# Statewide Transportation Planning; Metropolitan Transportation Planning > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A07-493 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 14, 2007 - **Citation:** 72 FR 7224 ## Text DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Parts 450 and 500 Federal Transit Administration 49 CFR Part 613 [Docket No. FHWA-2005-22986] RIN 2125-AF09; FTA RIN 2132-AA82 Statewide Transportation Planning; Metropolitan Transportation Planning AGENCIES: Federal Highway Administration (FHWA); Federal Transit Administration (FTA), DOT. ACTION: Final rule. SUMMARY: This final rule revises the regulations governing the development of metropolitan transportation plans and programs for urbanized areas, State transportation plans and programs and the regulations for Congestion Management Systems. The revision results from the passage of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005), which also incorporates changes initiated in its predecessor legislation, the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, June 9, 1998) and generally will make the regulations consistent with current statutory requirements. EFFECTIVE DATE: March 16, 2007. FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Larry D. Anderson, Planning Oversight and Stewardship Team (HEPP-10), (202) 366-2374, Mr. Robert Ritter, Planning Capacity Building Team (HEPP-20), (202) 493-2139, or Ms. Diane Liff, Office of the Chief Counsel (HCC-10), (202) 366-6203. For the FTA: Mr. Charles Goodman, Office of Planning and Environment, (202) 366-1944, Mr. Darin Allan, Office of Planning and Environment, (202) 366-6694, or Mr. Christopher VanWyk, Office of Chief Counsel, (202) 366-1733. Both agencies are located at 400 Seventh Street SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m for FHWA, and 9 a.m. to 5:30 p.m. for FTA, Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access and Filing Interested parties may access all comments on the NPRM received by the U.S. Department of Transportation (USDOT) online through the Docket Management System (DMS) at http://dms.dot.gov. The DMS Web site is available 24 hours each day, 365 days each year. Follow the instructions online. Additional assistance is available at the help section of the Web site. An electronic copy of this final rule may be downloaded using the Office of the Federal Register's Web page at: http://www.archives.gov and the Government Printing Office's Web page at: http://www.gpoaccess.gov/index.html. Background The regulations found at 23 CFR 450 and 500 and 49 CFR 613 outline the requirements for State Departments of Transportation (DOTs), Metropolitan Planning Organizations (MPOs) and public transportation operators to conduct a continuing, comprehensive and coordinated transportation planning and programming process in metropolitan areas and States. These regulations have not been comprehensively updated or revised since October 28, 1993. Since that time, Congress has enacted several laws that affect the requirements outlined in these regulations (e.g. such as the TEA-21 and the SAFETEA-LU). Therefore, the agencies needed to update these regulations to be consistent with current statutory requirements. Notice of Proposed Rulemaking: On June 9, 2006, the agencies published, in the Federal Register , a notice of proposed rulemaking (NPRM) proposing to revise the regulations governing the development of statewide and metropolitan transportation plans and programs and the regulations for Congestion Management Systems (71 FR 33510). The comment period remained open until September 7, 2006. During the comment period on the proposed rule, the FTA and the FHWA held six public outreach workshops and a national telecast, also available on the World Wide Web. Those meetings provided an opportunity for FTA and FHWA to provide an overview of the NPRM and offer clarification of selected provisions. Comments were not solicited at those meetings, and attendees were encouraged to submit all comments to the official docket. A summary of the issues raised at the meetings and the general response of the FTA and the FHWA presenters, along with copies of the materials presented at the meeting, is included in the docket (item Number 27). In addition, the FHWA and the FTA responded to requests for presentations at several regularly scheduled meetings or conferences of national and regional professional, industry or advocacy organizations during the comment period of the NPRM. Discussion of Comments In response to the NPRM, we received over 150 documents (representing more than 1,600 comments) submitted to the docket as reflected in the summary below (and spreadsheet on file in the docket). The following discussion summarizes our response. We received diverse and even opposing comments. General comments concerning the rule are addressed initially, followed by specific responses to individual sections of the regulatory proposals. We categorized the comments received by the type of organization that submitted the comments. The following categories are used throughout this discussion: State DOTs; MPOs, councils of government (COGs) and regional planning agencies; national and regional professional, industry or advocacy organization (which includes organizations representing State DOTs, MPOs, COGs or other agencies whose individual comments may be included in a different category), local/regional transit agency; general public; city/county (other sub-State government); State (other agency, Governor, Legislator); Federal agency and other. State DOTs submitted almost one-quarter of the documents, which account for almost one-third of all comments. MPOs, COGs and regional planning agencies submitted slightly more than one-third of the documents, also accounting for approximately one-third of the comments. National and regional professional, industry or advocacy organizations submitted over one-quarter of the documents and approximately one-quarter of the comments. Local/regional transit agencies submitted approximately 5 percent of the documents. Other organizations or individuals submitted the remainder. Most State DOTs and some other commenters wrote in support of the comments submitted by the American Association of State Highway and Transportation Officials (AASHTO). Many MPOs and COGs and some other commenters wrote in support of the comments submitted by the Association of Metropolitan Planning Organizations (AMPO) and/or the National Association of Regional Councils (NARC). Several public transportation operators and others wrote in support of the comments submitted by the American Public Transportation Association (APTA). The FHWA and the FTA received comments on almost all sections of the rule. The largest number of individual comments we received were on fiscal constraint issues. Other sections with more than five percent of the overall comments included: § 450.104 (Definitions), § 450.216 (Development and content of the statewide transportation improvement program (STIP)), § 450.322 (Development and content of the metropolitan transportation plan), and § 450.324 (Development and content of the transportation improvement program). Several national and regional advocacy organizations, a few State DOTs and MPOs, some transit agencies and others suggested changes that go beyond what is required by statute. The FHWA and the FTA have adhered closely to the statutory language in drafting the regulation. Over time, and as necessary, the FHWA and the FTA will continue to issue additional guidance and disseminate information on noteworthy practices that may address these suggestions. In response to several comments, specific regulatory reference to a Regional Transit Security Strategy (RTSS), including its definition, was removed due to the concern for possible disclosure of security-sensitive information in the planning process. Further, an RTSS is not required universally of all metropolitan areas and States. Regulatory language in both the metropolitan and statewide transportation planning sections was revised to make broad reference to the need for coordination with “appropriate” transit security-related plans, programs, and decision-making processes. One national and regional professional, industry or advocacy organization suggested the incorporation of the Real Time System Management Information Program (required by § 1201 of the SAFETEA-LU) into the statewide transportation planning process. While the FHWA and the FTA agree that current, good quality data can improve effective transportation decisions and is key to effective operation and management strategies, we recognize each State's need to determine their appropriate statewide coordinated data collection program to support their individual planning process. We encourage the States to consider including real-time data, provided by the Real Time System Management Information Program, but have not included a requirement in this rule. The FHWA and the FTA were asked to evaluate whether the leadership posts on MPO boards were acting in an impartial manner. A few organizations expressed concern that non-metropolitan or non-elected officials who serve as board chairs may have conflicts of interest that undermine local control of transportation funding. The FHWA and the FTA will consider conducting such a study as part of their discretionary research programs. Currently, we do not have enough information on this subject for incorporation into this rule. Several documents providing research, data, and analysis on various issues related to transportation, planning and environment were submitted to the docket. The FHWA and the FTA have reviewed these documents and considered the information in developing this rule. The FHWA and the FTA were asked to recognize regional planning organizations/regional transportation planning organizations (RPOs/RTPOs) throughout the rule as stakeholders and interested parties in the transportation planning process in States where they are established by law. Although the rule is silent on RPOs/RTPOs, § 450.208(a)(6) highlights that statewide transportation planning needs to coordinate with related planning activities being conducted outside of metropolitan planning areas. The FHWA and the FTA recognize that the RPO/RTPO planning process and activities should be input into the statewide transportation planning process. Further, many of the RPOs/RTPOs are recognized as forms of local government, and are addressed in § 420.210 (Interested parties, public involvement and consultation). A few commenters observed that many small MPOs have very little funding from USDOT or non-USDOT sources, have very limited staffs, and limited consultant or technical support resources of their own. The FHWA and the FTA were urged to find ways to scale the regulatory requirements to fit the size and scope of smaller MPOs. We noted this comment and have tried to provide as much flexibility in the rule as practicable. We have provided some streamlined requirements for the non-transportation management area (TMA) MPOs, such as Simplified Statement of Work and grouping of projects within the transportation improvement program (TIP). The MPO is responsible for developing a planning process that is appropriate for its communities, given the resources and technical capability of the MPO. Several State DOTs and a national and regional advocacy organization objected to including guidance documents with the regulations as Appendices A and B. These commenters noted that by including these documents with the regulation as appendices, the guidance documents would have the force and effect of law and, as a result, would “open up FHWA and FTA (and thus the States and MPOs) to litigation challenges based on a selective reading of short passages in these lengthy documents.” Therefore, these commenters requested removal of the appendices. Additionally, these commenters were concerned that including these guidance documents with the regulation would make it more difficult to change these documents in response to evolving practices, as any change would require a rulemaking action. The Office of the Federal Register, pursuant to the Federal Register Act (44 U.S.C. Chapter 15) has established criteria for publishing material in the Federal Register and the Code of Federal Regulations. Under these criteria, agencies may use an appendix to improve upon the quality or use of a regulation, but not to impose requirements or restrictions. Additionally, agencies may not use an appendix as a substitute for regulatory text. 1 The information the FHWA and the FTA proposed to include in appendices A and B is intended to be non-binding guidance. Therefore, we believe that State DOTs and MPOs would not be subject to increased litigation based on inclusion of these appendices. 1 Federal Register Document Drafting Handbook, October 1998 Revision. National Archives and Records Administration, Office of the Federal Register. It is available at the following URL: http://www.archives.gov/federal-register/write/handbook/ddh.pdf. We believe that Appendix A, Linking the Transportation Planning and NEPA Processes, provides explanatory information that amplifies the rule and does not add any additional requirements and would not be subject to many changes. Therefore, we have decided to keep Appendix A, but are adding a disclaimer to this effect in the introduction of Appendix A highlighting its non-binding status. In addition, we have made some minor changes to the text of Appendix A to ensure that it is consistent with the environmental streamlining requirements of § 6002 of the SAFETEA-LU. As for Appendix B, Fiscal Constraint of Transportation Plans and Programs, the FHWA and the FTA agree with these commenters that modifications to this document may be more frequently required to respond to evolving practices. Therefore, the FHWA and the FTA have decided to remove Appendix B from the rule. However, there are three elements within that appendix that the agencies believe should be a part of the regulatory text for clarity and completeness. These elements are: (1) Treatment of highway and transit operations and maintenance costs and revenues; (2) use of “year of expenditure dollars” in developing cost and revenue estimates; and (3) use of “cost ranges/cost bands” in the outer years of the metropolitan transportation plan. Please see the responses to the comments on Appendix B for additional background information and explanation. Consequently, we have included language in § 450.216 (Development and content of the statewide transportation improvement program (STIP)), § 450.322 (Development and content of the metropolitan transportation plan), and § 450.324 (Development and content of the transportation improvement program (TIP)) to address these issues within the regulation. The material contained in the proposed Appendix B will be made available as a guidance document on the agencies' Web sites. Section-by-Section Discussion The discussion in this section compares the NPRM with the final rule and discusses comments submitted on each section along with an explanation of any changes we made from the NPRM to the final rule. All references to revisions or changes are to changes in language that we originally proposed in the NPRM. 23 CFR Part 450 Subpart A—Transportation Planning and Programming Definitions Section 450.100 Purpose No comments were received on this section and no changes were made. Section 450.102 Applicability No comments were received on this section and no changes were made. Section 450.104 Definitions There were more than 45 documents with over 225 comments submitted on this section, with half of the documents coming from MPOs and almost one-fourth each from State DOTs and national and regional advocacy groups. Transit agencies, city/county agencies and the general public also commented on this section. Some of those that commented on this section recommended specific changes to examples or lists included in various definitions. It is important to note that the recommended lists in these definitions are intended to be advisory and not exhaustive; therefore, we did not make changes to the lists of examples. Several definitions were revised based on comments received. These changes are described below. Many State DOTs and MPOs as well as several national and regional advocacy organizations were concerned about the definitions of “administrative modification” and “amendment.” Commenters requested greater distinction between the two terms. Several of those that commented on this section requested that the words “minor revision” be included in the definition of “administrative modification.” This change has been made. The examples in this definition have also been clarified, including “minor changes to project/project phase initiation dates.” It is important to note that while an “administrative modification” can change the initiation date, it cannot affect the completion date of the project as modeled in the regional emissions analysis in nonattainment or maintenance areas. A change in the project/project phase completion date in a nonattainment or maintenance area would be considered an “amendment.” Finally, based on comments, the term “not significant” was removed. Commenters suggested that the term “amendment” include the words “major change” and use “major” in the examples. These changes have been made. State DOTs and MPOs should work with the FHWA and the FTA to identify thresholds for a “major” change in project cost. Examples of thresholds could include, but are not limited to, project cost increase that exceeds 20 percent of the total project cost; or project cost increase that exceeds a certain dollar amount, for example, the increase in costs exceeds the programmed amount by $50,000 or $100,000. Further, some State DOTs and advocacy organizations wrote that changes in illustrative projects should not require an amendment. We agree. A sentence has been added to the definition of “amendment” to clarify this point. Also, most State DOTs that commented on this section noted that “amendment” should apply differently to long-range statewide transportation plans, since they are not subject to fiscal constraint. A sentence was added to the definition to clarify the long-range statewide transportation plan context. After consultation with EPA, the definition of “attainment area” was revised to be consistent with the definition in the glossary of the Environmental Protection Agency's (EPA) Plain English Guide to the Clean Air Act. 2 We also included in this definition a clarification that a “maintenance area” is not considered an attainment area for transportation planning purposes. 2 This document, “Plain English Guide to the Clean Air Act” is available via the Internet at the following URL: http://www.epa.gov/air/oaqps/peg_caa/pegcaain.html. A few commenters expressed confusion about the definitions of “Available funds” and “Committed funds” as they relate to air quality conformity. We have simplified these definitions to remove the phrase “for projects or project phases in the first two years of a TIP and/or STIP in air quality nonattainment and maintenance areas.” By deleting this phrase, however, we have not removed the requirement that projects in the first two years of a STIP and/or TIP in air quality nonattainment and maintenance areas be available or committed. This is still part of the definition under fiscal constraint. The requirement that these terms only apply to the first two years is already embedded in the regulation and does not need to be repeated in the definition of the terms “Available” and “Committed.” A national and regional advocacy organization and a few transit agencies suggested that “Full funding grant agreement” and “Project construction grant agreement” be added to the examples of “Committed funds.” This change has been made. We also received a comment that the requirement for private funds to be in writing as part of “Committed funds” would limit private participation in transportation projects. The FHWA and the FTA find that a written commitment is necessary to ensure that the private funds ultimately are provided and is integral to the concept of “committed funds.” This change was not made. After consultation with the EPA, the definition of “conformity” was revised based on language from the EPA's conformity Web page 3 and in the EPA's conformity rule (40 CFR 93.100). 4 3 EPA's conformity web page can be found at the following URL: http://www.epa.gov/otaq/stateresources/transconf/index.htm. 4 This document is available via the Internet at the following URL: http://www.fhwa.dot.gov/environment/conformity/rule.htm. Many MPOs wrote regarding the definition of “congestion management process” that the definition should reference Transportation System Management and Operations (TSMO), rather than “management and operation” to reinforce the principles of this emerging practice. The FHWA and the FTA do not believe this change would enhance the definition and note that the term “operations and management” is taken directly from statute. No change was made. Many national and regional advocacy organizations and MPOs and COGs that commented on this section were concerned about the different uses of the term “consultation” in the definitions section and in Sections 450.214 (Development and content of the long-range statewide transportation plan) and 450.322 (Development and content of the metropolitan transportation plan). The definition of consultation used in § 450.214 (Development and content of the long-range statewide transportation plan) and § 450.322 (Development and content of the metropolitan transportation plan) is consistent with the definition in the statute found at 23 U.S.C. 134(i)(4), 23 U.S.C. 135(f)(2), 49 U.S.C. 5303(i)(4), and 49 U.S.C. 5304(f)(2) and is applicable for those sections. This section presents a broad definition of “consultation” for use throughout the rest of the rule. We have added a note to the definition of “consultation” to recognize that this definition is not the one used in §§ 450.214 and 450.322. Many national and regional advocacy organizations and several MPOs and COGs that commented on this section also asked that “periodically” be removed from the definition of “consultation” to better reflect that consideration of the other party's view and providing them with information should occur on a regular and ongoing basis, not a periodic basis. This definition is taken from the existing rule developed in an extensive rulemaking process in January 2003 on the non-metropolitan local official consultation process and agreed to by a number of stakeholders at that time (68 FR 7419). Further, the FHWA and the FTA consider “periodically” to mean frequently, on regular intervals. This change was not made. Many transit agencies and State DOTs as well as several MPOs, COGs and others requested changes to the definition of “coordinated public transit-human services transportation plan” to reduce the degree of procedural detail. Accordingly, the definition was changed to be consistent with that used in the proposed FTA Circulars for implementing the 49 U.S.C. 5310, 5316, and 5317 programs (New Freedom Program Guidance, The Job Access And Reverse Commute (JARC) Program, Elderly Individuals And Individuals With Disabilities Program) published in the September 2006. 5 In addition, commenters proposed the addition of guidelines for preparing the coordinated public transit-human services transportation plan, including geographic scope, approval authority, and determination of lead agency. To ensure maximum flexibility for localities to tailor the coordinated public transit-human services transportation plan preparation process to their areas, we will disseminate non-regulatory guidance on optional approaches and examples of effective practice, along with training and technical assistance. 5 These documents, “Elderly Individuals and Individuals With Disabilities, Job Access and Reverse Commute,” and “New Freedom Programs: Coordinated Planning Guidance for FY 2007 and Proposed Circulars” were published September 6, 2006, and are available via the internet at the following URLs: http://www.fta.dot.gov/publications/ publications_5607.html or http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-14733.pdf. Several MPOs and COGs expressed concern about the definition of “coordination” because there is no resolution mechanism if agencies cannot come to agreement. The FHWA and the FTA support the development of a dispute resolution process for “coordination” and “consultation.” However, such a process is not required by statute and is, therefore, not included in this rule. This does not preclude State DOTs and/or MPOs from developing their own dispute resolution processes as part of the transportation planning process. After further review, the FHWA and the FTA have removed the term “exclusive” from the list of examples in the definition of “design concept.” We do not want to imply that only “exclusive busways” can be identified as a type of project. A proposal was offered to define the term “designated recipient” to clarify this term in the rule. This definition has been added to this section Many State DOTs and some national and regional advocacy organizations that commented on the definition of “environmental mitigation activities” suggested deleting “rectify or reduce” from the definition because these terms are redundant. The FHWA and the FTA believe that the terms “rectify” and “reduce” are related more to the discussion of specific projects, not the broad planning context. We agree with this comment and have deleted these words. In addition, MPOs and COGs and a few State DOTs and others suggested simplifying the definition by removing statements of regulatory action. We agree and have deleted the last sentence of the definition which reiterated requirements in the body of the rule. Finally, we have modified the definition to be clear that strategies may not necessarily address potential project-level impacts. Several major concerns were expressed regarding the definition for “Financially constrained or Fiscal constraint.” Most commenters requested that three portions of the definition be deleted: (1) The phrase “by source,” (2) the phrase “each program year,” and (3) the phrase “while the existing system is adequately maintained and operated.” The requirement for demonstrating fiscal constraint by year and by source is consistent with, and carries forth language in, the planning rule adopted in October 1993 (58 FR 5804). The FHWA and the FTA consider demonstrating funding by year and by source necessary for decision-makers and the public to have confidence in the STIP and TIP as financially constrained. However, in response to concerns raised, we have changed the definition related to “by source” to be consistent with the October 1993 planning rule. This change clarifies that fiscal constraint documentation should include committed, available, or reasonably available revenue sources. Additionally, as a result of the extensive comments provided on Appendix B (Fiscal constraint of transportation plans and programs) we have changed the phrase “while the existing system is adequately maintained and operated” to “with reasonable assurance that the federally supported transportation system is being adequately operated and maintained.” We believe this change provides flexibility and addresses the commenters' concerns that the FHWA and the FTA were overreaching beyond the Federally supported transportation system. Please see the responses to the comments on Appendix B for additional background information and explanation. Finally, we have also clarified the definition to explicitly refer to “the metropolitan transportation plan, TIP and STIP.” Many State DOTs, a few national and regional advocacy organizations, and some MPOs and COGs wrote that the definition of “financial plans” should be changed to note that financial plans are not required for STIPs and are not required for illustrative projects. The FHWA and the FTA agree with both comments. We have added a note to the definition that financial plans are not required for STIPs. We also agree that financial plans are not required for illustrative projects. § 450.216(m) states that “The financial plan may include, for illustrative purposes, additional projects that would be included in the adopted STIP if reasonable additional resources beyond those identified in the financial plan were available.” We do not believe it is necessary to add a note to the definition regarding illustrative projects. Several State DOTs also wrote requesting that the phrase “as well as operating and maintaining the entire transportation system” be removed from the definition of “financial plans.” This change has been made Proposals were offered to define the terms “full funding grant agreement” to clarify this term in the rule. This definition has been added to this section. In response to comments regarding financial plans and fiscal constraint requirements, we have modified the definition of “illustrative project” to clarify that “illustrative projects” refer to additional transportation projects that would be included in financially constrained transportation plans and programs if “additional resources were to become available.” This definition also notes that illustrative projects may (but are not required to) be included in the financial plan. Representatives of a State DOT and a national and regional advocacy organization requested the inclusion of detailed methodologies for engaging private service providers in the transportation planning process, as well as standards for ascertaining compliance with private enterprise provisions and a complaint process. To ensure maximum flexibility for localities to tailor programs to the needs of private service providers in their areas, we will rely upon non-regulatory guidance, training, and technical assistance for disseminating information on optional approaches to private sector participation. The FHWA and the FTA noted that the proposed rule used an incorrect Clean Air Act reference in the definition of “Maintenance area.” This reference has been corrected. After further review, the FHWA and the FTA have made slight changes to the definition of “management systems” to be more permissive. The phrase “and safety” was changed to “or safety” and “includes” was changed to “can include.” Some State DOTs and national and regional advocacy groups recommended removing the phrase “in the preceding program year” from the definition of “obligated projects.” The FHWA and the FTA find that the phrase “in the preceding program year” is important in the context of the annual listing of obligated projects (See § 450.332 (Annual listing of obligated projects)) to clarify what projects should be included in the list, since TIPs cover multiple years. Therefore, this change was not made. However, we did change the definition to emphasize that funds need to be “authorized by the FHWA or awarded as a grant by the FTA.” Several State DOTs, MPOs and COGs and some national and regional advocacy organizations and transit agencies expressed confusion over the terms “management and operations” and “operations and management” as related to the term they propose be included in the rule, “Transportation System Management and Operations (TSMO).” The SAFETEA-LU defined “Operational and Management Strategies” and its relationship to metropolitan long-range transportation plans. ( Operational and management strategies means actions and strategies aimed at improving the performance of existing and planned transportation facilities to relieve vehicular congestion and maximizing the safety and mobility of people and goods (23 U.S.C. 134(i)(2)(D) and 49 U.S.C. 5303(i)(2)(D)). This definition is included in the rule with one change. We have removed the modifier “vehicular” to emphasize that operational and management strategies should be considered for all modes. The FHWA and the FTA find this term, for practical purposes, to be the same as the term Transportation System Management and Operations currently commonly in use by agencies involved with transportation. We have chosen to continue using the term “operational and management strategies” as that is the term used in SAFETEA-LU. Several State DOTs, MPOs and COGs and some national and regional advocacy organizations and transit agencies also asked for clarification of the term “operations and maintenance.” The terms “operations” and “maintenance” are used in these regulations as defined in 23 U.S.C. 101. Therefore, we have not repeated the definitions here. A proposal was offered to define the term “project construction grant agreement” to clarify this term in the rule. This definition has been added to this section. After further review, we have determined it is necessary to clarify the definition of “project selection” to emphasize these are procedures used by MPOs, States, and public transportation operators. Based on comments, we have changed the term “business” in the definition of “provider of freight transportation services” to “entity.” Freight transportation providers may include other concerns besides businesses. A proposal was offered to define the term “public transportation operator” to clarify this term in the rule. This definition has been added to this section. Several State DOTs and MPOs and COGs as well as some transit agencies and national and regional advocacy organizations noted that the definition of “regionally significant project” should not include a reference to “all capacity expanding projects.” After consultation with the EPA, the FHWA and the FTA have changed this definition to be consistent with the EPA's transportation conformity rule (40 CFR 93.101). Several of the State DOTs, many transit agencies, and a few of the national advocacy organizations and MPOs and COGs commented that the word “overarching” in the definition of “Regional Transit Security Strategies” was ambiguous. Other MPOs and COGs, transit agencies and national and regional advocacy organizations wrote that the definition was overly specific without defining who would be held responsible to develop the strategy and also expressed concern about possible disclosure of security-sensitive information in the planning process. Subsequent to publication of the NPRM, the FHWA and the FTA determined that the Department of Homeland Security does not require Regional Transit Security Strategies in all metropolitan areas, at all times. As a result, this term has been removed from this section and references to the term in § 450.208(h), § 450.214(e), and § 450.306(g) also have been removed from the rule. Alternatively, this language has been replaced, in these sections, with a reference to “other transit safety and security planning and review processes, plans, and programs, as appropriate.” The docket included several comments regarding the definitions for “revision,” “amendment,” “administrative modification,” and “update.” The definition of “revision” has been revised to use the terms “major” and “minor” rather than “significant” and “non-significant,” consistent with the comments received and changes to the related terms. A State DOT commented on the definition of “State implementation plan (SIP).” After consultation with EPA, this definition was revised to cite applicable sections of the Clear Air Act and to be consistent with the definition in the Clean Air Act and EPA's conformity rule (40 CFR 93.101) for “applicable implementation plan.” The docket included a comment requesting clarification of the term “staged” in the definition for “Statewide transportation improvement program (STIP).” We have clarified this definition to describe the STIP as a “prioritized listing/program” and to reiterate that it must cover a period of four years. Similar changes were made to the definition of “Transportation improvement program (TIP).” Some State DOTs and a national and regional advocacy organization suggested that the reference to “in order to meet the regular schedule as prescribed by Federal statute” be removed from the definition of “Update.” A few MPOs and COGs questioned what would constitute an “update” and what was meant by “complete change.” We agree with these concerns, have removed these phrases and revised and simplified this definition to “Update means making current a long-range statewide transportation plan, metropolitan transportation plan, TIP, or STIP through a comprehensive review.” Based on comments, we note in this definition that an “update” requires a 20-year horizon year for metropolitan transportation plans and long-range statewide transportation plans and a four-year program period for TIPs and STIPs. Several MPOs and other organizations asked for clarification of the term “visualization.” The FHWA and the FTA have changed “employed” to “used” in the “Visualization techniques” definition. Further, we agree that there is a need for more technical information on the use of visualization techniques and we intend to provide technical reports and guidance subsequent to the publication of this rule. Proposals were offered to define the terms “advanced construction,” “encouraged to,” “intercity bus,” “interested parties,” “MPO staff,” “public transportation provider,” “reasonable access,” “shall,” and “should.” The FHWA and the FTA believe these terms are generally well understood and do not require additional detail. Subpart B—Statewide Transportation Planning and Programming Section 450.200 Purpose No comments were received on this section and no changes were made. Section 450.202 Applicability No comments were received on this section and no changes were made. Section 450.204 Definitions No comments were received on this section and no changes were made. Section 450.206 Scope of the Statewide Transportation Planning Process There were more than 20 separate comments on this section with the most coming from State DOTs, followed by national and regional advocacy organizations. A small number of comments came from MPOs and COGs and providers of public transportation. In comments on this section and § 450.306 (Scope of the metropolitan transportation planning process), many MPOs and COGs, some national and regional advocacy organizations and a few State DOTs noted that paragraph (a)(3) embellished the statutory language for the “security” planning factor. Organizations that commented on this issue were concerned that the expanded language would require State DOTs and MPOs to go far beyond their traditional responsibilities in planning and developing transportation projects, which was not intended by the SAFETEA-LU. The FHWA and the FTA agree and have revised the language in paragraph (a)(3) to match the language in statute. Most of the State DOTs and several of the national and regional advocacy organizations that commented on this section said that the text in paragraph (b) should be revised similar to the text in the October 1993 planning rule acknowledging that the degree of consideration will reflect the scale and complexity of issues within the State. The FHWA and the FTA agree with these comments and have revised the rule accordingly. We have adopted the October 1993 planning rule language with one change. The phrase “transportation problems” was changed to “transportation systems development.” After further review, we have clarified paragraph (c) to be more specific and to mirror the language in 23 U.S.C. 135(d)(2) and 49 U.S.C. 5304(d)(2). The paragraph now specifically refers to “any court under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5 U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7” and to the “statewide transportation” planning process finding. A small number of national and regional advocacy organizations and State DOTs that commented on this section said they would like the FHWA and the FTA to develop and/or encourage the use of performance measures when State DOTs consider the planning factors listed in this section. While the FHWA and the FTA encourage the use of performance measures, the flexibility afforded the State DOTs and MPOs in implementing the transportation planning process gives them wide latitude to develop a process that is appropriate for their jurisdiction. We believe this issue is best addressed in guidance and technical assistance. Section 450.208 Coordination of Planning Process Activities There were almost 100 separate comments on this section mostly from State DOTs, followed by national and regional advocacy organizations. A number of comments came from MPOs and COGs with a small number from public transportation providers or Federal agencies. In some of the comments from national and regional advocacy organizations, MPOs and COGs, and others, the FHWA and the FTA were asked to expand the scope of the transportation planning process to include a variety of other issues and concerns. In response to these comments, we have added “at a minimum” to paragraph (a) to emphasize the flexibility for State DOTs to include more in their statewide transportation planning process than is listed in this section. Several MPOs and COGs that had comments on this section suggested clarification of paragraph (a)(1) regarding the State's use of information and studies provided by MPOs. The text from this paragraph in part carries forward but simplifies text from 23 CFR 450.210 of the October 1993 planning rule. The FHWA and the FTA find that the language provides reasonable flexibility to respond to different circumstances while reinforcing the importance of information and technical studies as a foundation in transportation planning. No changes were made to this paragraph. Many of the State DOTs that commented on this section indicated that coordination referenced in paragraph (a)(2) should not extend to private businesses. At the same time, many of the MPOs, COGs and national and regional advocacy organizations, as well as a public transportation provider that commented on this section wrote in support of the section and some requested that “consult” replace “coordinate.” The requirements in this paragraph come from the statutory language; therefore, no change was made. The FHWA and the FTA want to provide State DOTs flexibility to determine how to coordinate with statewide trade and economic planning activities and the level or coordination that needs to take place within the planning process. The FHWA has made available information related to Public-Private Partnership opportunities, including analyses of contractual agreements formed between public agencies and private sector entities, on its Web site at: http://www.fhwa.dot.gov/ppp/ . If necessary, we will provide guidance subsequent to the rule if more clarity is needed regarding this coordination. Many of the State DOTs that commented on this section said that coordination in paragraph (a)(3) exceeds the requirement in the statute. At the same time, several of the national and regional advocacy organizations and a Federal agency commented in support of the language in the proposed rule. The FHWA and the FTA find that the proposed language does exceed the intent of the statute, and have revised the rule to more closely reflect the statutory language, by changing “coordinate planning” to “consider the concerns of.” Many of the State DOTs that commented on this section suggested placing the word “affected” before “local elected officials” in paragraph (a)(4). At the same time, some of the MPOs and COGs and national and regional advocacy organizations that provided comments on this section suggested changing “consider” to “consult,” which is used in § 450.210 (Interested parties, public involvement, and consultation). The text follows the statutory language. The FHWA and the FTA considered both groups of comments and determined that using the statutory language for this paragraph without amplification best meets the intent of the statute. Many of the State DOTs that commented on this section said that the text in paragraph (a)(6) should follow the statutory language (23 U.S.C. 135(e)(1)(3) and 49 U.S.C. 5304(e)(1)(3)). The FHWA and the FTA agree and revised the rule accordingly. Several of the State DOTs that commented on this section objected to the phrase “establish a forum” in paragraph (a)(7), while a smaller number supported the text. The FHWA and the FTA want to emphasize the importance of information and technical studies as a foundation in transportation planning. While there is no statutory basis to require “establish[ing] a forum,” this paragraph has been revised to more closely reflect the intent from § 450.210(a)(1) and (a)(3) of the October 1993 rule regarding coordination of data collection and analyses with MPOs and public transportation operators. After further review, the FHWA and the FTA have modified the last sentence of paragraph (c) to be consistent with 23 U.S.C. 135(c)(2) and 49 U.S.C. 5304(c)(2) regarding multistate agreements and compacts. Many of the State DOTs and a few of the national and regional advocacy organizations that provided comments on this section said the text in paragraphs (e) and (f) went beyond statutory requirements. The FHWA and the FTA agree with these comments and revised the rule accordingly by changing “are encouraged to” to “may” in paragraph (e) and adding “to the maximum extent practicable” to paragraph (f). Most transit agencies, several State DOTs, MPOs, COGs, and others that commented on this section expressed concern or confusion about the requirement in paragraph (g) for the statewide transportation planning process to be consistent with the development of coordinated public transit-human services transportation plans. Several commenters requested the addition of procedural detail on the coordinated public transit-human services transportation plan, including geographic scope, approval authority, and determination of lead agency. Some commenters recommended removing the requirement entirely. We also received a comment questioning whether metropolitan and statewide transportation planning processes should be consistent with the coordinated public transit-human services transportation plan, or vice versa. To ensure maximum flexibility for localities to undertake a coordinated planning process that may be uniquely tailored to their area, we have not included additional detailed requirements in the rule. The FHWA and the FTA will disseminate non-regulatory guidance, complemented by a wide array of effective practice case studies and supported by training and technical assistance, on the coordinated public transit-human services transportation plan. The definition of the coordinated public transit-human services transportation plan was changed to be consistent with that used in the proposed FTA Circulars for implementing the 49 U.S.C. 5310, 5316, and 5317 programs (New Freedom Program Guidance And Application Instructions, The Job Access And Reverse Commute (JARC) Program Guidance And Application Instructions, Elderly Individuals And Individuals With Disabilities Program Guidance And Application Instructions) respectively, published on September 6, 2006. 6 Additionally, provisions for promoting consistency between the planning processes were revised to clarify that the coordinated public transit-human services transportation plan should be prepared in full coordination and be consistent with the metropolitan transportation planning process. The revisions also are intended to add flexibility in how the coordinated transportation plans would be prepared. 6 These documents, “Elderly Individuals and Individuals With Disabilities, Job Access and Reverse Commute,” and “New Freedom Programs: Coordinated Planning Guidance for FY 2007 and Proposed Circulars” were published September 6, 2006, and are available via the internet at the following URL: http://www.fta.dot.gov/publications/publications_5607.html. Many of the State DOTs, several transit agencies, and a few of the national and regional advocacy organizations that provided comments on this section, said the text in paragraph (h) went beyond statutory requirements. Several transit agencies and a few State DOTs and others suggested deleting paragraph (h) due to the confidential nature of Regional Transit Security Strategies (RTSS). An RTSS is not required of all metropolitan areas and States across the U.S. Reference to the RTSS was removed from paragraph (h). Instead, we have added a reference to “other transit safety and security planning and review processes, plans, and programs, as appropriate.” Section 450.210 Interested Parties, Public Involvement, and Consultation The docket included 33 documents that contained about 60 comments on this section, with many from State DOTs, national and regional advocacy organizations and MPOs and COGs. Many of the State DOTs and some of the national and regional advocacy organizations said that State DOTs should not be required to document the public involvement process. The FHWA and the FTA find that an essential element of an effective public involvement process is the opportunity for the public to understand when, how, and where public comment can occur. It is important to open, effective public involvement that the process be documented and available for public review. Therefore, we have retained the requirement for a documented public involvement process. Some of the MPOs and some of the national and regional advocacy organizations said they would like to expand the list of interested parties in paragraph (a)(1)(i). Representatives of private bus operators requested specific mention in the regulation. The list of interested parties in the regulation is consistent with 23 U.S.C. 135(f)(3)(A) and 49 U.S.C. 5304(f)(3)(A), as amended by the SAFETEA-LU, and is sufficiently broad to encompass and have relevance to all of the suggested additional parties. The list illustrates groups that typically have an interest in statewide transportation planning, but does not preclude States from providing information about transportation planning to other types of individuals or organizations. The FHWA and the FTA note that 49 U.S.C. 5307(c) requires grant recipients to make available to the public information on the proposed program of projects and associated funding. Specifically in regard to MPOs, States shall coordinate with MPOs under § 450.208 (Coordination of planning process activities). Therefore, a reference to MPOs here would be redundant and potentially confusing since this section does not require coordination with interested parties. No change was made to add MPOs to this paragraph. Many of the State DOTs and some of the national and regional advocacy organizations also said that State DOTs should not be required to document the non-metropolitan local official consultation process. The rule does not change the regulations published in the Federal Register on January 23 (68 FR 3176) and February 14, 2003 (68 FR 7418) regarding consultation with non-metropolitan local officials. Those regulations were developed based on significant review and comment by State DOTs and non-metropolitan local officials and their representatives. At that time most State DOTs and national and regional advocacy organizations supported the regulations. Therefore, the only change we have made to paragraph (b) is to change “revisions” to “changes,” since “revision” is now specifically defined in the rule and, by that definition, is not an appropriate term for this paragraph. Some of the State DOTs and some national and regional advocacy organizations said that the text encouraging State DOTs to document their process for consulting with Indian Tribal Governments should be eliminated. The commenters believe that documenting this consultation process goes beyond requirements in statute. We disagree. The FHWA and the FTA support efforts to consult with Indian Tribal governments and find that documentation of consultation processes are essential to a party's ability to understand when, how, and where the party can be involved. Upon further consideration, to strengthen the involvement of Indian Tribal governments in the statewide transportation planning process, we have changed paragraph (c) from “States are encouraged to” to “States shall, to the extent practicable.” Section 450.212 Transportation Planning Studies and Project Development Section 1308 of the TEA-21 required the Secretary to eliminate the major investment study (MIS) set forth in § 450.318 of title 23, Code of Federal Regulations, as a separate requirement, and promulgate regulations to integrate such requirement, as appropriate, as part of the analysis required to be undertaken pursuant to the planning provisions of title 23 U.S.C. and title 49 U.S.C. Chapter 53 and the National Environmental Policy Act of 1969 (NEPA) for Federal-aid highway and transit projects. The purpose of this section and § 450.318 (Transportation planning studies and project development) is to implement this requirement of Section 1308 of the TEA-21 and eliminate the MIS as a stand-alone requirement. A phrase has been added to paragraph (a) to clarify the purpose of this section. The docket included more than 20 documents that contained more than 50 comments on this section with about two-thirds from State DOTs and the rest from MPOs or COGs, and national and regional advocacy organizations. The comments on this section were similar to, and often referenced, the comments on § 450.318 (Transportation planning studies and project development). Most of the comments received supported the concept of linking planning and NEPA but opposed including Appendix A in the rule. The purpose of an Appendix to a regulation is to improve the quality or use of a rule, without imposing new requirements or restrictions. Appendices provide supplemental, background or explanatory information that illustrates or amplifies a rule. Because Appendix A provides amplifying information about how State DOTs, MPOs and public transportation operators can choose to conduct transportation planning-level choices and analyses so they may be adopted or incorporated into the process required by NEPA, but does not impose new requirements, the FHWA and the FTA find that Appendix A is useful information to be included in support of this and other sections of the rule. A phrase has been added to paragraph (c) to clarify this point. Additionally, we have added disclaimer language at the introduction of Appendix A. The FHWA and the FTA recognize commenters' concerns about Appendix A, including the recommendation that this information be kept as guidance rather than be made a part of the rule. First, information in an Appendix to a regulation does not carry regulatory authority in itself, but rather serves as guidance to further explain the regulation. Secondly, as stated above, Section 1308 of TEA-21 required the Secretary to eliminate the MIS as a separate requirement, and promulgate regulations to integrate such requirement, as appropriate, as part of the transportation planning process. Appendix A fulfills that Congressional direction by providing explanatory information regarding how the MIS requirement can be integrated into the transportation planning process. Inclusion of this explanatory information as an Appendix to the regulation will make the information more readily available to users of the regulation, and will provide notice to all interested persons of the agencies' official guidance on MIS integration with the planning process. Attachment of Appendix A to this rule will provide convenient reference for State DOTs, MPOs and public transportation operator(s) who choose to incorporate planning results and decisions in the NEPA process. It will also make the information readily available to the public. Additionally, the FHWA and the FTA will work with Federal environmental, regulatory, and resource agencies to incorporate the principles of Appendix A in their day-to-day NEPA policies and procedures related to their involvement in highway and transit projects. For the reasons stated above, after careful consideration of all comments, the FHWA and the FTA have decided to attach Appendix A to the final rule as proposed in the NPRM. Most State DOTs and several MPOs and COGs, and national and regional advocacy organizations that commented on this section were concerned that the language in paragraph (a) is too restrictive. The FHWA and the FTA agree that planning studies need not “meet the requirements of NEPA” to be incorporated into NEPA documents. Instead, we have changed the language in paragraph (a) to “consistent with” NEPA. In addition, we have added the phrase “multimodal, systems-level” before “corridor or subarea” to emphasize the “planning” venue for environmental consideration. Commenters on this section also requested that the rule clarify that the State DOT has the responsibility for conducting corridor or subarea studies in the statewide transportation planning process. The FHWA and the FTA recognize that the State DOT is responsible for the statewide transportation planning process. However, we do not want to preclude MPOs or public transportation operators, in consultation or jointly with the State DOT, from conducting corridor or subarea studies. Therefore, we have changed paragraph (a) to add the sentence “To the extent practicable, development of these transportation planning studies shall involve consultation with, or joint efforts among, the State(s), MPO(s), and/or public transportation operator(s).” Some State DOTs suggested incorporating planning decisions rather than documents into the NEPA process. The FHWA and the FTA find that decisions made as part of the planning studies may be used as part of the overall project development process and have changed paragraph (a) to include the word “decisions” as well as “results.” It is important to note, however, that a decision made during the transportation planning process should be presented in a documented study or other source materials to be included in the project development process. Documented studies or other source materials may be incorporated directly or by reference into NEPA documents, as noted in § 450.212(b). We have added “or other source material” to paragraph (b) to recognize source materials other than planning studies may be used as part of the overall project development process. It is important to note that this section does not require NEPA-level evaluation in the transportation planning process. Planning studies need to be of sufficient disclosure and embrace the principles of NEPA so as to provide a strong foundation for the inclusion of planning decisions in the NEPA process. The FHWA and the FTA also reiterate the voluntary nature of this section and the amplifying information in Appendix A. States, transit operators and/or MPOs may choose to undertake studies which may be used in the NEPA process, but are not required to do so. Several State DOTs and national and regional advocacy organizations were concerned about the identification and discussion of environmental mitigation. They did not believe that detail on environmental mitigation activities was appropriate in the transportation planning process. The FHWA and the FTA agree. Paragraph (a)(5) calls for “preliminary identification of environmental impacts and environmental mitigation.” The FHWA and the FTA believe that the term “preliminary” adequately indicates that State DOTs are not expected to provide the same level of detail on impacts and mitigation as would be expected during the NEPA process. Based on comments on Appendix A, we added the phrase “directly or” in paragraph (b), to indicate the use of publicly available planning documents for subsequent NEPA documents. Also based on comments on Appendix A, we added the phrase “systems-level” in paragraph (b)(2), to emphasize that these corridor or subarea studies are conducted during the planning process at a broader scale than project specific studies under NEPA. Several State DOTs and many others who submitted comments on this section noted that the word “continual” in paragraph (b)(2)(iii) provides the public with more opportunity to comment than is necessary. We agree and have replaced “continual” with “reasonable” in this paragraph, consistent with the terminology in § 450.316(a) (Interested parties, participation and consultation). Also in paragraph (b)(2)(iii) a number of commenters noted that the paragraph references the metropolitan transportation planning process when it should reference the statewide transportation planning process. This change has been made. Several State DOTs and a national and regional advocacy organization suggested adding a “savings clause” in a new paragraph. A savings clause would lessen the likelihood that the new provisions regarding corridor or subarea studies would have unintended consequences. The specific elements requested to be included in the “savings clause” were statements that: (a) The corridor and subarea studies are voluntary; (b) corridor and subarea studies can be incorporated into the NEPA process even if they are not specifically mentioned in the long-range statewide transportation plan; (c) corridor and subarea studies are not the sole means for linking planning and NEPA; and (d) reiterate the statutory prohibition on applying NEPA requirements to the transportation planning process. The concepts recommended in the “savings clause” all reiterate provisions found elsewhere in the rule or statute. The FHWA and the FTA do not agree that it is necessary to repeat those provisions in this section. The docket included a comment that corridor or subarea studies should be required, not voluntary, to be included in NEPA studies. Given the opposition to requiring NEPA-level analysis in the transportation planning process, the FHWA and the FTA find that the permissive nature of this section and Appendix A strikes the appropriate balance. The docket also included a question asking what needs to be included in an agreement with the NEPA lead agencies to accomplish this integration. The FHWA and the FTA have determined that identification of what information appropriately belongs in the agreement should be disseminated as non-regulatory guidance, complemented by a wide array of effective practice case studies and supported by training and technical assistance. No change was made to the rule. We have not required that corridor or subarea studies be included or incorporated into NEPA studies. Section 450.214 Development and Content of the Long-Range Statewide Transportation Plan The docket included approximately 50 documents that contained about 50 comments on this section with about one-third from State DOTs, one-half from national and regional advocacy organizations, and the rest from MPOs and COGs, city/county/State agencies, general public and transit agencies. Many comments were received regarding the comparison of transportation plans with conservation plans. According to statute (23 U.S.C. 135(f)(2)(D) and 49 U.S.C. 5304(f)(2)(D)), for long-range statewide transportation plans, comparison must be made to both conservation plans and inventories of natural/historic resources; whereas language relating to metropolitan transportation plans (23 U.S.C. 134(i)(4)(B) and 49 U.S.C. 5303(i)(4)(B)) requires comparison to State conservation plans/maps or comparison to inventories of natural or historic resources. The rule language is consistent with what is in statute. Therefore, no changes were made to the rule language. A few comments were received pertaining to the lack of a required financial plan for the long-range statewide transportation plan. Most of the MPOs and COGs and several of the national and regional advocacy organizations were in favor of adding this requirement. One State DOT voiced opinion that this should remain an option, but not be mandated. The FHWA and the FTA agree that the long-range statewide transportation plan may include a financial plan. This optional financial plan is different from the fiscal constraint requirement for the STIP. This financial plan is a broad look at the future revenue forecast and strategies needed to fund future projects over a 20-year horizon. However, the SAFETEA-LU made it clear that the financial plan should not be required for a long-range statewide transportation plan. Therefore, no change was made to the rule. A few comments were received stating that the 20-year horizon for the long-range statewide transportation plan should only be required as of the effective date of the plan adoption, which would be similar to language used for the effective date of the metropolitan transportation plan. The FWHA and the FTA agree with this comment and have added “at the time of adoption” to paragraph (a). DOT Congestion Initiative: On May 16, 2006, the U.S. Secretary of Transportation announced a national initiative to address congestion related to highway, freight and aviation. The intent of the “National Strategy to Reduce Congestion on America's Transportation Network” 7 is to provide a blueprint for Federal, State and local officials to tackle congestion. The States and MPO(s) are encouraged to seek Urban Partnership Agreements with a handful of communities willing to demonstrate new congestion relief strategies and encourages States to pass legislation giving the private sector a broader opportunity to invest in transportation. It calls for more widespread deployment of new operational technologies and practices that end traffic tie ups, designates new interstate “corridors of the future,” targets port and border congestion, and expands aviation capacity. 7 This document, “An Overview of the National Strategy to Reduce Congestion on America's Transportation Network” dated May, 2006, is available via the internet at the following URL: http://www.fightgridlocknow.gov. U.S. DOT encourages the State DOTs and MPOs to consider and implement strategies, specifically related to highway and transit operations and expansion, freight, transportation pricing, other vehicle-based charges techniques, etc. The mechanism that the State DOTs and MPOs employ to explore these strategies is within their discretion. The U.S. DOT will focus its resources, funding, staff and technology to cut traffic jams and relieve freight bottlenecks. To encourage States to address congestion in the long-range statewide transportation plan, the following sentence was added to paragraph (b): “The long-range statewide transportation plan may consider projects and strategies that address areas or corridors where current or projected congestion threatens the efficient functioning of key elements of the State's transportation system.” Several comments were received stating that the security requirements of paragraph (e) go beyond what was intended in the SAFETEA-LU. Based on these comments, the concern for possible disclosure of security-sensitive information in the planning process and the determination that a Regional Transit Security Study is not required universally of all metropolitan areas and States, this reference has been removed from the rule and instead we have added a reference to “other transit safety and security planning and review processes, plans, and programs, as appropriate.” Several commenters also were concerned about the distinction between “homeland” and “personal” security in the planning factors found at § 450.206 (Scope of the statewide transportation planning process). This distinction has been removed from § 450.206 (Scope of the statewide transportation planning process) and § 450.306 (Scope of the metropolitan transportation planning process). Some State DOTs and a few advocacy organizations commented that “types of” should be added to the discussion of potential environmental mitigation activities requirement in paragraph (j) to emphasize the policy or strategic nature of these discussions. The rule language is consistent with statute (23 U.S.C. 135(f)(4) and 49 U.S.C. 5304(f)(4)), therefore this change was not made. However, we have added a sentence to this paragraph recognizing that long-range statewide transportation plans may focus on “policies, programs, or strategies, rather than at the project level.” The last sentence of this paragraph was also deleted because Appendix A does not provide additional information relevant to the subject of this paragraph. In paragraph (l), in response to comments from State DOTs, national and regional advocacy organizations and several others, we have added the phrase “but is not required to.” The purpose of this addition is to reinforce that the financial plan is not required to include illustrative projects. We also corrected the language in the last sentence: “were available” was changed to “were to become available.” Several State DOTs and a few national and regional advocacy organizations requested in regard to paragraph (p) that long-range statewide transportation plans be provided to the FHWA and the FTA only when “amended” not “revised.” We agree and have made this change. Section 450.216 Development and Content of the Statewide Transportation Improvement Program (STIP) The FHWA and the FTA received over 100 separate comments on this section with the most from State DOTs followed by national and regional advocacy organizations. MPOs and COGs, local governments and public transportation providers also provided comments on this section. Several State DOTs and national and regional advocacy organizations and a few MPOs and COGs said in regards to paragraph (a) that State DOTs should be allowed to have a statewide transportation improvement program (STIP) of more than four years where the additional year(s) are not illustrative. The four-year scope is consistent with the time period required by the SAFETEA-LU. While State DOTs are not prohibited from developing STIPs covering a longer time period, in accordance with statute, the FHWA and the FTA can only recognize and take subsequent action on projects included in the first four years of the STIP. State DOTs may show projects as illustrative after the first four years, as well as in the long-range statewide transportation plan. Therefore, no change was made to this section of the rule. After consultation with EPA and in response to comments from a few national and regional advocacy organizations, the language in paragraph (b) has been changed to clarify that projects in the “donut areas” of a nonattainment or maintenance area must be included in the regional emissions analysis that supported the conformity determination of the associated metropolitan TIP before they are added to the STIP. The transportation conformity rule (40 CFR part 93) covers the requirements for including projects in the “donut area” in the regional emissions analysis. A public transportation provider said in regard to paragraph (g) that security projects should be added to the list of projects exempted from listing in the STIP. Because security projects are often funded with title 49 U.S.C. Chapter 53 or title 23 U.S.C. funds, they must be included in the STIP. No change was made to this paragraph. However, after further review, the FHWA and the FTA have determined it is appropriate to remove the phrase “federally supported” from the beginning of paragraph (g) because it is redundant. The paragraph already requires projects to be included if they are funded under title 23 U.S.C. and title 49 U.S.C. Chapter 53. We have also changed paragraph (g) to allow the inclusion of the exempted projects, but do not require that they be included. Further, we have added “Safety projects funded under 23 U.S.C. 402” to paragraph (g)(1) to be consistent with the October 1993 planning rule. When proposing Appendix B to the rule, the FHWA and the FTA intended to raise the level of awareness and importance in developing fiscally constrained transportation plans, TIPs, and STIPs to States, MPOs, and public transportation operators. Since its introduction under the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240), fiscal constraint has remained a prominent aspect of transportation plan and program development, carrying through to the TEA-21 and now to the SAFETEA-LU. The FHWA and the FTA acknowledge that Appendix B contains a combination of guidance, amplifying information and additional criteria. Given the level of controversy regarding Appendix B, it has been removed from the rule. Therefore, the sentence referencing Appendix B in paragraph (l) has been deleted. Many State DOTs and several national and regional advocacy organizations commented in regard to paragraph (h), that they should not have to demonstrate financial constraint for projects included in the STIP funded with non-FHWA and non-FTA funds. However, this requirement is consistent with and carries forward the requirement that was implemented with the October 1993 planning rule. In addition, for informational purposes and air quality analysis in nonattainment and maintenance areas, regionally significant non-Federal projects shall be included in the STIP. Therefore, the FHWA and the FTA have retained this portion of paragraph (h). We have, however, simplified the paragraph slightly to combine the last two sentences. Most State DOTs and national and regional advocacy organizations that commented on this section, recommended in regards to paragraph (i) that after the first year of the STIP, only the “likely” or “possible” (rather than “proposed”) categories of funds should be identified by source and year. The FHWA and the FTA agree with this suggestion, with the exception of projects in nonattainment and maintenance areas for which funding in the first two years must be available or committed. Paragraph (i)(3) has been changed to specifically reference the amount of “Federal funds” proposed to be obligated and to identify separate standards for the first year and for the subsequent years of the STIP. One of the features of Appendix B that the FHWA and the FTA find merits inclusion in the rule is “year of expenditure dollars.” The following has been added to paragraph (l): “Revenue and cost estimates for the STIP must use an inflation rate(s) to reflect ‘year of expenditure dollars,’ based on reasonable financial principles and information, developed cooperatively by the State, MPOs, and public transportation operators.” This language expresses the desire of the FHWA and the FTA for revenue and cost estimates to be reflected in “year of expenditure dollars.” We recognize that it might take some time for State DOTs and MPOs to convert their metropolitan transportation plans, STIPs and TIPs to reflect this requirement. Therefore, we will allow a grace period until December 11, 2007, during which time State DOTs and MPOs may reflect revenue and cost estimates in “constant dollars.” After December 11, 2007, revenues and cost estimates must use “year of expenditure” dollars. This requirement is consistent with the January 27, 2006, document “Interim FHWA Major Project Guidance.” 8 Please see the responses to the comments on Appendix B to the NPRM for additional background information and explanation. In addition, to reinforce that the financial plan is not required to include illustrative projects, we have added the phrase “but is not required to” to this paragraph. Finally, we have deleted the reference to Appendix B in this paragraph because Appendix B is not included as part of this rule. 8 This document, “Interim FHWA Major Project Guidance,” dated January 27, 2006, is available via the internet at the following URL: http://www.fhwa.dot.gov/programadmin/mega/012706.cfm. Regarding paragraph (m), many State DOTs, national and regional advocacy organizations and a few MPOs and COGs questioned having to demonstrate their ability to adequately operate and maintain the entire transportation system. The FHWA and the FTA have revised paragraph (m) to delete the phrase “while the entire transportation system is being adequately operated and maintained.” Instead, we have added “while federally-supported facilities are being adequately operated and maintained.” Further, as discussed in the response to the comments on Appendix B, we have added to this paragraph: “For purposes of transportation operations and maintenance, the STIP shall include financial information containing system-level estimates of costs and revenue sources reasonably expected to be available to adequately operate and maintain Federal-aid highways (as defined by 23 U.S.C. 101(a)(5)) and public transportation (as defined by title 49 U.S.C. Chapter 53).” Many State DOTs and several national and regional advocacy organizations said regarding paragraph (m) that State DOTs should not have to demonstrate financial constraint in the STIP by year or by source of funding. Based on nearly 13 years of implementing this requirement, the FHWA and the FTA consider demonstrating funding by year necessary for decision-makers and the public to have confidence in the STIP as financially constrained. This change was not made. The specific reference to “by source” has been removed. However, the requirement for State DOTs to identify strategies for ensuring the availability of any proposed funding sources is retained. Please see the responses to the comments on Appendix B for additional background information and explanation as to why we have included this language in § 450.216. After further review, the FHWA and the FTA determined that paragraph (n) is redundant. The same information is included in paragraph (b). Therefore, paragraph (n) was removed. One State DOT and one local agency said that the regulation should include language emphasizing and expanding bicycle and pedestrian program guidance. The FHWA and the FTA find that the language in the guidance documents issued by the FHWA and the FTA on February 6, 2006, 9 is sufficient to address bicycle and pedestrian needs without being raised to the level of regulatory language. 9 The guidance memo entitled “Flexible Funding for Highway and Transit and Funding for Bicycle and Pedestrian Programs,” dated February 6, 2006, is available via the internet at the following URL: http://www.fhwa.dot.gov/hep/flexfund.htm. Many State DOTs and national and regional advocacy organizations that provided comments on this section said in regards to paragraph (o) (now paragraph (n)), that all changes that affect fiscal constraint should not require an amendment. We have slightly modified the paragraph to remove “all” from the last sentence, but note that this change does not remove the requirement that any change that affects fiscal constraint requires an amendment. By definition, an amendment is “a revision that requires public review and comment, redemonstration of fiscal constraint, or a conformity determination (for ‘non-exempt’ projects in nonattainment and maintenance areas). (See § 450.104 (Definitions)). The FHWA and the FTA note that nearly all comments on § 450.324 (Development and content of the transportation improvement program (TIP)) regarding the question posed in the preamble of the NPRM “whether the FHWA and the FTA should require MPOs submitting TIP amendments to demonstrate that funds are ‘available or committed’ for projects identified in the TIP in the year the TIP amendment is submitted and the following year” opposed a change. Almost all commenters mentioned that such a change would require reviewing the financial assumptions for the entire program, thereby causing an undue burden. Commenters suggested showing financial constraint only for the incremental change. The same question was posed in this section of the NPRM. Although commenters did not respond to the question in comments on this section, based on the comments on § 450.324 no change was made to the rule. However, the FHWA and the FTA are concerned for the potential impact of individual amendments on the funding commitments and schedules for the other projects in the STIP. For this reason, the financial constraint determination occasioned by the STIP amendment will necessitate review of all projects and revenue sources in the STIP. The FHWA and the FTA will address any concerns on this issue through subsequent guidance. Many State DOTs, MPOs and COGs as well as some national and regional advocacy organizations and a few public transportation providers and local government agencies asked for clarification on fiscal constraint if the financial situation in the State or metropolitan region changes. The FHWA and the FTA have added a new paragraph (o) to clarify that where a revenue source is removed or substantially reduced after the FHWA and the FTA find a STIP to be fiscally constrained, the FHWA and the FTA will not withdraw its determination of fiscal constraint but that the FHWA and the FTA will not act on an updated or amended STIP which does not reflect the changed revenue situation. Section 450.218 Self-Certification, Federal Findings, and Federal Approvals The docket included about 20 documents that contained approximately 30 comments on this section with about one-half from State DOTs, one-quarter from national and regional advocacy organizations, and the rest from MPOs and COGs, and city/county governments. Several comments were made under this section that should have referenced 450.220(e) and the question posed in the preamble to the NPRM “whether States should be required to prepare an ‘agreed to’ list of projects at the beginning of each of the four years in the STIP, rather than only the first year and whether a STIP amendment should be required to move projects between years in the STIP if an ‘agreed to’ list is required for each year.” These comments have been reflected in the discussion of and final language for § 450.220(e). Many commenters, including almost all State DOTs, in regards to paragraph (a), asserted their belief that the October 1993 planning rule requires joint FHWA and FTA approval of STIP amendments only “as necessary” so that, in most cases, either the FHWA or the FTA could approve the amendment. This is not the case. The October 1993 planning rule at 23 CFR 450.220(a) did require joint approval for all new STIPs and STIP amendments “as necessary.” The FHWA and the FTA have reviewed this requirement and determined that joint approval remains necessary. However, we note that through the internal Planning Collaboration Initiative, the FHWA and the FTA have developed a number of streamlined internal processes and agreements to expedite review and approval of STIP amendments. Based on these agreements and experience with the current regulation, we do not believe requiring joint approval will slow down the approval process or impose new workloads on the FHWA and the FTA. Joint approval of STIP amendments is necessary as part of our stewardship and oversight responsibility. We have clarified paragraph (a) to specifically state that “STIP amendments shall also be submitted to the FHWA and the FTA for joint approval” and that “at the time the entire STIP or STIP amendment is submitted,” the State shall certify the planning process is being carried out in accordance with requirements. After further review of this section, the FHWA and the FTA have updated the list of applicable requirements in paragraph (a). Reference to “23 CFR parts 200 and 300 have been removed” from paragraph (a)(2). Instead, a more specific reference to “23 CFR part 230, regarding implementation of an equal employment opportunity program on Federal and Federal-aid highway construction contracts” was added as paragraph (a)(5). This is the specific portion of 23 CFR parts 200 and 300 that needs to be reviewed and is not related to Title VI of the Civil Rights Act of 1964 in paragraph (a)(2). In addition, we have added a new paragraph (a)(3) “49 U.S.C. 5332, prohibiting discrimination on the basis of race, color, creed, national origin, sex, or age in employment or business opportunity.” Upon further review of this section, the FHWA and the FTA determined that 49 U.S.C. 5332 should be included in this list of requirements. Several comments to the docket expressed concern regarding the need for approval of the STIP when submitted to the FHWA and the FTA. While we still require joint approval, we have revised paragraph (b) to delete the proposed time frames of “every four years” or “at the time the amended STIP is submitted.” We will also make a joint finding on the “STIP,” rather than “the projects in the STIP.” Some commenters raised questions regarding the authority in paragraph (c) for the FHWA and the FTA approval of a STIP to continue for up to 180 days under extenuating circumstances even though a State has missed the deadline for its four-year update. Several comments suggested that the 180 calendar day limit for STIP extensions should be expanded and most supported not putting any time limit on the STIP extension period. At the same time, some national and regional advocacy organizations opposed allowing any STIP extensions. This provision has been in the planning regulations since the original rule relating to STIPs was adopted in October 1993, following the enactment of the ISTEA. Although the statute specifies that STIPs shall be updated every four years, Congress did not specify any consequences of missing this deadline by failing to complete the update within the specified period. Because Congress was silent on the consequences of the failure to update the STIP within the four-year period, the FHWA and the FTA have some latitude in interpreting Congress' intent. This discretion is further manifested in the statute by the fact that the FHWA and the FTA are given responsibility to approve the STIP (23 U.S.C. 135(g)(6) and 49 U.S.C. 5304(g)(6)). Since the October 1993 planning rule, the FHWA and the FTA have interpreted the update requirement strictly, believing that Congress intended the process to work on a regular cycle, and that regular updates were essential to the viability of the transportation planning process. Therefore, we have concluded that approval of the STIP should only continue past the update time period specified in statute when there are extenuating circumstances beyond the control of the State DOT that causes it to miss its update deadline. Examples of extenuating circumstances include (but are not limited to): (a) late action by the Governor or State legislature on revenue that was reasonably expected to be available for transportation projects in the STIP, whereby instances have occurred when the STIP was nearing the completion of the update process (public review and comments had been received), but just before adoption the funding was severely restricted, thus a new update process (based on new fiscal constraint reality) needed to be commenced; or (b) disasters, both natural and man-made, have caused States to divert both funding and staff resources away from the STIP update process. Further, the FHWA and the FTA believe that such an approval cannot extend indefinitely, but only be of limited duration (i.e., 180 calendar days). Therefore, we have retained the provision in paragraph (c) for an extension of the STIP update under extenuating circumstances. However, paragraph (c) has been slightly modified to clarify that, while the FHWA and the FTA approval may continue for a limited period of time based on extenuating circumstances, the statutory deadline for the update has not been changed. We have also clarified that the 180-day period refers to “calendar days.” Many comments were received questioning why the existing flexibility to maintain or establish operations for highway operating assistance was eliminated here and in § 450.328 (TIP actions by the FHWA and the FTA). This was an erroneous omission in the NPRM and the language has been restored to correct this error. A small number of national and regional advocacy organizations expressed concern that the rule does not provide enough detail on the standards that the FHWA, the FTA and State DOTs should apply in making a statewide planning finding. We believe that the entire context of the rule and of the statute sufficiently identify the criteria to be used in making a finding that the transportation planning process meets or substantially meets these requirements. We do not believe additional detail is required in the rule. However, if necessary, the FHWA and the FTA will provide non-regulatory guidance, training and technical assistance. Section 450.220 Project Selection From the STIP The docket included 20 documents that contained about 20 comments on this section. The majority of the comments were from State DOTs. MPOs and COGs, as well as transit agencies, city/county governments, and national and regional advocacy groups, also provided comments. All of the comments pertained to the two questions posed in the preamble to the NPRM: “whether States should be required to prepare an ‘agreed to’ list of projects at the beginning of each of the four years in the STIP, rather than only the first year” and “whether a STIP amendment should be required to move projects between years in the STIP, if an ‘agreed to’ list is required for each year.” Predominantly, comments asserted that requiring a State DOT or MPO to submit an agreed-to list at the beginning of each of the four years of the TIP/STIP or requiring an amendment to move projects between years in the STIP unnecessarily limited flexibility and thus should not be a requirement. The FHWA and the FTA agree with the majority of the comments. Therefore, no change was made to the rule language. We have clarified paragraph (b) to indicate that project selection shall be made according to procedures provided in § 450.330 (Project Selection From the TIP). Section 450.222 Applicability of NEPA to Statewide Transportation Plans and Programs The docket includes very few comments on this section. One concern expressed is that this section or Appendix A would make planning reviewable under NEPA. The purpose of this section, however, is to reiterate the statutory provisions that clearly say that the statewide transportation planning process decisions are not subject to review under NEPA. We have changed this section to mirror the language in 23 U.S.C. 135(j) and 49 U.S.C. 5304(j). Section 450.224 Phase-In of New Requirements The docket included 30 documents that contained almost 100 comments on this section with about half from State DOTs, one-fifth from national and regional advocacy organizations, one-fifth from MPOs and COGs, and the rest from city/county/State agencies. All comments received indicated that it will be difficult to meet the SAFETEA-LU July 1, 2007, deadline. Subsequent to the preparation of the proposed rule, but prior to its publication, the FHWA and the FTA disseminated additional guidance regarding the phase-in requirements on May 2, 2006. 10 Many of the comments to the docket addressed issues that were clarified in our May 2, 2006, guidance. The provisions of the guidance have been incorporated into the regulation. Specifically, we have clarified that long-range statewide transportation plans and STIPs adopted and approved prior to July 1, 2007, may be developed using the TEA-21 requirements or the provisions and requirements of this part. 10 This guidance document, “SAFETEA-LU Deadline for New Planning Requirements”, dated May 2, 2006, is available on the following URL: http://www.fhwa.dot.gov/hep/plandeadline.htm . We have also clarified, in paragraph (a), what actions may be taken prior to July 1, 2007, on long-range statewide transportation plans and STIPs. One MPO, half of the national and regional advocacy organizations and a quarter of the State DOTs commented that the regulations should clearly state that partial STIP approvals are allowable if one MPO or region is not SAFETEA-LU compliant. Because the regulation already allows for approval of partial STIPs (see § 450.218(b)(1)(iii)), no change was made to the regulation. Approval of partial STIPs is acceptable, primarily when difficulties are encountered in cooperatively developing the STIP portion for a particular metropolitan area or for a Federal Lands agency. If an MPO is able to produce a TIP that is SAFETEA-LU compliant, the Federal action would be to amend that TIP into the STIP, making the portion of the STIP that covers that region SAFETEA-LU compliant. Most of the national and regional advocacy organizations and most of the State DOTs commented that the deadline for transportation plan, STIP and TIP action should apply to State/MPO approval action rather than the FHWA/FTA conformity finding. The FHWA and the FTA issued guidance on “Clarification of Plan Requirements in Nonattainment and Maintenance Areas” on May 25, 2001. 11 Since the FHWA and the FTA do not determine conformity of STIPs, we are revising this section to eliminate conformity determinations. However, the rest of the rule language is consistent with current practice, and therefore, no other change was made. 11 This guidance document, “Clarification of Plan Requirements in Nonattainment and Maintenance Areas,” dated May 25, 2001, can be found via the internet at the following URL: http://www.fhwa.dot.gov/environment/conformity/planup_m.htm . Most of the commenters stated that 23 U.S.C. 135(b) requires only “updates” to reflect changes required by SAFETEA-LU after July 1, 2007, not “amendments.” The comments noted that requiring a STIP re-adoption for minor amendments would be a substantial burden and is a stricter interpretation of the statute than Congress intended. Prior to the adoption of this rule, there has not been an accepted definition of or distinction between the terms “update” or “amendment.” As established in Section 450.104 (Definitions) of this rule, the FHWA and the FTA consider an amendment to the STIP to be a major change to the transportation plan or program. The FHWA and the FTA believe that any major change to the transportation plan or program, whether called an “amendment” or an “update” under this regulation, is considered for this purpose an “update” as referenced in 23 U.S.C. 135(b). However, an “administrative modification” would not be covered by this requirement. This rule clarifies the definition of these terms for the future. One national and regional advocacy organization stated that Congress specified that the SAFETEA-LU phase-in period should begin on July 1, 2007, not be completed by that date. The FHWA and the FTA believe that this is an incorrect interpretation of the statute. The FHWA and the FTA agree that administrative modifications can be made to STIPs after July 1, 2007, but amendments or revisions that would add or delete a major new project to a TIP, STIP, or transportation plan would not be acceptable after July 1, 2007, in the absence of meeting the provisions and requirements of this part. This information has been included in paragraph (c). Subpart C—Metropolitan Transportation Planning and Programming Section 450.300 Purpose No comments were received on this section and no changes were made. Section 450.302 Applicability No comments were received on this section and no changes were made. Section 450.304 Definitions No comments were received on this section and no changes were made. Section 450.306 Scope of the Metropolitan Transportation Planning Process The docket included about 80 separate comments on this section with almost half from MPOs and COGs. Several national and regional advocacy organizations also commented on this section. Most of the remaining comments came from State DOTs and transit agencies. City/county governments and others also commented on this section. In comments on this section and § 450.206 (Scope of the statewide transportation planning process), many MPOs and COGs, some national and regional advocacy organizations and a few State DOTs noted that paragraph (a)(3) embellished the statutory language for the “security” planning factor. Organizations that commented on this issue were concerned that the expanded language would require State DOTs and MPOs to go far beyond their traditional responsibilities in planning and developing transportation projects, which was not intended by the SAFETEA-LU. The FHWA and the FTA agree and have revised the language in paragraph (a)(3) to match the language in the statute. After further review, the FHWA and the FTA have changed the word “should” to “shall” in paragraph (b) to be consistent with statutory language in 23 U.S.C. 134(h)(1) and 49 U.S.C. 5303(h)(1). Most of the State DOTs and several of the national and regional advocacy organizations that commented on similar text in § 450.206 (Scope of the statewide transportation planning process) said that the text in paragraph (b) of that section should be revised to be similar to the text in the October 1993 planning rule acknowledging that the degree of consideration will reflect the scales and complexity of issues within the State. The FHWA and the FTA agree with those comments and revised this section, as well, to be consistent. We have included the language from the October 1993 planning rule with one change. The phrase “transportation problems” was changed to “transportation system development.” After further review, we have clarified paragraph (c) to mirror the language in 23 U.S.C. 134(h)(2) and 49 U.S.C. 5303(h)(2). The paragraph now specifically refers to “any court under title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5 U.S.C. Chapter 5, or title 5 U.S.C. Chapter 7.” Some MPOs and COGs and a few national and regional advocacy organizations asked for clarification on the meaning of asset management principles and information on how to link them to performance measures. The FHWA and the FTA have changed “are encouraged to” to “may” in paragraph (e) to provide additional flexibility for MPOs, State DOTs, and public transportation operators to apply asset management principles appropriate to their individual context. If necessary, the FHWA and the FTA will provide additional non-regulatory guidance, training and technical assistance. Many of the State DOTs and a few of the national and regional advocacy organizations that provided comments on this topic said the text in paragraph (f) went beyond statutory requirements. The FHWA and the FTA agree with these comments and revised the rule accordingly by adding “to the maximum extent practicable” in paragraph (f). Most transit agencies, several State DOTs, MPOs and COGs, and others provided comments on the requirement in paragraph (g) for the metropolitan transportation planning process to be consistent with the development of coordinated public transit-human services transportation plans. In general, commenters requested additional information on the plans, who was responsible for developing the plans and how they were to be consistent. Some commenters recommended removing the requirement entirely. Communities have broad flexibility in determining the roles and responsibilities in this area, including selecting the organization charged with developing the coordinated public transit-human services transportation plan. The FHWA and the FTA encourage review of the proposed FTA Circulars for implementing the 49 U.S.C. 5310, 5316, and 5317 programs (New Freedom Program Guidance, The Job Access And Reverse Commute (JARC) Program, Elderly Individuals and Individuals With Disabilities Program), published on September 6, 2006. 12 Consistency between public transit-human services planning and the metropolitan transportation planning process is required. The provisions for promoting consistency between the planning processes were revised to clarify and add flexibility. In order to receive funding in title 49 U.S.C. Chapter 53, projects from the coordinated public transit-human services transportation plans must be incorporated into the metropolitan transportation plan, TIP and STIP. And, in areas with a population greater than 200,000, solicitation of projects for implementation from the public transit-human services transportation plan must be done in cooperation with the MPO. 12 These documents, “Elderly Individuals and Individuals With Disabilities, Job Access and Reverse Commute, and New Freedom Programs: Coordinated Planning Guidance for FY 2007 and Proposed Circulars” was published September 6, 2006, and are available via the internet at the following URLs: http://www.fta.dot.gov/publications/publications_5607.html or http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-14733.pdf . Several transit agencies and a few State DOTs and others suggested deleting the portion of paragraph (h) related to Regional Transit Security Strategies (RTSS) due to the confidential nature of these plans. Reference to the RTSS was removed from paragraph (h). Instead, we have added a reference to “other transit safety and security planning and review processes, plans, and programs, as appropriate.” Section 450.308 Funding for Transportation Planning and Unified Planning Work Programs There were a few comments on this section from MPOs and COGs. Those that commented on this section supported the flexibility provided in paragraph (d) and several requested clarification on issues such as the definition of “MPO staff,” and different processes expected of non-TMA and TMA MPOs. If necessary, the FHWA and the FTA will provide additional clarification through development of technical reports or guidance; however we did not make any changes to this section. Section 450.310 Metropolitan Planning Organization Designation and Redesignation The docket included about 30 separate comments on this section with the most coming from national and regional advocacy organizations. Most of the remaining comments came from State DOTs, MPOs and COGs. Local agencies also commented on this section. Several of the MPOs and COGs and national and regional advocacy organizations that provided comments on this section worried that the Census' continuous sample American Community Survey (ACS) would change the official populations in urbanized areas more often than once a decade, and recommended that paragraph (a) should specifically state that urbanized area populations be based only on each decennial Census. The Census Bureau historically has identified and defined the boundaries and official population of urbanized areas only in conjunction with each decennial Census. This practice will not change as a result of the ACS. The ACS is collected in a nationwide sample of households, and does not constitute a full enumeration of the U. S. population. Consequently, it does not provide the necessary basis for adjusting the boundaries of an urbanized area or revising its total population. Moreover, changing this paragraph would preclude the option for a fast growing urban area to request (and pay for conducting) a special mid-decade Census for the purpose of determining whether its population increased beyond the threshold for designation as an MPO or TMA. While this has been done infrequently in the past, the FHWA and the FTA do not want to prohibit this option. Therefore, no change was made to this paragraph. A few national and regional advocacy organizations and State DOTs had comments on paragraph (c), ranging from deleting language that they said went beyond statute to clarifying the phrase “to the extent possible” to including the public in designation. The language in this paragraph was carried forward from the October 1993 planning rule. However, the FHWA and the FTA agree that the implied regulatory standing was unclear. This paragraph has been changed to mirror the language in 23 U.S.C. 134(f)(2) and 49 U.S.C. 5303(f)(2). The intent of this paragraph is to encourage States to enact legislation that gives MPOs specific authority to carry out transportation planning for the entire metropolitan planning area they serve. Without such enabling legislation, MPOs may lack the necessary leverage to effectively coordinate transportation projects across local jurisdictions. A national and regional advocacy organization suggested language be added to paragraph (d) to encourage broad representation, especially from public transportation operators, on MPO policy boards. The statute (23 U.S.C. 134(d)(2)(B) and 49 U.S.C. 5303(d)(2)(B)) explicitly provides for public transportation agencies to be included on policy boards. To clarify this issue, paragraph (d) has been changed to better reflect the language in the statute. Further, we have added language to the rule to encourage MPOs to increase the representation of local elected officials and public transportation agencies on their policy boards, subject to the requirements of paragraph (k) of this section. After further review, we have changed the language in paragraph (e) from “should” to “shall” to be consistent with statute (23 U.S.C. 134(d)(1) and 49 U.S.C. 5303(d)(1)). A question was asked about the purpose of paragraph (f). This is not a new paragraph. In fact, it first appears in Federal statute (23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3)) as a means of “grandfathering” in those multimodal transportation agencies that were in existence at the time of enactment of ISTEA, which were serving many of the functions of an MPO. This paragraph continues to appear in the SAFETEA-LU (23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3), but was not explicitly included in past versions of the metropolitan transportation planning regulations. The FHWA and the FTA agree that it is no longer necessary and have removed it from the rule. Most agencies covered by the provisions of 23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3) have already been officially designated as an MPO, and this option still will have the force of law in the statute. Some commenters suggested that paragraph (g) (now paragraph (f)) should allow MPOs to use non-profit organizations for staff work. This paragraph brings forward the language from the October 1993 planning rule. Nothing in this paragraph prohibits an MPO from using the staff resources of other agencies, non-profit organizations, or contractors to carry out selected elements of the metropolitan planning process. However, to clarify this issue, we have added “non-profit organizations, or contractors” to this paragraph. A few MPOs recommended deleting “current MPO board members” as one definition for units of general purpose local government from paragraph (k) (now paragraph (j)). The FHWA and the FTA agree that allowing the option of “local elected officials currently serving on the MPO” to represent all units of general purpose local government for the purposes of redesignation could result in unintended problems. The FHWA and the FTA have deleted “local elected officials currently serving on the MPO” from this paragraph and moved the remaining text into the body of paragraph (j). Many of the State DOTs and a few of the national and regional advocacy organizations and MPOs and COGs that commented on this section had specific comments on paragraph (l) (now paragraph (k)) saying that the paragraph goes beyond statutory requirements and should be deleted and requesting clarification and minor word changes. The intent of this paragraph is that while an MPO may identify the need for redesignation, actual redesignation must be carried out in accordance with statutory redesignation procedures. The FHWA and the FTA have added language to this paragraph to clarify that redesignation is in accordance with the provisions of this section (§ 450.310). We have also modified paragraph (m) (now paragraph (l)) to reference the substantial change discussion in paragraph (k). The docket contained a comment in regards to paragraph (l) (now paragraph (k)) that § 4404 of the SAFETEA-LU provides specific designation and redesignation authority for the States of Alaska and Hawaii. Because § 4404 of the SAFETEA-LU does not apply universally to all MPOs, it is not included in the rule. Section 450.312 Metropolitan Planning Area Boundaries The docket included a few comments on this section with the most coming from MPOs and COGs and the remaining comments from State DOTs and national and regional advocacy organizations. Several of the comments provided general support for this section of the planning rule as written. A few of the comments related to paragraph (b) and asked for minor text changes or clarification on how the section may limit flexibility. The FHWA and the FTA revised the paragraph to make it more consistent with statutory text and, thus, it should not limit flexibility beyond statutory requirements. We also added a reference to the requirements in § 450.310(b) to reiterate that the MPA boundary may be established to coincide only if there is agreement of the Governor and the affected MPO in the same manner as is required for designating an MPO in the first place. One of the comments regarding paragraph (d) asked for clarification for requiring that the metropolitan planning area (MPA) boundary coincide with regional economic development or growth forecasting areas, in particular, for complex areas having multiple, non-coincident boundaries. This paragraph says that metropolitan planning boundaries “may” be established to coincide with regional economic and growth forecasting areas. This paragraph is permissive, not mandatory. Instead, this paragraph provides MPOs with the flexibility to allow their planning boundaries to coincide with other, established boundaries, but does not require them to do so. For clarification and simplicity, the word “the” was deleted from the beginning of this paragraph. In response to comments on this section, we have also clarified paragraph (h) to indicate that all boundary adjustments that change the composition of the MPO may require redesignation of one or more such MPOs, rather than only boundary changes that “significantly” change the composition of the MPO. Section 450.314 Metropolitan Planning Agreements The docket included more than 70 comments on this section, with the most coming from State DOTs, followed by MPOs and COGs. The remaining comments were from national and regional advocacy organizations, local agencies and public transportation providers. Most of the State DOTs and MPOs, many of the national and regional advocacy organizations, and a few of the public transportation providers and local agencies that commented on paragraph (a) expressed concern about an unintended burden resulting from the requirements outlined in this paragraph and requested clarification. Some suggested text changes such as using the term “memorandum of understanding” in place of “agreement.” The MPO agreements are intended to document the cooperative arrangements among the various agency participants that participate in the metropolitan transportation planning process. The FHWA and the FTA encourage a single agreement. However, the rule language has been changed to reflect the option for multiple agreements. Removing the implied requirement for a single written agreement should allow many current planning agreements to satisfy the provisions of this paragraph provided they are written documents. Many of the State DOTs that commented on this section said they find paragraph (a)(1) too prescriptive and redundant with requirements in other sections of the planning rule. On the other hand, several MPOs and COGs and national and regional advocacy organizations that provided comments on this section wrote to support the proposed rule language in this paragraph. The FHWA and the FTA believe the information in this paragraph is helpful to identify what shall be included in the written agreement(s). No change was made to this language, but it has been moved into the body of paragraph (a). Many of the State DOTs that commented on this section said they found paragraph (a)(2) too prescriptive and redundant with requirements in other sections of the planning rule. Several MPOs and COGs and national and regional advocacy organizations said they would like clarification or minor text changes in this paragraph. A small number of MPOs and COGs and national and regional advocacy organizations that provided comments on this section wrote to support the proposed rule language in this paragraph. The FHWA and the FTA removed this paragraph from the final rule since the issues are adequately addressed in § 450.316 (Interested parties, participation, and consultation). The docket includes a comment on this section objecting to the requirement in paragraph (f) that a planning agreement between two or more MPOs serving part of a TMA shall address specific TMA requirements, such as the suballocation of Surface Transportation Program (STP) funds. The FHWA and the FTA revised the final rule to clarify that the entire adjacent urbanized area does not need to be treated as a TMA. However, a written agreement shall be established between the MPOs with MPA boundaries including a portion of the TMA, which clearly identifies the roles and responsibilities of each MPO in meeting specific TMA requirements (e.g. congestion management process, STP funds suballocated to the urbanized area over 200,000 population, and project selection). Representatives of State DOTs and private bus operators requested the inclusion of detailed methodologies for engaging private service providers in the transportation planning process, as well as standards for ascertaining compliance with private enterprise provisions and a complaint process. To ensure maximum flexibility for localities to tailor programs to the needs of private service providers in their areas, the FHWA and the FTA will use non-regulatory guidance, training, and technical assistance, as necessary, for disseminating information on optional approaches to private sector participation. Section 450.316 Interested Parties, Participation, and Consultation The FHWA and the FTA received more than 80 comments on this section with the most coming from MPOs and COGs, followed by national and regional advocacy organizations. Public transportation providers, State DOTs and local agencies also provided comments on this section. In general, many of the MPOs and some of the others who provided comments on this section said that they supported the rule as written or with minor changes. A few MPOs in regards to paragraph (a) asked about the difference between the participation plan identified in this rule and the public involvement plan under the prior two authorizations, the ISTEA and the TEA-21. The participation plan in this section has several elements not required of the public involvement plan: the participation plan shall be developed in consultation with all interested parties; and the participation plan shall include procedures for employing visualization techniques and making public information available in electronically accessible formats and means. There were a variety of comments regarding the list of interested parties in paragraph (a) from several MPOs and COGs, national and regional advocacy organizations and public transportation providers. The comments ranged from specifically including additional groups by reference to adding “non-citizens” or “the public” and “limited English proficiency” to adding definitions for the groups that are in the list to making the list optional. The FHWA and the FTA find that, with a general reference to “other interested parties,” MPOs have adequate flexibility to develop and implement a participation plan that provides an appropriate list of interested parties for their individual metropolitan area. MPOs are encouraged to broaden the list of interested parties beyond those listed in statute, as appropriate. The list in the rule has been modified to match the language in the statute (23 U.S.C. 134(i)(5) and 49 U.S.C. 5303(i)(5)). No additional groups were added. The FHWA and the FTA note that 49 U.S.C. 5307(c) requires grant recipients to make available to the public information on the proposed program of projects and associated funding. Representatives of a State DOT and private bus operators requested the inclusion of detailed methodologies for engaging private service providers in the transportation planning process, as well as standards for ascertaining compliance with private enterprise provisions and a complaint process. These commenters also requested that the private bus operators be specifically included in the list of interested parties. To ensure maximum flexibility for localities to tailor programs to the needs of private service providers in their areas, we will rely upon non-regulatory guidance, training, and technical assistance for disseminating information on optional approaches to private sector participation. A Federal agency commented that the public or an agency should be able to identify itself to the MPO as an appropriate contact without having to be identified to participate by the MPO. The FHWA and the FTA agree. If an MPO is approached, the MPO should consider the request and determine whether the consultation is appropriate. We believe that this flexibility is allowed within the existing rule language. No change has been made to this section of the rule. A few MPOs and COGs that commented on this section asked for a definition of “reasonable access” under paragraph (a)(1)(ii). This requirement carries forward what was in the October 1993 planning rule. The FHWA and the FTA find that MPOs have had adequate flexibility to define “reasonable access” when they developed and revised their public involvement plan and will continue to have that flexibility with the requirements for a participation plan. This definition was not added to the rule. Many MPOs and COGs and some of the other organizations that commented on this section wrote to support the requirement for employing visualization in paragraph (a)(1)(iii). Several MPOs and COGs asked for clarification or subsequent guidance on effective and appropriate use of visualization techniques. The FHWA and the FTA agree that there is a need for more technical information on the use of visualization techniques and will provide technical reports and non-regulatory guidance, as necessary, subsequent to the publication of this rule. A few MPOs and COGs said in reference to paragraph (a)(1)(iv) that making technical information available could be overly burdensome. This requirement conforms to the requirement in statute (23 U.S.C. 134 (i)(5) and 49 U.S.C. 5303(i)(5)). MPOs have flexibility to define specific techniques for making information available when they develop and revise their public participation plan. Several MPOs and COGs and a public transportation provider wrote in reference to paragraph (a)(1)(vi) that the term “explicit consideration” could be burdensome and needs clarification. This language was similar to a requirement under the public involvement plan and based on that experience, the FHWA and the FTA believe that MPOs have adequate flexibility to define specific techniques when they develop and revise their public participation plan. If needed, the FHWA and the FTA will provide subsequent i [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A07-493. Public record. Not legal advice.