ii), which refer to ‘‘providers of public transportation’’ in ‘‘urbanized areas . . . not represented by a metropolitan planning organization,’’ would not be carried forward because by statute, all ‘‘urbanized areas’’ continue to be represented by an MPO (23 U.S.C. 134(d)(1) and 49 U.S.C. 5303(d)(1)). Because of this discrepancy, FHWA and PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 34085 FTA used the term ‘‘areas not represented by a metropolitan planning organization’’ instead of ‘‘urbanized areas’’ because States would need to coordinate with operators of public transportation in these areas not represented by a MPO to select performance targets with respect to 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d). Based on this comment, FHWA and FTA made no changes to the final rule. The CO DOT commented that, although it feels the general principles in section 450.206(c)(3) are sound, the asset management and safety plans for transit agencies need fine-tuning; that one size does not fit all; and that CO DOT is submitting separate comments on the parallel FTA transit performance rulemakings. The FHWA and FTA response to this comment is that it is outside the scope of the final rule. No changes were made to the final rule based on this comment. Section 450.206(c)(4) Section 450.206(c)(4) describes the integration of elements of other State performance-based plans into the statewide planning process. The AASHTO, CT DOT, NJ DOT, and NC DOT commented that FHWA and FTA should eliminate redundant references to integration of goals and objectives from other performance-based plans into the statewide planning process, as proposed in the NPRM in sections 450.206(c)(4) and 450.208(g), because both of those sections present similar information. The ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT further commented that the specific list of examples of plans and process to be integrated should be eliminated and that it should be up to the State to decide which plans and processes should be integrated into the statewide transportation planning process. In response, FHWA and FTA note that section 450.206(c)(4) is retained. However, FHWA and FTA eliminated section 450.208(g) in the final rule because it repeats the provisions of section 450.206(c)(4). See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The above States further commented that the terms ‘‘long-range statewide transportation plan’’ and ‘‘the transportation planning process’’ have different meanings and should not be used interchangeably. In response to this comment, FHWA and FTA do not believe that the terms have been used interchangeably in the final rule. The NRDC noted that it was in favor of the integration of other plans into the E:\FR\FM\27MYR3.SGM 27MYR3 34086 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 transportation planning process as described in this sections 450.206(c)(4) and 450.306(d)(4). The commenter further stated that it would like to include other plans as well, such as the Federal Emergency Management Agency (FEMA) Hazard Management Plans and existing regional plans. In response to this comment, FHWA and FTA note that as part of the statewide and nonmetropolitan planning and metropolitan planning processes, States and MPOs are required to coordinate their transportation planning activities or consider other related planning activities, as described in sections 450.308 and 450.316. The CO DOT commented that it is unclear why section 450.206(c)(4) uses the word ‘‘integrate’’ while 450.206(c)(5) uses the word ‘‘consider.’’ In response to this comment, FHWA and FTA note that these sections serve different purposes. Section 450.206(c)(4) requires that the State integrate into the planning process elements of other performancebased plans and processes, while section 450.206(c)(5) requires the State to consider the performance measures and targets when developing specific planning products (the long-range statewide transportation plan and the STIP). Section 450.206(c)(5) Section 450.206(c)(5) provides that a State shall consider the required performance measures and targets under this paragraph when developing policies, programs, and investment priorities reflected in the long-range statewide transportation plan and the STIP. Several commenters (AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, WY DOT, and TX DOT) stated that they would like the phrase ‘‘targets established under this paragraph’’ to be replaced with the phrase ‘‘the State’s targets.’’ In response to this comment, the FHWA and FTA note that ‘‘targets established under this paragraph’’ is intended to refer specifically to the targets required under section 450.206(c)(2). The FHWA and FTA do not believe the phrase ‘‘the State’s targets’’ would retain the same meaning. No changes are made to the final rule based on this comment. If a State chooses to include more targets than required under section 450.206(c)(2), they may do so. However, the final rule does not require it. Section 450.206(e) describes the funds available to a State to accomplish the activities described in this subpart. The FMATS commented that it is concerned that a State may take metropolitan planning funds and use them for planning activities outside of MPAs. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 The FMATS further commented that this section should be revised to make it clear that if the States use funds in this manner, they need to first consult with MPOs. In response to this comment, FHWA and FTA note that 23 U.S.C. 104(d) describes conditions under which a State may transfer metropolitan planning funds for use outside of a MPA. The FHWA and FTA believe that these comments are outside the scope of the final rule as it does not address the administration of planning funds. No changes were made to the final rule as a result of this comment. Other Comments on Section 450.206 The Partnership for Active Transportation commented on this section that health should also be integrated into the planning process. See section IV(B) (recurring comment themes and other changes proposed by commenters) for more discussion on this issue and FHWA and FTA responses. The North Central Pennsylvania RPDC commented that States should also coordinate targets with RTPOs (similar to MPOs) when setting targets. The FHWA and FTA agree that this would be a good practice and section 450.210(d) provides that a Governor may establish and designate RTPOs to enhance the planning, coordination, and implementation of the long-range statewide transportation plan and STIP. Sections 450.216(h) and 450.218(c) require that States develop the longrange statewide transportation plan and the STIP in cooperation with affected nonmetropolitan local officials or, if applicable, through RTPOs. The FHWA and FTA believe that, as a best practice, this cooperation should include discussion on performance targets. The FHWA and FTA note that unlike with MPOs, the statute does not require RTPOs to establish targets for the performance measures. Consequently, FHWA and FTA have not made this a requirement in the final rule. The National Housing Conference requested that housing and community development representatives be included throughout the planning process and that the final rule should require it. The FHWA and FTA note that sections 450.210(a)(1) and 450.316(a) require that the State and MPO must establish early and continuous public involvement opportunities that provide timely information about transportation issues and decisionmaking processes to affected public agencies. Further, sections 450.216(l)(2) and 450.314(j) require States and MPOs to give affected public agencies a reasonable opportunity to comment on the PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 proposed long-range statewide transportation plan and MTP. The FHWA and FTA believe that the final rule provides for the inclusion of public agencies, such as housing and community development representatives, throughout the planning process and have not made any changes based on this comment. Section 450.208 Coordination of Planning Process Activities Section 450.208 describes the coordination of planning process activities. Forty-two commenters (AASHTO, Addison County Regional Planning Commission (RPC), AMPO, ARC, Boone Count Resource Management, Braxo Valley COG, Buckeye Hills-Hocking Valley Regional Development District (RDD), Capital Area MPO, CO DOT, CT DOT, East Texas Officials RPO, Enterprise Community Partners, FMATS, IA DOT, ID DOT, Meramec RPC, MI DOT, MidRegion TPO and New Mexico RTPOs, MT DOT, NADO, National Housing Conference, NC Association of RPOs, NC DOT, ND DOT, NJ DOT, North Central Pennsylvania RPDC, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, NYS DOT, OR DOT, Pioneer Trails RPC, Region Five Development Commission, Region Nine Development Commission, SEMCOG, SD DOT, South Plains Association of Governments (AOG), Southern Windsor County RPC, Two Rivers-Ottauquechee Regional Commission, TX DOT, Upper Minnesota Valley Regional Development Commission (RDC), WA State DOT, West Central Arkansas Planning and Development District, WI DOT, and WY DOT) submitted comments on this section. Eighteen of the comment letters were received from regional planning organizations, 13 were from States, 4 were from MPOs, 4 were from associations, 2 were from advocacy groups, and 1 was from a local government. The SEMCOG commented that section 450.208 should be flexible to allow each State and its MPOs to develop procedures that are best for the local situation with regards to the use and implementation of the terms ‘‘cooperation’’ and ‘‘coordination’’ of planning activities. In response to this comment, FHWA and FTA believe that there is considerable flexibility for the States and MPOs to mutually determine their cooperative relationships and coordination of planning activities. The FHWA and FTA reiterate that the mutually developed and documented metropolitan planning agreement (section 450.314) is an appropriate place E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 for the States, MPOs, and operators of public transportation to cooperatively determine and document their mutual roles and responsibilities carry out the metropolitan transportation planning process. Section 450.314 identifies the minimum requirements for what is required to be included in the metropolitan planning agreements. Section 450.208(a) Addison County RPC, Boone County Resource Management, Brazo Valley COG, Buckeye Hills–Hocking Valley RDD, East Texas Chief Elected Officials RPO, Meramec RPC, Mid-Regional TPO and New Mexico RTPOs, NADO, NARC, North Carolina Association of RPOs, North Central Pennsylvania RPDC, Northern Shenandoah Valley Regional Commission, Pioneer Trails RPC, Region Five Development Commission, Region Nine Development Commission, South Plains AOG, Southern Windsor County RPC, Two Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley RDC, and West Central Indiana Economic Development District (EDD) expressed support that the final rule elevates State involvement with nonmetropolitan local officials from ‘‘consultation’’ to ‘‘cooperation’’ in the long-range statewide planning process and establishes the option that allows States to recognize RTPOs and a formal framework for a nonmetropolitan transportation planning process. Section 450.208(a)(4) states that, in carrying out the statewide transportation planning process, each State shall cooperate with affected local and appointed officials with responsibilities for transportation or, if applicable, through RTPOs. The IA DOT commented that in section 450.208(a)(4), FHWA and FTA should clarify whether the shift from consultation to cooperation for nonmetropolitan transportation planning has implications at the NEPA or project development level. The FHWA and FTA response to this comment is that the final rule applies specifically to the transportation planning process and not to the NEPA or project development level. In cases where a State conducts PEL as part of its planning process, a State may want to coordinate PEL with nonmetropolitan local officials. The CO DOT commented that it is unclear what the change from ‘‘consider’’ to ‘‘cooperate’’ will mean and that it may be difficult to mandate cooperation. The FHWA and FTA respond that the definitions of the terms ‘‘consider’’ and ‘‘cooperate’’ are in section 450.104. Those definitions are used when transitioning from VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 ‘‘consider’’ to ‘‘cooperate’’ with nonmetropolitan affected local elected and appointed officials with responsibility for transportation or, if applicable, through RTPOs. The FHWA and FTA further note that under section 450.210(b), States must have documented processes for cooperating with nonmetropolitan local officials and/or local officials with responsibility for transportation, and that they should be following those processes. Enterprise Community Partners commented that the transportation planning process should be coordinated with other Federal planning processes. Specifically, State nonmetropolitan and metropolitan transportation planners should be explicitly encouraged to coordinate with all relevant local, regional, and Federal plans and processes, especially Housing and Urban Development (HUD) Consolidated Plans, Sustainable Communities Regional Planning and Community Challenge programs, and FEMA Hazard Mitigation plans. In response to this comment, FHWA and FTA agree that this coordination is desirable. The FHWA and FTA note that section 450.208(a) identifies broad areas where States shall coordinate as part of the statewide transportation planning process, including metropolitan transportation planning activities, statewide trade and economic development activities, and related multistate planning efforts. The FHWA and FTA also note that section 450.210(d)(3) identifies the duties of an RTPO, if established by the State, which include: Fostering the coordination of local planning, land use, and economic development plans with State, regional, and local transportation plans, and programs; and participating in national, multistate, and State policy and planning development processes to ensure the regional and local input of nonmetropolitan areas. Furthermore, section 450.316(b) requires MPOs to consult with agencies and officials responsible for other planning activities within the MPA that are affected by transportation. Consequently, FHWA and FTA believe the final rule provides that transportation planning process should be coordinated with other Federal planning processes and will continue to encourage, but not require, States and MPOs to coordinate with these other Federal planning processes. No changes were made to this section based on this comment. Section 450.208(e) The AASHTO, CO DOT, ID DOT, MT DOT, ND DOT, OR DOT, SD DOT, TX PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 34087 DOT, and WY DOT expressed concerns with section 450.208(e) in the NPRM. Section 450.208(c) states that, in carrying out the statewide transportation planning process, States shall apply asset management principles and techniques consistent with the State Asset Management Plan for the NHS, the Transit Asset Management Plan, and the Public Transportation Safety Plan. The commenters stated that the statewide planning process is much broader than an asset management plan, and that, as a requirement, it might have unintended consequences. The commenters suggested that it be deleted or modified. The FHWA and FTA retained this provision. However, the word ‘‘shall’’ is changed to ‘‘should’’ in the final rule. The FHWA and FTA believe that asset management principles and techniques, consistent with the State Asset Management Plan for the NHS, the Transit Asset Management Plan, and the Public Transportation Safety Plan, should contribute to defining STIP priorities and assessing transportation investment decisions. The word ‘‘shall’’ was changed to ‘‘should’’ in the final rule because, as noted in the comments received on the NPRM, it is not a statutory requirement. See section IV(B) (recurring comment themes and other changes proposed by commenters) for more discussion on this issue and FHWA and FTA responses. Section 450.208(g) The AASHTO, CT DOT, ID DOT, MT DOT, ND DOT, NJ DOT, SD DOT, and WY DOT requested that FHWA and FTA eliminate redundant references to the integration of goals and objectives into the statewide planning process, as proposed in NPRM sections 450.206(c)(4) and 450.208(g). See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The AASHTO commented that section 450.208(g) should state that the integration of other performance-based plans and processes into the statewide transportation planning process can be either direct or by reference. In response to this comment, FHWA and FTA note that section 450.208(g) has been deleted from the final rule based on other comments that are described in the previous paragraph. However, section 450.206(c)(4) retains the requirement to integrate elements of other performance based plans and processes into the statewide transportation planning process and also provides that they may be integrated either directly or by reference. The WY DOT commented that the text in section 450.208(g) E:\FR\FM\27MYR3.SGM 27MYR3 34088 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 should make it clear that the integration of elements of other performance-based plans and processes into the statewide transportation planning process can be done directly or by reference. The FHWA and FTA reiterate that section 450.208(g) has been removed from the final rule because it is redundant to section 450.206(c)(4). The FHWA and FTA further respond that section 450.206(c)(4) provides for the integration of elements of other performance-based plans and processes into the statewide transportation planning process directly or by reference. The WA State DOT commented that advancing performance-based planning and programming requires consideration of all modes when linking investment decisions to targets and that the NPRM seems to support this direction. The NYS DOT commented that, in coordinating performance management requirements in multijurisdictional mega regions, flexibility is needed in the requirement to coordinate among States, MPOs, and interstate agencies or authorities. The commenter further stated that this flexibility is needed due to the complexity of transportation facilities and services that may straddle several MPO and State boundaries. The SEMCOG commented that there should be flexibility to allow MPOs to develop cooperative procedures for performance based planning that are best for the local situation. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.210 Interested Parties, Public Involvement, and Consultation Seventy-five entities (AASHTO, Addison County RPC, AK DOT, APTA, Boone County Resource Management, Buckeye Hills-Hocking Valley RDD, Brazo Valley COG, California Association for Coordinated Transportation, CALTRANS, Capital Area MPO, CO DOT, Crystal Hitchings, CT DOT, East Central Iowa COG, East Texas Chief Elected Officials RPO, Enterprise Community Partners, Hunsaker/Region XII COG, IA DOT, ID DOT, Macatawa Area Coordinating Council, MARC, MA DOT, Meramec RPC, MI DOT, Mid-Columbia EDD, MidRegion TPO and New Mexico RTPOs, MT DOT, NADO, NARC, National Congress of American Indians, National Housing Conference, NC DOT, ND DOT, Nine to Five National Association of Working Women, North Carolina Association of RPOs, North Central Pennsylvania RPDC, Northern Maine Development Commission, Northern VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Shenandoah Valley Regional Commission, NRDC, NYS DOT, OK DOT, OR DOT, Oregon Chapter of the American Planning Association (APA), Pioneer Trails RPC, Portland Metro, Region Five Development Commission, Region Nine Development Commission, Region XII COG, Rural Counties Task Force, SD DOT, Sierra Club, South Alabama RPC, South Plains AOG, Southeast Alabama RPO, Southern Windsor County RPC, The Leadership Conference on Civil and Human Rights, TN DOT, Two Rivers-Ottauquechee Regional Commission, TX DOT, United Spinal Association, Upper Minnesota Valley RDC, Virginia Association of Planning District Commissions, VT DOT, West Central Arkansas Planning and Development District, West Central Indiana EDD, WA State DOT, WY DOT, and Yurok Tribe Transportation Program) submitted comments on the proposed changes to section 450.210. This section requires States to involve members of the public and nonmetropolitan local officials in the planning process that produces the long-range statewide transportation plan and STIP, described below. Section 450.210(a) Section 1202 of FAST amends 23 U.S.C. 135(g)(3) to add public ports and intercity bus operators to the list of entities that a State shall provide early and continuous public involvement opportunities to as part of the statewide transportation planning process. Section 450.210(a)(1)(i) in the final rule is amended to reflect these changes. Section 450.210(a) provides that the State shall develop and use a documented public involvement process that provides opportunities for review and comment at key decision points. The AASHTO and four States (ID DOT, MT DOT, SD DOT, and WY DOT) commented that the rule would be improved if it were made explicit that a State considers public comment in setting targets. They propose the addition of a new paragraph 450.210(a)(3) to read as follows: ‘‘With respect to the setting of targets, nothing in this part precludes a State from considering comments made as part of the State’s public involvement process.’’ Section 450.210(a) requires that the public involvement process provide opportunities for review and comment at key decision points in the development of the long-range statewide transportation plan and the STIP. The FHWA and FTA agree that the establishment of targets is a pivotal decision in the performance-based planning and programming process. The FHWA and FTA concur with this PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 recommendation and amended paragraph (a)(3) in the final rule to emphasize the importance of securing public comment during the target selection process. The FHWA and FTA also concur with the three advocacy groups (United Spinal Association, National Housing Conference, and Enterprise Community Partners) who highlighted the importance of section 450.210(a)(viii). The section provides that States seek out and consider the needs of the traditionally underserved by existing transportation systems, such as low income and minority households. The NRDC recommended the creation of a State process for measuring target districts, such as that developed by the Atlanta Regional Council (https:// www.atlantaregional.com/ transportation/community-engagement/ social-equity), for greater outreach that can help address gaps in input at both the State and local levels. The CO DOT asked that FHWA and FTA identify other public involvement techniques, particularly electronically accessible ones. The FHWA and FTA are collecting and disseminating best practices and providing technical support for State and MPO public engagement efforts. As part of the Public Transportation Participation Pilot Program, created as part of the SAFETEA–LU, FTA sponsored applied research to develop innovative approaches to improving public participation in the planning of public transportation. The results of this research can be found at https:// www.fta.dot.gov/12347_5925.html. Similarly, FHWA has developed material and resources on best practices in public participation that is available at: https://www.fhwa.dot.gov/planning/ public_involvement/. Section 450.210(b) Section 450.210(b) provides that, consistent with MAP–21, the State shall have a documented process for cooperating with nonmetropolitan officials representing units of general purpose local government, and/or local officials with responsibility for transportation, that provides them an opportunity to participate in the development of the long-range statewide transportation plan and the STIP. The change from the term ‘‘consultation’’ to ‘‘cooperation’’ requires States to work more closely with nonmetropolitan local officials to achieve a common outcome in the development of the longrange statewide transportation plan and STIP. The NYS DOT expressed support for the requirement to cooperate with E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations nonmetropolitan local officials in the development of the long-range statewide transportation plan and STIP, noting that this cooperative process will likely require States to reach out to local officials more frequently and on a cooperative basis. However, it believes that the higher level of outreach is achievable with existing resources. One industry organization (NARC) expressed support for the change in this and other sections of the planning NPRM that elevates the relationship between States and nonmetropolitan local officials from consultation to cooperation. Two industry associations (NADO and NARC) and one MPO (Two RiversOttauquechee Regional Commission) requested that, given the high degree of discretion granted to States as to what constitutes cooperation, additional dialogue from FHWA and FTA would be helpful to understand what the shift to cooperation will mean and how this shift is anticipated to change the planning process. The FHWA and FTA are developing training as to what are the expectations as States and MPOs transition to a more cooperative process. The AK DOT also sought clarity as to what constitutes cooperation, noting that it found the language addressing cooperation with nonmetropolitan local officials to be vague and confusing. The FHWA and FTA note that cooperation means that the parties involved in carrying out the transportation planning and programming process work together to achieve a common goal or objective (section 450.104). The MA DOT and TN DOT asked what criteria FHWA and FTA use to determine whether cooperation is taking place if a State elects not to designate RTPOs. In response, FHWA and FTA note that existing section 450.210(b)(1) requires that a State identify the effectiveness of its process to cooperate with nonmetropolitan local officials by soliciting and reviewing comments from nonmetropolitan local officials and other interested parties regarding the effectiveness of the cooperative process, and any proposed changes, at least once every 5 years. While the statute provides that FHWA and FTA shall not review or approve the process, FHWA and FTA will review whether the State has implemented a process to cooperate with the nonmetropolitan local officials through its planning finding as part of the STIP approval process. The AK DOT noted that sections 450.216(h) and 450.218(c) continue to refer to a State’s nonmetropolitan local official consultation process. The commenter is correct in noting that both of these sections refer to the States’ ‘‘consultation processes established VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 under 450.210(b).’’ To eliminate this confusion, and to emphasize the statutory change from consultative to cooperative, FHWA and FTA revised sections 450.216(h) and 450.218(c) by eliminating the term ‘‘consultation’’ to reflect the new requirements for cooperation. The FHWA and FTA do not concur with the commenter’s conclusion that the State’s existing consultation process with nonmetropolitan local officials satisfies the requirement that States develop and implement a cooperative process, unless it complies with the new requirements provided by MAP–21 and this final rule. The NRDC, who applauded the focus on greater integration of nonmetropolitan areas into State planning, suggested striking the sentence in 450.210(b) which limits FTA and FHWA authority by explicitly forbidding review or approval of new processes, since Federal agencies should reserve the authority in case State implementation proves inadequate. In response, FHWA and FTA point to 23 U.S.C. 135(f)(2)(B)(ii) 22 and 135(g)(2)(B)(ii),23 which expressly prohibit the DOT from reviewing or approving a State’s consultation process. Eleven commenters (Crystal Hitchings, Hunsaker/Region XII COG, NADO, North Central Pennsylvania RPO, Pioneer Trails RPC, Region Nine Development Commission, Southeast Alabama RPO, TN DOT, Two RiversOttauquechee Regional Commission, Upper Minnesota Valley RDC, and Virginia Association of Planning District Commissions) asked the DOT to encourage States to establish a timeline for when the shift from consultation to cooperation will occur, and to communicate this to nonmetropolitan stakeholders. The FHWA and FTA note that section 450.226 provides the schedule for phasing in MAP–21 changes. With respect to the major change that places a new emphasis on nonmetropolitan transportation planning, FHWA and FTA will require that STIPs and longrange statewide transportation plans, adopted on or after a date 2 years after publication of the final rule in the Federal Register, must reflect this new emphasis. The FHWA and FTA will only approve STIP amendments or updates that are based on a planning process that incorporates the new emphasis on nonmetropolitan transportation planning, including the development and use of a documented process by the State to provide for 22 Also 23 Also PO 00000 49 U.S.C. 5304(f)(2)(B)(ii). 49 U.S.C. 5304(g)(2)(B)(ii). Frm 00041 Fmt 4701 Sfmt 4700 34089 cooperation with nonmetropolitan local officials in the development of the statewide long-range plan and STIP. The FHWA and FTA believe this approach is consistent with the MAP–21 requirements (23 U.S.C. 135(l) and 49 U.S.C. 5303(k)) and does not require the State to deviate from its established planning update cycle to implement the MAP–21 changes. Section 450.210(c) Section 450.210(c), which concerns areas of States under the jurisdiction of a tribal government, would replace ‘‘Federal land management agencies’’ with the ‘‘Department of the Interior’’ as the entity with which States must consult when forming the long-range statewide transportation plan and STIP for such areas. One tribal organization (the National Congress of American Indians) expressed concern with this proposed change, asserting that it is very limiting for States and would inhibit the ability of tribes to provide full scale infrastructure planning for their citizens and citizens of surrounding areas. They recommended that the term ‘‘Federal land management agencies’’ remain. The FHWA and FTA note that the Department of the Interior, not the Federal land management agencies, is the Federal agency with responsibility for managing tribal matters and that with this change, tribal governments retain the choice to engage with other Federal entities. The final rule will retain the Department of the Interior as the entity with which States must consult when forming the long-range statewide transportation plan and STIP for such areas. The National Congress of American Indians also reaffirms the requirement in section 450.210(c), which provides that States must, to the maximum extent practicable, develop a documented process that outlines the roles, responsibilities, and key decision points for consulting with tribal governments. Section 450.210(d) Section 450.210(d) would provide for an optional formal process for States to establish and designate RTPOs to enhance the planning, coordination, and implementation of the long-range statewide transportation plan and STIP with an emphasis on addressing the needs of nonmetropolitan areas. Fifteen commenters (Addison County RPC, Boone County Resource Management, East Texas Chief Elected Officials RPO, Meramec RPC, NC DOT, North Carolina Association of RPOs, Northern Maine Development Commission, NYS DOT, OK DOT, Portland Metro, Region XII E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34090 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations COG, Two Rivers-Ottauquechee Regional Commission, VT DOT, West Central Arkansas Planning and Development District, West Central Indiana EDD) expressed support for this proposal. The MA DOT requested more clarity and direction on the establishment, designation, roles, and responsibilities of RTPOs. The FHWA and FTA offer the following responses to comments on RTPOs to address the request for more clarity and direction. The MAP–21 provides that States have the authority to establish and designate an RTPO. Section 450.210(d) clarifies that this authority resides in the Governor or the Governor’s designee because the Governor is the chief executive of a State. With respect to this section, the OR DOT sought clarification as to the role of the State DOT in the establishment and designation of an RTPO. The FHWA and FTA note that the State DOT could serve as the Governor’s designee. Six commenters (AASHTO, Minnesota Valley Development Commission, CO DOT, IA DOT, Region Five Development Commission, Region Nine Development Commission, and TX DOT) stated that section 450.210(d)(1) appears to indicate that a Governor could establish an RTPO without local agreement and requested FHWA and FTA to clarify that the establishment of an RTPO must include the agreement of the local units of government. The commenters proposed that the language related to the establishment of RTPOs in section 450.210(d)(1) be changed to be more similar to the language related to the establishment of MPOs in 450.310(b) with respect to the requirement for agreement with units of general purpose local government. The MA DOT questioned the role of nonmetropolitan officials in the establishment of RTPOs. In response, FHWA and FTA believe that section 450.210(d)(1) is clear that an RTPO shall be a multijurisdictional organization of nonmetropolitan local officials, or their designees who volunteer for such organizations, and representatives of local transportation systems who volunteer for such organizations. The FHWA and the FTA will retain the proposed language in the final rule. Section 450.210(d) also requires that, if a State and its existing nonmetropolitan planning organizations choose to be established or designated as an RTPO under MAP–21, they must go through the formal process to conform to the structure as described in 450.210(d)(1) and (d)(2). Because an RTPO would conduct planning for a nonmetropolitan region, an RTPO VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 would be a multijurisdictional organization composed of volunteer nonmetropolitan local officials or their designees, and volunteer representatives of local transportation systems. The MT DOT expressed support for the language recognizing that it is at the State’s discretion to establish RTPOs. The MA DOT sought clarification as to the appropriateness of including transit representation on the RTPO if the nonmetropolitan area does not have robust transit service. The FHWA and FTA note that the statute and the final rule provide that an RTPO’s policy committee shall include representatives of transportation service operators as appropriate. The MA DOT also questioned whether the establishment of an RTPO can be reflected in an existing MOU between the State and the nonmetropolitan planning organization. The FHWA and FTA respond that if the State and its existing nonmetropolitan planning organizations choose to be established or designated as an RTPO under the MAP–21, they must go through the formal establishment and redesignation process, and that existing MOUs between them must be updated to reflect the MAP–21 structure, requirements, and duties. A respondent who works on the Transportation Program for the Yurok Tribe requested that RPTOs: (1) Work with the tribes, individually and through tribal transportation consortiums, to develop performance measures on tribal lands or communities; (2) implement data collection and data management strategies for these performance measures; (3) utilize tribal planning products for developing RTPO planning documents; and (4) partner with tribes on outreach strategies to tribal communities regarding unmet transit needs, the regional planning processes, and projects with regional significance. In response, FHWA and FTA note that the statute is silent on the inclusion of tribal communities in RTPOs established by the States under 23 U.S.C. 135(l) and 49 U.S.C. 5304(l). Consequently, it would be the decision of the State and local officials as to whether to include tribes on the RTPO. It would be permissible under 23 U.S.C. 135(l)(3) and 49 U.S.C. 5304(l). The FHWA and FTA think it would be a best practice. Furthermore, as the States must develop the long-range statewide transportation plan and STIP in consultation with tribal governments under 23 U.S.C. 135(f)(2)(C), 23 U.S.C.135(g)(2)(C), 49 U.S.C.5304(f)(2)(C), and 49 U.S.C.5304(g)(2)(C), FHWA and FTA PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 would hold the States accountable for consultation with the tribes, regardless of whether tribes were included on the RTPO. In addition, the RTPO’s duties require it to consider and share plans and programs with ‘‘neighboring regional transportation planning organizations, metropolitan planning organizations, and, where appropriate, tribal organizations’’ (23 U.S.C. 135(m)(4)(G)). The CALTRANS commented that the shift toward working cooperatively should also take tribal governments into consideration. Doing this will lead to more coordinated efforts and will also allow consultation with tribal governments, as required by this final rule, to be more meaningful. The FHWA and FTA agree. The OR DOT highlighted that Oregon’s Area Commissions on Transportation, which encompass large territories in Oregon that include MPOs and adjacent nonmetropolitan areas and whose functions are generally limited to making recommendations on STIP priorities, overlap the Federal responsibilities of MPOs in a way which produces confusion and redundancies between the State and local governments in the regional planning area. The OR DOT and Portland Metro requested that the final rule clearly define the function of RTPOs as serving areas outside of established MPOs. The Portland Metro also requested that the RTPOs’ boundaries be periodically updated to reflect updates to MPO boundaries following the Federal census. Conversely, the WA State DOT noted that its State law provides for a different RTPO structure than described in section 450.210(d)(2). Oregon law allows RTPOs and MPOs to share boundaries and staff, which increases the coordination and decreases the workload. As a result, 37 of the State’s 39 counties are in an RTPO. In response, FHWA and FTA note that the final rule states clearly that an RTPO, established and designated or redesignated under the MAP–21, would conduct planning for the nonmetropolitan areas of the State. The Oregon Chapter of the APA notes that such a formally structured and recognized rural TPO with broad based representation is essential to the development of coordinated regional transportation plans and projects. However, an individual (Crystal Hitchings), an industry association (NADO), and 24 rural transportation planning organizations (Addison County RPC, Boone County Resources Management, Brazo Valley COG, East TX Chief Elected Officials/RPO, Hunsaker/Region XII COG, Meramec E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations RPC, Mid-Columbia EDD, Mid-Region TPO, New Mexico RTPOs, North Carolina Association of RPOs, North Central Pennsylvania RPO, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, Region Five Development Commission, Region Nine Development Commission, Rural Counties Task, South Alabama RPC, Southern Windsor County RPC, Two Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley RDC, Virginia Association of Planning District Commissions, West Central Arkansas Planning and Development Commission, and West Central Indiana EDD) requested that the final rule provide that the make-up of an RTPOs policy committee remain as flexible as possible so that existing models can continue to operate as is. They cited that, in several States, metropolitan and tribal officials are designated participants on an existing RTPO or rural planning partners governing board because of a region’s demographic reach. They requested that these officials continue to qualify under the appropriate category in the list of individuals comprising a RTPO’s policy committee under the final rule. One respondent, who represents 26 rural RTPAs in California (Rural Counties Task Force), requested that FHWA and FTA include language in the final rule saying that California’s existing RTPA process is equivalent to that of the RTPOs provided for in the NPRM. The respondent explained that State law established California’s RTPAs in the early 1970s and that these agencies perform regional transportation planning and programming for an area that typically covers a county and the cities contained within it. The NC DOT asserted that States should have the ability to define the structure and role of RTPOs within their own planning processes. Similarly, three commenters (CALTRANS, NARC, and WA State DOT) noted that it would helpful if the final rule included language that creates flexibility for already established RTPOs. In response to these requests to limit or expand flexibility with respect to the establishment and structure of an RTPO, FHWA and FTA note that MAP–21 and the final rule provide that the establishment of an RTPO is optional and that a State can choose to retain its existing RPOs. If the State, nonmetropolitan local governments, and operators of transportation in nonmetropolitan areas choose to designate/re-designate an RTPO under MAP–21 because they believe that it will enable the State to better address the needs of its nonmetropolitan areas, VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 the RTPO must comply with the required structure and responsibilities as provided in MAP–21, proposed in the NPRM, and retained in the final rule. Portland Metro asked that the final rule create clear incentives for States to establish RTPOs to supersede any existing non-MPO planning structures that may exist. They noted that this would ensure Federal oversight and improve coordination of planning activities across both metropolitan and nonmetropolitan areas. Conversely, an individual (Crystal Hitchings), an industry association (NADO), and 24 rural planning agencies (Addison County RPC, Boone County Resources Management, Brazo Valley COG, Buckeye Hills-Hocking Valley Regional Development District, East Texas Chief Elected Officials/RPO, Hunsaker/Region XII COG, Meramec RPC, North Carolina Association of RPOs, Mid-Columbia EDD, Mid-Region TPO and New Mexico RTPOs, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, Pioneer Trails RPC, Region Five Development Commission, Region Nine Development Commission, Region XII COG, Rural Counties Task Force, South Alabama RPC, Southeast Alabama RPO, Southern Windsor County RPC, Two RiversOttauquechee Regional Commission, Upper Minnesota Valley RDC, Virginia Association of Planning District Commissions, West Central Arkansas Planning and Development Commission, and West Central Indiana EDD) requested that FHWA and FTA encourage States to maintain the existing working relationship with their nonmetropolitan transportation planning partners, rather than attempt to establish new relationships with other entities to meet the RTPO requirements. In response to requests for incentives for States either to retain existing nonmetropolitan planning organizations or to re-establish and re-designate them as RTPOs under the MAP–21, FHWA and FTA believe that the MAP–21 provides States the option to determine, in cooperation with nonmetropolitan local officials and nonmetropolitan transportation officials, if re-designating existing nonmetropolitan planning organizations to conform to the MAP–21 structures and responsibilities of an RTPO would better address the needs of the nonmetropolitan areas of the State. The final rule does not provide additional incentives to make that choice. Section 450.210(d)(3) Section 450.210(d)(3) describes the duties of an RTPO, including the PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 34091 development of a regional long-range multimodal transportation plan and a regional TIP; providing a forum for public participation in the statewide and regional transportation planning process; and conducting other activities to support and enhance the statewide planning process. The Southeast Alabama RPO requested that RTPO activities be more than those listed in statute. Multiple rural transportation planning agencies (Addison County RPC, Boone County Resources Management, Brazo Valley COG, Buckeye Hills-Hocking Valley RDD, East Texas Chief Elected Officials/RPO, Meramec RPC, Mid-Columbia EDD, Mid-Region TPO and New Mexico RTPOs, NADO, North Carolina Association of RPOs, North Central Pennsylvania RPDC, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, Pioneer Trails RPC, Region XII COG, South Alabama RPC, South Central Alabama RPC, Southern Windsor County RPC, Two RiversOttauquechee Regional Commission, West Arkansas Planning and Development Commission, and West Central Indiana EDD) expressed appreciation that, in listing the duties of an RTPO, MAP–21 and the NPRM make clear that there is no prohibition on an RTPO conducting other transportation planning activities beyond those listed. The California Association for Coordinated Transportation, a State association of RPOs, highlighted that its members perform regional transportation planning and programming for areas that typically cover a county and the cities contained within it. Consistent with MAP–21 and the NPRM, the final rule does not prohibit an RTPO from conducting other transportation planning activities beyond those listed. The Oregon Chapter of the APA urged the DOT to structure the proposed RTPOs with the same responsibilities and authorities that the MPOs currently exercise. The NC DOT and VT DOT asserted that, due to the nature and area of coverage, RTPOs should not have the same duties defined as those of the metropolitan areas. In response, FHWA and FTA note that MAP–21 and the final rule do not provide RTPOs with the same responsibilities and authorities that an MPO exercises. One industry organization (NADO) and two MPOs (Hunsaker/Region XII COG and the Two Rivers-Ottauquechee Regional Commission) encouraged FHWA and FTA to include language in the final rule stating that unified regional plans, plans developed by MPOs and RTPOs that are used as a E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34092 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations joint planning document, are an eligible way to structure planning activities, provided that all requirements for metropolitan planning are met through development of the metropolitan portion of the plan. In response, FHWA and FTA note that the final rule states clearly that an RTPO, established and designated or redesignated under MAP– 21, would conduct planning for the nonmetropolitan areas of the State. Multiple rural transportation planning agencies (Addison County RPC, Boone County Resources Management, Brazo Valley COG, East Texas Chief Elected Officials RPO, Meramec RPC, MidRegion TPO, New Mexico RTPOs, NADO, North Carolina Association of RPOs, North Central Pennsylvania RPDC, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, Region XII COG, Rural Counties Task Force, South Alabama RPC Commission, Southeast Alabama RPO, Southern Windsor County RPC, Two Rivers-Ottauquechee Regional Commission, West Central Arkansas Planning and Development Commission, and West Central Indiana EDD) noted that several States already require RTPOs to follow the same guidelines as MPOs in developing their TIPs. They asked that FHWA and FTA clarify in the final rule that these MPO equivalent TIPs should be fully incorporated into the STIP, as are MPOdeveloped TIPs. Four States (CO DOT, TN DOT, VT DOT, and WA State DOT) also sought clarity with respect to how the State is to treat an RTPO TIP, questioning whether it has the same requirements (e.g., incorporate directly or by reference) as an MPO TIP. The VT DOT explained that its existing rural planning agencies do not develop a regional TIP, but instead develop regional priorities that the State incorporates into its annual statewide project prioritization process. It noted that this approach is more effective at fostering cooperation than asking each rural planning agency to develop what may sometimes evolve into a wish-list of projects for inclusion in a capital program and STIP. The VT DOT noted that the NPRM does not define regional TIPs, which could lead to confusion and may imply that it carries the same weight as an MPO TIP. It recommends that development of a regional TIP be removed as a required duty of an RTPO, or defined sufficiently to ensure it does not create unrealistic expectations. In response, FHWA and FTA note that, as provided by MAP–21, the final rule states clearly that RTPOs prepare regional TIPs for consideration by the State. It is the option of the State to determine if the regional TIP prepared VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 by an RTPO is to be fully incorporated into the STIP. This is not a Federal requirement. Consequently, addressing the inquiry of AK DOT, the lack of cooperation by one local nonmetropolitan official cannot bring the long-range statewide transportation plan or STIP planning to a halt. With respect to the request of NADO and the Two Rivers-Ottauquechee Regional Commission, FHWA and FTA encourage States to transparently communicate how the RTPO TIP priorities are considered in the STIP. The MA DOT asked if RTPOs have separate targets from MPOs and are expected to be involved in setting of State and transit targets. In response, FHWA and FTA note that MAP–21 requires States, MPOs, and operators of public transportation to establish performance targets. It does not give that authority to RTPOs. However, MAP–21 and final rule provide that an RTPO’s duties include activities such as developing and maintaining regional long-range transportation plans in cooperation with the State, and developing a regional transportation improvement program for consideration by the State. These RTPO duties would support the State in its responsibilities to establish its performance targets and demonstrate substantial progress toward achieving them. With the additional requirements and duties for RTPOs and no additional Federal funding to cover them, CT DOT commented that it will not be establishing any RTPOs at this time. The AMPO strongly recommended restrictions on diverting metropolitan planning funds (PL) for nonmetropolitan planning requirements. The FHWA and FTA note that planning for nonmetropolitan areas is not an eligible expense for PL funds. Twenty-six commenters (Addison County RPC, Boone County Resources Management, Brazo Valley COG, Buckeye Hills-Hocking Valley RDD, East Texas Chief Elected Officials RPO, Meramec RPC, Mid-Region TPO and New Mexico RTPOs, NADO, North Carolina Association of RPOs, North Central Pennsylvania RPDC, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, Oregon Chapter of the APA, Pioneer Trails RPC, Region Five Development Commission, Region Nine Development Commission, Rural Counties Task Force, Sierra Club, South Plains AOG, Southeast Alabama RPO, Southern Windsor County RPC, Two Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley Regional Development Commission, Virginia Association of Planning District PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 Commissions, West Central Arkansas Planning and Development Commission, and West Central Indiana EDD) also requested that FHWA and FTA provide some discussion of funding options available to RTPOs as MAP–21 provides no dedicated funding for RTPOs. Another respondent, which represents 26 rural regional transportation planning agencies (RTPA) in California (the Rural Counties Task Force), stated that it would be helpful if the rural agencies would also receive Federal funds like the MPOs’ PL funds. This would allow the rural agencies to enhance public outreach, performance measurement, maintenance strategies, safety plans, and uniform work programs. The FHWA and FTA agree that MAP– 21 (and FAST) provides no dedicated funding for RTPOs and that eligible funding sources include the State Planning and Research Program and the Surface Transportation Program. The Formula Grants for Rural Areas (49 U.S.C. 5311) funds may also support RTPOs, provided they are in addition to funding awarded to a State under 49 U.S.C. 5305 for planning activities that are directed specifically at the needs of the rural areas in the State.24 The AK DOT asked what the State’s responsibility is with respect to local officials that are not associated with RTPO. In response, FHWA and FTA cite 23 U.S.C. 135(l)(5) and 49 U.S.C. 5304(l)(5), which provide that, if a State does not choose to establish RTPOs, it must consult with affected nonmetropolitan local officials to determine projects that may be of regional significance. Section by Section Post FAST Section 450.212 Transportation Planning Studies and Project Development FAST Act Impacts The FAST Act amended 23 U.S.C. 168, streamlining and clarifying the PEL authority added by MAP–21 that was the subject of the Section 168 NPRM. The FAST Act amendments eliminated many of the provisions in the MAP–21 version of 23 U.S.C. 168 that generated comments on the Section 168 NPRM, and established revised requirements for the use of that statutory authority. As a result, after conserving the substantial and detailed amendments made by FAST, FHWA and FTA decided that the best course of action would be for the final rule to reference the statute rather than adopt detailed regulatory language. This approach simplifies the final rule 24 49 E:\FR\FM\27MYR3.SGM U.S.C. 5311(b)(1)(A). 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations and avoids a literal restatement of the statutory provisions, while ensuring the availability of the new authority is recognized by those considering the use of PEL. Thus, this final rule adds a reference to the FAST version of the statute in sections 450.212(d) and 450.318(e) and withdraws the provisions proposed in the Section 168 NPRM. For this reason, FHWA and FTA discuss Section 168 NPRM comments in this notice only to the extent those NPRM comments related to topics other than the NPRM’s proposal for the implementation of 23 U.S.C. 168. The FHWA and FTA appreciate the commenters’ submission of comments in response to the Section 168 NPRM, but do not believe a discussion of comments that were based on the MAP– 21 version of 23 U.S.C. 168 would benefit the general public or entities interested in this rulemaking. mstockstill on DSK3G9T082PROD with RULES3 General Comments The FHWA and FTA received general comments on PEL in response to both the planning NPRM and the Section 168 NPRM. Most commenters (AASHTO, AMPO, APTA, ARTBA, ASHTD, CO DOT, FL DOT, H–GAC, Lackawanna Coalition, MA DOT, MDT, MetroPlan, MO DOT, MTC, NC DOT, NCTCOG/ RTC, NJ Transit, NYMTC, NYS DOT, SACOG, SANDAG, SCAG, SJCOG, TCA, TriMet, TX DOT, VA DOT, and WY DOT) indicated their support for PEL objectives and cited the benefits of PEL practices to the project delivery process. The benefits cited included avoiding duplication and reducing the time required to complete the environmental review process. The FHWA and FTA appreciate the comments and the overall support for PEL. No response to these general comments is needed. Comments on Impact of PEL Regulations on Planning and NEPA Processes Some commenters expressed concern that PEL regulations would be viewed as imposing general requirements on the transportation planning process, or substituting for the transportation planning process. The CO DOT commented that the final rule should make it clear that PEL provisions apply only when an agency wants to facilitate the use of planning products in the NEPA process, and that other planning products do not need to meet those requirements. The CO DOT also asked FHWA and FTA to clarify that planning studies may be undertaken at any point in the planning process, not only in conjunction with the development of the 20-year statewide transportation plan. The MetroPlan recommended VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 FHWA and FTA consider redrafting the final rule to clearly distinguish between baseline planning analyses and other products flowing from the metropolitan planning process, including more detailed studies such as corridor plans that are intended to advance a specific project. The PA DOT registered concerns about whether the planning forms it now uses would require approval under PEL procedures, and its ability to continue to electronically transfer planning-level data into its automated system for documenting the decisionmaking process for categorical exclusions. In response, FHWA and FTA note that nothing in the final rule is intended to require a change to existing practices with respect to the use of planning data. Both the NPRM and final rule make it clear that all PEL procedures are optional and serve only as mechanisms for facilitating the use of planning outputs in the NEPA process. The FHWA and FTA do not believe the final rule places any requirement or limitation on the creation, form, timing, or use of planning information and data in the transportation planning process under 23 U.S.C. 134 and 135. Nothing in sections 450.212 and 450.318, appendix A, or elsewhere in the final rule affects the long-standing exemption from applying NEPA to the transportation planning process (see, e.g., 23 CFR 450.222 and 450.336 as in effect prior to this final rule 25). The FAST provision in 23 U.S.C. 168(f) contains the same exemption for the section 168 authority. The FHWA and FTA do not view the part 450 PEL procedures as limiting, nor forcing alteration of long-standing practices for using planning data during project development, including environmental reviews. Neither the existence nor the use of part 450 PEL procedures precludes any other appropriate process for using decisions, data, or studies in the NEPA process. The FHWA and FTA received a few comments that indicated a possible misperception about the relationship between the transportation planning process under 23 U.S.C. 134 and 135 and the NEPA process. The Sierra Club urged FHWA and FTA to require a plan to be the product of an environmental evaluation that fully considers the environmental context in which a 25 In this final rule, sections 450.222 and 450.336 of the prior regulation are renumbered as sections 450.224 and 450.338, respectively. The final rule also renumbers several other provisions carried over from the prior regulation. All subsequent references in the discussion of sections 450.212 and 450.318 use the numbering adopted in this final rule. PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 34093 transportation improvement would occur. In its comments, the Sierra Club listed a series of environmental concerns it suggested ought to be part of a mandatory environmental evaluation of a transportation plan. The Arizona Department of Fish and Game expressed concern about using planning level documents as the sole source of environmental impact analysis in the NEPA process, and requested early and continuing coordination among the NEPA lead agency and resource agencies. In response, FHWA and FTA note transportation plans are not subject to NEPA (23 U.S.C. 168(f)(1)–(2); 23 CFR 450.224 and 450.338). However, FHWA and FTA consistently encourage consideration of environmental issues early in the planning process and the final rule continues to include such considerations as a part of transportation planning (e.g., sections 450.206(a)(5), 450.216(c), 450.218(b), and 450.306(b)(5)). The FHWA and FTA note that planning documents brought into the NEPA process through PEL or other authorities will not serve as the sole documentation of environmental impact analysis, unless the planninglevel analysis meets NEPA-level evaluation and applicable procedural requirements. The FL DOT commented that the final rule should be clearer about who decides whether to use PEL and which PEL process to use. The AASHTO suggested revisions to the regulatory language that would give the decision to the project sponsor. In response, FHWA and FTA note each PEL authority described in sections 450.212 and 450.318 includes provisions specifying which entities have decisionmaking authority. Sections 450.212(a)–(c) and 450.318(a)–(d) give decisionmaking authority to the NEPA lead agencies. In the case of sections 450.212(d) and 450.318(e), 23 U.S.C. 168 defines the entities with decisionmaking authority as the relevant agency, which is the NEPA lead agency as defined in 23 U.S.C. 139 and cooperating agencies with jurisdiction over the project. The FHWA and FTA encourage early and ongoing coordination among all parties involved in the development and review of the planning product, including MPOs. The FHWA and FTA believe early coordination is the method for deciding whether and how to lay the groundwork during planning for carrying a planning product into the NEPA process using part 450 PEL authorities, especially where PEL under 23 U.S.C. 168 is being pursued. E:\FR\FM\27MYR3.SGM 27MYR3 34094 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 NPRM Comments on Relationship Between Pre-Existing PEL Authorities and Section 168 Several commenters (AASHTO, AMPO, ARC, and OR DOT) indicated the preference to retain the pre-existing PEL provisions in the final rule (sections 450.212 (a)–(c) and 450.318(a)–(d) and appendix A) because of the flexibility the existing authorities provide. Commenters (AASHTO, ARC, FL DOT, IDT, MDT, ND DOT, SD DOT, TX DOT, and WY DOT) emphasized the importance of appendix A, (Linking the Transportation Planning and NEPA Processes to Practitioners), and requested that FHWA and FTA retain appendix A and make it clear that it is non-binding guidance. The AASHTO requested that the final rule expressly state that appendix A to part 450 applies only to the PEL provisions contained in sections 450.212(a)–(c) and 450.318(a)– (d) in the final rule, and not to the PEL provision that implements 23 U.S.C. 168. A number of commenters (AASHTO, CO DOT, FL DOT, H–GAC, MetroPlan, MDT, NC DOT, NCTCOG/RTC, PA DOT, and TX DOT) expressed concern that the MAP–21 section 168 provisions are more restrictive than the pre-existing PEL regulations, and that they would prove so restrictive as to discourage its use. The FHWA and FTA believe this concern may apply to 23 U.S.C. 168 as revised by the FAST Act because the statute includes a number of specific procedural requirements. The H–GAC, NCTCOG/RTC, and TX DOT expressed concern that the section 168 process would be perceived as the required PEL procedure. Some commenters (AASHTO, AMPO, ARC, CO DOT, FL DOT, H–GAC, MA DOT, MDT, NC DOT, NCTCOG/RTC, NYMTC, NYS DOT, Oregon DOT, and TX DOT) requested that FHWA and FTA make it clear in the final rule that the section 168 process is optional, and that it does not supersede PEL authorities that existed prior to the enactment of section 168 in 2012. The AASHTO submitted language for insertion into sections 450.212(d) and 450.318(e) to emphasize that the new section 168 provisions have no impact on the ability to use pre-existing PEL authorities. The AASHTO also suggested revisions to the organization of the regulatory text to place the preexisting PEL authorities in different sections than the new 23 U.S.C. 168 PEL authority, as well as changes to the language to further clarify that section 168 implementing regulations supplement the pre-existing PEL authorities. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 The FHWA and FTA agree that preexisting PEL authorities, whether in the part 450 regulations or outside them, were not altered by the enactment of section 168 or its subsequent amendment. The final rule explicitly retains the authorities contained in sections 450.212 and 450.318 prior to this rulemaking. Sections 450.212(d) and 450.318(e) reference 23 U.S.C. 168, which includes a savings clause provision found in 23 U.S.C. 168(f)(3). The statutory provision states that section 168 ‘‘. . . . shall not be construed to affect the use of planning products in the environmental review process pursuant to other authorities under any other provision of law. . . .’’ The FHWA and FTA agree with the comments requesting retention of appendix A and clarification about its applicability. The final rule retains the non-binding guidance in appendix A and explicitly states in sections 450.212(c) and 450.318(d) that the guidance in appendix A applies only to paragraphs 450.212(a)–(c) and 450.318(a)–(c). The FHWA and FTA have adopted AASHTO’s suggestion to add regulatory language to sections 450.212(d) and 450.318(e) to emphasize that the new section 168 provisions have no impact on the ability to use pre-existing PEL authorities. In the final rule, sections 450.212(d) and 450.318(e) contain language referring to 23 U.S.C. 168(f), and stating: ‘‘The statutory authority in 23 U.S.C 168 shall not be construed to limit in any way the continued use of processes established under other parts of this section or under an authority established outside of this regulation, and the use of one of the processes in this section does not preclude the subsequent use of another process in this section or an authority outside of this regulation. . . . The statute does not restrict the initiation of the environmental review process during planning.’’ The FHWA and FTA decline to adopt the reorganization of the regulations suggested by AASHTO. The FHWA and FTA believe that a total reorganization of the regulations, as proposed by AASHTO, would be complicated and confusing. However, FHWA and FTA do agree it is important to reduce the potential for confusion about PEL options and requirements. The FHWA and FTA believe their choice to replace detailed regulatory language proposed in the Section 168 NPRM with a short reference to 23 U.S.C. 168 will help accomplish this objective. With respect to the comments suggesting 23 U.S.C. 168 provisions are too restrictive and will discourage use of PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 its authority, FHWA and FTA point to the changes made by the FAST Act that simplify the applicable procedures for using the authority created in 23 U.S.C. 168. In addition, the final rule is clear that all of the PEL procedures are optional and any PEL authority may be used. NPRM Comments on Planning NPRM Proposals for Changes to Part 450 In the planning NPRM, FHWA and FTA proposed repealing section 450.318(d) and redesignating the remaining section of 450.318. The language in section 450.318(d), as in effect prior to this final rule, addressed PEL in the context of New Start projects under 49 U.S.C. 5309(d). Under the MAP–21, changes to section 5309 removed the statutory requirement reflected in section 450.318(d). The FHWA and FTA received only one comment on that proposal from the NRDC. The comment supported the repeal. The final rule repeals section 450.318(d) and redesignates 450.318(e) as 450.318(d). Section 450.214 Development of Programmatic Mitigation Plans Section 450.214 describes the development of programmatic mitigation plans. The FHWA and FTA received comments from a total of 22 entities on this section, which included 15 States, 3 national non-profit advocacy groups, 2 planning organizations, and 2 industry associations. All commenters were generally supportive of the development and use of programmatic mitigation plans within the transportation planning process. General Comments Two States (CALTRANS and NYS DOT) commented on the eligibility for Federal funding for the development of programmatic mitigation plans, noting that without dedicated funding, there may not be enough staff resources to enable the development and review of programmatic mitigation plans. The FHWA and FTA note that the development of programmatic mitigation plans was allowed prior to the enactment of MAP–21 (section 1311) and the inclusion of language on programmatic mitigation plans in the final rule. The availability of Federal funds for such activities would depend on the eligibility requirements for any particular type of Federal funding. However, it is expected that Federal funds normally used for transportation planning activities (such as State Planning and Research and Metropolitan Planning funds) would E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations likely be potential sources of funding for programmatic mitigation plan development, to be evaluated on a caseby-case basis. The ARTBA commented on the greater use of programmatic mitigation plans and recommended that FHWA and FTA quantify the benefits of using such plans in terms of time saved. In addition, the group also recommended a clearinghouse for mitigation plans used across the Nation to highlight best practices. The FHWA and FTA acknowledge that programmatic mitigation plans are resourceful tools, but the benefits of such plans cannot be quantified at this time due to insufficient data. A clearinghouse for programmatic mitigation plans is under consideration, and may be developed for use in the future. The NRDC commended FHWA and FTA for the provisions contained within sections 450.214 and 450.320, noting that early planning can reduce conflicts and delays during environmental reviews performed later in project development. The group specifically noted the preference for requiring the development of programmatic mitigation plans within the transportation planning process. The FHWA and FTA appreciate the comment, but the final rule retains the flexibility in the statutory language (23 U.S.C. 169(a)) by allowing for the development of programmatic mitigation plans within the transportation planning process (pursuant to the framework described in 450.214(a)) or other existing authorities as provided for in 450.214(f)). See discussion under sections 450.214(b) and 450.214(e) for additional information. The NRDC also commented on the appropriate nature of consultation with the resource agencies, making a draft of the mitigation plan available for public review and comment, and addressing the comments in the final plan. The FHWA and FTA concur with the points raised by NRDC for programmatic mitigation plans developed pursuant to the framework in section 450.214(a), and have retained the language in the final rule in section 450.214(b). The National Mitigation Banking Association, a national non-profit advocacy group, noted that many of the attributes of a programmatic mitigation plan specified in section 450.214 are already in place in mitigation and conservation banks across the Nation, and that it would be prudent public policy to make the acquisition of bank credits from approved mitigation banks a central component of a programmatic mitigation plan element. The group also VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 suggested that the final rule incorporate a reference to existing banks and bank credits as the preferred alternative for offsetting transportation impacts. The FHWA and FTA drafted the final rule to retain the statute’s flexibility on how States and MPOs address potential environmental impacts to resources from transportation projects, including the use of mitigation and conservation banks. The FHWA and FTA prefer to retain that flexibility in the final rule. A planning organization (MidAmerica Regional Council) provided a general letter of support on the development and use of programmatic mitigation plans and noted that the final rule should include language indicating that States shall coordinate with MPOs on the development and use of such plans. The FHWA and FTA acknowledge that development of programmatic mitigation plans are complex yet resourceful tools in future environmental reviews. Such plans can only be developed through proper guidance by the agencies involved in carrying out the recommendations of the plan, and with the full cooperation of the agencies with jurisdiction. In an effort to develop such complex plans effectively and efficiently, FHWA and FTA encourage full participation and coordination by all agencies with jurisdiction and special expertise over the resources addressed in the plan, and States and MPOs where such plans take effect. The CALTRANS commented on two instances of preamble language in the NPRM related to mitigation. The first instance noted that the text describing mitigation be clarified to include the terms ‘‘. . . protecting, preserving, rehabilitating, or creating environmental resources . . .’’ The second instance noted that ‘‘minimization should be included’’ in the discussion involving mitigation. The FHWA and FTA concur with both interpretations. However, the language in section 450.214(a)(2) of the final rule remains unchanged because the comments do not concern regulatory text, but rather preamble language from the NPRM not carried forward into the final rule. Section 450.214(a) Three entities (AASHTO, CT DOT, and H–GAC) commented on the proposed language in section 450.214(a)(2)(ii), stating that the resources addressed in the final rule should not be limited to the examples given. The FHWA and FTA concur that the list of resources mentioned in section 450.214(a)(2)(ii) is not meant to be exhaustive, as the use of the term ‘‘include’’ conveys that the list of PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 34095 resources is not limited to those examples set out in the regulatory text. Two of the entities (CT DOT and AASHTO) requested that additional resources be added to the list of examples, including archaeological resources and stormwater banks. The commenters also requested that the term ‘‘threatened and endangered species critical habitat’’ be split up into ‘‘threatened and endangered species, and critical habitat,’’ recognizing that they are two separate categories of potential impacts. The FHWA and FTA added stormwater and archaeological resources to the list of examples as they represent common examples, and split the term ‘‘threatened and endangered species’’ from ‘‘critical habitat,’’ given that they represent different concepts. Finally, the Partnership for Active Transportation requested that ‘‘an assessment of opportunities to mitigate negative environmental impacts of the transportation infrastructure by expanding access to active transportation facilities and completing active transportation networks’’ be added to the list of examples. The FHWA and FTA decline to add the example to the list as it more of a broad concept of environmental impacts rather than a particular impact area. However, expanding access to active transportation facilities and completing active transportation networks will likely be a consideration in the transportation planning process. The CALTRANS commented on the appropriate scale of the programmatic mitigation plan, and inquired whether MPOs may plan on a scale beyond its MPA boundaries. The scope and scale of the programmatic mitigation plan is outlined within the optional framework of section 450.214(a)(1)(ii), which states that the plan may be developed on a statewide, regional, local, ecosystem, watershed, or any similar scale for which the resource category applies. Section 450.214(b) Fifteen entities (AASHTO, CALTRANS, CO DOT, CT DOT, DC DOT, H–GAC, ID DOT, MT DOT, ND DOT, NYS DOT, OR DOT, PA DOT, SD DOT, TX, DOT, and WY DOT) commented on the proposed language in section 450.214(b), which stated: ‘‘If a State chooses to develop a programmatic mitigation plan then it shall be developed as part of the statewide transportation planning process . . .’’ These commenters found the text proposed under paragraph (b) to be more restrictive than the text of the statute. Specifically, the commenters stated that paragraph (b) should E:\FR\FM\27MYR3.SGM 27MYR3 34096 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 preserve the flexibility provided in the statute which allows for States and MPOs to develop programmatic mitigation plans within, or outside, the statewide and metropolitan planning processes. The FHWA and FTA agree with the commenters and modified the language in paragraph (b) to provide flexibility for States and MPOs to develop programmatic mitigation plans either within the transportation planning process or under another authority, independent of the transportation planning process. Based on comments received on paragraph (b), FHWA and FTA also added a new paragraph (f) to the section to provide additional clarity on the flexibility to develop programmatic mitigation plans outside of the transportation planning process, and then adopt such plans into the transportation planning process. The CALTRANS inquired about the requirements for public review, and whether the requirement for public review under this authority is congruent to a formal NEPA review. States and MPOs retain the flexibility to adopt a programmatic mitigation plan into the transportation planning process by following the process outlined in paragraph (b). There are no specific timelines involved for public review and comment under the optional framework in the final rule, but FHWA and FTA encourage States and MPOs to utilize public review and comment timelines that are consistent with their transportation planning process. Furthermore, all comments on a programmatic mitigation plan received during the public review and comment period should be considered when developing the final plan. Section 450.214(d) The CALTRANS noted appreciation for the support for programmatic mitigation plans, but expressed concerns about acceptance of such plans by Federal and State regulatory agencies. The commenter specifically questioned whether rulemaking to govern the regulatory agencies toward the goal of reaching a higher level of commitment to programmatic mitigation planning activities might be possible. The FHWA and FTA note that the statutory framework for programmatic mitigation plans that is the subject of this final rule specifically requires consultation with the agency or agencies with jurisdiction over the resource covered by the programmatic mitigation plan (23 U.S.C. 169(b)(4)) and in the regulatory text at 23 CFR 450.214(d) and 320(d). However, the statute does not provide FHWA and FTA with authority VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 to affect the responsibility of resource agencies, which must address their own statutory requirements concerning the resources under their jurisdiction. Consequently, the language found in the NPRM and supported by statute is retained with one exception. In paragraph (d), FHWA and FTA replaced the word ‘‘developed’’ with ‘‘adopted,’’ to indicate that the adoption process described in paragraph (b) is necessary when utilizing a mitigation plan developed under this authority for use in future environmental reviews. Section 1306 of the FAST Act amends 23 U.S.C. 169(f) to change ‘‘may use’’ to ‘‘shall give substantial weight to’’ and changes ‘‘any other environmental laws and regulations’’ to ‘‘other Federal environmental law’’ such that a Federal agency responsible for environmental reviews ‘‘shall give substantial weight to’’ the recommendations in the programmatic mitigation plan when carrying out its responsibilities under NEPA or ‘‘other Federal environmental law.’’ Sections 450.214(d) and 450.320(d) of the Final Rule are amended to reflect these changes. Section 450.214(e) Fifteen entities (AASHTO, CALTRANS, CO DOT, CT DOT, DC DOT, H–GAC, ID DOT, MT DOT, ND DOT, NYS DOT, OR DOT, PA DOT, SD DOT, TX DOT, and WY DOT) commented on preserving the flexibility in the statute for States and MPOs to determine whether to develop programmatic mitigation plans, citing the voluntary nature of programmatic mitigation plans. The FHWA and FTA concur with the commenters and have edited the language in the NPRM to clarify that the development of the programmatic mitigation plan is entirely optional, as addressed in the introductory language of the regulatory text in section 450.214(a). The FHWA and FTA encourage the development and use of programmatic mitigation plans, but do not require it as part of the transportation planning process. Based on comments received on paragraphs (b) and (e), FHWA and FTA also added a new paragraph (f) to the section to provide additional clarity on the flexibility to develop programmatic mitigation plans outside of the transportation planning process, and then adopt such plans into the transportation planning process. Section 450.216 Development and Content of the Long-Range Statewide Transportation Plan Fifty commenters submitted comments on this section (AASHTO, PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 ASHTD, Boone County Resource Mgmt., Braxo Valley COG, Buckeye HillsHocking Valley RDD, CO DOT, Crystal Hitchings (private citizen), DC DOT, East TX Chief Elected Officials/RPO, Florida MPO Advisory Council, FMATS, IA DOT, ID DOT, ME DOT, Meramec RPC, MI DOT, Mid-Columbia Economic Development District, MidRegion Rural Planning Agencies TPO and NM RTPOs, MO DOT, MT DOT, NADO, NARC, National Association of Working Women, National Trust for Historic Preservation, NC DOT, ND DOT, NJ DOT, North Carolina Association of RPOs, North Central Pennsylvania RPDC, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, NRDC, NY State Association of MPOs, NYS DOT, OR DOT, Partnership for Active Transportation, Region Five Development Commission, Region Nine Development Commission, SD DOT, South Alabama RPC and RPO, South Plains AOG, Southern Windsor County RPC, TX DOT, Transportation for America, Two Rivers-Ottauquechee Regional Commission, Upper Minnesota Valley RDC, VA DOT, VT DOT, West Central Indiana EDD, WI DOT, and WY DOT). Nineteen of the comment letters were from States, 18 were from regional planning organizations, 8 were from associations representing public transportation agencies, 4 were from advocacy groups, and 1 was from an MPO. Several RPOs (Boone County Resource Management, Brazo Valley COG, Buckeye Hills-Hocking Valley RDD, East Texas Chief Elected Officials RPO, Meramec RPC, Mid-Columbia EDD, Mid-Region Rural TPO and New Mexico RTPOs, NADO, North Carolina Association of RPOs, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, Region Five Development Commission, Region Nine Development Commission, South Alabama RPC and RPO, South Plains AOG, Southern Windsor County RPC, Two RiversOttauquechee Regional Commission, Upper Minnesota Valley RDC, and West Central Indiana EDD) and one citizen (Crystal Hitchings) commented that there are several regional plans that States should consider incorporating (by reference or summary) into their longrange statewide transportation plan, particularly in States where an RTPO framework is not in place to provide regional long-range transportation plans. Specific examples provided include the Comprehensive Economic Development Strategies (CEDS), required for EDDs E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 recognized by the U.S. Economic Development Administration; and regional sustainability plans, recognized by HUD. The commenters stated that these are examples of plans that provide a regional perspective on transportation and land use that may inform the transportation decisionmaking process and encourage coordinated investment across Federal and other public program funds. In response to these comments, the final rule reflects the statutory provision that requires States to cooperate with nonmetropolitan officials with responsibility for transportation or the RTPOs, if applicable, when developing the longrange statewide transportation plan. The RTPOs or nonmetropolitan officials with responsibilities for transportation are encouraged to share these regional plans with the State during this cooperative process. However, this cooperation does not mean that the State must incorporate these plans or their investment strategies into the longrange statewide transportation plan. That is at the discretion of individual States. The NRDC commented on the sectionby-section analysis of the long-range statewide transportation plan in the NPRM, which states that section 450.216 maintains the opportunity for the long-range statewide transportation plan to be comprised of policies and/or strategies, not necessarily specific projects over the minimum 20-year forecast period. The commenter stated that, in addition to policies and/or strategies, the long-range statewide transportation plan should also include specific projects. In response to this comment, FHWA and FTA believe that in section 23 U.S.C. 135(f), Congress intended to allow States the flexibility to develop a long-range statewide transportation plan that includes policies and/or strategies and not specific projects. The FHWA and FTA have reflected that intention in section 450.216 of the final rule. States may, at their discretion, include projects in the long-range statewide transportation plan. However, 23 U.S.C. 135(f) and the final rule do not require it. No changes are made to this section as a result of the comment. Section 450.216(b) Section 1202 of the FAST Act amends 23 U.S.C. 135(f)(8) such that the longrange statewide transportation plan shall include consideration of the role of intercity buses may play in reducing congestion, pollution, and energy consumption. Section 450.216(b) in the final rule is amended to include this new provision. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Section 450.216(d) Several commenters (AASHTO, MI DOT, NC DOT, and SEMCOG) objected to section 450.216(d), which states that the long-range statewide transportation plan should integrate the priorities, goals, countermeasures, strategies, or projects contained in the HSIP, including the SHSP, and the Public Transportation Agency Safety Plan. The commenters asked that it be struck from the final rule because it is not specifically in the statute. The basis of this provision predates the MAP–21. The integration of safety and the priorities, goals, countermeasures, and projects of the SHSP into the long-range statewide transportation plan was also part of the previous 2007 planning regulations (23 CFR 250.214(d)). The FHWA and FTA believe the importance of safety, particularly the early consideration of safety, warrants retaining this provision in the final rule. The FHWA and FTA note that compliance with this provision is not mandatory under the old rule or under this final rule. Lastly, safety is one of the key performance areas identified in MAP–21 for performance management of the transportation system and, consequently, is part of the MAP–21 mandated performance based planning process. The FHWA and FTA therefore left this provision in the final rule as proposed. The New York Association of MPOs commented that in paragraph (d)(2), the language lacks guidance on when targets should be set and how frequently they should be updated. The FHWA and FTA respond that the timeframe for States and MPOs to set targets is tied to the effective dates of the performance management rules, not the planning rule. In sections 450.226 and 450.340, the planning rule sets the timeframe whereby the performance targets must be reflected in the long-range statewide transportation plan and in the MTPs. The NYS DOT expressed support for a performance-based approach to the development of the long-range statewide transportation plan, with more emphasis on data driven program outcomes, whereas its previous longrange statewide transportation plans have been policy focused and less quantitative in terms of goal setting. The commenter further commented on the need for flexibility in the timeframe for updating the long-range statewide transportation plan and the necessary coordination with MPO long-range planning. The FHWA and FTA response to this comment is that the planning NPRM and the final rule, in sections 450.226 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 34097 and 450.340, consistent with 23 U.S.C. 135(l) and 49 U.S.C. 5304(k) provide for a 2-year transition period after the publication of this final rule for the States and MPOs to bring their planning documents (long-range statewide plan, MTP, STIP, and TIPs) into compliance with these requirements. Section 450.216(f) Section 1202 of the FAST Act amends 23 U.S.C. 135(f)(7) to change ‘‘should’’ to ‘‘shall’’ to note that the statewide transportation plan ‘‘shall’’ include a description of performance measures and targets and ‘‘shall’’ include a system performance report. Sections 450.216(f)(1) and (2) in the final rule are amended to include this new provision. Section 450.216(f)(2) states that the statewide transportation plan shall include a system performance report, and subsequent updates, evaluating the condition and performance of the transportation system with respect to the performance targets, including progress achieved by the MPOs in meeting the performance targets in comparison with system performance recorded in previous reports. The Florida MPO Advisory Council commented that it is unclear if the performance targets described in this section relate to those set by the State or those set by the MPO, and that it also is not clear the comparison described in this section is to State or metropolitan area system performance recorded in previous reports. The FHWA and FTA response to this comment is that this report shall include a description of both State and MPO targets and also a description of State and MPO progress at achieving their respective targets. This requirement is based on 23 U.S.C. 135(f)(7) and 49 U.S.C.(f)(7)(B), which state that the long-range statewide transportation plan shall include a system performance report and subsequent updates evaluating the condition and performance with respect to the performance targets, including progress achieved by the MPO in meeting the performance targets in comparison with system performance recorded in previous reports. The WI DOT commented that section 450.216(f)(2) does not address the inclusion of performance targets in plans adopted shortly after rule publication. The FHWA and FTA response to this comment is that sections 450.226 and 450.340 provide for a 2-year transition period after publication of the final rule for States and MPOs to bring the long-range statewide transportation plan, MTPs, STIPs, and TIPs into compliance. The E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34098 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations IA DOT commented that it is not clear what subsequent updates refers to in section 450.216(f)(2). In response, FHWA and FTA refer the commenter to a similar comment and response at section 450.324(f)(4). The ME DOT sought further clarification on the system performance report that must be included with updates to the long-range statewide transportation plan. Specifically, the ME DOT asked what would be the required cycle for subsequent updates of the long-range statewide transportation plan. In response, the MAP–21 and the FAST Act do not establish a cycle for updating the statewide long-range transportation plan. It is at the State’s discretion to decide when to undertake an update. However, if a State chooses to update its long-range statewide transportation plan after the regulatory phase-in provisions in sections 450.226 and 450.340, the State must reflect the new requirements in that update. The FMATS emphasized the necessary coordination among the States, MPOs, and operators of public transportation to establish performance targets. The FHWA and FTA agree that coordination between the State, MPOs, and operators of public transportation will be critical to both setting and achieving performance targets for each of the entities. The FMATS also pointed out that fundamentally, the State develops a long-range statewide transportation plan that is a policy document, whereas the MPO MTP contains a fiscally constrained project list and policies. This might create a disconnect in State and MPO coordination. The FMATS noted that an MPO has no say in which projects actually are implemented, and that may impact the MPO’s performance reporting and ability to achieve performance targets. In response, FHWA and FTA feel strongly that interagency coordination is an important part of successful implementation of the 3–C planning process, including the new requirements for performance-based planning. Section 450.314 of the final rule provides that the States, MPOs, and operators of public transportation must identify and document, either through the metropolitan planning agreement or other means, their mutual responsibilities in the implementing a performance-based approach to planning and programming. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.216(l) Section 1202 of the Fast Act amends 23 U.S.C. 135(f)(3)(A)(ii) to add adds VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 public ports to the list of entities States shall provide a reasonable opportunity to comment on the plan and adds examples of private providers of transportation. Section 450.216(l)(2) in the final rule is amended to include these new provisions. Section 450.216(n) The AASHTO, ASHTD, ID DOT, MI DOT, MT DOT, ND DOT, SD DOT, and WY DOT requested that FHWA and FTA delete the language in section 450.216(n) that states that the long-range statewide transportation plan should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plans. The commenters argue that it infringes on the States’ flexibility to determine the content in their longrange transportation plans, including whether to create a policy- or projectbased plan. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The VA DOT recommends that FHWA and FTA specifically require that development of the long-range statewide transportation plan includes consideration or integration of the congestion management plans, performance plans and, where applicable, the CMAQ performance plan. The FHWA and FTA response is that under the final rule at sections 450.206(c)(4) and 450.306(d)(4), the States and MPOs are required to integrate the goals, objectives, and performance measures from other State transportation plans and transportation processes, as well as any plans developed pursuant to chapter 53 of title 49, into the statewide and metropolitan transportation planning processes. Examples of such plans include the HSIP and SHSP, as defined in 23 U.S.C. 148; the State Asset Management Plan for the NHS, as defined in 23 U.S.C. 119(e); the State Freight Plan (if the State has one), as defined in section 1118 of MAP–21; the Transit Asset Management Plan, as defined in 49 U.S.C.; the Public Transportation Agency Safety Plan, as defined in 49 U.S.C. 5329(d); and, for certain MPOs in metropolitan areas, the congestion mitigation and air quality improvement program performance plan as defined in 23 U.S.C. 149(l), as applicable, and the congestion management process, as defined in 23 CFR 450.322, if applicable. Since the congestion mitigation and air quality improvement performance plan and the congestion management process are unique to certain metropolitan areas, PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 FHWA and FTA limited the integration of those plans to the metropolitan transportation planning process in those areas. The Nine to Five National Association of Working Women commented that an equitable transportation system is critical to creating thriving communities of opportunity. The commenter stated that where and how we decide to make transportation investments is critical to communities’ access to economic opportunity. The commenter further stated that low-income and minority communities face tremendous barriers in access to transportation that can get them to critical places (e.g., school, work, child care, appointments, and grocery stores), and that reducing those barriers will require targeted investments. The commenter further stated that by developing State and metropolitan planning guidance that includes the voices of directly affected communities and prioritizes enhanced mobility and opportunity for the most vulnerable populations, transit investments can go a long way to supporting improved social and economic outcomes in these communities. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The National Trust for Historic Preservation commented that additional language should be added under section 450.216(i) to state that State and local resource protection and historic preservation agencies shall be contacted to obtain existing inventories, and the State may fund the preparation or updating of such inventories, pursuant to this Chapter, if inventories are not current or available. In response to this comment, FHWA and FTA note that at the time the NPRM was under development, language was added to sections 450.206(b) and 450.306(c) to include section 4(f) properties, as defined in 23 CFR 774.17, as one of several examples to consider for establishing the degree of consideration and implementation of the planning factors. Section 4(f) properties include land of a historic site of national, State, or local significance (23 CFR 774.17). The FHWA and FTA also note that under section 450.216(i), it is already provided that the longrange statewide transportation plan shall be developed, as appropriate, in consultation with State, tribal, and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation. This consultation shall involve comparison of transportation plans to State and E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 tribal conservation plans or maps, if available, and comparison of transportation plans to inventories of natural or historic resources, if available. The FHWA and FTA agree that if a State seeks to prepare or update local resource protection and/or historic preservation inventories as part of their update to the long-range statewide transportation plan, they may do so, but are not required. Two advocacy groups (NRDC and Transportation for America) commented that differences between the State and metropolitan planning sections of the proposed rule should be reconsidered. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The NJ DOT commented that similar to the MPO option to use scenario planning, many States also use scenario planning in the development of their long-range statewide transportation plans. The NJ DOT will be considering the use of scenario planning when it undertakes its next update of the longrange statewide transportation plan. The FHWA and FTA encourage other entities, such as the States, to use scenario planning in their transportation planning process as a best practice, particularly as part of developing the long-range statewide transportation plan. The VT DOT recommended incorporating climate resilience as one of the components of the statewide transportation planning process. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.216(k) Several commenters (AASHTO, CO DOT, DC DOT, ID DOT, MT DOT, ND DOT, SD DOT, TX DOT, and WY DOT) commented on the requirement in section 450.216(k) that a long-range statewide transportation plan shall include a discussion of potential environmental mitigation activities and potential areas to carry out these activities, and that the State shall develop the discussion in consultation with Federal, State, regional, local, and tribal land management, wildlife, and regulatory agencies. The commenters noted that the consultation referenced in this section is too broad and should only relate to applicable Federal, State, local, and regional agencies and tribes. Specifically, a State’s transportation officials should not have to consult on mitigation issues in the southern part of the State with local officials from a distant northern part of the State and that the final rule should be revised to make this clear. The FHWA and FTA VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 agree with this comment and have made this change in section 450.324(f)(10) of the final rule. The Florida MPO Advisory Council and NARC commented that section 450.216(k) should also include MPOs on the list of entities with which the State must consult when developing the discussion of potential environmental mitigation activities in the long-range statewide transportation plan. The FHWA and FTA response to this comment is that the suggested change is not necessary because States are already required to develop the long-range statewide transportation plan in cooperation with the affected MPOs under section 450.216(g). The MARC commented that it supports the requirements for State consultation with Federal, State, tribal, regional, and local land management, wildlife, and regulatory agencies when the State is developing discussion on potential environmental mitigation activities for the long-range statewide transportation plan as described in section 450.316(k). Section 450.216(l) In section 450.216(l)(2) of the final rule, public ports has been added to the list of interested parties that a State shall provide a reasonable opportunity to comment on the proposed long-range statewide transportation plan exactly as described in the FAST Act section 1201 (23 U.S.C. 135(f)(3)(A)(ii)). Also, in section 450.216(l)(2), examples of providers of private providers of public transportation have been added to the final rule exactly as described in FAST Act section 1202 (23 U.S.C.(f)(3)(A)(ii)) including intercity bus operators, employer based cash-out program, shuttle program, or telework program. Section 450.216(m) On sections 450.216(m) (development and content of the long-range statewide transportation plan) and 450.324(f)(11)(iii) (development and content of the MTP), the Partnership for Active Transportation commented that it strongly supports consideration of innovative financing methods in both the long-range statewide transportation plan section and the MTP. The commenter further stated that the proposed revisions in the NPRM should explicitly encourage consideration of innovative financing techniques in the context of active transportation. The commenter also stated that many transportation planners do not currently consider public-private partnerships as a way to finance pedestrian and bicycle projects. The FHWA and FTA believe that the existing language in sections PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 34099 450.216(m) and 450.324(f)(11)(iii) that encourages an assessment of innovative financing techniques is broad based, and is meant to include all projects in the plan, including the financing of pedestrian and bicycle projects. Therefore, no changes are warranted. The CO DOT commented that section 450.216(m), which provides that the financial plan for the long-range statewide transportation plan may include an assessment of the appropriateness of innovative finance techniques (for example, tolling, pricing, bonding public-private partnerships, or other strategies) as revenue sources, seems inappropriate and that these financing instruments have been around for a long time. In response to this comment, FHWA and FTA note that even though these techniques might be well-established, this text was included to encourage consideration of financing techniques for projects early on in the planning process (i.e., during the development of the long-range statewide transportation plan). The FHWA and FTA also note that this provision is optional. No changes are made to this section based on this comment. Section 450.218 Development and Content of the Statewide Transportation Improvement Program Forty-eight commenters (Addison County RPC, AASHTO, Boone County Resource Management, Brazo Valley COG, Buckeye Hills-Hocking Valley RDD, CT DOT, East Texas Chief Elected Officials RPO, FL DOT, FMATS, GA DOT, Hitchings (private citizen), IA DOT ID DOT, MA DOT, MD DOT, Meramec RPC, Miami-Dade MPO, MI DOT, Mid-Region RTPO and New Mexico RPOs, MN DOT, MT DOT, NADO, NARC, NC DOT, ND DOT, NJ DOT, North Central PA RPDC, Northern Maine Development Commission, NRDC, NYS DOT, OK DOT, Region Five Development Commission, Region Nine Development Commission, RTC and NCTCOG, RI DOT, SD DOT, South Alabama RPC and RPO, Southeast Alabama RPO, SEMCOG, TriMet, Two Rivers-Ottauquechee Regional Commission, TX DOT, Upper Minnesota Valley RDC, US Travel Association, VT DOT, WA State DOT, West Central Arkansas Planning and Development District, West Central Indiana EDD, WI DOT, and WY DOT) submitted comments on this section. Twenty of the comment letters were from States, 17 were from regional planning organizations, 5 were from associations representing transportation agencies, 4 were from MPOs, 1 was from an E:\FR\FM\27MYR3.SGM 27MYR3 34100 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations operator of public transportation, and one was from an advocacy group. The NRDC commented that it would like for the FHWA’s Federal-aid highway program to be more like the FTA’s new starts program. The FHWA and FTA response to this comment is that it is outside the scope of the final rule. The AASHTO commented that it would like for the final rule to emphasize that the function of the STIP is to provide an annual listing of projects for a period of 4 years to inform the public, partners, and review agencies. In response, FHWA and FTA note that sections 450.218(a)–(q) describe the development and content of the STIP, including requirements to include specific project information, the horizon for the STIP, and State consultation and cooperation with other entities in developing the STIP. Section 450.220 describes FHWA and FTA approvals of the STIP. mstockstill on DSK3G9T082PROD with RULES3 Section 450.218(b) The IA DOT commented on section 450.218(b), seeking clarification if the State’s approval of the MPO TIPs constitutes approval or agreement that MPO projects will help make progress toward State and MPO targets. The FHWA and FTA response to this comment is that State (Governor) approval of the MPO TIP does not constitute State approval or agreement that MPO projects in the TIP will help make progress toward State and MPO targets. The FHWA and FTA reiterate that under sections 450.206(c)(2) and 450.306(d)(2)(ii) in the final rule, States and MPOs are required to coordinate State and MPO target setting, and the targets should be consistent to the maximum extent practicable. Section 450.218(c) The MN DOT commented that the requirement to develop the STIP in cooperation with affected nonmetropolitan local officials with responsibility for transportation or in cooperation with an RTPO, if applicable, in section 450.218(c) is in conflict with section 450.210(d). Section 450.210(d) provides that an RTPO, if established and designated by the State, shall develop a regional TIP for consideration by the State. The FHWA and FTA do not see this as a conflict. States are required to cooperate with nonmetropolitan local officials or with an RTPO, if applicable, when developing the STIP. However, a State is not required to include an RTPO TIP as part of the STIP. The OK DOT commented that it does not agree with FHWA and FTA VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 interpretation in section 450.218(c) that the STIP shall be developed in cooperation with affected nonmetropolitan officials with responsibility for transportation or, if applicable, through RTPOs. The OK DOT suggested that development should be in consultation rather than with cooperation, given 23 U.S.C. 135(g)(2)(B)(i). The FHWA and FTA do not agree with this comment and have explained the rationale for using the word ‘‘cooperation’’ in this context in the section-by-section discussion in the NPRM. Specifically, the final rule changed the terms ‘‘consultation’’ with ‘‘nonmetropolitan’’ officials to ‘‘cooperation’’ with ‘‘nonmetropolitan’’ officials and added cooperation with RTPOs, if applicable. These changes reflect MAP–21 revisions to 49 U.S.C. 5304(g)(2)(B)(i). Whereas 49 U.S.C. 5304 is nearly the same as 23 U.S.C. 135, this is one instance where changes to the two statutes were inconsistent. The MAP–21 revision to section 135(g)(2)(B)(i) does not change ‘‘consultation’’ to ‘‘cooperation.’’ In updating the final rule, FHWA and FTA determined that it was appropriate to use the term ‘‘cooperation’’ rather than ‘‘consultation’’ in this paragraph. To have two different processes (a consultation process for Title 23 actions and a cooperation process for Title 49 actions) is overly burdensome. Using the term ‘‘cooperation’’ is consistent with the comparable changes that MAP– 21 made to the long-range statewide transportation plan provisions (see section 450.216(h)). Because of the longstanding requirement that the STIP be consistent with the long-range statewide transportation plan (section 450.218(k)), the State should follow a similar coordination process for both of these documents. In addition, as defined for purposes of part 450, cooperation requires States to work more closely with nonmetropolitan local officials and RTPOs, if applicable, than consultation. This change is also consistent with the overall MAP–21 approach to increasing the presence of affected nonmetropolitan local officials and regional planning organizations in the statewide planning process. No changes are made to the final rule based on this comment. Section 450.218(l) The AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, SEMCOG, and WY DOT commented that in section 450.218(l), only the cost estimates in the STIP should be shown in year of expenditure dollars and not both cost estimates and revenue projections. See section PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 450.324(f) for more discussion and FHWA and FTA’s responses to this and similar comments on this topic. The ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT commented that although the financial plan is optional, section 450.218(l) requires too much detail. The FHWA and FTA response to this comment is that this provision provides the State the option of including a financial plan with the STIP, and the details provided in this section are intended to help a State use the financial plan to assess the availability of funding in relation to the costs of implementing the program of projects in the STIP. Section 450.218(o) The AASHTO, MI DOT, MT DOT, TX DOT, and WY DOT commented on proposed section 450.218(o). The section states that the STIP should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plans. The commenters suggested that this language is undefined, confusing, and could potentially be interpreted and applied inconsistently. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The TX DOT commented that the final rule should acknowledge that funding sources other than Federal funds may have a role in helping a State achieve performance targets. The FHWA and FTA have deleted section 450.218(o) from the final rule. The FHWA and FTA agree that funding sources other than Federal funds may have a role in helping a State achieve performance targets. However, FHWA and FTA believe that it would be unnecessarily duplicative to restate this in the final rule. Section 450.218(p) The WA State DOT commented that section 450.218(p) should be modified to include the phrase ‘‘or phase of the project’’ at the end of this paragraph and state that the STIP shall include a project, or an identified phase of a project, only if full funding can reasonably be anticipated to be available or the project or phase of the project within the time period contemplated for completion of the project. The FHWA and FTA disagree with this comment. The FHWA and FTA believe that in the language in 23 U.S.C. 135(g)(5)(E), Congress intended that the STIP would be fiscally constrained and that projects in the STIP would be fiscally constrained. As a result, FHWA and FTA used the language from 23 U.S.C. E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations 135(g)(5)(E) in this paragraph. This has been a long-standing interpretation. By making the change that the commenter requested, it would change the meaning of the paragraph by allowing States to include project phases in the STIP without demonstrating funding availability for the entire project. The result would be such projects and the STIP itself would not be fiscally constrained. As such, FHWA and FTA are not making changes to the final rule. mstockstill on DSK3G9T082PROD with RULES3 Section 450.218(r) Section 450.218(r) requires that the STIP include, to the maximum extent practicable, a discussion of the anticipated effect of the STIP toward achieving the performance targets identified by the State in the long-range statewide transportation plan or other State performance-based plans linking investment priorities to those performance targets. It further states that this discussion should be consistent with the strategies to achieve targets presented in the long-range statewide transportation plan and other performance management plans such has the highway and transit asset management plans, the SHSP, the public transportation agency safety plan, the CMAQ performance plan, and the State freight plan (if one exists). Several commenters (AASHTO, ID DOT, MT DOT, ND DOT, NY DOT, SD DOT, and WY DOT) objected to the language and suggested instead that this paragraph should track the statutory language. The FHWA and FTA agree, in part, with this comment and eliminated the list of examples of other performance management plans that was proposed for inclusion in section 450.218(r) because these examples are already listed in section 450.206(c)(4). The FHWA and FTA feel that the provisions in section 450.206(c)(4) are sufficient to ensure the integration of elements of other federally required performancebased plans and processes and so do not need to reiterate. The FHWA and FTA retained the phrase ‘‘or other State performance-based plan(s)’’ in this paragraph because, as noted in 23 CFR 450.216(f)(1), a State is not required to include performance targets in the longrange statewide transportation plan. For those States that do not include performance targets in the long-range statewide transportation plan, this provision would make it clear that States are still required to utilize other State performance-based plans for those targets. Section 450.218(r) in the NPRM became section 450.218(q) in the final rule with the changes noted above. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 The MN DOT commented that the STIP should not be the identified document for reporting, and that the reporting requirements of section 450.218(r) are too prescriptive. The MN DOT further commented that it would like flexibility in how and where to report. In response to this comment, FHWA and FTA believe that the intent of Congress in 23 U.S.C. 135(g)(4) is that the STIP will include, to the maximum extent practicable, a discussion of the anticipated effect of the STIP toward achieving the performance targets established in the long-range statewide transportation plan, linking investment priorities to those performance targets. The FHWA and FTA have reflected that intent in section 450.218(r) of the NPRM, which became 450.218(q) in the final rule. As previously discussed, the language in the NPRM at section 450.218(r), which required the State to link this discussion in the STIP to the other State performance-based plans and processes, was removed from the final rule. Several commenters (AASHTO, CT DOT, FL DOT, GA DOT, ID DOT, MT DOT, NC DOT, ND DOT, NYS DOT, SD DOT, TriMet, WI DOT, and WY DOT) commented on section 450.218(r) in the NPRM that States should not be required to include information on individual projects and should not be required to link individual projects with specific performance measures as part of the discussion on the anticipated effect of the STIP toward achieving the performance targets in the long-range statewide transportation plan or other State performance based plan(s). See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.218(r) in the NPRM and section 450.218(q) in the final rule include requirements for States to include a discussion in the STIP of the anticipated effect of the STIP (as a whole) toward achieving the federally required performance targets identified by the State in the long-range statewide transportation plan or other state performance-based plans, linking investment priorities (at a program level) to those performance targets. At least one commenter suggested that it is unlikely that the projects within a 4-year program will actually result in a target being met. Another commenter suggested requiring the State, not the MPO, to be responsible for establishing and tracking performance in the MPO TIPs. The FHWA and FTA respond that these comments are outside the scope of the final rule and are more appropriate PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 34101 for the other performance management rules. The AASHTO, ID DOT, MT DOT, ND DOT, SD DOT, and WY DOT commented on proposed section 450.218(r) that the performance reporting should only be limited to federally required performance measures. The FHWA and FTA agree with this comment but do not believe revisions to the regulatory text are necessary. The AASHTO, CT DOT, IA DOT, MD DOT, NC DOT, VT DOT, and WI DOT commented on section 450.218(r) that States should have discretion regarding the discussion of the anticipated effect of the STIP toward achieving the performance targets. That this may include references to such documents as performance reports that are more user friendly. The FHWA and FTA agree that States and MPOs should be provided some flexibility in how they craft the discussion in the STIP on the anticipated effect of the STIP toward achieving the performance targets, and that States referencing other reports as part of this discussion would be acceptable. The IA DOT commented that the phrase ‘‘to the maximum extent practicable’’ in section 450.218(r) should be clarified with regard to the level of analysis required to demonstrate that projects in the STIP will help meet performance targets. Based on these comments, FHWA and FTA will consider developing guidance after this final rule and the other performance management final rules are published to provide assistance to the States and MPOs on how this requirement might be met and to what extent they should demonstrate that the projects (program) in the STIP and MPO TIPs will help meet performance targets. Similar comments were submitted on section 450.326(d). Two States (MN DOT and NJ DOT) commented on section 450.218(r) that the requirements for States to discuss in the STIP the anticipated effect of the STIP toward achieving performance targets goes too far and is overly prescriptive, even with the use of the phrase ‘‘to the maximum extent practicable.’’ The MN DOT further stated that it annually publishes a standalone transportation performance report. The response to this comment is that FHWA and FTA believe that the intent of Congress in 23 U.S.C. 135(g)(4) is that the STIP include, to the maximum extent practicable, a discussion of the anticipated effect of the STIP toward achieving the performance targets established in the long-range statewide transportation plan (or other State E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34102 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations performance-based plans), linking investment priorities to those performance targets. The U.S. Travel Association commented that linking investment to performance measures is imperative to developing efficient transportation networks that provide mobility choices throughout the Nation. In response to this comment, FHWA and FTA note that section 450.218(r) in the NPRM, which became section 450.218(q) in the final rule, expressly states the STIP shall include, to the maximum extent practicable, a discussion of the anticipated effect of the STIP toward achievement of performance targets, linking investment priorities to those priorities. Several regional planning organizations (Addison County RPC, Boone County Resource Management, Braxo Valley Council of Government, Buckeye Hills-Hocking Valley RDD, East Texas Chief Elected Officials RPO, Meramec RPC, Mid-Region Rural TPO and New Mexico RTPOs, NADO, Northern Maine Development Commission, Region Five Development Commission, Region Nine Development Commission, South Alabama RPC and RPO, Southeast Alabama RPO, Two Rivers-Ottauquechee Regional Commission, West Arkansas Planning and Development District, and West Central Indiana EDD) and one citizen (Crystal Hitchings) commented that in situations where a State has not designated and established RTPOs that would develop a regional TIP, the State should refer to the regional priorities identified in other regional transportation plans when selecting priorities for the STIP (e.g., regional economic development plans). In response to this comment, in situations where a State has not designated and established an RTPO, the final rule requires the State to cooperate with nonmetropolitan local officials when developing the STIP. This cooperation might include discussion on regional priorities identified in other regional transportation plans (e.g., regional economic development plans). This cooperation does not mean that States have to refer to these other plans as part of the STIP. The FMATS commented on NPRM section 450.218(r) that it is essential for the States to develop performance targets in full coordination with the MPOs and the nonmetropolitan planning areas to ensure that performance targets are considered during the development of TIPs and STIPs and investment priorities are tied to targets. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 The FHWA and FTA agree that State and MPO coordination is a key part of target setting by the States and the MPOs. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. It is also important that MPOs and operators of public transportation coordinate in metropolitan areas and that States coordinate with rural operators of public transportation as part of target setting. The Miami-Dade MPO stated that it is important not only for States to coordinate the STIP with MPOs, but also important that the STIP be consistent with metropolitan plans, especially in TMAs. In response to this comment, FHWA and FTA reiterate that the STIP and the TIP must be consistent with the long-range statewide transportation plan (section 450.218(k)) and the MTP (section 450.326(i)), respectively, and that the STIP must incorporate the TIP without alteration (section 450.218(b)). The MA DOT commented that it supports transparency within the context of the STIP to provide a more useful public document. The FHWA and FTA agree with this comment. The STIP is a key document for identifying the States program of federally funded projects, and through the public involvement process, it provides transparency on the States planned expenditure of Federal funds on projects. The NRDC commented that they disapprove of the differences between the sections covering STIPs and those covering TIPs, particularly the use of the terms ‘‘may’’ and ‘‘shall.’’ The NRDC argues that the provisions in the final rule for the State STIP should mirror those for the MPO TIP. For example, in section 450.218(l), the STIP may include a financial plan, whereas in section 450.324(f)(11), the TIP shall include a financial plan. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.218(r) in the NPRM requires that the STIP shall include, to the maximum extent practicable, a discussion of its effect toward achieving the performance targets identified by the State in the long-range statewide transportation plan or other state performance-based plans. The NJ DOT commented that using the STIP as the vehicle for reporting is too prescriptive. The FHWA and FTA respond that they believe it was the intent of Congress in 23 U.S.C. 135(g)(4) that the STIP shall include, to the maximum extent practicable, a discussion of the PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 anticipated effect of the STIP toward achieving the performance targets established in the statewide transportation plan, linking investment priorities to those performance targets. Therefore, FHWA and FTA included this provision in the final rule at section 450.218(q). The NJ DOT also stated that the STIP and the final rule should not require States to include performance information on specific projects or link individual projects to specific performance measures. The FHWA and FTA respond that this comment is outside the scope of the final rule and will depend on the specific performance measures identified in the other FHWA and FTA rules or guidance. The NJ DOT further stated that large portions of the NHS are supported by non-Federal funding sources, such as independent toll authorities, and that projects funded by non-Federal sources may appear in the STIP for information purposes. The commenter further stated that the final rule should acknowledge that funding sources other than Federal funds may have a role in meeting performance targets. The FHWA and FTA agree that funding sources other than Federal funds may be used on the NHS. However, the FHWA and FTA do not feel that it is necessary to mention this specifically in the final rule because section 450.218(g) already states that the STIP is only required to include projects proposed for funding under 23 U.S.C. and 49 U.S.C. Chapter 53. Section 450.220 Self-Certification, Federal Findings, and Federal Approvals Seven advocacy groups (Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Partnership for Working Families, Policy Link, The Leadership Conference on Civil and Human Rights, and United Spinal Association) provided comments on this section. They provided comments about the relationship of the transportation planning process to traditionally underserved populations, including EJ and Title VI of the Civil Rights Act of 1964. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.222 Project Selection From the STIP Three commenters (AASHTO, NC DOT, and WA State DOT) submitted comments on this section. The AASHTO requested that the phrase ‘‘with responsibility for transportation’’ be removed from the phrase E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations ‘‘nonmetropolitan local officials with responsibility for transportation’’ in section 450.222(c) because it is redundant with the definition of the term ‘‘local officials’’ that is provided in section 450.104. The FHWA and FTA response to this comment is that the proposed definition for local officials was removed from the final rule (see discussion under 450.104 in the section by section). However, the final rule retains the long-standing definition for nonmetropolitan local officials. The phrase ‘‘with responsibility for transportation’’ means elected and appointed officials of general purpose local government who have responsibility (decisionmaking authority) for transportation either through ownership, operation, maintenance, implementation, or other means. The NC DOT requested clarification on the definition of a ‘‘nonmetropolitan local official with responsibility for transportation’’ in paragraph (c). The FHWA and FTA response is that section 450.104 contains a definition for nonmetropolitan local official. In section 450.104, a nonmetropolitan local official with responsibility for transportation means elected and appointed officials of general purpose local government in a nonmetropolitan area with responsibility for transportation. The WA State DOT sought clarification on how FHWA or FTA could approve a project or know of the funding for operating assistance if the project is not programmed in the STIP. The commenter recommended clarifying these situations in section 450.222(a). In response, projects are funded through grant requests that are submitted to FTA by eligible recipients for authorization and requests to authorize projects and obligate funds submitted to FHWA by the States. Section 450.222(a) refers to sections 450.218(g) and 450.220(d), which describe specific situations where projects do not have to be in the STIP. Section 450.220(d) is a long-standing regulatory provision that allows FHWA and FTA to approve operating assistance for specific projects or programs without including a project or program in the STIP. The FHWA and FTA also note that, as described in section 450.218(g), there are also other categories of projects that do not have to be included in the STIP. Based on these comments, FHWA and FTA made no changes to the final rule. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Section 450.224 Applicability of NEPA to Statewide Transportation Plans and Programs The AASHTO, Boone County Resource Management, Brazo Valley COG, Buckeye Hills-Hocking Valley RDD, Crystal Hitchings, East Texas Chief Elected Officials RPO, Meramec RPC, Mid-Region Rural TPO and New Mexico RTPOs, NADO, North Carolina Association of RPOs, North Central Pennsylvania RPDC, Northern Maine Development Commission, Northern Shenandoah Valley Regional Commission, Region XII COG, South Alabama RPC and RPO, Southern Windsor County RPC, Two RiversOttauquechee Regional Commission, West Central Arkansas Planning and Development District, and West Central Indiana EDD submitted comments on this section to the docket. The commenters suggested that RTPOs should be mentioned as contributors to the NEPA review process since they may be involved in establishing the purpose and need for subarea corridor plans. In response to this comment, FHWA and FTA feel that RTPOs could contribute to the purpose and need for the NEPA review process given their role in conducting regional planning. However, it is up to the State and the RTPO in their cooperative planning process to determine the role of the RTPO in contributing to purpose and need in NEPA review. Many of the planning products developed thorough an RTPO’s regional planning process, such as the regional transportation plan and corridor studies, are potentially helpful toward contributing to the purpose and need for a project. This supports stronger linkages between the planning and environmental processes and provides an opportunity to streamline the project development process. The FHWA and FTA do not believe that a change is warranted in the final rule because the establishment of RTPOs and their use to contribute to purpose and need for a project is optional. The FHWA and FTA will consider opportunities for including discussion on potential roles for RTPOs in contributing to PEL in future guidance, case studies, and peer exchanges. The AASHTO commented that the new authority for PEL described in section 1310 of the MAP–21 makes the project development process more complex and cumbersome. The AASHTO recommends that existing authorities for PEL under appendix A to the final rule be retained. The FHWA and FTA response to this comment is PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 34103 that this section 450.224 is not affected by section 1310 of MAP–21. The language in sections 450.212 and 450.318 is affected by the new authorities for PEL that resulted from section 1310 of the MAP–21. See discussion on those sections in the preamble and in the final rule for details. The FHWA and FTA have made no changes to the final rule based on this comment. Section 450.226 Phase-In of New Requirements Thirty-six commenters (AASHTO, AK DOT, Albany MPO, ASHTD, California Association for Coordinated Transportation, CO DOT, CT DOT, DC DOT, DRCOG, ID DOT, MT DOT, ND DOT, SD DOT, GA DOT, H–G AC, IA DOT, MD DOT, ME DOT, MI DOT, MN DOT, MO DOT, NADO, NARC, NC DOT, NJ DOT, NYMTA, NYS DOT, OR DOT, PSRC, RI DOT, San Luis Obispo MPO, SEMCOG, TX DOT, WA State DOT, WI DOT, and WY DOT) submitted comments on this section. Twenty-five of the comment letters were from States, six were from MPOs, three were from associations, one was from an operator of public transportation, and one was from an advocacy group. Many of the commenters (AASHTO, AK DOT, Albany MPO, ASHTD, CO DOT, CT DOT, GA DOT, H–GAC, IA DOT, MD DOT, MI DOT, MN DOT, MO DOT, NARC, NC DOT, NYS DOT, PSRC, RI DOT, San Luis Obispo COG, SEMCOG, and TX DOT) suggested that all of the new performance management requirements final rules should have a single effective date and that the planning requirements should be coordinated with the implementation of the other performance management requirements. The commenters argued that a single effective date would prevent States and MPOs from creating conflicts in establishing and incorporating targets with differing time periods and performance measures during the planning process. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The NYS DOT commented that sections 450.226(a)–(f) should use the phrase ‘‘substantially meets the requirements in this part’’ instead of ‘‘meets the requirements in this part.’’ In response, FHWA and FTA believe that this clarification would not change the meaning of this section and is not necessary. No changes are made as a result of this comment. One commenter suggested that FHWA and FTA consider changing the language in the final rule such that only STIP updates would be required to E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34104 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations comply with the performance management requirements after the 2year transition period instead of requiring compliance with STIP amendments and STIP updates. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. One commenter stated that the phasein schedule is unclear. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The AASHTO, ID DOT, MT DOT, ND DOT, NJ DOT, NYS DOT, SD DOT, and WY DOT commented that in sections 450.226(e) and 450.226(f), the phrase ‘‘meets the performance based planning requirements’’ as part of the larger phrase ‘‘FHWA/FTA will only approve an updated or amended STIP that is based on a statewide transportation planning process that meets the performance based planning requirements in this part and in such a rule,’’ is unnecessary and overreaching and should be deleted. See section 450.340 for a detailed discussion and response on this comment. The IA DOT asked whether the 2-year compliance date also applies to amendments to long-range statewide transportation plans. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The WI DOT questioned how States would demonstrate coordination with nonmetropolitan local officials in the development of the long-range statewide transportation plan and the STIP. In response to this comment, FHWA and FTA note that, as described in section 450.210(b), States must have a documented process for cooperating with nonmetropolitan local officials, that is separate and distinct from the public involvement process, and provides opportunity for nonmetropolitan local official participation in the development of the long-range statewide transportation plan and the STIP. The State is required to review and solicit comments from nonmetropolitan local officials regarding the effectiveness of the cooperative process at least once every 5 years (section 450.210(b)(1)). The FHWA and FTA further note that the final rule defines cooperation in section 450.104. Cooperation means that the State and the nonmetropolitan local officials involved in carrying out the transportation planning and programming processes work together to achieve a common goal or objective. The FHWA and FTA believe that evidence that the State is following its documented process for cooperating VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 with nonmetropolitan local officials helps to demonstrate that the requirement for cooperation with nonmetropolitan local officials in the development of the long-range statewide transportation plan and the STIP is being met. Subpart C—Metropolitan Transportation Planning and Programming Section 450.300 Purpose One comment was received on this section. While the RI DOT agrees with, and supports the performance-based approach to the planning process described in the NPRM, they are concerned with balancing the need for a performance-based approach and public participation. In response, FHWA and FTA acknowledge that public participation is an important part of the statewide and nonmetropolitan and the metropolitan transportation planning processes, and that the use of a performance-based approach to the planning process by the States and the MPOs does add to the complexity of the public participation process. The FHWA and FTA note that States and MPOs should engage the public in the performance-based planning process and consider their input when making decisions about system performance, including when setting performance targets for performance measures and making investment decisions for the statewide long-range transportation plan, MTP, STIP, and TIP. Sections 1202 and 1201 of the FAST Act, codified at 23 U.S.C. 135(a)(2) and 23 U.S.C. 134(a)(1) respectively, added intermodal facilities that support intercity transportation, including intercity bus facilities and commuter van pool providers to the purpose of the statewide and metropolitan multimodal transportation planning processes. The Final Rule at sections 450.200 and 450.300 is amended to reflect this change. Section 1201 and 1202 of the FAST Act amends 23 U.S.C. 134(a)(1) and adds ‘‘takes into consideration resiliency needs’’ to the purpose of the of the metropolitan transportation planning process and the statewide and nonmetropolitan transportation planning process (23 U.S.C. 135(a)(2)). The Final Rule at sections 450.300(a) and 450.200 are amended to add this change. Section 450.302 Applicability Section 450.302 discusses the applicability of subpart C to organizations and entities responsible for the transportation planning and PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 programming processes in MPAs. Subpart C are the provisions for metropolitan transportation planning and programming. No comments were received on this section. The FHWA and FTA did not propose any changes in the NPRM or make any changes in the final rule to this section. Section 450.304 Definitions Section 450.304 describes the terms defined and used in this subpart C. No comments were received on this section. The FHWA and FTA did not propose any changes in the NPRM or make any changes in the final rule. Section 450.306 Scope of the Metropolitan Transportation Planning Comments were received from Albany MPO, AMPO, APTA, ARTBA, Board of the French Broad River MPO, California Association for Coordinated Transportation, CALTRANS, Capital Area MPO, Charlotte MPO, Community Labor United, CT DOT, DC DOT, DVRPC, Enterprise Community Partners, Florida MPO Advisory Council, FMATS, Front Range Economic Strategy Center, Houston MPO, MAG, MARC, Maui MPO, MD DOT, ME DOT, Memphis MPO, MET Council, MTC, MN DOT, NACTO, NARC, National Association of Social Workers, National Housing Conference, National Trust for Historic Preservation, NCTCOG/RTC, NJ DOT, NJPTA, Northeast Ohio MPO, New York Association of MPOs, NRDC, NYMTA, NYMTC, NYS DOT, OK DOT, PA DOT, Partnership for Active Transportation, Partnership for Working Families, Policy Link, Portland Metro, Public Advocates, River to Sea TPO, SACOG, San Luis Obispo MPO, SANDAG, Santa Cruz County MPO, SCAG, Sierra Club, SJCOG, South Florida MPO, TriMet, TX DOT, United Spinal Association, VA DOT, WA State DOT, Westchester County Department of Public Works, WFRC, Wilmington MPO, and WMATA. Twenty-three comments were received from MPOs, 15 from advocacy organizations, 13 from States, 6 from transportation associations, 4 from operators of public transportation, and 1 from a local government. Sections 1202 and 1201 of the FAST Act amended 23 U.S.C. 134(h)(1) and 23 U.S.C. 135(d)(1) respectively to add two new planning factors to the scope of the statewide and nonmetropolitan and the metropolitan transportation planning processes: Improve resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and enhance travel and tourism. The Final Rule at sections 450.206(a)(9) and (10) E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations and 450.306(b)(9) and (10) are amended to reflect these new planning factors. The San Luis Obispo COG and SCCRTC commented about issues with State and MPO coordination on performance based planning and programming. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.306(d)(2) discusses the establishment of performance targets by the MPO. The Memphis Urban Area MPO commented that the final rule should clarify to what extent parties should proceed with harmonized targets. The FHWA and FTA response to this comment is that section 450.306(d)(2)(i) requires States and MPOs to coordinate target setting to ensure consistency, to the maximum extent practicable, for the measures described in 23 U.S.C. 150(c). Section 450.306(d)(2)(iii) requires MPOs to coordinate with public transportation operators, to the maximum extent practicable, when selecting performance targets that address performance measures described in 49 U.S.C. 5326(c) and 5329(d). No changes were made based on these comments. Section 450.306(d)(4) in the NPRM would require an MPO to integrate into the metropolitan transportation planning process, directly or by reference, the goals, objectives, performance measures, and targets described in other State transportation plans and transportation processes, and any plans developed under 49 U.S.C. chapter 53 by operators of public transportation. Examples of such plans include the State asset management plan for the NHS, described under 23 U.S.C. 119(e); the transit asset management plan, described under 49 U.S.C. 5326; the SHSP, described under 23 U.S.C. 148; and the Public Transportation Agency Safety Plan, described under 49 U.S.C. 5329(d). The Albany MPO, AMPO, DVRPC, NARC, NYMTC, New York State Association of MPOs, PA DOT, and San Luis Obispo COG commented that this requirement appears to be in conflict with sections 450.306(d)(2)(i), (ii), and (iii), which state that each MPO shall establish performance targets and the selection of targets shall be coordinated with the State and, to the maximum extent practicable, operators of public transportation. The FHWA and FTA response to this comment is that these provisions do not conflict. They reflect the need for close coordination among States, MPOs, and operators of public transportation during the target setting process to ensure that the targets are coordinated and consistent to the VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 maximum extent practicable. This would suggest that coordination during the development of other performancebased plans (such as asset management plans, safety plans, freight plans, and congestion plans) is also desirable because these plans could affect the performance targets and the investments that support those targets set by the State, MPO, and the operator of public transportation. Both of these provisions are based on statute. The AMPO commented on section 450.306(d)(4) that it is concerned about what the integration of other performance-based plans and processes into the metropolitan transportation planning process might mean. The FHWA and FTA response to this comment is that integration of other performance-based plans and processes into the metropolitan transportation planning process means, as described in section 450.306(d)(4), that an MPO integrates the goals, objectives, performance measures, and targets described in State transportation plans and processes, and any plans developed by operators of public transportation under 49 U.S.C. chapter 53, into the metropolitan transportation planning process. The FHWA and FTA believe that this integration means that as MPOs develop the MTP and TIP as part of their metropolitan transportation planning process, they should be considering the goals, objectives, performance measures, and targets that are described in these other performance-based plans and processes. Examples of these performance-based plans and processes are included in section 450.306(d)(4). The Metropolitan Council MPO commented on section 450.306(d)(4) concerning the required integration of elements of other State performance based plans and processes. It suggested that the MPO should determine which plans should be integrated into its performance-based planning process. In response, FHWA and FTA note that the statutory requirement, at a minimum, is for the integration of elements (goals, objectives, performance measures, and targets) of other federally required performance-based plans and processes developed by the State or recipients of assistance under chapter 53. An MPO would only integrate those elements that are appropriate to the MPA of the MPO. In developing this provision, FHWA and FTA closely followed the statutory provisions. The FHWA and FTA have listed examples of these federally required plans in this section. One operator of public transportation (WMATA) commented that the agency level plans that are required to be PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 34105 integrated into the planning process under this paragraph have limited direct relevance to the MAP–21’s overarching mandate for effective performance management of transportation systems. The WMATA further noted that these plans are relevant at the agency level, but not at the larger transportation system level. The FHWA and FTA respond that the requirement to integrate elements of other performance-based plans into the transportation planning process is limited to elements of the federally required State transportation plans and processes and any plans developed by operators of public transportation under 49 U.S.C. chapter 53. A list of examples is provided in paragraph (d)(4) of this section. The AMPO, APTA, Metropolitan Council MPO, and WFRC commented that the use of performance measures and targets should be programmatic and not project specific. The FHWA and FTA response to this comment is that it is outside of the scope of the final rule and more appropriate to other performance management rules. This final rule does not establish performance measures or the target setting process. Several commenters (AMPO, APTA, Board of the French Broad River MPO, and CALTRANS) commented that, under the performance management regulations, existing data collection and reporting mechanisms should be utilized whenever possible and standards should not be created outside of the existing structure. The commenters suggested that the creation of new data collection and reporting requirements would be expensive, unclear, potentially duplicative, and ultimately counterproductive. The FHWA and FTA response to this comment is that it is outside of the scope of the final rule. The WA State DOT commented on section 450.306(d)(4) that it is unclear how an MPO can integrate an unconstrained plan into a constrained MTP. The FHWA and FTA response to this comment is that section 450.306(d)(4) does not require an MPO to integrate an unconstrained plan into a constrained MTP. Section 450.306(d)(4) requires an MPO to integrate the goals, objectives, performance measures, and targets described in other State transportation plans and processes, either directly or by reference, into the metropolitan transportation planning process. The NRDC noted that it was in favor of the integration of other plans into the transportation planning process as described in sections 450.206(c)(4) and E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34106 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations 450.306(d)(4). The commenter further stated that it would like to include other plans such as FEMA Hazard Management Plans and existing regional plans. See discussion and the FHWA and FTAs response to this comment in section 450.206(c)(4). The APTA commented that transit agencies operate with different management structures and operating environments and across varying modes and sizes. The APTA suggested that performance measures that do not take into account these divergent operating situations would risk failure. The APTA further stated that individual agencies must be allowed to set their own targets and that they must be simple, understandable, and high-level to be meaningful to the process. The FHWA and FTA response to this comment is that it is outside the scope of the final rule. The California Association for Coordinated Transportation stated that it agrees with the new provisions for performance-based planning and programming. However, it is concerned that one size does not fit all as there are great differences between urban and rural communities. The CALTRANS commented that the final rule should require States to consider the impact of VMT during the development of long-range statewide transportation plans and MTPs. The CALTRANS also commented that FHWA and FTA should coordinate the development of any transit-related performance measures to ensure the identified metrics are comparable to performance measures for other transportation modes. The FHWA and FTA response is that these comments are outside the scope of the final rule. The CALTRANS stated that FHWA and FTA should specifically require that Tribes be consulted when performance targets are being set due to the lack of data on many Tribal lands. The FHWA and FTA response to this comment is that under section 450.208(a)(5), in carrying out the statewide transportation planning process, States are required to consider the needs of Tribal governments that have jurisdiction over land within the boundaries of the State. Similarly, section 450.316(c) requires MPOs to appropriately involve Tribal governments in the development of the MTP and TIP when the MPA includes Tribal lands. Because MPOs are required to describe targets in the MTP (section 450.324(f)(3)) and report on target achievement in the TIP (section 450.326(d)), FHWA and FTA believe the involvement of Tribal governments should include involvement during the VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 development of federally required performance targets for the national performance measures. The AMPO and APTA commented that the final rule should recognize the unique timing, durations, and requirements of long-range statewide transportation plans, MTPs, and individual system transit asset management plans and that FHWA and FTA should not attempt to alter those unique processes to somehow make them fit neatly together. The FHWA and FTA agree with this comment. Consistent with MAP–21, FHWA and FTA developed phase-in provisions in the final rule (sections 470.226 and 450.340). The final rule takes into consideration the established planning update cycles for the States and the MPOs. The phase-in does not require a State or MPO to deviate from its established planning update cycle to implement changes made by this section. States and MPO shall reflect the changes made to their transportation plan and to the STIP or TIP not later than 2 years after the date of issuance of the final performance management rules for the performance management requirements. The APTA commented that performance measures should remain unchanged over a number of years. The APTA commented that these performance targets are unlikely to change significantly from year-to-year so updating should not be necessary on an annual basis. The FHWA and FTA response to this comment is that it is outside of the scope of the final rule. The ARTBA commented that prior to MAP–21, the mission of the Federal highway program was clouded, and that since MAP–21, the establishment of national performance measures by FHWA and FTA will form the basis for Federal highway investment. In response to this comment, FHWA and FTA reiterate that sections 450.206(c)(1) and 450.306(d)(1) in the final rule provide that the statewide and the metropolitan transportation planning processes shall provide for the establishment and use of a performancebased approach to transportation decisionmaking to support the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301. The commenter provided specific examples of suggested performance measures for consideration by FHWA and FTA. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The Capital Area MPO suggested that the 180-day deadline required for MPOs to select performance targets after the PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 State and/or operator of public transportation sets performance targets should be changed to 2 years. The DC DOT commented that the 180-day period should be changed to 1 year to account for the fact that there are multiple States (DC DOT, MD DOT, and VA DOT) in the Washington, DC area, each of which may set different performance targets, and the MPO would set performance targets after the States. The FHWA and FTA do not agree with these comments. The FHWA and FTA believe the final rule should reflect the 180-day statutory requirement and reiterate the importance of interagency coordination during the target setting process to achieve consistency of the State and MPO targets to the maximum extent practicable. In order to achieve the 1-year time frame for setting of State targets and the 180-day requirement for MPOs to set targets after the State sets targets, State and MPO coordination on target setting is critical. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The FMATS commented that after the initial round of State, MPO, and public operator of transportation target setting, it would be helpful for a deadline to be set by the States regarding target updates so that the MPOs and operators of public transportation have a predictable and scheduled deadline for their subsequent target updates. The FHWA and FTA response to this comment is that it is outside the scope of the final rule. The final rule and MAP–21 require coordination between the State, MPOs, and operators of public transportation when setting performance targets for the federally required performance measures. The TX DOT commented that there should be one effective date for all of the performance management rules to enable the States and MPOs to work together and ensure the necessary data and analysis techniques are available. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The MAG commented that the NPRM does not clearly define the term ‘‘system.’’ It would be important to define the term if the measures are to be consistent across the different components of the system. The FHWA and FTA response to this comment is that the definition of the term ‘‘system’’ will vary depending on the type of program or performance measure being discussed. For the purposes of this final rule, the definition should remain flexible in order to preserve the E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations necessary distinctions in subsequent performance measure rules. Several commenters (H–GAC, MARC, Maricopa Association of Governments, and NCTCOG/RTC) emphasized the importance of coordination among all metropolitan planning partners, including the States, MPOs, and operators of public transportation for successful implementation of performance management. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. At least two commenters (CT DOT and NJ DOT) suggested that FHWA and FTA provide sufficient flexibility such that a State and MPO might establish targets through the coordination process that are either the same or complementary. The FHWA and FTA response to this comment is that State and MPO targets are required to be consistent to the maximum extent practicable (section 450.206(c)(2)). The NARC commented that the State or local agencies often have a decisive role in determining which projects are constructed. The NARC commented that this leaves MPOs in a difficult position in that they will be held accountable for progressing toward their stated targets, but are in a limited position to decide which projects actually get built. The FHWA and FTA respond that this comment highlights the need for coordination between the States, MPOs, and operators of public transportation during the target setting process. This coordination should include the process of deciding investment priorities for the MPA that contribute toward achievement of the MPOs performance targets. It also highlights the importance of the MPO MTP and the TIP. When setting targets, MPOs should consider selecting targets in coordination with the State that are reasonable and achievable. The investment priorities that are identified by the MPO in cooperation with its member agencies in the metropolitan transportation plan and the TIP should support the achievement of the MPO’s performance targets. As such, the cooperatively developed and adopted MTP and TIP that are prepared by the MPO become key documents for discussing the goals, objectives, performance measures, and targets for a metropolitan region. The projects and strategies in the cooperatively developed MTP and TIP should support achievement of the performance targets. The MPOs and State DOTs are accountable for meeting the performance-based planning and programming process requirements discussed in this final rule and 23 U.S.C. 134 and 135. The FHWA and VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 FTA will periodically review MPO and State DOT accountability for the implementation of the performancebased planning and programming process requirements of this final rule as part of the TMA MPO planning certification reviews required under section 450.336 and the planning finding required under section 450.220. Under these same sections, MPOs and State DOTs are required to self-certify compliance with these performancebased planning and programming requirements as part of the broader requirements for transportation planning under 23 U.S.C. 134 and 135. Through the self-certifications, the certification reviews, and the planning finding, MPOs and States will be held accountable by FHWA and FTA for the implementation of the performance based planning process requirements of this rule. Many comments were received on the topic of interagency coordination in relation to the new requirements for performance-based planning and programming in section 450.306(d). The DC DOT and the Northern New Jersey Transportation Planning Authority commented on the difficulty of coordinating target setting in situations where there may be multiple States, MPOs, and/or multiple operators of public transportation involved, such as in bi-State or tri-State metropolitan regions. The MTC, SACOG, SANDAG, SCAG, and SJCOG, commented on the difficulty of coordination on target setting when there are a large number of agencies. The MTC, SACOG, SANDAG, SCAG, and SJCOG further stated that funding constraints may make it difficult to move in the desired direction for many performance targets, and that they are concerned about the implementation costs and resources required of smaller MPOs. The WA State DOT commented that there is a need for more explicit explanations on the relationships and roles between the States and MPOs. The commenter further stated that it is unclear if MPOs are required to match the targets set by the State. The FHWA and FTA respond that States and MPOs are each required to set performance targets for the federally required performance measures. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The Florida MPO Advisory Council and River to Sea TPO expressed their concern about the potential of a direct linkage between project funding and performance-based planning and programming. Specifically, they expressed concern that States that have PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 34107 not performed well in certain areas would receive larger shares of discretionary funding to help them address those areas where they underperform. The FHWA and FTA response to this comment is that neither the NPRM nor the final rule proposed to tie funding allocations for discretionary funding programs to performance. The TriMet commented that individual transit agencies operate with widely differing conditions and that they must be allowed to set their own targets. The FHWA and FTA response to this comment is that transit agency target setting for specific transit related performance measures will be addressed in separate NPRMs and is outside the scope of the final rule. The MD DOT commented that the implementation of the final rule, including the performance-based planning and programming provisions, should not undermine the shared goal of reducing project delivery time frames. The FHWA and FTA response to this comment is that the scope of the transportation planning process, as described in 23 U.S.C. 135(d)(2)(B), is supposed to support the national goals described in 23 U.S.C. 150(b) and 49 U.S.C. 5302(c). Reduced project delivery delay is one of the seven national goal areas identified in 23 U.S.C. 150(b). This is reflected in the final rule at section 450.206(c)(1). The Memphis Urban Area MPO and the NRDC commented that they would like to see the standardization of data collection at the State or Federal level as part of the implementation of performance management. The FHWA and FTA response to this comment is that it is outside the scope of the final rule. The MN DOT asked if there is a distinction made between MPOs for regions with populations below 200,000 and MPOs for TMAs for coordination efforts on target setting. The FHWA and FTA response to this comment is that all States and all MPOs, regardless of size, are required to set performance targets and coordinate with each other or operators of public transportation when setting performance targets. Several commenters (NARC, San Luis Obispo COG, SSC RTC, and WFRC) suggested that locally developed goals, performance measures, and targets should also be considered in the metropolitan planning process. The FHWA and FTA agree with this comment. The States and MPOs are encouraged to include locally developed goals, performance measures, and targets as part of the metropolitan transportation planning process. E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34108 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations The River to Sea TPO commented that it is concerned that performance-based planning will limit their decisionmaking and ability to take into account other factors such as economic development and redevelopment. In response, FHWA and FTA encourage, but do not require, States and MPOs to include goals, objectives, and performance measures in their performance-based transportation planning processes that are locally determined; provided that, at a minimum, they include the performance measures that are federally required. The Westchester County Department of Public Works and Transportation commented that MPOs should have the flexibility to establish their own regionspecific targets, and each transportation operator should be afforded the flexibility to address requirements to best suit their unique characteristics. The commenter further observed that the size and scale of a particular transportation system could lend itself to significantly different targets than what another entity might use for a different sized system. The FHWA and FTA response to this comment is that States, MPOs, and operators of public transportation have the flexibility to set their own targets to suit their unique needs for those targets outside of the federally required performance measures. For the federally required measures, this comment is outside the scope of the final rule. The Wilmington MPO commented that it has concerns about additional burdens being placed on MPO member jurisdictions in terms of data collection for the State Asset Management Plan for the NHS and other aspects of performance-based planning. The FHWA and FTA note that this comment is outside the scope of the final rule. The Sierra Club commented that it supports the new focus on performancebased planning, but is concerned that it should be implemented in an environmentally sound manner and not used for retribution purposes. They commenter further commented that performance targets and outcomes should be appropriate for the communities served and consistent with the ridership goals of operators of public transportation. The commenter requested an explanation of how FHWA and FTA expect to perform their oversight roles to ensure that the results are truly equitable and will achieve national and State goals. In response to this comment, FHWA and FTA agree that a performance management based approach to planning should be conducted in an environmentally sound manner. The VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 FHWA and FTA also agree that in a performance-based approach to planning, it is important to support all modes of transportation, including public transportation. With respect to the question on how FHWA and FTA expect to perform oversight for performance-based planning, FHWA and FTA will include consideration of performance-based planning along with the other federally required planning process elements from 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304 when conducting planning certification reviews of TMAs and when preparing a State planning finding. The Maui DOT commented that FHWA and FTA may have dramatically underestimated the costs of implementing the final rule for smaller MPOs. The commenter further stated that smaller MPOs often have limited resources and dual roles. The FHWA and FTA note that MPOs do have the option of adopting and supporting State performance targets in lieu of setting their own targets. This might be particularly helpful to the smaller MPOs with limited staff, budgets, and resources. See RIA section for more discussion on this topic. Several commenters (Community Labor United, Enterprise Community Partners, Front Range Economic Strategy Center, National Association of Social Workers, Partnership for Working Families, PolicyLink, Public Advocates, and United Spinal Association) suggested that the use of performance measures and prioritization of projects should encourage the States and MPOs to consider the transportation needs of traditionally underserved populations and the expansion of economic opportunity for low-income and minority communities and through improved transportation. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The National Trust for Historic Preservation commented that this section should also include historic resources as one of the planning factors to show that that historic preservation may be related to the planning process. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The San Luis Obispo COG is concerned that the NPRM imposes different requirements on the State and MPOs. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The VA DOT commented that the final rule should be led by criteria FHWA and FTA will be developing in PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 response to 23 U.S.C. 135(h). Section 23 U.S.C. 135(h) requires FHWA and FTA to establish criteria to evaluate the effectiveness of the performance-based planning processes of the States and to make a report to Congress evaluating the overall effectiveness of performancebased planning and programming as a tool for guiding transportation investments. The FHWA and FTA response to this comment is that this rule discusses the requirements for States and MPOs to implement a performance-based planning and programming process. The FHWA and FTA criteria for evaluating the effectiveness of the performance-based planning and programming processes of the States and MPOs will be based on the requirements for performance-based planning and programming contained in this final rule. The Partnership for Active Transportation and Sierra Club stated that health should be integrated into the transportation planning process. In response to this comment, FHWA and FTA conduct research and develop resources on the integration of health into transportation. These resources are available at: https://www.fhwa.dot.gov/ planning/health_in_transportation/. Based on this comment, no changes have been made to the final rule. See section VI.(B) (recurring comment themes) for more discussion on this topic. Several commenters suggested specific performance measures that they felt should be considered by FHWA and FTA. See section VI(B) (recurring issues) for more discussion on this topic. Section 450.308 Funding for Transportation Planning and Unified Planning Work Programs The Board of the French Broad River MPO, DC DOT, DRCOG, Maui MPO, DRCOG, National Trust for Historic Preservation, NC DOT, North Front Range MPO, NYMTC, Puget Sound Council of Governments (PSCOG), TX DOT, WFRC, and Wilmington MPO provided comments on this section. The Board of the French Broad River MPO, DC DOT, NC DOT, NYMTC, PSRC, WFRC, and Wilmington Urban Area MPO noted that the MPO transition to performance-based planning will be a challenge for MPOs and will require additional staff time without an allocation of additional funding. One commenter correctly noted that in addition to PL funds, metropolitan transportation planning activities undertaken by MPOs, including performance-based planning may be funded through other Federal-aid fund categories such as 23 U.S.C. 104(d), 49 E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 U.S.C. 5305(d), and 49 U.S.C. 5307. As described in section 450.308 of the final rule, the States may provide funds received under 23 U.S.C. 104(b)(2) and 23 U.S.C. 505 to MPOs for metropolitan transportation planning. The Maui DOT commented that they feel that the FHWA and FTA cost estimates for the implementation of the additional requirements related to performance management may be low. See the RIA section for further discussion on this issue. No changes were made to the final rule based on these comments. Section 450.310 Metropolitan Planning Organization Designation and Redesignation The FHWA and FTA received comments from 68 entities (AASHTO, AMPO, APTA, ARC, BART, California Association for Coordinated Transportation, CALTRANS, Charlotte MPO, Community Labor United, CT DOT, DVRPC, Enterprise Community Partners, Florida MPO Advisory Council, FMATS, Front Range Economic Strategy Center, H–GAC, Lincoln MPO, MA DOT, Macatawa Coordinating Council, MARC, Maricopa AOG, MD DOT, MI DOT, Miami-Dade MPO, MO DOT, MTC, NACTO, NARC, National Association of Social Workers, National Housing Conference, National League of Cities, NC DOT, NCTCOG/ RTC, New York Association of MPOs, NJ DOT, NJTPA, North Front Range MPO, Northwestern Indiana Regional Planning Commission (NIRPC), NRDC, NYMTC, NYS DOT, PA DOT, Partnership for Working Families, Policy Link, Public Advocates, Richmond Area MPO, River to Sea TPO, SACOG, Safe Routes to School Partnership, SANDAG, San Joaquin Transit, San Luis Obispo MPO, Santa Barbara Metropolitan Transit District, SCAG, Sierra Club, SJCOG, South Florida Regional Transit Authority, Southeast Wisconsin MPO, TN DOT, TriMet, TX DOT, US Travel Association, WA State DOT, Westchester County Department of Public Works and Transportation, WFRC, WI DOT, and WMATA) on the proposed revisions to section 450.310. Section 450.310, consistent with MAP–21 and FAST requirements, would require the structure of an MPO serving a TMA to include representation by operators of public transportation, in addition to the officials identified in the existing regulations; and that each MPO serving a TMA satisfy the structure requirements no later than October 1, 2014. Commenters provided their perspectives and recommendations on a range of issues related to the structure VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 of MPO policy boards that serve an area designated as a TMA. Nine commenters (Community Labor United and the Public Transit-Public Good Coalition, Enterprise Community Partners, Front Range Economic Strategy Center, National Association of Social Workers, NRDC, Partnership for Working Families, Policy Link, Public Advocates, Safe Routes to School Partnership, and the National Housing Conference) recommended that the final rule require that MPO boards be more representative of the economic and racial make-up of the communities they serve to help ensure that transportation planning is sensitive to the needs of all residents. The FHWA and FTA note that the final rule will continue to require MPOs, through their public participation processes, to seek out and consider the needs of those traditionally underserved by existing transportation systems, such as low-income and minority communities, who may face challenges accessing employment and other services. The final rule requires MPOs to periodically review the effectiveness of the procedures and strategies contained in the participation plan to ensure a full and open participation process. Through certification reviews of MPOs in areas that serve TMAs, FHWA and FTA work to confirm that these MPOs are meeting their public participation requirements. However, 23 U.S.C. 134(d)(1)(A) and 49 U.S.C. 5303(d)(1)(A) require that MPOs be designated either by agreement between the Governor and units of general purpose local government that together represent at least 75 percent of the affected population (including the largest incorporated city) or by procedures in applicable State or local laws. These sections also provide that each MPO policy board that serves an area designated as a TMA shall consist of local elected officials; officials of public agencies that administer or operate major modes of transportation in the metropolitan area, including representation by operators of public transportation; and appropriate State officials. The FHWA and FTA are fully committed to an inclusive transportation planning process. However, the statute assigns the authority to the Governor and local government officials to decide which local elected officials, officials of public agencies, and appropriate State officials will serve on an MPO policy board; or to procedures established by applicable State or local law. The U.S. Travel Association requested that each MPO or regional planning board include a representative of the travel industry, noting that it has a deep PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 34109 impact on the Nation’s economy and workforce. The data collected by the travel industry provides unique insights into transportation trends and infrastructure needs across the country. In response, FHWA and FTA reiterate that the statute 26 requires that each MPO that serves an area designated as a TMA must consist of local elected officials; officials of public agencies that administer or operate major modes of transportation in the metropolitan area, including representation by operators of public transportation; and appropriate State officials, except those MPOs that are exempt under 23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3). The FHWA and FTA note that the final rule does include a new planning factor in sections 450.206(a)(10) and 450.306(b)(10) on enhancing travel and tourism for States and MPOs to consider and implement as part of their transportation planning processes as provided for in FAST sections 1201 and 1202 and in 23 U.S.C. 134(h)(1)(J) and 135(d)(1)(J). It also includes a new requirement in section 450.316(b) that MPOs should consult with agencies and officials responsible for tourism when developing metropolitan transportation plans as described in FAST Act section 1201 and in 23 U.S.C. 134(g)(3)(A). The WA State DOT recommended revising section 450.310(c) to specify that only urbanized areas with more than 200,000 individuals can be a TMA rather than allowing a Governor and MPO to request that an urbanized area be designated a TMA. In response to this comment, FHWA and FTA note that the statute at 23 U.S.C. 134(k)(1)(B) and 49 U.S.C. 5304(k)(1)(B) provides that the Secretary shall designate any additional area at the request of the Governor and the MPO designated for the area. Consequently, no changes are made to this section based on this comment. The proposed regulatory language in section 450.310(d) that ‘‘each metropolitan planning organization that serves an area designated as a transportation management area shall consist of local elected officials, officials of public agencies that administer or operate major modes of transportation in the metropolitan area, including representation by providers of public transportation, and appropriate State officials’’ replicates the statutory language of 23 U.S.C. 134(d) and 49 U.S.C. 5303(d). The MAP–21 further provides that an MPO may be restructured to meet the requirement of including representation by operators of public transportation without 26 23 U.S.C. 134(d)(1)(a) and 49 U.S.C. 5303(d)(1)(a). E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34110 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations undertaking a re-designation (an action that would require an agreement between the Governor and units of general purpose government that together represent at least 75 percent of the existing planning area population including the largest incorporated city). Consequently, the final rule provides that MPOs that serve a TMA must include a formally designated representative of operators of public transportation. The FHWA and FTA also proposed in the preamble to the NPRM that representatives of operators of public transportation would have equal decisionmaking rights and authorities as other officials who are on the policy board of an MPO that serves a TMA. The BART, CALTRANS, Charlotte RTPO, Enterprise Community Partners, MA DOT, MO DOT, National Housing Conference, NCTCOG/RTC, NRDC, NYMTA, River to the Sea TPO, Santa Barbara Transit, SFRTA, Sierra Club, SJRTD, and WFRC, expressed support for the proposal that a representative of operators of public transportation is both included on MPO policy boards and given equal decisionmaking rights. The MA DOT expressed support for the requirement for public transportation membership on the policy board of an MPO and the equality of decisionmaking rights by transportation officials or their representative staff. The MA DOT also noted that each of the 10 MPOs and 3 RTPOs in the Commonwealth of Massachusetts have active representation and participation of their respective public transportation operators on the boards by regional transit administrators and/or transit staff. The FHWA and FTA believe that the long-standing requirement to include public transportation representation on each MPO serving a TMA, made explicit in MAP–21 and FAST, supports the new performance requirements for operators of public transportation, including: The coordination of MPO targets with operators of public transportation, the coordination of public transportation operator targets with MPOs, and the integration of public transportation performance plans into the metropolitan transportation planning process. Given these new performance responsibilities, the FHWA and FTA believe that operators of public transportation need to participate in the MPO’s decisionmaking process. The FHWA and FTA do not concur with the comment by the DVRPC that there are a number of effective ways for transit agencies to be fully represented in the metropolitan planning process apart from voting membership on the MPO VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 board. Consequently, the final rule provides that, similar to section 1201 of the FAST Act which amends 23 U.S.C. 134(d)(3)(C), the representative of public transportation has responsibilities, actions, duties, voting rights, and any other authority commensurate with other officials described in section 450.310(d)(1). The MA DOT sought more clarity covering what constitutes a transit provider since there are sometimes a wide range of service providers in a single MPO, including RTAs, TMAs, and health care transit operations. In response, FHWA and FTA note that the final rule defines the term ‘‘public transportation operator’’ in section 450.104. According to this definition, a public transportation operator is the public entity or government approved authority that participates in the continuing, cooperative, and comprehensive transportation planning process in accordance with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, and is a recipient of Federal funds under title 49 U.S.C. Chapter 53 for transportation by a conveyance that provides regular and continuing general or special transportation to the public, but does not include sightseeing, school bus, charter, certain types of shuttle service, intercity bus transportation, or intercity passenger rail transportation provided by the National Railroad Passenger Corporation (also known as ‘‘Amtrak’’). The FHWA and FTA stated in the preamble to the NPRM that it is up to the MPO, in cooperation with operators of public transportation, to determine how this representation will be structured and established. The APTA expressed appreciation for this broad latitude afforded to MPOs as it accounts for varying governance models. However, it requested that FHWA and FTA categorically state that an MPO member based on elective or appointed office that coincidentally sits on a transit board does not fulfill the MAP–21 requirement for representation by operators of public transportation. This position is supported by all other operators of public transportation who submitted comments to the docket (BART, FMATS, NYMTA, Orange County Transit Authority, Santa Barbara Transit Authority, SJCOG, TriMet, and WMATA, and the Sierra Club). The BART noted that ‘‘While many city and county representatives currently serving on MPOs are sincere in their efforts to incorporate the needs and perspectives of public transit, it is only through direct participation of the providers themselves that MPOs can best understand the complex and PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 technical needs of public transit providers.’’ The WMATA noted that it could not easily imagine how the transportation modes in general, and public transportation in particular, can be assured of exercising the equal decisionmaking rights and authorities essential to realizing the MAP–21 intentions if MPO board members are allowed to ‘‘wear two hats.’’ However, the statute was changed in the FAST Act to explicitly allow that the representative of an operator of public transportation may simultaneously represent a local municipality. Therefore the final rule in section 450.310(d)(3)(ii) reflects section 1201 of the FAST Act (23 U.S.C. 134(d)(3)(B)) which allows, subject to the bylaws or enabling statute of the MPO, a representative of an operator of public transportation may also serve as a representative of a local municipality. Thirty-five of the respondents (AAHSTO, ARC, CT DOT, DVRPC, Florida MPO Advisory Council, H–GAC, MA DOT, Macatawa Area Coordinating Council, MARC, MI DOT, Miami-Dade MPO, MTC, NACTO, NARC, National League of Cities, NC DOT, NIRPC, NJTPA, NYMTA, NYMTC, NYS DOT, PA DOT, River to Sea TPO, SACOG, San Luis Obispo COG, SANDAG, Southeastern Wisconsin RPC, Westchester County Department of Public Works and Transportation, and WI DOT) requested that the final rule ensure MPOs have maximum flexibility in determining how they are constituted and operate. Fifteen MPOs (ARC, DVRPC, Florida MPO Advisory Council, H–GAC, Macatawa Area Coordinating Council, MARC, MTC, NIRPC, NJTPA, NYMTC, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, and Southeastern Wisconsin RPC), three MPO associations (AMPO, Florida MPO Advisory Council, and NARC), and one State (WI DOT) requested that the final rule provide each MPO with the maximum latitude to determine how operators of public transportation are represented in the decisionmaking process, including allowing a single official to serve in multiple capacities. Five California MPOs (MTC, SACOG, SANDAG, SCAG, and SJCOG) expressed the view that the language included in the MAP 21 provides broad flexibility as to how MPOs may comply with the requirement to include representation by operators of public transportation. They argued that Congress did not prescribe a specific method for representation; require that all or any particular kinds of transit operators serving a region be represented; or require that a seat be dedicated solely to E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations a board member who is appointed by a transit agency. The government of Westchester County, NY noted its long history of elected officials effectively representing both the county’s residents and its transit system on the MPO. It strongly believes that, via a single vote, an elected official can serve in multiple capacities on an MPO. The NYMTC argued against any requirement that would give an MPO member more than one non-independent vote and affirmed that State and local elected officials have effectively represented multiple modes of transportation since the MPO was established. The ARC argued that it would not be appropriate for a staff member of a transit agency governed by a city or county to serve on a policy body with the chief elected official from that same jurisdiction. The ARC argued that it would place the transit representative in a subordinate position, potentially compromising the expertise and knowledge that the operator could bring to policy discussions and votes. The River to Sea TPO argued that requiring transit agency staff to sit as a voting member on an MPO board along with elected officials who are members of their own governing board would potentially create a conflict with Florida’s Sunshine Law and make it difficult for staff to brief their policy board on transit matters. The FHWA and FTA concur that a single official can serve in multiple capacities, which would be particularly appropriate in instances where the local elected official represents a local government that operates a transit system. Therefore, FHWA and FTA revised the final rule to provide that, consistent with the FAST Act’s amendment to 23 U.S.C. 134(d)(3)(B), subject to the bylaws or enabling statute of the MPO, a representative of a provider of public transportation may also serve as a representative of a local municipality (section 450.310(d)(3)(ii)). The final rule in section 450.310(d)(3)(i) reflects the revision to 23 U.S.C. 134(d)(3)(A) made by FAST, which provides that the designation or selection of officials or representatives under section 450.310(d)(1) shall be determined by the MPO according to the bylaws or enabling statute of the organization. Eight MPOs (Miami-Dade MPO, MTC, NIRPC, River to Sea TPO, SACOG, SANDAG, SCAG, and SJCOG) asserted that their governing structures were codified by State law, which would preclude them from changing the structure of their policy board to include voting representation by operators of public transportation. As noted by one industry association, VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 NARC, as many as one-quarter of all MPOs that serve a TMA are created by, and the constitution of their policy board is outlined in, State statute. Thus, to change the structure of the MPO board would require a change in the State enabling legislation, which may result in unintended consequences. In response, FHWA and FTA agree that a change in State enabling legislation may be necessary to bring an MPO into compliance with the structuring requirements of 23 U.S.C. 134(d)(2), 49 U.S.C. 5303(d)(2), and the final rule. This would be the case if State law would prevent an MPO from satisfying the statutory structure requirement. An exception is available for those MPOs that qualify under the ‘‘grandfathering’’ provision in 23 U.S.C. 134(d)(4). Section 134(d)(4) of 23 U.S.C. provides that 23 U.S.C. 134(d) should not be construed to interfere with the authority, under any State law in effect on December 18, 1991, of a public agency with multimodal transportation responsibilities (A) to develop the plans and TIPs for adoption by a metropolitan planning organization; and (B) to develop long-range capital plans, coordinate transit services and projects, and carry out other activities pursuant to State law. The grandfathering provision was first enacted in 1991 and remains relatively unchanged.27 Such MPOs may continue to operate without complying with the statutory structure provisions in 23 U.S.C. 134(d)(2), 49 U.S.C. 5303(d)(2), and the final rule. Alternatively, a grandfathered MPO may restructure to meet the statutory requirements without losing its protection under the grandfathering provision if it can do so without a change in State law with respect to the structure or organization of the MPO. The statute (23 U.S.C. 134(d)(6)(2)) and section 450.310(d) of the final rule, explicitly authorize MPOs to restructure to meet the requirements of 23 U.S.C. 134(d)(2) and 49 U.S.C. 5303(d)(2) without undertaking a redesignation. However, FHWA and FTA emphasize that an exempt MPO is still required to provide the officials described in 23 U.S.C. 134(d)(2) an opportunity to actively participate in the decision making processes of the MPO in accordance with 23 U.S.C. 134(i)(6)(A), (j)(1)(B), and (j)(4). The NARC sought clarification of FHWA and FTA application of the grandfathering exemption. The NARC suggested that the statutory language means that ‘‘any MPO operating under a State statute on [December 18, 1991] 27 Section 1024, Public Law 102–240, December 18, 1991. codified at 23 U.S.C. 134(b)(3). PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 34111 is exempt from the requirements of 450.310(d)(1),’’ and stated that it has found no evidence of the FHWA and FTA interpretation as presented. The NARC requested that FHWA and FTA clarify that any MPO operating under a State statute on that date is exempt from the requirements of section 450.310(d)(1). Five California MPOs (MTC, SACOG, SANDAG, SCAG, and SJCOG) also took issue with the interpretation that a change to the board structure since December 18, 1991, disqualifies an MPO from falling under the grandfather provision. In response, FHWA and FTA note the grandfathering provision in 23 U.S.C. 134(d)(4) and 49 U.S.C. 5303(d)(4), was first enacted in 1991 and remains relatively unchanged. As explained in the June 2, 2014 Policy Guidance on Metropolitan Planning Organization (MPO) Representation, 79 FR 31214. The FHWA and FTA have determined that the grandfathering provision does still apply to any MPO that: (1) Operates pursuant to a State law that was in effect on or before December 18, 1991; (2) such State law has not been amended after December 18, 1991, with regard to the structure or organization of the MPO; and (3) the MPO has not been designated or re-designated after December 18, 1991. 79 FR 31216. The agencies reiterated the interpretation in the NPRM for this final rule. Subsequently, Congress enacted the FAST Act, which included amendments to 23 U.S.C. 134 and 49 U.S.C. 5303. The FAST Act clarified requirements relating to an MPO’s designation or selection of officials or representatives to an MPO in light of the FHWA/FTA Policy Guidance and NPRM, but did not amend the grandfathering provision. Congress’ enactment of these statutory changes while leaving the grandfathering provision intact is a strong indication that Congress concurs with the FHWA and FTA interpretation of that provision. The provision is included in the final rule in section 450.310(d)(4). Because of changes to the structuring requirements of MAP–21 and FAST, FHWA and FTA are including the grandfathering provision in the Final Rule to clarify when the provision may be exercised by an MPO. The NARC’s interpretation of the exemption or grandfather provision would apply incorrectly the December 18, 1991, cutoff date to the MPOs rather than their authorizing statutes, and would grandfather any MPO operating under a State statute as of that date, regardless of subsequent changes in the State law. To the contrary, the grandfather provision’s conditional clause ‘‘under any State law in effect on E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34112 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations December 18, 1991’’ applies the cutoff date to the State law under which an MPO operates, not the MPO itself. A State law or amendment that was enacted after the cutoff date was not in effect on the cutoff date. At the request of APTA, FHWA and FTA clarified that the structure of MPOs that serve TMAs and were designated or re-designated as an MPO after December 18, 1991, must include representation of local elected officials, officials of agencies that administer or operate major modes or systems of transportation, and appropriate State officials. As of October 2014, the structure of these MPOs must include representation by operators of public transportation. The APTA also requested that FTA and FHWA require that any claim for this exemption must be publicly documented in order for it to be effective. The APTA stated that some MPOs claim the exemption with no public justification or discussion. The FHWA and FTA agree that an MPO that serves a TMA must provide documentation to support a claim for an exemption to the MPO structure required by statute and regulation. The FHWA and FTA require this documentation to be provided as part of its certification review process. Multiple respondents from Florida (Florida MPO Advisory Council, MiamiDade MPO, and SFRTA) highlighted the recent revisions to Florida State Law 339.175, which allows the structure of MPOs in the State to be in alignment with the expectations of the MAP–21, to include ‘‘representation by providers of public transportation.’’ The Florida statute expands the maximum voting membership from 19 to 25 apportioned members. It continues to require that voting members of an MPO be elected officials of general-purpose local government and that an MPO may include, as part of its apportioned voting members, an official of an agency that operates or administers a major mode of transportation. Interestingly, the Florida statute addresses the ‘‘two hats’’ issues raised by many of the respondents to this docket. It provides that in metropolitan areas in which transportation authorities or agencies have been created by law, the authority may be provided voting membership on the MPO. In instances where the transportation operator is represented by elected officials from generalpurpose local governments, the MPO must establish a process to express and convey the collective interests of the public transportation agencies that provide transit service in their MPA. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 The MA DOT noted that there are several RTAs within the Commonwealth of Massachusetts that service multiple TMAs in varying capacities. The MA DOT requested that the final rule clearly define the MPO involvement of the public transportation representative in regions that the RTA provides services but is not exclusively located. In response, FHWA and FTA believe that the representative of operators of public transportation needs to express and convey the collective interests of the public transportation agencies that provide transit service in their MPA. As required by MAP–21, the final rule states that each MPO that serves a TMA must include representation by operators of public transportation no later than October 1, 2014. The NARC sought direction as to what MPOs that serve TMAs must do as of October 1, 2014. Another industry association, AMPO, requested that the final rule recognizes that many MPOs are subject to State laws governing the MPO policy board membership and that compliance may require amendments to State law. The AMPO requested that the final rule include more time for these MPOs to work with their States to adjust policy boards if necessary. In response, FHWA and FTA expect that, at a minimum, each MPO that serves a TMA identify a voting member of their board who represents the collective interests of operators of public transportation in the MPA by October 1, 2014. The final rule supersedes the FHWA and FTA June 2, 2014, Policy Guidance on MPO Representation. Two commenters (Enterprise Community Partners and Sierra Club) requested that the final rule requires all operators of public transportation in an MPA to be on the board of MPOs that serve TMAs. The MAP–21 provides for representation by operators of public transportation. The FHWA and FTA believe that it is the MPO’s decision whether to include all operators of public transportation on its decisionmaking body. In addition to the representation by providers of public transportation provision, FHWA and FTA sought comments on whether any of the following questions should be addressed in the regulation and, if so, how. Should the regulations clarify who appropriate officials may be? Of the thirteen commenters (ARC, CT DOT, Florida MPO Council, H–GAC, Miami-Dade MPO, MTC, NJTPA, NYMTC, NYS DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, TX DOT, and WI DOT) who submitted a PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 response to the question, two States (MA DOT and WI DOT) requested that the final rule clarifies who an appropriate official may be. The WI DOT noted that MPOs throughout Wisconsin have approached this issue of including representation by operators of public transportation on their MPO boards differently. Some designate officials that are already on the board and have transit interests as the transit representation while others are working to add additional membership to their MPOs. The WI DOT recommends allowing MPOs the discretion to make these representation decisions at a local level. The FHWA and FTA concur. The final rule provides MPOs with the flexibility to determine how best to include representation by operators of public transportation. The FHWA and FTA will not specify who appropriate officials may be in the final rule. Can staff members or other alternates be substituted for the ‘officials’ identified in paragraph (d)(1)? Twenty-eight commenters (AASHTO, AMPO, ARC, CT DOT, Florida MPO Advisory Council, FMATS, H–GAC, MD DOT, MI DOT, Miami-Dade MPO, MTC, NARC, NCTCOG/RTC, NJ DOT, NJTPA, NYMTA, NYMTC, NYS DOT, Richmond Area MPO, River to Sea TPO, SANDAG, SCAG, SJCOG, TN DOT, TX DOT, WI DOT, and WMATA) responded to this question. Three MPOs (ARC, FMATS, and NCTCOG/RTC) expressed concern that a staff member or other alternate be substituted for officials on the MPO decisionmaking body. The ARC stated that it does not believe it is appropriate for staff members of transit agencies to have equal standing on policy committees as elected and appointed officials, asserting that clear lines of demarcation in the decisionmaking hierarchy need to be maintained through committees comprised exclusively of technical staff or elected/appointed policy officials. The NCTCOG/RTC believes that staff members or other non-elected alternates should not be substituted for local elected officials in section 450.310(d)(1) due to the policy making function of the MPO policy board. The NCTCOG and RTC requested that FHWA and FTA carefully consider this question in the context of accountability to the public. They noted that the strength of MPO policy making is a result of its policy board being made up of primarily local elected officials who are directly accountable to the voting public. However, in situations where modal operators are not governed by an elected body, MPO policy boards should have E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations discretion to determine the appropriate level of representative for these entities. Another MPO, FMATS, noted that as this requirement only applies to TMAs, staff members or alternates should not be allowed to participate because larger MPOs would have sufficient representation from other entities’ officials and so additional representation of public transportation would not skew the policy board. The Florida MPO Advisory Council believes that alternates for officials identified in subparagraph (d)(l) should be of the same general background (i.e., a local elected official should act as the alternate for another local elected official) and that any clarifying language should state as such. Multiple respondents noted that it is their current practice to allow staff members or other alternates to substitute for the officials identified in subparagraph (d)(1). Per an MOU among NYMTC member agencies, all members, including elected officials, may be represented at council meetings by designated substitutes, provided such designation has been made in writing to the Secretary of NYMTC. The NYMTC recommends that FHWA and FTA continue to allow these designees to be substituted for officials identified in subparagraph (d)(1) for purposes of voting on council business. The NYMTA requested that the term ‘‘local official’’ refer to elected or appointed officials of general purpose local government with responsibility for transportation, and that this include the elected or appointed official’s formally designated proxy. The TN DOT noted that all MPOs in Tennessee allow for policy board members to appoint a proxy. Not being able to do this would limit the ability of the MPOs to conduct official business requiring a quorum of members. Under the NJTPA by-laws, each elected official may appoint one designated alternate. This requires notification in writing to the NJTPA. The NJTPA notes that this arrangement allows for greater flexibility and participation by the board’s member jurisdictions and agencies and should continue to be allowed. Three respondents (MA DOT, Richmond Area MPO, and WI DOT) sought clarification as to who can serve as an official on the MPO. The MA DOT sought clarity regarding public transportation representative designation and latitude to designate another person who may perform duties on their behalf. The WMATA stated that an official in any of the three statutory MPO board categories should be able to expressly delegate routine duties to VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 qualified staff but suggests that future guidance strongly encourage such officials to commit themselves to attentive and direct engagement with policy-making efforts by their MPO boards. The majority of respondents to this question (AASHTO, AMPO, CT DOT, H–GAC, MD DOT, MI DOT, Miami-Dade MPO, MTC, NARC, NYS DOT, SACOG, SANDAG, SCAG, TX DOT, WI DOT, and WMATA) support the position that the decision whether staff members or other alternates may be substituted for the officials identified in subparagraph (d)(1) should remain local and be resolved at the State or local level. In response, FHWA and FTA concur with the majority of respondents that the decision as to whether staff members or other alternates may be substituted for the ‘officials’ identified in subparagraph (d)(1) should remain local and be resolved at the State or local level. Should the regulations provide more specificity on how each of the officials identified in paragraph (d)(1) should be represented on the MPO? While the WI DOT indicated that the final rule should provide more specificity on how each of the officials identified in subparagraph (d)(1) (i.e., local elected officials, officials who operate major modes of transportation, and appropriate State officials), the other 21 respondents to this question (AASHTO, ARC, CT DOT, Florida MPO Advisory Council, FMATS, MD DOT, MI DOT, Miami-Dade MPO, MTC, NARC, NJTPA, NYMTC, NYS DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, TX DOT, and Westchester County, NY) urged FHWA and FTA to provide MPOs with maximum flexibility as each MPO’s circumstances is unique. The FHWA and FTA concur with these respondents and will not include more specificity on how each of the officials identified in subparagraph (d)(1) should be represented on the MPO in the final rule. However, at the request of WI DOT and CT DOT, FHWA and FTA will provide additional guidance on this topic, separate from this final rule. Can an official in paragraph (d)(1) serve in multiple capacities on the MPO board (e.g., can a local elected official or State official serve as a representative of a major mode of transportation)? Thirty-one respondents (AASHTO, APTA, ARC, CT DOT, Florida MPO Advisory Council, FMATS, H–GAC, MARC, MD DOT, MI DOT, Miami-Dade MPO, NARC, NCTCOG/RTC, NJ DOT, PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 34113 North Front Range MPO, NYMTA, NYMTC, River to Sea TPO, SACOG, SANDAG, SCAG, Sierra Club, SJCOG, TN DOT, TriMet, TX DOT, Westchester County, NY, WI DOT, and WMATA) provided their perspectives on the question of whether an official in subparagraph (d)(1) can serve in multiple capacities on the MPO board. Six respondents (APTA, FMATS, NYMTA, Sierra Club, TriMet, and WMATA) argued definitively that public officials should not be asked, or allowed, to have ‘‘divided loyalties.’’ The Sierra Club claimed that such an attempt could well rise to a legal situation of incompatibility of offices. The TriMet, whose general manager has long held a voting seat on the Portland MPO from which it effectively advocates for the interests of operators of public transportation in the region, shared this perspective. It noted that assigning a local official, tasked with representing their jurisdiction on the MPO, to advocate a different, perhaps contrary, position as the representative of public transportation operators creates an inherent conflict of interest. The FMATS also cited the potential for conflict of interest, noting that a city or county mayor may appoint the transportation official which could inhibit the transportation official in making decisions that are truly in the best interest of the operators of public transportation. The North Front Range MPO stated that if the transit agency is a stand-alone entity and not part of a local government that is already a voting member of the MPO, a separate membership with equal voting rights makes sense. The APTA, NYMTA, Sierra Club, TriMet, and WMATA requested that FTA and FHWA categorically state that an MPO member based on elective or appointed office that coincidentally sits on a transit board does not fulfill the MAP–21 requirement. The APTA, NYMTA, Sierra Club, TriMet, and WMATA all supported the position that the transit representative must be a member of the MPO solely as the transit representative. Eight other respondents (MTC, NYMTC, NYS DOT, SACOG, SANDAG, SCAG, SJCOG, and Westchester County, NY) noted that in their experience, board members who are local elected officials and also sit on independent or municipal transit agencies frequently bring the priorities and perspectives of the transit agency on which they serve to the MPO decisionmaking table. The TN DOT noted that some MPOs have a requirement that only elected officials serve on the policy board, the thinking being that only elected officials, accountable to the voting public, should E:\FR\FM\27MYR3.SGM 27MYR3 34114 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 set policy. It proposed that in such instances, the MPO may insist that the requirement to have representation for operators of public transportation be fulfilled by an elected official who serves on the governing board of an operator of public transportation, or who oversees one that operates as part of city or county government. The FHWA and FTA note again that any MPO that serves a TMA that was designated/re-designated after December 18, 1991, shall consist of: Local elected officials; officials of public agencies that administer or operate major modes of transportation in the metropolitan area including representation by operators of public transportation; and appropriate State officials. Both the Florida MPO Advisory Council and the River to Sea TPO cited the Florida statute 28 which specifies that, where representatives of operators of public transportation are to be represented by elected officials from general-purpose local government, the MPO shall establish a process by which the collective interests of such agencies are expressed and conveyed. The majority of respondents (AASHTO, ARC, CT DOT, H–GAC, MARC, MD DOT, MI DOT, Miami-Dade MPO, MTC, NARC, NCTCOG/RTC, NJ DOT, NYS DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, TN DOT, TX DOT, and Westchester County NY) urged FHWA and FTA to provide maximum flexibility to MPOs in designating representation by operators of public transportation. The FHWA and FTA will provide maximum flexibility to MPOs in designating representation by operators of public transportation. The final rule provides that the official(s) who represents the operators of public transportation in the MPA may be an official of an agency that operates or administers public transportation in the metropolitan area or an elected official from general-purpose local governments. the final rule. In response, the final rule does not include more information about MPO structure and governance. However, per the request of CT DOT and WI DOT, FHWA and FTA will provide additional guidance on this topic, separate from the final rule. Should the regulations include more information about MPO structure and governance? The twenty-four commenters (AASHTO, AMPO, ARC, CT DOT, FMATS, H–GAC, MD DOT, Miami-Dade MPO, MTC, NARC, NJ DOT, NJTPA, North Front Range MPO, NYMTA, NYMTC, NYS DOT, SACOG, SANDAG, SCAG, SJCOG, TX DOT, Westchester County, NY, and WI DOT) who provided a response to this question universally requested that FHWA and FTA not include more information about MPO structure and governance in Section 450.314 Metropolitan Planning Agreements Section 450.314 discusses the requirement that the States, MPOs, and the operators of public transportation serving an MPA cooperatively establish a metropolitan planning agreement. These agreements determine the mutual responsibilities of the parties in carrying out the metropolitan transportation planning process. Forty-three commenters (AASHTO, Albany MPO, AMPO, APTA, ARC, Board of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC DOT, DRCOG, DVRPC, FL DOT, Florida MPO Advisory Council, 28 Florida Statute 339.175(3). VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Section 450.312 Metropolitan Planning Area Boundaries Section 450.312 discusses MPA boundaries. The WA State DOT provided comments on this section. The commenter was concerned that in situations where there are bi-State MPOs and/or where multiple MPOs straddle State boundaries, each MPO might have a different format for reporting on system performance. The WA State DOT was concerned that it will be difficult to coordinate system performance reporting responses and it will create problems for all involved. In response to this comment, FHWA and FTA note that section 450.312 strongly encourages the States, MPOs, and operators of public transportation to coordinate transportation planning for the entire multi-State area. Section 450.314(f) of the final rule provides that where the boundaries of the urbanized area or MPA extend across State lines, the States, appropriate MPOs, and operators of public transportation must coordinate transportation planning for the entire multi-State area and may enter into agreements or compacts to do so. See discussion in section 450.314, metropolitan planning agreements, for more specific discussion on State, MPO, and operator of public transportation coordination on performance-based planning. (See also section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses.) This would help to ensure consistency when there are multiple MPOs in a multi-State region. The FHWA and FTA have made no changes to the NPRM language for section 450.312 in the final rule. PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 FMATS, H–GAC, HI DOT, IA DOT, MAG, Metropolitan Transportation Council MPO, MARC, MT DOT, MTC, NACTO, NARC, NC DOT, New York State Association of MPOs, NJTPA, North Florida TPO, NYMTA, NYMTC, NYS DOT, OR DOT, PA DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, Transportation for America, TX DOT, and Wilmington MPO) provided comments on sections 450.314(a), (e), and (g). This section concerns the requirement proposed in the NPRM for including performance-based planning and programming and the collection of data for the State asset management plan as part of the metropolitan planning agreement. Twenty-one of the commenters on these sections were from MPOs, 13 from States, 7 from transportation associations, 1 from an operator of public transportation, and 1 from an advocacy organization. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. In the NPRM, FHWA and FTA proposed at section 450.314(b) that the States, MPOs, and the operators of public transportation should periodically review and update the metropolitan planning agreement, as appropriate, to reflect effective changes. Five commenters (AASHTO, FL DOT, MT DOT, NYS DOT, and TX DOT) provided comments on this provision. All five of the commenters stated that the provision was unnecessary and should be deleted. Two commenters (AASHTO and MT DOT) stated that agreements are generally already revised as necessary when changes are made to regulations and when dictated by other circumstances. They further commented that section 450.314(b) would create a new obligation to review agreements even when that review is unnecessary. The FL DOT commented that section 450.314(b) could be interpreted as a new requirement and that periodic review and updating should occur only as appropriate. The NYS DOT and TX DOT commented that section 450.314(b) could be interpreted to set a specific time frame or regular updates for review of the existing agreements, even when it is not needed. In response, FHWA and FTA included this provision in the NPRM to ensure that States, MPOs, and operators of public transportation are aware that agreements can become outdated and that they need to be periodically reviewed by the States, MPOs, and operators of public transportation to ensure that they are up to date. The FHWA and FTA did not intend for this provision to set a specific time frame for the review and updates to the E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 agreements and have specifically stated in section 450.314(b) that it should be done when it is appropriate to do so. The commenters have pointed out that for those metropolitan regions were the agreements are being kept up to date, this would typically not be an issue. However, FHWA and FTA note that for those regions where agreements have become outdated, this provision is an important reminder that they should be periodically reviewed and updated. The need for updating an agreement might occur for a number of reasons. Examples of reasons for updating the agreements might include: The passage of new national transportation legislation, issuance of new Federal regulations, and changes in the roles and responsibilities of the States, MPOs, and/or operators of public transportation in the metropolitan transportation planning process. The FHWA and FTA believe that it is important that in order to maintain a 3– C planning process for a metropolitan region, States, MPOs, and the operators of public transportation should periodically review and update the metropolitan planning agreement, as appropriate, to reflect effective changes in their responsibilities for conducting the planning process. For these reasons, the provision for periodically updating the metropolitan planning agreement in section 450.314(b), as proposed in the NPRM, is retained by FHWA and FTA in the final rule without alteration. Section 450.316 Interested Parties, Participation and Consultation Section 450.316 describes interested parties, participation, and consultation as part of the metropolitan transportation planning process. It requires an MPO to use a documented participation plan to provide individuals, affected public agencies, representatives of public transportation employees, freight shippers, providers of freight transportation services, private providers of transportation, representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, and other interested parties with reasonable opportunities to be involved in the metropolitan transportation planning process. Eight commenters (Nine to Five Association of Working Women, Denver COG and the RTD, Enterprise Community Partners, National Housing Conference, New York State Association of MPOs, The Leadership Conference on Civil and Human Rights, TX DOT, and United Spinal Association) submitted comments on this section. The Nine to VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Five Association of Working Women, Enterprise Community Partners, National Housing Conference, and the Leadership Conference on Civil and Human Rights expressed strong support for the requirement that States and MPOs develop participation plans that engage populations ‘‘traditionally underserved by existing transportation systems, such as low-income and minority households.’’ The United Spinal Association requested that FHWA and FTA ensure that the required necessary accommodations for traditionally underrepresented organizations and community members are provided. The FHWA and FTA note that an MPO’s public participation process, including efforts to seek out and consider the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services, is reviewed as part of the MPO certification process. The DRCOG and RTD sought clarification on the requirement that an MPO include, as part of the final MTP and TIP, a summary, analysis, and report on the disposition of significant written and oral comments it receives on the draft MTP and TIP. The FHWA and FTA clarify that the summary and disposition of these comments can be a separate document incorporated by reference or made available on the applicable Web site. The FHWA and FTA have made no changes to section 450.316 in the final rule. Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(6)(A) to add public ports to the list of entities that an MPO shall provide a reasonable opportunity to comment on the metropolitan transportation plan. This change is amended into the final rule at section 450.316(a). Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(6)(A) to provide a list of examples of private providers of transportation. This change is amended into the final rule at section 450.316(a). Section 1201 of the FAST Act amends 23 U.S.C. 134(g)(3)(A) to add officials responsible for tourism and natural disaster risk reduction to the list of agencies and officials that an MPO should consult with in developing metropolitan transportation plans and TIPs. This change is amended into the final rule at section 450.316(b). Section 450.318 Transportation Planning Studies and Project Development The comments and responses relevant to section 450.318 are discussed under PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 34115 section 450.212, and are incorporated by reference into this section. Section 450.320 Development of Programmatic Mitigation Plans Similar to section 450.214, section 450.320 describes the development of programmatic mitigation plans. The FHWA and FTA received comments from a total of 26 entities on this section (AASHTO, AMPO, ARTBA, CALTRANS, CT DOT, DRCOG, DVRPC, Enterprise Community Partners, H– GAC, MARC, MTC, NARC, National Mitigation Banking Association, New York State Association of MPOs, NJ DOT, North Front Range MPO, OR DOT, PA DOT, RTD, SACOG, SANDAG, SCAG, SCCRTC, SJCOG, and TX DOT). All commenters were generally supportive of the development and use of programmatic mitigation plans within the transportation planning process. The responses to the following comments are provided in section 450.214 General Comments • Seven organizations (CALTRANS, MTC, SACOG, SANDAG, SCAG, SCCRTC, and SJCOG) commented on the eligibility for Federal funding for the development of programmatic mitigation plans. • The ARTBA commented on the greater use of programmatic mitigation plans and recommended that FHWA and FTA quantify the benefits of using such plans in terms of time saved. In addition, the group also recommended a clearinghouse for mitigation plans used across the Nation to highlight best practices. • Enterprise Community Partners and NRDC commended FHWA and FTA for the provisions contained in sections 450.214 and 450.320, noting that early planning can reduce conflicts and delays during environmental reviews performed later in project development. The group specifically noted the preference for requiring the development of programmatic mitigation plans within the transportation planning process. • The NRDC also commented on the appropriate nature of consultation with the resource agencies, making a draft of the mitigation plan available for public review and comment, and addressing the comments in the final plan. Please see response in Section 450.214. • The National Mitigation Banking Association noted that many of the attributes of a programmatic mitigation plan specified in section 450.320 are already in place in mitigation and conservation banks across the country. The group also noted that it would be E:\FR\FM\27MYR3.SGM 27MYR3 34116 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations prudent public policy to make the acquisition of bank credits from approved mitigation banks a central component of a programmatic mitigation plan element. The group also suggested that the final rule incorporate a reference to existing banks and bank credits as the preferred alternative for offsetting transportation impacts. • The Mid-America Regional Council provided a general letter of support on the development and use of programmatic mitigation plans and suggested that the final rule should include language indicating that States shall coordinate with MPOs on the development and use of such plans. Section 450.320(a) • Six entities (AASHTO, CT DOT, H– GAC, NARC, OR DOT, and TXDOT) commented on the proposed language in section 450.320(a)(2)(ii), stating that the resources addressed in the final rule should not be limited to the examples given. • The CALTRANS and NJ DOT sought further clarification on the scope and scale of the programmatic mitigation plan. Specifically, NJ DOT inquired whether the plan should be restricted to one project (discussing an array of resources) or an array of transportation projects (covering one resource category for discussion). The CALTRANS commented on the appropriate scale of the programmatic mitigation plan and inquired whether MPOs may plan on a scale beyond its MPA boundaries. mstockstill on DSK3G9T082PROD with RULES3 Section 450.320(b) • Nine entities (AASHTO, AMPO, CT DOT, H–GAC, NARC, New York State Association of MPOs, OR DOT, SCCRTC, and TX DOT) commented on the proposed language in section 450.320(b) which they found to be more restrictive than the text of the statute. Specifically, the commenters suggested that paragraph (b) should preserve the flexibility provided in the statute, which allows for States and MPOs to develop programmatic mitigation plans within or outside the statewide and metropolitan planning processes. Section 450.320(d) • The CALTRANS expressed appreciation for the support for programmatic mitigation plans, but also concerns about acceptance of such plans by Federal and State regulatory agencies. The commenter specifically questioned whether rulemaking to govern the regulatory agencies toward the goal of reaching a higher level of commitment to programmatic mitigation planning activities might be possible. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 The responses to comments not previously raised or addressed in section 450.214 follow: General Comments The North Front Range MPO expressed general support for the development and use of programmatic mitigation plans, but noted that the development of such plans would require additional staff time for review. Such a delay in conducting the review would offset any benefits derived from the development of the plan. The organization also noted that the development of programmatic mitigation plans may be a duplicative effort, especially if a NEPA review is necessary or underway. The FHWA and FTA acknowledge that the development and review of programmatic mitigation plans would likely require additional staff time from resource agencies, States, and MPOs. But FHWA and FTA also note that a programmatic mitigation plan can be integrated with other resource plans including, but not limited to, watershed plans, ecosystem plans, species recovery plans, growth management plans, State wildlife plans, climate change action plans, and land use plans. Integrating the development of programmatic mitigation plans with other resource planning efforts streamlines the process and reduces points of duplication, thereby reducing the overall burden of staff time for review. Section 450.320(b) The DRCOG and RTD noted that the analysis of environmental impacts of a project or program under NEPA may result in identification of a different set of impacts and possible mitigation than what is stated in a programmatic mitigation plan. Therefore, the framework for development of such plans and future use within NEPA should be reviewed and approved by the CEQ. The FHWA and FTA acknowledge that in certain rare instances, a programmatic mitigation plan may not capture the best possible data for impact discussion and possible mitigation. For this reason, this section retains the flexibility for States and MPOs to decide if and when they choose to develop programmatic mitigation plans and how such plans can be used to address the potential impacts of transportation projects. The FHWA and FTA also point out that, as stated in section 450.320(b), early and ongoing coordination with the resource agencies with jurisdiction over the environmental resource is a pragmatic solution to avoiding future PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 conflicts associated with the NEPA process. Section 450.320(d) Four entities (DVRPC, NARC, PA DOT, and SCCRTC) commented on the proposed text in section 450.320(d), advocating for stronger language (i.e., the use of the word ‘‘shall’’ in the regulatory text in section 450.320(d)) that would require Federal agencies to consider the recommendations developed under a programmatic mitigation plan when conducting future environmental reviews. The FHWA and FTA can encourage the development and use of programmatic mitigation plans in future NEPA reviews, but cannot interpret the statutory provision (23 U.S.C. 169(f)) in a manner that would make it more restrictive for States and MPOs to utilize effective mitigation efforts, if developed through another authority or during an environmental review for a specific project or program. Furthermore, if a mitigation plan is developed, it may not necessarily be aligned in time with the environmental review of a project or program. In these instances, delaying the environmental review of a project or program for the development and adoption of a programmatic mitigation plan may not be in the best interest of the State or MPO. This final rule retains the language proposed in the NPRM. Five planning organizations (MTC, SACOG, SANDAG, SCAG, and SJCOG) commented on broadening the scope of paragraph (d) through the removal of the word ‘‘Federal.’’ They suggested that this would clarify that any agency may use a programmatic mitigation plan, developed under this authority, that has been adopted for use within the transportation planning process in future environmental reviews. Paragraph (d) is applicable to any Federal agency responsible for environmental reviews, permits, or approvals for a transportation project. The final rule does not prohibit nonFederal agencies wishing to utilize programmatic mitigation plans developed by States or MPOs under this authority. Section 1306 of the FAST Act amends 23 U.S.C. 169(f) to change ‘‘may use’’ to ‘‘shall give substantial weight to’’ and changes ‘‘any other environmental laws and regulations’’ to ‘‘other Federal environmental law’’ such that a Federal agency responsible for environmental reviews ‘‘shall give substantial weight to’’ the recommendations in the programmatic mitigation plan when carrying out its responsibilities under NEPA or ‘‘other Federal environmental law.’’ Sections 450.214(d) and E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 450.320(d) of the final rule are amended to reflect these changes. Section 450.322 Congestion Management Process in Transportation Management Areas Seven entities (ARC, DRCOG, Enterprise Community Partners, MARC, National Housing Conference, New York State Association of MPOs, and WA State DOT) submitted comments on this section. One comment was from a State, three from MPOs, two from advocacy organizations, and one from an association. The DRCOG commented that the term ‘‘acceptable,’’ as used in section 450.322(c), related to system performance should be defined in the final rule by describing how and by whom acceptability will be determined. In response, FHWA and FTA note that for the CMP, as described in section 450.322(c), it is the responsibility of State and local transportation officials to determine the level of system performance they deem acceptable. As a result of this comment, no changes to the final rule were made. Enterprise Community Partners and the National Housing Conference commented that intensive development near transit such as transit oriented development and joint development should be included in the final rule as congestion management strategies. In response, FHWA and FTA note that several examples of congestion management strategies are provided in the NPRM and in the final rule. These strategies are consistent with those suggested in the comment, such as growth management and public transportation improvements. Therefore, no changes were made to the final rule. The DRCOG commented on section 450.322 that single occupancy vehicles (SOV) projects or facilities do not exclusively serve SOVs. The New York State Association of MPOs commented that decisions about congestion are variable, and that flexibility in defining and addressing congestion is important. The FHWA and FTA agree that SOV facilities might not exclusively serve SOVs and feel the final rule provides MPOs the flexibility to define and address congestion. The MARC noted that the CMP has a linkage to the performance-based planning process. The FHWA and FTA response to this comment is that the CMP and the performance-based planning and programming processes do have linkages. Specifically, section 450.306(d)(4)(vii) requires that an MPO shall integrate them into the metropolitan transportation planning process, directly or by reference, the VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 goals, objectives, performance measures, and targets from other federally required performance-based plans and process, such as the CMP. The New York State Association of MPOs commented that they support a coordinated plan for data collection and propose that the last sentence in section 450.322(d)(3) mention that public safety agencies are a potential source of data related to incident management and non-recurring congestion. The FHWA and FTA have reviewed this comment and have decided not to specifically add language that public safety agencies could be a source of safety data because this section does not specifically provide a list of agencies and the data they might provide. The New York State Association of MPOs noted that intelligent transportation system (ITS) technologies are not a congestion management strategy, and that it is more appropriate to reference the importance of implementing the adopted ITS regional architecture. In response, FHWA and FTA note that the final rule describes ITS technologies as they relate to the regional ITS architecture as a congestion management strategy, and so no change was made. Section 1201 of the FAST Act amended 23 U.S.C. 134(k)(3)(A) to add a list of examples of travel demand reduction strategies and to add job access projects as a congestion management strategy. The final rule at section 450.322(a) is amended to reflect this change. Section 1201 of the FAST Act amended 23 U.S.C. 134(k)(3)(C) to allow that an MPO serving a TMA may develop a congestion management plan. The final rule at section 450.322(h)(1) and (2) is amended to reflect this change. Section 450.324 Development and Content of the Metropolitan Transportation Plan Fifty-one commenters (AASHTO, Albany MPO, AMPO, ARC, CALTRANS, Community Labor United, CT DOT, DVRPC, DRCOG, Enterprise Community Partners, Florida MPO Advisory Council, FMATS, Front Range Economic Strategy Center, IA DOT, MAG, Macatawa MPO, MARC, Maui MPO, ME DOT, MET Council, MTC, MO DOT, NARC, National Housing Conference, National Trust for Historic Preservation, New York State Association of MPOs, NJ DOT, North Florida MPO, NRDC, NYMTA, NYMTC, PA DOT, Partnership for Active Transportation, Partnership for Working Families, Policy Link, Portland Metro, PSCOG, Public Advocates, SACOG, San PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 34117 Luis Obispo MPO, SANDAG, Santa Cruz County MPO, SCAG, SEMCOG, SJCOG, TX DOT, United Spinal Association, VA DOT, WA State DOT, Westchester County Department of Public Works, WFRC, and WMATA) submitted comments on this section to the docket. Twenty were from MPOs, 11 from States, 12 from advocacy groups, 5 from transportation associations, and 3 from public transit agencies. Section 450.324(a) At least three MPOs (Albany MPO, San Luis Obispo COG, and WFRC) commented that in section 450.324(a) the regulations should allow for a MTP that has more than a 20-year planning horizon. The FHWA and FTA respond that these regulations allow for MTPs with a 20-year or greater planning horizon. The NARC stated that section 450.324(a) is inconsistent, in that it states that the metropolitan transportation plan shall address no less than a 20-year planning horizon as of the effective date. However, section 450.324(a) further states that in formulating the MTP, the MPO shall consider the factors described in section 450.306 as they relate to a 20-year period. The NARC further stated that many MPOs prepare MTPs that forecast beyond a 20-year horizon. This section appears to limit the consideration of factors to only a 20-year horizon, and NARC further suggests inserting the word ‘‘minimum.’’ The FHWA and FTA agree with this comment and changed the section to state that the MPO shall consider factors described in section 450.306 as the factors relate to a minimum 20-year forecast period to be consistent with the fact that the MTP horizon may exceed 20 years. Section 450.324(c) More than one commenter (DVRPC, NJ DOT, and PA DOT) suggested that FHWA and FTA should consider changing the review and update cycle for MTPs in areas that are classified as air quality nonattainment and maintenance areas from 4 to 5 years. The FHWA and FTA respond to this comment that the statute requires MTPs in nonattainment and maintenance areas to be updated at least every 4 years and as a result, in keeping with the statutory requirement, the final rule requires updates at least once every 4 years. Section 450.324(f) The PSRC and WA State DOT asked what the term ‘‘current’’ means in section 450.324(f)(1). The WA State DOT further commented that the word E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34118 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations ‘‘current’’ in this section might mean that the MTP will have to be updated annually. The WA State DOT suggested the use of the word ‘‘baseline’’ instead of the word ‘‘current.’’ The FHWA and FTA response to these comments is that the word ‘‘current’’ means at the time the plan is under development. The use of the word ‘‘current’’ is not meant to mean the same as ‘‘baseline.’’ The FHWA and FTA further respond that this provision does not mean that MTPs have to be updated annually. The FHWA and FTA reiterate that section 450.324(c) clearly states that the MPO shall review and update the MTP at least every 4 years in air quality nonattainment and maintenance areas and at least every 5 years in attainment areas. The MARC commented that it wanted clarification in section 450.324(f)(1) on how current demand of persons and goods should be reflected in the plan. The FHWA and FTA response is that it is up to each MPO to determine how to meet this requirement. The DRCOG and DVRPC commented that the requirement in section 450.324(f)(2) that the MTP includes pedestrian and bicycle facilities is extremely difficult, burdensome, and unclear. In response to this comment, FHWA and FTA believe that Congress intends for a multimodal approach to the transportation planning process. Title 23 U.S.C. 134(b)(2) states that the MTPs and TIPs for each metropolitan area shall provide for the development and integrated management and operation of transportation systems and facilities (including accessible pedestrian walkways and bicycle transportation facilities) that will function as an intermodal transportation system for the MPA and as an integral part of an intermodal transportation system for the State and the United States. In drafting the NPRM and the final rule, FHWA and FTA fulfilled this intent by requiring that the MTP include, among other things, short- and long-range strategies/actions and existing and proposed transportation facilities that provide for pedestrian walkways and bicycle facilities that function as part of an integrated metropolitan transportation system (23 CFR 450.324(f)(2) and 23 CFR450.324(b)). The FHWA has recently completed the Statewide Pedestrian and Bicycle Planning Handbook, which is available at: https:// www.fhwa.dot.gov/planning/processes/ pedestrian_bicycle/pedestrian_bicycle_ handbook/fhwahep14051.pdf. A metropolitan version of the handbook is VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 under development and will be available soon. The DRCOG and RTD commented that both sections 450.324(f)(2) and 450.324(f)(12) contain references requiring the MPO MTP to include pedestrian walkways and bicycle facilities. The FHWA and FTA response to this comment is that the commenter is correct. Reference to pedestrian walkways and bicycle facilities is included in the two sections for added emphasis, however, the context of each section is slightly different. Section 450.324(f)(2) refers overall to including existing and proposed transportation facilities such as major roadways, transit, multimodal and intermodal facilities, and nonmotorized transportation facilities, including pedestrian walkways and bicycle facilities that should function as an integrated transportation system in the MTP. Section 450.324(f)(12) refers specifically to including pedestrian walkway and bicycle transportation facilities in the MTP. No changes were made as a result of this comment. Section 1201 of the FAST Act amended 23 U.S.C. 134(i)(2)(A)(i) to add public transportation facilities and intercity bus facilities to the list of existing and proposed transportation facilities to be included in the metropolitan transportation plan. The final rule at section 450.324(f)(2) is amended to reflect this change. Several commenters (DVRPC, NYMTC, and PA DOT) commented that the system performance report in the MTP (section 450.324(f)(4)) should only consider conditions and trends at the system level, and should not be required to conduct a project specific analysis. The MARC commented that it would like flexibility in how the systems performance report required under section 450.324(f)(4) is integrated into the MTP. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. At least two commenters (IA DOT and New York State Association of MPOs) commented that it is not clear what the term ‘‘subsequent updates’’ refers to in sections 450.324(f)(4) and 450.216(f)(2). The FHWA and FTA response is that the term ‘‘subsequent update’’ refers to the update of the MTP or the long-range statewide plan and is defined in section 450.104. Update of the MTP or the longrange statewide transportation plan means making a MTP or a long-range statewide transportation plan current through a comprehensive review. Updates require public review and comment; a 20-year horizon for MTPs and long-range statewide plan; a PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 demonstration of fiscal constraint for the MTP; and a conformity determination for MTPs in nonattainment and maintenance areas. Section 450.324(c) requires the MPO to review and update the MTP at least every 4 years in air quality nonattainment and maintenance areas and at least every 5 years in attainment areas. Section 450.324(f)(4) requires that with the update to the metropolitan plan, and each update thereafter, the MPO also will update the evaluation of the condition and performance of the transportation system with respect to the performance targets described in section 450.306(d) as part of the update of the MTP. Similarly, 405.216(f)(2) means the State will update the evaluation of the condition and performance of the transportation system with respect to the performance targets described in section 450.206(c)(2) as part of the update of the long-range statewide transportation plan. No changes to the final rule are required as a result of this comment. The NYMTA commented on section 450.324(f)(4) that the cycle for subsequent updates to the system performance report should be clarified. Specifically, it wanted to know if this means each MTP update, or if more frequent updates to the system performance report are required independent of the MTP update. The FHWA and FTA response to this comment is that the system performance report in the MTP has to be updated when the MTP is updated. Update cycles for the MTP are described in section 450.324(c). The IA DOT commented on section 450.324(f)(4)(ii) that it appears that the analysis of how the preferred scenario has improved the conditions and performance of the transportation system is a requirement, when the use of scenario planning is optional. The FHWA and FTA response to this comment is that for those MPOs that elect the option to conduct scenario planning in the development of their MTPs, the provision in section 450.324(f)(4)(ii) is a requirement (23 CFR 450.324(f)(4)(ii) and 23 U.S.C. 134(i)(2)(C)(ii)). For section 450.324(f)(4)(ii), the WA State DOT requests revision to clarify that the analysis of how changes in local policies and investments have impacted the costs necessary to achieve the identified performance targets can be a general discussion of broad policy. In response to this comment, FHWA and FTA do not believe that this additional clarification is necessary. As written, the requirement is fairly nonprescriptive E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations in how it would be carried out. The FHWA and FTA believe that it is up to the MPO, within reason, to decide how to meet this requirement. After publication, FHWA and FTA plan to issue guidance and share best practices on this requirement. No changes were made as a result of this comment. Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(2)(G) to add ‘‘reduce the vulnerability of the existing transportation infrastructure to natural disasters’’ to the assessment of capital investment and other strategies to preserve the existing and projected future metropolitan transportation infrastructure in the metropolitan transportation plan. Section 450.324(f)(7) of this final rule is amended to include this new provision. Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(2)(H) to add consideration of the role intercity buses may play in reducing congestion, pollution, and energy consumption as part of the metropolitan transportation plan. Section 450.324(f)(8) of this final rule is amended to include this new provision. The ARC supports the optional provision in section 450.324(f)(11)(iii) for including an assessment of the appropriateness of innovative finance techniques as revenue sources for the projects in the MTP. However, ARC states that it is unclear to what level of detail is expected. In response, FHWA and FTA note that FHWA has previously issued guidance on fiscal constraint, which includes guidance on innovative finance techniques and fiscal constraint.29 The Florida MPO Advisory Council commented that this provision is an important step in not only encouraging MPOs to consider new and innovative financing techniques very early in the planning process, but also places emphasis on the feasibility of implementing those financing techniques. The Partnership for Active Transportation commented that the consideration of innovative financing techniques should encourage those techniques in the context of active transportation such as pedestrian and bicycle projects. The FHWA and FTA response is that this provision is intended to be considered for all types of transportation projects, including bicycle and pedestrian projects. For section 450.324(f)(11)(iii), the WA State DOT recommends the section be revised to clarify that the discussion of 29 ‘‘Guidance on Financial Planning and Fiscal Constraint for Transportation Plans and Programs, FHWA, April 17, 2009, https://www.fhwa.dot.gov/ planning/guidfinconstr.cfm. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 strategies for ensuring their availability can be a general discussion of the types of actions that would be necessary to implement new revenue sources. In response to this comment, FHWA and FTA note that they have issued guidance on fiscal constraint that includes information on this specific topic that an MPO can use to understand how to carry out this requirement. No changes were made as a result of this comment. The ARC suggested that for section 450.324(f)(11)(iv), FHWA and FTA provide guidance on the topic of ‘‘year of expenditure.’’ The FHWA and FTA have previously issued guidance on this topic. It is available at: https:// www.fhwa.dot.gov/planning/ guidfinconstr_qa.cfm. The AASHTO stated that year of expenditure should only apply to costs and not to revenues in the MTP (section 450.324(f)(11)(iv)). Similar comments were received on section 450.218(l) (development and content of the STIP) and section 450.326(j) (development and content of the MTP). The FHWA and FTA disagree with these comments. Year of expenditure is applied to both costs and revenues in the NPRM and final rule for the MTP, TIP, and STIP to provide for consistency and comparability of costs and revenues in these documents. The requirement for adjustment to year of expenditure applies to revenue and cost estimates developed for the STIP (section 450.218(l)), MTP (section 450.324(f)(11)(iv)), and TIP (section 450.326(j)). The FHWA and FTA made no changes to those sections based on the comments. The FHWA and FTA note that this is consistent with the previous regulations (72 FR 7224, 23 CFR 450.216(l), and section 450.324(h)). Section 450.324(g) Section 450.324(g) describes MPO consultation with State and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation concerning the development of the transportation plan. Section 450.324(g)(2) states that the consultation shall involve, as appropriate, the comparison of transportation plans to inventories of natural or historic resources, if available. The National Trust for Historic Preservation commented that section 450.324(g)(2) should include additional language requiring State and local resource protection and historic preservation agencies to be contacted to obtain existing inventories, and that MPOs may fund the preparation or updating of such inventories, pursuant PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 34119 to this chapter, if inventories are not current or available. In response, FHWA and FTA reiterate that the existing language in section 450.324(g)(2) already requires that the MPO shall consult, as appropriate, with State and local agencies responsible for natural resources, environmental protection, and historic preservation and a comparison of transportation plans to inventories of natural or historic resources, if available. The FHWA and FTA also respond that funding eligibility for activities necessary to support metropolitan transportation planning under the final rule is described in section 450.308. No changes were made as a result of these comments. Section 450.324(h) The WAMTA commented on section 450.324(h) that it does not want the safety plans such as the HSIP (including the SHSP required under 23 U.S.C. 148, the Public Transportation Agency Safety Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with 49 CFR part 659, as in effect until completion of the Public Transportation Agency Safety Plan) integrated into the MTP as described in this section. In response to this comment, FHWA and FTA note that the basis for this provision in the regulation predates the final rule. The FHWA and FTA also note that transportation safety is a major priority for DOT. The MAP– 21 and the final rule call for the integration of the goals, objectives, performance measures, and targets from the various federally required performance-based plans and processes into the statewide and metropolitan transportation planning processes either directly or by reference, including federally required transportation safety plans (23 U.S.C. 134(h)(2)(D) and 135(d)(2)(C)). No changes were made to the final rule. Section 450.324(i) Many MPOs (Albany MPO, AMPO, ARC, Metropolitan Council MPO, Portland Metro, SCCRTC, and WMATA), some States (CALTRANS, CT DOT, and NJ DOT), and one advocacy organization (NRDC) commented that they support the voluntary option for MPOs to utilize scenario planning in the development of an MTP as described in section 450.324(i). A few commenters (DVRPC and PA DOT) commented that scenario planning is already being used in the development of their MTPs. The NRDC stated that they liked the detailed description of scenario planning in this section and the definition of the term ‘‘visualization’’ in section 450.104. The E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34120 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations NRDC and WAMATA further commented that FHWA and FTA should provide detailed training, guidance, and additional resources on scenario planning. The WAMATA also commented that FHWA and FTA should use the final rule to promote scenario planning as a best practice and tie scenario planning to performance measures and targets. In response, FHWA and FTA note that they have developed guidance, training, peer exchanges, and examples of practice on scenario planning and visualization, which is available at: https://www.fhwa.dot.gov/planning/ scenario_and_visualization/scenario_ planning/index.cfm. The FHWA and FTA regularly update this material. The FHWA and FTA are researching the use of scenario planning with performancebased planning. The FHWA and FTA note that section 450.324(f)(4)(ii) states that MPOs that voluntarily elect to develop multiple scenarios as part of the development of the MTP shall conduct an analysis of how the preferred scenario has improved conditions and performance of the transportation system as part of the system performance report required under section 450.324(f)(4). Several MPOs (MTC, NARC, SACOG, SANDAG, SCAG, and SJCOG) and the TN DOT suggested changes to the language on scenario planning in this paragraph. The MTC, SACOG, SANDAG, SCAG, and SJCOG stated that they are supportive of scenario planning and its inclusion in the final rule. However, they believe that the language in the NPRM describing what specific scenarios MPOs should analyze is overly prescriptive. They further commented that instead of identifying specific performance-driven scenarios that should be evaluated, the language should be clarified that MPOs should develop a range of reasonable scenarios and carefully consider their performance impacts. In response to this comment, FHWA and FTA reiterate that the use of scenario planning by MPOs as described in section 450.324(i) is voluntary, and that the examples of scenarios described under section 450.324(i)(1) are only for consideration. No changes were made to the final rule based on this comment. The ARC commented that since scenario planning is optional, the elements considered when doing scenario planning should also be optional for the MPO in section 450.324(i). In response to this comment, FHWA and FTA reiterate that scenario planning is optional under section 450.324(i) and that it is up to the MPO to determine the elements to be VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 considered when doing scenario planning. However, section 450.324(f)(4)(ii) requires that for MPOs that voluntarily elect to develop multiple scenarios, the metropolitan transportation plan shall include an analysis of how the preferred scenario has improved conditions and performance of the transportation system as part of its systems performance report (23 U.S.C. 134(i)(2)(c)(ii)). Section 450.324(i) states that an MPO may voluntarily elect to develop multiple scenarios for consideration as part of the development of the MTP. The TN DOT suggested that this language could be strengthened by replacing the phrase ‘‘an MPO may voluntarily elect’’ with the phrase ‘‘MPOs are encouraged to develop multiple scenarios.’’ In response to this comment, FHWA and FTA believe that Congress intended for the use of scenario planning by MPOs to be voluntary (23 U.S.C. 134(i)(4)(A)) and FTA and FHWA want to convey that intent. No changes were made to the final rule based on this comment. The NARC suggested that the language concerning scenario planning in section 450.324(i) be changed from ‘‘an MPO may, while fitting the needs and complexity of its community, voluntarily elect to develop multiple scenarios for consideration as part of the development of the metropolitan plan’’ to ‘‘an MPO may voluntarily elect to develop multiple scenarios for consideration as part of the development of the MTP.’’ In response to this comment, FHWA and FTA believe that an MPO may want to be sensitive to the needs and complexity of its community as it decides whether or not to use scenario planning and the extent to which it might use it as part of developing its MTP. No changes were made to the final rule based on this comment. The NARC also suggested a change to section 450.324(i)(1)(iv), which states ‘‘a scenario that improves the conditions for as many of the performance measures identified in section 450.306(d) as possible’’ be changed to ‘‘a scenario that improves the baseline conditions for one or more of the performance measures identified in section 450.306(d).’’ In response to this comment, FHWA and FTA reiterate that an MPO may create scenarios that improve the baseline conditions for one or more of the performance measures identified in section 450.306(d). Section 450.324(i)(1)(iv) encourages that at least once scenario improve the baseline conditions for as many of the performance measures identified in PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 section 450.306(d) as possible. No changes were made to the final rule based on this comment. The AMPO commented on section 450.324(i) that it does not want scenario planning to be a factor in FHWA and FTA planning certification reviews of TMAs. The FHWA and FTA response to this comment is that, although the use of scenario planning is optional, FHWA and FTA will typically include discussion on scenario planning in planning certification reviews to assess the state of the practice with scenario planning and to promote it as a best practice. The MARC commented on section 450.324(i)(2) that it supports the provision in this section whereby an MPO may evaluate scenarios developed using locally developed measures in addition to the performance areas identified in 23 U.S.C. 150(c), 49 U.S.C. 5326(c), 49 U.S.C. 5329(d), and 23 CFR part 490. At least seven advocacy groups (Community Labor United, Front Range Economic Center, National Association of Social Workers, Partnership for Working Families, PolicyLink, Public Advocates, and United Spinal Association) suggested that scenario planning be used by MPOs to analyze the impact of investments and policies on the transportation system including prioritizing the needs of low-income populations, minorities, or people with disabilities. The National Housing Conference suggested that MPOs should consider housing needs when conducting scenario planning. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.324(j) Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(6)(A) to add public ports to the list of entities that an MPO shall provide a reasonable opportunity to comment on the metropolitan transportation plan and adds a list of examples of private providers of transportation. Section 450.324(j) of this final rule is amended to include these new provisions. The AMPO commented that States, MPOs, and operators of public transportation should not be subject to financial consequences or additional reporting requirements for not achieving established targets. The FHWA and FTA response is that under the final rule, MPOs, and operators of public transportation are not subject to financial consequences or additional reporting requirements for not achieving established targets. The comment is outside the scope of the final rule. As E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 there may be consequences for not achieving established targets under the other performance management rules for the States (not the MPOs), the commenter is encouraged to review the other performance management rules. Although there are no consequences for failing to meet established performance targets under this final rule, there may be consequences for not meeting the performance-based planning and programming requirements under this final rule and 23 U.S.C. 134 and 135. The consequences might be identified through the STIP approval and statewide transportation planning finding of the FHWA and FTA (23 CFR 450.220); the planning certification reviews of TMAs (23 CFR 450.336); or other means such as transportation planning certification reviews in TMAs. Several commenters (FMATS, NARC, and NRDC) suggested that the States and MPOs should be subject to the same requirements. For example, MPOs are required to include federally required performance targets in their MTPs, but due to amendments to 23 U.S.C. 135(f)(7) made by FAST, it is now required that States to include federally required performance targets in the long-range statewide transportation plan. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.326 Development and Content of the Transportation Improvement Program (TIP) Thirty-five entities (AASHTO, Albany MPO, AMPO, ARC, Center for Social Inclusion, DRCOG, DVRPC, Enterprise Community Partners, Florida MPO Advisory Council, FMATS, French Broad River MPO, H–GAC, IA DOT, KY TC, MAG, MARC, MET Council, MTC, NARC, National Housing Conference, NCTCOG/RTC, New York State Association of MPOs, North Florida MPO, NRDC, NYMTA, NYMTC, Orange County Transit, PA DOT, SACOG, San Luis Obispo MO, SANDAG, Santa Cruz MPO, SCAG, SJCOG, TriMet, TX DOT, WA State DOT, and Wilmington MPO) submitted comments on this section. Eighteen comment letters were submitted by MPOs, 6 by States, 5 by associations representing transportation agencies, 4 by advocacy organizations, and 2 by operators of public transportation. Section 450.326(a) The WA State DOT commented on section 450.326(a) that it is unclear why only the investment priorities are singled out as an element that must be reflected in the TIP, as opposed to VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 ensuring that projects in the TIP are consistent with the MTP. The commenter further recommended that section 450.326(a) be rewritten to state that the TIP shall be consistent with the MTP; cover a period of no less than 4 years; be updated at least every 4 years; and be approved by the Governor and the MPO. The WA State DOT recommends deleting the phrase ‘‘that the TIP shall reflect the investment priorities established in the current MTP.’’ In response to this comment, FHWA and FTA reiterate that section 450.324(a) states that the TIP shall reflect the investment priorities established in the MTP, shall cover a period of no less than 4 years, and shall be updated at least every 4 years. The FHWA and FTA note also that in 23 U.S.C. 134(j)(1)(ii), Congress specifically stated that the MPO shall develop a TIP for the metropolitan area that reflects the investment priorities established in the current MTP. The FHWA and FTA further state that section 450.326(i) requires that each project or project phase included in the TIP shall be consistent with the approved MTP. Based on this comment, no changes were made to the final rule. The DVRPC asked what is meant by ‘‘the cycle for updating the TIP must be compatible with the STIP development process in section 450.326(a).’’ The DRCOG and RTD questioned why the TIP and STIP cycles must be compatible if the TIP is supposed to be incorporated in the STIP without changes. In response, FHWA and FTA reiterate that the TIP shall include capital and noncapital surface transportation projects within the boundaries of the MPA proposed for funding under 23 U.S.C. and 49 U.S.C. Chapter 53, as described in section 450.326(e). Furthermore, the STIP must include the TIP without change in accordance with section 450.218(b). The provision in section 450.326(a) which states that the cycle for updating the TIP must be compatible with the STIP development process means that the TIP update cycle must be compatible so that the MPO TIP may be incorporated into the STIP by the State, and so that the proposed projects for the STIP may be incorporated into the MPO TIP. Section 450.326(c) The DRCOG and RTD stated that it is unclear in section 450.326(c) what is meant by the statement that ‘‘the TIP shall be designed such that once implemented, it makes progress toward achieving the performance targets.’’ This sentence means that, as the MPO develops the TIP, the program of PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 34121 projects shall be developed such that the investments in the TIP help achieve the performance targets set by the MPO for the region. The Enterprise Community Partners and FMATS commented on section 450.326(c) that they support increased accountability in the Federal transportation program by linking spending decisions to performance outcomes. The FHWA and FTA agree that transportation investment decisions should be linked to transportation performance outcomes as described in section 450.326(c) and in 23 U.S.C. 134(j)(1)(A)(iii) and 134(j)(2)(D). The National Housing Conference and the Center for Social Inclusion commented that spending decisions should be linked to performance measures and ensure that those measures promote sustainable development and a more holistic view of how transportation investments can serve the broader community. The commenters also noted that an equity analysis which includes performance measures specific to equity should be done on the MTP and the TIP. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.326(d) Several commenters (AASHTO, Albany MPO, DVRPC, Florida MPO Advisory Council, H–GAC, IA DOT, MAG, MARC, NARC, North Florida TPO, Orange County Transportation Authority, PA DOT, San Luis Obispo COG, SCCRTC, and TriMet) commented that the required discussion in section 450.326(d) on the anticipated effect of the TIP toward achieving the federally required performance targets should not be on a project basis. They suggested instead that it should be on the basis of the entire program in the TIP. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The KY TC commented on section 450.326(d) that it feels it will be difficult to have a TIP include a description of the anticipated effect of the TIP toward achieving the performance targets in the plan because it has a short timeframe and includes projects that would not be fully implemented. The KY TC suggested that it would rather see this requirement as part of the MTP. In response to this comment, FHWA and FTA believe that Congress intended for the TIP to include, to the maximum extent practicable, a discussion of the anticipated effect of the STIP toward achieving the performance targets established in the MTP, linking investment priorities to those E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34122 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations performance targets (23 U.S.C. 134(j)(2)(D)). The FHWA and FTA believe that this requirement is reasonable, given that the TIP implements the first 4 years of the MTP, and the investment priorities of the TIP should be linked to the MTP. The MPOs are encouraged to coordinate with their States and operators of public transportation when developing this discussion. The FHWA and FTA anticipate issuing guidance after the final rule is published to aid States and MPOs in meeting this requirement. The FHWA and FTA note that there is a separate requirement in section 450.324(f)(4) that MPOs include a system performance report in the MTP evaluating the condition and performance of the transportation system with respect to the performance targets described in section 450.306(d) that includes a description of progress achieved by the MPO in meeting the performance targets. The ARC commented on section 450.326(d) that it is unlikely that the projects within a 4-year program will actually result in a target being met. The FHWA and FTA note that this comment is outside the scope of the final rule. The IA DOT commented on section 450.326(d) that the definition of ‘‘maximum extent practicable’’ is unclear. The term ‘‘to the maximum extent practical’’ means capable of being done after taking into consideration the cost, existing technology, and logistics of accomplishing the requirement. The FHWA and FTA note that States and MPOs should include work tasks and funding in their State planning and research and unified planning work programs for carrying out the requirements necessary for the implementation of performance-based planning and programming requirements, including the requirements of this section, in their federally required metropolitan and statewide transportation planning work programs to accomplish the purposes of this part and section. The FHWA and FTA intend to issue guidance on the requirements of section 450.326(d) after the publication of this final rule and the other performance related rules. One commenter stated that in section 450.326(d), it is unclear what the difference is between TIP investments and investment priorities. In response, TIP investments and investment priorities are the same thing. They are the program of projects in the TIP. The FMATS stated that as the longrange statewide transportation plan, MTPs, STIPs, and TIPs direct investment priorities, it is critical to ensure that performance targets are VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 considered during the development of these documents. The FHWA and FTA agree with this comment and reiterate that the final rule requires that the TIP be designed such that once implemented, it makes progress toward achieving the performance targets established under section 450.306(d). The final rule also requires that the TIP shall include, to the maximum extent practicable, a description of the anticipated effect of the TIP toward achieving the performance targets identified in the metropolitan plan, linking investment priorities to those performance targets (section 450.326(e)). Similarly, the STIP shall include, to the maximum extent practicable, a discussion of the anticipated effect of the STIP toward achieving the performance targets identified by the State in the long-range statewide transportation plan or other State performance-based plan(s), linking investment priorities to those performance targets (section 450.218(q)). The NYMTC commented that section 450.326(d) should only apply with updates to the TIP but not to TIP amendments. The FHWA and FTA response to this comment is that the requirements in section 450.326(d) only apply to TIP updates. Several commenters (Metropolitan Council MPO, NCTCOG/RTC, NYMTC, and Regional Transportation Council) objected to the provision in section 450.326(d) that the discussion of the anticipated effect of the TIP toward achieving the performance targets identified in the MTP should be consistent with the strategies to achieve targets presented in the MTP and other performance management plans such as the highway and transit asset management plans, the SHSP, the public transportation agency safety plan, the CMAQ performance plan, and the State freight plan (if one exists). The commenters stated that this overreaches and that FHWA and FTA should remain within the statutory requirements. The FHWA and FTA agree with this comment and are eliminating the provision on consistency with the list of other performance management plans that was proposed for inclusion in section 450.326(d). The FHWA and FTA note that under section 450.306(d)(4), MPOs are required to integrate the goals, objectives, performance measures, and targets described in other State plans and processes and any plans developed under 49 U.S.C. chapter 53 by operators of public transportation into the metropolitan transportation planning process. Examples of other plans or processes are listed in section 450.306(d)(4). The FHWA and FTA PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 believe that the provisions in section 450.306(d)(4) are sufficient to ensure the integration of elements of other federally required performance-based plans and processes. Section 450.326(e) The KY TC commented that in section 450.326(e)(2) and 450.326(e)(4), FHWA and FTA inadvertently left out reference to NHPP funds, while reference to NHS funds was appropriately deleted. The FHWA and FTA response to this comment is that this was deliberate. Reference to the NHPP funds was not included because planning projects are not eligible for NHPP funds. This was a change in MAP–21, section 1106(a), and 23 U.S.C. 119(d). On sections 450.326(e)(2) and 450.326(e)(4), KY TC commented that it is not clear to what the term ‘‘metropolitan planning projects’’ refers. In response to this comment, FHWA and FTA clarify that metropolitan planning projects are planning projects that fund activities necessary to support the requirements of 23 U.S.C. 134. No changes were made as a result of this comment. The NYMTC and NYS DOT supported the optional exclusion of emergency relief projects from the TIP, as described in section 450.326(e)(5). The FHWA and FTA retained this provision without changes in the final rule. The NYS DOT and NY MTA commented that section 450.326(e)(5) should clarify that the repair of damaged assets in an operational rightof-way is not a substantial functional, locational, or capacity change in regards to emergency relief projects. The FHWA and FTA respond that this comment is outside the scope of the final rule. Section 450.326(j) The AASHTO suggested that in section 450.326(j), only the cost estimates in the TIP should be subject to an adjustment to be shown in year of expenditure dollars, and not both cost estimates and revenue projections. Another commenter suggested that FHWA and FTA should develop a national inflation rate that all MPOs could use at their option for adjustment of the TIP to year of expenditure. The ARC commented that FHWA and FTA should provide additional guidance on year of expenditure, given that there is considerable variation in assumptions made by MPOs around the Nation regarding inflation rates. See FHWA and FTA responses to similar questions in section 450.324(f) in the section-bysection analysis. The North Florida TPO commented that the requirement in section E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations 450.326(j) that the TIP contain a financial plan is redundant because funding availability is demonstrated in the MTP. In response, FHWA and FTA note that the requirement to include a financial plan with the TIP is longstanding and specifically required by statute (23 U.S.C. 134(j)(2)(B)). The FHWA and FTA note that the time horizons of the MTP and TIP are different. The financial plan for the TIP demonstrates how the approved TIP, which covers a 4-year period, can be implemented. The MTP covers a 20-year horizon and the financial plan for the metropolitan plan describes how the 20year MTP can be implemented. Based on this comment, no changes were made to the final rule. mstockstill on DSK3G9T082PROD with RULES3 Section 450.326(m) The TX DOT commented that the language stating that the TIP should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plan is confusing and could potentially be interpreted and applied inconsistently. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Additional Section 450.326 Comments The FMATS commented that it is essential for the States and MPOs to develop performance targets in full coordination with each other to ensure that performance targets are considered during the development of STIPs and TIPs, and that investment priorities are tied to targets. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses The AMPO commented that there should be no financial consequences or additional reporting requirements for not achieving established targets. See section 450.324 in the section-bysection analysis for the FHWA and FTA response to this recurring comment. The Board of the French Broad River MPO and Wilmington MPO commented that FHWA should encourage the State, rather than the MPOs, to be responsible for establishing and tracking performance in the TIP. In response to this comment, FHWA and FTA reiterate that the final rule requires the States and the MPOs to establish performance targets and to track progress in achieving performance. The Center for Social Inclusion suggested that FHWA and FTA incentivize States and MPOs by establishing a competitive grant program, similar to TIGER, to assist with VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 coordination, planning, and implementation efforts that aligns and coordinates all agency long- and shortterm transportation plans. In response, FHWA and FTA note that the TIGER competitive grant program was specifically established and funded by Congress through statute. Congress has not provided authority for a program similar to the one suggested in the comment. The NRDC commented that they disapprove of the differences between the sections covering TIPs and the sections covering STIPs, particularly the use of the words ‘‘may’’ and ‘‘shall.’’ See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Section 450.326(n) of the NPRM discussed procedures or agreements that distribute sub-allocated Surface Transportation Program (STP) funds or funds under 49 U.S.C. 5307 to individual jurisdictions or modes within the MPA by predetermined percentages or formulas inconsistent with the legislative provisions that require the MPO, in cooperation with the State and operator of public transportation, to develop a prioritized TIP. In the final rule, section 450.326(n) became 450.326(m) and the phrase ‘‘or funds under 49 U.S.C. 5307’’ was deleted because this provision does not apply to 49 U.S.C. 5307 funds. The FHWA and FTA deleted the phrase ‘‘or funds under 49 U.S.C. 5307’’ from the final rule because it is not consistent with FTA Circular C9030.1E, which permits section 5307 funds to be suballocated according to a formula. The FHWA and FTA note that section 450.326(p) in the NPRM became 450.326(o) in the final rule, and is unchanged. Section 450.326(q) became section 450.326(p), and is unchanged. Section 450.328 TIP Revisions and Relationship to the STIP The APTA commented that performance targets should be updated when the TIP is updated, and should not require updating when the TIP is amended. In response, FHWA and FTA note that FHWA and FTA are required to establish national performance measures by rulemaking under 23 U.S.C. 150(c), 49 U.S.C. 5326(c), and 49 U.S.C. 5329(d). Each MPO is required to establish performance targets not later than 180 days after the date on which the relevant State or operator of public transportation establishes the performance targets, as provided in section 450.306(d)(3). The performance measures and targets are required to be reflected in the MPO MTP with the next plan update on or after the date that is PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 34123 equal to, or greater than, the date that is 2 years after the performance measures rules are effective, and with each subsequent MTP update (section 450.340). The final rule and MAP–21 require that the TIP shall include, to the maximum extent practicable, a description of its anticipated effect toward achieving the performance targets identified in the MTP. This requirement applies to each update of the TIP. See section 450.340 for a description of the phase-in of the new requirements for performance-based planning and programming. The FHWA and FTA made no changes to the final rule. Section 450.330 TIP Action by FHWA and FTA The WA State DOT requested that the language in section 450.330(c) be modified to state that the 12-month conformity lapse grace period applies to TIP amendments. The FHWA and FTA response is that section 450.326(p) describes the impacts of the conformity lapse grace period to the TIP. The FHWA also issued guidance on the implications of a conformity lapse grace period in a memorandum dated May 29, 2012.30 This guidance includes information on the implications of a conformity lapse grace period on the MTP and TIP. There is also information available on the implications of the conformity lapse grace period in the January 24, 2008, amendments to the final rule on transportation conformity.31 Because section 450.326(p), the guidance, and the amended EPA conformity regulations are available, FHWA and FTA do not believe it is necessary to make changes to section 450.330(c). Based on this comment, no changes were made to this section. Section 450.332 Project Selection From the TIP Three commenters (New York Association of MPOs, RTC of Southern Nevada, and Transportation for America) submitted comments on this section. The RTC of Southern Nevada requested that the language that describes project selection procedures 30 FHWA Memorandum dated May 29, 2012, ‘‘Subject: Information: Frequently Asked Questions on the Transportation Conformity Lapse Grace Period,’’ https://www.fhwa.dot.gov/environment/air_ quality/conformity/reference/faqs/lapsegrace.cfm. 31 Federal Register, Vol. 73, No. 16, January 24, 2008, EPA Final Rule, Transportation Conformity Rule Amendments to Implement Provisions Contained in the 2005 Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA–LU), https://www.gpo.gov/fdsys/ pkg/FR-2008-01-24/pdf/E8-597.pdf. E:\FR\FM\27MYR3.SGM 27MYR3 34124 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations for projects on the NHS be removed from the final rule. The RTC of Southern Nevada recommended instead that project selection be based on the underlying responsibility (ownership) for the roadway. The commenter’s reasoning for their recommendation is that with the expansion of the NHS, many more miles of NHS roadway are now on non-State, locally owned roads, and that the State will now be responsible for selecting projects on roads over which it has no jurisdiction. In response to this comment, FHWA and FTA believe that Congress intended that States have project selection authority for projects on the NHS. Title 23 U.S.C. 134(k)(4) states that projects carried out on the NHS within the boundaries of an MPA serving a TMA shall be selected for implementation from the approved TIP by the State, in cooperation with the MPO designated for the area. This requirement is longstanding and was continued under the MAP–21 and FAST. The FHWA and FTA made no changes to the final rule based on this comment. The New York State Association of MPOs and Transportation for America suggested that MPOs that do not serve TMAs should have the same project selection authority as MPOs that serve TMAs. In response, FHWA and FTA believe that it is the intent of Congress that the selection of federally funded projects in metropolitan areas not designated as a TMA shall be carried out by the State for projects funded under title 23 and by the designated recipients of public transportation funding under chapter 53 of title 49 (23 U.S.C. 134(j)(5)). This requirement is long-standing and was continued under the MAP–21 and FAST. Based on these comments, FHWA and FTA made no changes to the final rule. mstockstill on DSK3G9T082PROD with RULES3 Section 450.334 Annual Listing of Obligated Projects This section concerns the requirements for an annual listing of obligated projects in metropolitan areas. Section 450.334 requires that, in MPAs, the States, MPOs, and operators of public transportation cooperatively develop a list of projects for which funds under 23 U.S.C. or chapter 53 of 49 U.S.C. were obligated in the preceding program year. The MARC suggested that the final rule include a requirement that FHWA division offices and FTA regional offices provide information to MPOs from their databases on obligations that could be used in producing this list so that citizens have access to the best information available. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 In response to this comment, FHWA and FTA encourage States, MPOs, and operators of public transportation to work with their FHWA division and FTA regional offices to ensure that the information provided on annual listing of obligated projects is accurate. The FHWA and FTA find that no changes to this section are necessary. Section 450.336 Self-Certifications and Federal Certifications Nine entities (Community Labor United, DRCOG, Front Range Economic Strategy Center, MARC, National Association of Social Workers, New York State Association of MPOs, Partnership for Working Families, Policy Link, The Leadership Conference on Civil and Human Rights, and United Spinal Association) provided comments on this section. The comments were received from seven advocacy groups and two MPOs. Several commenters (Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Partnership for Working Families, Policy Link, The Leadership Conference on Civil and Human Rights, United Spinal Association) suggested that FHWA and FTA should include EJ as a topic in the Federal certification review process and should require States and MPOs to self-certify compliance with E.O. 12898. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. The MARC suggested that it is a duplication of effort for States and MPOs to self-certify when FHWA and FTA conduct certification reviews of the planning process in TMAs. The FHWA and FTA disagree with this comment. Each of these certification requirements is intended to meet different purposes. The Federal certification of the planning process in TMAs is a Federal review of compliance with the planning requirements in TMAs to ensure that the requirements of 23 U.S.C. 134 are being met. The State and MPO selfcertifications are self-assessments on compliance with the requirements of 23 U.S.C. 134 and 135. The FHWA and FTA also make a planning finding on the statewide and metropolitan planning process at the time of STIP approval. This finding assesses compliance of the planning process with 23 U.S.C. 134 and 135. The first sentence in section 450.336(a) reads as follows: ‘‘For all MPAs, concurrent with the submittal of the entire proposed TIP to the FHWA and the FTA as part of the STIP approval, the State and the MPO shall certify at least every 4 years that the PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 metropolitan transportation planning process is being carried out in accordance with all applicable requirements.’’ The DRCOG commented that this sentence is confusing and suggested that it be rewritten as follows: ‘‘. . . concurrent with the submittal of the entire proposed TIP, at a maximum of at least every 4 years, to the FHWA and FTA . . .’’ The FHWA and FTA have reviewed the commenter’s proposed language and believe that it is unclear and does not provide additional clarity. Based on these comments, no changes were made to the final rule. The ARC commented on section 450.336 that when FHWA and FTA are conducting certification reviews of the TMAs, they should focus on the requirements of the final rule (i.e., the ‘‘musts’’ and ‘‘shalls’’) rather than on those things that are not required by the final rule (i.e., the ‘‘should’’ and ‘‘mays’’). In response, FHWA and FTA note that they focus on the requirements of the final rule when conducting certification reviews in TMAs. However, FHWA and FTA also often review planning practices that are not required under the final rule to glean best practices that can be shared with other MPOs and make recommendations for improvement in priority topic areas. The Community Labor United, Front Range Economic Strategy Center, and Partnership for Working Families suggested that FHWA and FTA certifications should be conducted every 3 years instead of every 4 years. In response to this comment, FHWA and FTA believe that Congress intended for FHWA and FTA to conduct certification reviews in TMAs on a 4-year cycle (23 U.S.C. 134(k)(5)(A)(ii)) and have reflected that in section 450.336(b). The FHWA and FTA believe that doing certification reviews more frequently than every 4 years would have limited benefits and would place an unnecessary increased burden on MPOs serving TMAs, their respective States and operators of public transportation, and the FHWA and FTA field offices because of the resources involved in preparing for, participating in, and conducting the review. Based on these comments, FHWA and FTA made no changes to the final rule. Section 450.336(a)(5) has been updated to reflect changes in the statutory citations resulting from FAST; section 1101(b) of MAP–21 and 49 CFR part 26 in this section becomes section 1101(b) of FAST and 49 CFR part 26. Section 450.338 Applicability of NEPA to Metropolitan Transportation Plans The AASHTO commented that the new authority for PEL described in the E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 MAP–21 (section 1310) makes the project development process more complex and cumbersome, and recommended that existing authorities for PEL under appendix A to the final rule be retained. The FHWA and FTA response is that this same comment was received previously on section 450.224. See section 450.224 of the section-bysection analysis for the FHWA and FTA response to this comment. The FHWA and FTA have made no changes to the final rule. Section 450.340 Phase-In of New Requirements Section 450.340 describes the phasein of the new requirements in metropolitan areas. Twenty-eight entities (AASHTO, Albany MPO, AMPO, ARC, Board of the French Broad River MPO, California Association for Coordinated Transportation, CT DOT, FMATS, GA DOT, H–GAC, IA DOT, MD DOT, ME DOT, MET Council, MI DOT, NARC, NYMTA, NJ DOT, North Florida MPO, NYMTC, RMAP, San Luis MPO, SEMCOG, TriMet, TX DOT, WA State DOT, WFRC, and Wilmington MPO) submitted comments on this section. Nine of the comment letters were from States, 14 from MPOs, 3 from associations, 1 from an operator of public transportation, and 1 from an advocacy group. Several commenters (AASHTO, CT DOT, FMATS, IA DOT, ME DOT, NJ DOT, and NYMTC) commented that they felt the 2-year phase-in period for the final rule is too short and that more time and flexibility is needed. The New York State Association of MPOs stated that the 2-year phase-in period for requiring MPOs to comply with the new rule is adequate. The FHWA and FTA believe that the 2-year phase-in schedule for MPOs is sufficient. The FHWA and FTA rationale for the 2-year phase-in for MPOs was described in the NPRM. It is based on the 2-year phasein for the States, as provided for in 23 U.S.C. 135(l). The FHWA and FTA made no changes to the final rule based on this comment. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Some commenters (NJ DOT, WA State DOT, and WI DOT) suggested that FHWA and FTA allow for an additional 90-day comment period once all of the performance management related NPRMs are issued to give States and others the opportunity to review and possibly revise their earlier comments. The Sierra Club commented that it liked this comment. The FHWA and FTA believe that each of the rules has provided an robust VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 comment period sufficien to allow stakeholders to submit comments. No changes were made to the final rule based on the comment. The WA State DOT commented that FHWA and FTA should consider delaying the implementation of the performance management requirements of the final rule from 2 years after the publication date of the final rule and the issuance of guidance. See section IV(B) (recurring comment themes) for more discussion on this issue and FHWA and FTA responses. Several commenters (Board of the French Broad River MPO, IA DOT, and Wilmington MPO) requested that FHWA and FTA further clarify the phase-in requirements and processes. Two commenters (California Association for Coordinated Transportation and WA State DOT) suggested that FHWA and FTA make available graphic materials to explain the timelines and relationships of the various new and continuing provisions, programs, and funding sources to make it easier to understand and comply. They further commented that technical assistance from FHWA and FTA will be important. In response, FHWA and FTA intend to provide guidance and technical assistance on the phase-in requirements and processes of the various performance related rulemakings. Two commenters (IA DOT and WRFC) provided comments on compliance with the 2-year phase-in provisions in this section. See section IV(B) (recurring comment themes, common effective date, and phase-in of new requirements) for additional discussion and responses on this issue. The NYMTC commented that MPOs should be able to incorporate goals and targets included in agency-specific plans into MTPs by reference because many of these other plans are on a schedule that is not consistent with the publication of the TIP or the MTP. The FTA and FTA response to this comment is that performance measures and targets would only have to be included in the MTP at the time it is updated. The performance measures and targets should be included directly in the MTP at the time it is updated. The NYMTA and TriMet commented that FHWA and FTA should allow agencies to utilize existing processes and procedures whenever possible. The FHWA and FTA agree that States, MPOs, and operators of public transportation should utilize existing processes and procedures to ease the implementation of performance management when possible. The Metropolitan Council MPO commented that in sections 450.340(e) PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 34125 and 450.340(f), the phrase ‘‘meets the performance based planning requirements in this part and in such a rule’’ is unnecessary and should be deleted. The FHWA and FTA do not agree with this comment and are leaving the phrase unchanged because it delineates that these paragraphs apply specifically to meeting the performancebased planning requirements in this part and in other (performance management) rules. The RMAP asked for clarification on how FHWA and FTA will evaluate MPOs serving TMAs during Federal TMA planning certification reviews on the progress of incorporating performance measures. The FHWA and FTA respond that after the transition period, they will be evaluating the progress of MPOs serving TMAs in implementing performance management based on the requirements for MPOs in the MAP–21 and the final rule. These requirements include, but are not limited to: Target setting for the federally required performance measures; progress in achieving targets; coordination on target setting among States, MPOs, and operators of public transportation linking the program of investments in the TIP to performance target achievement; and documentation of targets and progress toward achieving targets in the MTP. Section 771.111, Early Coordination, Public Involvement, and Project Development The FHWA and FTA received no comments specific to section 771.111. No substantive changes were made in the final rule. Appendix A to Part 450—Linking the Transportation Planning and NEPA Processes Appendix A to part 450 is nonbinding information that provides additional discussion on linking the transportation planning and NEPA processes. Fifteen entities provided comments on appendix A. Eleven comments were submitted by States, two by MPOs, one by an association representing public transportation agencies, and one by an advocacy organization. Several of the States (ID DOT, MT DOT, ND DOT, SD DOT, TX DOT, and WY DOT) and one association representing public transportation agencies (AASHTO) asked that DOT clarify that appendix A is nonbinding guidance. The FHWA and FTA agree that appendix A is nonbinding guidance. The text in the opening paragraph of appendix A states that appendix A is intended to be nonbinding and should not be E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34126 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations construed as a rule of general applicability. This is unchanged from the previous 2007 rule. The AASHTO and MT DOT stated that the new statutory authority for linking the planning and NEPA processes under section 1310 of the MAP–21 (23 U.S.C. 168) is too complex and cumbersome and may deter States from undertaking planning and environmental linkages. The commenters stated that they would like to retain the ability to use the existing process to adopt analysis and decisions made during the transportation planning process. The FHWA and FTA response is that the existing authorities to adopt analysis and decisions made during the transportation planning process are retained in the final rule. Appendix A is unaltered by section 1310 of the MAP–21 or the FAST Act changes to 23 U.S.C. 138. See the section-by-section analysis (sections 450.212 and 450.318) for more discussion on the new statutory authority for linking the planning and NEPA processes from the MAP–21 and the retention of the existing authorities for PEL from the 2007 rule. The ARTBA expressed concerns over the use of the phrase ‘‘significant new information’’ in appendix A in determining whether or not an existing planning document may be used during the NEPA review. The FHWA and FTA believe that if there is significant new information since the development of planning document, it should be reviewed to determine if the planning document is still valid or needs updating. That review should be conducted by the State or other entity responsible for preparing the NEPA document in cooperation with the lead Federal agency and other affected entities (e.g., MPOs, local governments, operators of public transportation, and State and Federal resource agencies). The ARTBA also suggested that FHWA and FTA establish a clearinghouse to share and highlight examples of the successful implementation of planning products into NEPA reviews. The FHWA and FTA response is that FHWA maintains a Web site to share existing practices on planning and environmental linkages. The Web site is accessible at: https:// www.environment.fhwa.dot.gov/integ/. The FL DOT suggested that FHWA and FTA provide further clarity on the role of appendix A in order to reduce the risk of misinterpretations in some States and division offices. The FHWA and FTA response is that the use of appendix A is optional and nonbinding. There is additional information on the VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 aforementioned Web site on the use of planning and environmental linkages. It provides examples of effective practices, a checklist, and a guidebook on using PEL as part of a corridor study. The ARC expressed support for the language in appendix A and recommended no changes. Several commenters (AASHTO, CT DOT, and OR DOT) requested that the comment period be extended so that there is sufficient overlap with the separate NPRMs on planning and environmental linkages. The FHWA and FTA agreed with this comment and extended the comment period of the planning NPRM for 30 days to provide a 30-day overlap with the PEL NPRM. Another MPO (SCCRTC) correctly commented that the NPRM does not extend NEPA to MTPs or transportation improvement programs. In the text of appendix A, FHWA and FTA updated the number of positions funded for long-term, on-call staff that are detailed to an agency for temporary assignments to support focused and accelerated project review by a variety of Federal, State, tribal, and local agencies. The 2003 number of ‘‘246 positions’’ has been updated to ‘‘over 200.’’ Title 49 CFR part 613, Metropolitan Transportation Planning; Statewide and Nonmetropolitan Transportation Planning This section is revised to refer to the proposed regulations in 23 CFR part 450. Because FHWA and FTA jointly administer the transportation planning and programming process, the regulations were kept identical. VI. Regulatory Analyses and Notices Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review) and DOT Regulatory Policies and Procedures The FHWA and FTA have determined that this rulemaking is a nonsignificant regulatory action within the meaning of EO 12866, and under DOT regulatory policies and procedures. In addition, this action complies with the principles of EO 13563. After evaluating the costs and benefits of these amendments, FHWA and FTA have determined that the economic impact of this rulemaking would be minimal. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these changes will not create a serious inconsistency with any other agency’s action or materially alter the budgetary impact of any entitlements, grants, user fees, or PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 loan programs. The FHWA and FTA anticipate that the economic impact of this rulemaking will be minimal; therefore, a full regulatory evaluation is not necessary. The changes proposed herein would add new analysis, coordination, and documentation requirements (e.g., performance-based planning and programming; cooperation with local officials responsible for transportation or, if applicable, RTPOs; and new requirements for TMA MPO policy board membership). In preparing this final rule, FHWA and FTA have sought to maintain existing flexibility of operation wherever possible for States, MPOs, and other affected organizations, and to use existing processes to accomplish any new tasks or activities. The FHWA and FTA have conducted a cost analysis identifying each of the regulatory changes that would have a cost impact for States, MPOs, or operators of public transportation, and have estimated those costs on an annual basis. This cost analysis is included as a separate document titled ‘‘Regulatory Cost Analysis of Final Rule,’’ and is available for review in the docket. Regulatory Cost Assessment and Burden Analysis Response to Comments The regulatory analysis estimates the economic impact, in terms of costs and benefits, on States, MPOs, and operators of public transportation regulated under this action. The FHWA and FTA estimated the cost burden of this rule to be 2.6 percent of the total planning program. The FHWA and FTA concluded that the economic impact of this rulemaking would be minimal and the benefits of implementing this rulemaking would outweigh the costs. Sixteen respondents (AASHTO, ARC, AR DOT, CALTRANS, County of Maui DOT, CT DOT, DVRPC, Florida MPO Advisory Council, MD DOT, NJ DOT, North Florida MPO, NYMTC, PA DOT, River to Sea TPO, VA DOT, and WA State DOT) submitted comments to the docket regarding the regulatory burden associated with complying with the proposed rule described in ‘‘Economic Assessment: Statewide and Nonmetropolitan Transportation Planning and Metropolitan Transportation Planning Notice of Proposed Rule Making’’ (Docket No. FHWA–2013–0037). Ten commenters (AASHTO, CT DOT, DVRPC, Florida MPO Advisory Council, MD DOT, NJ DOT, North Florida TPO, River to Sea TPO, VA DOT, and WA State DOT) indicated that the estimated annual burden of $30.8 million documented in the NPRM underestimated the annual costs in terms of both funds and hours. They E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations commented that complying with the changes proposed in the NPRM and the introduction of performance-based planning and programming will significantly increase the workloads for States and MPOs. The NJ DOT expressed concern that the estimated 2.6 percent of total planning program funds to carry out the requirements of this NPRM is too low, especially in the short-term implementation phase. The NJ DOT commented that the FHWA and FTA assumption that the additional work will increase the annual cost of preparing a long-range transportation plan, STIP, and TIP by States, MPOs, and operators of public transportation by 15 percent, on average, seems low. The NJ DOT commented that implementation of MAP–21 performance-based planning and programming will require more effort than the additional 2,400 annual burden hours and indicated a large amount of up front work is needed to collect, format, store, and analyze data. States also need to consult, coordinate, and cooperate with many entities when conducting the STIP and statewide planning and provide oversight of MPOs. The ARC and WA State DOT asked that FHWA and FTA explain the assumptions behind these costs and assumed benefits. In response, FHWA and FTA estimated that the incremental cost of implementing the performance-based planning provisions of the final rule will increase the costs of preparing State and MPO long-range plans, STIPs, and TIPs by an average of 15 percent. This estimate is based on an analysis of current costs of States and MPOs that have implemented a performance-based approach to transportation planning and programming. Based on discussions with three States and three MPOs, FHWA and FTA believe that this assumption is reasonable. Based on this assumption, the total cost for implementation of changes to the planning process resulting from this final rule is estimated to be $30.9 million annually (as compared to the estimate of $30.8 million in the NPRM). To implement the proposed changes in support of a more efficient, performance-based planning process, FHWA and FTA estimate that the aggregate increase in costs attributable to the final rule for all 50 States, the District of Columbia, and Puerto Rico and 409 MPOs is approximately $28.4 million per year (as compared to the estimate of $28.3 million in the NPRM). These costs are primarily attributable to an increase in staff time needed to meet the new requirements. For the estimated VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 600 operators of public transportation that operate within MPAs, the cost would be $2.5 million per year to coordinate with MPOs in their selection of performance targets for transit state of good repair and transit safety. Four commenters (AASHTO, CT DOT, MD DOT, and NJ DOT) requested that FHWA and FTA conduct an analysis to estimate the costs to specific States and MPOs based on local wage rates. The NJ DOT noted that there are wide variations in labor wage rates and overhead rates among States and MPOs. The NJ DOT also noted that some States have a large network of roadways and transit services which will require greater resources to carry out this effort, as will those States that are responsible for the entire roadway network within their State. In response, FHWA and FTA note that they do not have the information necessary to calculate the incremental cost of the rule by State and MPO as it does not know the current costs of preparing each State and MPO longrange plan, STIP, and TIP. The estimate of 15 percent could be applied by each State or MPO to estimate their respective incremental costs. The FHWA and FTA agree that the estimate is an average and the incremental costs to specific States and MPOs may differ as they vary considerably across agencies, depending on staff resources and priorities, and local political environment. The WA State DOT questioned the assumption that the average State’s cost is similar to the cost to a large MPO. The WA State DOT suggested that FHWA and FTA re-evaluate these costs because the average State incurs more costs than a large MPO for these reasons: (1) The State is required to consult, coordinate, and cooperate with many more entities/ individuals than any single MPO would be required; (2) the State has the responsibility for the STIP, MPOs do not; and (3) the State has two roles, statewide planning and providing oversight to MPOs. In response, FHWA and FTA believe the scope and complexity of the responsibilities of the 54 MPOs that serve an urbanized area with a population greater than 1 million is comparable to the scope and complexity of the responsibilities of a State DOT.32 The FHWA and FTA agree that the estimate is an average and that the incremental costs to specific States and MPOs may differ. The County of Maui, HI questioned why FHWA and FTA estimated that the 32 Forty-three of the fifty States have a population greater than 1 million people. PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 34127 incremental cost of implementing the performance-based planning provisions would increase the costs of preparing State and MPO long-range plans, STIPs, and TIPs by an average of 15 percent based only on discussions with three States and three MPOs. The FHWA and FTA respond that there is limited experience in implementing a performance-based approach to planning and programming and invited States and MPOs to submit comments on this assumption in the NPRM. While three respondents (AASHTO, CT DOT, and NJ DOT) did indicate that the estimate of a 15 percent increase in the cost of preparing State and MPO longrange plans, STIPs, and TIPs was too low, none provided documentation to support a different assumption. The WA State DOT noted that it is difficult to provide informed comments on costs estimates because not all of the MAP–21 performance management related rules impacting costs are complete. In response, FHWA and FTA note that the estimates of the burden of the final rule focus on the incremental costs of preparing performance-based State and MPO long-range plans, STIPs, and TIPs. However, the burden of some data collection, target setting, and reporting is estimated in other rulemakings that implement the MAP– 21 performance management requirements. The FHWA will estimate the costs of additional data collection, target setting, and reporting through three separate rulemakings for performance measures and other associated requirements (National Performance Management Measures: Highway Safety Improvement Program Final Rule (RIN 2125–AF49), National Performance Management Measures: Assessing Pavement Condition for the National Highway Performance Program and Bridge Condition for the National Highway Performance Program NPRM (RIN 2125– AF53), and National Performance Management Measures: Assessing Performance of the National Highway System, Freight Movement on the Interstate, and the Congestion Mitigation and Air Quality Improvement Program NPRM (RIN 2125–AF52)). To estimate costs for these rules, FHWA assessed the level of effort, expressed in labor hours and the labor categories needed to comply with each component of the rule. The FHWA derived the costs of each of these components by assessing the expected increase in level of labor effort to standardize and update data collection and reporting systems of States, and the increase in level of labor effort for States E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34128 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations and MPOs to establish and report targets. The incremental annualized costs, discounted at 7 percent and 3 percent, respectively, are: $7.7 million to $7.1 million to implement the HSIP; $21.2 million to $20.3 million to implement the NHPP; and $18.9 million to $18.6 million to assess the performance of the NHS, Freight Movement on the Interstate System, and CMAQ Improvement Program. Similarly, FTA estimated the burden of data collection, plan preparation, target setting, and reporting through two separate rulemakings: National Transit Asset Management System NPRM (RIN: 2132–AB07) and the Public Transportation Agency Safety Plan NPRM (RIN: 2132–AB23). The estimated costs of the proposed National Transit Asset Management (TAM) System include the cost for the operators of public transportation to assess their assets, develop TAM plans, and report certain information to FTA. The incremental annualized costs, discounted at 7 percent and 3 percent, respectively, are $7.7 million to $7.1 million to implement the National TAM System. To implement the Public Transportation Agency Safety Plan rule, three main cost areas were estimated: (1) Developing and certifying safety plans; (2) implementing and documenting the SMS approach; and (3) associated record keeping. Staff time was monetized using data on wage rates and benefits in the transit industry. Over the 20-year analysis period, total costs are estimated at $976 million in present value (7 percent discount rate), or the equivalent of $92 million per year. Thus, the total estimated burden of implementing performance-based planning and programming, including the costs estimated in this and other related rulemakings that implement the MAP–21 performance management requirements, ranges from $175 million to $177 million per year. This cost estimate represents 3.6 million labor hours annually at $48.69 per hour. The WA State DOT anticipates incurring additional costs to provide assistance to rural transit agencies to develop public transportation agency safety plans. The WA State DOT noted that it is unclear if these additional costs are captured in the FHWA and FTA analysis. In response, FHWA and FTA note that those costs are discussed in the Public Transportation Agency Safety Plan NPRM and not within the scope of this rulemaking. The WA State DOT also noted the uncertainties regarding the expectations for performance reports. There is no required and consistent format and no VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 common method to collect, store, report, and update data. The FHWA and FTA note that each of the performance rules will identify their respective reporting format and the anticipated costs of reporting. The FHWA and FTA agree that the final rule will increase the level of effort and costs associated with carrying out several specific transportation planning functions, including the development of metropolitan and long-range statewide transportation plans, STIPs, and TIPs. The FHWA and FTA agree that the estimate is an average. The incremental costs to specific States and MPOs may differ. The costs associated with these functions vary considerably across agencies, depending on staff resources and priorities, local political environment, and other considerations. However, while the final rule changes existing processes and procedures, in most cases it does not require completely new activities. Given the experience of States and MPOs that have implemented a performance-based approach to planning, and that the costs of some data collection, data analysis, target setting, and reporting are included in other rulemakings implementing performance-based planning and programming, the FHWA and FTA will continue to assume that implementing the performance-based planning provisions of the final rule will increase the costs of preparing State and MPO long-range plans, STIPs, and TIPs by an average of 15 percent. The Macatawa Area Coordinating Council commented that the final rule appears to place additional data collection and reporting responsibilities on smaller MPOs without additional funding to collect this data. The Albany MPO stated that the final rule should seek to reduce the cost and labor burden of data collection, analysis, and any related activities wherever possible. The commenter stated that MPOs face very constrained funding, and the final rule (and any subsequent rules) should take this into account. In response, FHWA and FTA encourage States and MPOs to review and comment on the other rulemakings implementing the MAP–21’s performance management framework as they propose scalable approaches to lessen the burden on smaller MPOs and operators of public transportation. The AMPO pointed out that, in a 2010 report by FHWA, approximately 50 percent of MPOs reported that existing Federal resources were insufficient to complete the current 3–C planning and programming process. The ARC noted that, with regard to the fact that 80 percent of the costs are reimbursable PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 through existing Federal funding programs, those resources are already being fully utilized for other planning efforts directly related to the MPO mission. More than half of the respondents (AASHTO, AR DOT, CT DOT, DVRPC, Macatawa Area Coordinating Council, Maui DOT, MD DOT, NJ DOT, NYMTC, and PA DOT) who submitted comments on the Regulatory Cost Assessment and Burden Analysis requested that FHWA and FTA identify and/or provide additional funding to support new activities related to performance-based planning. Four commenters (AR DOT, Maui DOT, NYMTC, and WA State DOT) noted that Congress did not provide new or dedicated funding to help States, MPOs, and operators of public transportation cover the administrative burdens associated with performancebased planning as envisioned in the MAP–21. The AMPO stated that, without adequate resources to conduct the performance-based planning expected by Congress and anticipated in the final rule, MPOs may fall short of meeting the intended purpose of the MAP–21. The AMPO commentated that many MPOs are concerned that the final rule will result in an unfunded mandate if it does not provide the commensurate funding, time, and flexibility for MPOs to address its requirements. In response, FHWA and FTA note that it is Congress that appropriates funds to support the statewide, metropolitan, and nonmetropolitan transportation planning programs. Under MAP–21, Congress authorized and appropriated $995 million for distribution to the States and MPOs in FY 2013 and $1.007 billion for distribution in FY 2014. This represents an increase of 8 percent over SAFETEA–LU funding levels for these programs and supports an additional 20.6 million hours (assuming a salary rate of $48.69 per hour). The FHWA and FTA note that in the FAST Act, Congress authorized $1.240 billion for distribution to the States and MPOs in FY 2016. This represents a 24 percent increase over MAP–21 levels. The Florida MPO Advisory Council and the River to Sea TPO commented that not all States and MPOs shared equally in the increased MAP–21 funding. State departments of transportation and MPOs in 22 States received a less than 9 percent increase in metropolitan planning and State planning and research funds. The FHWA and FTA note that States and MPOs have the option to use other program funds that are available to support the development of the performance-based program plans, including data collection. The FTA E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations section 5307 urbanized area formula grants and section 5311 formula grants for rural areas can be used to support the development of transit asset management plans and transit agency safety plans. The FHWA NHPP, STP, and State Planning and Research and Planning funds can also be used to develop performance-based plans including data collection. The FHWA and the FTA also invited comments on the following: The FHWA and FTA assumed that implementing the performance-based planning provisions of the proposed rule will increase the costs of preparing State and MPO long-range plans, STIPs, and TIPs by an average of 15 percent. Based on telephone discussions with three States, and three MPOs, FHWA and FTA believe that this assumption is reasonable. The FHWA and FTA invite States and MPOs to submit comments on this assumption. While three respondents (AASHTO, CT DOT, and NJ DOT) indicated that the estimate of a 15 percent increase in the cost of preparing State and MPO longrange plans, STIPs, and TIPs was too low, none provided documentation to support a different assumption. The CT DOT stated that it believes the new costs are likely to be much higher and could increase costs as much as 50 percent in some of the larger regions and statewide. The NJ DOT wrote that the FHWA and FTA assumption that the additional work will increase the annual cost of preparing a long-range transportation plan, STIP, and TIP for States, MPOs, and operators of public transportation by 15 percent, on average, seems low. The potential costs and benefits that might be associated with the option for MPOs to use scenario planning during development of the metropolitan transportation plan. The North Front Range MPO, commented that preparing and obtaining public comment, and then running the scenarios takes considerable additional time and/or more staff. With only 4 years between plans for nonattainment areas, this adds another requirement into the packed schedule. In response, FHWA and FTA note that the use of scenario planning during the development of the MTP is an optional best practice. The potential costs and benefits that might be associated with the option for States and MPOs to develop a programmatic mitigation plan as part of the statewide or metropolitan transportation planning process. No comments were received in response to this request. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 The final rule will promote transparency by requiring the establishment of performance targets in key areas, such as safety, infrastructure condition, system reliability, emissions, and congestion and expressly linking investment decisions to the achievement of such targets. This would be documented in plans developed with public review. The final rule will promote accountability through mandating reports on progress toward meeting those targets. Beyond improved transparency and accountability, there are several other benefits of the final rule. Other elements of the rule may improve decisionmaking, such as representation by operators of public transportation on each MPO that serves a TMA, updating the metropolitan planning agreements, requiring States to have a higher level of involvement with nonmetropolitan local officials, and providing an optional process for the creation of RTPOs. The final rule will enhance the statewide and nonmetropolitan transportation planning process by requiring States to cooperate with nonmetropolitan local officials or RTPOs, if applicable, when conducting rural transportation planning. This gives local officials or RTPOs a stronger voice in the development of planning products and project selection. The option for MPOs to use scenario planning in the development of their MTPs provides a framework for improved decisionmaking through comparison of the performance tradeoffs of various locally determined scenarios for transportation investment. Although conducting scenario planning entails costs, savings from improved implementation could offset these costs. These benefits will improve the transportation planning process. The option for States and MPOs to develop a programmatic mitigation plan as part of the statewide and the metropolitan transportation planning processes provides a framework whereby States and MPOs may identify environmental resources early in the planning process. As a result, they could potentially minimize or avoid impacts to these resources. This has the potential to streamline project development and protect environmental resources, and may have benefits that outweigh the costs of performing the analysis. With respect to the NPRM on ‘‘Additional Authorities for Planning and Environmental Linkages’’ (Docket No. FHWA–2014–0031; FHWA RIN 2125–AF66; FTA RIN 2132–AB21), which proposed revisions to the statewide and nonmetropolitan and PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 34129 metropolitan transportation planning regulations related to the use of, and reliance on, planning products developed during the transportation planning process for project development and the environmental review process, it is anticipated that the economic impact of this rulemaking would be minimal. The changes that this rule proposed are intended to streamline environmental review. These provisions are optional and would not have a significant cost impact for States, MPOs, or operators of public transportation. If used, it is anticipated that these optional provisions could potentially result in cost savings for the States, MPOs, and operators of public transportation by minimizing the duplication of planning and environmental processes and improving project delivery timeframes. In summary, FHWA and FTA estimate the total cost of this final rule is $30.9 million. Of this total, the estimated costs for all 50 States, the District of Columbia, and Puerto Rico and an estimated 409 MPOs would be approximately $28.4 million per year. Eighty percent of these costs are directly reimbursable through Federal transportation funds allocated for metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 5303(h)) and for State planning and research (23 U.S.C. 505 and 49 U.S.C. 5313). The estimated cost to 600 operators of public transportation would be approximately $2.5 million per year. Eighty percent of these costs are directly reimbursable through Federal transportation funds allocated for urbanized area formula grants (4 U.S.C. 5307, 49 U.S.C. 5311). The FAST increased the mandatory set-aside in Federal funds for metropolitan transportation planning or Statewide Planning and Research funding. The States, MPOs, and operators of public transportation have the flexibility to use other categories of Federal highway funds for transportation planning, such as STP funds, if they so desire. Consequently, the increase in the non-Federal cost burden attributable to the final rule is estimated to be $6.2 million per year. Under FAST, in FY 2016, the total Federal, State, and local cost of the planning program is $1,488 million. As the cost burden of the final rule is estimated to be 2.1 percent of the total planning program, FHWA and FTA believe that the economic impact would be minimal and the benefits of implementation would outweigh the costs. The FHWA and FTA also conducted a break-even cost analysis as part of the regulatory cost analysis to determine at E:\FR\FM\27MYR3.SGM 27MYR3 34130 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 what point the benefits from the final rule exceed the annual costs of complying with it. The total annual FAST funding programmed through this process is $39.7 billion in FHWA funds and $11.7 billion in FTA funds in FY 2016. The annual average cost of the final rule is estimated to be $30.9 million per year. If return on investment increases by at least 0.060 percent of the combined FHWA and FTA annual funding programs, the benefits of the final rule exceed the costs. Information Collection—Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) prior to conducting or sponsoring a collection of information. The FHWA and FTA have determined that the final rule contains collections of information for the purposes of the PRA. The reporting requirements for metropolitan planning UPWP, transportation plans, and TIPs are currently approved under OMB control number 2132–0529. Separately, FHWA is updating the information reporting requirements for State planning and research work programs, which has been approved by the OMB under control number 2125–0039. These State planning and research work program are governed under a separate regulation at 23 CFR 420. The FHWA is updating 23 CFR 420 and will be issuing a separate NPRM soon. The FTA conducted the analysis supporting this approval on behalf of both FTA and FHWA because the regulations are jointly issued by both agencies. The reporting requirements for statewide transportation plans and programs are also approved under this same OMB control number. The estimates in this justification include the burden hours and costs developed for the RIA prepared as part of the final rule for the Metropolitan Transportation Planning Program and the Statewide and Nonmetropolitan Planning Program to implement provisions of the MAP–21. To develop the estimates for the RIA, FHWA and FTA first estimated the pre-MAP–21 costs for specific MPO planning functions on the basis of costs identified through a sample of MPO annual work programs. The FHWA and FTA sampled a total of 17 TMA and 12 non-TMA MPOs to calculate costs for States and MPOs. The FHWA and FTA then estimated the average annual burden hours of effort and cost to implement the MAP–21 changes to the MPO planning functions which include: A VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 transition to a performance-based (statewide and metropolitan) planning and programming process; cooperation by the State with local officials or RTPOs, if applicable, when conducting the statewide transportation planning process; and representation by operators of public transportation on MPOs that serve TMAs. The FHWA and FTA assumed that this additional work will increase the annual cost of preparing a long-range transportation plan, STIP, and TIP by the State, MPOs, and operators of public transportation by 15 percent, on average. The paragraphs below describe the burden analysis conducted by FHWA and FTA for the planning requirements in the final regulation, which include the changes introduced by MAP–21. Historically, FHWA and FTA have used a methodology not based on sampling to estimate the burden hours required of States and MPOs to meet the planning requirements. The historical methodology assumed very limited increase in the costs of developing the planning products. Burden Analysis for the Planning Requirements in the Final Rule The UPWP identifies transportation planning activities in metropolitan areas and supports requests for funding under both FHWA and FTA planning programs in metropolitan areas. A similar list of planning activities is prepared on a statewide level as the basis for FHWA and FTA State planning and research (SP&R) funding. The metropolitan plan and statewide plan reflect the long-range goals and objectives determined through the metropolitan and statewide transportation planning processes, respectively, and have a 20-year planning horizon. The STIP and TIP are short-range 4-year listings of highway and transit improvement projects which are consistent with the metropolitan and statewide plans and support the request for Federal transportation funding under 23 U.S.C. and chapter 53 of 49 U.S.C. The FTA and FHWA jointly carry out the Federal mandate to improve metropolitan and statewide transportation under the authority of 23 U.S.C. and chapter 53 of 49 U.S.C. Title 23 U.S.C. 104(f) and 49 U.S.C. 5305(g) authorize funds to support transportation planning at metropolitan and statewide levels. As a condition to receive this funding, requirements are established for metropolitan and statewide transportation planning under 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304. These sections call for development of transportation plans and TIPs in all States and metropolitan PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 areas. The information collection activities to prepare federally required plans and programs, and the planning studies proposed for funding in UPWPs and SP&R work programs, are necessary to monitor and evaluate current and projected usage and performance of transportation systems nationwide, statewide, and in each urbanized area. The MTP and TIP are required by 49 U.S.C. 5303 and 23 U.S.C. 134, which state that ‘‘metropolitan planning organizations, in cooperation with the State, shall develop transportation plans and programs for urbanized areas of the State.’’ Title 49 U.S.C. 5304 and 23 U.S.C. 135 require that each ‘‘State shall develop a long-range transportation plan and STIP for all areas of the State.’’ Both statutory sections require that ‘‘the process for developing such plans and programs shall provide for consideration of all modes of transportation and shall be continuing, cooperative, and comprehensive.’’ The States and MPOs use metropolitan and statewide plans, STIPs, and TIPs as the basis for investing Federal and nonFederal capital funds for transportation infrastructure investments. (Note: PRA requirements for preparation of the STIP are covered by OMB control number 2125–0039.) Title 23 CFR part 450 implements these statutory requirements. (Note: 23 CFR part 450 is identical to, and crossreferenced by, the equivalent regulation in 49 U.S.C. (49 CFR part 613).) The MPO, together with the State and operators of public transportation, prepares MTPs for each urbanized area. The State develops a long-range statewide transportation plan which, in metropolitan areas, is developed in cooperation with affected MPOs. These plans form the basis for development of STIPs and TIPs, the short-range programming documents for federally funded transportation capital investments. The UPWP is required by 23 CFR 450.308 for all MPOs in TMAs. The MPOs in urbanized areas with populations of less than 200,000, with prior approval by the State, FHWA, and FTA, may use a simplified statement of work as their planning grant application instead of developing a full UPWP. Details of the required planning processes supported by FHWA and FTA metropolitan planning funds, as required by 23 U.S.C. 134 and 49 U.S.C. 5303, are set forth in 23 CFR part 450. The planning grant application is based upon the UPWP and is the mechanism by which grantees request Federal funding. The information contained in the UPWP is necessary to establish the E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations eligibility of the activities for which funding is being requested. Preparation of UPWPs, project listing for SP&R funding, metropolitan and statewide plans, STIPs, and TIPs are essential components of decisionmaking by State and local officials for planning and programming Federal transportation funds to support the priority transportation investment needs of their areas. In addition to serving as the grant application by States for FHWA and FTA planning funds in metropolitan areas, UPWPs are used by FHWA and FTA to establish national out-year budgets and regional program plans; develop policy on using funds; monitor State and local consistency with national planning and technical emphasis areas; respond to congressional inquiries and prepare congressional testimony; and ensure efficiency in the use and expenditure of Federal funds by determining that planning proposals are reasonable, cost effective, and supportive of full compliance with all applicable Federal laws and regulations. Title 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304 require the development of plans and programs in entire States and all urbanized areas, respectively. After approval by the Governor and MPO, metropolitan TIPs in attainment areas are to be incorporated directly into the STIP. For nonattainment and maintenance areas, as required by the Clean Air Act Amendments of 1990, FHWA and FTA must make a conformity finding on these plans and TIPs before TIPs are incorporated into STIPs. The complete STIP is then jointly reviewed and approved by FHWA and FTA. With that action comes a joint determination or finding by FHWA and FTA that metropolitan and statewide planning processes are in compliance with all applicable Federal laws and regulations. These findings, conformity determinations, and approval actions constitute the determination that State and metropolitan area transportation planning processes are complying with Federal law and regulatory requirements as a condition of eligibility for receiving Federal-aid. Without the supporting documents, these findings and planning approvals cannot be made as the basis for making project level grant awards. Since a STIP and TIP is made up of various types of capital and non-capital surface transportation projects, from equipment acquisition to major highway VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 and transitway construction, it is essential that these projects be identified and described. Because the STIP/TIP is the basis for subsequent programming and obligation of both Federal-aid highway and FTA capital funds, there must be an indication of project cost and Federal funds required (estimated cost). The STIP and TIP is an integrated FHWA and FTA program. Because both agencies have several statutory sources of funds, each with different eligibility requirements, it is necessary to know what projects are proposed to be funded from which fund (source of Federal funds). Because the STIP and TIP is an integrated program of highway and transit improvements, many potential capital grant recipients have projects included in the document (identification of the recipient). For FTA funding, it is necessary that each individual project identify the likely capital grant applicant. The STIP and TIP requirement reduces the burden to potential capital grant applicants by imposing the programming requirements at one point and setting one response to these requirements. The SP&R program, UPWP, metropolitan and statewide plan, STIP, and TIP are adaptable to computer generation and revision. The FHWA and FTA have extensive technical assistance programs that encourage application of computer techniques. These programs reduce burdens by achieving time savings in technical analysis, report revisions, and clerical activities through automation. While the transit and highway funding programs for planning and project implementation are unique to FHWA and FTA, they cooperate to avoid duplication of effort. Most visible is the consolidation of statutory requirements for planning through the issuance of joint planning regulations. The States and MPOs prepare a single set of UPWPs, plans, STIPs, and TIPs to satisfy both FHWA and FTA requirements. The information contained in projects proposed for funding under the SP&R programs, UPWPs, metropolitan and State plans, STIPs, and TIPs are not contained in any other federally required document. However, where this information is already contained in State and local planning documents, FHWA and FTA can accept those documents provided that all their requirements are met, which further PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 34131 reduces duplication and unnecessary burden. The SP&R programs, statewide plans, UPWPs, metropolitan plans, STIPs, and TIPs have been submitted to FHWA and FTA for many years to support funding of the transportation planning and capital improvement programs for urbanized and nonurbanized areas. Continuing contact among FHWA division staff, FTA regional staff, States, MPOs, and grantees provides opportunity for grantees to seek changes. No major problems have developed regarding this requirement. The FHWA and the FTA have not received a petition to establish, amend, or repeal a regulation pursuant to 49 CFR 106.31. A 60-day Federal Register Notice on information collection was published on November 22, 2013 (78 FR 70094), soliciting comments prior to submission to OMB. The DOT received comments from the FL DOT and AASHTO. Both expressed concern that many respondents will exceed the 8,017 burden hours per respondent estimated in the Notice of Request for Revision of an Approved Information Collection. The DOT concurs that some States and MPOs may exceed the estimated 8,017 average burden hours to meet the metropolitan and statewide transportation planning requirements. This is because the burden hour estimate is based upon the average for all States and MPOs. A 30-day Federal Register notice was published on January 29, 2014 (79 FR 4808). Since that time, the estimates have been updated to include the current number of MPOs in urbanized and nonurbanized areas established as a result of the 2010 U.S. Census; a revised number of designated Clean Air Act attainment and non-attainment areas; a 3 percent increase in the labor rates; and the total burden hours and costs to meet the requirements of the final rule. On the basis of these changes, the estimated burden hours per respondent are 9,109 hours. The following table summarizes the estimated burden hours for the collection of information for the purposes of developing and completing UPWPs, metropolitan and statewide transportation plans, STIPs, and TIPs, as required by the final rule, and provides an explanation of the methodology used to calculate the number of hours required per submission. E:\FR\FM\27MYR3.SGM 27MYR3 34132 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations UNIFIED PLANNING WORK PROGRAMS (UPWPS)—FINAL RULE Total number of entities Urbanized area (UZA) population Burden annual submissions Total annual hours per submission Burden hours Under 200,000 ................................................................................................. Over 200,000 ................................................................................................... 208 201 208 201 200 300 41,600 60,300 Total .......................................................................................................... 409 409 ........................ 101,900 TRANSPORTATION IMPROVEMENT PROGRAMS (TIPS AND STIPS)—FINAL RULE Number of entities Entity Average annual submissions Burden hours per submission Total annual burden hours MPOs in Attainment Areas .............................................................................. MPOs in Nonattainment and Maintenance Areas ........................................... States ............................................................................................................... 276 133 52 69 33 13 6,026 22,230 20,548 415,779 739,164 267,042 Total .......................................................................................................... 461 115 ........................ 1,421,985 TRANSPORTATION PLANS—FINAL RULE Number of entities Entity Average annual submissions Burden hours per submission Total annual burden hours 276 133 52 69 33 13 10,886 48,861 34,608 600,884 1,624,612 449,898 Total .......................................................................................................... mstockstill on DSK3G9T082PROD with RULES3 MPOs in attainment areas ............................................................................... MPOs in Nonattainment or Maintenance Areas .............................................. States ............................................................................................................... 461 115 ........................ 2,675,394 The respondent’s cost is the cost of the State and MPO staff time required to compile and produce the UPWP. The UPWPs must be developed by identifying work activities over the next 1- or 2-year period. Given the complex nature of the planning requirements, we estimate that an average of 300 hours per respondent will be required by MPOs to prepare UPWPs in TMAs and 200 hours per respondent in non-TMAs. Note that although 23 CFR 450.308 allows MPOs in the 208 non-TMAs to prepare simplified statements of work, FHWA and FTA know of no MPOs that are developing such simplified statements. Using a staff salary of $32.59 per hour (based on annual staff salary of $67,732), total respondent cost is estimated at $3,320,921. Assuming a 54 percent overhead rate, the total annualized cost with overhead is estimated to be $5,114,218. The OMB has previously approved the burden on respondents to develop SP&R work programs under FHWA control number 2125–0039. Metropolitan TIPs are prepared by MPOs in cooperation with the State and operators of public transportation. The TIPs are required every 4 years. Plans in nonattainment and maintenance areas must be updated and submitted every 4 years and in attainment areas every 5 VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 years. Although the requirements for metropolitan TIPs and plans are complex, particularly in nonattainment and maintenance areas, current burden estimates have been generated from past experiences, informal discussion with FHWA and FTA field staff and respondents, and a comparison of recent trends in the allocation of resources by respondents to meet the requirements. We estimate that MPOs in attainment areas will spend approximately 6,026 person hours in the development of the TIP document. Furthermore, considering the more stringent requirements relating to the implementation of transportation control measures in nonattainment and maintenance areas, and the fact that most of these areas are in the Nation’s largest metropolitan areas with the most projects to program, we estimate that an average of 22,230 person hours per submission are required for these TIPs. The development by States of a STIP draws heavily on the work cooperatively done by States and MPOs in the preparation of metropolitan TIPs. This work burden has already been calculated in this section. However, to the extent that STIPs must reflect the programming of transportation projects in nonmetropolitan areas, there exists some marginal burden in the PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 development of the overall statewide program. We estimate that burden is 20,542 person hours for each STIP. Total respondent burden hours for the STIP/TIP development are estimated to be 1,421,985. Total respondent cost for STIP/TIP development without overhead is estimated to be $46,342,491. Total respondent cost for STIP/TIP development, assuming a 54 percent overhead rate, is estimated to be $71,367,436. The final rule requires that plans in nonattainment and maintenance areas are updated and submitted to FHWA and FTA every 4 years and that plans in attainment areas are updated every 5 years. We estimate that burden is 48,861 person hours for the preparation of the MTP in a nonattainment area. These plans are updated every 4 years. We estimate that burden is 10,886 person hours for the preparation of the MTP in an attainment area. These plans are updated every 5 years. The development by States of a longrange statewide transportation plan draws heavily on the work cooperatively done by States and MPOs in the preparation of metropolitan TIPs and plans. This work burden has already been calculated in this section. However, to the extent that statewide plans must reflect the planning of E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations transportation projects in nonmetropolitan areas, there exists some marginal burden in the development of the overall plan. We estimate that burden is 34,608 person hours for the preparation of the longrange statewide transportation plan. Assuming an average rate of $32.59 per hour, we estimate that the respondent cost for the metropolitan plan is $72,528,915 and $14,662,176 for the statewide plan. Total respondent cost for plan development, assuming a 54 percent overhead rate, is estimated to be $134,274,280. There are no capital or start-up costs associated directly with the collection of information required by the UPWPs, STIPs, TIPs, and plans. Any capital 34133 equipment used to provide this information in most cases would have been purchased to carry out general transportation and air quality planning activities. The total annual overhead (operation and maintenance costs) of providing the requested information is $73,991,049 as calculated in the table below: TOTAL ANNUAL BURDEN COSTS TO THE STATES AND MPOS Total costs with overhead (2015$) Task Total costs without overhead (2015$) UPWP .......................................................................................................................................................... TIP ............................................................................................................................................................... Metropolitan Plans ....................................................................................................................................... STIPs ........................................................................................................................................................... Statewide Plans ........................................................................................................................................... $5,114,218 57,964,972 111,694,529 13,402,464 22,579,751 $3,320,921 37,639,592 72,528,915 8,702,899 14,662,176 Total ...................................................................................................................................................... 210,755,934 136,858,503 TOTAL ANNUAL BURDEN HOURS TO THE STATES AND MPOS Task Total burden hours UPWP ................................... TIP ........................................ Metropolitan Plans ................ STIPs .................................... Statewide Plans .................... 101,900 1,154,943 2,225,496 267,042 449,898 Total .................................. 4,199,279 mstockstill on DSK3G9T082PROD with RULES3 Please note that each State also submits a statewide planning and research work program, which serves as the basis of the State’s application for Federal financial assistance for planning and research activities. The information collection requirements of the SP&R work program have been previously approved by OMB under FHWA control number 2125–0039. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (Pub. L. 96–354; 5 U.S.C. 601–612), FHWA and FTA have determined that States and MPOs are not included in the definition of a small entity, as set forth in 5 U.S.C. 601. Small governmental jurisdictions are limited to representations of populations of less than 50,000. The MPOs, by definition, represent urbanized areas having a minimum population of 50,000. Because the final rule is primarily intended for States and MPOs, FHWA and FTA have determined that the action would not have a significant economic impact on a substantial number of small entities. Therefore, we certify that the action would not have a significant economic impact on a substantial number of small entities. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Unfunded Mandates Reform Act of 1995 The final rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, March 22, 1995, 109 Stat. 48). The final rule would not result in the expenditure of non-Federal funds by State, tribal, and local governments, in the aggregate, or by the private sector, of $155 million in any one year (2 U.S.C. 1532). Eighty percent of the costs attributable to the final rule are directly reimbursable through Federal transportation funds allocated for metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 5303(h)) and for SP&R (23 U.S.C. 505 and 49 U.S.C. 5313). Additionally, the definition of the term ‘‘Federal mandate’’ in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, tribal, or local governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program and Federal Transit Act permit this type of flexibility to the States. Executive Order 13132 (Federalism) The FHWA and FTA have analyzed this action in accordance with the principles and criteria contained in EO 13132 and have determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA and FTA do not believe that this rulemaking will have substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 responsibilities among the various levels of government. The FHWA and FTA have also determined that this action would not preempt any State law or regulation or affect the States’ ability to discharge traditional State governmental functions. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Numbers 20.205, Highway Planning and Construction (or 20.217); 20.500, Federal Transit Capital Improvement Grants; 20.505, Federal Transit Technical Studies Grants; 20.507, Federal Transit Capital and Operating Assistance Formula Grants. The regulations implementing EO 12372 regarding intergovernmental consultation in Federal programs and activities apply to these programs and were carried out as part of the outreach on the federalism implications of this rulemaking. This EO applies because State and local governments would be directly affected by the final rule, which is a condition on Federal-aid highway funding. National Environmental Policy Act Federal agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: (1) Those that normally require preparation of an Environmental Impact Statement, (2) those that normally require preparation of an Environmental Assessment, and (3) those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This action qualifies for categorical exclusions under 23 CFR 771.117(c)(20) (promulgation of rules, regulations, and E:\FR\FM\27MYR3.SGM 27MYR3 34134 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations directives) and 771.117(c)(1) (activities that do not lead directly to construction) for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative activities which do not involve or lead directly to construction) for FTA. The FHWA and FTA have evaluated whether the action would involve unusual or extraordinary circumstances and have determined that this action would not. The final rule provides the policies and requirements for statewide and MTPs and transportation improvement programs. The rule follows closely the requirements in 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304. In addition, 23 U.S.C. 134(q), 135(k), and 168(f)(1) and 49 U.S.C. 5303(q) and 5304(j) establish that NEPA does not apply to decisions by the Secretary concerning a metropolitan or statewide transportation plan or transportation improvement programs under those sections. mstockstill on DSK3G9T082PROD with RULES3 Executive Order 11988 (Floodplain Management) The FHWA and FTA have evaluated this action under EO 11988 (Floodplain Management). The agencies have determined that this action does not have an adverse impact associated with the occupancy and modification of floodplains and does not provide direct or indirect support of floodplain development. The final rule provides the States and MPOs with the option of developing a programmatic mitigation plan as part of the transportation planning process. Floodplains could be one of the resources evaluated as part of these programmatic mitigation plans to help the States and MPOs avoid or minimize impacts to flood plains by future projects. The final rule also encourages early coordination by States and MPOs with Federal and State environmental resource agencies during the planning process in the interest of avoiding or minimizing impacts. When FHWA and FTA make a future funding or other approval decision on a project basis, they consider floodplain management. Executive Order 13653 (Climate Preparedness and Resilience) The FHWA and FTA have evaluated this action under EO 13653 (Climate Preparedness and Resilience). The FHWA and FTA have determined that the final rule provides an option for the States and MPOs to consider the effects of climate change and resilience in the context of the transportation planning process, such as during the development of statewide or MTPs. Scenario planning, which is discussed in the final rule, is another option where VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 MPOs could consider climate change and resilience as part of scenarios evaluated during the development of the MTP. The FHWA and FTA have determined that the final rule provides an option States and MPOs to assess climate change and resilience as part of the transportation planning process. Executive Order 12988 (Civil Justice Reform) The final rule meets applicable standards in sections 3(a) and 3(b)(2) of EO 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 13045 (Protection of Children) We have analyzed this action under EO 13045 (Protection of Children from Environmental Health Risks and Safety Risks). The final rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children. Executive Order 12630 (Taking of Private Property) The final rule would not effect a taking of private property or otherwise have taking implications under EO 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights). Executive Order 13175 (Tribal Consultation) The FHWA and FTA have analyzed this action under EO 13175. The FHWA and FTA believe that the final rule would not have substantial direct effects on one or more tribes; would not impose substantial direct compliance costs on tribal governments; and would not preempt tribal laws. The final rule contains requirements for States to consult with tribal governments in the planning process. Tribes are required under 25 CFR part 170 to develop longrange plans and a Tribal Transportation Program (TTP) for programming projects. However, the requirements in 25 CFR part 170 would not be changed by this final rule. Therefore, a tribal summary impact statement is not required. Executive Order 13211 (Energy Effects) The FHWA and FTA have analyzed this action under EO 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). The FHWA and FTA have determined that the final rule is not a significant energy action under that EO because, although it is a significant regulatory action under EO PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required. Executive Order 5610.2(a) (Environmental Justice) The EO 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) and DOT Order 5610.2(a) (77 FR 27534 (available online at https:// www.fhwa.dot.gov/environment/ environmental_justice/ej_at_dot/order_ 56102a/index.cfm)) require DOT agencies to achieve EJ as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority and low-income populations. The DOT agencies must address compliance with EO 12898 and the DOT Order in all rulemaking activities. The FHWA and FTA have issued additional documents relating to administration of EO 12898 and the DOT Order. On June 14, 2012, FHWA issued an update to its EJ order, FHWA Order 6640.23A (FHWA Actions to Address Environmental Justice in Minority Populations and Low Income Populations (available online at https:// www.fhwa.dot.gov/legsregs/directives/ orders/664023a.htm)). On August 15, 2012, FTA’s Circular 4703.1 became effective, which contains guidance for States and MPOs to incorporate EJ into their planning processes (available online at https://www.fta.dot.gov/ documents/FTA_EJ_Circular_7.14-12_ FINAL.pdf). The FHWA and FTA have evaluated the final rule under the EO, the DOT Order, the FHWA Order, and the FTA Circular. The EJ principles, in the context of planning, should be considered when the planning process is being implemented at the State and local level. As part of their stewardship and oversight of the federally aided transportation planning process of the States, MPOs and operators of public transportation, FHWA and FTA encourage these entities to incorporate EJ principles into the statewide and metropolitan planning processes and documents, as appropriate and consistent with the applicable Orders and the FTA Circular. When FHWA and FTA make a future funding or other approval decision on a project basis, they consider EJ. Nothing inherent in the final rule would disproportionately impact E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations minority or low-income populations. The final rule establishes procedures and other requirements to guide future State and local decisionmaking on programs and projects. Neither the final rule nor 23 U.S.C. 134 and 135 dictate the outcome of those decisions. The FHWA and FTA have determined that the final rule would not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations. Regulation Identification Number A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. List of Subjects 23 CFR Part 450 Grant programs—transportation, Highway and roads, Mass transportation, Reporting and record keeping requirements. 23 CFR Part 771 Environmental protection, Grant programs—transportation, Highways and roads, Historic preservation, Public lands, Recreation areas, Reporting and record keeping requirements. 49 CFR Part 613 Grant programs—transportation, Highways and roads, Mass transportation. Issued in Washington, DC, on May 13, 2016, under authority delegated in 49 CFR 1.85 and 1.91. Gregory G. Nadeau, Administrator, Federal Highway Administration. Carolyn Flowers, Acting Administrator, Federal Transit Administration. In consideration of the foregoing, FHWA and FTA amend title 23, Code of Federal Regulations, parts 450 and 771, and title 49, Code of Federal Regulations, part 613, as set forth below: mstockstill on DSK3G9T082PROD with RULES3 Title 23—Highways ■ 1. Revise Part 450 to read as follows: PART 450—PLANNING ASSISTANCE AND STANDARDS Subpart A—Transportation Planning and Programming Definitions Sec. 450.100 Purpose. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 450.102 450.104 Applicability. Definitions. Subpart B—Statewide and Nonmetropolitan Transportation Planning and Programming Sec. 450.200 Purpose. 450.202 Applicability. 450.204 Definitions. 450.206 Scope of the statewide and nonmetropolitan transportation planning process. 450.208 Coordination of planning process activities. 450.210 Interested parties, public involvement, and consultation. 450.212 Transportation planning studies and project development. 450.214 Development of programmatic mitigation plans. 450.216 Development and content of the long-range statewide transportation plan. 450.218 Development and content of the statewide transportation improvement program (STIP). 450.220 Self-certifications, Federal findings, and Federal approvals. 450.222 Project selection from the STIP. 450.224 Applicability of NEPA to statewide transportation plans and programs. 450.226 Phase-in of new requirements. Subpart C—Metropolitan Transportation Planning and Programming Sec. 450.300 Purpose. 450.302 Applicability. 450.304 Definitions. 450.306 Scope of the metropolitan transportation planning process. 450.308 Funding for transportation planning and unified planning work programs. 450.310 Metropolitan planning organization designation and redesignation. 450.312 Metropolitan planning area boundaries. 450.314 Metropolitan planning agreements. 450.316 Interested parties, participation, and consultation. 450.318 Transportation planning studies and project development. 450.320 Development of programmatic mitigation plans. 450.322 Congestion management process in transportation management areas. 450.324 Development and content of the metropolitan transportation plan. 450.326 Development and content of the transportation improvement program (TIP). 450.328 TIP revisions and relationship to the STIP. 450.330 TIP action by the FHWA and the FTA. 450.332 Project selection from the TIP. 450.334 Annual listing of obligated projects. 450.336 Self-certifications and Federal certifications. 450.338 Applicability of NEPA to metropolitan transportation plans and programs. 450.340 Phase-in of new requirements. Appendix A to Part 450—Linking the Transportation Planning and NEPA Processes PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 34135 Authority: 23 U.S.C. 134 and 135; 42 U.S.C. 7410 et seq.; 49 U.S.C. 5303 and 5304; 49 CFR 1.85 and 1.90. Subpart A—Transportation Planning and Programming Definitions § 450.100 Purpose. The purpose of this subpart is to provide definitions for terms used in this part. § 450.102 Applicability. The definitions in this subpart are applicable to this part, except as otherwise provided. § 450.104 Definitions. Unless otherwise specified, the definitions in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are applicable to this part. Administrative modification means a minor revision to a long-range statewide or metropolitan transportation plan, Transportation Improvement Program (TIP), or Statewide Transportation Improvement Program (STIP) that includes minor changes to project/ project phase costs, minor changes to funding sources of previously included projects, and minor changes to project/ project phase initiation dates. An administrative modification is a revision that does not require public review and comment, a redemonstration of fiscal constraint, or a conformity determination (in nonattainment and maintenance areas). Amendment means a revision to a long-range statewide or metropolitan transportation plan, TIP, or STIP that involves a major change to a project included in a metropolitan transportation plan, TIP, or STIP, including the addition or deletion of a project or a major change in project cost, project/project phase initiation dates, or a major change in design concept or design scope (e.g., changing project termini or the number of through traffic lanes or changing the number of stations in the case of fixed guideway transit projects). Changes to projects that are included only for illustrative purposes do not require an amendment. An amendment is a revision that requires public review and comment and a redemonstration of fiscal constraint. If an amendment involves ‘‘non-exempt’’ projects in nonattainment and maintenance areas, a conformity determination is required. Asset management means a strategic and systematic process of operating, maintaining, and improving physical assets, with a focus on both engineering and economic analysis based upon quality information, to identify a structured sequence of maintenance, preservation, repair, rehabilitation, and E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34136 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations replacement actions that will achieve and sustain a desired state of good repair over the lifecycle of the assets at minimum practicable cost. Attainment area means any geographic area in which levels of a given criteria air pollutant (e.g., ozone, carbon monoxide, PM10, PM2.5, and nitrogen dioxide) meet the health-based National Ambient Air Quality Standards (NAAQS) for that pollutant. An area may be an attainment area for one pollutant and a nonattainment area for others. A ‘‘maintenance area’’ (see definition in this section) is not considered an attainment area for transportation planning purposes. Available funds means funds derived from an existing source dedicated to or historically used for transportation purposes. For Federal funds, authorized and/or appropriated funds and the extrapolation of formula and discretionary funds at historic rates of increase are considered ‘‘available.’’ A similar approach may be used for State and local funds that are dedicated to or historically used for transportation purposes. Committed funds means funds that have been dedicated or obligated for transportation purposes. For State funds that are not dedicated to transportation purposes, only those funds over which the Governor has control may be considered ‘‘committed.’’ Approval of a TIP by the Governor is considered a commitment of those funds over which the Governor has control. For local or private sources of funds not dedicated to or historically used for transportation purposes (including donations of property), a commitment in writing (e.g., letter of intent) by the responsible official or body having control of the funds may be considered a commitment. For projects involving 49 U.S.C. 5309 funding, execution of a Full Funding Grant Agreement (or equivalent) or an Expedited Grant Agreement (or equivalent) with the DOT shall be considered a multiyear commitment of Federal funds. Conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement that ensures that Federal funding and approval are given to transportation plans, programs and projects that are consistent with the air quality goals established by a State Implementation Plan (SIP). Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any required interim emission reductions or other milestones in any nonattainment or maintenance area. The transportation conformity regulations (40 CFR part 93, VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 subpart A) sets forth policy, criteria, and procedures for demonstrating and assuring conformity of transportation activities. Conformity lapse means, pursuant to section 176(c) of the Clean Air Act (42 U.S.C. 7506(c)), as amended, that the conformity determination for a metropolitan transportation plan or TIP has expired and thus there is no currently conforming metropolitan transportation plan or TIP. Congestion Management Process means a systematic approach required in transportation management areas (TMAs) that provides for effective management and operation, based on a cooperatively developed and implemented metropolitan-wide strategy, of new and existing transportation facilities eligible for funding under title 23 U.S.C., and title 49 U.S.C., through the use of travel demand reduction and operational management strategies. Consideration means that one or more parties takes into account the opinions, action, and relevant information from other parties in making a decision or determining a course of action. Consultation means that one or more parties confer with other identified parties in accordance with an established process and, prior to taking action(s), considers the views of the other parties and periodically informs them about action(s) taken. This definition does not apply to the ‘‘consultation’’ performed by the States and the Metropolitan Planning Organizations (MPOs) in comparing the long-range statewide transportation plan and the metropolitan transportation plan, respectively, to State and tribal conservation plans or maps or inventories of natural or historic resources (see section 450.216(j) and sections 450.324(g)(1) and (g)(2)). Cooperation means that the parties involved in carrying out the transportation planning and programming processes work together to achieve a common goal or objective. Coordinated public transit-human services transportation plan means a locally developed, coordinated transportation plan that identifies the transportation needs of individuals with disabilities, older adults, and people with low incomes, provides strategies for meeting those local needs, and prioritizes transportation services for funding and implementation. Coordination means the cooperative development of plans, programs, and schedules among agencies and entities with legal standing and adjustment of such plans, programs, and schedules to PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 achieve general consistency, as appropriate. Design concept means the type of facility identified for a transportation improvement project (e.g., freeway, expressway, arterial highway, gradeseparated highway, toll road, reserved right-of-way rail transit, mixed-traffic rail transit, or busway). Design scope means the aspects that will affect the proposed facility’s impact on the region, usually as they relate to vehicle or person carrying capacity and control (e.g., number of lanes or tracks to be constructed or added, length of project, signalization, safety features, access control including approximate number and location of interchanges, or preferential treatment for highoccupancy vehicles). Designated recipient means an entity designated, in accordance with the planning process under 49 U.S.C. 5303 and 5304, by the Governor of a State, responsible local officials, and publicly owned operators of public transportation, to receive and apportion amounts under 49 U.S.C. 5336 that are attributable to urbanized areas of 200,000 or more in population, or a State or regional authority if the authority is responsible under the laws of a State for a capital project and for financing and directly providing public transportation. Environmental mitigation activities means strategies, policies, programs, and actions that, over time, will serve to avoid, minimize, rectify, reduce or eliminate impacts to environmental resources associated with the implementation of a long-range statewide transportation plan or metropolitan transportation plan. Expedited Grant Agreement (EGA) means a contract that defines the scope of a Small Starts project, the Federal financial contribution, and other terms and conditions, in accordance with 49 U.S.C. 5309(h)(7). Federal land management agency means units of the Federal Government currently responsible for the administration of public lands (e.g., U.S. Forest Service, U.S. Fish and Wildlife Service, Bureau of Land Management, and the National Park Service). Federally funded non-emergency transportation services means transportation services provided to the general public, including those with special transport needs, by public transit, private non-profit service providers, and private third-party contractors to public agencies. Financial plan means documentation required to be included with a metropolitan transportation plan and TIP (and optional for the long-range E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations statewide transportation plan and STIP) that demonstrates the consistency between reasonably available and projected sources of Federal, State, local, and private revenues and the costs of implementing proposed transportation system improvements. Financially constrained or Fiscal constraint means that the metropolitan transportation plan, TIP, and STIP includes sufficient financial information for demonstrating that projects in the metropolitan transportation plan, TIP, and STIP can be implemented using committed, available, or reasonably available revenue sources, with reasonable assurance that the federally supported transportation system is being adequately operated and maintained. For the TIP and the STIP, financial constraint/fiscal constraint applies to each program year. Additionally, projects in air quality nonattainment and maintenance areas can be included in the first 2 years of the TIP and STIP only if funds are ‘‘available’’ or ‘‘committed.’’ Freight shippers means any entity that routinely transport cargo from one location to another by providers of freight transportation services or by their own operations, involving one or more travel modes. Full Funding Grant Agreement (FFGA) means an instrument that defines the scope of a project, the Federal financial contribution, and other terms and conditions for funding New Starts projects as required by 49 U.S.C. 5309(k)(2). Governor means the Governor of any of the 50 States or the Commonwealth of Puerto Rico or the Mayor of the District of Columbia. Highway Safety Improvement Program (HSIP) means a State safety program with the purpose to reduce fatalities and serious injuries on all public roads through the implementation of the provisions of 23 U.S.C. 130, 148, and 150 including the development of a Strategic Highway Safety Plan (SHSP), Railway-Highway Crossings Program, and program of highway safety improvement projects. Illustrative project means an additional transportation project that may be included in a financial plan for a metropolitan transportation plan, TIP, or STIP if reasonable additional resources were to become available. Indian Tribal government means a duly formed governing body for an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe pursuant to the Federally Recognized VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Indian Tribe List Act of 1994, Public Law 103–454. Intelligent Transportation System (ITS) means electronics, photonics, communications, or information processing used singly or in combination to improve the efficiency or safety of a surface transportation system. Interim metropolitan transportation plan means a transportation plan composed of projects eligible to proceed under a conformity lapse and otherwise meeting all other applicable provisions of this part, including approval by the MPO. Interim Transportation Improvement Program (TIP) means a TIP composed of projects eligible to proceed under a conformity lapse and otherwise meeting all other applicable provisions of this part, including approval by the MPO and the Governor. Long-range statewide transportation plan means the official, statewide, multimodal, transportation plan covering a period of no less than 20 years developed through the statewide transportation planning process. Maintenance area means any geographic region of the United States that the Environmental Protection Agency (EPA) previously designated as a nonattainment area for one or more pollutants pursuant to the Clean Air Act Amendments of 1990, and subsequently redesignated as an attainment area subject to the requirement to develop a maintenance plan under section 175A of the Clean Air Act, as amended (42 U.S.C. 7505a). Management system means a systematic process, designed to assist decision makers in selecting cost effective strategies/actions to improve the efficiency or safety of, and protect the investment in the nation’s infrastructure. A management system can include: Identification of performance measures; data collection and analysis; determination of needs; evaluation and selection of appropriate strategies/actions to address the needs; and evaluation of the effectiveness of the implemented strategies/actions. Metropolitan Planning Agreement means a written agreement between the MPO, the State(s), and the providers of public transportation serving the metropolitan planning area that describes how they will work cooperatively to meet their mutual responsibilities in carrying out the metropolitan transportation planning process. Metropolitan Planning Area (MPA) means the geographic area determined by agreement between the MPO for the area and the Governor, in which the PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 34137 metropolitan transportation planning process is carried out. Metropolitan Planning Organization (MPO) means the policy board of an organization created and designated to carry out the metropolitan transportation planning process. Metropolitan Transportation Plan means the official multimodal transportation plan addressing no less than a 20-year planning horizon that the MPO develops, adopts, and updates through the metropolitan transportation planning process. National Ambient Air Quality Standard (NAAQS) means those standards established pursuant to section 109 of the Clean Air Act (42 U.S.C. 7409). Nonattainment area means any geographic region of the United States that EPA designates as a nonattainment area under section 107 of the Clean Air Act (42 U.S.C. 7407) for any pollutants for which an NAAQS exists. Nonmetropolitan area means a geographic area outside a designated metropolitan planning area. Nonmetropolitan local officials means elected and appointed officials of general purpose local government in a nonmetropolitan area with responsibility for transportation. Obligated projects means strategies and projects funded under title 23 U.S.C. and title 49 U.S.C. Chapter 53 for which the State or designated recipient authorized and committed the supporting Federal funds in preceding or current program years, and authorized by the FHWA or awarded as a grant by the FTA. Operational and management strategies means actions and strategies aimed at improving the performance of existing and planned transportation facilities to relieve congestion and maximize the safety and mobility of people and goods. Performance measure refers to ‘‘Measure’’ as defined in 23 CFR 490.101. Performance metric refers to ‘‘Metric’’ as defined in 23 CFR 490.101. Performance target refers to ‘‘Target’’ as defined in 23 CFR 490.101. Project selection means the procedures followed by MPOs, States, and public transportation operators to advance projects from the first 4 years of an approved TIP and/or STIP to implementation, in accordance with agreed upon procedures. Provider of freight transportation services means any entity that transports or otherwise facilitates the movement of cargo from one location to another for others or for itself. E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34138 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations Public transportation agency safety plan means a comprehensive plan established by a State or recipient of funds under Title 49, Chapter 53 and in accordance with 49 U.S.C. 5329(d). Public transportation operator means the public entity or governmentapproved authority that participates in the continuing, cooperative, and comprehensive transportation planning process in accordance with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, and is a recipient of Federal funds under title 49 U.S.C. Chapter 53 for transportation by a conveyance that provides regular and continuing general or special transportation to the public, but does not include sightseeing, school bus, charter, certain types of shuttle service, intercity bus transportation, or intercity passenger rail transportation provided by Amtrak. Regional ITS architecture means a regional framework for ensuring institutional agreement and technical integration for the implementation of ITS projects or groups of projects. Regionally significant project means a transportation project (other than projects that may be grouped in the TIP and/or STIP or exempt projects as defined in EPA’s transportation conformity regulations (40 CFR part 93, subpart A)) that is on a facility that serves regional transportation needs (such as access to and from the area outside the region; major activity centers in the region; major planned developments such as new retail malls, sports complexes, or employment centers; or transportation terminals) and would normally be included in the modeling of the metropolitan area’s transportation network. At a minimum, this includes all principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional highway travel. Regional Transportation Planning Organization (RTPO) means a policy board of nonmetropolitan local officials or their designees created to carry out the regional transportation planning process. Revision means a change to a longrange statewide or metropolitan transportation plan, TIP, or STIP that occurs between scheduled periodic updates. A major revision is an ‘‘amendment’’ while a minor revision is an ‘‘administrative modification.’’ Scenario planning means a planning process that evaluates the effects of alternative policies, plans and/or programs on the future of a community or region. This activity should provide information to decision makers as they develop the transportation plan. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 State means any one of the 50 States, the District of Columbia, or Puerto Rico. State Implementation Plan (SIP) means, as defined in section 302(q) of the Clean Air Act (CAA) (42 U.S.C. 7602(q)), the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under section 110 of the CAA (42 U.S.C. 7410), or promulgated under section 110(c) of the CAA (42 U.S.C. 7410(c)), or promulgated or approved pursuant to regulations promulgated under section 301(d) of the CAA (42 U.S.C. 7601(d)) and which implements the relevant requirements of the CAA. Statewide Transportation Improvement Program (STIP) means a statewide prioritized listing/program of transportation projects covering a period of 4 years that is consistent with the long-range statewide transportation plan, metropolitan transportation plans, and TIPs, and required for projects to be eligible for funding under title 23 U.S.C. and title 49 U.S.C. Chapter 53. Strategic Highway Safety Plan means a comprehensive, multiyear, data-driven plan, developed by a State DOT in accordance with the 23 U.S.C. 148. Transit Asset Management Plan means a plan that includes an inventory of capital assets, a condition assessment of inventoried assets, a decision support tool, and a prioritization of investments. Transit Asset Management System means a strategic and systematic process of operating, maintaining, and improving public transportation capital assets effectively, throughout the life cycles of those assets. Transportation Control Measure (TCM) means any measure that is specifically identified and committed to in the applicable SIP, including a substitute or additional TCM that is incorporated into the applicable SIP through the process established in CAA section 176(c)(8), that is either one of the types listed in section 108 of the CAA (42 U.S.C. 7408) or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the above, vehicle technology-based, fuel-based, and maintenance-based measures that control the emissions from vehicles under fixed traffic conditions are not TCMs. Transportation Improvement Program (TIP) means a prioritized listing/ program of transportation projects covering a period of 4 years that is developed and formally adopted by an MPO as part of the metropolitan transportation planning process, PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 consistent with the metropolitan transportation plan, and required for projects to be eligible for funding under title 23 U.S.C. and title 49 U.S.C. Chapter 53. Transportation Management Area (TMA) means an urbanized area with a population over 200,000, as defined by the Bureau of the Census and designated by the Secretary of Transportation, or any additional area where TMA designation is requested by the Governor and the MPO and designated by the Secretary of Transportation. Unified Planning Work Program (UPWP) means a statement of work identifying the planning priorities and activities to be carried out within a metropolitan planning area. At a minimum, a UPWP includes a description of the planning work and resulting products, who will perform the work, time frames for completing the work, the cost of the work, and the source(s) of funds. Update means making current a longrange statewide transportation plan, metropolitan transportation plan, TIP, or STIP through a comprehensive review. Updates require public review and comment, a 20-year horizon for metropolitan transportation plans and long-range statewide transportation plans, a 4-year program period for TIPs and STIPs, demonstration of fiscal constraint (except for long-range statewide transportation plans), and a conformity determination (for metropolitan transportation plans and TIPs in nonattainment and maintenance areas). Urbanized area (UZA) means a geographic area with a population of 50,000 or more, as designated by the Bureau of the Census. Users of public transportation means any person, or groups representing such persons, who use transportation open to the general public, other than taxis and other privately funded and operated vehicles. Visualization techniques means methods used by States and MPOs in the development of transportation plans and programs with the public, elected and appointed officials, and other stakeholders in a clear and easily accessible format such as GIS- or webbased surveys, inventories, maps, pictures, and/or displays identifying features such as roadway rights of way, transit, intermodal, and non-motorized transportation facilities, historic and cultural resources, natural resources, and environmentally sensitive areas, to promote improved understanding of existing or proposed transportation plans and programs. E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations Subpart B—Statewide and Nonmetropolitan Transportation Planning and Programming § 450.200 Purpose. The purpose of this subpart is to implement the provisions of 23 U.S.C. 135, 23 U.S.C. 150, and 49 U.S.C. 5304, as amended, which require each State to carry out a continuing, cooperative, and comprehensive performance-based statewide multimodal transportation planning process, including the development of a long-range statewide transportation plan and STIP, that facilitates the safe and efficient management, operation, and development of surface transportation systems that will serve the mobility needs of people and freight (including accessible pedestrian walkways, bicycle transportation facilities, and intermodal facilities that support intercity transportation, including intercity bus facilities and commuter van pool providers) and that fosters economic growth and development within and between States and urbanized areas, and take into consideration resiliency needs while minimizing transportation-related fuel consumption and air pollution in all areas of the State, including those areas subject to the metropolitan transportation planning requirements of 23 U.S.C. 134 and 49 U.S.C. 5303. § 450.202 Applicability. The provisions of this subpart are applicable to States and any other organizations or entities (e.g., MPOs, RTPOs and public transportation operators) that are responsible for satisfying the requirements for transportation plans and programs throughout the State pursuant to 23 U.S.C. 135 and 49 U.S.C. 5304. § 450.204 Definitions. Except as otherwise provided in subpart A of this part, terms defined in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are used in this subpart as so defined. mstockstill on DSK3G9T082PROD with RULES3 § 450.206 Scope of the statewide and nonmetropolitan transportation planning process. (a) Each State shall carry out a continuing, cooperative, and comprehensive statewide transportation planning process that provides for consideration and implementation of projects, strategies, and services that will address the following factors: (1) Support the economic vitality of the United States, the States, metropolitan areas, and nonmetropolitan areas, especially by enabling global competitiveness, productivity, and efficiency; VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 (2) Increase the safety of the transportation system for motorized and non-motorized users; (3) Increase the security of the transportation system for motorized and non-motorized users; (4) Increase accessibility and mobility of people and freight; (5) Protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency between transportation improvements and State and local planned growth and economic development patterns; (6) Enhance the integration and connectivity of the transportation system, across and between modes throughout the State, for people and freight; (7) Promote efficient system management and operation; (8) Emphasize the preservation of the existing transportation system; (9) Improve the resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and (10) Enhance travel and tourism. (b) Consideration of the planning factors in paragraph (a) of this section shall be reflected, as appropriate, in the statewide transportation planning process. The degree of consideration and analysis of the factors should be based on the scale and complexity of many issues, including transportation systems development, land use, employment, economic development, human and natural environment (including Section 4(f) properties as defined in 23 CFR 774.17), and housing and community development. (c) Performance-based approach. (1) The statewide transportation planning process shall provide for the establishment and use of a performancebased approach to transportation decisionmaking to support the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301. (2) Each State shall select and establish performance targets in coordination with the relevant MPOs to ensure consistency to the maximum extent practicable. The targets shall address the performance areas described in 23 U.S.C. 150(c), and the measures established under 23 CFR part 490, where applicable, to use in tracking progress toward attainment of critical outcomes for the State. States shall establish performance targets that reflect the measures identified in 23 U.S.C. 150(c) not later than 1 year after the effective date of the DOT final rule on performance measures. Each State shall select and establish targets under this PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 34139 paragraph in accordance with the appropriate target setting framework established at 23 CFR part 490. (3) In areas not represented by an MPO, the selection of public transportation performance targets by a State shall be coordinated, to the maximum extent practicable, with providers of public transportation to ensure consistency with the performance targets that public transportation providers establish under 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d). (4) A State shall integrate into the statewide transportation planning process, directly or by reference, the goals, objectives, performance measures, and targets described in this section, in other State transportation plans and transportation processes, as well as any plans developed pursuant to chapter 53 of title 49 by providers of public transportation in areas not represented by an MPO required as part of a performance-based program. Examples of such plans and processes include the HSIP, SHSP, the State Asset Management Plan for the National Highway System (NHS), the State Freight Plan (if the State has one), the Transit Asset Management Plan, and the Public Transportation Agency Safety Plan. (5) A State shall consider the performance measures and targets established under this paragraph when developing policies, programs, and investment priorities reflected in the long-range statewide transportation plan and statewide transportation improvement program. (d) The failure to consider any factor specified in paragraph (a) or (c) of this section shall not be subject to review by any court under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5 U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a longrange statewide transportation plan, STIP, project or strategy, or the statewide transportation planning process findings. (e) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are available to the State to accomplish activities described in this subpart. At the State’s option, funds provided under 23 U.S.C. 104(b)(2) and 49 U.S.C. 5307, 5310, and 5311 may also be used for statewide transportation planning. A State shall document statewide transportation planning activities performed with funds provided under title 23 U.S.C. and title 49 U.S.C. Chapter 53 in a statewide planning work program in accordance with the provisions of 23 CFR part 420. The work program should include a discussion of the E:\FR\FM\27MYR3.SGM 27MYR3 34140 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations transportation planning priorities facing the State. mstockstill on DSK3G9T082PROD with RULES3 § 450.208 Coordination of planning process activities. (a) In carrying out the statewide transportation planning process, each State shall, at a minimum: (1) Coordinate planning carried out under this subpart with the metropolitan transportation planning activities carried out under subpart C of this part for metropolitan areas of the State. The State is encouraged to rely on information, studies, or analyses provided by MPOs for portions of the transportation system located in metropolitan planning areas; (2) Coordinate planning carried out under this subpart with statewide trade and economic development planning activities and related multistate planning efforts; (3) Consider the concerns of Federal land management agencies that have jurisdiction over land within the boundaries of the State; (4) Cooperate with affected local elected and appointed officials with responsibilities for transportation, or, if applicable, through RTPOs described in section 450.210(d) in nonmetropolitan areas; (5) Consider the concerns of Indian Tribal governments that have jurisdiction over land within the boundaries of the State; (6) Consider related planning activities being conducted outside of metropolitan planning areas and between States; and (7) Coordinate data collection and analyses with MPOs and public transportation operators to support statewide transportation planning and programming priorities and decisions. (b) The State air quality agency shall coordinate with the State department of transportation (State DOT) to develop the transportation portion of the State Implementation Plan (SIP) consistent with the Clean Air Act (42 U.S.C. 7401 et seq.). (c) Two or more States may enter into agreements or compacts, not in conflict with any law of the United States, for cooperative efforts and mutual assistance in support of activities under this subpart related to interstate areas and localities in the States and establishing authorities the States consider desirable for making the agreements and compacts effective. The right to alter, amend, or repeal interstate compacts entered into under this part is expressly reserved. (d) States may use any one or more of the management systems (in whole or in part) described in 23 CFR part 500. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 (e) In carrying out the statewide transportation planning process, States should apply asset management principles and techniques consistent with the State Asset Management Plan for the NHS and the Transit Asset Management Plan, and Public Transportation Agency Safety Plan in establishing planning goals, defining STIP priorities, and assessing transportation investment decisions, including transportation system safety, operations, preservation, and maintenance. (f) For non-NHS highways, States may apply principles and techniques consistent with other asset management plans to the transportation planning and programming processes, as appropriate. (g) The statewide transportation planning process shall (to the maximum extent practicable) be consistent with the development of applicable regional intelligent transportation systems (ITS) architectures, as defined in 23 CFR part 940. (h) Preparation of the coordinated public transit-human services transportation plan, as required by 49 U.S.C. 5310, should be coordinated and consistent with the statewide transportation planning process. § 450.210 Interested parties, public involvement, and consultation. (a) In carrying out the statewide transportation planning process, including development of the longrange statewide transportation plan and the STIP, the State shall develop and use a documented public involvement process that provides opportunities for public review and comment at key decision points. (1) The State’s public involvement process at a minimum shall: (i) Establish early and continuous public involvement opportunities that provide timely information about transportation issues and decisionmaking processes to individuals, affected public agencies, representatives of public transportation employees, public ports, freight shippers, private providers of transportation (including intercity bus operators), representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, providers of freight transportation services, and other interested parties; (ii) Provide reasonable public access to technical and policy information used in the development of the longrange statewide transportation plan and the STIP; PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 (iii) Provide adequate public notice of public involvement activities and time for public review and comment at key decision points, including a reasonable opportunity to comment on the proposed long-range statewide transportation plan and STIP; (iv) To the maximum extent practicable, ensure that public meetings are held at convenient and accessible locations and times; (v) To the maximum extent practicable, use visualization techniques to describe the proposed long-range statewide transportation plan and supporting studies; (vi) To the maximum extent practicable, make public information available in electronically accessible format and means, such as the World Wide Web, as appropriate to afford reasonable opportunity for consideration of public information; (vii) Demonstrate explicit consideration and response to public input during the development of the long-range statewide transportation plan and STIP; (viii) Include a process for seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as lowincome and minority households, who may face challenges accessing employment and other services; and (ix) Provide for the periodic review of the effectiveness of the public involvement process to ensure that the process provides full and open access to all interested parties and revise the process, as appropriate. (2) The State shall provide for public comment on existing and proposed processes for public involvement in the development of the long-range statewide transportation plan and the STIP. At a minimum, the State shall allow 45 calendar days for public review and written comment before the procedures and any major revisions to existing procedures are adopted. The State shall provide copies of the approved public involvement process document(s) to the FHWA and the FTA for informational purposes. (3) With respect to the setting of targets, nothing in this part precludes a State from considering comments made as part of the State’s public involvement process. (b) The State shall provide for nonmetropolitan local official participation in the development of the long-range statewide transportation plan and the STIP. The State shall have a documented process(es) for cooperating with nonmetropolitan local officials representing units of general purpose local government and/or local officials E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations with responsibility for transportation that is separate and discrete from the public involvement process and provides an opportunity for their participation in the development of the long-range statewide transportation plan and the STIP. Although the FHWA and the FTA shall not review or approve this cooperative process(es), the State shall provide copies of the process document(s) to the FHWA and the FTA for informational purposes. (1) At least once every 5 years, the State shall review and solicit comments from nonmetropolitan local officials and other interested parties for a period of not less than 60 calendar days regarding the effectiveness of the cooperative process and any proposed changes. The State shall direct a specific request for comments to the State association of counties, State municipal league, regional planning agencies, or directly to nonmetropolitan local officials. (2) The State, at its discretion, is responsible for determining whether to adopt any proposed changes. If a proposed change is not adopted, the State shall make publicly available its reasons for not accepting the proposed change, including notification to nonmetropolitan local officials or their associations. (c) For each area of the State under the jurisdiction of an Indian Tribal government, the State shall develop the long-range statewide transportation plan and STIP in consultation with the Tribal government and the Secretary of the Interior. States shall, to the extent practicable, develop a documented process(es) that outlines roles, responsibilities, and key decision points for consulting with Indian Tribal governments and Department of the Interior in the development of the longrange statewide transportation plan and the STIP. (d) To carry out the transportation planning process required by this section, a Governor may establish and designate RTPOs to enhance the planning, coordination, and implementation of the long-range statewide transportation plan and STIP, with an emphasis on addressing the needs of nonmetropolitan areas of the State. In order to be treated as an RTPO for purposes of this Part, any existing regional planning organization must be established and designated as an RTPO under this section. (1) Where established, an RTPO shall be a multijurisdictional organization of nonmetropolitan local officials or their designees who volunteer for such organization and representatives of local transportation systems who volunteer for such organization. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 (2) An RTPO shall establish, at a minimum: (i) A policy committee, the majority of which shall consist of nonmetropolitan local officials, or their designees, and, as appropriate, additional representatives from the State, private business, transportation service providers, economic development practitioners, and the public in the region; and (ii) A fiscal and administrative agent, such as an existing regional planning and development organization, to provide professional planning, management, and administrative support. (3) The duties of an RTPO shall include: (i) Developing and maintaining, in cooperation with the State, regional long-range multimodal transportation plans; (ii) Developing a regional TIP for consideration by the State; (iii) Fostering the coordination of local planning, land use, and economic development plans with State, regional, and local transportation plans and programs; (iv) Providing technical assistance to local officials; (v) Participating in national, multistate, and State policy and planning development processes to ensure the regional and local input of nonmetropolitan areas; (vi) Providing a forum for public participation in the statewide and regional transportation planning processes; (vii) Considering and sharing plans and programs with neighboring RTPOs, MPOs, and, where appropriate, Indian Tribal Governments; and (viii) Conducting other duties, as necessary, to support and enhance the statewide planning process under § 450.206. (4) If a State chooses not to establish or designate an RTPO, the State shall consult with affected nonmetropolitan local officials to determine projects that may be of regional significance. § 450.212 Transportation planning studies and project development. (a) Pursuant to section 1308 of the Transportation Equity Act for the 21st Century, TEA–21 (Pub. L. 105–178), a State(s), MPO(s), or public transportation operator(s) may undertake a multimodal, systems-level corridor or subarea planning study as part of the statewide transportation planning process. To the extent practicable, development of these transportation planning studies shall involve consultation with, or joint efforts among, the State(s), MPO(s), and/ PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 34141 or public transportation operator(s). The results or decisions of these transportation planning studies may be used as part of the overall project development process consistent with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated implementing regulations (23 CFR part 771 and 40 CFR parts 1500–1508). Specifically, these corridor or subarea studies may result in producing any of the following for a proposed transportation project: (1) Purpose and need or goals and objective statement(s); (2) General travel corridor and/or general mode(s) definition (e.g., highway, transit, or a highway/transit combination); (3) Preliminary screening of alternatives and elimination of unreasonable alternatives; (4) Basic description of the environmental setting; and/or (5) Preliminary identification of environmental impacts and environmental mitigation. (b) Publicly available documents or other source material produced by, or in support of, the transportation planning process described in this subpart may be incorporated directly or by reference into subsequent NEPA documents, in accordance with 40 CFR 1502.21, if: (1) The NEPA lead agencies agree that such incorporation will aid in establishing or evaluating the purpose and need for the Federal action, reasonable alternatives, cumulative or other impacts on the human and natural environment, or mitigation of these impacts; and (2) The systems-level, corridor, or subarea planning study is conducted with: (i) Involvement of interested State, local, Tribal, and Federal agencies; (ii) Public review; (iii) Reasonable opportunity to comment during the statewide transportation planning process and development of the corridor or subarea planning study; (iv) Documentation of relevant decisions in a form that is identifiable and available for review during the NEPA scoping process and can be appended to or referenced in the NEPA document; and (v) The review of the FHWA and the FTA, as appropriate. (c) By agreement of the NEPA lead agencies, the above integration may be accomplished through tiering (as described in 40 CFR 1502.20), incorporating the subarea or corridor planning study into the draft Environmental Impact Statement or Environmental Assessment, or other E:\FR\FM\27MYR3.SGM 27MYR3 34142 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations means that the NEPA lead agencies deem appropriate. Additional information to further explain the linkages between the transportation planning and project development/ NEPA processes is contained in Appendix A to this part, including an explanation that is non-binding guidance material. The guidance in Appendix A applies only to paragraphs (a)–(c) in this section. (d) In addition to the process for incorporation directly or by reference outlined in paragraph (b) of this section, an additional authority for integrating planning products into the environmental review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 168(f): (1) The statutory authority in 23 U.S.C. 168 shall not be construed to limit in any way the continued use of processes established under other parts of this section or under an authority established outside this part, and the use of one of the processes in this section does not preclude the subsequent use of another process in this section or an authority outside of this part. (2) The statute does not restrict the initiation of the environmental review process during planning. mstockstill on DSK3G9T082PROD with RULES3 § 450.214 Development of programmatic mitigation plans. (a) A State may utilize the optional framework in this section to develop programmatic mitigation plans as part of the statewide transportation planning process to address the potential environmental impacts of future transportation projects. The State in consultation with FHWA and/or FTA and with the agency or agencies with jurisdiction and special expertise over the resources being addressed in the plan, will determine: (1) Scope. (i) A State may develop a programmatic mitigation plan on a local, regional, ecosystem, watershed, statewide or similar scale. (ii) The plan may encompass multiple environmental resources within a defined geographic area(s) or may focus on a specific type(s) of resource(s) such as aquatic resources, parkland, or wildlife habitat. (iii) The plan may address or consider impacts from all projects in a defined geographic area(s) or may focus on a specific type(s) of project(s). (2) Contents. The programmatic mitigation plan may include: (i) An assessment of the existing condition of natural and human environmental resources within the area covered by the plan, including an assessment of historic and recent trends VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 and/or any potential threats to those resources. (ii) An identification of economic, social, and natural and human environmental resources within the geographic area that may be impacted and considered for mitigation. Examples of these resources include wetlands, streams, rivers, stormwater, parklands, cultural resources, historic resources, farmlands, archeological resources, threatened or endangered species, and critical habitat. This may include the identification of areas of high conservation concern or value, and thus worthy of avoidance. (iii) An inventory of existing or planned environmental resource banks for the impacted resource categories such as wetland, stream, stormwater, habitat, species, and an inventory of federally, State, or locally approved inlieu-of-fee programs. (iv) An assessment of potential opportunities to improve the overall quality of the identified environmental resources through strategic mitigation for impacts of transportation projects, which may include the prioritization of parcels or areas for acquisition and/or potential resource banking sites. (v) An adoption or development of standard measures or operating procedures for mitigating certain types of impacts; establishment of parameters for determining or calculating appropriate mitigation for certain types of impacts, such as mitigation ratios, or criteria for determining appropriate mitigation sites. (vi) Adaptive management procedures, such as protocols or procedures that involve monitoring actual impacts against predicted impacts over time and adjusting mitigation measures in response to information gathered through the monitoring. (vii) Acknowledgment of specific statutory or regulatory requirements that must be satisfied when determining appropriate mitigation for certain types of resources. (b) A State may adopt a programmatic mitigation plan developed pursuant to paragraph (a), or developed pursuant to an alternative process as provided for in paragraph (f) of this section through the following process: (1) Consult with each agency with jurisdiction over the environmental resources considered in the programmatic mitigation plan; (2) Make available a draft of the programmatic mitigation plan for review and comment by appropriate environmental resource agencies and the public; PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 (3) Consider comments received from such agencies and the public on the draft plan; and (4) Address such comments in the final programmatic mitigation plan. (c) A State may integrate a programmatic mitigation plan with other plans, including, watershed plans, ecosystem plans, species recovery plans, growth management plans, State Wildlife Action Plans, and land use plans. (d) If a programmatic mitigation plan has been adopted pursuant to paragraph (b), any Federal agency responsible for environmental reviews, permits, or approvals for a transportation project shall give substantial weight to the recommendations in the programmatic mitigation plan when carrying out its responsibilities under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) or other Federal environmental law. (e) Nothing in this section limits the use of programmatic approaches for reviews under NEPA. (f) Nothing in this section prohibits the development, as part of or separate from the transportation planning process, of a programmatic mitigation plan independent of the framework described in paragraph (a) of this section. Further, nothing in this section prohibits the adoption of a programmatic mitigation plan in the statewide and nonmetropolitan transportation planning process that was developed under another authority, independent of the framework described in paragraph (a). § 450.216 Development and content of the long-range statewide transportation plan. (a) The State shall develop a longrange statewide transportation plan, with a minimum 20-year forecast period at the time of adoption, that provides for the development and implementation of the multimodal transportation system for the State. The long-range statewide transportation plan shall consider and include, as applicable, elements and connections between public transportation, non-motorized modes, rail, commercial motor vehicle, waterway, and aviation facilities, particularly with respect to intercity travel. (b) The long-range statewide transportation plan should include capital, operations and management strategies, investments, procedures, and other measures to ensure the preservation and most efficient use of the existing transportation system including consideration of the role that intercity buses may play in reducing congestion, pollution, and energy E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations consumption in a cost-effective manner and strategies and investments that preserve and enhance intercity bus systems, including systems that are privately owned and operated. The long-range statewide transportation plan may consider projects and strategies that address areas or corridors where current or projected congestion threatens the efficient functioning of key elements of the State’s transportation system. (c) The long-range statewide transportation plan shall reference, summarize, or contain any applicable short-range planning studies; strategic planning and/or policy studies; transportation needs studies; management systems reports; emergency relief and disaster preparedness plans; and any statements of policies, goals, and objectives on issues (e.g., transportation, safety, economic development, social and environmental effects, or energy), as appropriate, that were relevant to the development of the long-range statewide transportation plan. (d) The long-range statewide transportation plan should integrate the priorities, goals, countermeasures, strategies, or projects contained in the HSIP, including the SHSP, required under 23 U.S.C. 148, the Public Transportation Agency Safety Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with 49 CFR part 659, as in effect until completion of the Public Transportation Agency Safety Plan. (e) The long-range statewide transportation plan should include a security element that incorporates or summarizes the priorities, goals, or projects set forth in other transit safety and security planning and review processes, plans, and programs, as appropriate. (f) The statewide transportation plan shall include: (1) A description of the performance measures and performance targets used in assessing the performance of the transportation system in accordance with § 450.206(c); and (2) A system performance report and subsequent updates evaluating the condition and performance of the transportation system with respect to the performance targets described in § 450.206(c), including progress achieved by the MPO(s) in meeting the performance targets in comparison with system performance recorded in previous reports. (g) Within each metropolitan area of the State, the State shall develop the long-range statewide transportation plan in cooperation with the affected MPOs. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 (h) For nonmetropolitan areas, the State shall develop the long-range statewide transportation plan in cooperation with affected nonmetropolitan local officials with responsibility for transportation or, if applicable, through RTPOs described in § 450.210(d) using the State’s cooperative process(es) established under § 450.210(b). (i) For each area of the State under the jurisdiction of an Indian Tribal government, the State shall develop the long-range statewide transportation plan in consultation with the Tribal government and the Secretary of the Interior consistent with § 450.210(c). (j) The State shall develop the longrange statewide transportation plan, as appropriate, in consultation with State, Tribal, and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation. This consultation shall involve comparison of transportation plans to State and Tribal conservation plans or maps, if available, and comparison of transportation plans to inventories of natural or historic resources, if available. (k) A long-range statewide transportation plan shall include a discussion of potential environmental mitigation activities and potential areas to carry out these activities, including activities that may have the greatest potential to restore and maintain the environmental functions affected by the long-range statewide transportation plan. The discussion may focus on policies, programs, or strategies, rather than at the project level. The State shall develop the discussion in consultation with applicable Federal, State, regional, local and Tribal land management, wildlife, and regulatory agencies. The State may establish reasonable timeframes for performing this consultation. (l) In developing and updating the long-range statewide transportation plan, the State shall provide: (1) To nonmetropolitan local elected officials, or, if applicable, through RTPOs described in § 450.210(d), an opportunity to participate in accordance with § 450.216(h); and (2) To individuals, affected public agencies, representatives of public transportation employees, public ports, freight shippers, private providers of transportation (including intercity bus operators, employer-based cash-out program, shuttle program, or telework program), representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 34143 representatives of the disabled, providers of freight transportation services, and other interested parties with a reasonable opportunity to comment on the proposed long-range statewide transportation plan. In carrying out these requirements, the State shall use the public involvement process described under § 450.210(a). (m) The long-range statewide transportation plan may include a financial plan that demonstrates how the adopted long-range statewide transportation plan can be implemented, indicates resources from public and private sources that are reasonably expected to be made available to carry out the plan, and recommends any additional financing strategies for needed projects and programs. In addition, for illustrative purposes, the financial plan may include additional projects that the State would include in the adopted long-range statewide transportation plan if additional resources beyond those identified in the financial plan were to become available. The financial plan may include an assessment of the appropriateness of innovative finance techniques (for example, tolling, pricing, bonding, public-private partnerships, or other strategies) as revenue sources. (n) The State is not required to select any project from the illustrative list of additional projects included in the financial plan described in paragraph (m) of this section. (o) The State shall publish or otherwise make available the long-range statewide transportation plan for public review, including (to the maximum extent practicable) in electronically accessible formats and means, such as the World Wide Web, as described in § 450.210(a). (p) The State shall continually evaluate, revise, and periodically update the long-range statewide transportation plan, as appropriate, using the procedures in this section for development and establishment of the long-range statewide transportation plan. (q) The State shall provide copies of any new or amended long-range statewide transportation plan documents to the FHWA and the FTA for informational purposes. § 450.218 Development and content of the statewide transportation improvement program (STIP). (a) The State shall develop a statewide transportation improvement program (STIP) for all areas of the State. The STIP shall cover a period of no less than 4 years and shall be updated at least E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34144 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations every 4 years, or more frequently if the Governor of the State elects a more frequent update cycle. However, if the STIP covers more than 4 years, the FHWA and the FTA will consider the projects in the additional years as informational. In case of difficulties developing a portion of the STIP for a particular area (e.g., metropolitan planning area, nonattainment or maintenance area, or Indian Tribal lands), the State may develop a partial STIP covering the rest of the State. (b) For each metropolitan area in the State, the State shall develop the STIP in cooperation with the MPO designated for the metropolitan area. The State shall include each metropolitan TIP without change in the STIP, directly or by reference, after approval of the TIP by the MPO and the Governor. A metropolitan TIP in a nonattainment or maintenance area is subject to a FHWA/ FTA conformity finding before inclusion in the STIP. In areas outside a metropolitan planning area but within an air quality nonattainment or maintenance area containing any part of a metropolitan area, projects must be included in the regional emissions analysis that supported the conformity determination of the associated metropolitan TIP before they are added to the STIP. (c) For each nonmetropolitan area in the State, the State shall develop the STIP in cooperation with affected nonmetropolitan local officials with responsibility for transportation or, if applicable, through RTPOs described in § 450.210(d) using the State’s consultation process(es) established under § 450.210(b). (d) For each area of the State under the jurisdiction of an Indian Tribal government, the STIP shall be developed in consultation with the Tribal government and the Secretary of the Interior. (e) Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program TIPs shall be included without change in the STIP, directly or by reference, once approved by the FHWA pursuant to 23 U.S.C. 201(c)(4). (f) The Governor shall provide all interested parties with a reasonable opportunity to comment on the proposed STIP as required by § 450.210(a). (g) The STIP shall include capital and non-capital surface transportation projects (or phases of projects) within the boundaries of the State proposed for funding under title 23 U.S.C. and title 49 U.S.C. Chapter 53 (including transportation alternatives and associated transit improvements; Tribal VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 Transportation Program projects, Federal Lands Transportation Program projects, and Federal Lands Access Program projects; HSIP projects; trails projects; and accessible pedestrian walkways and bicycle facilities), except the following that may be included: (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102; (2) Metropolitan planning projects funded under 23 U.S.C. 104(d) and 49 U.S.C. 5305(d); (3) State planning and research projects funded under 23 U.S.C. 505 and 49 U.S.C. 5305(e); (4) State planning and research projects funded with Surface Transportation Program funds; (5) Emergency relief projects (except those involving substantial functional, locational, or capacity changes); (6) Research, development, demonstration, and deployment projects funded under 49 U.S.C. 5312, and technical assistance and standards development projects funded under 49 U.S.C. 5314; (7) Project management oversight projects funded under 49 U.S.C. 5327; and (8) State safety oversight programs funded under 49 U.S.C. 5329. (h) The STIP shall contain all regionally significant projects requiring an action by the FHWA or the FTA whether or not the projects are to be funded with 23 U.S.C. Chapters 1 and 2 or title 49 U.S.C. Chapter 53 funds (e.g., addition of an interchange to the Interstate System with State, local, and/ or private funds, and congressionally designated projects not funded under title 23 U.S.C. or title 49 U.S.C. Chapter 53). For informational and conformity purposes, the STIP shall include (if appropriate and included in any TIPs) all regionally significant projects proposed to be funded with Federal funds other than those administered by the FHWA or the FTA, as well as all regionally significant projects to be funded with non-Federal funds. (i) The STIP shall include for each project or phase (e.g., preliminary engineering, environment/NEPA, rightof-way, design, or construction) the following: (1) Sufficient descriptive material (i.e., type of work, termini, and length) to identify the project or phase; (2) Estimated total project cost or a project cost range, which may extend beyond the 4 years of the STIP; (3) The amount of Federal funds proposed to be obligated during each program year. For the first year, this includes the proposed category of Federal funds and source(s) of nonFederal funds. For the second, third, PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 and fourth years, this includes the likely category or possible categories of Federal funds and sources of nonFederal funds; and (4) Identification of the agencies responsible for carrying out the project or phase. (j) Projects that are not considered to be of appropriate scale for individual identification in a given program year may be grouped by function, work type, and/or geographic area using the applicable classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93. In nonattainment and maintenance areas, project classifications must be consistent with the ‘‘exempt project’’ classifications contained in the EPA’s transportation conformity regulations (40 CFR part 93, subpart A). In addition, projects proposed for funding under title 23 U.S.C. Chapter 2 that are not regionally significant may be grouped in one line item or identified individually in the STIP. (k) Each project or project phase included in the STIP shall be consistent with the long-range statewide transportation plan developed under § 450.216 and, in metropolitan planning areas, consistent with an approved metropolitan transportation plan developed under § 450.324. (l) The STIP may include a financial plan that demonstrates how the approved STIP can be implemented, indicates resources from public and private sources that are reasonably expected to be available to carry out the STIP, and recommends any additional financing strategies for needed projects and programs. In addition, for illustrative purposes, the financial plan may include additional projects that would be included in the adopted STIP if reasonable additional resources beyond those identified in the financial plan were to become available. The State is not required to select any project from the illustrative list for implementation, and projects on the illustrative list cannot be advanced to implementation without an action by the FHWA and the FTA on the STIP. Revenue and cost estimates for the STIP must use an inflation rate to reflect ‘‘year of expenditure dollars,’’ based on reasonable financial principles and information, developed cooperatively by the State, MPOs, and public transportation operators. (m) In nonattainment and maintenance areas, projects included in the first 2 years of the STIP shall be limited to those for which funds are available or committed. Financial constraint of the STIP shall be demonstrated and maintained by year and shall include sufficient financial E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations information to demonstrate which projects are to be implemented using current and/or reasonably available revenues, while federally supported facilities are being adequately operated and maintained. In the case of proposed funding sources, strategies for ensuring their availability shall be identified in the financial plan consistent with paragraph (l) of this section. For purposes of transportation operations and maintenance, the STIP shall include financial information containing system-level estimates of costs and revenue sources that are reasonably expected to be available to adequately operate and maintain Federal-aid highways (as defined by 23 U.S.C. 101(a)(5)) and public transportation (as defined by title 49 U.S.C. 5302). (n) Projects in any of the first 4 years of the STIP may be advanced in place of another project in the first 4 years of the STIP, subject to the project selection requirements of § 450.222. In addition, subject to FHWA/FTA approval (see § 450.220), the State may revise the STIP at any time under procedures agreed to by the State, MPO(s), and public transportation operators consistent with the STIP development procedures established in this section, as well as the procedures for participation by interested parties (see § 450.210(a)). Changes that affect fiscal constraint must take place by amendment of the STIP. (o) The STIP shall include a project, or an identified phase of a project, only if full funding can reasonably be anticipated to be available for the project within the time period contemplated for completion of the project. (p) In cases where the FHWA and the FTA find a STIP to be fiscally constrained, and a revenue source is subsequently removed or substantially reduced (i.e., by legislative or administrative actions), the FHWA and the FTA will not withdraw the original determination of fiscal constraint. However, in such cases, the FHWA and the FTA will not act on an updated or amended STIP that does not reflect the changed revenue situation. (q) A STIP shall include, to the maximum extent practicable, a discussion of the anticipated effect of the STIP toward achieving the performance targets identified by the State in the statewide transportation plan or other State performance-based plan(s), linking investment priorities to those performance targets. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 § 450.220 Self-certifications, Federal findings, and Federal approvals. (a) At least every 4 years, the State shall submit an updated STIP concurrently to the FHWA and the FTA for joint approval. The State must also submit STIP amendments to the FHWA and the FTA for joint approval. At the time the entire proposed STIP or STIP amendments are submitted to the FHWA and the FTA for joint approval, the State shall certify that the transportation planning process is being carried out in accordance with all applicable requirements of: (1) 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 5304, and this part; (2) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d-1) and 49 CFR part 21; (3) 49 U.S.C. 5332, prohibiting discrimination on the basis of race, color, creed, national origin, sex, or age in employment or business opportunity; (4) Section 1101(b) of the FAST Act (Pub. L. 114–357) and 49 CFR part 26 regarding the involvement of disadvantaged business enterprises in DOT funded projects; (5) 23 CFR part 230, regarding implementation of an equal employment opportunity program on Federal and Federal-aid highway construction contracts; (6) The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38; (7) In States containing nonattainment and maintenance areas, sections 174 and 176(c) and (d) of the Clean Air Act, as amended (42 U.S.C. 7504, 7506(c) and (d)) and 40 CFR part 93; (8) The Older Americans Act, as amended (42 U.S.C. 6101), prohibiting discrimination on the basis of age in programs or activities receiving Federal financial assistance; (9) 23 U.S.C. 324, regarding the prohibition of discrimination based on gender; and (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and 49 CFR part 27 regarding discrimination against individuals with disabilities. (b) The FHWA and the FTA shall review the STIP or the amended STIP, and make a joint finding on the extent to which the STIP is based on a statewide transportation planning process that meets or substantially meets the requirements of 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 5304, and subparts A, B, and C of this part. Approval of the STIP by the FHWA and the FTA, in its entirety or in part, will be based upon the results of this joint finding. PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 34145 (1) If the FHWA and the FTA determine that the STIP or amended STIP is based on a statewide transportation planning process that meets or substantially meets the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, and this part, the FHWA and the FTA may jointly: (i) Approve the entire STIP; (ii) Approve the STIP subject to certain corrective actions by the State; or (iii) Under special circumstances, approve a partial STIP covering only a portion of the State. (2) If the FHWA and the FTA jointly determine and document in the planning finding that a submitted STIP or amended STIP does not substantially meet the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, and this part for any identified categories of projects, the FHWA and the FTA will not approve the STIP. (c) The approval period for a new or amended STIP shall not exceed 4 years. If a State demonstrates, in writing, that extenuating circumstances will delay the submittal of a new or amended STIP past its update deadline, the FHWA and the FTA will consider and take appropriate action on a request to extend the approval beyond 4 years for all or part of the STIP for a period not to exceed 180 calendar days. In these cases, priority consideration will be given to projects and strategies involving the operation and management of the multimodal transportation system. Where the request involves projects in a metropolitan planning area(s), the affected MPO(s) must concur in the request. If the delay was due to the development and approval of a metropolitan TIP(s), the affected MPO(s) must provide supporting information, in writing, for the request. (d) Where necessary in order to maintain or establish highway and transit operations, the FHWA and the FTA may approve operating assistance for specific projects or programs, even though the projects or programs may not be included in an approved STIP. § 450.222 Project selection from the STIP. (a) Except as provided in § 450.218(g) and § 450.220(d), only projects in a FHWA/FTA approved STIP are eligible for funds administered by the FHWA or the FTA. (b) In metropolitan planning areas, transportation projects proposed for funds administered by the FHWA or the FTA shall be selected from the approved STIP in accordance with project selection procedures provided in § 450.332. E:\FR\FM\27MYR3.SGM 27MYR3 34146 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations (c) In nonmetropolitan areas, with the exclusion of specific projects as described in this section, the State shall select projects from the approved STIP in cooperation with the affected nonmetropolitan local officials, or if applicable, through RTPOs described in § 450.210(e). The State shall select transportation projects undertaken on the NHS, under the Bridge and Interstate Maintenance programs in title 23 U.S.C. and under sections 5310 and 5311 of title 49 U.S.C. Chapter 53 from the approved STIP in consultation with the affected nonmetropolitan local officials with responsibility for transportation. (d) Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program projects shall be selected from the approved STIP in accordance with the procedures developed pursuant to 23 U.S.C. 201, 202, 203, and 204. (e) The projects in the first year of an approved STIP shall constitute an ‘‘agreed to’’ list of projects for subsequent scheduling and implementation. No further action under paragraphs (b) through (d) of this section is required for the implementing agency to proceed with these projects. If Federal funds available are significantly less than the authorized amounts, or where there is significant shifting of projects among years, § 450.332(a) provides for a revised list of ‘‘agreed to’’ projects to be developed upon the request of the State, MPO, or public transportation operator(s). If an implementing agency wishes to proceed with a project in the second, third, or fourth year of the STIP, the procedures in paragraphs (b) through (d) of this section or expedited procedures that provide for the advancement of projects from the second, third, or fourth years of the STIP may be used, if agreed to by all parties involved in the selection process. mstockstill on DSK3G9T082PROD with RULES3 § 450.224 Applicability of NEPA to statewide transportation plans and programs. Any decision by the Secretary concerning a long-range statewide transportation plan or STIP developed through the processes provided for in 23 U.S.C. 135, 49 U.S.C. 5304, and this subpart shall not be considered to be a Federal action subject to review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). § 450.226 Phase-in of new requirements. (a) Prior to May 27, 2018, a State may adopt a long-range statewide transportation plan that has been developed using the SAFETEA–LU VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 requirements or the provisions and requirements of this part. On or after May 27, 2018, a State may only adopt a long-range statewide transportation plan that it has developed according to the provisions and requirements of this part. (b) Prior to May 27, 2018 (2 years after the publication date of this rule), FHWA/FTA may approve a STIP update or amendment that has been developed using the SAFETEA–LU requirements or the provisions and requirements of this part. On or after May 27, 2018, FHWA/ FTA may only approve a STIP update or amendment that a State has developed according to the provisions and requirements of this part, regardless of when the State developed the STIP. (c) On and after May 27, 2018 (2 years after the publication date of this rule), the FHWA and the FTA will take action on an updated or amended STIP developed under the provisions of this part, even if the State has not yet adopted a new long-range statewide transportation plan under the provisions of this part, as long as the underlying transportation planning process is consistent with the requirements in the MAP–21. (d) On or after May 27, 2018, a State may make an administrative modification to a STIP that conforms to either the SAFETEA–LU requirements or to the provisions and requirements of this part. (e) Two years from the effective date of each rule establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 U.S.C. 5329, FHWA/ FTA will only approve an updated or amended STIP that is based on a statewide transportation planning process that meets the performancebased planning requirements in this part and in such a rule. (f) Prior to 2 years from the effective date of each rule establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 U.S.C. 5329, a State may adopt a long-range statewide transportation plan that it has developed using the SAFETEA–LU requirements or the performance-based provisions and requirements of this part and in such a rule. Two years on or after the effective date of each rule establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 U.S.C. 5329, a State may only adopt a long-range statewide transportation plan that it has developed according to the performance-based provisions and requirements of this part and in such a rule. PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 Subpart C—Metropolitan Transportation Planning and Programming § 450.300 Purpose. The purposes of this subpart are to implement the provisions of 23 U.S.C. 134, 23 U.S.C. 150, and 49 U.S.C. 5303, as amended, which: (a) Set forth the national policy that the MPO designated for each urbanized area is to carry out a continuing, cooperative, and comprehensive performance-based multimodal transportation planning process, including the development of a metropolitan transportation plan and a TIP, that encourages and promotes the safe and efficient development, management, and operation of surface transportation systems to serve the mobility needs of people and freight (including accessible pedestrian walkways, bicycle transportation facilities, and intermodal facilities that support intercity transportation, including intercity buses and intercity bus facilities and commuter vanpool providers) fosters economic growth and development, and takes into consideration resiliency needs, while minimizing transportation-related fuel consumption and air pollution; and (b) Encourages continued development and improvement of metropolitan transportation planning processes guided by the planning factors set forth in 23 U.S.C. 134(h) and 49 U.S.C. 5303(h). § 450.302 Applicability. The provisions of this subpart are applicable to organizations and entities responsible for the transportation planning and programming processes in metropolitan planning areas. § 450.304 Definitions. Except as otherwise provided in subpart A of this part, terms defined in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are used in this subpart as so defined. § 450.306 Scope of the metropolitan transportation planning process. (a) To accomplish the objectives in § 450.300 and § 450.306(b), metropolitan planning organizations designated under § 450.310, in cooperation with the State and public transportation operators, shall develop long-range transportation plans and TIPs through a performance-driven, outcome-based approach to planning for metropolitan areas of the State. (b) The metropolitan transportation planning process shall be continuous, cooperative, and comprehensive, and provide for consideration and E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations implementation of projects, strategies, and services that will address the following factors: (1) Support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency; (2) Increase the safety of the transportation system for motorized and non-motorized users; (3) Increase the security of the transportation system for motorized and non-motorized users; (4) Increase accessibility and mobility of people and freight; (5) Protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency between transportation improvements and State and local planned growth and economic development patterns; (6) Enhance the integration and connectivity of the transportation system, across and between modes, for people and freight; (7) Promote efficient system management and operation; (8) Emphasize the preservation of the existing transportation system; (9) Improve the resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and (10) Enhance travel and tourism. (c) Consideration of the planning factors in paragraph (b) of this section shall be reflected, as appropriate, in the metropolitan transportation planning process. The degree of consideration and analysis of the factors should be based on the scale and complexity of many issues, including transportation system development, land use, employment, economic development, human and natural environment (including Section 4(f) properties as defined in 23 CFR 774.17), and housing and community development. (d) Performance-based approach. (1) The metropolitan transportation planning process shall provide for the establishment and use of a performancebased approach to transportation decisionmaking to support the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301(c). (2) Establishment of performance targets by metropolitan planning organizations. (i) Each metropolitan planning organization shall establish performance targets that address the performance measures or standards established under 23 CFR part 490 (where applicable), 49 U.S.C. 5326(c), and 49 U.S.C. 5329(d) to use in tracking progress toward attainment of critical VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 outcomes for the region of the metropolitan planning organization. (ii) The selection of targets that address performance measures described in 23 U.S.C. 150(c) shall be in accordance with the appropriate target setting framework established at 23 CFR part 490, and shall be coordinated with the relevant State(s) to ensure consistency, to the maximum extent practicable. (iii) The selection of performance targets that address performance measures described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) shall be coordinated, to the maximum extent practicable, with public transportation providers to ensure consistency with the performance targets that public transportation providers establish under 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d). (3) Each MPO shall establish the performance targets under paragraph (d)(2) of this section not later than 180 days after the date on which the relevant State or provider of public transportation establishes the performance targets. (4) An MPO shall integrate in the metropolitan transportation planning process, directly or by reference, the goals, objectives, performance measures, and targets described in other State transportation plans and transportation processes, as well as any plans developed under 49 U.S.C. chapter 53 by providers of public transportation, required as part of a performance-based program including: (i) The State asset management plan for the NHS, as defined in 23 U.S.C. 119(e) and the Transit Asset Management Plan, as discussed in 49 U.S.C. 5326; (ii) Applicable portions of the HSIP, including the SHSP, as specified in 23 U.S.C. 148; (iii) The Public Transportation Agency Safety Plan in 49 U.S.C. 5329(d); (iv) Other safety and security planning and review processes, plans, and programs, as appropriate; (v) The Congestion Mitigation and Air Quality Improvement Program performance plan in 23 U.S.C. 149(l), as applicable; (vi) Appropriate (metropolitan) portions of the State Freight Plan (MAP– 21 section 1118); (vii) The congestion management process, as defined in 23 CFR 450.322, if applicable; and (viii) Other State transportation plans and transportation processes required as part of a performance-based program. (e) The failure to consider any factor specified in paragraph (b) or (d) of this section shall not be reviewable by any PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 34147 court under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5, U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a metropolitan transportation plan, TIP, a project or strategy, or the certification of a metropolitan transportation planning process. (f) An MPO shall carry out the metropolitan transportation planning process in coordination with the statewide transportation planning process required by 23 U.S.C. 135 and 49 U.S.C. 5304. (g) The metropolitan transportation planning process shall (to the maximum extent practicable) be consistent with the development of applicable regional intelligent transportation systems (ITS) architectures, as defined in 23 CFR part 940. (h) Preparation of the coordinated public transit-human services transportation plan, as required by 49 U.S.C. 5310, should be coordinated and consistent with the metropolitan transportation planning process. (i) In an urbanized area not designated as a TMA that is an air quality attainment area, the MPO(s) may propose and submit to the FHWA and the FTA for approval a procedure for developing an abbreviated metropolitan transportation plan and TIP. In developing proposed simplified planning procedures, consideration shall be given to whether the abbreviated metropolitan transportation plan and TIP will achieve the purposes of 23 U.S.C. 134, 49 U.S.C. 5303, and this part, taking into account the complexity of the transportation problems in the area. The MPO shall develop simplified procedures in cooperation with the State(s) and public transportation operator(s). § 450.308 Funding for transportation planning and unified planning work programs. (a) Funds provided under 23 U.S.C. 104(d), 49 U.S.C. 5305(d), and 49 U.S.C. 5307, are available to MPOs to accomplish activities described in this subpart. At the State’s option, funds provided under 23 U.S.C. 104(b)(2) and 23 U.S.C. 505 may also be provided to MPOs for metropolitan transportation planning. At the option of the State and operators of public transportation, funds provided under 49 U.S.C. 5305(e) may also be provided to MPOs for activities that support metropolitan transportation planning. In addition, an MPO serving an urbanized area with a population over 200,000, as designated by the Bureau of the Census, may at its discretion use funds sub-allocated under 23 U.S.C. 133(d)(4) for E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34148 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations metropolitan transportation planning activities. (b) An MPO shall document metropolitan transportation planning activities performed with funds provided under title 23 U.S.C. and title 49 U.S.C. Chapter 53 in a unified planning work program (UPWP) or simplified statement of work in accordance with the provisions of this section and 23 CFR part 420. (c) Except as provided in paragraph (d) of this section, each MPO, in cooperation with the State(s) and public transportation operator(s), shall develop a UPWP that includes a discussion of the planning priorities facing the MPA. The UPWP shall identify work proposed for the next 1- or 2-year period by major activity and task (including activities that address the planning factors in § 450.306(b)), in sufficient detail to indicate who (e.g., MPO, State, public transportation operator, local government, or consultant) will perform the work, the schedule for completing the work, the resulting products, the proposed funding by activity/task, and a summary of the total amounts and sources of Federal and matching funds. (d) With the prior approval of the State and the FHWA and the FTA, an MPO in an area not designated as a TMA may prepare a simplified statement of work, in cooperation with the State(s) and the public transportation operator(s), in lieu of a UPWP. A simplified statement of work shall include a description of the major activities to be performed during the next 1- or 2-year period, who (e.g., State, MPO, public transportation operator, local government, or consultant) will perform the work, the resulting products, and a summary of the total amounts and sources of Federal and matching funds. If a simplified statement of work is used, it may be submitted as part of the State’s planning work program, in accordance with 23 CFR part 420. (e) Arrangements may be made with the FHWA and the FTA to combine the UPWP or simplified statement of work with the work program(s) for other Federal planning funds. (f) Administrative requirements for UPWPs and simplified statements of work are contained in 23 CFR part 420 and FTA Circular C8100, as amended (Program Guidance for Metropolitan Planning and State Planning and Research Program Grants). § 450.310 Metropolitan planning organization designation and redesignation. (a) To carry out the metropolitan transportation planning process under this subpart, an MPO shall be VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 designated for each urbanized area with a population of more than 50,000 individuals (as determined by the Bureau of the Census). (b) MPO designation shall be made by agreement between the Governor and units of general purpose local government that together represent at least 75 percent of the affected population (including the largest incorporated city, based on population, as named by the Bureau of the Census) or in accordance with procedures established by applicable State or local law. (c) The FHWA and the FTA shall identify as a TMA each urbanized area with a population of over 200,000 individuals, as defined by the Bureau of the Census. The FHWA and the FTA shall also designate any urbanized area as a TMA on the request of the Governor and the MPO designated for that area. (d) TMA structure: (1) Not later than October 1, 2014, each metropolitan planning organization that serves a designated TMA shall consist of: (i) Local elected officials; (ii) Officials of public agencies that administer or operate major modes of transportation in the metropolitan area, including representation by providers of public transportation; and (iii) Appropriate State officials. (2) An MPO may be restructured to meet the requirements of this paragraph (d) without undertaking a redesignation. (3) Representation. (i) Designation or selection of officials or representatives under paragraph (d)(1) of this section shall be determined by the MPO according to the bylaws or enabling statute of the organization. (ii) Subject to the bylaws or enabling statute of the MPO, a representative of a provider of public transportation may also serve as a representative of a local municipality. (iii) An official described in paragraph (d)(1)(ii) shall have responsibilities, actions, duties, voting rights, and any other authority commensurate with other officials described in paragraph (d)(1) of this section. (4) Nothing in this section shall be construed to interfere with the authority, under any State law in effect on December 18, 1991, of a public agency with multimodal transportation responsibilities— (i) To develop the plans and TIPs for adoption by an MPO; and (ii) To develop long-range capital plans, coordinate transit services and projects, and carry out other activities pursuant to State law. (e) To the extent possible, only one MPO shall be designated for each PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 urbanized area or group of contiguous urbanized areas. More than one MPO may be designated to serve an urbanized area only if the Governor(s) and the existing MPO, if applicable, determine that the size and complexity of the urbanized area make designation of more than one MPO appropriate. In those cases where two or more MPOs serve the same urbanized area, the MPOs shall establish official, written agreements that clearly identify areas of coordination and the division of transportation planning responsibilities among the MPOs. (f) Nothing in this subpart shall be deemed to prohibit an MPO from using the staff resources of other agencies, non-profit organizations, or contractors to carry out selected elements of the metropolitan transportation planning process. (g) An MPO designation shall remain in effect until an official redesignation has been made in accordance with this section. (h) An existing MPO may be redesignated only by agreement between the Governor and units of general purpose local government that together represent at least 75 percent of the existing metropolitan planning area population (including the largest incorporated city, based on population, as named by the Bureau of the Census). (i) For the purposes of redesignation, units of general purpose local government may be defined as elected officials from each unit of general purpose local government located within the metropolitan planning area served by the existing MPO. (j) Redesignation of an MPO (in accordance with the provisions of this section) is required whenever the existing MPO proposes to make: (1) A substantial change in the proportion of voting members on the existing MPO representing the largest incorporated city, other units of general purpose local government served by the MPO, and the State(s); or (2) A substantial change in the decisionmaking authority or responsibility of the MPO, or in decisionmaking procedures established under MPO by-laws. (k) Redesignation of an MPO serving a multistate metropolitan planning area requires agreement between the Governors of each State served by the existing MPO and units of general purpose local government that together represent at least 75 percent of the existing metropolitan planning area population (including the largest incorporated city, based on population, as named by the Bureau of the Census). E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations (l) The following changes to an MPO do not require a redesignation (as long as they do not trigger a substantial change as described in paragraph (j) of this section): (1) The identification of a new urbanized area (as determined by the Bureau of the Census) within an existing metropolitan planning area; (2) Adding members to the MPO that represent new units of general purpose local government resulting from expansion of the metropolitan planning area; (3) Adding members to satisfy the specific membership requirements described in paragraph (d) of this section for an MPO that serves a TMA; or (4) Periodic rotation of members representing units of general-purpose local government, as established under MPO by-laws. (m) Each Governor with responsibility for a portion of a multistate metropolitan area and the appropriate MPOs shall, to the extent practicable, provide coordinated transportation planning for the entire MPA. The consent of Congress is granted to any two or more States to: (1) Enter into agreements or compacts, not in conflict with any law of the United States, for cooperative efforts and mutual assistance in support of activities authorized under 23 U.S.C. 134 and 49 U.S.C. 5303 as the activities pertain to interstate areas and localities within the States; and (2) Establish such agencies, joint or otherwise, as the States may determine desirable for making the agreements and compacts effective. mstockstill on DSK3G9T082PROD with RULES3 § 450.312 Metropolitan planning area boundaries. (a) The boundaries of a metropolitan planning area (MPA) shall be determined by agreement between the MPO and the Governor. (1) At a minimum, the MPA boundaries shall encompass the entire existing urbanized area (as defined by the Bureau of the Census) plus the contiguous area expected to become urbanized within a 20-year forecast period for the metropolitan transportation plan. (2) The MPA boundaries may be further expanded to encompass the entire metropolitan statistical area or combined statistical area, as defined by the Office of Management and Budget. (b) An MPO that serves an urbanized area designated as a nonattainment area for ozone or carbon monoxide under the Clean Air Act (42 U.S.C. 7401 et seq.) as of August 10, 2005, shall retain the MPA boundary that existed on August VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 10, 2005. The MPA boundaries for such MPOs may only be adjusted by agreement of the Governor and the affected MPO in accordance with the redesignation procedures described in § 450.310(h). The MPA boundary for an MPO that serves an urbanized area designated as a nonattainment area for ozone or carbon monoxide under the Clean Air Act (42 U.S.C. 7401 et seq.) after August 10, 2005, may be established to coincide with the designated boundaries of the ozone and/ or carbon monoxide nonattainment area, in accordance with the requirements in § 450.310(b). (c) An MPA boundary may encompass more than one urbanized area. (d) MPA boundaries may be established to coincide with the geography of regional economic development and growth forecasting areas. (e) Identification of new urbanized areas within an existing metropolitan planning area by the Bureau of the Census shall not require redesignation of the existing MPO. (f) Where the boundaries of the urbanized area or MPA extend across two or more States, the Governors with responsibility for a portion of the multistate area, the appropriate MPO(s), and the public transportation operator(s) are strongly encouraged to coordinate transportation planning for the entire multistate area. (g) The MPA boundaries shall not overlap with each other. (h) Where part of an urbanized area served by one MPO extends into an adjacent MPA, the MPOs shall, at a minimum, establish written agreements that clearly identify areas of coordination and the division of transportation planning responsibilities among and between the MPOs. Alternatively, the MPOs may adjust their existing boundaries so that the entire urbanized area lies within only one MPA. Boundary adjustments that change the composition of the MPO may require redesignation of one or more such MPOs. (i) The MPO (in cooperation with the State and public transportation operator(s)) shall review the MPA boundaries after each Census to determine if existing MPA boundaries meet the minimum statutory requirements for new and updated urbanized area(s), and shall adjust them as necessary. As appropriate, additional adjustments should be made to reflect the most comprehensive boundary to foster an effective planning process that ensures connectivity between modes, improves access to modal systems, and PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 34149 promotes efficient overall transportation investment strategies. (j) Following MPA boundary approval by the MPO and the Governor, the MPA boundary descriptions shall be provided for informational purposes to the FHWA and the FTA. The MPA boundary descriptions shall be submitted either as a geo-spatial database or described in sufficient detail to enable the boundaries to be accurately delineated on a map. § 450.314 Metropolitan planning agreements. (a) The MPO, the State(s), and the providers of public transportation shall cooperatively determine their mutual responsibilities in carrying out the metropolitan transportation planning process. These responsibilities shall be clearly identified in written agreements among the MPO, the State(s), and the providers of public transportation serving the MPA. To the extent possible, a single agreement between all responsible parties should be developed. The written agreement(s) shall include specific provisions for the development of financial plans that support the metropolitan transportation plan (see § 450.324) and the metropolitan TIP (see § 450.326), and development of the annual listing of obligated projects (see § 450.334). (b) The MPO, the State(s), and the providers of public transportation should periodically review and update the agreement, as appropriate, to reflect effective changes. (c) If the MPA does not include the entire nonattainment or maintenance area, there shall be a written agreement among the State department of transportation, State air quality agency, affected local agencies, and the MPO describing the process for cooperative planning and analysis of all projects outside the MPA within the nonattainment or maintenance area. The agreement must also indicate how the total transportation-related emissions for the nonattainment or maintenance area, including areas outside the MPA, will be treated for the purposes of determining conformity in accordance with the EPA’s transportation conformity regulations (40 CFR part 93, subpart A). The agreement shall address policy mechanisms for resolving conflicts concerning transportationrelated emissions that may arise between the MPA and the portion of the nonattainment or maintenance area outside the MPA. (d) In nonattainment or maintenance areas, if the MPO is not the designated agency for air quality planning under section 174 of the Clean Air Act (42 E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34150 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations U.S.C. 7504), there shall be a written agreement between the MPO and the designated air quality planning agency describing their respective roles and responsibilities for air quality related transportation planning. (e) If more than one MPO has been designated to serve an urbanized area, there shall be a written agreement among the MPOs, the State(s), and the public transportation operator(s) describing how the metropolitan transportation planning processes will be coordinated to assure the development of consistent metropolitan transportation plans and TIPs across the MPA boundaries, particularly in cases in which a proposed transportation investment extends across the boundaries of more than one MPA. If any part of the urbanized area is a nonattainment or maintenance area, the agreement also shall include State and local air quality agencies. The metropolitan transportation planning processes for affected MPOs should, to the maximum extent possible, reflect coordinated data collection, analysis, and planning assumptions across the MPAs. Alternatively, a single metropolitan transportation plan and/or TIP for the entire urbanized area may be developed jointly by the MPOs in cooperation with their respective planning partners. Coordination efforts and outcomes shall be documented in subsequent transmittals of the UPWP and other planning products, including the metropolitan transportation plan and TIP, to the State(s), the FHWA, and the FTA. (f) Where the boundaries of the urbanized area or MPA extend across two or more States, the Governors with responsibility for a portion of the multistate area, the appropriate MPO(s), and the public transportation operator(s) shall coordinate transportation planning for the entire multistate area. States involved in such multistate transportation planning may: (1) Enter into agreements or compacts, not in conflict with any law of the United States, for cooperative efforts and mutual assistance in support of activities authorized under this section as the activities pertain to interstate areas and localities within the States; and (2) Establish such agencies, joint or otherwise, as the States may determine desirable for making the agreements and compacts effective. (g) If part of an urbanized area that has been designated as a TMA overlaps into an adjacent MPA serving an urbanized area that is not designated as a TMA, the adjacent urbanized area shall not be treated as a TMA. However, VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 a written agreement shall be established between the MPOs with MPA boundaries including a portion of the TMA, which clearly identifies the roles and responsibilities of each MPO in meeting specific TMA requirements (e.g., congestion management process, Surface Transportation Program funds suballocated to the urbanized area over 200,000 population, and project selection). (h)(1) The MPO(s), State(s), and the providers of public transportation shall jointly agree upon and develop specific written provisions for cooperatively developing and sharing information related to transportation performance data, the selection of performance targets, the reporting of performance targets, the reporting of performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (see § 450.306(d)), and the collection of data for the State asset management plan for the NHS for each of the following circumstances: (i) When one MPO serves an urbanized area, (ii) When more than one MPO serves an urbanized area, and (iii) When an urbanized area that has been designated as a TMA overlaps into an adjacent MPA serving an urbanized area that is not a TMA. (2) These provisions shall be documented either: (i) As part of the metropolitan planning agreements required under (a), (e), and (g) of this section, or (ii) Documented in some other means outside of the metropolitan planning agreements as determined cooperatively by the MPO(s), State(s), and providers of public transportation. § 450.316 Interested parties, participation, and consultation. (a) The MPO shall develop and use a documented participation plan that defines a process for providing individuals, affected public agencies, representatives of public transportation employees, public ports, freight shippers, providers of freight transportation services, private providers of transportation (including intercity bus operators, employer-based commuting programs, such as carpool program, vanpool program, transit benefit program, parking cash-out program, shuttle program, or telework program), representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, and other interested parties with reasonable opportunities to be involved in the PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 metropolitan transportation planning process. (1) The MPO shall develop the participation plan in consultation with all interested parties and shall, at a minimum, describe explicit procedures, strategies, and desired outcomes for: (i) Providing adequate public notice of public participation activities and time for public review and comment at key decision points, including a reasonable opportunity to comment on the proposed metropolitan transportation plan and the TIP; (ii) Providing timely notice and reasonable access to information about transportation issues and processes; (iii) Employing visualization techniques to describe metropolitan transportation plans and TIPs; (iv) Making public information (technical information and meeting notices) available in electronically accessible formats and means, such as the World Wide Web; (v) Holding any public meetings at convenient and accessible locations and times; (vi) Demonstrating explicit consideration and response to public input received during the development of the metropolitan transportation plan and the TIP; (vii) Seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services; (viii) Providing an additional opportunity for public comment, if the final metropolitan transportation plan or TIP differs significantly from the version that was made available for public comment by the MPO and raises new material issues that interested parties could not reasonably have foreseen from the public involvement efforts; (ix) Coordinating with the statewide transportation planning public involvement and consultation processes under subpart B of this part; and (x) Periodically reviewing the effectiveness of the procedures and strategies contained in the participation plan to ensure a full and open participation process. (2) When significant written and oral comments are received on the draft metropolitan transportation plan and TIP (including the financial plans) as a result of the participation process in this section or the interagency consultation process required under the EPA transportation conformity regulations (40 CFR part 93, subpart A), a summary, analysis, and report on the disposition of comments shall be made as part of E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations the final metropolitan transportation plan and TIP. (3) A minimum public comment period of 45 calendar days shall be provided before the initial or revised participation plan is adopted by the MPO. Copies of the approved participation plan shall be provided to the FHWA and the FTA for informational purposes and shall be posted on the World Wide Web, to the maximum extent practicable. (b) In developing metropolitan transportation plans and TIPs, the MPO should consult with agencies and officials responsible for other planning activities within the MPA that are affected by transportation (including State and local planned growth, economic development, tourism, natural disaster risk reduction, environmental protection, airport operations, or freight movements) or coordinate its planning process (to the maximum extent practicable) with such planning activities. In addition, the MPO shall develop the metropolitan transportation plans and TIPs with due consideration of other related planning activities within the metropolitan area, and the process shall provide for the design and delivery of transportation services within the area that are provided by: (1) Recipients of assistance under title 49 U.S.C. Chapter 53; (2) Governmental agencies and nonprofit organizations (including representatives of the agencies and organizations) that receive Federal assistance from a source other than the U.S. Department of Transportation to provide non-emergency transportation services; and (3) Recipients of assistance under 23 U.S.C. 201–204. (c) When the MPA includes Indian Tribal lands, the MPO shall appropriately involve the Indian Tribal government(s) in the development of the metropolitan transportation plan and the TIP. (d) When the MPA includes Federal public lands, the MPO shall appropriately involve the Federal land management agencies in the development of the metropolitan transportation plan and the TIP. (e) MPOs shall, to the extent practicable, develop a documented process(es) that outlines roles, responsibilities, and key decision points for consulting with other governments and agencies, as defined in paragraphs (b), (c), and (d) of this section, which may be included in the agreement(s) developed under § 450.314. VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 § 450.318 Transportation planning studies and project development. (a) Pursuant to section 1308 of the Transportation Equity Act for the 21st Century, TEA–21 (Pub. L. 105–178), an MPO(s), State(s), or public transportation operator(s) may undertake a multimodal, systems-level corridor or subarea planning study as part of the metropolitan transportation planning process. To the extent practicable, development of these transportation planning studies shall involve consultation with, or joint efforts among, the MPO(s), State(s), and/ or public transportation operator(s). The results or decisions of these transportation planning studies may be used as part of the overall project development process consistent with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated implementing regulations (23 CFR part 771 and 40 CFR parts 1500–1508). Specifically, these corridor or subarea studies may result in producing any of the following for a proposed transportation project: (1) Purpose and need or goals and objective statement(s); (2) General travel corridor and/or general mode(s) definition (e.g., highway, transit, or a highway/transit combination); (3) Preliminary screening of alternatives and elimination of unreasonable alternatives; (4) Basic description of the environmental setting; and/or (5) Preliminary identification of environmental impacts and environmental mitigation. (b) Publicly available documents or other source material produced by, or in support of, the transportation planning process described in this subpart may be incorporated directly or by reference into subsequent NEPA documents, in accordance with 40 CFR 1502.21, if: (1) The NEPA lead agencies agree that such incorporation will aid in establishing or evaluating the purpose and need for the Federal action, reasonable alternatives, cumulative or other impacts on the human and natural environment, or mitigation of these impacts; and (2) The systems-level, corridor, or subarea planning study is conducted with: (i) Involvement of interested State, local, Tribal, and Federal agencies; (ii) Public review; (iii) Reasonable opportunity to comment during the metropolitan transportation planning process and development of the corridor or subarea planning study; PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 34151 (iv) Documentation of relevant decisions in a form that is identifiable and available for review during the NEPA scoping process and can be appended to or referenced in the NEPA document; and (v) The review of the FHWA and the FTA, as appropriate. (c) By agreement of the NEPA lead agencies, the above integration may be accomplished through tiering (as described in 40 CFR 1502.20), incorporating the subarea or corridor planning study into the draft Environmental Impact Statement (EIS) or Environmental Assessment, or other means that the NEPA lead agencies deem appropriate. (d) Additional information to further explain the linkages between the transportation planning and project development/NEPA processes is contained in Appendix A to this part, including an explanation that it is nonbinding guidance material. The guidance in Appendix A applies only to paragraphs (a)–(c) in this section. (e) In addition to the process for incorporation directly or by reference outlined in paragraph (b) of this section, an additional authority for integrating planning products into the environmental review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 168(f): (1) The statutory authority in 23 U.S.C. 168 shall not be construed to limit in any way the continued use of processes established under other parts of this section or under an authority established outside of this part, and the use of one of the processes in this section does not preclude the subsequent use of another process in this section or an authority outside of this part. (2) The statute does not restrict the initiation of the environmental review process during planning. § 450.320 Development of programmatic mitigation plans. (a) An MPO may utilize the optional framework in this section to develop programmatic mitigation plans as part of the metropolitan transportation planning process to address the potential environmental impacts of future transportation projects. The MPO, in consultation with the FHWA and/or the FTA and with the agency or agencies with jurisdiction and special expertise over the resources being addressed in the plan, will determine: (1) Scope. (i) An MPO may develop a programmatic mitigation plan on a local, regional, ecosystem, watershed, statewide or similar scale. E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34152 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations (ii) The plan may encompass multiple environmental resources within a defined geographic area(s) or may focus on a specific type(s) of resource(s) such as aquatic resources, parkland, or wildlife habitat. (iii) The plan may address or consider impacts from all projects in a defined geographic area(s) or may focus on a specific type(s) of project(s). (2) Contents. The programmatic mitigation plan may include: (i) An assessment of the existing condition of natural and human environmental resources within the area covered by the plan, including an assessment of historic and recent trends and/or any potential threats to those resources. (ii) An identification of economic, social, and natural and human environmental resources within the geographic area that may be impacted and considered for mitigation. Examples of these resources include wetlands, streams, rivers, stormwater, parklands, cultural resources, historic resources, farmlands, archeological resources, threatened or endangered species, and critical habitat. This may include the identification of areas of high conservation concern or value and thus worthy of avoidance. (iii) An inventory of existing or planned environmental resource banks for the impacted resource categories such as wetland, stream, stormwater, habitat, species, and an inventory of federally, State, or locally approved inlieu-of-fee programs. (iv) An assessment of potential opportunities to improve the overall quality of the identified environmental resources through strategic mitigation for impacts of transportation projects which may include the prioritization of parcels or areas for acquisition and/or potential resource banking sites. (v) An adoption or development of standard measures or operating procedures for mitigating certain types of impacts; establishment of parameters for determining or calculating appropriate mitigation for certain types of impacts, such as mitigation ratios, or criteria for determining appropriate mitigation sites. (vi) Adaptive management procedures, such as protocols or procedures that involve monitoring actual impacts against predicted impacts over time and adjusting mitigation measures in response to information gathered through the monitoring. (vii) Acknowledgement of specific statutory or regulatory requirements that must be satisfied when determining VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 appropriate mitigation for certain types of resources. (b) A MPO may adopt a programmatic mitigation plan developed pursuant to paragraph (a), or developed pursuant to an alternative process as provided for in paragraph (f) of this section through the following process: (1) Consult with each agency with jurisdiction over the environmental resources considered in the programmatic mitigation plan; (2) Make available a draft of the programmatic mitigation plan for review and comment by appropriate environmental resource agencies and the public; (3) Consider comments received from such agencies and the public on the draft plan; and (4) Address such comments in the final programmatic mitigation plan. (c) A programmatic mitigation plan may be integrated with other plans, including watershed plans, ecosystem plans, species recovery plans, growth management plans, State Wildlife Action Plans, and land use plans. (d) If a programmatic mitigation plan has been adopted pursuant to paragraph (b), any Federal agency responsible for environmental reviews, permits, or approvals for a transportation project shall give substantial weight to the recommendations in the programmatic mitigation plan when carrying out its responsibilities under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) or other Federal environmental law. (e) Nothing in this section limits the use of programmatic approaches for reviews under NEPA. (f) Nothing in this section prohibits the development, as part of or separate from the transportation planning process, of a programmatic mitigation plan independent of the framework described in paragraph (a) of this section. Further, nothing in this section prohibits the adoption of a programmatic mitigation plan in the metropolitan planning process that was developed under another authority, independent of the framework described in paragraph (a). § 450.322 Congestion management process in transportation management areas. (a) The transportation planning process in a TMA shall address congestion management through a process that provides for safe and effective integrated management and operation of the multimodal transportation system, based on a cooperatively developed and implemented metropolitan-wide PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 strategy, of new and existing transportation facilities eligible for funding under title 23 U.S.C. and title 49 U.S.C. Chapter 53 through the use of travel demand reduction (including intercity bus operators, employer-based commuting programs such as a carpool program, vanpool program, transit benefit program, parking cash-out program, shuttle program, or telework program), job access projects, and operational management strategies. (b) The development of a congestion management process should result in multimodal system performance measures and strategies that can be reflected in the metropolitan transportation plan and the TIP. (c) The level of system performance deemed acceptable by State and local transportation officials may vary by type of transportation facility, geographic location (metropolitan area or subarea), and/or time of day. In addition, consideration should be given to strategies that manage demand, reduce single occupant vehicle (SOV) travel, improve transportation system management and operations, and improve efficient service integration within and across modes, including highway, transit, passenger and freight rail operations, and non-motorized transport. Where the addition of general purpose lanes is determined to be an appropriate congestion management strategy, explicit consideration is to be given to the incorporation of appropriate features into the SOV project to facilitate future demand management strategies and operational improvements that will maintain the functional integrity and safety of those lanes. (d) The congestion management process shall be developed, established, and implemented as part of the metropolitan transportation planning process that includes coordination with transportation system management and operations activities. The congestion management process shall include: (1) Methods to monitor and evaluate the performance of the multimodal transportation system, identify the underlying causes of recurring and nonrecurring congestion, identify and evaluate alternative strategies, provide information supporting the implementation of actions, and evaluate the effectiveness of implemented actions; (2) Definition of congestion management objectives and appropriate performance measures to assess the extent of congestion and support the evaluation of the effectiveness of congestion reduction and mobility enhancement strategies for the E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations movement of people and goods. Since levels of acceptable system performance may vary among local communities, performance measures should be tailored to the specific needs of the area and established cooperatively by the State(s), affected MPO(s), and local officials in consultation with the operators of major modes of transportation in the coverage area, including providers of public transportation; (3) Establishment of a coordinated program for data collection and system performance monitoring to define the extent and duration of congestion, to contribute in determining the causes of congestion, and evaluate the efficiency and effectiveness of implemented actions. To the extent possible, this data collection program should be coordinated with existing data sources (including archived operational/ITS data) and coordinated with operations managers in the metropolitan area; (4) Identification and evaluation of the anticipated performance and expected benefits of appropriate congestion management strategies that will contribute to the more effective use and improved safety of existing and future transportation systems based on the established performance measures. The following categories of strategies, or combinations of strategies, are some examples of what should be appropriately considered for each area: (i) Demand management measures, including growth management, and congestion pricing; (ii) Traffic operational improvements; (iii) Public transportation improvements; (iv) ITS technologies as related to the regional ITS architecture; and (v) Where necessary, additional system capacity. (5) Identification of an implementation schedule, implementation responsibilities, and possible funding sources for each strategy (or combination of strategies) proposed for implementation; and (6) Implementation of a process for periodic assessment of the effectiveness of implemented strategies, in terms of the area’s established performance measures. The results of this evaluation shall be provided to decision makers and the public to provide guidance on selection of effective strategies for future implementation. (e) In a TMA designated as nonattainment area for ozone or carbon monoxide pursuant to the Clean Air Act, Federal funds may not be programmed for any project that will result in a significant increase in the carrying capacity for SOVs (i.e., a new VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 general purpose highway on a new location or adding general purpose lanes, with the exception of safety improvements or the elimination of bottlenecks), unless the project is addressed through a congestion management process meeting the requirements of this section. (f) In TMAs designated as nonattainment for ozone or carbon monoxide, the congestion management process shall provide an appropriate analysis of reasonable (including multimodal) travel demand reduction and operational management strategies for the corridor in which a project that will result in a significant increase in capacity for SOVs (as described in paragraph (d) of this section) is proposed to be advanced with Federal funds. If the analysis demonstrates that travel demand reduction and operational management strategies cannot fully satisfy the need for additional capacity in the corridor and additional SOV capacity is warranted, then the congestion management process shall identify all reasonable strategies to manage the SOV facility safely and effectively (or to facilitate its management in the future). Other travel demand reduction and operational management strategies appropriate for the corridor, but not appropriate for incorporation into the SOV facility itself, shall also be identified through the congestion management process. All identified reasonable travel demand reduction and operational management strategies shall be incorporated into the SOV project or committed to by the State and MPO for implementation. (g) State laws, rules, or regulations pertaining to congestion management systems or programs may constitute the congestion management process, if the FHWA and the FTA find that the State laws, rules, or regulations are consistent with, and fulfill the intent of, the purposes of 23 U.S.C. 134 and 49 U.S.C. 5303. (h) Congestion management plan. A MPO serving a TMA may develop a plan that includes projects and strategies that will be considered in the TIP of such MPO. (1) Such plan shall: (i) Develop regional goals to reduce vehicle miles traveled during peak commuting hours and improve transportation connections between areas with high job concentration and areas with high concentrations of lowincome households; (ii) Identify existing public transportation services, employer based commuter programs, and other existing transportation services that support access to jobs in the region; and PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 34153 (iii) Identify proposed projects and programs to reduce congestion and increase job access opportunities. (2) In developing the congestion management plan, an MPO shall consult with employers, private and nonprofit providers of public transportation, transportation management organizations, and organizations that provide job access reverse commute projects or job-related services to lowincome individuals. § 450.324 Development and content of the metropolitan transportation plan. (a) The metropolitan transportation planning process shall include the development of a transportation plan addressing no less than a 20-year planning horizon as of the effective date. In formulating the transportation plan, the MPO shall consider factors described in § 450.306 as the factors relate to a minimum 20-year forecast period. In nonattainment and maintenance areas, the effective date of the transportation plan shall be the date of a conformity determination issued by the FHWA and the FTA. In attainment areas, the effective date of the transportation plan shall be its date of adoption by the MPO. (b) The transportation plan shall include both long-range and short-range strategies/actions that provide for the development of an integrated multimodal transportation system (including accessible pedestrian walkways and bicycle transportation facilities) to facilitate the safe and efficient movement of people and goods in addressing current and future transportation demand. (c) The MPO shall review and update the transportation plan at least every 4 years in air quality nonattainment and maintenance areas and at least every 5 years in attainment areas to confirm the transportation plan’s validity and consistency with current and forecasted transportation and land use conditions and trends and to extend the forecast period to at least a 20-year planning horizon. In addition, the MPO may revise the transportation plan at any time using the procedures in this section without a requirement to extend the horizon year. The MPO shall approve the transportation plan (and any revisions) and submit it for information purposes to the Governor. Copies of any updated or revised transportation plans must be provided to the FHWA and the FTA. (d) In metropolitan areas that are in nonattainment for ozone or carbon monoxide, the MPO shall coordinate the development of the metropolitan transportation plan with the process for E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34154 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations developing transportation control measures (TCMs) in a State Implementation Plan (SIP). (e) The MPO, the State(s), and the public transportation operator(s) shall validate data used in preparing other existing modal plans for providing input to the transportation plan. In updating the transportation plan, the MPO shall base the update on the latest available estimates and assumptions for population, land use, travel, employment, congestion, and economic activity. The MPO shall approve transportation plan contents and supporting analyses produced by a transportation plan update. (f) The metropolitan transportation plan shall, at a minimum, include: (1) The current and projected transportation demand of persons and goods in the metropolitan planning area over the period of the transportation plan; (2) Existing and proposed transportation facilities (including major roadways, public transportation facilities, intercity bus facilities, multimodal and intermodal facilities, nonmotorized transportation facilities (e.g., pedestrian walkways and bicycle facilities), and intermodal connectors) that should function as an integrated metropolitan transportation system, giving emphasis to those facilities that serve important national and regional transportation functions over the period of the transportation plan. (3) A description of the performance measures and performance targets used in assessing the performance of the transportation system in accordance with § 450.306(d). (4) A system performance report and subsequent updates evaluating the condition and performance of the transportation system with respect to the performance targets described in § 450.306(d), including— (i) Progress achieved by the metropolitan planning organization in meeting the performance targets in comparison with system performance recorded in previous reports, including baseline data; and (ii) For metropolitan planning organizations that voluntarily elect to develop multiple scenarios, an analysis of how the preferred scenario has improved the conditions and performance of the transportation system and how changes in local policies and investments have impacted the costs necessary to achieve the identified performance targets. (5) Operational and management strategies to improve the performance of existing transportation facilities to relieve vehicular congestion and VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 maximize the safety and mobility of people and goods; (6) Consideration of the results of the congestion management process in TMAs that meet the requirements of this subpart, including the identification of SOV projects that result from a congestion management process in TMAs that are nonattainment for ozone or carbon monoxide. (7) Assessment of capital investment and other strategies to preserve the existing and projected future metropolitan transportation infrastructure, provide for multimodal capacity increases based on regional priorities and needs, and reduce the vulnerability of the existing transportation infrastructure to natural disasters. The metropolitan transportation plan may consider projects and strategies that address areas or corridors where current or projected congestion threatens the efficient functioning of key elements of the metropolitan area’s transportation system. (8) Transportation and transit enhancement activities, including consideration of the role that intercity buses may play in reducing congestion, pollution, and energy consumption in a cost-effective manner and strategies and investments that preserve and enhance intercity bus systems, including systems that are privately owned and operated, and including transportation alternatives, as defined in 23 U.S.C. 101(a), and associated transit improvements, as described in 49 U.S.C. 5302(a), as appropriate; (9) Design concept and design scope descriptions of all existing and proposed transportation facilities in sufficient detail, regardless of funding source, in nonattainment and maintenance areas for conformity determinations under the EPA’s transportation conformity regulations (40 CFR part 93, subpart A). In all areas (regardless of air quality designation), all proposed improvements shall be described in sufficient detail to develop cost estimates; (10) A discussion of types of potential environmental mitigation activities and potential areas to carry out these activities, including activities that may have the greatest potential to restore and maintain the environmental functions affected by the metropolitan transportation plan. The discussion may focus on policies, programs, or strategies, rather than at the project level. The MPO shall develop the discussion in consultation with applicable Federal, State, and Tribal land management, wildlife, and regulatory agencies. The MPO may PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 establish reasonable timeframes for performing this consultation; (11) A financial plan that demonstrates how the adopted transportation plan can be implemented. (i) For purposes of transportation system operations and maintenance, the financial plan shall contain system-level estimates of costs and revenue sources that are reasonably expected to be available to adequately operate and maintain the Federal-aid highways (as defined by 23 U.S.C. 101(a)(5)) and public transportation (as defined by title 49 U.S.C. Chapter 53). (ii) For the purpose of developing the metropolitan transportation plan, the MPO, public transportation operator(s), and State shall cooperatively develop estimates of funds that will be available to support metropolitan transportation plan implementation, as required under § 450.314(a). All necessary financial resources from public and private sources that are reasonably expected to be made available to carry out the transportation plan shall be identified. (iii) The financial plan shall include recommendations on any additional financing strategies to fund projects and programs included in the metropolitan transportation plan. In the case of new funding sources, strategies for ensuring their availability shall be identified. The financial plan may include an assessment of the appropriateness of innovative finance techniques (for example, tolling, pricing, bonding, public private partnerships, or other strategies) as revenue sources for projects in the plan. (iv) In developing the financial plan, the MPO shall take into account all projects and strategies proposed for funding under title 23 U.S.C., title 49 U.S.C. Chapter 53 or with other Federal funds; State assistance; local sources; and private participation. Revenue and cost estimates that support the metropolitan transportation plan must use an inflation rate(s) to reflect ‘‘year of expenditure dollars,’’ based on reasonable financial principles and information, developed cooperatively by the MPO, State(s), and public transportation operator(s). (v) For the outer years of the metropolitan transportation plan (i.e., beyond the first 10 years), the financial plan may reflect aggregate cost ranges/ cost bands, as long as the future funding source(s) is reasonably expected to be available to support the projected cost ranges/cost bands. (vi) For nonattainment and maintenance areas, the financial plan shall address the specific financial strategies required to ensure the E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations implementation of TCMs in the applicable SIP. (vii) For illustrative purposes, the financial plan may include additional projects that would be included in the adopted transportation plan if additional resources beyond those identified in the financial plan were to become available. (viii) In cases that the FHWA and the FTA find a metropolitan transportation plan to be fiscally constrained and a revenue source is subsequently removed or substantially reduced (i.e., by legislative or administrative actions), the FHWA and the FTA will not withdraw the original determination of fiscal constraint; however, in such cases, the FHWA and the FTA will not act on an updated or amended metropolitan transportation plan that does not reflect the changed revenue situation. (12) Pedestrian walkway and bicycle transportation facilities in accordance with 23 U.S.C. 217(g). (g) The MPO shall consult, as appropriate, with State and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation concerning the development of the transportation plan. The consultation shall involve, as appropriate: (1) Comparison of transportation plans with State conservation plans or maps, if available; or (2) Comparison of transportation plans to inventories of natural or historic resources, if available. (h) The metropolitan transportation plan should integrate the priorities, goals, countermeasures, strategies, or projects for the metropolitan planning area contained in the HSIP, including the SHSP required under 23 U.S.C. 148, the Public Transportation Agency Safety Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with 49 CFR part 659, as in effect until completion of the Public Transportation Agency Safety Plan, and may incorporate or reference applicable emergency relief and disaster preparedness plans and strategies and policies that support homeland security, as appropriate, to safeguard the personal security of all motorized and nonmotorized users. (i) An MPO may, while fitting the needs and complexity of its community, voluntarily elect to develop multiple scenarios for consideration as part of the development of the metropolitan transportation plan. (1) An MPO that chooses to develop multiple scenarios under this paragraph (i) is encouraged to consider: VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 (i) Potential regional investment strategies for the planning horizon; (ii) Assumed distribution of population and employment; (iii) A scenario that, to the maximum extent practicable, maintains baseline conditions for the performance areas identified in § 450.306(d) and measures established under 23 CFR part 490; (iv) A scenario that improves the baseline conditions for as many of the performance measures identified in § 450.306(d) as possible; (v) Revenue constrained scenarios based on the total revenues expected to be available over the forecast period of the plan; and (vi) Estimated costs and potential revenues available to support each scenario. (2) In addition to the performance areas identified in 23 U.S.C. 150(c), 49 U.S.C. 5326(c), and 5329(d), and the measures established under 23 CFR part 490, MPOs may evaluate scenarios developed under this paragraph using locally developed measures. (j) The MPO shall provide individuals, affected public agencies, representatives of public transportation employees, public ports, freight shippers, providers of freight transportation services, private providers of transportation (including intercity bus operators, employer-based commuting programs, such as carpool program, vanpool program, transit benefit program, parking cashout program, shuttle program, or telework program), representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, and other interested parties with a reasonable opportunity to comment on the transportation plan using the participation plan developed under § 450.316(a). (k) The MPO shall publish or otherwise make readily available the metropolitan transportation plan for public review, including (to the maximum extent practicable) in electronically accessible formats and means, such as the World Wide Web. (l) A State or MPO is not required to select any project from the illustrative list of additional projects included in the financial plan under paragraph (f)(11) of this section. (m) In nonattainment and maintenance areas for transportationrelated pollutants, the MPO, as well as the FHWA and the FTA, must make a conformity determination on any updated or amended transportation plan in accordance with the Clean Air Act and the EPA transportation conformity PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 34155 regulations (40 CFR part 93, subpart A). A 12-month conformity lapse grace period will be implemented when an area misses an applicable deadline, in accordance with the Clean Air Act and the transportation conformity regulations (40 CFR part 93, subpart A). At the end of this 12-month grace period, the existing conformity determination will lapse. During a conformity lapse, MPOs can prepare an interim metropolitan transportation plan as a basis for advancing projects that are eligible to proceed under a conformity lapse. An interim metropolitan transportation plan consisting of eligible projects from, or consistent with, the most recent conforming transportation plan and TIP may proceed immediately without revisiting the requirements of this section, subject to interagency consultation defined in 40 CFR part 93, subpart A. An interim metropolitan transportation plan containing eligible projects that are not from, or consistent with, the most recent conforming transportation plan and TIP must meet all the requirements of this section. § 450.326 Development and content of the transportation improvement program (TIP). (a) The MPO, in cooperation with the State(s) and any affected public transportation operator(s), shall develop a TIP for the metropolitan planning area. The TIP shall reflect the investment priorities established in the current metropolitan transportation plan and shall cover a period of no less than 4 years, be updated at least every 4 years, and be approved by the MPO and the Governor. However, if the TIP covers more than 4 years, the FHWA and the FTA will consider the projects in the additional years as informational. The MPO may update the TIP more frequently, but the cycle for updating the TIP must be compatible with the STIP development and approval process. The TIP expires when the FHWA/FTA approval of the STIP expires. Copies of any updated or revised TIPs must be provided to the FHWA and the FTA. In nonattainment and maintenance areas subject to transportation conformity requirements, the FHWA and the FTA, as well as the MPO, must make a conformity determination on any updated or amended TIP, in accordance with the Clean Air Act requirements and the EPA’s transportation conformity regulations (40 CFR part 93, subpart A). (b) The MPO shall provide all interested parties with a reasonable opportunity to comment on the proposed TIP as required by § 450.316(a). In addition, in E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 34156 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations nonattainment area TMAs, the MPO shall provide at least one formal public meeting during the TIP development process, which should be addressed through the participation plan described in § 450.316(a). In addition, the MPO shall publish or otherwise make readily available the TIP for public review, including (to the maximum extent practicable) in electronically accessible formats and means, such as the World Wide Web, as described in § 450.316(a). (c) The TIP shall be designed such that once implemented, it makes progress toward achieving the performance targets established under § 450.306(d). (d) The TIP shall include, to the maximum extent practicable, a description of the anticipated effect of the TIP toward achieving the performance targets identified in the metropolitan transportation plan, linking investment priorities to those performance targets. (e) The TIP shall include capital and non-capital surface transportation projects (or phases of projects) within the boundaries of the metropolitan planning area proposed for funding under 23 U.S.C. and 49 U.S.C. Chapter 53 (including transportation alternatives; associated transit improvements; Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program projects; HSIP projects; trails projects; accessible pedestrian walkways; and bicycle facilities), except the following that may be included: (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102; (2) Metropolitan planning projects funded under 23 U.S.C. 104(d), and 49 U.S.C. 5305(d); (3) State planning and research projects funded under 23 U.S.C. 505 and 49 U.S.C. 5305(e); (4) At the discretion of the State and MPO, metropolitan planning projects funded with Surface Transportation Program funds; (5) Emergency relief projects (except those involving substantial functional, locational, or capacity changes); (6) National planning and research projects funded under 49 U.S.C. 5314; and (7) Project management oversight projects funded under 49 U.S.C. 5327. (f) The TIP shall contain all regionally significant projects requiring an action by the FHWA or the FTA whether or not the projects are to be funded under title 23 U.S.C. Chapters 1 and 2 or title 49 U.S.C. Chapter 53 (e.g., addition of an interchange to the Interstate System with State, local, and/or private funds and congressionally designated projects VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 not funded under 23 U.S.C. or 49 U.S.C. Chapter 53). For public information and conformity purposes, the TIP shall include all regionally significant projects proposed to be funded with Federal funds other than those administered by the FHWA or the FTA, as well as all regionally significant projects to be funded with non-Federal funds. (g) The TIP shall include, for each project or phase (e.g., preliminary engineering, environment/NEPA, rightof-way, design, or construction), the following: (1) Sufficient descriptive material (i.e., type of work, termini, and length) to identify the project or phase; (2) Estimated total project cost, which may extend beyond the 4 years of the TIP; (3) The amount of Federal funds proposed to be obligated during each program year for the project or phase (for the first year, this includes the proposed category of Federal funds and source(s) of non-Federal funds. For the second, third, and fourth years, this includes the likely category or possible categories of Federal funds and sources of non-Federal funds); (4) Identification of the agencies responsible for carrying out the project or phase; (5) In nonattainment and maintenance areas, identification of those projects that are identified as TCMs in the applicable SIP; (6) In nonattainment and maintenance areas, included projects shall be specified in sufficient detail (design concept and scope) for air quality analysis in accordance with the EPA transportation conformity regulations (40 CFR part 93, subpart A); and (7) In areas with Americans with Disabilities Act required paratransit and key station plans, identification of those projects that will implement these plans. (h) Projects that are not considered to be of appropriate scale for individual identification in a given program year may be grouped by function, work type, and/or geographic area using the applicable classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93. In nonattainment and maintenance areas, project classifications must be consistent with the ‘‘exempt project’’ classifications contained in the EPA transportation conformity regulations (40 CFR part 93, subpart A). In addition, projects proposed for funding under title 23 U.S.C. Chapter 2 that are not regionally significant may be grouped in one line item or identified individually in the TIP. PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 (i) Each project or project phase included in the TIP shall be consistent with the approved metropolitan transportation plan. (j) The TIP shall include a financial plan that demonstrates how the approved TIP can be implemented, indicates resources from public and private sources that are reasonably expected to be made available to carry out the TIP, and recommends any additional financing strategies for needed projects and programs. In developing the TIP, the MPO, State(s), and public transportation operator(s) shall cooperatively develop estimates of funds that are reasonably expected to be available to support TIP implementation in accordance with § 450.314(a). Only projects for which construction or operating funds can reasonably be expected to be available may be included. In the case of new funding sources, strategies for ensuring their availability shall be identified. In developing the financial plan, the MPO shall take into account all projects and strategies funded under title 23 U.S.C., title 49 U.S.C. Chapter 53, and other Federal funds; and regionally significant projects that are not federally funded. For purposes of transportation operations and maintenance, the financial plan shall contain system-level estimates of costs and revenue sources that are reasonably expected to be available to adequately operate and maintain Federal-aid highways (as defined by 23 U.S.C. 101(a)(6)) and public transportation (as defined by title 49 U.S.C. Chapter 53). In addition, for illustrative purposes, the financial plan may include additional projects that would be included in the TIP if reasonable additional resources beyond those identified in the financial plan were to become available. Revenue and cost estimates for the TIP must use an inflation rate(s) to reflect ‘‘year of expenditure dollars,’’ based on reasonable financial principles and information, developed cooperatively by the MPO, State(s), and public transportation operator(s). (k) The TIP shall include a project, or a phase of a project, only if full funding can reasonably be anticipated to be available for the project within the time period contemplated for completion of the project. In nonattainment and maintenance areas, projects included in the first 2 years of the TIP shall be limited to those for which funds are available or committed. For the TIP, financial constraint shall be demonstrated and maintained by year and shall include sufficient financial information to demonstrate which projects are to be implemented using E:\FR\FM\27MYR3.SGM 27MYR3 mstockstill on DSK3G9T082PROD with RULES3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations current and/or reasonably available revenues, while federally supported facilities are being adequately operated and maintained. In the case of proposed funding sources, strategies for ensuring their availability shall be identified in the financial plan consistent with paragraph (h) of this section. In nonattainment and maintenance areas, the TIP shall give priority to eligible TCMs identified in the approved SIP in accordance with the EPA transportation conformity regulations (40 CFR part 93, subpart A) and shall provide for their timely implementation. (l) In cases that the FHWA and the FTA find a TIP to be fiscally constrained and a revenue source is subsequently removed or substantially reduced (i.e., by legislative or administrative actions), the FHWA and the FTA will not withdraw the original determination of fiscal constraint. However, in such cases, the FHWA and the FTA will not act on an updated or amended TIP that does not reflect the changed revenue situation. (m) Procedures or agreements that distribute suballocated Surface Transportation Program funds to individual jurisdictions or modes within the MPA by pre-determined percentages or formulas are inconsistent with the legislative provisions that require the MPO, in cooperation with the State and the public transportation operator, to develop a prioritized and financially constrained TIP and shall not be used unless they can be clearly shown to be based on considerations required to be addressed as part of the metropolitan transportation planning process. (n) As a management tool for monitoring progress in implementing the transportation plan, the TIP should: (1) Identify the criteria and process for prioritizing implementation of transportation plan elements (including multimodal trade-offs) for inclusion in the TIP and any changes in priorities from previous TIPs; (2) List major projects from the previous TIP that were implemented and identify any significant delays in the planned implementation of major projects; and (3) In nonattainment and maintenance areas, describe the progress in implementing any required TCMs, in accordance with 40 CFR part 93. (o) In metropolitan nonattainment and maintenance areas, a 12-month conformity lapse grace period will be implemented when an area misses an applicable deadline, according to the Clean Air Act and the transportation conformity regulations (40 CFR part 93, subpart A). At the end of this 12-month VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 grace period, the existing conformity determination will lapse. During a conformity lapse, MPOs may prepare an interim TIP as a basis for advancing projects that are eligible to proceed under a conformity lapse. An interim TIP consisting of eligible projects from, or consistent with, the most recent conforming metropolitan transportation plan and TIP may proceed immediately without revisiting the requirements of this section, subject to interagency consultation defined in 40 CFR part 93. An interim TIP containing eligible projects that are not from, or consistent with, the most recent conforming transportation plan and TIP must meet all the requirements of this section. (p) Projects in any of the first 4 years of the TIP may be advanced in place of another project in the first 4 years of the TIP, subject to the project selection requirements of § 450.332. In addition, the MPO may revise the TIP at any time under procedures agreed to by the State, MPO(s), and public transportation operator(s) consistent with the TIP development procedures established in this section, as well as the procedures for the MPO participation plan (see § 450.316(a)) and FHWA/FTA actions on the TIP (see § 450.330). § 450.328 the STIP. TIP revisions and relationship to (a) An MPO may revise the TIP at any time under procedures agreed to by the cooperating parties consistent with the procedures established in this part for its development and approval. In nonattainment or maintenance areas for transportation-related pollutants, if a TIP amendment involves non-exempt projects (per 40 CFR part 93), or is replaced with an updated TIP, the MPO and the FHWA and the FTA must make a new conformity determination. In all areas, changes that affect fiscal constraint must take place by amendment of the TIP. The MPO shall use public participation procedures consistent with § 450.316(a) in revising the TIP, except that these procedures are not required for administrative modifications. (b) After approval by the MPO and the Governor, the State shall include the TIP without change, directly or by reference, in the STIP required under 23 U.S.C. 135. In nonattainment and maintenance areas, the FHWA and the FTA must make a conformity finding on the TIP before it is included in the STIP. A copy of the approved TIP shall be provided to the FHWA and the FTA. (c) The State shall notify the MPO and Federal land management agencies when it has included a TIP including PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 34157 projects under the jurisdiction of these agencies in the STIP. § 450.330 FTA. TIP action by the FHWA and the (a) The FHWA and the FTA shall jointly find that each metropolitan TIP is consistent with the metropolitan transportation plan produced by the continuing and comprehensive transportation process carried on cooperatively by the MPO(s), the State(s), and the public transportation operator(s) in accordance with 23 U.S.C. 134 and 49 U.S.C. 5303. This finding shall be based on the self-certification statement submitted by the State and MPO under § 450.336, a review of the metropolitan transportation plan by the FHWA and the FTA, and upon other reviews as deemed necessary by the FHWA and the FTA. (b) In nonattainment and maintenance areas, the MPO, as well as the FHWA and the FTA, shall determine conformity of any updated or amended TIP, in accordance with 40 CFR part 93. After the FHWA and the FTA issue a conformity determination on the TIP, the TIP shall be incorporated, without change, into the STIP, directly or by reference. (c) If an MPO has not updated the metropolitan transportation plan in accordance with the cycles defined in § 450.324(c), projects may only be advanced from a TIP that was approved and found to conform (in nonattainment and maintenance areas) prior to expiration of the metropolitan transportation plan and meets the TIP update requirements of § 450.326(a). Until the MPO approves (in attainment areas) or the FHWA and the FTA issue a conformity determination on (in nonattainment and maintenance areas) the updated metropolitan transportation plan, the MPO may not amend the TIP. (d) In the case of extenuating circumstances, the FHWA and the FTA will consider and take appropriate action on requests to extend the STIP approval period for all or part of the TIP in accordance with § 450.220(b). (e) If an illustrative project is included in the TIP, no Federal action may be taken on that project by the FHWA and the FTA until it is formally included in the financially constrained and conforming metropolitan transportation plan and TIP. (f) Where necessary in order to maintain or establish operations, the FHWA and the FTA may approve highway and transit operating assistance for specific projects or programs, even though the projects or programs may not be included in an approved TIP. E:\FR\FM\27MYR3.SGM 27MYR3 34158 mstockstill on DSK3G9T082PROD with RULES3 § 450.332 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations Project selection from the TIP. (a) Once a TIP that meets the requirements of 23 U.S.C. 134(j), 49 U.S.C. 5303(j), and § 450.326 has been developed and approved, the first year of the TIP will constitute an ‘‘agreed to’’ list of projects for project selection purposes and no further project selection action is required for the implementing agency to proceed with projects, except where the appropriated Federal funds available to the metropolitan planning area are significantly less than the authorized amounts or where there are significant shifting of projects between years. In this case, the MPO, the State, and the public transportation operator(s) if requested by the MPO, the State, or the public transportation operator(s) shall jointly develop a revised ‘‘agreed to’’ list of projects. If the State or public transportation operator(s) wishes to proceed with a project in the second, third, or fourth year of the TIP, the specific project selection procedures stated in paragraphs (b) and (c) of this section must be used unless the MPO, the State, and the public transportation operator(s) jointly develop expedited project selection procedures to provide for the advancement of projects from the second, third, or fourth years of the TIP. (b) In metropolitan areas not designated as TMAs, the State and/or the public transportation operator(s), in cooperation with the MPO shall select projects to be implemented using title 23 U.S.C. funds (other than Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program projects) or funds under title 49 U.S.C. Chapter 53, from the approved metropolitan TIP. Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program projects shall be selected in accordance with procedures developed pursuant to 23 U.S.C. 201, 202, 203, and 204. (c) In areas designated as TMAs, the MPO shall select all 23 U.S.C. and 49 U.S.C. Chapter 53 funded projects (excluding projects on the NHS and Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program) in consultation with the State and public transportation operator(s) from the approved TIP and in accordance with the priorities in the approved TIP. The State shall select projects on the NHS in cooperation with the MPO, from the approved TIP. Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program projects shall be selected in accordance with procedures developed VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 pursuant to 23 U.S.C. 201, 202, 203, and 204. (d) Except as provided in § 450.326(e) and § 450.330(f), projects not included in the federally approved STIP are not eligible for funding with funds under title 23 U.S.C. or 49 U.S.C. Chapter 53. (e) In nonattainment and maintenance areas, priority shall be given to the timely implementation of TCMs contained in the applicable SIP in accordance with the EPA transportation conformity regulations (40 CFR part 93, subpart A). § 450.334 projects. Annual listing of obligated (a) In metropolitan planning areas, on an annual basis, no later than 90 calendar days following the end of the program year, the State, public transportation operator(s), and the MPO shall cooperatively develop a listing of projects (including investments in pedestrian walkways and bicycle transportation facilities) for which funds under 23 U.S.C. or 49 U.S.C. Chapter 53 were obligated in the preceding program year. (b) The listing shall be prepared in accordance with § 450.314(a) and shall include all federally funded projects authorized or revised to increase obligations in the preceding program year, and shall at a minimum include the TIP information under § 450.326(g)(1) and (4) and identify, for each project, the amount of Federal funds requested in the TIP, the Federal funding that was obligated during the preceding year, and the Federal funding remaining and available for subsequent years. (c) The listing shall be published or otherwise made available in accordance with the MPO’s public participation criteria for the TIP. § 450.336 Self-certifications and Federal certifications. (a) For all MPAs, concurrent with the submittal of the entire proposed TIP to the FHWA and the FTA as part of the STIP approval, the State and the MPO shall certify at least every 4 years that the metropolitan transportation planning process is being carried out in accordance with all applicable requirements including: (1) 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart; (2) In nonattainment and maintenance areas, sections 174 and 176(c) and (d) of the Clean Air Act, as amended (42 U.S.C. 7504, 7506(c) and (d)) and 40 CFR part 93; (3) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d–1) and 49 CFR part 21; PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 (4) 49 U.S.C. 5332, prohibiting discrimination on the basis of race, color, creed, national origin, sex, or age in employment or business opportunity; (5) Section 1101(b) of the FAST Act (Pub. L. 114–357) and 49 CFR part 26 regarding the involvement of disadvantaged business enterprises in DOT funded projects; (6) 23 CFR part 230, regarding the implementation of an equal employment opportunity program on Federal and Federal-aid highway construction contracts; (7) The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38; (8) The Older Americans Act, as amended (42 U.S.C. 6101), prohibiting discrimination on the basis of age in programs or activities receiving Federal financial assistance; (9) Section 324 of title 23 U.S.C. regarding the prohibition of discrimination based on gender; and (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and 49 CFR part 27 regarding discrimination against individuals with disabilities. (b) In TMAs, the FHWA and the FTA jointly shall review and evaluate the transportation planning process for each TMA no less than once every 4 years to determine if the process meets the requirements of applicable provisions of Federal law and this subpart. (1) After review and evaluation of the TMA planning process, the FHWA and FTA shall take one of the following actions: (i) If the process meets the requirements of this part and the MPO and the Governor have approved a TIP, jointly certify the transportation planning process; (ii) If the process substantially meets the requirements of this part and the MPO and the Governor have approved a TIP, jointly certify the transportation planning process subject to certain specified corrective actions being taken; or (iii) If the process does not meet the requirements of this part, jointly certify the planning process as the basis for approval of only those categories of programs or projects that the FHWA and the FTA jointly determine, subject to certain specified corrective actions being taken. (2) If, upon the review and evaluation conducted under paragraph (b)(1)(iii) of this section, the FHWA and the FTA do not certify the transportation planning process in a TMA, the Secretary may withhold up to 20 percent of the funds attributable to the metropolitan planning area of the MPO for projects E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations funded under title 23 U.S.C. and title 49 U.S.C. Chapter 53 in addition to corrective actions and funding restrictions. The withheld funds shall be restored to the MPA when the metropolitan transportation planning process is certified by the FHWA and FTA, unless the funds have lapsed. (3) A certification of the TMA planning process will remain in effect for 4 years unless a new certification determination is made sooner by the FHWA and the FTA or a shorter term is specified in the certification report. (4) In conducting a certification review, the FHWA and the FTA shall provide opportunities for public involvement within the metropolitan planning area under review. The FHWA and the FTA shall consider the public input received in arriving at a decision on a certification action. (5) The FHWA and the FTA shall notify the MPO(s), the State(s), and public transportation operator(s) of the actions taken under paragraphs (b)(1) and (b)(2) of this section. The FHWA and the FTA will update the certification status of the TMA when evidence of satisfactory completion of a corrective action(s) is provided to the FHWA and the FTA. § 450.338 Applicability of NEPA to metropolitan transportation plans and programs. Any decision by the Secretary concerning a metropolitan transportation plan or TIP developed through the processes provided for in 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart shall not be considered to be a Federal action subject to review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). mstockstill on DSK3G9T082PROD with RULES3 § 450.340 Phase-in of new requirements. (a) Prior to May 27, 2018, an MPO may adopt a metropolitan transportation plan that has been developed using the SAFETEA–LU requirements or the provisions and requirements of this part. On or after May 27, 2018, an MPO may not adopt a metropolitan transportation plan that has not been developed according to the provisions and requirements of this part. (b) Prior to May 27, 2018 (2 years after the publication date of this rule), FHWA/FTA may determine the conformity of, or approve as part of a STIP, a TIP that has been developed using SAFETEA–LU requirements or the provisions and requirements of this part. On or after May 27, 2018 (2 years after the publication date of this rule), FHWA/FTA may only determine the conformity of, or approve as part of a STIP, a TIP that has been developed VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 according to the provisions and requirements of this part, regardless of when the MPO developed the TIP. (c) On and after May 27, 2018 (2 years after the issuance date of this rule), the FHWA and the FTA will take action (i.e., conformity determinations and STIP approvals) on an updated or amended TIP developed under the provisions of this part, even if the MPO has not yet adopted a new metropolitan transportation plan under the provisions of this part, as long as the underlying transportation planning process is consistent with the requirements in the MAP–21. (d) On or after May 27, 2018 (2 years after the publication date of this rule), an MPO may make an administrative modification to a TIP that conforms to either the SAFETEA–LU or to the provisions and requirements of this part. (e) Two years from the effective date of each rule establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, and 49 U.S.C. 5329 FHWA/ FTA will only determine the conformity of, or approve as part of a STIP, a TIP that is based on a metropolitan transportation planning process that meets the performance based planning requirements in this part and in such a rule. (f) Prior to 2 years from the effective date of each rule establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 U.S.C. 5329, an MPO may adopt a metropolitan transportation plan that has been developed using the SAFETEA–LU requirements or the performance-based planning requirements of this part and in such a rule. Two years on or after the effective date of each rule establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 U.S.C. 5329, an MPO may only adopt a metropolitan transportation plan that has been developed according to the performance-based provisions and requirements of this part and in such a rule. (g) A newly designated TMA shall implement the congestion management process described in § 450.322 within 18 months of designation. Appendix A to Part 450—Linking the Transportation Planning and NEPA Processes Background and Overview This Appendix provides additional information to explain the linkage between the transportation planning and project development/National Environmental Policy Act (NEPA) processes. It is intended to be non-binding and should not be construed as a rule of general applicability. PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 34159 For 40 years, the Congress has directed that federally funded highway and transit projects must flow from metropolitan and statewide transportation planning processes (pursuant to 23 U.S.C. 134–135 and 49 U.S.C. 5303– 5306). Over the years, the Congress has refined and strengthened the transportation planning process as the foundation for project decisions, emphasizing public involvement, consideration of environmental and other factors, and a Federal role that oversees the transportation planning process but does not second-guess the content of transportation plans and programs. Despite this statutory emphasis on transportation planning, the environmental analyses produced to meet the requirements of the NEPA of 1969 (42 U.S.C. 4231 et seq.) have often been conducted de novo, disconnected from the analyses used to develop long-range transportation plans, statewide and metropolitan Transportation Improvement Programs (STIPs/TIPs), or planning-level corridor/subarea/feasibility studies. When the NEPA and transportation planning processes are not well coordinated, the NEPA process may lead to the development of information that is more appropriately developed in the planning process, resulting in duplication of work and delays in transportation improvements. The purpose of this Appendix is to change this culture, by supporting congressional intent that statewide and metropolitan transportation planning should be the foundation for highway and transit project decisions. This Appendix was crafted to recognize that transportation planning processes vary across the country. This document provides details on how information, analysis, and products from transportation planning can be incorporated into and relied upon in NEPA documents under existing laws, regardless of when the Notice of Intent has been published. This Appendix presents environmental review as a continuum of sequential study, refinement, and expansion performed in transportation planning and during project development/ NEPA, with information developed and conclusions drawn in early stages utilized in subsequent (and more detailed) review stages. The information below is intended for use by State departments of transportation (State DOTs), metropolitan planning organizations (MPOs), and public transportation operators to clarify the circumstances under which transportation planning level choices and analyses can be adopted or incorporated into the process required by NEPA. Additionally, the FHWA and the FTA will work with Federal environmental, regulatory, and resource agencies to incorporate the principles of this Appendix in their day-today NEPA policies and procedures related to their involvement in highway and transit projects. This Appendix does not extend NEPA requirements to transportation plans and programs. The Transportation Efficiency Act for the 21st Century (TEA–21) and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) specifically exempted transportation plans and programs from E:\FR\FM\27MYR3.SGM 27MYR3 34160 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations NEPA review. Therefore, initiating the NEPA process as part of, or concurrently with, a transportation planning study does not subject transportation plans and programs to NEPA. Implementation of this Appendix by States, MPOs, and public transportation operators is voluntary. The degree to which studies, analyses, or conclusions from the transportation planning process can be incorporated into the project development/ NEPA processes will depend upon how well they meet certain standards established by NEPA regulations and guidance. While some transportation planning processes already meet these standards, others will need some modification. The remainder of this Appendix document utilizes a ‘‘Question and Answer’’ format, organized into three primary categories (‘‘Procedural Issues,’’ ‘‘Substantive Issues,’’ and ‘‘Administrative Issues’’). I. Procedural Issues mstockstill on DSK3G9T082PROD with RULES3 1. In what format should the transportation planning information be included? To be included in the NEPA process, work from the transportation planning process must be documented in a form that can be appended to the NEPA document or incorporated by reference. Documents may be incorporated by reference if they are readily available so as to not impede agency or public review of the action. Any document incorporated by reference must be ‘‘reasonably available for inspection by potentially interested persons within the time allowed for comment.’’ Incorporated materials must be cited in the NEPA document and their contents briefly described, so that the reader understands why the document is cited and knows where to look for further information. To the extent possible, the documentation should be in a form such as official actions by the MPO, State DOT, or public transportation operator and/or correspondence within and among the organizations involved in the transportation planning process. 2. What is a reasonable level of detail for a planning product that is intended to be used in a NEPA document? How does this level of detail compare to what is considered a full NEPA analysis? For purposes of transportation planning alone, a planning-level analysis does not need to rise to the level of detail required in the NEPA process. Rather, it needs to be accurate and up-to-date, and should adequately support recommended improvements in the statewide or metropolitan long-range transportation plan. The SAFETEA–LU requires transportation planning processes to focus on setting a context and following acceptable procedures. For example, the SAFETEA–LU requires a ‘‘discussion of the types of potential environmental mitigation activities’’ and potential areas for their implementation, rather than details on specific strategies. The SAFETEA–LU also emphasizes consultation with Federal, State, and Tribal land management, wildlife, and regulatory agencies. However, the Environmental Assessment (EA) or Environmental Impact Statement VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 (EIS) ultimately will be judged by the standards applicable under the NEPA regulations and guidance from the Council on Environmental Quality (CEQ). To the extent the information incorporated from the transportation planning process, standing alone, does not contain all of the information or analysis required by NEPA, then it will need to be supplemented by other information contained in the EIS or EA that would, in conjunction with the information from the plan, collectively meet the requirements of NEPA. The intent is not to require NEPA studies in the transportation planning process. As an option, the NEPA analyses prepared for project development can be integrated with transportation planning studies (see the response to Question 9 for additional information). 3. What type and extent of involvement from Federal, Tribal, State, and local environmental, regulatory, and resource agencies is needed in the transportation planning process in order for planning-level decisions to be more readily accepted in the NEPA process? Sections 3005, 3006, and 6001 of the SAFETEA–LU established formal consultation requirements for MPOs and State DOTs to employ with environmental, regulatory, and resource agencies in the development of long-range transportation plans. For example, metropolitan transportation plans now ‘‘shall include a discussion of the types of potential environmental mitigation activities and potential areas to carry out these activities, including activities that may have the greatest potential to restore and maintain the environmental functions affected by the [transportation] plan,’’ and that these planning-level discussions ‘‘shall be developed in consultation with Federal, State, and Tribal land management, wildlife, and regulatory agencies.’’ In addition, MPOs ‘‘shall consult, as appropriate, with State and local agencies responsible for land use management, natural resources, environmental protection, conservation, and historic preservation concerning the development of a long-range transportation plan,’’ and that this consultation ‘‘shall involve, as appropriate, comparison of transportation plans with State conservation plans or maps, if available, or comparison of transportation plans to inventories of natural or historic resources, if available.’’ Similar SAFETEA–LU language addresses the development of the long-range statewide transportation plan, with the addition of Tribal conservation plans or maps to this planning-level ‘‘comparison.’’ In addition, section 6002 of the SAFETEA– LU established several mechanisms for increased efficiency in environmental reviews for project decision-making. For example, the term ‘‘lead agency’’ collectively means the U.S. Department of Transportation and a State or local governmental entity serving as a joint lead agency for the NEPA process. In addition, the lead agency is responsible for inviting and designating ‘‘participating agencies’’ (i.e., other Federal or non-Federal agencies that may have an interest in the proposed project). Any Federal PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 agency that is invited by the lead agency to participate in the environmental review process for a project shall be designated as a participating agency by the lead agency unless the invited agency informs the lead agency, in writing, by the deadline specified in the invitation that the invited agency: (a) Has no jurisdiction or authority with respect to the project; (b) has no expertise or information relevant to the project; and (c) does not intend to submit comments on the project. Past successful examples of using transportation planning products in NEPA analysis are based on early and continuous involvement of environmental, regulatory, and resource agencies. Without this early coordination, environmental, regulatory, and resource agencies are more likely to expect decisions made or analyses conducted in the transportation planning process to be revisited during the NEPA process. Early participation in transportation planning provides environmental, regulatory, and resource agencies better insight into the needs and objectives of the locality. Additionally, early participation provides an important opportunity for environmental, regulatory, and resource agency concerns to be identified and addressed early in the process, such as those related to permit applications. Moreover, Federal, Tribal, State, and local environmental, regulatory, and resource agencies are able to share data on particular resources, which can play a critical role in determining the feasibility of a transportation solution with respect to environmental impacts. The use of other agency planning outputs can result in a transportation project that could support multiple goals (transportation, environmental, and community). Further, planning decisions by these other agencies may have impacts on long-range transportation plans and/or the STIP/TIP, thereby providing important input to the transportation planning process and advancing integrated decision-making. 4. What is the procedure for using decisions or analyses from the transportation planning process? The lead agencies jointly decide, and must agree, on what processes and consultation techniques are used to determine the transportation planning products that will be incorporated into the NEPA process. At a minimum, a robust scoping/early coordination process (which explains to Federal and State environmental, regulatory, and resource agencies and the public the information and/or analyses utilized to develop the planning products, how the purpose and need was developed and refined, and how the design concept and scope were determined) should play a critical role in leading to informed decisions by the lead agencies on the suitability of the transportation planning information, analyses, documents, and decisions for use in the NEPA process. As part of a rigorous scoping/early coordination process, the FHWA and the FTA should ensure that the transportation planning results are appropriately documented, shared, and used. E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES3 5. To what extent can the FHWA/FTA provide up-front assurance that decisions and additional investments made in the transportation planning process will allow planning-level decisions and analyses to be used in the NEPA process? There are no guarantees. However, the potential is greatly improved for transportation planning processes that address the ‘‘3–C’’ planning principles (comprehensive, cooperative, and continuous); incorporate the intent of NEPA through the consideration of natural, physical, and social effects; involve environmental, regulatory, and resource agencies; thoroughly document the transportation planning process information, analysis, and decision; and vet the planning results through the applicable public involvement processes. 6. What considerations will the FHWA/FTA take into account in their review of transportation planning products for acceptance in project development/NEPA? The FHWA and the FTA will give deference to decisions resulting from the transportation planning process if the FHWA and FTA determine that the planning process is consistent with the ‘‘3–C’’ planning principles and when the planning study process, alternatives considered, and resulting decisions have a rational basis that is thoroughly documented and vetted through the applicable public involvement processes. Moreover, any applicable program-specific requirements (e.g., those of the Congestion Mitigation and Air Quality Improvement Program or the FTA’s Capital Investment Grant program) also must be met. The NEPA requires that the FHWA and the FTA be able to stand behind the overall soundness and credibility of analyses conducted and decisions made during the transportation planning process if they are incorporated into a NEPA document. For example, if systems-level or other broad objectives or choices from the transportation plan are incorporated into the purpose and need statement for a NEPA document, the FHWA and the FTA should not revisit whether these are the best objectives or choices among other options. Rather, the FHWA and the FTA review would include making sure that objectives or choices derived from the transportation plan were: Based on transportation planning factors established by Federal law; reflect a credible and articulated planning rationale; founded on reliable data; and developed through transportation planning processes meeting FHWA and FTA statutory and regulatory requirements. In addition, the basis for the goals and choices must be documented and included in the NEPA document. The FHWA/FTA reviewers do not need to review whether assumptions or analytical methods used in the studies are the best available, but, instead, need to assure that such assumptions or analytical methods are reasonable, scientifically acceptable, and consistent with goals, objectives, and policies set forth in long-range transportation plans. This review would include determining whether: (a) Assumptions have a rational basis and are up-to-date and (b) data, analytical methods, VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 and modeling techniques are reliable, defensible, reasonably current, and meet data quality requirements. II. Substantive Issues General Issues To Be Considered 7. What should be considered in order to rely upon transportation planning studies in NEPA? The following questions should be answered prior to accepting studies conducted during the transportation planning process for use in NEPA. While not a ‘‘checklist,’’ these questions are intended to guide the practitioner’s analysis of the planning products: • How much time has passed since the planning studies and corresponding decisions were made? • Were the future year policy assumptions used in the transportation planning process related to land use, economic development, transportation costs, and network expansion consistent with those to be used in the NEPA process? • Is the information still relevant/valid? • What changes have occurred in the area since the study was completed? • Is the information in a format that can be appended to an environmental document or reformatted to do so? • Are the analyses in a planning-level report or document based on data, analytical methods, and modeling techniques that are reliable, defensible, and consistent with those used in other regional transportation studies and project development activities? • Were the FHWA and FTA, other agencies, and the public involved in the relevant planning analysis and the corresponding planning decisions? • Were the planning products available to other agencies and the public during NEPA scoping? • During NEPA scoping, was a clear connection between the decisions made in planning and those to be made during the project development stage explained to the public and others? What was the response? • Are natural resource and land use plans being informed by transportation planning products, and vice versa? Purpose and Need 8. How can transportation planning be used to shape a project’s purpose and need in the NEPA process? A sound transportation planning process is the primary source of the project purpose and need. Through transportation planning, State and local governments, with involvement of stakeholders and the public, establish a vision for the region’s future transportation system, define transportation goals and objectives for realizing that vision, decide which needs to address, and determine the timeframe for addressing these issues. The transportation planning process also provides a potential forum to define a project’s purpose and need by framing the scope of the problem to be addressed by a proposed project. This scope may be further refined during the transportation planning process as more information about the transportation need is collected and consultation with the PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 34161 public and other stakeholders clarifies other issues and goals for the region. 23 U.S.C. 139(f), as amended by the SAFETEA–LU Section 6002, provides additional focus regarding the definition of the purpose and need and objectives. For example, the lead agency, as early as practicable during the environmental review process, shall provide an opportunity for involvement by participating agencies and the public in defining the purpose and need for a project. The statement of purpose and need shall include a clear statement of the objectives that the proposed action is intended to achieve, which may include: (a) Achieving a transportation objective identified in an applicable statewide or metropolitan transportation plan; (b) supporting land use, economic development, or growth objectives established in applicable Federal, State, local, or Tribal plans; and (c) serving national defense, national security, or other national objectives, as established in Federal laws, plans, or policies. The transportation planning process can be utilized to develop the purpose and need in the following ways: (a) Goals and objectives from the transportation planning process may be part of the project’s purpose and need statement; (b) A general travel corridor or general mode or modes (e.g., highway, transit, or a highway/transit combination) resulting from planning analyses may be part of the project’s purpose and need statement; (c) If the financial plan for a metropolitan transportation plan indicates that funding for a specific project will require special funding sources (e.g., tolls or public-private financing), such information may be included in the purpose and need statement; or (d) The results of analyses from management systems (e.g., congestion, pavement, bridge, and/or safety) may shape the purpose and need statement. The use of these planning-level goals and choices must be appropriately explained during NEPA scoping and in the NEPA document. Consistent with NEPA, the purpose and need statement should be a statement of a transportation problem, not a specific solution. However, the purpose and need statement should be specific enough to generate alternatives that may potentially yield real solutions to the problem at-hand. A purpose and need statement that yields only one alternative may indicate a purpose and need that is too narrowly defined. Short of a fully integrated transportation decision-making process, many State DOTs develop information for their purpose and need statements when implementing interagency NEPA/Section 404 process merger agreements. These agreements may need to be expanded to include commitments to share and utilize transportation planning products when developing a project’s purpose and need. 9. Under what conditions can the NEPA process be initiated in conjunction with transportation planning studies? The NEPA process may be initiated in conjunction with transportation planning E:\FR\FM\27MYR3.SGM 27MYR3 34162 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations studies in a number of ways. A common method is the ‘‘tiered EIS,’’ in which the firsttier EIS evaluates general travel corridors, modes, and/or packages of projects at a planning level of detail, leading to the refinement of purpose and need and, ideally, selection of the design concept and scope for a project or series of projects. Subsequently, second-tier NEPA review(s) of the resulting projects would be performed in the usual way. The first-tier EIS uses the NEPA process as a tool to involve environmental, regulatory, and resource agencies and the public in the planning decisions, as well as to ensure the appropriate consideration of environmental factors in these planning decisions. Corridor or subarea analyses/studies are another option when the long-range transportation plan leaves open the possibility of multiple approaches to fulfill its goals and objectives. In such cases, the formal NEPA process could be initiated through publication of a NOI in conjunction with a corridor or subarea planning study. Alternatives mstockstill on DSK3G9T082PROD with RULES3 10. In the context of this Appendix, what is the meaning of the term ‘‘alternatives’’? This Appendix uses the term ‘‘alternatives’’ as specified in the NEPA regulations (40 CFR 1502.14), where it is defined in its broadest sense to include everything from major modal alternatives and location alternatives to minor design changes that would mitigate adverse impacts. This Appendix does not use the term as it is used in many other contexts (e.g., ‘‘prudent and feasible alternatives’’ under Section 4(f) of the Department of Transportation Act or the ‘‘Least Environmentally Damaging Practicable Alternative’’ under the Clean Water Act. 11. Under what circumstances can alternatives be eliminated from detailed consideration during the NEPA process based on information and analysis from the transportation planning process? There are two ways in which the transportation planning process can begin limiting the alternative solutions to be evaluated during the NEPA process: (a) Shaping the purpose and need for the project; or (b) evaluating alternatives during planning studies and eliminating some of the alternatives from detailed study in the NEPA process prior to its start. Each approach requires careful attention, and is summarized below. (a) Shaping the Purpose and Need for the Project: The transportation planning process should shape the purpose and need and, thereby, the range of reasonable alternatives. With proper documentation and public involvement, a purpose and need derived from the planning process can legitimately narrow the alternatives analyzed in the NEPA process. See the response to Question 8 for further discussion on how the planning process can shape the purpose and need used in the NEPA process. For example, the purpose and need may be shaped by the transportation planning process in a manner that consequently narrows the range of alternatives that must be VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 considered in detail in the NEPA document when: (1) The transportation planning process has selected a general travel corridor as best addressing identified transportation problems and the rationale for the determination in the planning document is reflected in the purpose and need statement of the subsequent NEPA document; (2) The transportation planning process has selected a general mode (e.g., highway, transit, or a highway/transit combination) that accomplishes its goals and objectives, and these documented determinations are reflected in the purpose and need statement of the subsequent NEPA document; or (3) The transportation planning process determines that the project needs to be funded by tolls or other non-traditional funding sources in order for the long-range transportation plan to be fiscally constrained or identifies goals and objectives that can only be met by toll roads or other nontraditional funding sources, and that determination of those goals and objectives is reflected in the purpose and need statement of the subsequent NEPA document. (b) Evaluating and Eliminating Alternatives During the Transportation Planning Process: The evaluation and elimination of alternatives during the transportation planning process can be incorporated by reference into a NEPA document under certain circumstances. In these cases, the planning study becomes part of the NEPA process and provides a basis for screening out alternatives. As with any part of the NEPA process, the analysis of alternatives to be incorporated from the process must have a rational basis that has been thoroughly documented (including documentation of the necessary and appropriate vetting through the applicable public involvement processes). This record should be made available for public review during the NEPA scoping process. See responses to Questions 4, 5, 6, and 7 for additional elements to consider with respect to acceptance of planning products for NEPA documentation and the response to Question 12 on the information or analysis from the transportation planning process necessary for supporting the elimination of an alternative(s) from detailed consideration in the NEPA process. Development of planning Alternatives Analysis studies, required prior to MAP–21 for projects seeking funds through FTA’s Capital Investment Grant program, are now optional, but may still be used to narrow the alternatives prior to the NEPA review, just as other planning studies may be used. In fact, through planning studies, FTA may be able to narrow the alternatives considered in detail in the NEPA document to the No-Build (No Action) alternative and the Locally Preferred Alternative. If the planning process has included the analysis and stakeholder involvement that would be undertaken in a first tier NEPA process, then the alternatives screening conducted in the transportation planning process may be incorporated by reference, described, and relied upon in the project-level NEPA document. At that point, the project-level NEPA analysis can focus on the remaining alternatives. PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 12. What information or analysis from the transportation planning process is needed in an EA or EIS to support the elimination of an alternative(s) from detailed consideration? The section of the EA or EIS that discusses alternatives considered but eliminated from detailed consideration should: (a) Identify any alternatives eliminated during the transportation planning process (this could include broad categories of alternatives, as when a long-range transportation plan selects a general travel corridor based on a corridor study, thereby eliminating all alternatives along other alignments); (b) Briefly summarize the reasons for eliminating the alternative; and (c) Include a summary of the analysis process that supports the elimination of alternatives (the summary should reference the relevant sections or pages of the analysis or study) and incorporate it by reference or append it to the NEPA document. Any analyses or studies used to eliminate alternatives from detailed consideration should be made available to the public and participating agencies during the NEPA scoping process and should be reasonably available during comment periods. Alternatives passed over during the transportation planning process because they are infeasible or do not meet the NEPA ‘‘purpose and need’’ can be omitted from the detailed analysis of alternatives in the NEPA document, as long as the rationale for elimination is explained in the NEPA document. Alternatives that remain ‘‘reasonable’’ after the planning-level analysis must be addressed in the EIS, even when they are not the preferred alternative. When the proposed action evaluated in an EA involves unresolved conflicts concerning alternative uses of available resources, NEPA requires that appropriate alternatives be studied, developed, and described. Affected Environment and Environmental Consequences 13. What types of planning products provide analysis of the affected environment and environmental consequences that are useful in a project-level NEPA analysis and document? The following planning products are valuable inputs to the discussion of the affected environment and environmental consequences (both its current state and future state in the absence of the proposed action) in the project-level NEPA analysis and document: • Regional development and growth analyses; • Local land use, growth management, or development plans; and • Population and employment projections. The following are types of information, analysis, and other products from the transportation planning process that can be used in the discussion of the affected environment and environmental consequences in an EA or EIS: (a) Geographic information system (GIS) overlays showing the past, current, or predicted future conditions of the natural and built environments; E:\FR\FM\27MYR3.SGM 27MYR3 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations (b) Environmental scans that identify environmental resources and environmentally sensitive areas; (c) Descriptions of airsheds and watersheds; (d) Demographic trends and forecasts; (e) Projections of future land use, natural resource conservation areas, and development; and (f) The outputs of natural resource planning efforts, such as wildlife conservation plans, watershed plans, special area management plans, and multiple species habitat conservation plans. However, in most cases, the assessment of the affected environment and environmental consequences conducted during the transportation planning process will not be detailed or current enough to meet NEPA standards and, thus, the inventory and evaluation of affected resources and the analysis of consequences of the alternatives will need to be supplemented with more refined analysis and possibly site-specific details during the NEPA process. mstockstill on DSK3G9T082PROD with RULES3 14. What information from the transportation planning process is useful in describing a baseline for the NEPA analysis of indirect and cumulative impacts? Because the nature of the transportation planning process is to look broadly at future land use, development, population increases, and other growth factors, the planning analysis can provide the basis for the assessment of indirect and cumulative impacts required under NEPA. The consideration in the transportation planning process of development, growth, and consistency with local land use, growth management, or development plans, as well as population and employment projections, provides an overview of the multitude of factors in an area that are creating pressures not only on the transportation system, but on the natural ecosystem and important environmental and community resources. An analysis of all reasonably foreseeable actions in the area also should be a part of the transportation planning process. This planning-level information should be captured and utilized in the analysis of indirect and cumulative impacts during the NEPA process. To be used in the analysis of indirect and cumulative impacts, such information should: (a) Be sufficiently detailed that differences in consequences of alternatives can be readily identified; (b) Be based on current data (e.g., data from the most recent Census) or be updated by additional information; (c) Be based on reasonable assumptions that are clearly stated; and/or (d) Rely on analytical methods and modeling techniques that are reliable, defensible, and reasonably current. Environmental Mitigation 15. How can planning-level efforts best support advance mitigation, mitigation banking, and priorities for environmental mitigation investments? A lesson learned from efforts to establish mitigation banks and advance mitigation VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 agreements and alternative mitigation options is the importance of beginning interagency discussions during the transportation planning process. Development pressures, habitat alteration, complicated real estate transactions, and competition for potential mitigation sites by public and private project proponents can encumber the already difficult task of mitigating for ‘‘like’’ value and function and reinforce the need to examine mitigation strategies as early as possible. Robust use of remote sensing, GIS, and decision support systems for evaluating conservation strategies are all contributing to the advancement of natural resource and environmental planning. The outputs from environmental planning can now better inform transportation planning processes, including the development of mitigation strategies, so that transportation and conservation goals can be optimally met. For example, long-range transportation plans can be screened to assess the effect of general travel corridors or density, on the viability of sensitive plant and animal species or habitats. This type of screening provides a basis for early collaboration among transportation and environmental staffs, the public, and regulatory agencies to explore areas where impacts must be avoided and identify areas for mitigation investments. This can lead to mitigation strategies that are both more economical and more effective from an environmental stewardship perspective than traditional project-specific mitigation measures. III. Administrative Issues 16. Are Federal funds eligible to pay for these additional, or more in depth, environmental studies in transportation planning? Yes. For example, the following FHWA and FTA funds may be utilized for conducting environmental studies and analyses within transportation planning: • FHWA planning and research funds, as defined under 23 CFR part 420 (e.g., Metropolitan Planning (PL), Statewide Planning and Research (SPR), National Highway System (NHS), STP, and Equity Bonus); and • FTA planning and research funds (49 U.S.C. 5303), urban formula funds (49 U.S.C. 5307), and (in limited circumstances) transit capital investment funds (49 U.S.C. 5309). The eligible transportation planningrelated uses of these funds may include: (a) Conducting feasibility or subarea/corridor needs studies and (b) developing systemwide environmental information/inventories (e.g., wetland banking inventories or standards to identify historically significant sites). Particularly in the case of PL and SPR funds, the proposed expenditure must be closely related to the development of transportation plans and programs under 23 U.S.C. 134–135 and 49 U.S.C. 5303–5306. For FHWA funding programs, once a general travel corridor or specific project has progressed to a point in the preliminary engineering/NEPA phase that clearly extends beyond transportation planning, additional in-depth environmental studies must be funded through the program category for which the ultimate project qualifies (e.g., PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 34163 NHS, STP, Interstate Maintenance, and/or Bridge), rather than PL or SPR funds. Another source of funding is FHWA’s Transportation Enhancement program, which may be used for activities such as: conducting archeological planning and research; developing inventories such as those for historic bridges and highways, and other surface transportation-related structures; conducting studies to determine the extent of water pollution due to highway runoff; and conducting studies to reduce vehicle-caused wildlife mortality while maintaining habitat connectivity. The FHWA and the FTA encourage State DOTs, MPOs, and public transportation operators to seek partners for some of these studies from environmental, regulatory, and resource agencies, non-government organizations, and other government and private sector entities with similar data needs, or environmental interests. In some cases, these partners may contribute data and expertise to the studies, as well as funding. 17. What staffing or organizational arrangements may be helpful in allowing planning products to be accepted in the NEPA process? Certain organizational and staffing arrangements may support a more integrated approach to the planning/NEPA decisionmaking continuum. In many cases, planning organizations do not have environmental expertise on staff or readily accessible. Likewise, the review and regulatory responsibilities of many environmental, regulatory, and resource agencies make involvement in the transportation planning process a challenge for staff resources. These challenges may be partially met by improved use of the outputs of each agency’s planning resources and by augmenting their capabilities through greater use of GIS and remote sensing technologies (see https:// www.gis.fhwa.dot.gov/ for additional information on the use of GIS). Sharing databases and the planning products of local land use decision-makers and State and Federal environmental, regulatory, and resource agencies also provide efficiencies in acquiring and sharing the data and information needed for both transportation planning and NEPA work. Additional opportunities such as shared staff, training across disciplines, and (in some cases) reorganizing to eliminate structural divisions between planning and NEPA practitioners may also need to be considered in order to better integrate NEPA considerations into transportation planning studies. The answers to the following two questions also contain useful information on training and staffing opportunities. 18. How have environmental, regulatory, and resource agency liaisons (Federally and State DOT funded positions) and partnership agreements been used to provide the expertise and interagency participation needed to enhance the consideration of environmental factors in the planning process? For several years, States have utilized Federal and State transportation funds to support focused and accelerated project E:\FR\FM\27MYR3.SGM 27MYR3 34164 Federal Register / Vol. 81, No. 103 / Friday, May 27, 2016 / Rules and Regulations review by a variety of local, State, Tribal, and Federal agencies. While Section 1309(e) of the TEA–21 and its successor in SAFETEA– LU section 6002 speak specifically to transportation project streamlining, there are other authorities that have been used to fund positions, such as the Intergovernmental Cooperation Act (31 U.S.C. 6505). In addition, long-term, on-call consultant contracts can provide backfill support for staff that are detailed to other parts of an agency for temporary assignments. At last count (as of 2015), over 200 positions were being funded. Additional information on interagency funding agreements is available at: https://environment.fhwa.dot.gov/strmlng/ igdocs/index.htm. Moreover, every State has advanced a variety of stewardship and streamlining initiatives that necessitate early involvement of environmental, regulatory, and resource agencies in the project development process. Such process improvements have: addressed the exchange of data to support avoidance and impact analysis; established formal and informal consultation and review schedules; advanced mitigation strategies; and resulted in a variety of programmatic reviews. Interagency agreements and work plans have evolved to describe performance objectives, as well as specific roles and responsibilities related to new streamlining initiatives. Some States have improved collaboration and efficiency by co-locating environmental, regulatory, and resource and transportation agency staff. mstockstill on DSK3G9T082PROD with RULES3 19. What training opportunities are available to MPOs, State DOTs, public transportation operators and environmental, regulatory, and resource agencies to assist in their understanding of the transportation planning and NEPA processes? Both the FHWA and the FTA offer a variety of transportation planning, public involvement, and NEPA courses through the National Highway Institute and/or the National Transit Institute. Of particular note is the Linking Planning and NEPA Workshop, which provides a forum and facilitated group discussion among and between State DOT; MPO; Federal, Tribal, and State environmental, regulatory, and resource agencies; and FHWA/FTA representatives (at both the executive and program manager levels) to develop a Statespecific action plan that will provide for strengthened linkages between the transportation planning and NEPA processes. Moreover, the U.S. Fish and Wildlife Service offers Green Infrastructure Workshops that are focused on integrating planning for natural resources (‘‘green infrastructure’’) with the development, economic, and other infrastructure needs of society (‘‘gray infrastructure’’). Robust planning and multi-issue environmental screening requires input from VerDate Sep<11>2014 18:54 May 26, 2016 Jkt 238001 a wide variety of disciplines, including information technology; transportation planning; the NEPA process; and regulatory, permitting, and environmental specialty areas (e.g., noise, air quality, and biology). Senior managers at transportation and partner agencies can arrange a variety of individual training programs to support learning curves and skill development that contribute to a strengthened link of the transportation planning and NEPA processes. Formal and informal mentoring on an intraagency basis can be arranged. Employee exchanges within and between agencies can be periodically scheduled, and persons involved with professional leadership programs can seek temporary assignments with partner agencies. IV. Additional Information on This Topic Valuable sources of information are FHWA’s environment Web site (https:// www.fhwa.dot.gov/environment/index.htm) and FTA’s environmental streamlining Web site (https://www.environment.fta.dot.gov). Another source of information and case studies is NCHRP Report 8–38 (Consideration of Environmental Factors in Transportation Systems Planning), which is available at https://www4.trb.org/trb/crp.nsf/All+Projects/ NCHRP+8-38. In addition, AASHTO’s Center for Environmental Excellence Web site is continuously updated with news and links to information of interest to transportation and environmental professionals (www.transportation.environment.org). PART 771—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES 2. The authority citation for part 771 is revised to read as follows: ■ Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 139, 168, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR parts 1500– 1508; 49 CFR 1.81, 1.85; Pub. L. 109–59, 119 Stat. 1144, sections 6002 and 6010; Pub. L. 112–141, 126 Stat. 405, sections 1310, 1315, 1316, 1317, and 1318. 3. Amend § 771.111 as follows: a. Remove footnote 3; b. Redesignate footnotes 4 and 5 as footnotes 3 and 4, respectively; ■ c. Revise paragraph (a)(2) to read as follows: ■ ■ ■ 1502.21, and 23 CFR 450.212(b) or 450.318(b). In addition, planning products may be adopted and used in accordance with 23 CFR 450.212(d) or 450.318(e), which implement 23 U.S.C. 168. * * * * * § 771.139 ■ [Amended] 4. Redesignate footnote 6 as footnote 5. Title 49—Transportation 5. Revise 49 CFR part 613 to read as follows: ■ PART 613—METROPOLITAN AND STATEWIDE AND NONMETROPOLITAN PLANNING Subpart A—Metropolitan Transportation Planning and Programming Sec. 613.100 Metropolitan transportation planning and programming. Subpart B—Statewide and Nonmetropolitan Transportation Planning and Programming Sec. 613.200 Statewide and nonmetropolitan transportation planning and programming. Authority: 23 U.S.C. 134, 135, and 217(g); 42 U.S.C. 3334, 4233, 4332, 7410 et seq.; 49 U.S.C. 5303–5306, 5323(k); and 49 CFR 1.85, 1.51(f) and 21.7(a). Subpart A—Metropolitan Transportation Planning and Programming § 613.100 Metropolitan transportation planning and programming. The regulations in 23 CFR part 450, subpart C, shall be followed in complying with the requirements of this subpart. The definitions in 23 CFR part 450, subpart A, shall apply. Subpart B—Statewide and Nonmetropolitan Transportation Planning and Programming § 771.111 Early coordination, public involvement, and project development. § 613.200 Statewide and nonmetropolitan transportation planning and programming. * The regulations in 23 CFR part 450, subpart B, shall be followed in complying with the requirements of this subpart. The definitions in 23 CFR part 450, subpart A, shall apply. * * * * (a) * * * (2) The information and results produced by, or in support of, the transportation planning process may be incorporated into environmental review documents in accordance with 40 CFR PO 00000 Frm 00116 Fmt 4701 Sfmt 9990 [FR Doc. 2016–11964 Filed 5–26–16; 8:45 am] BILLING CODE P E:\FR\FM\27MYR3.SGM 27MYR3

Agencies

[Federal Register Volume 81, Number 103 (Friday, May 27, 2016)]
[Rules and Regulations]
[Pages 34049-34164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11964]

[[Page 34049]]

Vol. 81

Friday,

No. 103

May 27, 2016

Part III

Department of Transportation

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Federal Highway Administration

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23 CFR Parts 450 and 771

Federal Transit Administration

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49 CFR Part 613

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

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

[[Page 34050]]

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 450 and 771

Federal Transit Administration

49 CFR Part 613

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

Statewide and Nonmetropolitan Transportation Planning;
Metropolitan Transportation Planning

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

ACTION: Final rule.

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

DATES: Effective June 27, 2016.

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

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

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

Table of Contents for Supplementary Information

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

I. Executive Summary

A. Purpose of the Regulatory Action

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

[[Page 34051]]

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

B. Summary of Major Provisions and Key Changes From NPRM

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

[[Page 34052]]

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

[[Page 34053]]

and 450.216, without alteration from the NPRM, in which State
``consultation'' with local officials or RTPOs, if applicable, was
changed to ``cooperation'' and States have the option to establish and
designate RTPOs to conduct transportation planning in nonmetropolitan
areas. Section 450.210(d)(1) provides the option that a State may
establish an RTPO which shall be a multijurisdictional organization of
nonmetropolitan local officials or their designees who volunteer for
such organizations and representatives of local transportation systems
who volunteer for such organizations. The FHWA and FTA note that the
establishment of an RTPO by a State is optional and that a State can
choose to retain its existing rural planning organizations (RPO).
However, the final rule affirms that in order to be treated as an RTPO
under this regulation, any existing regional planning organization must
be established and designated as an RTPO under the provisions of this
section. The final rule describes its required structure and
responsibilities.
Related to the new emphasis on nonmetropolitan transportation
planning, FHWA and FTA did not include the proposed change to the
definition of ``consideration'' in section 450.104. Multiple commenters
noted that to require States and MPOs to take into account the
consequences, in addition to the opinions, actions, and relevant
information from other parties when making a decision or determining a
course of action, would be extraordinarily burdensome and with limited
benefit. The FHWA and FTA also corrected sections 450.216(h) and
450.218(c) to refer to the new requirements for a cooperative process
in section 450.210.
3. Additions to the Metropolitan Planning Process
The MAP-21 made two changes specific to the metropolitan planning
process to support the effective implementation of performance-based
approach to planning and programming. The first change affects the
policy board structure of large MPOs. For each MPO serving a TMA, the
planning statutes and this final regulation identify a list of
government or agency officials that must be on that policy board. The
June 2, 2014, FHWA and FTA Guidance on Transit Representation on the
TMA MPO \13\ is superseded by revisions to section 450.310 in the final
rule. Section 450.310(d)(3) in the NPRM became section 450.310(d)(4) in
the final rule and is unchanged. The new section 450.310(d)(3) requires
that representation by operators of public transportation be added to
this list of officials. The final rule establishes that every MPO that
serves an area designated as a TMA must include an official (or
officials) who is formally designated to represent the collective
interests of the operators of public transportation in the MPA and will
have equal decisionmaking rights and authorities as other officials on
its policy board. Related to this requirement, FHWA and FTA did not
include the proposed definitions for ``local official'' and ``major
modes of transportation'' in the final rule. As the NPRM already
included a definition of ``nonmetropolitan local official,'' and
section 450.310 identifies ``local elected official,'' FHWA and FTA
deleted the definition of ``local official.'' With respect to ``major
modes of transportation,'' FHWA and FTA concur with comments that the
definition is overly broad and could be read to include all forms of
transportation, including non-major modes, and that MPOs are in the
best position to define what constitutes a major mode of transportation
in their respective MPAs. The FHWA and FTA will continue to work with
each MPO to determine what major modes exist in their MPA so that they
are included appropriately in the MPO structure.
---------------------------------------------------------------------------

\13\ 79 FR 31214.
---------------------------------------------------------------------------

The second change in section 450.324 of the final rule provides
that MPOs may use scenario planning during the development of their
plans. Scenario planning is an analytical framework to inform
decisionmakers about the implications of various investments and
policies on transportation system condition and performance during the
development of their plan.
4. Use of Planning Products in Project Development
In addition to changing the planning statutes, the MAP-21 and FAST
made changes to project delivery provisions concerning coordination
between the transportation planning process and the environmental
review process. The FHWA and FTA have long supported the use of
planning products and decisions during the environmental review
process, an approach referred to as Planning and Environmental Linkages
(PEL). Under PEL, Federal agencies use and rely on planning analyses,
studies, decisions, or other information for the project development
and environmental review of transportation projects. With PEL, FHWA and
FTA may, for example: Establish a project's purpose and need by relying
on the goal and objective developed during the planning process;
eliminate the need to further consider alternatives deemed to be
unreasonable by relying on analyses conducted to evaluate the
alternatives during planning; rely on future land use plans as a source
of information for the cumulative impacts analysis required under
National Environmental Policy Act (NEPA); carry forward suitable
mitigation measures and approaches identified through the planning
process; or establish the modal choice selections for the consideration
of reasonable alternatives to address the identified need, provided
that such strategies are consistent with NEPA for the particular
project. The final rule explicitly recognizes a variety of PEL methods
that may be used to integrate planning with environmental reviews. The
PEL provisions are in sections 450.212 and 450.318. Only sections
450.212(d) and 450.318(e) are new provisions, added as a result of the
PEL authority created in the MAP-21 and substantially amended in FAST.
In the final rule, sections 450.212(a) and 450.318(a) describe the
PEL approach developed by FHWA and FTA, based on NEPA regulations,
guidance, and case law. Sections 450.212(b) and 450.318(b) retain the
prior rule's provisions on using documents and other source materials
through incorporation by reference pursuant to NEPA regulations at 40
CFR 1502.21. Sections 450.212(c), 450.318(c), and 450.318(d) keep
language from the prior rule addressing integration by means of
agreement of the NEPA lead agencies, including the use of tiering,
incorporation of planning corridor or subarea studies into the NEPA
document, and other means. Sections 450.212(c) and 450.318(d) retain
the prior rule's description of the non-binding guidance in Appendix A
to part 450, which discusses the integration of planning and
environmental reviews. The FHWA and FTA made minor revisions to
Appendix A in the final rule. These revisions include deleting the text
in the response to question 16 that describes 49 U.S.C. 5313(b) funds
as an eligible source of funds for conducting environmental studies and
analyses within transportation planning. This change was made because
49 U.S.C. 5313(b) funds are not an eligible source of planning funds
for conducting environmental studies and analyses within transportation
planning. In another revision to Appendix A in the final rule, under
the response to question 18, FHWA and FTA have

[[Page 34054]]

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

[[Page 34055]]

and have included it in the final rule without alteration.

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

[[Page 34056]]

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

C. Costs and Benefits

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

[[Page 34057]]

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

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

[[Page 34058]]

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

II. Acronyms and Abbreviations

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

[[Page 34059]]

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

[[Page 34060]]

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

III. Background

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

A. Introduction to the Planning Process

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

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

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

[[Page 34061]]

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

C. Stakeholder Engagement

After the publication of the NPRM on June 2, 2014, FHWA and FTA
continued to engage stakeholders during the NPRM comment period. The
FHWA and FTA hosted two national webinars with stakeholders on the
content of the NPRM. The FHWA and FTA also responded to requests for
presentations at regularly scheduled meetings or conferences of
national and regional professional, industry, or advocacy organizations
during the comment period of the NPRM. Those webinars and meetings
provided an opportunity for FHWA and FTA to provide an overview of the
NPRM and offer clarifications of selected provisions. Comments were not
solicited at those meetings, and attendees were encouraged to submit
all comments to the official docket. A summary of those webinars and
meetings is included in the docket.

IV. Summary of Comments

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

A. Selected Topics for Which FHWA and FTA Requested Comments

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

[[Page 34062]]

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

[[Page 34063]]

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

[[Page 34064]]

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

[[Page 34065]]

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

B. Recurring Comment Themes on Major Provisions of the Rule

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

[[Page 34066]]

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

[[Page 34067]]

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

[[Page 34068]]

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

[[Page 34069]]

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

[[Page 34070]]

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

[[Page 34071]]

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

[[Page 34072]]

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

[[Page 34073]]

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

[[Page 34074]]

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

[[Page 34075]]

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

[[Page 34076]]

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

[[Page 34077]]

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

[[Page 34078]]

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

[[Page 34079]]

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

[[Page 34080]]

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

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

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

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

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

[[Page 34081]]

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

V. Section-by-Section Discussion

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

Subpart A--Transportation Planning and Programming Definitions

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

[[Page 34082]]

and definitions in section 450.104. Commenters included Albany MPO,
AASHTO, AMPO, Capital Area MPO, CT DOT, ID DOT, MT DOT, ND DOT, SD DOT,
WY DOT, Florida MPO Advisory Council, Houston MPO, IA DOT, ME DOT, MN
DOT, MT DOT, NARC, the National Housing Conference, the National Trust
for Historic Preservation, NCTCOG/RTC, ND DOT, NRDC, NJ DOT, NYMTA, OK
DOT, Portland Metro (a transit operator), Richmond MPO, SCCRTC, TN DOT,
TX DOT, WFRC, WA State DOT, Westchester County Department of Public
Works and Transportation, and WY DOT. Fifteen of the comments were from
States, eight were from MPOs, five were from associations representing
public transportation agencies, three were from advocacy groups, one
was from a regional planning agency, and one was from a local
government. The OK DOT requested that FHWA and FTA ensure that the
proposed definitions retain the verbiage in 23 U.S.C. 134 and 23 U.S.C.
135 and that they are clear and serve the intent of the law. The FHWA
and FTA concur with this comment and strive to ensure that all
definitions proposed are clear and consistent with 23 U.S.C.134 and 135
and 49 U.S.C. 5303 and 5304.
Amendment--Five comments (NARC, NYMTA, SCCRTC, TN DOT, and WFRC)
sought clarity with respect to the proposed changes to the definition
of the term ``amendment.'' In the NPRM, FHWA and FTA proposed to change
the definition of amendment to clarify that a conformity determination
is not a criterion for determining the need for an amendment in
nonattainment and maintenance areas, and also proposed to add a transit
example of a change in design concept or scope to the definition of
amendment. The TN DOT stated that the proposed revision to more
accurately reflect the relationship of the Clean Air Act's
transportation conformity requirements to the planning process was
confusing, noting that TIP amendments usually trigger a conformity
determination not vice versa.
The FHWA and FTA response to this comment is that, as described in
the NPRM's section-by-section analysis, the proposed definition
clarifies that a conformity determination is not a criterion for
determining the need for an amendment in nonattainment and maintenance
areas.
Three commenters (NARC, SCCRTC, and WFRC) requested that FHWA and
FTA not include the proposed phrase ``changing the number of stations
in the case of fixed guideway transit projects'' to the list of
examples of major changes in design concept or design scope as they
feel requiring amendments for every time the number of stations changes
is too burdensome.
In response to this comment, FHWA and FTA included the phrase
``changing the number of stations in the case of fixed guideway transit
projects'' in the final rule, as proposed in the NPRM in order to add a
transit example of a change in design concept or design scope to the
definition.
The NYMTA commented that the definition of amendment should be
revised to note that an amendment to a TIP does not trigger a
reassessment of the TIP's impact on achieving performance targets. The
FHWA and FTA respond that the commenter is correct, amendments to a TIP
do not trigger the requirement in section 450.326(d) to include a
description of the anticipated effect of the TIP toward achieving the
performance targets. Only an update to the TIP triggers the
requirements in section 450.326(d). The FHWA and FTA do not believe it
is necessary or desirable to include this as part of the definition of
amendment in section 450.104 as it would make the definition lengthy
and overly complicated. In response to these comments, FHWA and FTA did
not change the definition of amendment in the final rule.
Asset Management--The TX DOT requested that the new definition of
the term ``asset management'' references the NHS since 23 U.S.C. 119(e)
specifies a risk-based asset management plan for the NHS only. The FHWA
and FTA retained the definition as proposed because it is identical to
the definition in section 1103 of the MAP-21 (23 U.S.C. 101(a)(2)) and
refers to the asset management plan requirements for both the NHS and
public transportation agencies. The FHWA and FTA also note that the
asset management plan for the NHS may also include non-NHS assets. The
IA DOT noted that the lack of definitions for performance measures,
performances targets, transit asset management plan, and transit asset
management system makes it difficult to interpret the regulations
related to these items. In response, FHWA and FTA note that the
definitions for performance measures, performance targets, transit
asset management plan, and transit asset management system will be
provided in the rulemakings on those topics.
Attainment Area--The FHWA and FTA did not propose changing the
definition of attainment area in the NPRM or in the final rule.
However, FHWA and FTA clarify that a maintenance area that has
satisfied the maintenance planning period requirements as stated in
section 175A of the Clean Air Act is considered an attainment area for
transportation planning purposes. In general, the maintenance planning
period extends 20 years from the effective date of the Environmental
Protection Agency's (EPA) approval of the 10-year maintenance plan and
redesignation of the area to attainment for the NAAQS. For example, a
carbon monoxide (CO) area was redesignated as an attainment area and
the EPA approved its first 10-year maintenance plan for CO effective
April 30, 1993; and the area has a second maintenance plan, effective
April 30, 2003. In this example, the CO area would be considered an
attainment area for transportation planning purposes after April 30,
2013, if the area is attainment for all other transportation related
pollutants.
Conformity--The AASHTO requested that FHWA and FTA edit the
proposed definition of conformity by replacing the phrase ``in any
area'' with ``in a nonattainment or maintenance area,'' as SIPs also
apply to attainment areas, whereas conformity does not. The AMPO
commented that it wanted to change ``in any area'' to ``in an adequate
or approved SIP in a nonattainment or maintenance area.''
In response to these comments, the definition has been changed to
replace ``in any area'' with ``in a nonattainment or maintenance
area,'' as suggested by AASHTO and AMPO. The FHWA and FTA do not
believe that the additional text suggested by AMPO ``in an adequate or
approved SIP'' provides additional clarity. The FHWA and FTA made no
changes based on this additional comment. In the final rule, the term
conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement that
ensures that Federal funding and approval are given to transportation
plans, programs, and projects that are consistent with the air quality
goals established by a SSIP. Conformity, to the purpose of the SIP,
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
the NAAQS, any required interim emission reductions, or other
milestones in a non-attainment or maintenance area. The transportation
conformity regulations (40 CFR part 93, subpart A) sets forth policy,
criteria, and procedures for demonstrating and assuring conformity of
transportation activities.
Consideration--The AASHTO, six States (ID DOT, MT DOT, ND DOT, SD
DOT, TX DOT, and WY DOT) and one MPO (H-GAC) requested that FHWA and
FTA not include the word

[[Page 34083]]

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

Subpart B--Statewide and Nonmetropolitan Transportation Planning and
Programming

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

[[Page 34084]]

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

[[Page 34085]]

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

[[Page 34086]]

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

[[Page 34087]]

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

[[Page 34088]]

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

[[Page 34089]]

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

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

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

[[Page 34090]]

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

[[Page 34091]]

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

[[Page 34092]]

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

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

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

[[Page 34093]]

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

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

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

[[Page 34094]]

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

[[Page 34095]]

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

[[Page 34096]]

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

[[Page 34097]]

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

[[Page 34098]]

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

[[Page 34099]]

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

[[Page 34100]]

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

[[Page 34101]]

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

[[Page 34102]]

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

[[Page 34103]]

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

[[Page 34104]]

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

Subpart C--Metropolitan Transportation Planning and Programming

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

[[Page 34105]]

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

[[Page 34106]]

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

[[Page 34107]]

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

[[Page 34108]]

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

[[Page 34109]]

U.S.C. 5305(d), and 49 U.S.C. 5307. As described in section 450.308 of
the final rule, the States may provide funds received under 23 U.S.C.
104(b)(2) and 23 U.S.C. 505 to MPOs for metropolitan transportation
planning.
The Maui DOT commented that they feel that the FHWA and FTA cost
estimates for the implementation of the additional requirements related
to performance management may be low. See the RIA section for further
discussion on this issue. No changes were made to the final rule based
on these comments.
Section 450.310 Metropolitan Planning Organization Designation and
Redesignation
The FHWA and FTA received comments from 68 entities (AASHTO, AMPO,
APTA, ARC, BART, California Association for Coordinated Transportation,
CALTRANS, Charlotte MPO, Community Labor United, CT DOT, DVRPC,
Enterprise Community Partners, Florida MPO Advisory Council, FMATS,
Front Range Economic Strategy Center, H-GAC, Lincoln MPO, MA DOT,
Macatawa Coordinating Council, MARC, Maricopa AOG, MD DOT, MI DOT,
Miami-Dade MPO, MO DOT, MTC, NACTO, NARC, National Association of
Social Workers, National Housing Conference, National League of Cities,
NC DOT, NCTCOG/RTC, New York Association of MPOs, NJ DOT, NJTPA, North
Front Range MPO, Northwestern Indiana Regional Planning Commission
(NIRPC), NRDC, NYMTC, NYS DOT, PA DOT, Partnership for Working
Families, Policy Link, Public Advocates, Richmond Area MPO, River to
Sea TPO, SACOG, Safe Routes to School Partnership, SANDAG, San Joaquin
Transit, San Luis Obispo MPO, Santa Barbara Metropolitan Transit
District, SCAG, Sierra Club, SJCOG, South Florida Regional Transit
Authority, Southeast Wisconsin MPO, TN DOT, TriMet, TX DOT, US Travel
Association, WA State DOT, Westchester County Department of Public
Works and Transportation, WFRC, WI DOT, and WMATA) on the proposed
revisions to section 450.310. Section 450.310, consistent with MAP-21
and FAST requirements, would require the structure of an MPO serving a
TMA to include representation by operators of public transportation, in
addition to the officials identified in the existing regulations; and
that each MPO serving a TMA satisfy the structure requirements no later
than October 1, 2014. Commenters provided their perspectives and
recommendations on a range of issues related to the structure of MPO
policy boards that serve an area designated as a TMA. Nine commenters
(Community Labor United and the Public Transit-Public Good Coalition,
Enterprise Community Partners, Front Range Economic Strategy Center,
National Association of Social Workers, NRDC, Partnership for Working
Families, Policy Link, Public Advocates, Safe Routes to School
Partnership, and the National Housing Conference) recommended that the
final rule require that MPO boards be more representative of the
economic and racial make-up of the communities they serve to help
ensure that transportation planning is sensitive to the needs of all
residents.
The FHWA and FTA note that the final rule will continue to require
MPOs, through their public participation processes, to seek out and
consider the needs of those traditionally underserved by existing
transportation systems, such as low-income and minority communities,
who may face challenges accessing employment and other services. The
final rule requires MPOs to periodically review the effectiveness of
the procedures and strategies contained in the participation plan to
ensure a full and open participation process. Through certification
reviews of MPOs in areas that serve TMAs, FHWA and FTA work to confirm
that these MPOs are meeting their public participation requirements.
However, 23 U.S.C. 134(d)(1)(A) and 49 U.S.C. 5303(d)(1)(A) require
that MPOs be designated either by agreement between the Governor and
units of general purpose local government that together represent at
least 75 percent of the affected population (including the largest
incorporated city) or by procedures in applicable State or local laws.
These sections also provide that each MPO policy board that serves an
area designated as a TMA shall consist of local elected officials;
officials of public agencies that administer or operate major modes of
transportation in the metropolitan area, including representation by
operators of public transportation; and appropriate State officials.
The FHWA and FTA are fully committed to an inclusive transportation
planning process. However, the statute assigns the authority to the
Governor and local government officials to decide which local elected
officials, officials of public agencies, and appropriate State
officials will serve on an MPO policy board; or to procedures
established by applicable State or local law.
The U.S. Travel Association requested that each MPO or regional
planning board include a representative of the travel industry, noting
that it has a deep impact on the Nation's economy and workforce. The
data collected by the travel industry provides unique insights into
transportation trends and infrastructure needs across the country.
In response, FHWA and FTA reiterate that the statute \26\ requires
that each MPO that serves an area designated as a TMA must consist of
local elected officials; officials of public agencies that administer
or operate major modes of transportation in the metropolitan area,
including representation by operators of public transportation; and
appropriate State officials, except those MPOs that are exempt under 23
U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3). The FHWA and FTA note that
the final rule does include a new planning factor in sections
450.206(a)(10) and 450.306(b)(10) on enhancing travel and tourism for
States and MPOs to consider and implement as part of their
transportation planning processes as provided for in FAST sections 1201
and 1202 and in 23 U.S.C. 134(h)(1)(J) and 135(d)(1)(J). It also
includes a new requirement in section 450.316(b) that MPOs should
consult with agencies and officials responsible for tourism when
developing metropolitan transportation plans as described in FAST Act
section 1201 and in 23 U.S.C. 134(g)(3)(A).
---------------------------------------------------------------------------

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

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

[[Page 34110]]

undertaking a re-designation (an action that would require an agreement
between the Governor and units of general purpose government that
together represent at least 75 percent of the existing planning area
population including the largest incorporated city). Consequently, the
final rule provides that MPOs that serve a TMA must include a formally
designated representative of operators of public transportation.
The FHWA and FTA also proposed in the preamble to the NPRM that
representatives of operators of public transportation would have equal
decisionmaking rights and authorities as other officials who are on the
policy board of an MPO that serves a TMA. The BART, CALTRANS, Charlotte
RTPO, Enterprise Community Partners, MA DOT, MO DOT, National Housing
Conference, NCTCOG/RTC, NRDC, NYMTA, River to the Sea TPO, Santa
Barbara Transit, SFRTA, Sierra Club, SJRTD, and WFRC, expressed support
for the proposal that a representative of operators of public
transportation is both included on MPO policy boards and given equal
decisionmaking rights. The MA DOT expressed support for the requirement
for public transportation membership on the policy board of an MPO and
the equality of decisionmaking rights by transportation officials or
their representative staff. The MA DOT also noted that each of the 10
MPOs and 3 RTPOs in the Commonwealth of Massachusetts have active
representation and participation of their respective public
transportation operators on the boards by regional transit
administrators and/or transit staff.
The FHWA and FTA believe that the long-standing requirement to
include public transportation representation on each MPO serving a TMA,
made explicit in MAP-21 and FAST, supports the new performance
requirements for operators of public transportation, including: The
coordination of MPO targets with operators of public transportation,
the coordination of public transportation operator targets with MPOs,
and the integration of public transportation performance plans into the
metropolitan transportation planning process. Given these new
performance responsibilities, the FHWA and FTA believe that operators
of public transportation need to participate in the MPO's
decisionmaking process. The FHWA and FTA do not concur with the comment
by the DVRPC that there are a number of effective ways for transit
agencies to be fully represented in the metropolitan planning process
apart from voting membership on the MPO board. Consequently, the final
rule provides that, similar to section 1201 of the FAST Act which
amends 23 U.S.C. 134(d)(3)(C), the representative of public
transportation has responsibilities, actions, duties, voting rights,
and any other authority commensurate with other officials described in
section 450.310(d)(1).
The MA DOT sought more clarity covering what constitutes a transit
provider since there are sometimes a wide range of service providers in
a single MPO, including RTAs, TMAs, and health care transit operations.
In response, FHWA and FTA note that the final rule defines the term
``public transportation operator'' in section 450.104. According to
this definition, a public transportation operator is the public entity
or government approved authority that participates in the continuing,
cooperative, and comprehensive transportation planning process in
accordance with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, and
is a recipient of Federal funds under title 49 U.S.C. Chapter 53 for
transportation by a conveyance that provides regular and continuing
general or special transportation to the public, but does not include
sightseeing, school bus, charter, certain types of shuttle service,
intercity bus transportation, or intercity passenger rail
transportation provided by the National Railroad Passenger Corporation
(also known as ``Amtrak'').
The FHWA and FTA stated in the preamble to the NPRM that it is up
to the MPO, in cooperation with operators of public transportation, to
determine how this representation will be structured and established.
The APTA expressed appreciation for this broad latitude afforded to
MPOs as it accounts for varying governance models. However, it
requested that FHWA and FTA categorically state that an MPO member
based on elective or appointed office that coincidentally sits on a
transit board does not fulfill the MAP-21 requirement for
representation by operators of public transportation. This position is
supported by all other operators of public transportation who submitted
comments to the docket (BART, FMATS, NYMTA, Orange County Transit
Authority, Santa Barbara Transit Authority, SJCOG, TriMet, and WMATA,
and the Sierra Club).
The BART noted that ``While many city and county representatives
currently serving on MPOs are sincere in their efforts to incorporate
the needs and perspectives of public transit, it is only through direct
participation of the providers themselves that MPOs can best understand
the complex and technical needs of public transit providers.'' The
WMATA noted that it could not easily imagine how the transportation
modes in general, and public transportation in particular, can be
assured of exercising the equal decisionmaking rights and authorities
essential to realizing the MAP-21 intentions if MPO board members are
allowed to ``wear two hats.'' However, the statute was changed in the
FAST Act to explicitly allow that the representative of an operator of
public transportation may simultaneously represent a local
municipality. Therefore the final rule in section 450.310(d)(3)(ii)
reflects section 1201 of the FAST Act (23 U.S.C. 134(d)(3)(B)) which
allows, subject to the bylaws or enabling statute of the MPO, a
representative of an operator of public transportation may also serve
as a representative of a local municipality.
Thirty-five of the respondents (AAHSTO, ARC, CT DOT, DVRPC, Florida
MPO Advisory Council, H-GAC, MA DOT, Macatawa Area Coordinating
Council, MARC, MI DOT, Miami-Dade MPO, MTC, NACTO, NARC, National
League of Cities, NC DOT, NIRPC, NJTPA, NYMTA, NYMTC, NYS DOT, PA DOT,
River to Sea TPO, SACOG, San Luis Obispo COG, SANDAG, Southeastern
Wisconsin RPC, Westchester County Department of Public Works and
Transportation, and WI DOT) requested that the final rule ensure MPOs
have maximum flexibility in determining how they are constituted and
operate. Fifteen MPOs (ARC, DVRPC, Florida MPO Advisory Council, H-GAC,
Macatawa Area Coordinating Council, MARC, MTC, NIRPC, NJTPA, NYMTC,
River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, and Southeastern
Wisconsin RPC), three MPO associations (AMPO, Florida MPO Advisory
Council, and NARC), and one State (WI DOT) requested that the final
rule provide each MPO with the maximum latitude to determine how
operators of public transportation are represented in the
decisionmaking process, including allowing a single official to serve
in multiple capacities. Five California MPOs (MTC, SACOG, SANDAG, SCAG,
and SJCOG) expressed the view that the language included in the MAP 21
provides broad flexibility as to how MPOs may comply with the
requirement to include representation by operators of public
transportation. They argued that Congress did not prescribe a specific
method for representation; require that all or any particular kinds of
transit operators serving a region be represented; or require that a
seat be dedicated solely to

[[Page 34111]]

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

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

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

[[Page 34112]]

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

[[Page 34113]]

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

[[Page 34114]]

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

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

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

[[Page 34115]]

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

[[Page 34116]]

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

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

[[Page 34117]]

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

[[Page 34118]]

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

[[Page 34119]]

in how it would be carried out. The FHWA and FTA believe that it is up
to the MPO, within reason, to decide how to meet this requirement.
After publication, FHWA and FTA plan to issue guidance and share best
practices on this requirement. No changes were made as a result of this
comment.
Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(2)(G) to add
``reduce the vulnerability of the existing transportation
infrastructure to natural disasters'' to the assessment of capital
investment and other strategies to preserve the existing and projected
future metropolitan transportation infrastructure in the metropolitan
transportation plan. Section 450.324(f)(7) of this final rule is
amended to include this new provision.
Section 1201 of the FAST Act amends 23 U.S.C. 134(i)(2)(H) to add
consideration of the role intercity buses may play in reducing
congestion, pollution, and energy consumption as part of the
metropolitan transportation plan. Section 450.324(f)(8) of this final
rule is amended to include this new provision.
The ARC supports the optional provision in section
450.324(f)(11)(iii) for including an assessment of the appropriateness
of innovative finance techniques as revenue sources for the projects in
the MTP. However, ARC states that it is unclear to what level of detail
is expected. In response, FHWA and FTA note that FHWA has previously
issued guidance on fiscal constraint, which includes guidance on
innovative finance techniques and fiscal constraint.\29\
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\29\ ``Guidance on Financial Planning and Fiscal Constraint for
Transportation Plans and Programs, FHWA, April 17, 2009, https://www.fhwa.dot.gov/planning/guidfinconstr.cfm.
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The Florida MPO Advisory Council commented that this provision is
an important step in not only encouraging MPOs to consider new and
innovative financing techniques very early in the planning process, but
also places emphasis on the feasibility of implementing those financing
techniques. The Partnership for Active Transportation commented that
the consideration of innovative financing techniques should encourage
those techniques in the context of active transportation such as
pedestrian and bicycle projects. The FHWA and FTA response is that this
provision is intended to be considered for all types of transportation
projects, including bicycle and pedestrian projects.
For section 450.324(f)(11)(iii), the WA State DOT recommends the
section be revised to clarify that the discussion of strategies for
ensuring their availability can be a general discussion of the types of
actions that would be necessary to implement new revenue sources. In
response to this comment, FHWA and FTA note that they have issued
guidance on fiscal constraint that includes information on this
specific topic that an MPO can use to understand how to carry out this
requirement. No changes were made as a result of this comment.
The ARC suggested that for section 450.324(f)(11)(iv), FHWA and FTA
provide guidance on the topic of ``year of expenditure.'' The FHWA and
FTA have previously issued guidance on this topic. It is available at:
https://www.fhwa.dot.gov/planning/guidfinconstr_qa.cfm.
The AASHTO stated that year of expenditure should only apply to
costs and not to revenues in the MTP (section 450.324(f)(11)(iv)).
Similar comments were received on section 450.218(l) (development and
content of the STIP) and section 450.326(j) (development and content of
the MTP). The FHWA and FTA disagree with these comments. Year of
expenditure is applied to both costs and revenues in the NPRM and final
rule for the MTP, TIP, and STIP to provide for consistency and
comparability of costs and revenues in these documents. The requirement
for adjustment to year of expenditure applies to revenue and cost
estimates developed for the STIP (section 450.218(l)), MTP (section
450.324(f)(11)(iv)), and TIP (section 450.326(j)). The FHWA and FTA
made no changes to those sections based on the comments. The FHWA and
FTA note that this is consistent with the previous regulations (72 FR
7224, 23 CFR 450.216(l), and section 450.324(h)).
Section 450.324(g)
Section 450.324(g) describes MPO consultation with State and local
agencies responsible for land use management, natural resources,
environmental protection, conservation, and historic preservation
concerning the development of the transportation plan. Section
450.324(g)(2) states that the consultation shall involve, as
appropriate, the comparison of transportation plans to inventories of
natural or historic resources, if available. The National Trust for
Historic Preservation commented that section 450.324(g)(2) should
include additional language requiring State and local resource
protection and historic preservation agencies to be contacted to obtain
existing inventories, and that MPOs may fund the preparation or
updating of such inventories, pursuant to this chapter, if inventories
are not current or available.
In response, FHWA and FTA reiterate that the existing language in
section 450.324(g)(2) already requires that the MPO shall consult, as
appropriate, with State and local agencies responsible for natural
resources, environmental protection, and historic preservation and a
comparison of transportation plans to inventories of natural or
historic resources, if available. The FHWA and FTA also respond that
funding eligibility for activities necessary to support metropolitan
transportation planning under the final rule is described in section
450.308. No changes were made as a result of these comments.
Section 450.324(h)
The WAMTA commented on section 450.324(h) that it does not want the
safety plans such as the HSIP (including the SHSP required under 23
U.S.C. 148, the Public Transportation Agency Safety Plan required under
49 U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with
49 CFR part 659, as in effect until completion of the Public
Transportation Agency Safety Plan) integrated into the MTP as described
in this section. In response to this comment, FHWA and FTA note that
the basis for this provision in the regulation predates the final rule.
The FHWA and FTA also note that transportation safety is a major
priority for DOT. The MAP-21 and the final rule call for the
integration of the goals, objectives, performance measures, and targets
from the various federally required performance-based plans and
processes into the statewide and metropolitan transportation planning
processes either directly or by reference, including federally required
transportation safety plans (23 U.S.C. 134(h)(2)(D) and 135(d)(2)(C)).
No changes were made to the final rule.
Section 450.324(i)
Many MPOs (Albany MPO, AMPO, ARC, Metropolitan Council MPO,
Portland Metro, SCCRTC, and WMATA), some States (CALTRANS, CT DOT, and
NJ DOT), and one advocacy organization (NRDC) commented that they
support the voluntary option for MPOs to utilize scenario planning in
the development of an MTP as described in section 450.324(i). A few
commenters (DVRPC and PA DOT) commented that scenario planning is
already being used in the development of their MTPs. The NRDC stated
that they liked the detailed description of scenario planning in this
section and the definition of the term ``visualization'' in section
450.104. The

[[Page 34120]]

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

[[Page 34121]]

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

[[Page 34122]]

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

[[Page 34123]]

450.326(j) that the TIP contain a financial plan is redundant because
funding availability is demonstrated in the MTP. In response, FHWA and
FTA note that the requirement to include a financial plan with the TIP
is long-standing and specifically required by statute (23 U.S.C.
134(j)(2)(B)). The FHWA and FTA note that the time horizons of the MTP
and TIP are different. The financial plan for the TIP demonstrates how
the approved TIP, which covers a 4-year period, can be implemented. The
MTP covers a 20-year horizon and the financial plan for the
metropolitan plan describes how the 20-year MTP can be implemented.
Based on this comment, no changes were made to the final rule.
Section 450.326(m)
The TX DOT commented that the language stating that the TIP should
be informed by the financial plan and the investment strategies from
the State asset management plan for the NHS and by the public transit
asset management plan is confusing and could potentially be interpreted
and applied inconsistently. See section IV(B) (recurring comment
themes) for more discussion on this issue and FHWA and FTA responses.
Additional Section 450.326 Comments
The FMATS commented that it is essential for the States and MPOs to
develop performance targets in full coordination with each other to
ensure that performance targets are considered during the development
of STIPs and TIPs, and that investment priorities are tied to targets.
See section IV(B) (recurring comment themes) for more discussion on
this issue and FHWA and FTA responses
The AMPO commented that there should be no financial consequences
or additional reporting requirements for not achieving established
targets. See section 450.324 in the section-by-section analysis for the
FHWA and FTA response to this recurring comment.
The Board of the French Broad River MPO and Wilmington MPO
commented that FHWA should encourage the State, rather than the MPOs,
to be responsible for establishing and tracking performance in the TIP.
In response to this comment, FHWA and FTA reiterate that the final rule
requires the States and the MPOs to establish performance targets and
to track progress in achieving performance.
The Center for Social Inclusion suggested that FHWA and FTA
incentivize States and MPOs by establishing a competitive grant
program, similar to TIGER, to assist with coordination, planning, and
implementation efforts that aligns and coordinates all agency long- and
short-term transportation plans. In response, FHWA and FTA note that
the TIGER competitive grant program was specifically established and
funded by Congress through statute. Congress has not provided authority
for a program similar to the one suggested in the comment.
The NRDC commented that they disapprove of the differences between
the sections covering TIPs and the sections covering STIPs,
particularly the use of the words ``may'' and ``shall.'' See section
IV(B) (recurring comment themes) for more discussion on this issue and
FHWA and FTA responses.
Section 450.326(n) of the NPRM discussed procedures or agreements
that distribute sub-allocated Surface Transportation Program (STP)
funds or funds under 49 U.S.C. 5307 to individual jurisdictions or
modes within the MPA by predetermined percentages or formulas
inconsistent with the legislative provisions that require the MPO, in
cooperation with the State and operator of public transportation, to
develop a prioritized TIP. In the final rule, section 450.326(n) became
450.326(m) and the phrase ``or funds under 49 U.S.C. 5307'' was deleted
because this provision does not apply to 49 U.S.C. 5307 funds. The FHWA
and FTA deleted the phrase ``or funds under 49 U.S.C. 5307'' from the
final rule because it is not consistent with FTA Circular C9030.1E,
which permits section 5307 funds to be sub-allocated according to a
formula.
The FHWA and FTA note that section 450.326(p) in the NPRM became
450.326(o) in the final rule, and is unchanged. Section 450.326(q)
became section 450.326(p), and is unchanged.
Section 450.328 TIP Revisions and Relationship to the STIP
The APTA commented that performance targets should be updated when
the TIP is updated, and should not require updating when the TIP is
amended. In response, FHWA and FTA note that FHWA and FTA are required
to establish national performance measures by rulemaking under 23
U.S.C. 150(c), 49 U.S.C. 5326(c), and 49 U.S.C. 5329(d). Each MPO is
required to establish performance targets not later than 180 days after
the date on which the relevant State or operator of public
transportation establishes the performance targets, as provided in
section 450.306(d)(3). The performance measures and targets are
required to be reflected in the MPO MTP with the next plan update on or
after the date that is equal to, or greater than, the date that is 2
years after the performance measures rules are effective, and with each
subsequent MTP update (section 450.340).
The final rule and MAP-21 require that the TIP shall include, to
the maximum extent practicable, a description of its anticipated effect
toward achieving the performance targets identified in the MTP. This
requirement applies to each update of the TIP. See section 450.340 for
a description of the phase-in of the new requirements for performance-
based planning and programming.
The FHWA and FTA made no changes to the final rule.
Section 450.330 TIP Action by FHWA and FTA
The WA State DOT requested that the language in section 450.330(c)
be modified to state that the 12-month conformity lapse grace period
applies to TIP amendments. The FHWA and FTA response is that section
450.326(p) describes the impacts of the conformity lapse grace period
to the TIP. The FHWA also issued guidance on the implications of a
conformity lapse grace period in a memorandum dated May 29, 2012.\30\
This guidance includes information on the implications of a conformity
lapse grace period on the MTP and TIP. There is also information
available on the implications of the conformity lapse grace period in
the January 24, 2008, amendments to the final rule on transportation
conformity.\31\ Because section 450.326(p), the guidance, and the
amended EPA conformity regulations are available, FHWA and FTA do not
believe it is necessary to make changes to section 450.330(c). Based on
this comment, no changes were made to this section.
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\30\ FHWA Memorandum dated May 29, 2012, ``Subject: Information:
Frequently Asked Questions on the Transportation Conformity Lapse
Grace Period,'' https://www.fhwa.dot.gov/environment/air_quality/conformity/reference/faqs/lapsegrace.cfm.
\31\ Federal Register, Vol. 73, No. 16, January 24, 2008, EPA
Final Rule, Transportation Conformity Rule Amendments to Implement
Provisions Contained in the 2005 Safe, Accountable, Flexible,
Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-
LU), https://www.gpo.gov/fdsys/pkg/FR-2008-01-24/pdf/E8-597.pdf.
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Section 450.332 Project Selection From the TIP
Three commenters (New York Association of MPOs, RTC of Southern
Nevada, and Transportation for America) submitted comments on this
section. The RTC of Southern Nevada requested that the language that
describes project selection procedures

[[Page 34124]]

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

[[Page 34125]]

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

[[Page 34126]]

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

VI. Regulatory Analyses and Notices

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

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

Regulatory Cost Assessment and Burden Analysis Response to Comments

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

[[Page 34127]]

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

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

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

[[Page 34128]]

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

[[Page 34129]]

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

[[Page 34130]]

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

Information Collection--Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) prior to conducting or sponsoring a
collection of information. The FHWA and FTA have determined that the
final rule contains collections of information for the purposes of the
PRA. The reporting requirements for metropolitan planning UPWP,
transportation plans, and TIPs are currently approved under OMB control
number 2132-0529. Separately, FHWA is updating the information
reporting requirements for State planning and research work programs,
which has been approved by the OMB under control number 2125-0039.
These State planning and research work program are governed under a
separate regulation at 23 CFR 420. The FHWA is updating 23 CFR 420 and
will be issuing a separate NPRM soon. The FTA conducted the analysis
supporting this approval on behalf of both FTA and FHWA because the
regulations are jointly issued by both agencies. The reporting
requirements for statewide transportation plans and programs are also
approved under this same OMB control number.
The estimates in this justification include the burden hours and
costs developed for the RIA prepared as part of the final rule for the
Metropolitan Transportation Planning Program and the Statewide and
Nonmetropolitan Planning Program to implement provisions of the MAP-21.
To develop the estimates for the RIA, FHWA and FTA first estimated the
pre-MAP-21 costs for specific MPO planning functions on the basis of
costs identified through a sample of MPO annual work programs. The FHWA
and FTA sampled a total of 17 TMA and 12 non-TMA MPOs to calculate
costs for States and MPOs. The FHWA and FTA then estimated the average
annual burden hours of effort and cost to implement the MAP-21 changes
to the MPO planning functions which include: A transition to a
performance-based (statewide and metropolitan) planning and programming
process; cooperation by the State with local officials or RTPOs, if
applicable, when conducting the statewide transportation planning
process; and representation by operators of public transportation on
MPOs that serve TMAs. The FHWA and FTA assumed that this additional
work will increase the annual cost of preparing a long-range
transportation plan, STIP, and TIP by the State, MPOs, and operators of
public transportation by 15 percent, on average. The paragraphs below
describe the burden analysis conducted by FHWA and FTA for the planning
requirements in the final regulation, which include the changes
introduced by MAP-21.
Historically, FHWA and FTA have used a methodology not based on
sampling to estimate the burden hours required of States and MPOs to
meet the planning requirements. The historical methodology assumed very
limited increase in the costs of developing the planning products.
Burden Analysis for the Planning Requirements in the Final Rule
The UPWP identifies transportation planning activities in
metropolitan areas and supports requests for funding under both FHWA
and FTA planning programs in metropolitan areas. A similar list of
planning activities is prepared on a statewide level as the basis for
FHWA and FTA State planning and research (SP&R) funding. The
metropolitan plan and statewide plan reflect the long-range goals and
objectives determined through the metropolitan and statewide
transportation planning processes, respectively, and have a 20-year
planning horizon. The STIP and TIP are short-range 4-year listings of
highway and transit improvement projects which are consistent with the
metropolitan and statewide plans and support the request for Federal
transportation funding under 23 U.S.C. and chapter 53 of 49 U.S.C.
The FTA and FHWA jointly carry out the Federal mandate to improve
metropolitan and statewide transportation under the authority of 23
U.S.C. and chapter 53 of 49 U.S.C. Title 23 U.S.C. 104(f) and 49 U.S.C.
5305(g) authorize funds to support transportation planning at
metropolitan and statewide levels. As a condition to receive this
funding, requirements are established for metropolitan and statewide
transportation planning under 23 U.S.C. 134 and 135 and 49 U.S.C. 5303
and 5304. These sections call for development of transportation plans
and TIPs in all States and metropolitan areas. The information
collection activities to prepare federally required plans and programs,
and the planning studies proposed for funding in UPWPs and SP&R work
programs, are necessary to monitor and evaluate current and projected
usage and performance of transportation systems nationwide, statewide,
and in each urbanized area.
The MTP and TIP are required by 49 U.S.C. 5303 and 23 U.S.C. 134,
which state that ``metropolitan planning organizations, in cooperation
with the State, shall develop transportation plans and programs for
urbanized areas of the State.'' Title 49 U.S.C. 5304 and 23 U.S.C. 135
require that each ``State shall develop a long-range transportation
plan and STIP for all areas of the State.'' Both statutory sections
require that ``the process for developing such plans and programs shall
provide for consideration of all modes of transportation and shall be
continuing, cooperative, and comprehensive.'' The States and MPOs use
metropolitan and statewide plans, STIPs, and TIPs as the basis for
investing Federal and non-Federal capital funds for transportation
infrastructure investments. (Note: PRA requirements for preparation of
the STIP are covered by OMB control number 2125-0039.)
Title 23 CFR part 450 implements these statutory requirements.
(Note: 23 CFR part 450 is identical to, and cross-referenced by, the
equivalent regulation in 49 U.S.C. (49 CFR part 613).) The MPO,
together with the State and operators of public transportation,
prepares MTPs for each urbanized area. The State develops a long-range
statewide transportation plan which, in metropolitan areas, is
developed in cooperation with affected MPOs. These plans form the basis
for development of STIPs and TIPs, the short-range programming
documents for federally funded transportation capital investments.
The UPWP is required by 23 CFR 450.308 for all MPOs in TMAs. The
MPOs in urbanized areas with populations of less than 200,000, with
prior approval by the State, FHWA, and FTA, may use a simplified
statement of work as their planning grant application instead of
developing a full UPWP. Details of the required planning processes
supported by FHWA and FTA metropolitan planning funds, as required by
23 U.S.C. 134 and 49 U.S.C. 5303, are set forth in 23 CFR part 450. The
planning grant application is based upon the UPWP and is the mechanism
by which grantees request Federal funding. The information contained in
the UPWP is necessary to establish the

[[Page 34131]]

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

[[Page 34132]]

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

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

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

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

[[Page 34133]]

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

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

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

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

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

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

Executive Order 13132 (Federalism)

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

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Numbers 20.205,
Highway Planning and Construction (or 20.217); 20.500, Federal Transit
Capital Improvement Grants; 20.505, Federal Transit Technical Studies
Grants; 20.507, Federal Transit Capital and Operating Assistance
Formula Grants. The regulations implementing EO 12372 regarding
intergovernmental consultation in Federal programs and activities apply
to these programs and were carried out as part of the outreach on the
federalism implications of this rulemaking. This EO applies because
State and local governments would be directly affected by the final
rule, which is a condition on Federal-aid highway funding.

National Environmental Policy Act

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

[[Page 34134]]

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

Executive Order 11988 (Floodplain Management)

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

Executive Order 13653 (Climate Preparedness and Resilience)

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

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

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

Executive Order 12630 (Taking of Private Property)

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

Executive Order 13175 (Tribal Consultation)

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

Executive Order 13211 (Energy Effects)

The FHWA and FTA have analyzed this action under EO 13211 (Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use). The FHWA and FTA have determined that the final
rule is not a significant energy action under that EO because, although
it is a significant regulatory action under EO 12866, it is not likely
to have a significant adverse effect on the supply, distribution, or
use of energy. Therefore, a Statement of Energy Effects is not
required.

Executive Order 5610.2(a) (Environmental Justice)

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

[[Page 34135]]

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

Regulation Identification Number

A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.

List of Subjects

23 CFR Part 450

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

23 CFR Part 771

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

49 CFR Part 613

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

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

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

Title 23--Highways

0
1. Revise Part 450 to read as follows:

PART 450--PLANNING ASSISTANCE AND STANDARDS

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

Authority: 23 U.S.C. 134 and 135; 42 U.S.C. 7410 et seq.; 49
U.S.C. 5303 and 5304; 49 CFR 1.85 and 1.90.

Subpart A--Transportation Planning and Programming Definitions

Sec. 450.100 Purpose.

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

Sec. 450.102 Applicability.

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

Sec. 450.104 Definitions.

Unless otherwise specified, the definitions in 23 U.S.C. 101(a) and
49 U.S.C. 5302 are applicable to this part.
Administrative modification means a minor revision to a long-range
statewide or metropolitan transportation plan, Transportation
Improvement Program (TIP), or Statewide Transportation Improvement
Program (STIP) that includes minor changes to project/project phase
costs, minor changes to funding sources of previously included
projects, and minor changes to project/project phase initiation dates.
An administrative modification is a revision that does not require
public review and comment, a redemonstration of fiscal constraint, or a
conformity determination (in nonattainment and maintenance areas).
Amendment means a revision to a long-range statewide or
metropolitan transportation plan, TIP, or STIP that involves a major
change to a project included in a metropolitan transportation plan,
TIP, or STIP, including the addition or deletion of a project or a
major change in project cost, project/project phase initiation dates,
or a major change in design concept or design scope (e.g., changing
project termini or the number of through traffic lanes or changing the
number of stations in the case of fixed guideway transit projects).
Changes to projects that are included only for illustrative purposes do
not require an amendment. An amendment is a revision that requires
public review and comment and a redemonstration of fiscal constraint.
If an amendment involves ``non-exempt'' projects in nonattainment and
maintenance areas, a conformity determination is required.
Asset management means a strategic and systematic process of
operating, maintaining, and improving physical assets, with a focus on
both engineering and economic analysis based upon quality information,
to identify a structured sequence of maintenance, preservation, repair,
rehabilitation, and

[[Page 34136]]

replacement actions that will achieve and sustain a desired state of
good repair over the lifecycle of the assets at minimum practicable
cost.
Attainment area means any geographic area in which levels of a
given criteria air pollutant (e.g., ozone, carbon monoxide,
PM10, PM2.5, and nitrogen dioxide) meet the
health-based National Ambient Air Quality Standards (NAAQS) for that
pollutant. An area may be an attainment area for one pollutant and a
nonattainment area for others. A ``maintenance area'' (see definition
in this section) is not considered an attainment area for
transportation planning purposes.
Available funds means funds derived from an existing source
dedicated to or historically used for transportation purposes. For
Federal funds, authorized and/or appropriated funds and the
extrapolation of formula and discretionary funds at historic rates of
increase are considered ``available.'' A similar approach may be used
for State and local funds that are dedicated to or historically used
for transportation purposes.
Committed funds means funds that have been dedicated or obligated
for transportation purposes. For State funds that are not dedicated to
transportation purposes, only those funds over which the Governor has
control may be considered ``committed.'' Approval of a TIP by the
Governor is considered a commitment of those funds over which the
Governor has control. For local or private sources of funds not
dedicated to or historically used for transportation purposes
(including donations of property), a commitment in writing (e.g.,
letter of intent) by the responsible official or body having control of
the funds may be considered a commitment. For projects involving 49
U.S.C. 5309 funding, execution of a Full Funding Grant Agreement (or
equivalent) or an Expedited Grant Agreement (or equivalent) with the
DOT shall be considered a multiyear commitment of Federal funds.
Conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement
that ensures that Federal funding and approval are given to
transportation plans, programs and projects that are consistent with
the air quality goals established by a State Implementation Plan (SIP).
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the NAAQS or any required
interim emission reductions or other milestones in any nonattainment or
maintenance area. The transportation conformity regulations (40 CFR
part 93, subpart A) sets forth policy, criteria, and procedures for
demonstrating and assuring conformity of transportation activities.
Conformity lapse means, pursuant to section 176(c) of the Clean Air
Act (42 U.S.C. 7506(c)), as amended, that the conformity determination
for a metropolitan transportation plan or TIP has expired and thus
there is no currently conforming metropolitan transportation plan or
TIP.
Congestion Management Process means a systematic approach required
in transportation management areas (TMAs) that provides for effective
management and operation, based on a cooperatively developed and
implemented metropolitan-wide strategy, of new and existing
transportation facilities eligible for funding under title 23 U.S.C.,
and title 49 U.S.C., through the use of travel demand reduction and
operational management strategies.
Consideration means that one or more parties takes into account the
opinions, action, and relevant information from other parties in making
a decision or determining a course of action.
Consultation means that one or more parties confer with other
identified parties in accordance with an established process and, prior
to taking action(s), considers the views of the other parties and
periodically informs them about action(s) taken. This definition does
not apply to the ``consultation'' performed by the States and the
Metropolitan Planning Organizations (MPOs) in comparing the long-range
statewide transportation plan and the metropolitan transportation plan,
respectively, to State and tribal conservation plans or maps or
inventories of natural or historic resources (see section 450.216(j)
and sections 450.324(g)(1) and (g)(2)).
Cooperation means that the parties involved in carrying out the
transportation planning and programming processes work together to
achieve a common goal or objective.
Coordinated public transit-human services transportation plan means
a locally developed, coordinated transportation plan that identifies
the transportation needs of individuals with disabilities, older
adults, and people with low incomes, provides strategies for meeting
those local needs, and prioritizes transportation services for funding
and implementation.
Coordination means the cooperative development of plans, programs,
and schedules among agencies and entities with legal standing and
adjustment of such plans, programs, and schedules to achieve general
consistency, as appropriate.
Design concept means the type of facility identified for a
transportation improvement project (e.g., freeway, expressway, arterial
highway, grade-separated highway, toll road, reserved right-of-way rail
transit, mixed-traffic rail transit, or busway).
Design scope means the aspects that will affect the proposed
facility's impact on the region, usually as they relate to vehicle or
person carrying capacity and control (e.g., number of lanes or tracks
to be constructed or added, length of project, signalization, safety
features, access control including approximate number and location of
interchanges, or preferential treatment for high-occupancy vehicles).
Designated recipient means an entity designated, in accordance with
the planning process under 49 U.S.C. 5303 and 5304, by the Governor of
a State, responsible local officials, and publicly owned operators of
public transportation, to receive and apportion amounts under 49 U.S.C.
5336 that are attributable to urbanized areas of 200,000 or more in
population, or a State or regional authority if the authority is
responsible under the laws of a State for a capital project and for
financing and directly providing public transportation.
Environmental mitigation activities means strategies, policies,
programs, and actions that, over time, will serve to avoid, minimize,
rectify, reduce or eliminate impacts to environmental resources
associated with the implementation of a long-range statewide
transportation plan or metropolitan transportation plan.
Expedited Grant Agreement (EGA) means a contract that defines the
scope of a Small Starts project, the Federal financial contribution,
and other terms and conditions, in accordance with 49 U.S.C.
5309(h)(7).
Federal land management agency means units of the Federal
Government currently responsible for the administration of public lands
(e.g., U.S. Forest Service, U.S. Fish and Wildlife Service, Bureau of
Land Management, and the National Park Service).
Federally funded non-emergency transportation services means
transportation services provided to the general public, including those
with special transport needs, by public transit, private non-profit
service providers, and private third-party contractors to public
agencies.
Financial plan means documentation required to be included with a
metropolitan transportation plan and TIP (and optional for the long-
range

[[Page 34137]]

statewide transportation plan and STIP) that demonstrates the
consistency between reasonably available and projected sources of
Federal, State, local, and private revenues and the costs of
implementing proposed transportation system improvements.
Financially constrained or Fiscal constraint means that the
metropolitan transportation plan, TIP, and STIP includes sufficient
financial information for demonstrating that projects in the
metropolitan transportation plan, TIP, and STIP can be implemented
using committed, available, or reasonably available revenue sources,
with reasonable assurance that the federally supported transportation
system is being adequately operated and maintained. For the TIP and the
STIP, financial constraint/fiscal constraint applies to each program
year. Additionally, projects in air quality nonattainment and
maintenance areas can be included in the first 2 years of the TIP and
STIP only if funds are ``available'' or ``committed.''
Freight shippers means any entity that routinely transport cargo
from one location to another by providers of freight transportation
services or by their own operations, involving one or more travel
modes.
Full Funding Grant Agreement (FFGA) means an instrument that
defines the scope of a project, the Federal financial contribution, and
other terms and conditions for funding New Starts projects as required
by 49 U.S.C. 5309(k)(2).
Governor means the Governor of any of the 50 States or the
Commonwealth of Puerto Rico or the Mayor of the District of Columbia.
Highway Safety Improvement Program (HSIP) means a State safety
program with the purpose to reduce fatalities and serious injuries on
all public roads through the implementation of the provisions of 23
U.S.C. 130, 148, and 150 including the development of a Strategic
Highway Safety Plan (SHSP), Railway-Highway Crossings Program, and
program of highway safety improvement projects.
Illustrative project means an additional transportation project
that may be included in a financial plan for a metropolitan
transportation plan, TIP, or STIP if reasonable additional resources
were to become available.
Indian Tribal government means a duly formed governing body for an
Indian or Alaska Native tribe, band, nation, pueblo, village, or
community that the Secretary of the Interior acknowledges to exist as
an Indian Tribe pursuant to the Federally Recognized Indian Tribe List
Act of 1994, Public Law 103-454.
Intelligent Transportation System (ITS) means electronics,
photonics, communications, or information processing used singly or in
combination to improve the efficiency or safety of a surface
transportation system.
Interim metropolitan transportation plan means a transportation
plan composed of projects eligible to proceed under a conformity lapse
and otherwise meeting all other applicable provisions of this part,
including approval by the MPO.
Interim Transportation Improvement Program (TIP) means a TIP
composed of projects eligible to proceed under a conformity lapse and
otherwise meeting all other applicable provisions of this part,
including approval by the MPO and the Governor.
Long-range statewide transportation plan means the official,
statewide, multimodal, transportation plan covering a period of no less
than 20 years developed through the statewide transportation planning
process.
Maintenance area means any geographic region of the United States
that the Environmental Protection Agency (EPA) previously designated as
a nonattainment area for one or more pollutants pursuant to the Clean
Air Act Amendments of 1990, and subsequently redesignated as an
attainment area subject to the requirement to develop a maintenance
plan under section 175A of the Clean Air Act, as amended (42 U.S.C.
7505a).
Management system means a systematic process, designed to assist
decision makers in selecting cost effective strategies/actions to
improve the efficiency or safety of, and protect the investment in the
nation's infrastructure. A management system can include:
Identification of performance measures; data collection and analysis;
determination of needs; evaluation and selection of appropriate
strategies/actions to address the needs; and evaluation of the
effectiveness of the implemented strategies/actions.
Metropolitan Planning Agreement means a written agreement between
the MPO, the State(s), and the providers of public transportation
serving the metropolitan planning area that describes how they will
work cooperatively to meet their mutual responsibilities in carrying
out the metropolitan transportation planning process.
Metropolitan Planning Area (MPA) means the geographic area
determined by agreement between the MPO for the area and the Governor,
in which the metropolitan transportation planning process is carried
out.
Metropolitan Planning Organization (MPO) means the policy board of
an organization created and designated to carry out the metropolitan
transportation planning process.
Metropolitan Transportation Plan means the official multimodal
transportation plan addressing no less than a 20-year planning horizon
that the MPO develops, adopts, and updates through the metropolitan
transportation planning process.
National Ambient Air Quality Standard (NAAQS) means those standards
established pursuant to section 109 of the Clean Air Act (42 U.S.C.
7409).
Nonattainment area means any geographic region of the United States
that EPA designates as a nonattainment area under section 107 of the
Clean Air Act (42 U.S.C. 7407) for any pollutants for which an NAAQS
exists.
Nonmetropolitan area means a geographic area outside a designated
metropolitan planning area.
Nonmetropolitan local officials means elected and appointed
officials of general purpose local government in a nonmetropolitan area
with responsibility for transportation.
Obligated projects means strategies and projects funded under title
23 U.S.C. and title 49 U.S.C. Chapter 53 for which the State or
designated recipient authorized and committed the supporting Federal
funds in preceding or current program years, and authorized by the FHWA
or awarded as a grant by the FTA.
Operational and management strategies means actions and strategies
aimed at improving the performance of existing and planned
transportation facilities to relieve congestion and maximize the safety
and mobility of people and goods.
Performance measure refers to ``Measure'' as defined in 23 CFR
490.101.
Performance metric refers to ``Metric'' as defined in 23 CFR
490.101.
Performance target refers to ``Target'' as defined in 23 CFR
490.101.
Project selection means the procedures followed by MPOs, States,
and public transportation operators to advance projects from the first
4 years of an approved TIP and/or STIP to implementation, in accordance
with agreed upon procedures.
Provider of freight transportation services means any entity that
transports or otherwise facilitates the movement of cargo from one
location to another for others or for itself.

[[Page 34138]]

Public transportation agency safety plan means a comprehensive plan
established by a State or recipient of funds under Title 49, Chapter 53
and in accordance with 49 U.S.C. 5329(d).
Public transportation operator means the public entity or
government-approved authority that participates in the continuing,
cooperative, and comprehensive transportation planning process in
accordance with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, and
is a recipient of Federal funds under title 49 U.S.C. Chapter 53 for
transportation by a conveyance that provides regular and continuing
general or special transportation to the public, but does not include
sightseeing, school bus, charter, certain types of shuttle service,
intercity bus transportation, or intercity passenger rail
transportation provided by Amtrak.
Regional ITS architecture means a regional framework for ensuring
institutional agreement and technical integration for the
implementation of ITS projects or groups of projects.
Regionally significant project means a transportation project
(other than projects that may be grouped in the TIP and/or STIP or
exempt projects as defined in EPA's transportation conformity
regulations (40 CFR part 93, subpart A)) that is on a facility that
serves regional transportation needs (such as access to and from the
area outside the region; major activity centers in the region; major
planned developments such as new retail malls, sports complexes, or
employment centers; or transportation terminals) and would normally be
included in the modeling of the metropolitan area's transportation
network. At a minimum, this includes all principal arterial highways
and all fixed guideway transit facilities that offer an alternative to
regional highway travel.
Regional Transportation Planning Organization (RTPO) means a policy
board of nonmetropolitan local officials or their designees created to
carry out the regional transportation planning process.
Revision means a change to a long-range statewide or metropolitan
transportation plan, TIP, or STIP that occurs between scheduled
periodic updates. A major revision is an ``amendment'' while a minor
revision is an ``administrative modification.''
Scenario planning means a planning process that evaluates the
effects of alternative policies, plans and/or programs on the future of
a community or region. This activity should provide information to
decision makers as they develop the transportation plan.
State means any one of the 50 States, the District of Columbia, or
Puerto Rico.
State Implementation Plan (SIP) means, as defined in section 302(q)
of the Clean Air Act (CAA) (42 U.S.C. 7602(q)), the portion (or
portions) of the implementation plan, or most recent revision thereof,
which has been approved under section 110 of the CAA (42 U.S.C. 7410),
or promulgated under section 110(c) of the CAA (42 U.S.C. 7410(c)), or
promulgated or approved pursuant to regulations promulgated under
section 301(d) of the CAA (42 U.S.C. 7601(d)) and which implements the
relevant requirements of the CAA.
Statewide Transportation Improvement Program (STIP) means a
statewide prioritized listing/program of transportation projects
covering a period of 4 years that is consistent with the long-range
statewide transportation plan, metropolitan transportation plans, and
TIPs, and required for projects to be eligible for funding under title
23 U.S.C. and title 49 U.S.C. Chapter 53.
Strategic Highway Safety Plan means a comprehensive, multiyear,
data-driven plan, developed by a State DOT in accordance with the 23
U.S.C. 148.
Transit Asset Management Plan means a plan that includes an
inventory of capital assets, a condition assessment of inventoried
assets, a decision support tool, and a prioritization of investments.
Transit Asset Management System means a strategic and systematic
process of operating, maintaining, and improving public transportation
capital assets effectively, throughout the life cycles of those assets.
Transportation Control Measure (TCM) means any measure that is
specifically identified and committed to in the applicable SIP,
including a substitute or additional TCM that is incorporated into the
applicable SIP through the process established in CAA section
176(c)(8), that is either one of the types listed in section 108 of the
CAA (42 U.S.C. 7408) or any other measure for the purpose of reducing
emissions or concentrations of air pollutants from transportation
sources by reducing vehicle use or changing traffic flow or congestion
conditions. Notwithstanding the above, vehicle technology-based, fuel-
based, and maintenance-based measures that control the emissions from
vehicles under fixed traffic conditions are not TCMs.
Transportation Improvement Program (TIP) means a prioritized
listing/program of transportation projects covering a period of 4 years
that is developed and formally adopted by an MPO as part of the
metropolitan transportation planning process, consistent with the
metropolitan transportation plan, and required for projects to be
eligible for funding under title 23 U.S.C. and title 49 U.S.C. Chapter
53.
Transportation Management Area (TMA) means an urbanized area with a
population over 200,000, as defined by the Bureau of the Census and
designated by the Secretary of Transportation, or any additional area
where TMA designation is requested by the Governor and the MPO and
designated by the Secretary of Transportation.
Unified Planning Work Program (UPWP) means a statement of work
identifying the planning priorities and activities to be carried out
within a metropolitan planning area. At a minimum, a UPWP includes a
description of the planning work and resulting products, who will
perform the work, time frames for completing the work, the cost of the
work, and the source(s) of funds.
Update means making current a long-range statewide transportation
plan, metropolitan transportation plan, TIP, or STIP through a
comprehensive review. Updates require public review and comment, a 20-
year horizon for metropolitan transportation plans and long-range
statewide transportation plans, a 4-year program period for TIPs and
STIPs, demonstration of fiscal constraint (except for long-range
statewide transportation plans), and a conformity determination (for
metropolitan transportation plans and TIPs in nonattainment and
maintenance areas).
Urbanized area (UZA) means a geographic area with a population of
50,000 or more, as designated by the Bureau of the Census.
Users of public transportation means any person, or groups
representing such persons, who use transportation open to the general
public, other than taxis and other privately funded and operated
vehicles.
Visualization techniques means methods used by States and MPOs in
the development of transportation plans and programs with the public,
elected and appointed officials, and other stakeholders in a clear and
easily accessible format such as GIS- or web-based surveys,
inventories, maps, pictures, and/or displays identifying features such
as roadway rights of way, transit, intermodal, and non-motorized
transportation facilities, historic and cultural resources, natural
resources, and environmentally sensitive areas, to promote improved
understanding of existing or proposed transportation plans and
programs.

[[Page 34139]]

Subpart B--Statewide and Nonmetropolitan Transportation Planning
and Programming

Sec. 450.200 Purpose.

The purpose of this subpart is to implement the provisions of 23
U.S.C. 135, 23 U.S.C. 150, and 49 U.S.C. 5304, as amended, which
require each State to carry out a continuing, cooperative, and
comprehensive performance-based statewide multimodal transportation
planning process, including the development of a long-range statewide
transportation plan and STIP, that facilitates the safe and efficient
management, operation, and development of surface transportation
systems that will serve the mobility needs of people and freight
(including accessible pedestrian walkways, bicycle transportation
facilities, and intermodal facilities that support intercity
transportation, including intercity bus facilities and commuter van
pool providers) and that fosters economic growth and development within
and between States and urbanized areas, and take into consideration
resiliency needs while minimizing transportation-related fuel
consumption and air pollution in all areas of the State, including
those areas subject to the metropolitan transportation planning
requirements of 23 U.S.C. 134 and 49 U.S.C. 5303.

Sec. 450.202 Applicability.

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

Sec. 450.204 Definitions.

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

Sec. 450.206 Scope of the statewide and nonmetropolitan
transportation planning process.

(a) Each State shall carry out a continuing, cooperative, and
comprehensive statewide transportation planning process that provides
for consideration and implementation of projects, strategies, and
services that will address the following factors:
(1) Support the economic vitality of the United States, the States,
metropolitan areas, and nonmetropolitan areas, especially by enabling
global competitiveness, productivity, and efficiency;
(2) Increase the safety of the transportation system for motorized
and non-motorized users;
(3) Increase the security of the transportation system for
motorized and non-motorized users;
(4) Increase accessibility and mobility of people and freight;
(5) Protect and enhance the environment, promote energy
conservation, improve the quality of life, and promote consistency
between transportation improvements and State and local planned growth
and economic development patterns;
(6) Enhance the integration and connectivity of the transportation
system, across and between modes throughout the State, for people and
freight;
(7) Promote efficient system management and operation;
(8) Emphasize the preservation of the existing transportation
system;
(9) Improve the resiliency and reliability of the transportation
system and reduce or mitigate stormwater impacts of surface
transportation; and
(10) Enhance travel and tourism.
(b) Consideration of the planning factors in paragraph (a) of this
section shall be reflected, as appropriate, in the statewide
transportation planning process. The degree of consideration and
analysis of the factors should be based on the scale and complexity of
many issues, including transportation systems development, land use,
employment, economic development, human and natural environment
(including Section 4(f) properties as defined in 23 CFR 774.17), and
housing and community development.
(c) Performance-based approach. (1) The statewide transportation
planning process shall provide for the establishment and use of a
performance-based approach to transportation decisionmaking to support
the national goals described in 23 U.S.C. 150(b) and the general
purposes described in 49 U.S.C. 5301.
(2) Each State shall select and establish performance targets in
coordination with the relevant MPOs to ensure consistency to the
maximum extent practicable. The targets shall address the performance
areas described in 23 U.S.C. 150(c), and the measures established under
23 CFR part 490, where applicable, to use in tracking progress toward
attainment of critical outcomes for the State. States shall establish
performance targets that reflect the measures identified in 23 U.S.C.
150(c) not later than 1 year after the effective date of the DOT final
rule on performance measures. Each State shall select and establish
targets under this paragraph in accordance with the appropriate target
setting framework established at 23 CFR part 490.
(3) In areas not represented by an MPO, the selection of public
transportation performance targets by a State shall be coordinated, to
the maximum extent practicable, with providers of public transportation
to ensure consistency with the performance targets that public
transportation providers establish under 49 U.S.C. 5326(c) and 49
U.S.C. 5329(d).
(4) A State shall integrate into the statewide transportation
planning process, directly or by reference, the goals, objectives,
performance measures, and targets described in this section, in other
State transportation plans and transportation processes, as well as any
plans developed pursuant to chapter 53 of title 49 by providers of
public transportation in areas not represented by an MPO required as
part of a performance-based program. Examples of such plans and
processes include the HSIP, SHSP, the State Asset Management Plan for
the National Highway System (NHS), the State Freight Plan (if the State
has one), the Transit Asset Management Plan, and the Public
Transportation Agency Safety Plan.
(5) A State shall consider the performance measures and targets
established under this paragraph when developing policies, programs,
and investment priorities reflected in the long-range statewide
transportation plan and statewide transportation improvement program.
(d) The failure to consider any factor specified in paragraph (a)
or (c) of this section shall not be subject to review by any court
under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5
U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a
long-range statewide transportation plan, STIP, project or strategy, or
the statewide transportation planning process findings.
(e) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are
available to the State to accomplish activities described in this
subpart. At the State's option, funds provided under 23 U.S.C.
104(b)(2) and 49 U.S.C. 5307, 5310, and 5311 may also be used for
statewide transportation planning. A State shall document statewide
transportation planning activities performed with funds provided under
title 23 U.S.C. and title 49 U.S.C. Chapter 53 in a statewide planning
work program in accordance with the provisions of 23 CFR part 420. The
work program should include a discussion of the

[[Page 34140]]

transportation planning priorities facing the State.

Sec. 450.208 Coordination of planning process activities.

(a) In carrying out the statewide transportation planning process,
each State shall, at a minimum:
(1) Coordinate planning carried out under this subpart with the
metropolitan transportation planning activities carried out under
subpart C of this part for metropolitan areas of the State. The State
is encouraged to rely on information, studies, or analyses provided by
MPOs for portions of the transportation system located in metropolitan
planning areas;
(2) Coordinate planning carried out under this subpart with
statewide trade and economic development planning activities and
related multistate planning efforts;
(3) Consider the concerns of Federal land management agencies that
have jurisdiction over land within the boundaries of the State;
(4) Cooperate with affected local elected and appointed officials
with responsibilities for transportation, or, if applicable, through
RTPOs described in section 450.210(d) in nonmetropolitan areas;
(5) Consider the concerns of Indian Tribal governments that have
jurisdiction over land within the boundaries of the State;
(6) Consider related planning activities being conducted outside of
metropolitan planning areas and between States; and
(7) Coordinate data collection and analyses with MPOs and public
transportation operators to support statewide transportation planning
and programming priorities and decisions.
(b) The State air quality agency shall coordinate with the State
department of transportation (State DOT) to develop the transportation
portion of the State Implementation Plan (SIP) consistent with the
Clean Air Act (42 U.S.C. 7401 et seq.).
(c) Two or more States may enter into agreements or compacts, not
in conflict with any law of the United States, for cooperative efforts
and mutual assistance in support of activities under this subpart
related to interstate areas and localities in the States and
establishing authorities the States consider desirable for making the
agreements and compacts effective. The right to alter, amend, or repeal
interstate compacts entered into under this part is expressly reserved.
(d) States may use any one or more of the management systems (in
whole or in part) described in 23 CFR part 500.
(e) In carrying out the statewide transportation planning process,
States should apply asset management principles and techniques
consistent with the State Asset Management Plan for the NHS and the
Transit Asset Management Plan, and Public Transportation Agency Safety
Plan in establishing planning goals, defining STIP priorities, and
assessing transportation investment decisions, including transportation
system safety, operations, preservation, and maintenance.
(f) For non-NHS highways, States may apply principles and
techniques consistent with other asset management plans to the
transportation planning and programming processes, as appropriate.
(g) The statewide transportation planning process shall (to the
maximum extent practicable) be consistent with the development of
applicable regional intelligent transportation systems (ITS)
architectures, as defined in 23 CFR part 940.
(h) Preparation of the coordinated public transit-human services
transportation plan, as required by 49 U.S.C. 5310, should be
coordinated and consistent with the statewide transportation planning
process.

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

(a) In carrying out the statewide transportation planning process,
including development of the long-range statewide transportation plan
and the STIP, the State shall develop and use a documented public
involvement process that provides opportunities for public review and
comment at key decision points.
(1) The State's public involvement process at a minimum shall:
(i) Establish early and continuous public involvement opportunities
that provide timely information about transportation issues and
decisionmaking processes to individuals, affected public agencies,
representatives of public transportation employees, public ports,
freight shippers, private providers of transportation (including
intercity bus operators), representatives of users of public
transportation, representatives of users of pedestrian walkways and
bicycle transportation facilities, representatives of the disabled,
providers of freight transportation services, and other interested
parties;
(ii) Provide reasonable public access to technical and policy
information used in the development of the long-range statewide
transportation plan and the STIP;
(iii) Provide adequate public notice of public involvement
activities and time for public review and comment at key decision
points, including a reasonable opportunity to comment on the proposed
long-range statewide transportation plan and STIP;
(iv) To the maximum extent practicable, ensure that public meetings
are held at convenient and accessible locations and times;
(v) To the maximum extent practicable, use visualization techniques
to describe the proposed long-range statewide transportation plan and
supporting studies;
(vi) To the maximum extent practicable, make public information
available in electronically accessible format and means, such as the
World Wide Web, as appropriate to afford reasonable opportunity for
consideration of public information;
(vii) Demonstrate explicit consideration and response to public
input during the development of the long-range statewide transportation
plan and STIP;
(viii) Include a process for seeking out and considering the needs
of those traditionally underserved by existing transportation systems,
such as low-income and minority households, who may face challenges
accessing employment and other services; and
(ix) Provide for the periodic review of the effectiveness of the
public involvement process to ensure that the process provides full and
open access to all interested parties and revise the process, as
appropriate.
(2) The State shall provide for public comment on existing and
proposed processes for public involvement in the development of the
long-range statewide transportation plan and the STIP. At a minimum,
the State shall allow 45 calendar days for public review and written
comment before the procedures and any major revisions to existing
procedures are adopted. The State shall provide copies of the approved
public involvement process document(s) to the FHWA and the FTA for
informational purposes.
(3) With respect to the setting of targets, nothing in this part
precludes a State from considering comments made as part of the State's
public involvement process.
(b) The State shall provide for nonmetropolitan local official
participation in the development of the long-range statewide
transportation plan and the STIP. The State shall have a documented
process(es) for cooperating with nonmetropolitan local officials
representing units of general purpose local government and/or local
officials

[[Page 34141]]

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

Sec. 450.212 Transportation planning studies and project development.

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

[[Page 34142]]

means that the NEPA lead agencies deem appropriate. Additional
information to further explain the linkages between the transportation
planning and project development/NEPA processes is contained in
Appendix A to this part, including an explanation that is non-binding
guidance material. The guidance in Appendix A applies only to
paragraphs (a)-(c) in this section.
(d) In addition to the process for incorporation directly or by
reference outlined in paragraph (b) of this section, an additional
authority for integrating planning products into the environmental
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C.
168(f):
(1) The statutory authority in 23 U.S.C. 168 shall not be construed
to limit in any way the continued use of processes established under
other parts of this section or under an authority established outside
this part, and the use of one of the processes in this section does not
preclude the subsequent use of another process in this section or an
authority outside of this part.
(2) The statute does not restrict the initiation of the
environmental review process during planning.

Sec. 450.214 Development of programmatic mitigation plans.

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

Sec. 450.216 Development and content of the long-range statewide
transportation plan.

(a) The State shall develop a long-range statewide transportation
plan, with a minimum 20-year forecast period at the time of adoption,
that provides for the development and implementation of the multimodal
transportation system for the State. The long-range statewide
transportation plan shall consider and include, as applicable, elements
and connections between public transportation, non-motorized modes,
rail, commercial motor vehicle, waterway, and aviation facilities,
particularly with respect to intercity travel.
(b) The long-range statewide transportation plan should include
capital, operations and management strategies, investments, procedures,
and other measures to ensure the preservation and most efficient use of
the existing transportation system including consideration of the role
that intercity buses may play in reducing congestion, pollution, and
energy

[[Page 34143]]

consumption in a cost-effective manner and strategies and investments
that preserve and enhance intercity bus systems, including systems that
are privately owned and operated. The long-range statewide
transportation plan may consider projects and strategies that address
areas or corridors where current or projected congestion threatens the
efficient functioning of key elements of the State's transportation
system.
(c) The long-range statewide transportation plan shall reference,
summarize, or contain any applicable short-range planning studies;
strategic planning and/or policy studies; transportation needs studies;
management systems reports; emergency relief and disaster preparedness
plans; and any statements of policies, goals, and objectives on issues
(e.g., transportation, safety, economic development, social and
environmental effects, or energy), as appropriate, that were relevant
to the development of the long-range statewide transportation plan.
(d) The long-range statewide transportation plan should integrate
the priorities, goals, countermeasures, strategies, or projects
contained in the HSIP, including the SHSP, required under 23 U.S.C.
148, the Public Transportation Agency Safety Plan required under 49
U.S.C. 5329(d), or an Interim Agency Safety Plan in accordance with 49
CFR part 659, as in effect until completion of the Public
Transportation Agency Safety Plan.
(e) The long-range statewide transportation plan should include a
security element that incorporates or summarizes the priorities, goals,
or projects set forth in other transit safety and security planning and
review processes, plans, and programs, as appropriate.
(f) The statewide transportation plan shall include:
(1) A description of the performance measures and performance
targets used in assessing the performance of the transportation system
in accordance with Sec. 450.206(c); and
(2) A system performance report and subsequent updates evaluating
the condition and performance of the transportation system with respect
to the performance targets described in Sec. 450.206(c), including
progress achieved by the MPO(s) in meeting the performance targets in
comparison with system performance recorded in previous reports.
(g) Within each metropolitan area of the State, the State shall
develop the long-range statewide transportation plan in cooperation
with the affected MPOs.
(h) For nonmetropolitan areas, the State shall develop the long-
range statewide transportation plan in cooperation with affected
nonmetropolitan local officials with responsibility for transportation
or, if applicable, through RTPOs described in Sec. 450.210(d) using
the State's cooperative process(es) established under Sec. 450.210(b).
(i) For each area of the State under the jurisdiction of an Indian
Tribal government, the State shall develop the long-range statewide
transportation plan in consultation with the Tribal government and the
Secretary of the Interior consistent with Sec. 450.210(c).
(j) The State shall develop the long-range statewide transportation
plan, as appropriate, in consultation with State, Tribal, and local
agencies responsible for land use management, natural resources,
environmental protection, conservation, and historic preservation. This
consultation shall involve comparison of transportation plans to State
and Tribal conservation plans or maps, if available, and comparison of
transportation plans to inventories of natural or historic resources,
if available.
(k) A long-range statewide transportation plan shall include a
discussion of potential environmental mitigation activities and
potential areas to carry out these activities, including activities
that may have the greatest potential to restore and maintain the
environmental functions affected by the long-range statewide
transportation plan. The discussion may focus on policies, programs, or
strategies, rather than at the project level. The State shall develop
the discussion in consultation with applicable Federal, State,
regional, local and Tribal land management, wildlife, and regulatory
agencies. The State may establish reasonable timeframes for performing
this consultation.
(l) In developing and updating the long-range statewide
transportation plan, the State shall provide:
(1) To nonmetropolitan local elected officials, or, if applicable,
through RTPOs described in Sec. 450.210(d), an opportunity to
participate in accordance with Sec. 450.216(h); and
(2) To individuals, affected public agencies, representatives of
public transportation employees, public ports, freight shippers,
private providers of transportation (including intercity bus operators,
employer-based cash-out program, shuttle program, or telework program),
representatives of users of public transportation, representatives of
users of pedestrian walkways and bicycle transportation facilities,
representatives of the disabled, providers of freight transportation
services, and other interested parties with a reasonable opportunity to
comment on the proposed long-range statewide transportation plan. In
carrying out these requirements, the State shall use the public
involvement process described under Sec. 450.210(a).
(m) The long-range statewide transportation plan may include a
financial plan that demonstrates how the adopted long-range statewide
transportation plan can be implemented, indicates resources from public
and private sources that are reasonably expected to be made available
to carry out the plan, and recommends any additional financing
strategies for needed projects and programs. In addition, for
illustrative purposes, the financial plan may include additional
projects that the State would include in the adopted long-range
statewide transportation plan if additional resources beyond those
identified in the financial plan were to become available. The
financial plan may include an assessment of the appropriateness of
innovative finance techniques (for example, tolling, pricing, bonding,
public-private partnerships, or other strategies) as revenue sources.
(n) The State is not required to select any project from the
illustrative list of additional projects included in the financial plan
described in paragraph (m) of this section.
(o) The State shall publish or otherwise make available the long-
range statewide transportation plan for public review, including (to
the maximum extent practicable) in electronically accessible formats
and means, such as the World Wide Web, as described in Sec.
450.210(a).
(p) The State shall continually evaluate, revise, and periodically
update the long-range statewide transportation plan, as appropriate,
using the procedures in this section for development and establishment
of the long-range statewide transportation plan.
(q) The State shall provide copies of any new or amended long-range
statewide transportation plan documents to the FHWA and the FTA for
informational purposes.

Sec. 450.218 Development and content of the statewide transportation
improvement program (STIP).

(a) The State shall develop a statewide transportation improvement
program (STIP) for all areas of the State. The STIP shall cover a
period of no less than 4 years and shall be updated at least

[[Page 34144]]

every 4 years, or more frequently if the Governor of the State elects a
more frequent update cycle. However, if the STIP covers more than 4
years, the FHWA and the FTA will consider the projects in the
additional years as informational. In case of difficulties developing a
portion of the STIP for a particular area (e.g., metropolitan planning
area, nonattainment or maintenance area, or Indian Tribal lands), the
State may develop a partial STIP covering the rest of the State.
(b) For each metropolitan area in the State, the State shall
develop the STIP in cooperation with the MPO designated for the
metropolitan area. The State shall include each metropolitan TIP
without change in the STIP, directly or by reference, after approval of
the TIP by the MPO and the Governor. A metropolitan TIP in a
nonattainment or maintenance area is subject to a FHWA/FTA conformity
finding before inclusion in the STIP. In areas outside a metropolitan
planning area but within an air quality nonattainment or maintenance
area containing any part of a metropolitan area, projects must be
included in the regional emissions analysis that supported the
conformity determination of the associated metropolitan TIP before they
are added to the STIP.
(c) For each nonmetropolitan area in the State, the State shall
develop the STIP in cooperation with affected nonmetropolitan local
officials with responsibility for transportation or, if applicable,
through RTPOs described in Sec. 450.210(d) using the State's
consultation process(es) established under Sec. 450.210(b).
(d) For each area of the State under the jurisdiction of an Indian
Tribal government, the STIP shall be developed in consultation with the
Tribal government and the Secretary of the Interior.
(e) Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program TIPs shall be included
without change in the STIP, directly or by reference, once approved by
the FHWA pursuant to 23 U.S.C. 201(c)(4).
(f) The Governor shall provide all interested parties with a
reasonable opportunity to comment on the proposed STIP as required by
Sec. 450.210(a).
(g) The STIP shall include capital and non-capital surface
transportation projects (or phases of projects) within the boundaries
of the State proposed for funding under title 23 U.S.C. and title 49
U.S.C. Chapter 53 (including transportation alternatives and associated
transit improvements; Tribal Transportation Program projects, Federal
Lands Transportation Program projects, and Federal Lands Access Program
projects; HSIP projects; trails projects; and accessible pedestrian
walkways and bicycle facilities), except the following that may be
included:
(1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
(2) Metropolitan planning projects funded under 23 U.S.C. 104(d)
and 49 U.S.C. 5305(d);
(3) State planning and research projects funded under 23 U.S.C. 505
and 49 U.S.C. 5305(e);
(4) State planning and research projects funded with Surface
Transportation Program funds;
(5) Emergency relief projects (except those involving substantial
functional, locational, or capacity changes);
(6) Research, development, demonstration, and deployment projects
funded under 49 U.S.C. 5312, and technical assistance and standards
development projects funded under 49 U.S.C. 5314;
(7) Project management oversight projects funded under 49 U.S.C.
5327; and
(8) State safety oversight programs funded under 49 U.S.C. 5329.
(h) The STIP shall contain all regionally significant projects
requiring an action by the FHWA or the FTA whether or not the projects
are to be funded with 23 U.S.C. Chapters 1 and 2 or title 49 U.S.C.
Chapter 53 funds (e.g., addition of an interchange to the Interstate
System with State, local, and/or private funds, and congressionally
designated projects not funded under title 23 U.S.C. or title 49 U.S.C.
Chapter 53). For informational and conformity purposes, the STIP shall
include (if appropriate and included in any TIPs) all regionally
significant projects proposed to be funded with Federal funds other
than those administered by the FHWA or the FTA, as well as all
regionally significant projects to be funded with non-Federal funds.
(i) The STIP shall include for each project or phase (e.g.,
preliminary engineering, environment/NEPA, right-of-way, design, or
construction) the following:
(1) Sufficient descriptive material (i.e., type of work, termini,
and length) to identify the project or phase;
(2) Estimated total project cost or a project cost range, which may
extend beyond the 4 years of the STIP;
(3) The amount of Federal funds proposed to be obligated during
each program year. For the first year, this includes the proposed
category of Federal funds and source(s) of non-Federal funds. For the
second, third, and fourth years, this includes the likely category or
possible categories of Federal funds and sources of non-Federal funds;
and
(4) Identification of the agencies responsible for carrying out the
project or phase.
(j) Projects that are not considered to be of appropriate scale for
individual identification in a given program year may be grouped by
function, work type, and/or geographic area using the applicable
classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93.
In nonattainment and maintenance areas, project classifications must be
consistent with the ``exempt project'' classifications contained in the
EPA's transportation conformity regulations (40 CFR part 93, subpart
A). In addition, projects proposed for funding under title 23 U.S.C.
Chapter 2 that are not regionally significant may be grouped in one
line item or identified individually in the STIP.
(k) Each project or project phase included in the STIP shall be
consistent with the long-range statewide transportation plan developed
under Sec. 450.216 and, in metropolitan planning areas, consistent
with an approved metropolitan transportation plan developed under Sec.
450.324.
(l) The STIP may include a financial plan that demonstrates how the
approved STIP can be implemented, indicates resources from public and
private sources that are reasonably expected to be available to carry
out the STIP, and recommends any additional financing strategies for
needed projects and programs. In addition, for illustrative purposes,
the financial plan may include additional projects that would be
included in the adopted STIP if reasonable additional resources beyond
those identified in the financial plan were to become available. The
State is not required to select any project from the illustrative list
for implementation, and projects on the illustrative list cannot be
advanced to implementation without an action by the FHWA and the FTA on
the STIP. Revenue and cost estimates for the STIP must use an inflation
rate to reflect ``year of expenditure dollars,'' based on reasonable
financial principles and information, developed cooperatively by the
State, MPOs, and public transportation operators.
(m) In nonattainment and maintenance areas, projects included in
the first 2 years of the STIP shall be limited to those for which funds
are available or committed. Financial constraint of the STIP shall be
demonstrated and maintained by year and shall include sufficient
financial

[[Page 34145]]

information to demonstrate which projects are to be implemented using
current and/or reasonably available revenues, while federally supported
facilities are being adequately operated and maintained. In the case of
proposed funding sources, strategies for ensuring their availability
shall be identified in the financial plan consistent with paragraph (l)
of this section. For purposes of transportation operations and
maintenance, the STIP shall include financial information containing
system-level estimates of costs and revenue sources that are reasonably
expected to be available to adequately operate and maintain Federal-aid
highways (as defined by 23 U.S.C. 101(a)(5)) and public transportation
(as defined by title 49 U.S.C. 5302).
(n) Projects in any of the first 4 years of the STIP may be
advanced in place of another project in the first 4 years of the STIP,
subject to the project selection requirements of Sec. 450.222. In
addition, subject to FHWA/FTA approval (see Sec. 450.220), the State
may revise the STIP at any time under procedures agreed to by the
State, MPO(s), and public transportation operators consistent with the
STIP development procedures established in this section, as well as the
procedures for participation by interested parties (see Sec.
450.210(a)). Changes that affect fiscal constraint must take place by
amendment of the STIP.
(o) The STIP shall include a project, or an identified phase of a
project, only if full funding can reasonably be anticipated to be
available for the project within the time period contemplated for
completion of the project.
(p) In cases where the FHWA and the FTA find a STIP to be fiscally
constrained, and a revenue source is subsequently removed or
substantially reduced (i.e., by legislative or administrative actions),
the FHWA and the FTA will not withdraw the original determination of
fiscal constraint. However, in such cases, the FHWA and the FTA will
not act on an updated or amended STIP that does not reflect the changed
revenue situation.
(q) A STIP shall include, to the maximum extent practicable, a
discussion of the anticipated effect of the STIP toward achieving the
performance targets identified by the State in the statewide
transportation plan or other State performance-based plan(s), linking
investment priorities to those performance targets.

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

(a) At least every 4 years, the State shall submit an updated STIP
concurrently to the FHWA and the FTA for joint approval. The State must
also submit STIP amendments to the FHWA and the FTA for joint approval.
At the time the entire proposed STIP or STIP amendments are submitted
to the FHWA and the FTA for joint approval, the State shall certify
that the transportation planning process is being carried out in
accordance with all applicable requirements of:
(1) 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and 5304, and this part;
(2) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d-1) and 49 CFR part 21;
(3) 49 U.S.C. 5332, prohibiting discrimination on the basis of
race, color, creed, national origin, sex, or age in employment or
business opportunity;
(4) Section 1101(b) of the FAST Act (Pub. L. 114-357) and 49 CFR
part 26 regarding the involvement of disadvantaged business enterprises
in DOT funded projects;
(5) 23 CFR part 230, regarding implementation of an equal
employment opportunity program on Federal and Federal-aid highway
construction contracts;
(6) The provisions of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
(7) In States containing nonattainment and maintenance areas,
sections 174 and 176(c) and (d) of the Clean Air Act, as amended (42
U.S.C. 7504, 7506(c) and (d)) and 40 CFR part 93;
(8) The Older Americans Act, as amended (42 U.S.C. 6101),
prohibiting discrimination on the basis of age in programs or
activities receiving Federal financial assistance;
(9) 23 U.S.C. 324, regarding the prohibition of discrimination
based on gender; and
(10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and 49 CFR part 27 regarding discrimination against individuals with
disabilities.
(b) The FHWA and the FTA shall review the STIP or the amended STIP,
and make a joint finding on the extent to which the STIP is based on a
statewide transportation planning process that meets or substantially
meets the requirements of 23 U.S.C. 134 and 135, 49 U.S.C. 5303 and
5304, and subparts A, B, and C of this part. Approval of the STIP by
the FHWA and the FTA, in its entirety or in part, will be based upon
the results of this joint finding.
(1) If the FHWA and the FTA determine that the STIP or amended STIP
is based on a statewide transportation planning process that meets or
substantially meets the requirements of 23 U.S.C. 135, 49 U.S.C. 5304,
and this part, the FHWA and the FTA may jointly:
(i) Approve the entire STIP;
(ii) Approve the STIP subject to certain corrective actions by the
State; or
(iii) Under special circumstances, approve a partial STIP covering
only a portion of the State.
(2) If the FHWA and the FTA jointly determine and document in the
planning finding that a submitted STIP or amended STIP does not
substantially meet the requirements of 23 U.S.C. 135, 49 U.S.C. 5304,
and this part for any identified categories of projects, the FHWA and
the FTA will not approve the STIP.
(c) The approval period for a new or amended STIP shall not exceed
4 years. If a State demonstrates, in writing, that extenuating
circumstances will delay the submittal of a new or amended STIP past
its update deadline, the FHWA and the FTA will consider and take
appropriate action on a request to extend the approval beyond 4 years
for all or part of the STIP for a period not to exceed 180 calendar
days. In these cases, priority consideration will be given to projects
and strategies involving the operation and management of the multimodal
transportation system. Where the request involves projects in a
metropolitan planning area(s), the affected MPO(s) must concur in the
request. If the delay was due to the development and approval of a
metropolitan TIP(s), the affected MPO(s) must provide supporting
information, in writing, for the request.
(d) Where necessary in order to maintain or establish highway and
transit operations, the FHWA and the FTA may approve operating
assistance for specific projects or programs, even though the projects
or programs may not be included in an approved STIP.

Sec. 450.222 Project selection from the STIP.

(a) Except as provided in Sec. 450.218(g) and Sec. 450.220(d),
only projects in a FHWA/FTA approved STIP are eligible for funds
administered by the FHWA or the FTA.
(b) In metropolitan planning areas, transportation projects
proposed for funds administered by the FHWA or the FTA shall be
selected from the approved STIP in accordance with project selection
procedures provided in Sec. 450.332.

[[Page 34146]]

(c) In nonmetropolitan areas, with the exclusion of specific
projects as described in this section, the State shall select projects
from the approved STIP in cooperation with the affected nonmetropolitan
local officials, or if applicable, through RTPOs described in Sec.
450.210(e). The State shall select transportation projects undertaken
on the NHS, under the Bridge and Interstate Maintenance programs in
title 23 U.S.C. and under sections 5310 and 5311 of title 49 U.S.C.
Chapter 53 from the approved STIP in consultation with the affected
nonmetropolitan local officials with responsibility for transportation.
(d) Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program projects shall be selected
from the approved STIP in accordance with the procedures developed
pursuant to 23 U.S.C. 201, 202, 203, and 204.
(e) The projects in the first year of an approved STIP shall
constitute an ``agreed to'' list of projects for subsequent scheduling
and implementation. No further action under paragraphs (b) through (d)
of this section is required for the implementing agency to proceed with
these projects. If Federal funds available are significantly less than
the authorized amounts, or where there is significant shifting of
projects among years, Sec. 450.332(a) provides for a revised list of
``agreed to'' projects to be developed upon the request of the State,
MPO, or public transportation operator(s). If an implementing agency
wishes to proceed with a project in the second, third, or fourth year
of the STIP, the procedures in paragraphs (b) through (d) of this
section or expedited procedures that provide for the advancement of
projects from the second, third, or fourth years of the STIP may be
used, if agreed to by all parties involved in the selection process.

Sec. 450.224 Applicability of NEPA to statewide transportation plans
and programs.

Any decision by the Secretary concerning a long-range statewide
transportation plan or STIP developed through the processes provided
for in 23 U.S.C. 135, 49 U.S.C. 5304, and this subpart shall not be
considered to be a Federal action subject to review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

Sec. 450.226 Phase-in of new requirements.

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

Subpart C--Metropolitan Transportation Planning and Programming

Sec. 450.300 Purpose.

The purposes of this subpart are to implement the provisions of 23
U.S.C. 134, 23 U.S.C. 150, and 49 U.S.C. 5303, as amended, which:
(a) Set forth the national policy that the MPO designated for each
urbanized area is to carry out a continuing, cooperative, and
comprehensive performance-based multimodal transportation planning
process, including the development of a metropolitan transportation
plan and a TIP, that encourages and promotes the safe and efficient
development, management, and operation of surface transportation
systems to serve the mobility needs of people and freight (including
accessible pedestrian walkways, bicycle transportation facilities, and
intermodal facilities that support intercity transportation, including
intercity buses and intercity bus facilities and commuter vanpool
providers) fosters economic growth and development, and takes into
consideration resiliency needs, while minimizing transportation-related
fuel consumption and air pollution; and
(b) Encourages continued development and improvement of
metropolitan transportation planning processes guided by the planning
factors set forth in 23 U.S.C. 134(h) and 49 U.S.C. 5303(h).

Sec. 450.302 Applicability.

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

Sec. 450.304 Definitions.

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

Sec. 450.306 Scope of the metropolitan transportation planning
process.

(a) To accomplish the objectives in Sec. 450.300 and Sec.
450.306(b), metropolitan planning organizations designated under Sec.
450.310, in cooperation with the State and public transportation
operators, shall develop long-range transportation plans and TIPs
through a performance-driven, outcome-based approach to planning for
metropolitan areas of the State.
(b) The metropolitan transportation planning process shall be
continuous, cooperative, and comprehensive, and provide for
consideration and

[[Page 34147]]

implementation of projects, strategies, and services that will address
the following factors:
(1) Support the economic vitality of the metropolitan area,
especially by enabling global competitiveness, productivity, and
efficiency;
(2) Increase the safety of the transportation system for motorized
and non-motorized users;
(3) Increase the security of the transportation system for
motorized and non-motorized users;
(4) Increase accessibility and mobility of people and freight;
(5) Protect and enhance the environment, promote energy
conservation, improve the quality of life, and promote consistency
between transportation improvements and State and local planned growth
and economic development patterns;
(6) Enhance the integration and connectivity of the transportation
system, across and between modes, for people and freight;
(7) Promote efficient system management and operation;
(8) Emphasize the preservation of the existing transportation
system;
(9) Improve the resiliency and reliability of the transportation
system and reduce or mitigate stormwater impacts of surface
transportation; and
(10) Enhance travel and tourism.
(c) Consideration of the planning factors in paragraph (b) of this
section shall be reflected, as appropriate, in the metropolitan
transportation planning process. The degree of consideration and
analysis of the factors should be based on the scale and complexity of
many issues, including transportation system development, land use,
employment, economic development, human and natural environment
(including Section 4(f) properties as defined in 23 CFR 774.17), and
housing and community development.
(d) Performance-based approach. (1) The metropolitan transportation
planning process shall provide for the establishment and use of a
performance-based approach to transportation decisionmaking to support
the national goals described in 23 U.S.C. 150(b) and the general
purposes described in 49 U.S.C. 5301(c).
(2) Establishment of performance targets by metropolitan planning
organizations. (i) Each metropolitan planning organization shall
establish performance targets that address the performance measures or
standards established under 23 CFR part 490 (where applicable), 49
U.S.C. 5326(c), and 49 U.S.C. 5329(d) to use in tracking progress
toward attainment of critical outcomes for the region of the
metropolitan planning organization.
(ii) The selection of targets that address performance measures
described in 23 U.S.C. 150(c) shall be in accordance with the
appropriate target setting framework established at 23 CFR part 490,
and shall be coordinated with the relevant State(s) to ensure
consistency, to the maximum extent practicable.
(iii) The selection of performance targets that address performance
measures described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) shall be
coordinated, to the maximum extent practicable, with public
transportation providers to ensure consistency with the performance
targets that public transportation providers establish under 49 U.S.C.
5326(c) and 49 U.S.C. 5329(d).
(3) Each MPO shall establish the performance targets under
paragraph (d)(2) of this section not later than 180 days after the date
on which the relevant State or provider of public transportation
establishes the performance targets.
(4) An MPO shall integrate in the metropolitan transportation
planning process, directly or by reference, the goals, objectives,
performance measures, and targets described in other State
transportation plans and transportation processes, as well as any plans
developed under 49 U.S.C. chapter 53 by providers of public
transportation, required as part of a performance-based program
including:
(i) The State asset management plan for the NHS, as defined in 23
U.S.C. 119(e) and the Transit Asset Management Plan, as discussed in 49
U.S.C. 5326;
(ii) Applicable portions of the HSIP, including the SHSP, as
specified in 23 U.S.C. 148;
(iii) The Public Transportation Agency Safety Plan in 49 U.S.C.
5329(d);
(iv) Other safety and security planning and review processes,
plans, and programs, as appropriate;
(v) The Congestion Mitigation and Air Quality Improvement Program
performance plan in 23 U.S.C. 149(l), as applicable;
(vi) Appropriate (metropolitan) portions of the State Freight Plan
(MAP-21 section 1118);
(vii) The congestion management process, as defined in 23 CFR
450.322, if applicable; and
(viii) Other State transportation plans and transportation
processes required as part of a performance-based program.
(e) The failure to consider any factor specified in paragraph (b)
or (d) of this section shall not be reviewable by any court under title
23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5, U.S.C.
Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a
metropolitan transportation plan, TIP, a project or strategy, or the
certification of a metropolitan transportation planning process.
(f) An MPO shall carry out the metropolitan transportation planning
process in coordination with the statewide transportation planning
process required by 23 U.S.C. 135 and 49 U.S.C. 5304.
(g) The metropolitan transportation planning process shall (to the
maximum extent practicable) be consistent with the development of
applicable regional intelligent transportation systems (ITS)
architectures, as defined in 23 CFR part 940.
(h) Preparation of the coordinated public transit-human services
transportation plan, as required by 49 U.S.C. 5310, should be
coordinated and consistent with the metropolitan transportation
planning process.
(i) In an urbanized area not designated as a TMA that is an air
quality attainment area, the MPO(s) may propose and submit to the FHWA
and the FTA for approval a procedure for developing an abbreviated
metropolitan transportation plan and TIP. In developing proposed
simplified planning procedures, consideration shall be given to whether
the abbreviated metropolitan transportation plan and TIP will achieve
the purposes of 23 U.S.C. 134, 49 U.S.C. 5303, and this part, taking
into account the complexity of the transportation problems in the area.
The MPO shall develop simplified procedures in cooperation with the
State(s) and public transportation operator(s).

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

(a) Funds provided under 23 U.S.C. 104(d), 49 U.S.C. 5305(d), and
49 U.S.C. 5307, are available to MPOs to accomplish activities
described in this subpart. At the State's option, funds provided under
23 U.S.C. 104(b)(2) and 23 U.S.C. 505 may also be provided to MPOs for
metropolitan transportation planning. At the option of the State and
operators of public transportation, funds provided under 49 U.S.C.
5305(e) may also be provided to MPOs for activities that support
metropolitan transportation planning. In addition, an MPO serving an
urbanized area with a population over 200,000, as designated by the
Bureau of the Census, may at its discretion use funds sub-allocated
under 23 U.S.C. 133(d)(4) for

[[Page 34148]]

metropolitan transportation planning activities.
(b) An MPO shall document metropolitan transportation planning
activities performed with funds provided under title 23 U.S.C. and
title 49 U.S.C. Chapter 53 in a unified planning work program (UPWP) or
simplified statement of work in accordance with the provisions of this
section and 23 CFR part 420.
(c) Except as provided in paragraph (d) of this section, each MPO,
in cooperation with the State(s) and public transportation operator(s),
shall develop a UPWP that includes a discussion of the planning
priorities facing the MPA. The UPWP shall identify work proposed for
the next 1- or 2-year period by major activity and task (including
activities that address the planning factors in Sec. 450.306(b)), in
sufficient detail to indicate who (e.g., MPO, State, public
transportation operator, local government, or consultant) will perform
the work, the schedule for completing the work, the resulting products,
the proposed funding by activity/task, and a summary of the total
amounts and sources of Federal and matching funds.
(d) With the prior approval of the State and the FHWA and the FTA,
an MPO in an area not designated as a TMA may prepare a simplified
statement of work, in cooperation with the State(s) and the public
transportation operator(s), in lieu of a UPWP. A simplified statement
of work shall include a description of the major activities to be
performed during the next 1- or 2-year period, who (e.g., State, MPO,
public transportation operator, local government, or consultant) will
perform the work, the resulting products, and a summary of the total
amounts and sources of Federal and matching funds. If a simplified
statement of work is used, it may be submitted as part of the State's
planning work program, in accordance with 23 CFR part 420.
(e) Arrangements may be made with the FHWA and the FTA to combine
the UPWP or simplified statement of work with the work program(s) for
other Federal planning funds.
(f) Administrative requirements for UPWPs and simplified statements
of work are contained in 23 CFR part 420 and FTA Circular C8100, as
amended (Program Guidance for Metropolitan Planning and State Planning
and Research Program Grants).

Sec. 450.310 Metropolitan planning organization designation and
redesignation.

(a) To carry out the metropolitan transportation planning process
under this subpart, an MPO shall be designated for each urbanized area
with a population of more than 50,000 individuals (as determined by the
Bureau of the Census).
(b) MPO designation shall be made by agreement between the Governor
and units of general purpose local government that together represent
at least 75 percent of the affected population (including the largest
incorporated city, based on population, as named by the Bureau of the
Census) or in accordance with procedures established by applicable
State or local law.
(c) The FHWA and the FTA shall identify as a TMA each urbanized
area with a population of over 200,000 individuals, as defined by the
Bureau of the Census. The FHWA and the FTA shall also designate any
urbanized area as a TMA on the request of the Governor and the MPO
designated for that area.
(d) TMA structure:
(1) Not later than October 1, 2014, each metropolitan planning
organization that serves a designated TMA shall consist of:
(i) Local elected officials;
(ii) Officials of public agencies that administer or operate major
modes of transportation in the metropolitan area, including
representation by providers of public transportation; and
(iii) Appropriate State officials.
(2) An MPO may be restructured to meet the requirements of this
paragraph (d) without undertaking a redesignation.
(3) Representation. (i) Designation or selection of officials or
representatives under paragraph (d)(1) of this section shall be
determined by the MPO according to the bylaws or enabling statute of
the organization.
(ii) Subject to the bylaws or enabling statute of the MPO, a
representative of a provider of public transportation may also serve as
a representative of a local municipality.
(iii) An official described in paragraph (d)(1)(ii) shall have
responsibilities, actions, duties, voting rights, and any other
authority commensurate with other officials described in paragraph
(d)(1) of this section.
(4) Nothing in this section shall be construed to interfere with
the authority, under any State law in effect on December 18, 1991, of a
public agency with multimodal transportation responsibilities--
(i) To develop the plans and TIPs for adoption by an MPO; and
(ii) To develop long-range capital plans, coordinate transit
services and projects, and carry out other activities pursuant to State
law.
(e) To the extent possible, only one MPO shall be designated for
each urbanized area or group of contiguous urbanized areas. More than
one MPO may be designated to serve an urbanized area only if the
Governor(s) and the existing MPO, if applicable, determine that the
size and complexity of the urbanized area make designation of more than
one MPO appropriate. In those cases where two or more MPOs serve the
same urbanized area, the MPOs shall establish official, written
agreements that clearly identify areas of coordination and the division
of transportation planning responsibilities among the MPOs.
(f) Nothing in this subpart shall be deemed to prohibit an MPO from
using the staff resources of other agencies, non-profit organizations,
or contractors to carry out selected elements of the metropolitan
transportation planning process.
(g) An MPO designation shall remain in effect until an official
redesignation has been made in accordance with this section.
(h) An existing MPO may be redesignated only by agreement between
the Governor and units of general purpose local government that
together represent at least 75 percent of the existing metropolitan
planning area population (including the largest incorporated city,
based on population, as named by the Bureau of the Census).
(i) For the purposes of redesignation, units of general purpose
local government may be defined as elected officials from each unit of
general purpose local government located within the metropolitan
planning area served by the existing MPO.
(j) Redesignation of an MPO (in accordance with the provisions of
this section) is required whenever the existing MPO proposes to make:
(1) A substantial change in the proportion of voting members on the
existing MPO representing the largest incorporated city, other units of
general purpose local government served by the MPO, and the State(s);
or
(2) A substantial change in the decisionmaking authority or
responsibility of the MPO, or in decisionmaking procedures established
under MPO by-laws.
(k) Redesignation of an MPO serving a multistate metropolitan
planning area requires agreement between the Governors of each State
served by the existing MPO and units of general purpose local
government that together represent at least 75 percent of the existing
metropolitan planning area population (including the largest
incorporated city, based on population, as named by the Bureau of the
Census).

[[Page 34149]]

(l) The following changes to an MPO do not require a redesignation
(as long as they do not trigger a substantial change as described in
paragraph (j) of this section):
(1) The identification of a new urbanized area (as determined by
the Bureau of the Census) within an existing metropolitan planning
area;
(2) Adding members to the MPO that represent new units of general
purpose local government resulting from expansion of the metropolitan
planning area;
(3) Adding members to satisfy the specific membership requirements
described in paragraph (d) of this section for an MPO that serves a
TMA; or
(4) Periodic rotation of members representing units of general-
purpose local government, as established under MPO by-laws.
(m) Each Governor with responsibility for a portion of a multistate
metropolitan area and the appropriate MPOs shall, to the extent
practicable, provide coordinated transportation planning for the entire
MPA. The consent of Congress is granted to any two or more States to:
(1) Enter into agreements or compacts, not in conflict with any law
of the United States, for cooperative efforts and mutual assistance in
support of activities authorized under 23 U.S.C. 134 and 49 U.S.C. 5303
as the activities pertain to interstate areas and localities within the
States; and
(2) Establish such agencies, joint or otherwise, as the States may
determine desirable for making the agreements and compacts effective.

Sec. 450.312 Metropolitan planning area boundaries.

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

Sec. 450.314 Metropolitan planning agreements.

(a) The MPO, the State(s), and the providers of public
transportation shall cooperatively determine their mutual
responsibilities in carrying out the metropolitan transportation
planning process. These responsibilities shall be clearly identified in
written agreements among the MPO, the State(s), and the providers of
public transportation serving the MPA. To the extent possible, a single
agreement between all responsible parties should be developed. The
written agreement(s) shall include specific provisions for the
development of financial plans that support the metropolitan
transportation plan (see Sec. 450.324) and the metropolitan TIP (see
Sec. 450.326), and development of the annual listing of obligated
projects (see Sec. 450.334).
(b) The MPO, the State(s), and the providers of public
transportation should periodically review and update the agreement, as
appropriate, to reflect effective changes.
(c) If the MPA does not include the entire nonattainment or
maintenance area, there shall be a written agreement among the State
department of transportation, State air quality agency, affected local
agencies, and the MPO describing the process for cooperative planning
and analysis of all projects outside the MPA within the nonattainment
or maintenance area. The agreement must also indicate how the total
transportation-related emissions for the nonattainment or maintenance
area, including areas outside the MPA, will be treated for the purposes
of determining conformity in accordance with the EPA's transportation
conformity regulations (40 CFR part 93, subpart A). The agreement shall
address policy mechanisms for resolving conflicts concerning
transportation-related emissions that may arise between the MPA and the
portion of the nonattainment or maintenance area outside the MPA.
(d) In nonattainment or maintenance areas, if the MPO is not the
designated agency for air quality planning under section 174 of the
Clean Air Act (42

[[Page 34150]]

U.S.C. 7504), there shall be a written agreement between the MPO and
the designated air quality planning agency describing their respective
roles and responsibilities for air quality related transportation
planning.
(e) If more than one MPO has been designated to serve an urbanized
area, there shall be a written agreement among the MPOs, the State(s),
and the public transportation operator(s) describing how the
metropolitan transportation planning processes will be coordinated to
assure the development of consistent metropolitan transportation plans
and TIPs across the MPA boundaries, particularly in cases in which a
proposed transportation investment extends across the boundaries of
more than one MPA. If any part of the urbanized area is a nonattainment
or maintenance area, the agreement also shall include State and local
air quality agencies. The metropolitan transportation planning
processes for affected MPOs should, to the maximum extent possible,
reflect coordinated data collection, analysis, and planning assumptions
across the MPAs. Alternatively, a single metropolitan transportation
plan and/or TIP for the entire urbanized area may be developed jointly
by the MPOs in cooperation with their respective planning partners.
Coordination efforts and outcomes shall be documented in subsequent
transmittals of the UPWP and other planning products, including the
metropolitan transportation plan and TIP, to the State(s), the FHWA,
and the FTA.
(f) Where the boundaries of the urbanized area or MPA extend across
two or more States, the Governors with responsibility for a portion of
the multistate area, the appropriate MPO(s), and the public
transportation operator(s) shall coordinate transportation planning for
the entire multistate area. States involved in such multistate
transportation planning may:
(1) Enter into agreements or compacts, not in conflict with any law
of the United States, for cooperative efforts and mutual assistance in
support of activities authorized under this section as the activities
pertain to interstate areas and localities within the States; and
(2) Establish such agencies, joint or otherwise, as the States may
determine desirable for making the agreements and compacts effective.
(g) If part of an urbanized area that has been designated as a TMA
overlaps into an adjacent MPA serving an urbanized area that is not
designated as a TMA, the adjacent urbanized area shall not be treated
as a TMA. However, a written agreement shall be established between the
MPOs with MPA boundaries including a portion of the TMA, which clearly
identifies the roles and responsibilities of each MPO in meeting
specific TMA requirements (e.g., congestion management process, Surface
Transportation Program funds suballocated to the urbanized area over
200,000 population, and project selection).
(h)(1) The MPO(s), State(s), and the providers of public
transportation shall jointly agree upon and develop specific written
provisions for cooperatively developing and sharing information related
to transportation performance data, the selection of performance
targets, the reporting of performance targets, the reporting of
performance to be used in tracking progress toward attainment of
critical outcomes for the region of the MPO (see Sec. 450.306(d)), and
the collection of data for the State asset management plan for the NHS
for each of the following circumstances:
(i) When one MPO serves an urbanized area,
(ii) When more than one MPO serves an urbanized area, and
(iii) When an urbanized area that has been designated as a TMA
overlaps into an adjacent MPA serving an urbanized area that is not a
TMA.
(2) These provisions shall be documented either:
(i) As part of the metropolitan planning agreements required under
(a), (e), and (g) of this section, or
(ii) Documented in some other means outside of the metropolitan
planning agreements as determined cooperatively by the MPO(s),
State(s), and providers of public transportation.

Sec. 450.316 Interested parties, participation, and consultation.

(a) The MPO shall develop and use a documented participation plan
that defines a process for providing individuals, affected public
agencies, representatives of public transportation employees, public
ports, freight shippers, providers of freight transportation services,
private providers of transportation (including intercity bus operators,
employer-based commuting programs, such as carpool program, vanpool
program, transit benefit program, parking cash-out program, shuttle
program, or telework program), representatives of users of public
transportation, representatives of users of pedestrian walkways and
bicycle transportation facilities, representatives of the disabled, and
other interested parties with reasonable opportunities to be involved
in the metropolitan transportation planning process.
(1) The MPO shall develop the participation plan in consultation
with all interested parties and shall, at a minimum, describe explicit
procedures, strategies, and desired outcomes for:
(i) Providing adequate public notice of public participation
activities and time for public review and comment at key decision
points, including a reasonable opportunity to comment on the proposed
metropolitan transportation plan and the TIP;
(ii) Providing timely notice and reasonable access to information
about transportation issues and processes;
(iii) Employing visualization techniques to describe metropolitan
transportation plans and TIPs;
(iv) Making public information (technical information and meeting
notices) available in electronically accessible formats and means, such
as the World Wide Web;
(v) Holding any public meetings at convenient and accessible
locations and times;
(vi) Demonstrating explicit consideration and response to public
input received during the development of the metropolitan
transportation plan and the TIP;
(vii) Seeking out and considering the needs of those traditionally
underserved by existing transportation systems, such as low-income and
minority households, who may face challenges accessing employment and
other services;
(viii) Providing an additional opportunity for public comment, if
the final metropolitan transportation plan or TIP differs significantly
from the version that was made available for public comment by the MPO
and raises new material issues that interested parties could not
reasonably have foreseen from the public involvement efforts;
(ix) Coordinating with the statewide transportation planning public
involvement and consultation processes under subpart B of this part;
and
(x) Periodically reviewing the effectiveness of the procedures and
strategies contained in the participation plan to ensure a full and
open participation process.
(2) When significant written and oral comments are received on the
draft metropolitan transportation plan and TIP (including the financial
plans) as a result of the participation process in this section or the
interagency consultation process required under the EPA transportation
conformity regulations (40 CFR part 93, subpart A), a summary,
analysis, and report on the disposition of comments shall be made as
part of

[[Page 34151]]

the final metropolitan transportation plan and TIP.
(3) A minimum public comment period of 45 calendar days shall be
provided before the initial or revised participation plan is adopted by
the MPO. Copies of the approved participation plan shall be provided to
the FHWA and the FTA for informational purposes and shall be posted on
the World Wide Web, to the maximum extent practicable.
(b) In developing metropolitan transportation plans and TIPs, the
MPO should consult with agencies and officials responsible for other
planning activities within the MPA that are affected by transportation
(including State and local planned growth, economic development,
tourism, natural disaster risk reduction, environmental protection,
airport operations, or freight movements) or coordinate its planning
process (to the maximum extent practicable) with such planning
activities. In addition, the MPO shall develop the metropolitan
transportation plans and TIPs with due consideration of other related
planning activities within the metropolitan area, and the process shall
provide for the design and delivery of transportation services within
the area that are provided by:
(1) Recipients of assistance under title 49 U.S.C. Chapter 53;
(2) Governmental agencies and non-profit organizations (including
representatives of the agencies and organizations) that receive Federal
assistance from a source other than the U.S. Department of
Transportation to provide non-emergency transportation services; and
(3) Recipients of assistance under 23 U.S.C. 201-204.
(c) When the MPA includes Indian Tribal lands, the MPO shall
appropriately involve the Indian Tribal government(s) in the
development of the metropolitan transportation plan and the TIP.
(d) When the MPA includes Federal public lands, the MPO shall
appropriately involve the Federal land management agencies in the
development of the metropolitan transportation plan and the TIP.
(e) MPOs shall, to the extent practicable, develop a documented
process(es) that outlines roles, responsibilities, and key decision
points for consulting with other governments and agencies, as defined
in paragraphs (b), (c), and (d) of this section, which may be included
in the agreement(s) developed under Sec. 450.314.

Sec. 450.318 Transportation planning studies and project development.

(a) Pursuant to section 1308 of the Transportation Equity Act for
the 21st Century, TEA-21 (Pub. L. 105-178), an MPO(s), State(s), or
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the metropolitan
transportation planning process. To the extent practicable, development
of these transportation planning studies shall involve consultation
with, or joint efforts among, the MPO(s), State(s), and/or public
transportation operator(s). The results or decisions of these
transportation planning studies may be used as part of the overall
project development process consistent with the National Environmental
Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and associated
implementing regulations (23 CFR part 771 and 40 CFR parts 1500-1508).
Specifically, these corridor or subarea studies may result in producing
any of the following for a proposed transportation project:
(1) Purpose and need or goals and objective statement(s);
(2) General travel corridor and/or general mode(s) definition
(e.g., highway, transit, or a highway/transit combination);
(3) Preliminary screening of alternatives and elimination of
unreasonable alternatives;
(4) Basic description of the environmental setting; and/or
(5) Preliminary identification of environmental impacts and
environmental mitigation.
(b) Publicly available documents or other source material produced
by, or in support of, the transportation planning process described in
this subpart may be incorporated directly or by reference into
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:
(1) The NEPA lead agencies agree that such incorporation will aid
in establishing or evaluating the purpose and need for the Federal
action, reasonable alternatives, cumulative or other impacts on the
human and natural environment, or mitigation of these impacts; and
(2) The systems-level, corridor, or subarea planning study is
conducted with:
(i) Involvement of interested State, local, Tribal, and Federal
agencies;
(ii) Public review;
(iii) Reasonable opportunity to comment during the metropolitan
transportation planning process and development of the corridor or
subarea planning study;
(iv) Documentation of relevant decisions in a form that is
identifiable and available for review during the NEPA scoping process
and can be appended to or referenced in the NEPA document; and
(v) The review of the FHWA and the FTA, as appropriate.
(c) By agreement of the NEPA lead agencies, the above integration
may be accomplished through tiering (as described in 40 CFR 1502.20),
incorporating the subarea or corridor planning study into the draft
Environmental Impact Statement (EIS) or Environmental Assessment, or
other means that the NEPA lead agencies deem appropriate.
(d) Additional information to further explain the linkages between
the transportation planning and project development/NEPA processes is
contained in Appendix A to this part, including an explanation that it
is non-binding guidance material. The guidance in Appendix A applies
only to paragraphs (a)-(c) in this section.
(e) In addition to the process for incorporation directly or by
reference outlined in paragraph (b) of this section, an additional
authority for integrating planning products into the environmental
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C.
168(f):
(1) The statutory authority in 23 U.S.C. 168 shall not be construed
to limit in any way the continued use of processes established under
other parts of this section or under an authority established outside
of this part, and the use of one of the processes in this section does
not preclude the subsequent use of another process in this section or
an authority outside of this part.
(2) The statute does not restrict the initiation of the
environmental review process during planning.

Sec. 450.320 Development of programmatic mitigation plans.

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

[[Page 34152]]

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

Sec. 450.322 Congestion management process in transportation
management areas.

(a) The transportation planning process in a TMA shall address
congestion management through a process that provides for safe and
effective integrated management and operation of the multimodal
transportation system, based on a cooperatively developed and
implemented metropolitan-wide strategy, of new and existing
transportation facilities eligible for funding under title 23 U.S.C.
and title 49 U.S.C. Chapter 53 through the use of travel demand
reduction (including intercity bus operators, employer-based commuting
programs such as a carpool program, vanpool program, transit benefit
program, parking cash-out program, shuttle program, or telework
program), job access projects, and operational management strategies.
(b) The development of a congestion management process should
result in multimodal system performance measures and strategies that
can be reflected in the metropolitan transportation plan and the TIP.
(c) The level of system performance deemed acceptable by State and
local transportation officials may vary by type of transportation
facility, geographic location (metropolitan area or subarea), and/or
time of day. In addition, consideration should be given to strategies
that manage demand, reduce single occupant vehicle (SOV) travel,
improve transportation system management and operations, and improve
efficient service integration within and across modes, including
highway, transit, passenger and freight rail operations, and non-
motorized transport. Where the addition of general purpose lanes is
determined to be an appropriate congestion management strategy,
explicit consideration is to be given to the incorporation of
appropriate features into the SOV project to facilitate future demand
management strategies and operational improvements that will maintain
the functional integrity and safety of those lanes.
(d) The congestion management process shall be developed,
established, and implemented as part of the metropolitan transportation
planning process that includes coordination with transportation system
management and operations activities. The congestion management process
shall include:
(1) Methods to monitor and evaluate the performance of the
multimodal transportation system, identify the underlying causes of
recurring and non-recurring congestion, identify and evaluate
alternative strategies, provide information supporting the
implementation of actions, and evaluate the effectiveness of
implemented actions;
(2) Definition of congestion management objectives and appropriate
performance measures to assess the extent of congestion and support the
evaluation of the effectiveness of congestion reduction and mobility
enhancement strategies for the

[[Page 34153]]

movement of people and goods. Since levels of acceptable system
performance may vary among local communities, performance measures
should be tailored to the specific needs of the area and established
cooperatively by the State(s), affected MPO(s), and local officials in
consultation with the operators of major modes of transportation in the
coverage area, including providers of public transportation;
(3) Establishment of a coordinated program for data collection and
system performance monitoring to define the extent and duration of
congestion, to contribute in determining the causes of congestion, and
evaluate the efficiency and effectiveness of implemented actions. To
the extent possible, this data collection program should be coordinated
with existing data sources (including archived operational/ITS data)
and coordinated with operations managers in the metropolitan area;
(4) Identification and evaluation of the anticipated performance
and expected benefits of appropriate congestion management strategies
that will contribute to the more effective use and improved safety of
existing and future transportation systems based on the established
performance measures. The following categories of strategies, or
combinations of strategies, are some examples of what should be
appropriately considered for each area:
(i) Demand management measures, including growth management, and
congestion pricing;
(ii) Traffic operational improvements;
(iii) Public transportation improvements;
(iv) ITS technologies as related to the regional ITS architecture;
and
(v) Where necessary, additional system capacity.
(5) Identification of an implementation schedule, implementation
responsibilities, and possible funding sources for each strategy (or
combination of strategies) proposed for implementation; and
(6) Implementation of a process for periodic assessment of the
effectiveness of implemented strategies, in terms of the area's
established performance measures. The results of this evaluation shall
be provided to decision makers and the public to provide guidance on
selection of effective strategies for future implementation.
(e) In a TMA designated as nonattainment area for ozone or carbon
monoxide pursuant to the Clean Air Act, Federal funds may not be
programmed for any project that will result in a significant increase
in the carrying capacity for SOVs (i.e., a new general purpose highway
on a new location or adding general purpose lanes, with the exception
of safety improvements or the elimination of bottlenecks), unless the
project is addressed through a congestion management process meeting
the requirements of this section.
(f) In TMAs designated as nonattainment for ozone or carbon
monoxide, the congestion management process shall provide an
appropriate analysis of reasonable (including multimodal) travel demand
reduction and operational management strategies for the corridor in
which a project that will result in a significant increase in capacity
for SOVs (as described in paragraph (d) of this section) is proposed to
be advanced with Federal funds. If the analysis demonstrates that
travel demand reduction and operational management strategies cannot
fully satisfy the need for additional capacity in the corridor and
additional SOV capacity is warranted, then the congestion management
process shall identify all reasonable strategies to manage the SOV
facility safely and effectively (or to facilitate its management in the
future). Other travel demand reduction and operational management
strategies appropriate for the corridor, but not appropriate for
incorporation into the SOV facility itself, shall also be identified
through the congestion management process. All identified reasonable
travel demand reduction and operational management strategies shall be
incorporated into the SOV project or committed to by the State and MPO
for implementation.
(g) State laws, rules, or regulations pertaining to congestion
management systems or programs may constitute the congestion management
process, if the FHWA and the FTA find that the State laws, rules, or
regulations are consistent with, and fulfill the intent of, the
purposes of 23 U.S.C. 134 and 49 U.S.C. 5303.
(h) Congestion management plan. A MPO serving a TMA may develop a
plan that includes projects and strategies that will be considered in
the TIP of such MPO.
(1) Such plan shall:
(i) Develop regional goals to reduce vehicle miles traveled during
peak commuting hours and improve transportation connections between
areas with high job concentration and areas with high concentrations of
low-income households;
(ii) Identify existing public transportation services, employer
based commuter programs, and other existing transportation services
that support access to jobs in the region; and
(iii) Identify proposed projects and programs to reduce congestion
and increase job access opportunities.
(2) In developing the congestion management plan, an MPO shall
consult with employers, private and nonprofit providers of public
transportation, transportation management organizations, and
organizations that provide job access reverse commute projects or job-
related services to low-income individuals.

Sec. 450.324 Development and content of the metropolitan
transportation plan.

(a) The metropolitan transportation planning process shall include
the development of a transportation plan addressing no less than a 20-
year planning horizon as of the effective date. In formulating the
transportation plan, the MPO shall consider factors described in Sec.
450.306 as the factors relate to a minimum 20-year forecast period. In
nonattainment and maintenance areas, the effective date of the
transportation plan shall be the date of a conformity determination
issued by the FHWA and the FTA. In attainment areas, the effective date
of the transportation plan shall be its date of adoption by the MPO.
(b) The transportation plan shall include both long-range and
short-range strategies/actions that provide for the development of an
integrated multimodal transportation system (including accessible
pedestrian walkways and bicycle transportation facilities) to
facilitate the safe and efficient movement of people and goods in
addressing current and future transportation demand.
(c) The MPO shall review and update the transportation plan at
least every 4 years in air quality nonattainment and maintenance areas
and at least every 5 years in attainment areas to confirm the
transportation plan's validity and consistency with current and
forecasted transportation and land use conditions and trends and to
extend the forecast period to at least a 20-year planning horizon. In
addition, the MPO may revise the transportation plan at any time using
the procedures in this section without a requirement to extend the
horizon year. The MPO shall approve the transportation plan (and any
revisions) and submit it for information purposes to the Governor.
Copies of any updated or revised transportation plans must be provided
to the FHWA and the FTA.
(d) In metropolitan areas that are in nonattainment for ozone or
carbon monoxide, the MPO shall coordinate the development of the
metropolitan transportation plan with the process for

[[Page 34154]]

developing transportation control measures (TCMs) in a State
Implementation Plan (SIP).
(e) The MPO, the State(s), and the public transportation
operator(s) shall validate data used in preparing other existing modal
plans for providing input to the transportation plan. In updating the
transportation plan, the MPO shall base the update on the latest
available estimates and assumptions for population, land use, travel,
employment, congestion, and economic activity. The MPO shall approve
transportation plan contents and supporting analyses produced by a
transportation plan update.
(f) The metropolitan transportation plan shall, at a minimum,
include:
(1) The current and projected transportation demand of persons and
goods in the metropolitan planning area over the period of the
transportation plan;
(2) Existing and proposed transportation facilities (including
major roadways, public transportation facilities, intercity bus
facilities, multimodal and intermodal facilities, nonmotorized
transportation facilities (e.g., pedestrian walkways and bicycle
facilities), and intermodal connectors) that should function as an
integrated metropolitan transportation system, giving emphasis to those
facilities that serve important national and regional transportation
functions over the period of the transportation plan.
(3) A description of the performance measures and performance
targets used in assessing the performance of the transportation system
in accordance with Sec. 450.306(d).
(4) A system performance report and subsequent updates evaluating
the condition and performance of the transportation system with respect
to the performance targets described in Sec. 450.306(d), including--
(i) Progress achieved by the metropolitan planning organization in
meeting the performance targets in comparison with system performance
recorded in previous reports, including baseline data; and
(ii) For metropolitan planning organizations that voluntarily elect
to develop multiple scenarios, an analysis of how the preferred
scenario has improved the conditions and performance of the
transportation system and how changes in local policies and investments
have impacted the costs necessary to achieve the identified performance
targets.
(5) Operational and management strategies to improve the
performance of existing transportation facilities to relieve vehicular
congestion and maximize the safety and mobility of people and goods;
(6) Consideration of the results of the congestion management
process in TMAs that meet the requirements of this subpart, including
the identification of SOV projects that result from a congestion
management process in TMAs that are nonattainment for ozone or carbon
monoxide.
(7) Assessment of capital investment and other strategies to
preserve the existing and projected future metropolitan transportation
infrastructure, provide for multimodal capacity increases based on
regional priorities and needs, and reduce the vulnerability of the
existing transportation infrastructure to natural disasters. The
metropolitan transportation plan may consider projects and strategies
that address areas or corridors where current or projected congestion
threatens the efficient functioning of key elements of the metropolitan
area's transportation system.
(8) Transportation and transit enhancement activities, including
consideration of the role that intercity buses may play in reducing
congestion, pollution, and energy consumption in a cost-effective
manner and strategies and investments that preserve and enhance
intercity bus systems, including systems that are privately owned and
operated, and including transportation alternatives, as defined in 23
U.S.C. 101(a), and associated transit improvements, as described in 49
U.S.C. 5302(a), as appropriate;
(9) Design concept and design scope descriptions of all existing
and proposed transportation facilities in sufficient detail, regardless
of funding source, in nonattainment and maintenance areas for
conformity determinations under the EPA's transportation conformity
regulations (40 CFR part 93, subpart A). In all areas (regardless of
air quality designation), all proposed improvements shall be described
in sufficient detail to develop cost estimates;
(10) A discussion of types of potential environmental mitigation
activities and potential areas to carry out these activities, including
activities that may have the greatest potential to restore and maintain
the environmental functions affected by the metropolitan transportation
plan. The discussion may focus on policies, programs, or strategies,
rather than at the project level. The MPO shall develop the discussion
in consultation with applicable Federal, State, and Tribal land
management, wildlife, and regulatory agencies. The MPO may establish
reasonable timeframes for performing this consultation;
(11) A financial plan that demonstrates how the adopted
transportation plan can be implemented.
(i) For purposes of transportation system operations and
maintenance, the financial plan shall contain system-level estimates of
costs and revenue sources that are reasonably expected to be available
to adequately operate and maintain the Federal-aid highways (as defined
by 23 U.S.C. 101(a)(5)) and public transportation (as defined by title
49 U.S.C. Chapter 53).
(ii) For the purpose of developing the metropolitan transportation
plan, the MPO, public transportation operator(s), and State shall
cooperatively develop estimates of funds that will be available to
support metropolitan transportation plan implementation, as required
under Sec. 450.314(a). All necessary financial resources from public
and private sources that are reasonably expected to be made available
to carry out the transportation plan shall be identified.
(iii) The financial plan shall include recommendations on any
additional financing strategies to fund projects and programs included
in the metropolitan transportation plan. In the case of new funding
sources, strategies for ensuring their availability shall be
identified. The financial plan may include an assessment of the
appropriateness of innovative finance techniques (for example, tolling,
pricing, bonding, public private partnerships, or other strategies) as
revenue sources for projects in the plan.
(iv) In developing the financial plan, the MPO shall take into
account all projects and strategies proposed for funding under title 23
U.S.C., title 49 U.S.C. Chapter 53 or with other Federal funds; State
assistance; local sources; and private participation. Revenue and cost
estimates that support the metropolitan transportation plan must use an
inflation rate(s) to reflect ``year of expenditure dollars,'' based on
reasonable financial principles and information, developed
cooperatively by the MPO, State(s), and public transportation
operator(s).
(v) For the outer years of the metropolitan transportation plan
(i.e., beyond the first 10 years), the financial plan may reflect
aggregate cost ranges/cost bands, as long as the future funding
source(s) is reasonably expected to be available to support the
projected cost ranges/cost bands.
(vi) For nonattainment and maintenance areas, the financial plan
shall address the specific financial strategies required to ensure the

[[Page 34155]]

implementation of TCMs in the applicable SIP.
(vii) For illustrative purposes, the financial plan may include
additional projects that would be included in the adopted
transportation plan if additional resources beyond those identified in
the financial plan were to become available.
(viii) In cases that the FHWA and the FTA find a metropolitan
transportation plan to be fiscally constrained and a revenue source is
subsequently removed or substantially reduced (i.e., by legislative or
administrative actions), the FHWA and the FTA will not withdraw the
original determination of fiscal constraint; however, in such cases,
the FHWA and the FTA will not act on an updated or amended metropolitan
transportation plan that does not reflect the changed revenue
situation.
(12) Pedestrian walkway and bicycle transportation facilities in
accordance with 23 U.S.C. 217(g).
(g) The MPO shall consult, as appropriate, with State and local
agencies responsible for land use management, natural resources,
environmental protection, conservation, and historic preservation
concerning the development of the transportation plan. The consultation
shall involve, as appropriate:
(1) Comparison of transportation plans with State conservation
plans or maps, if available; or
(2) Comparison of transportation plans to inventories of natural or
historic resources, if available.
(h) The metropolitan transportation plan should integrate the
priorities, goals, countermeasures, strategies, or projects for the
metropolitan planning area contained in the HSIP, including the SHSP
required under 23 U.S.C. 148, the Public Transportation Agency Safety
Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan
in accordance with 49 CFR part 659, as in effect until completion of
the Public Transportation Agency Safety Plan, and may incorporate or
reference applicable emergency relief and disaster preparedness plans
and strategies and policies that support homeland security, as
appropriate, to safeguard the personal security of all motorized and
non-motorized users.
(i) An MPO may, while fitting the needs and complexity of its
community, voluntarily elect to develop multiple scenarios for
consideration as part of the development of the metropolitan
transportation plan.
(1) An MPO that chooses to develop multiple scenarios under this
paragraph (i) is encouraged to consider:
(i) Potential regional investment strategies for the planning
horizon;
(ii) Assumed distribution of population and employment;
(iii) A scenario that, to the maximum extent practicable, maintains
baseline conditions for the performance areas identified in Sec.
450.306(d) and measures established under 23 CFR part 490;
(iv) A scenario that improves the baseline conditions for as many
of the performance measures identified in Sec. 450.306(d) as possible;
(v) Revenue constrained scenarios based on the total revenues
expected to be available over the forecast period of the plan; and
(vi) Estimated costs and potential revenues available to support
each scenario.
(2) In addition to the performance areas identified in 23 U.S.C.
150(c), 49 U.S.C. 5326(c), and 5329(d), and the measures established
under 23 CFR part 490, MPOs may evaluate scenarios developed under this
paragraph using locally developed measures.
(j) The MPO shall provide individuals, affected public agencies,
representatives of public transportation employees, public ports,
freight shippers, providers of freight transportation services, private
providers of transportation (including intercity bus operators,
employer-based commuting programs, such as carpool program, vanpool
program, transit benefit program, parking cashout program, shuttle
program, or telework program), representatives of users of public
transportation, representatives of users of pedestrian walkways and
bicycle transportation facilities, representatives of the disabled, and
other interested parties with a reasonable opportunity to comment on
the transportation plan using the participation plan developed under
Sec. 450.316(a).
(k) The MPO shall publish or otherwise make readily available the
metropolitan transportation plan for public review, including (to the
maximum extent practicable) in electronically accessible formats and
means, such as the World Wide Web.
(l) A State or MPO is not required to select any project from the
illustrative list of additional projects included in the financial plan
under paragraph (f)(11) of this section.
(m) In nonattainment and maintenance areas for transportation-
related pollutants, the MPO, as well as the FHWA and the FTA, must make
a conformity determination on any updated or amended transportation
plan in accordance with the Clean Air Act and the EPA transportation
conformity regulations (40 CFR part 93, subpart A). A 12-month
conformity lapse grace period will be implemented when an area misses
an applicable deadline, in accordance with the Clean Air Act and the
transportation conformity regulations (40 CFR part 93, subpart A). At
the end of this 12-month grace period, the existing conformity
determination will lapse. During a conformity lapse, MPOs can prepare
an interim metropolitan transportation plan as a basis for advancing
projects that are eligible to proceed under a conformity lapse. An
interim metropolitan transportation plan consisting of eligible
projects from, or consistent with, the most recent conforming
transportation plan and TIP may proceed immediately without revisiting
the requirements of this section, subject to interagency consultation
defined in 40 CFR part 93, subpart A. An interim metropolitan
transportation plan containing eligible projects that are not from, or
consistent with, the most recent conforming transportation plan and TIP
must meet all the requirements of this section.

Sec. 450.326 Development and content of the transportation
improvement program (TIP).

(a) The MPO, in cooperation with the State(s) and any affected
public transportation operator(s), shall develop a TIP for the
metropolitan planning area. The TIP shall reflect the investment
priorities established in the current metropolitan transportation plan
and shall cover a period of no less than 4 years, be updated at least
every 4 years, and be approved by the MPO and the Governor. However, if
the TIP covers more than 4 years, the FHWA and the FTA will consider
the projects in the additional years as informational. The MPO may
update the TIP more frequently, but the cycle for updating the TIP must
be compatible with the STIP development and approval process. The TIP
expires when the FHWA/FTA approval of the STIP expires. Copies of any
updated or revised TIPs must be provided to the FHWA and the FTA. In
nonattainment and maintenance areas subject to transportation
conformity requirements, the FHWA and the FTA, as well as the MPO, must
make a conformity determination on any updated or amended TIP, in
accordance with the Clean Air Act requirements and the EPA's
transportation conformity regulations (40 CFR part 93, subpart A).
(b) The MPO shall provide all interested parties with a reasonable
opportunity to comment on the proposed TIP as required by Sec.
450.316(a). In addition, in

[[Page 34156]]

nonattainment area TMAs, the MPO shall provide at least one formal
public meeting during the TIP development process, which should be
addressed through the participation plan described in Sec. 450.316(a).
In addition, the MPO shall publish or otherwise make readily available
the TIP for public review, including (to the maximum extent
practicable) in electronically accessible formats and means, such as
the World Wide Web, as described in Sec. 450.316(a).
(c) The TIP shall be designed such that once implemented, it makes
progress toward achieving the performance targets established under
Sec. 450.306(d).
(d) The TIP shall include, to the maximum extent practicable, a
description of the anticipated effect of the TIP toward achieving the
performance targets identified in the metropolitan transportation plan,
linking investment priorities to those performance targets.
(e) The TIP shall include capital and non-capital surface
transportation projects (or phases of projects) within the boundaries
of the metropolitan planning area proposed for funding under 23 U.S.C.
and 49 U.S.C. Chapter 53 (including transportation alternatives;
associated transit improvements; Tribal Transportation Program, Federal
Lands Transportation Program, and Federal Lands Access Program
projects; HSIP projects; trails projects; accessible pedestrian
walkways; and bicycle facilities), except the following that may be
included:
(1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
(2) Metropolitan planning projects funded under 23 U.S.C. 104(d),
and 49 U.S.C. 5305(d);
(3) State planning and research projects funded under 23 U.S.C. 505
and 49 U.S.C. 5305(e);
(4) At the discretion of the State and MPO, metropolitan planning
projects funded with Surface Transportation Program funds;
(5) Emergency relief projects (except those involving substantial
functional, locational, or capacity changes);
(6) National planning and research projects funded under 49 U.S.C.
5314; and
(7) Project management oversight projects funded under 49 U.S.C.
5327.
(f) The TIP shall contain all regionally significant projects
requiring an action by the FHWA or the FTA whether or not the projects
are to be funded under title 23 U.S.C. Chapters 1 and 2 or title 49
U.S.C. Chapter 53 (e.g., addition of an interchange to the Interstate
System with State, local, and/or private funds and congressionally
designated projects not funded under 23 U.S.C. or 49 U.S.C. Chapter
53). For public information and conformity purposes, the TIP shall
include all regionally significant projects proposed to be funded with
Federal funds other than those administered by the FHWA or the FTA, as
well as all regionally significant projects to be funded with non-
Federal funds.
(g) The TIP shall include, for each project or phase (e.g.,
preliminary engineering, environment/NEPA, right-of-way, design, or
construction), the following:
(1) Sufficient descriptive material (i.e., type of work, termini,
and length) to identify the project or phase;
(2) Estimated total project cost, which may extend beyond the 4
years of the TIP;
(3) The amount of Federal funds proposed to be obligated during
each program year for the project or phase (for the first year, this
includes the proposed category of Federal funds and source(s) of non-
Federal funds. For the second, third, and fourth years, this includes
the likely category or possible categories of Federal funds and sources
of non-Federal funds);
(4) Identification of the agencies responsible for carrying out the
project or phase;
(5) In nonattainment and maintenance areas, identification of those
projects that are identified as TCMs in the applicable SIP;
(6) In nonattainment and maintenance areas, included projects shall
be specified in sufficient detail (design concept and scope) for air
quality analysis in accordance with the EPA transportation conformity
regulations (40 CFR part 93, subpart A); and
(7) In areas with Americans with Disabilities Act required
paratransit and key station plans, identification of those projects
that will implement these plans.
(h) Projects that are not considered to be of appropriate scale for
individual identification in a given program year may be grouped by
function, work type, and/or geographic area using the applicable
classifications under 23 CFR 771.117(c) and (d) and/or 40 CFR part 93.
In nonattainment and maintenance areas, project classifications must be
consistent with the ``exempt project'' classifications contained in the
EPA transportation conformity regulations (40 CFR part 93, subpart A).
In addition, projects proposed for funding under title 23 U.S.C.
Chapter 2 that are not regionally significant may be grouped in one
line item or identified individually in the TIP.
(i) Each project or project phase included in the TIP shall be
consistent with the approved metropolitan transportation plan.
(j) The TIP shall include a financial plan that demonstrates how
the approved TIP can be implemented, indicates resources from public
and private sources that are reasonably expected to be made available
to carry out the TIP, and recommends any additional financing
strategies for needed projects and programs. In developing the TIP, the
MPO, State(s), and public transportation operator(s) shall
cooperatively develop estimates of funds that are reasonably expected
to be available to support TIP implementation in accordance with Sec.
450.314(a). Only projects for which construction or operating funds can
reasonably be expected to be available may be included. In the case of
new funding sources, strategies for ensuring their availability shall
be identified. In developing the financial plan, the MPO shall take
into account all projects and strategies funded under title 23 U.S.C.,
title 49 U.S.C. Chapter 53, and other Federal funds; and regionally
significant projects that are not federally funded. For purposes of
transportation operations and maintenance, the financial plan shall
contain system-level estimates of costs and revenue sources that are
reasonably expected to be available to adequately operate and maintain
Federal-aid highways (as defined by 23 U.S.C. 101(a)(6)) and public
transportation (as defined by title 49 U.S.C. Chapter 53). In addition,
for illustrative purposes, the financial plan may include additional
projects that would be included in the TIP if reasonable additional
resources beyond those identified in the financial plan were to become
available. Revenue and cost estimates for the TIP must use an inflation
rate(s) to reflect ``year of expenditure dollars,'' based on reasonable
financial principles and information, developed cooperatively by the
MPO, State(s), and public transportation operator(s).
(k) The TIP shall include a project, or a phase of a project, only
if full funding can reasonably be anticipated to be available for the
project within the time period contemplated for completion of the
project. In nonattainment and maintenance areas, projects included in
the first 2 years of the TIP shall be limited to those for which funds
are available or committed. For the TIP, financial constraint shall be
demonstrated and maintained by year and shall include sufficient
financial information to demonstrate which projects are to be
implemented using

[[Page 34157]]

current and/or reasonably available revenues, while federally supported
facilities are being adequately operated and maintained. In the case of
proposed funding sources, strategies for ensuring their availability
shall be identified in the financial plan consistent with paragraph (h)
of this section. In nonattainment and maintenance areas, the TIP shall
give priority to eligible TCMs identified in the approved SIP in
accordance with the EPA transportation conformity regulations (40 CFR
part 93, subpart A) and shall provide for their timely implementation.
(l) In cases that the FHWA and the FTA find a TIP to be fiscally
constrained and a revenue source is subsequently removed or
substantially reduced (i.e., by legislative or administrative actions),
the FHWA and the FTA will not withdraw the original determination of
fiscal constraint. However, in such cases, the FHWA and the FTA will
not act on an updated or amended TIP that does not reflect the changed
revenue situation.
(m) Procedures or agreements that distribute suballocated Surface
Transportation Program funds to individual jurisdictions or modes
within the MPA by pre-determined percentages or formulas are
inconsistent with the legislative provisions that require the MPO, in
cooperation with the State and the public transportation operator, to
develop a prioritized and financially constrained TIP and shall not be
used unless they can be clearly shown to be based on considerations
required to be addressed as part of the metropolitan transportation
planning process.
(n) As a management tool for monitoring progress in implementing
the transportation plan, the TIP should:
(1) Identify the criteria and process for prioritizing
implementation of transportation plan elements (including multimodal
trade-offs) for inclusion in the TIP and any changes in priorities from
previous TIPs;
(2) List major projects from the previous TIP that were implemented
and identify any significant delays in the planned implementation of
major projects; and
(3) In nonattainment and maintenance areas, describe the progress
in implementing any required TCMs, in accordance with 40 CFR part 93.
(o) In metropolitan nonattainment and maintenance areas, a 12-month
conformity lapse grace period will be implemented when an area misses
an applicable deadline, according to the Clean Air Act and the
transportation conformity regulations (40 CFR part 93, subpart A). At
the end of this 12-month grace period, the existing conformity
determination will lapse. During a conformity lapse, MPOs may prepare
an interim TIP as a basis for advancing projects that are eligible to
proceed under a conformity lapse. An interim TIP consisting of eligible
projects from, or consistent with, the most recent conforming
metropolitan transportation plan and TIP may proceed immediately
without revisiting the requirements of this section, subject to
interagency consultation defined in 40 CFR part 93. An interim TIP
containing eligible projects that are not from, or consistent with, the
most recent conforming transportation plan and TIP must meet all the
requirements of this section.
(p) Projects in any of the first 4 years of the TIP may be advanced
in place of another project in the first 4 years of the TIP, subject to
the project selection requirements of Sec. 450.332. In addition, the
MPO may revise the TIP at any time under procedures agreed to by the
State, MPO(s), and public transportation operator(s) consistent with
the TIP development procedures established in this section, as well as
the procedures for the MPO participation plan (see Sec. 450.316(a))
and FHWA/FTA actions on the TIP (see Sec. 450.330).

Sec. 450.328 TIP revisions and relationship to the STIP.

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

Sec. 450.330 TIP action by the FHWA and the FTA.

(a) The FHWA and the FTA shall jointly find that each metropolitan
TIP is consistent with the metropolitan transportation plan produced by
the continuing and comprehensive transportation process carried on
cooperatively by the MPO(s), the State(s), and the public
transportation operator(s) in accordance with 23 U.S.C. 134 and 49
U.S.C. 5303. This finding shall be based on the self-certification
statement submitted by the State and MPO under Sec. 450.336, a review
of the metropolitan transportation plan by the FHWA and the FTA, and
upon other reviews as deemed necessary by the FHWA and the FTA.
(b) In nonattainment and maintenance areas, the MPO, as well as the
FHWA and the FTA, shall determine conformity of any updated or amended
TIP, in accordance with 40 CFR part 93. After the FHWA and the FTA
issue a conformity determination on the TIP, the TIP shall be
incorporated, without change, into the STIP, directly or by reference.
(c) If an MPO has not updated the metropolitan transportation plan
in accordance with the cycles defined in Sec. 450.324(c), projects may
only be advanced from a TIP that was approved and found to conform (in
nonattainment and maintenance areas) prior to expiration of the
metropolitan transportation plan and meets the TIP update requirements
of Sec. 450.326(a). Until the MPO approves (in attainment areas) or
the FHWA and the FTA issue a conformity determination on (in
nonattainment and maintenance areas) the updated metropolitan
transportation plan, the MPO may not amend the TIP.
(d) In the case of extenuating circumstances, the FHWA and the FTA
will consider and take appropriate action on requests to extend the
STIP approval period for all or part of the TIP in accordance with
Sec. 450.220(b).
(e) If an illustrative project is included in the TIP, no Federal
action may be taken on that project by the FHWA and the FTA until it is
formally included in the financially constrained and conforming
metropolitan transportation plan and TIP.
(f) Where necessary in order to maintain or establish operations,
the FHWA and the FTA may approve highway and transit operating
assistance for specific projects or programs, even though the projects
or programs may not be included in an approved TIP.

[[Page 34158]]

Sec. 450.332 Project selection from the TIP.

(a) Once a TIP that meets the requirements of 23 U.S.C. 134(j), 49
U.S.C. 5303(j), and Sec. 450.326 has been developed and approved, the
first year of the TIP will constitute an ``agreed to'' list of projects
for project selection purposes and no further project selection action
is required for the implementing agency to proceed with projects,
except where the appropriated Federal funds available to the
metropolitan planning area are significantly less than the authorized
amounts or where there are significant shifting of projects between
years. In this case, the MPO, the State, and the public transportation
operator(s) if requested by the MPO, the State, or the public
transportation operator(s) shall jointly develop a revised ``agreed
to'' list of projects. If the State or public transportation
operator(s) wishes to proceed with a project in the second, third, or
fourth year of the TIP, the specific project selection procedures
stated in paragraphs (b) and (c) of this section must be used unless
the MPO, the State, and the public transportation operator(s) jointly
develop expedited project selection procedures to provide for the
advancement of projects from the second, third, or fourth years of the
TIP.
(b) In metropolitan areas not designated as TMAs, the State and/or
the public transportation operator(s), in cooperation with the MPO
shall select projects to be implemented using title 23 U.S.C. funds
(other than Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program projects) or funds under
title 49 U.S.C. Chapter 53, from the approved metropolitan TIP. Tribal
Transportation Program, Federal Lands Transportation Program, and
Federal Lands Access Program projects shall be selected in accordance
with procedures developed pursuant to 23 U.S.C. 201, 202, 203, and 204.
(c) In areas designated as TMAs, the MPO shall select all 23 U.S.C.
and 49 U.S.C. Chapter 53 funded projects (excluding projects on the NHS
and Tribal Transportation Program, Federal Lands Transportation
Program, and Federal Lands Access Program) in consultation with the
State and public transportation operator(s) from the approved TIP and
in accordance with the priorities in the approved TIP. The State shall
select projects on the NHS in cooperation with the MPO, from the
approved TIP. Tribal Transportation Program, Federal Lands
Transportation Program, and Federal Lands Access Program projects shall
be selected in accordance with procedures developed pursuant to 23
U.S.C. 201, 202, 203, and 204.
(d) Except as provided in Sec. 450.326(e) and Sec. 450.330(f),
projects not included in the federally approved STIP are not eligible
for funding with funds under title 23 U.S.C. or 49 U.S.C. Chapter 53.
(e) In nonattainment and maintenance areas, priority shall be given
to the timely implementation of TCMs contained in the applicable SIP in
accordance with the EPA transportation conformity regulations (40 CFR
part 93, subpart A).

Sec. 450.334 Annual listing of obligated projects.

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

Sec. 450.336 Self-certifications and Federal certifications.

(a) For all MPAs, concurrent with the submittal of the entire
proposed TIP to the FHWA and the FTA as part of the STIP approval, the
State and the MPO shall certify at least every 4 years that the
metropolitan transportation planning process is being carried out in
accordance with all applicable requirements including:
(1) 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart;
(2) In nonattainment and maintenance areas, sections 174 and 176(c)
and (d) of the Clean Air Act, as amended (42 U.S.C. 7504, 7506(c) and
(d)) and 40 CFR part 93;
(3) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C.
2000d-1) and 49 CFR part 21;
(4) 49 U.S.C. 5332, prohibiting discrimination on the basis of
race, color, creed, national origin, sex, or age in employment or
business opportunity;
(5) Section 1101(b) of the FAST Act (Pub. L. 114-357) and 49 CFR
part 26 regarding the involvement of disadvantaged business enterprises
in DOT funded projects;
(6) 23 CFR part 230, regarding the implementation of an equal
employment opportunity program on Federal and Federal-aid highway
construction contracts;
(7) The provisions of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
(8) The Older Americans Act, as amended (42 U.S.C. 6101),
prohibiting discrimination on the basis of age in programs or
activities receiving Federal financial assistance;
(9) Section 324 of title 23 U.S.C. regarding the prohibition of
discrimination based on gender; and
(10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
and 49 CFR part 27 regarding discrimination against individuals with
disabilities.
(b) In TMAs, the FHWA and the FTA jointly shall review and evaluate
the transportation planning process for each TMA no less than once
every 4 years to determine if the process meets the requirements of
applicable provisions of Federal law and this subpart.
(1) After review and evaluation of the TMA planning process, the
FHWA and FTA shall take one of the following actions:
(i) If the process meets the requirements of this part and the MPO
and the Governor have approved a TIP, jointly certify the
transportation planning process;
(ii) If the process substantially meets the requirements of this
part and the MPO and the Governor have approved a TIP, jointly certify
the transportation planning process subject to certain specified
corrective actions being taken; or
(iii) If the process does not meet the requirements of this part,
jointly certify the planning process as the basis for approval of only
those categories of programs or projects that the FHWA and the FTA
jointly determine, subject to certain specified corrective actions
being taken.
(2) If, upon the review and evaluation conducted under paragraph
(b)(1)(iii) of this section, the FHWA and the FTA do not certify the
transportation planning process in a TMA, the Secretary may withhold up
to 20 percent of the funds attributable to the metropolitan planning
area of the MPO for projects

[[Page 34159]]

funded under title 23 U.S.C. and title 49 U.S.C. Chapter 53 in addition
to corrective actions and funding restrictions. The withheld funds
shall be restored to the MPA when the metropolitan transportation
planning process is certified by the FHWA and FTA, unless the funds
have lapsed.
(3) A certification of the TMA planning process will remain in
effect for 4 years unless a new certification determination is made
sooner by the FHWA and the FTA or a shorter term is specified in the
certification report.
(4) In conducting a certification review, the FHWA and the FTA
shall provide opportunities for public involvement within the
metropolitan planning area under review. The FHWA and the FTA shall
consider the public input received in arriving at a decision on a
certification action.
(5) The FHWA and the FTA shall notify the MPO(s), the State(s), and
public transportation operator(s) of the actions taken under paragraphs
(b)(1) and (b)(2) of this section. The FHWA and the FTA will update the
certification status of the TMA when evidence of satisfactory
completion of a corrective action(s) is provided to the FHWA and the
FTA.

Sec. 450.338 Applicability of NEPA to metropolitan transportation
plans and programs.

Any decision by the Secretary concerning a metropolitan
transportation plan or TIP developed through the processes provided for
in 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart shall not be
considered to be a Federal action subject to review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

Sec. 450.340 Phase-in of new requirements.

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

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

Background and Overview

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

[[Page 34160]]

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

I. Procedural Issues

1. In what format should the transportation planning information be
included?

To be included in the NEPA process, work from the transportation
planning process must be documented in a form that can be appended
to the NEPA document or incorporated by reference. Documents may be
incorporated by reference if they are readily available so as to not
impede agency or public review of the action. Any document
incorporated by reference must be ``reasonably available for
inspection by potentially interested persons within the time allowed
for comment.'' Incorporated materials must be cited in the NEPA
document and their contents briefly described, so that the reader
understands why the document is cited and knows where to look for
further information. To the extent possible, the documentation
should be in a form such as official actions by the MPO, State DOT,
or public transportation operator and/or correspondence within and
among the organizations involved in the transportation planning
process.

2. What is a reasonable level of detail for a planning product that
is intended to be used in a NEPA document? How does this level of
detail compare to what is considered a full NEPA analysis?

For purposes of transportation planning alone, a planning-level
analysis does not need to rise to the level of detail required in
the NEPA process. Rather, it needs to be accurate and up-to-date,
and should adequately support recommended improvements in the
statewide or metropolitan long-range transportation plan. The
SAFETEA-LU requires transportation planning processes to focus on
setting a context and following acceptable procedures. For example,
the SAFETEA-LU requires a ``discussion of the types of potential
environmental mitigation activities'' and potential areas for their
implementation, rather than details on specific strategies. The
SAFETEA-LU also emphasizes consultation with Federal, State, and
Tribal land management, wildlife, and regulatory agencies.
However, the Environmental Assessment (EA) or Environmental
Impact Statement (EIS) ultimately will be judged by the standards
applicable under the NEPA regulations and guidance from the Council
on Environmental Quality (CEQ). To the extent the information
incorporated from the transportation planning process, standing
alone, does not contain all of the information or analysis required
by NEPA, then it will need to be supplemented by other information
contained in the EIS or EA that would, in conjunction with the
information from the plan, collectively meet the requirements of
NEPA. The intent is not to require NEPA studies in the
transportation planning process. As an option, the NEPA analyses
prepared for project development can be integrated with
transportation planning studies (see the response to Question 9 for
additional information).

3. What type and extent of involvement from Federal, Tribal, State,
and local environmental, regulatory, and resource agencies is
needed in the transportation planning process in order for
planning-level decisions to be more readily accepted in the NEPA
process?

Sections 3005, 3006, and 6001 of the SAFETEA-LU established
formal consultation requirements for MPOs and State DOTs to employ
with environmental, regulatory, and resource agencies in the
development of long-range transportation plans. For example,
metropolitan transportation plans now ``shall include a discussion
of the types of potential environmental mitigation activities and
potential areas to carry out these activities, including activities
that may have the greatest potential to restore and maintain the
environmental functions affected by the [transportation] plan,'' and
that these planning-level discussions ``shall be developed in
consultation with Federal, State, and Tribal land management,
wildlife, and regulatory agencies.'' In addition, MPOs ``shall
consult, as appropriate, with State and local agencies responsible
for land use management, natural resources, environmental
protection, conservation, and historic preservation concerning the
development of a long-range transportation plan,'' and that this
consultation ``shall involve, as appropriate, comparison of
transportation plans with State conservation plans or maps, if
available, or comparison of transportation plans to inventories of
natural or historic resources, if available.'' Similar SAFETEA-LU
language addresses the development of the long-range statewide
transportation plan, with the addition of Tribal conservation plans
or maps to this planning-level ``comparison.''
In addition, section 6002 of the SAFETEA-LU established several
mechanisms for increased efficiency in environmental reviews for
project decision-making. For example, the term ``lead agency''
collectively means the U.S. Department of Transportation and a State
or local governmental entity serving as a joint lead agency for the
NEPA process. In addition, the lead agency is responsible for
inviting and designating ``participating agencies'' (i.e., other
Federal or non-Federal agencies that may have an interest in the
proposed project). Any Federal agency that is invited by the lead
agency to participate in the environmental review process for a
project shall be designated as a participating agency by the lead
agency unless the invited agency informs the lead agency, in
writing, by the deadline specified in the invitation that the
invited agency:
(a) Has no jurisdiction or authority with respect to the
project; (b) has no expertise or information relevant to the
project; and (c) does not intend to submit comments on the project.
Past successful examples of using transportation planning
products in NEPA analysis are based on early and continuous
involvement of environmental, regulatory, and resource agencies.
Without this early coordination, environmental, regulatory, and
resource agencies are more likely to expect decisions made or
analyses conducted in the transportation planning process to be
revisited during the NEPA process. Early participation in
transportation planning provides environmental, regulatory, and
resource agencies better insight into the needs and objectives of
the locality. Additionally, early participation provides an
important opportunity for environmental, regulatory, and resource
agency concerns to be identified and addressed early in the process,
such as those related to permit applications. Moreover, Federal,
Tribal, State, and local environmental, regulatory, and resource
agencies are able to share data on particular resources, which can
play a critical role in determining the feasibility of a
transportation solution with respect to environmental impacts. The
use of other agency planning outputs can result in a transportation
project that could support multiple goals (transportation,
environmental, and community). Further, planning decisions by these
other agencies may have impacts on long-range transportation plans
and/or the STIP/TIP, thereby providing important input to the
transportation planning process and advancing integrated decision-
making.

4. What is the procedure for using decisions or analyses from the
transportation planning process?

The lead agencies jointly decide, and must agree, on what
processes and consultation techniques are used to determine the
transportation planning products that will be incorporated into the
NEPA process. At a minimum, a robust scoping/early coordination
process (which explains to Federal and State environmental,
regulatory, and resource agencies and the public the information
and/or analyses utilized to develop the planning products, how the
purpose and need was developed and refined, and how the design
concept and scope were determined) should play a critical role in
leading to informed decisions by the lead agencies on the
suitability of the transportation planning information, analyses,
documents, and decisions for use in the NEPA process. As part of a
rigorous scoping/early coordination process, the FHWA and the FTA
should ensure that the transportation planning results are
appropriately documented, shared, and used.

[[Page 34161]]

5. To what extent can the FHWA/FTA provide up-front assurance that
decisions and additional investments made in the transportation
planning process will allow planning-level decisions and analyses
to be used in the NEPA process?

There are no guarantees. However, the potential is greatly
improved for transportation planning processes that address the ``3-
C'' planning principles (comprehensive, cooperative, and
continuous); incorporate the intent of NEPA through the
consideration of natural, physical, and social effects; involve
environmental, regulatory, and resource agencies; thoroughly
document the transportation planning process information, analysis,
and decision; and vet the planning results through the applicable
public involvement processes.

6. What considerations will the FHWA/FTA take into account in their
review of transportation planning products for acceptance in
project development/NEPA?

The FHWA and the FTA will give deference to decisions resulting
from the transportation planning process if the FHWA and FTA
determine that the planning process is consistent with the ``3-C''
planning principles and when the planning study process,
alternatives considered, and resulting decisions have a rational
basis that is thoroughly documented and vetted through the
applicable public involvement processes. Moreover, any applicable
program-specific requirements (e.g., those of the Congestion
Mitigation and Air Quality Improvement Program or the FTA's Capital
Investment Grant program) also must be met.
The NEPA requires that the FHWA and the FTA be able to stand
behind the overall soundness and credibility of analyses conducted
and decisions made during the transportation planning process if
they are incorporated into a NEPA document. For example, if systems-
level or other broad objectives or choices from the transportation
plan are incorporated into the purpose and need statement for a NEPA
document, the FHWA and the FTA should not revisit whether these are
the best objectives or choices among other options. Rather, the FHWA
and the FTA review would include making sure that objectives or
choices derived from the transportation plan were: Based on
transportation planning factors established by Federal law; reflect
a credible and articulated planning rationale; founded on reliable
data; and developed through transportation planning processes
meeting FHWA and FTA statutory and regulatory requirements. In
addition, the basis for the goals and choices must be documented and
included in the NEPA document. The FHWA/FTA reviewers do not need to
review whether assumptions or analytical methods used in the studies
are the best available, but, instead, need to assure that such
assumptions or analytical methods are reasonable, scientifically
acceptable, and consistent with goals, objectives, and policies set
forth in long-range transportation plans. This review would include
determining whether: (a) Assumptions have a rational basis and are
up-to-date and (b) data, analytical methods, and modeling techniques
are reliable, defensible, reasonably current, and meet data quality
requirements.

II. Substantive Issues

General Issues To Be Considered

7. What should be considered in order to rely upon transportation
planning studies in NEPA?

The following questions should be answered prior to accepting
studies conducted during the transportation planning process for use
in NEPA. While not a ``checklist,'' these questions are intended to
guide the practitioner's analysis of the planning products:
How much time has passed since the planning studies and
corresponding decisions were made?
Were the future year policy assumptions used in the
transportation planning process related to land use, economic
development, transportation costs, and network expansion consistent
with those to be used in the NEPA process?
Is the information still relevant/valid?
What changes have occurred in the area since the study
was completed?
Is the information in a format that can be appended to
an environmental document or reformatted to do so?
Are the analyses in a planning-level report or document
based on data, analytical methods, and modeling techniques that are
reliable, defensible, and consistent with those used in other
regional transportation studies and project development activities?
Were the FHWA and FTA, other agencies, and the public
involved in the relevant planning analysis and the corresponding
planning decisions?
Were the planning products available to other agencies
and the public during NEPA scoping?
During NEPA scoping, was a clear connection between the
decisions made in planning and those to be made during the project
development stage explained to the public and others? What was the
response?
Are natural resource and land use plans being informed
by transportation planning products, and vice versa?

Purpose and Need

8. How can transportation planning be used to shape a project's
purpose and need in the NEPA process?

A sound transportation planning process is the primary source of
the project purpose and need. Through transportation planning, State
and local governments, with involvement of stakeholders and the
public, establish a vision for the region's future transportation
system, define transportation goals and objectives for realizing
that vision, decide which needs to address, and determine the
timeframe for addressing these issues. The transportation planning
process also provides a potential forum to define a project's
purpose and need by framing the scope of the problem to be addressed
by a proposed project. This scope may be further refined during the
transportation planning process as more information about the
transportation need is collected and consultation with the public
and other stakeholders clarifies other issues and goals for the
region.
23 U.S.C. 139(f), as amended by the SAFETEA-LU Section 6002,
provides additional focus regarding the definition of the purpose
and need and objectives. For example, the lead agency, as early as
practicable during the environmental review process, shall provide
an opportunity for involvement by participating agencies and the
public in defining the purpose and need for a project. The statement
of purpose and need shall include a clear statement of the
objectives that the proposed action is intended to achieve, which
may include: (a) Achieving a transportation objective identified in
an applicable statewide or metropolitan transportation plan; (b)
supporting land use, economic development, or growth objectives
established in applicable Federal, State, local, or Tribal plans;
and (c) serving national defense, national security, or other
national objectives, as established in Federal laws, plans, or
policies.
The transportation planning process can be utilized to develop
the purpose and need in the following ways:
(a) Goals and objectives from the transportation planning
process may be part of the project's purpose and need statement;
(b) A general travel corridor or general mode or modes (e.g.,
highway, transit, or a highway/transit combination) resulting from
planning analyses may be part of the project's purpose and need
statement;
(c) If the financial plan for a metropolitan transportation plan
indicates that funding for a specific project will require special
funding sources (e.g., tolls or public-private financing), such
information may be included in the purpose and need statement; or
(d) The results of analyses from management systems (e.g.,
congestion, pavement, bridge, and/or safety) may shape the purpose
and need statement.
The use of these planning-level goals and choices must be
appropriately explained during NEPA scoping and in the NEPA
document.
Consistent with NEPA, the purpose and need statement should be a
statement of a transportation problem, not a specific solution.
However, the purpose and need statement should be specific enough to
generate alternatives that may potentially yield real solutions to
the problem at-hand. A purpose and need statement that yields only
one alternative may indicate a purpose and need that is too narrowly
defined.
Short of a fully integrated transportation decision-making
process, many State DOTs develop information for their purpose and
need statements when implementing interagency NEPA/Section 404
process merger agreements. These agreements may need to be expanded
to include commitments to share and utilize transportation planning
products when developing a project's purpose and need.

9. Under what conditions can the NEPA process be initiated in
conjunction with transportation planning studies?

The NEPA process may be initiated in conjunction with
transportation planning

[[Page 34162]]

studies in a number of ways. A common method is the ``tiered EIS,''
in which the first-tier EIS evaluates general travel corridors,
modes, and/or packages of projects at a planning level of detail,
leading to the refinement of purpose and need and, ideally,
selection of the design concept and scope for a project or series of
projects. Subsequently, second-tier NEPA review(s) of the resulting
projects would be performed in the usual way. The first-tier EIS
uses the NEPA process as a tool to involve environmental,
regulatory, and resource agencies and the public in the planning
decisions, as well as to ensure the appropriate consideration of
environmental factors in these planning decisions.
Corridor or subarea analyses/studies are another option when the
long-range transportation plan leaves open the possibility of
multiple approaches to fulfill its goals and objectives. In such
cases, the formal NEPA process could be initiated through
publication of a NOI in conjunction with a corridor or subarea
planning study.

Alternatives

10. In the context of this Appendix, what is the meaning of the
term ``alternatives''?

This Appendix uses the term ``alternatives'' as specified in the
NEPA regulations (40 CFR 1502.14), where it is defined in its
broadest sense to include everything from major modal alternatives
and location alternatives to minor design changes that would
mitigate adverse impacts. This Appendix does not use the term as it
is used in many other contexts (e.g., ``prudent and feasible
alternatives'' under Section 4(f) of the Department of
Transportation Act or the ``Least Environmentally Damaging
Practicable Alternative'' under the Clean Water Act.

11. Under what circumstances can alternatives be eliminated from
detailed consideration during the NEPA process based on information
and analysis from the transportation planning process?

There are two ways in which the transportation planning process
can begin limiting the alternative solutions to be evaluated during
the NEPA process: (a) Shaping the purpose and need for the project;
or (b) evaluating alternatives during planning studies and
eliminating some of the alternatives from detailed study in the NEPA
process prior to its start. Each approach requires careful
attention, and is summarized below.
(a) Shaping the Purpose and Need for the Project: The
transportation planning process should shape the purpose and need
and, thereby, the range of reasonable alternatives. With proper
documentation and public involvement, a purpose and need derived
from the planning process can legitimately narrow the alternatives
analyzed in the NEPA process. See the response to Question 8 for
further discussion on how the planning process can shape the purpose
and need used in the NEPA process.
For example, the purpose and need may be shaped by the
transportation planning process in a manner that consequently
narrows the range of alternatives that must be considered in detail
in the NEPA document when:
(1) The transportation planning process has selected a general
travel corridor as best addressing identified transportation
problems and the rationale for the determination in the planning
document is reflected in the purpose and need statement of the
subsequent NEPA document;
(2) The transportation planning process has selected a general
mode (e.g., highway, transit, or a highway/transit combination) that
accomplishes its goals and objectives, and these documented
determinations are reflected in the purpose and need statement of
the subsequent NEPA document; or
(3) The transportation planning process determines that the
project needs to be funded by tolls or other non-traditional funding
sources in order for the long-range transportation plan to be
fiscally constrained or identifies goals and objectives that can
only be met by toll roads or other non-traditional funding sources,
and that determination of those goals and objectives is reflected in
the purpose and need statement of the subsequent NEPA document.
(b) Evaluating and Eliminating Alternatives During the
Transportation Planning Process: The evaluation and elimination of
alternatives during the transportation planning process can be
incorporated by reference into a NEPA document under certain
circumstances. In these cases, the planning study becomes part of
the NEPA process and provides a basis for screening out
alternatives. As with any part of the NEPA process, the analysis of
alternatives to be incorporated from the process must have a
rational basis that has been thoroughly documented (including
documentation of the necessary and appropriate vetting through the
applicable public involvement processes). This record should be made
available for public review during the NEPA scoping process.
See responses to Questions 4, 5, 6, and 7 for additional
elements to consider with respect to acceptance of planning products
for NEPA documentation and the response to Question 12 on the
information or analysis from the transportation planning process
necessary for supporting the elimination of an alternative(s) from
detailed consideration in the NEPA process.
Development of planning Alternatives Analysis studies, required
prior to MAP-21 for projects seeking funds through FTA's Capital
Investment Grant program, are now optional, but may still be used to
narrow the alternatives prior to the NEPA review, just as other
planning studies may be used. In fact, through planning studies, FTA
may be able to narrow the alternatives considered in detail in the
NEPA document to the No-Build (No Action) alternative and the
Locally Preferred Alternative. If the planning process has included
the analysis and stakeholder involvement that would be undertaken in
a first tier NEPA process, then the alternatives screening conducted
in the transportation planning process may be incorporated by
reference, described, and relied upon in the project-level NEPA
document. At that point, the project-level NEPA analysis can focus
on the remaining alternatives.

12. What information or analysis from the transportation planning
process is needed in an EA or EIS to support the elimination of an
alternative(s) from detailed consideration?

The section of the EA or EIS that discusses alternatives
considered but eliminated from detailed consideration should:
(a) Identify any alternatives eliminated during the
transportation planning process (this could include broad categories
of alternatives, as when a long-range transportation plan selects a
general travel corridor based on a corridor study, thereby
eliminating all alternatives along other alignments);
(b) Briefly summarize the reasons for eliminating the
alternative; and
(c) Include a summary of the analysis process that supports the
elimination of alternatives (the summary should reference the
relevant sections or pages of the analysis or study) and incorporate
it by reference or append it to the NEPA document.
Any analyses or studies used to eliminate alternatives from
detailed consideration should be made available to the public and
participating agencies during the NEPA scoping process and should be
reasonably available during comment periods.
Alternatives passed over during the transportation planning
process because they are infeasible or do not meet the NEPA
``purpose and need'' can be omitted from the detailed analysis of
alternatives in the NEPA document, as long as the rationale for
elimination is explained in the NEPA document. Alternatives that
remain ``reasonable'' after the planning-level analysis must be
addressed in the EIS, even when they are not the preferred
alternative. When the proposed action evaluated in an EA involves
unresolved conflicts concerning alternative uses of available
resources, NEPA requires that appropriate alternatives be studied,
developed, and described.

Affected Environment and Environmental Consequences

13. What types of planning products provide analysis of the
affected environment and environmental consequences that are useful
in a project-level NEPA analysis and document?

The following planning products are valuable inputs to the
discussion of the affected environment and environmental
consequences (both its current state and future state in the absence
of the proposed action) in the project-level NEPA analysis and
document:
Regional development and growth analyses;
Local land use, growth management, or development
plans; and
Population and employment projections.
The following are types of information, analysis, and other
products from the transportation planning process that can be used
in the discussion of the affected environment and environmental
consequences in an EA or EIS:
(a) Geographic information system (GIS) overlays showing the
past, current, or predicted future conditions of the natural and
built environments;

[[Page 34163]]

(b) Environmental scans that identify environmental resources
and environmentally sensitive areas;
(c) Descriptions of airsheds and watersheds;
(d) Demographic trends and forecasts;
(e) Projections of future land use, natural resource
conservation areas, and development; and
(f) The outputs of natural resource planning efforts, such as
wildlife conservation plans, watershed plans, special area
management plans, and multiple species habitat conservation plans.
However, in most cases, the assessment of the affected
environment and environmental consequences conducted during the
transportation planning process will not be detailed or current
enough to meet NEPA standards and, thus, the inventory and
evaluation of affected resources and the analysis of consequences of
the alternatives will need to be supplemented with more refined
analysis and possibly site-specific details during the NEPA process.

14. What information from the transportation planning process is
useful in describing a baseline for the NEPA analysis of indirect
and cumulative impacts?

Because the nature of the transportation planning process is to
look broadly at future land use, development, population increases,
and other growth factors, the planning analysis can provide the
basis for the assessment of indirect and cumulative impacts required
under NEPA. The consideration in the transportation planning process
of development, growth, and consistency with local land use, growth
management, or development plans, as well as population and
employment projections, provides an overview of the multitude of
factors in an area that are creating pressures not only on the
transportation system, but on the natural ecosystem and important
environmental and community resources. An analysis of all reasonably
foreseeable actions in the area also should be a part of the
transportation planning process. This planning-level information
should be captured and utilized in the analysis of indirect and
cumulative impacts during the NEPA process.
To be used in the analysis of indirect and cumulative impacts,
such information should:
(a) Be sufficiently detailed that differences in consequences of
alternatives can be readily identified;
(b) Be based on current data (e.g., data from the most recent
Census) or be updated by additional information;
(c) Be based on reasonable assumptions that are clearly stated;
and/or
(d) Rely on analytical methods and modeling techniques that are
reliable, defensible, and reasonably current.

Environmental Mitigation

15. How can planning-level efforts best support advance mitigation,
mitigation banking, and priorities for environmental mitigation
investments?

A lesson learned from efforts to establish mitigation banks and
advance mitigation agreements and alternative mitigation options is
the importance of beginning interagency discussions during the
transportation planning process. Development pressures, habitat
alteration, complicated real estate transactions, and competition
for potential mitigation sites by public and private project
proponents can encumber the already difficult task of mitigating for
``like'' value and function and reinforce the need to examine
mitigation strategies as early as possible.
Robust use of remote sensing, GIS, and decision support systems
for evaluating conservation strategies are all contributing to the
advancement of natural resource and environmental planning. The
outputs from environmental planning can now better inform
transportation planning processes, including the development of
mitigation strategies, so that transportation and conservation goals
can be optimally met. For example, long-range transportation plans
can be screened to assess the effect of general travel corridors or
density, on the viability of sensitive plant and animal species or
habitats. This type of screening provides a basis for early
collaboration among transportation and environmental staffs, the
public, and regulatory agencies to explore areas where impacts must
be avoided and identify areas for mitigation investments. This can
lead to mitigation strategies that are both more economical and more
effective from an environmental stewardship perspective than
traditional project-specific mitigation measures.

III. Administrative Issues

16. Are Federal funds eligible to pay for these additional, or more
in depth, environmental studies in transportation planning?

Yes. For example, the following FHWA and FTA funds may be
utilized for conducting environmental studies and analyses within
transportation planning:
FHWA planning and research funds, as defined under 23
CFR part 420 (e.g., Metropolitan Planning (PL), Statewide Planning
and Research (SPR), National Highway System (NHS), STP, and Equity
Bonus); and
FTA planning and research funds (49 U.S.C. 5303), urban
formula funds (49 U.S.C. 5307), and (in limited circumstances)
transit capital investment funds (49 U.S.C. 5309).
The eligible transportation planning-related uses of these funds
may include: (a) Conducting feasibility or subarea/corridor needs
studies and (b) developing system-wide environmental information/
inventories (e.g., wetland banking inventories or standards to
identify historically significant sites). Particularly in the case
of PL and SPR funds, the proposed expenditure must be closely
related to the development of transportation plans and programs
under 23 U.S.C. 134-135 and 49 U.S.C. 5303-5306.
For FHWA funding programs, once a general travel corridor or
specific project has progressed to a point in the preliminary
engineering/NEPA phase that clearly extends beyond transportation
planning, additional in-depth environmental studies must be funded
through the program category for which the ultimate project
qualifies (e.g., NHS, STP, Interstate Maintenance, and/or Bridge),
rather than PL or SPR funds.
Another source of funding is FHWA's Transportation Enhancement
program, which may be used for activities such as: conducting
archeological planning and research; developing inventories such as
those for historic bridges and highways, and other surface
transportation-related structures; conducting studies to determine
the extent of water pollution due to highway runoff; and conducting
studies to reduce vehicle-caused wildlife mortality while
maintaining habitat connectivity.
The FHWA and the FTA encourage State DOTs, MPOs, and public
transportation operators to seek partners for some of these studies
from environmental, regulatory, and resource agencies, non-
government organizations, and other government and private sector
entities with similar data needs, or environmental interests. In
some cases, these partners may contribute data and expertise to the
studies, as well as funding.

17. What staffing or organizational arrangements may be helpful in
allowing planning products to be accepted in the NEPA process?

Certain organizational and staffing arrangements may support a
more integrated approach to the planning/NEPA decision-making
continuum. In many cases, planning organizations do not have
environmental expertise on staff or readily accessible. Likewise,
the review and regulatory responsibilities of many environmental,
regulatory, and resource agencies make involvement in the
transportation planning process a challenge for staff resources.
These challenges may be partially met by improved use of the outputs
of each agency's planning resources and by augmenting their
capabilities through greater use of GIS and remote sensing
technologies (see https://www.gis.fhwa.dot.gov/ for additional
information on the use of GIS). Sharing databases and the planning
products of local land use decision-makers and State and Federal
environmental, regulatory, and resource agencies also provide
efficiencies in acquiring and sharing the data and information
needed for both transportation planning and NEPA work.
Additional opportunities such as shared staff, training across
disciplines, and (in some cases) reorganizing to eliminate
structural divisions between planning and NEPA practitioners may
also need to be considered in order to better integrate NEPA
considerations into transportation planning studies. The answers to
the following two questions also contain useful information on
training and staffing opportunities.

18. How have environmental, regulatory, and resource agency
liaisons (Federally and State DOT funded positions) and partnership
agreements been used to provide the expertise and interagency
participation needed to enhance the consideration of environmental
factors in the planning process?

For several years, States have utilized Federal and State
transportation funds to support focused and accelerated project

[[Page 34164]]

review by a variety of local, State, Tribal, and Federal agencies.
While Section 1309(e) of the TEA-21 and its successor in SAFETEA-LU
section 6002 speak specifically to transportation project
streamlining, there are other authorities that have been used to
fund positions, such as the Intergovernmental Cooperation Act (31
U.S.C. 6505). In addition, long-term, on-call consultant contracts
can provide backfill support for staff that are detailed to other
parts of an agency for temporary assignments. At last count (as of
2015), over 200 positions were being funded. Additional information
on interagency funding agreements is available at: https://environment.fhwa.dot.gov/strmlng/igdocs/index.htm.
Moreover, every State has advanced a variety of stewardship and
streamlining initiatives that necessitate early involvement of
environmental, regulatory, and resource agencies in the project
development process. Such process improvements have: addressed the
exchange of data to support avoidance and impact analysis;
established formal and informal consultation and review schedules;
advanced mitigation strategies; and resulted in a variety of
programmatic reviews. Interagency agreements and work plans have
evolved to describe performance objectives, as well as specific
roles and responsibilities related to new streamlining initiatives.
Some States have improved collaboration and efficiency by co-
locating environmental, regulatory, and resource and transportation
agency staff.

19. What training opportunities are available to MPOs, State DOTs,
public transportation operators and environmental, regulatory, and
resource agencies to assist in their understanding of the
transportation planning and NEPA processes?

Both the FHWA and the FTA offer a variety of transportation
planning, public involvement, and NEPA courses through the National
Highway Institute and/or the National Transit Institute. Of
particular note is the Linking Planning and NEPA Workshop, which
provides a forum and facilitated group discussion among and between
State DOT; MPO; Federal, Tribal, and State environmental,
regulatory, and resource agencies; and FHWA/FTA representatives (at
both the executive and program manager levels) to develop a State-
specific action plan that will provide for strengthened linkages
between the transportation planning and NEPA processes.
Moreover, the U.S. Fish and Wildlife Service offers Green
Infrastructure Workshops that are focused on integrating planning
for natural resources (``green infrastructure'') with the
development, economic, and other infrastructure needs of society
(``gray infrastructure'').
Robust planning and multi-issue environmental screening requires
input from a wide variety of disciplines, including information
technology; transportation planning; the NEPA process; and
regulatory, permitting, and environmental specialty areas (e.g.,
noise, air quality, and biology). Senior managers at transportation
and partner agencies can arrange a variety of individual training
programs to support learning curves and skill development that
contribute to a strengthened link of the transportation planning and
NEPA processes. Formal and informal mentoring on an intra-agency
basis can be arranged. Employee exchanges within and between
agencies can be periodically scheduled, and persons involved with
professional leadership programs can seek temporary assignments with
partner agencies.

IV. Additional Information on This Topic

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

PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES

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

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

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

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

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

Sec. 771.139 [Amended]

0
4. Redesignate footnote 6 as footnote 5.

Title 49--Transportation

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

PART 613--METROPOLITAN AND STATEWIDE AND NONMETROPOLITAN PLANNING

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

Authority: 23 U.S.C. 134, 135, and 217(g); 42 U.S.C. 3334, 4233,
4332, 7410 et seq.; 49 U.S.C. 5303-5306, 5323(k); and 49 CFR 1.85,
1.51(f) and 21.7(a).

Subpart A--Metropolitan Transportation Planning and Programming

Sec. 613.100 Metropolitan transportation planning and programming.

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

Subpart B--Statewide and Nonmetropolitan Transportation Planning
and Programming

Sec. 613.200 Statewide and nonmetropolitan transportation planning
and programming.

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

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