Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning

Federal RegisterJun 2, 2014

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 450

Federal Transit Administration

49 CFR Part 613

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

Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

The FHWA and the FTA are jointly issuing this NPRM to propose revisions to the regulations governing the development of metropolitan transportation plans and programs for urbanized areas, State transportation plans and programs, and the congestion management process. The changes reflect recent passage of the Moving Ahead for Progress in the 21st Century Act (MAP-21). The MAP-21 continues many provisions related to transportation planning from prior laws; however, it introduces transformational changes and adds some new provisions. The proposed rule would make the regulations consistent with current statutory requirements and proposes the following: A new mandate for State departments of transportation (States) and metropolitan planning organizations (MPO) to take a performance-based approach to planning and programming; a new emphasis on the nonmetropolitan transportation planning process, by requiring States to have a higher level of involvement with nonmetropolitan local officials and providing a process for the creation of regional transportation planning organizations (RTPO); a structural change to the membership of the larger MPOs; a new framework for voluntary scenario planning; revisions to the integration of the planning and environmental review process; and a process for programmatic mitigation plans.

DATES:

Comments must be received on or before September 2, 2014. Late-filed comments will be considered to the extent practicable.

ADDRESSES:

Mail or hand deliver comments to: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, or submit electronically at

http://www.regulations.gov,

or fax comments to (202) 493-2251. All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or may print the acknowledgment page that appears after submitting comments electronically. Anyone is able to search the electronic form of all comments in any one of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, or labor union). You may review the U.S. Department of Transportation's (DOT) complete Privacy Act Statement in the

Federal Register

published on April 11, 2000 (65 FR 19477).

Electronic Access and Filing

This document and all comments received may be viewed online through the Federal eRulemaking portal at

http://www.regulations.gov.

The Web site is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at:

https://www.federalregister.gov.

FOR FURTHER INFORMATION CONTACT:

For the FHWA: Mr. Harlan W. Miller, Planning Oversight and Stewardship Team (HEPP-10), (202) 366-0847; or Ms. Anne Christenson, Office of the Chief Counsel (HCC-30), (202) 366-1356. For the FTA: Ms. Sherry Riklin, Office of Planning and Environment, (202) 366-5407; Mr. Dwayne Weeks, Office of Planning and Environment, (202) 493-0316; or Mr. Christopher Hall, Office of Chief Counsel, (202) 366-5218. Both agencies are located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m., e.t. for FHWA, and 9 a.m. to 5:30 p.m., e.t. for FTA, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents for

SUPPLEMENTARY INFORMATION

I. Executive Summary

II. Background

III. Major Proposed Revisions to the Planning Rule

IV. Section-by-Section Discussion

V. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose of the Regulatory Action

The MAP-21 (Pub. L. 112-141) transforms the Federal-aid highway program and the Federal transit program by requiring a transition to performance-driven, outcome-based approaches to key areas. With respect to planning, although MAP-21 leaves the basic framework of the planning process largely untouched, the statute introduces critical changes to the planning process itself by requiring States, MPOs, and providers of public transportation to link investment priorities (the transportation improvement program of projects) to the achievement of performance targets that they would establish to address performance measures in the key areas such as safety, infrastructure condition, congestion, system reliability, emissions, and freight movement.

Accordingly, this proposed rule is central to the implementation of the overall performance management framework created by MAP-21. Additional changes include a new emphasis on nonmetropolitan transportation planning, changes to the structure of MPOs that serve a transportation management area (TMA), and codification of some existing best practices.

B. Summary of the Major Provisions of the Regulatory Action in Question

As a fundamental element of a performance management framework, States, MPOs, and providers of public transportation will need to establish targets in key national performance areas to document expectations for future performance. This NPRM proposes in 23 CFR 450.206 and 450.306 that States, MPOs, and providers of public transportation coordinate their targets. The MAP-21 requires that MPOs reflect those targets in their metropolitan transportation plan and encourages States to do the same in their long-range statewide transportation plan. Accordingly, this NPRM proposes that MPOs would reflect those targets in the metropolitan transportation plans. In addition, FHWA and FTA propose that States should reflect the targets in their long-range statewide transportation plans. Both States and MPOs would describe the anticipated effect toward achieving the targets in their respective transportation improvement programs.

In addition to these proposed changes to the planning provisions, MAP-21 contains new performance-related provisions requiring States, MPOs, and public transportation providers to

develop other performance-based plans and processes. This NPRM proposes in §§ 450.206 and 450.306 that MPOs and States must integrate the goals, objectives, performance measures, and targets of other performance-based plans and processes into their planning processes.

This proposal also places a new emphasis on the importance of nonmetropolitan transportation planning. Proposed §§ 450.208 through 450.210 and 450.216 require the States to work more closely with nonmetropolitan areas. Additionally, this NPRM proposes that States should have the option of designating RTPOs to help address the planning needs of the nonmetropolitan areas of the State.

The MAP-21 made two changes specific to the metropolitan planning process. The first change affects the policy board structure of large MPOs. For each MPO serving a TMA, the planning statutes and current planning regulations identify a list of government or agency officials that must be on that policy board. Consistent with MAP-21, this NPRM proposes in § 450.310 to add representation by providers of public transportation to this list of officials. The second change proposes in § 450.324 of this NPRM that MPOs may use scenario planning, an analytical framework to inform decisionmakers about the implications of various investments and policies on transportation system condition and performance, during the development of their plan. Both of these proposed changes will support the effective implementation of a performance-based planning process.

In addition to changing the planning statutes, MAP-21 continues efforts to expedite project delivery through better coordination between the transportation planning process and the environmental review process. Section 1310 of MAP-21 creates an additional process for integrating planning and the environmental review activities, but also preserves other authorities for integration. Sections 450.212 and 450.318 of the planning regulations are among those pre-MAP-21 authorities. Together with implementing regulations for the National Environmental Policy Act of 1969

adopted by the President's Council on Environmental Quality

and the FHWA and FTA,

§§ 450.212 and 450.318 have long provided pathways for using transportation planning information and decisions in the environmental review process. With one exception, FHWA and FTA propose to retain the existing regulatory provisions in §§ 450.212 and 450.318, as well as the guidance in Appendix A. The agencies will address implementation of section 1310 of MAP-21 and any needed updates to provisions on pre-MAP-21 integration authorities through separate rulemaking or guidance. The exception is the proposed deletion of paragraph (d) of § 450.318 due to revisions made to 49 U.S.C. 5309 by MAP-21 (references to mandatory Alternatives Analysis within Appendix A are also proposed to be removed consistent with those changes). More specifically, MAP-21 removed the requirement for a stand-alone alternatives analysis for projects that seek section 5309(d) or (e) funding. In addition, the proposed new sections 450.214 and 450.320 would provide guidance on the optional development of programmatic mitigation plans for use during the project development and environmental review process.

42 U.S.C. 4321, et seq.

40 CFR parts 1500-1508.

23 CFR part 771.

Summary—Key Changes Proposed to the Planning Rule by This NPRM

Proposed change

Description

Key regulatory section(s)

Performance Based Planning and Programming

The statewide and metropolitan transportation planning processes shall provide for the use of a performance-based approach to transportation decisionmaking to support the national goals described in 23 U.S.C. 150(b) and the general purposes described in 29 U.S.C. 5301. These processes are where decisionmaking and investment priorities would be linked to targets in key areas. See 23 U.S.C. 150 and 49 U.S.C. 5326 and 5329

23 CFR 450.206(c), 23 CFR 450.208(g), 23 CFR 450.216(f), 23 CFR 450.218(r), 23 CFR 450.226, 23 CFR 450.300(a), 23 CFR 450.306(a), 23 CFR 450.306(d), 23 CFR 450.314(a), 23 CFR 450.314(e), 23 CFR 450.314(g), 23 CFR 450.324(f)(3), 23 CFR 450.324(f)(4), 23 CFR 450.324(i)(1)(iii), 23 CFR 450.324(i)(2), 23 CFR 450.326(c), 23 CFR 450.326(d), 23 CFR 450.340.

New emphasis on the importance of nonmetropolitan transportation planning

A State may establish and designate Regional Transportation Planning Organizations (RTPOs)

State consultation with nonmetropolitan local officials in the statewide planning process becomes State cooperation with nonmetropolitan local officials or, if appropriate, RTPOs

23 CFR 450.210(d).

23 CFR 450.208(a)(4), 23 CFR 450.210(b), 23 CFR 450.216(g), 23 CFR 450.218(c), 23 CFR 45.222(c).

Changes specific to the metropolitan planning process

MPOs that serve an area designated as a TMA shall include representation by providers of public transportation

MPOs may use scenario planning during the development of their plan

23 CFR 450.310(d)(1)(ii).

23 CFR 450.324(i).

Programmatic Mitigation

States and MPOs may develop programmatic mitigation plans to address potential environmental impacts of future transportation projects as part of the statewide or metropolitan transportation planning process

23 CFR 450.214, 23 CFR 450.320.

C. Costs and Benefits

The FHWA and FTA expect that the proposed regulatory changes to the planning process would improve decisionmaking through increased transparency and accountability and support the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301. The FHWA and FTA have not been able to find data or empirical studies to assist it in monetizing or quantifying the benefits of this NPRM. In addition, estimates of the benefits of this NPRM would be difficult to develop. The proposed rule would promote transparency by requiring the establishment of performance targets in key areas, such as safety, infrastructure condition, system reliability, emissions,

and congestion, and by expressly linking investment decisions to the achievement of such targets. This would be documented in plans or programs developed with public review. The proposal would establish accountability through mandating reports on progress toward meeting those targets.

Other elements of the proposal also would improve decisionmaking, such as representation by providers of public transportation on each MPO that serves a TMA, updating the metropolitan planning agreements, requiring States to have a higher level of involvement with nonmetropolitan local officials, and providing an optional process for the creation of RTPOs.

The FHWA and FTA estimate the total cost of this proposed rule is $30.8 million annually. To implement the proposed changes in support of a more efficient, performance-based planning process, FHWA and FTA estimate that the aggregate increase in costs attributable to the proposed rulemaking for all 52 States

and 420 (estimated) MPOs is approximately $28.3 million per year. These costs are primarily attributable to an increase in staff time needed to meet the proposed requirements. For the estimated 600 total providers of public transportation that operate within metropolitan planning areas, the cost would be $2.4 million per year in total. The total Federal, State, and local cost of the planning program is $1,166,471,400. As the cost burden of this rule is estimated to be 2.6 percent of the total planning program, FHWA and FTA believe the economic impact of this rulemaking would be minimal and the benefits of implementing this rulemaking would outweigh the costs.

This number (52 States) includes the 50 States, the District of Columbia, and Puerto Rico. This is consistent with the definition of “States” in the current and proposed regulations at 23 CFR 450.104.

Summary of Average Annual Regulatory Costs and Burden Hours of Effort

Entity

Total

additional

cost

Non-Federal

(20%)

Average

additional

person hours

per agency

TMA MPOs (210)

$18,402,300

$3,680,500

1,800

Non-TMA MPOs (210)

3,909,200

781,800

400

States (52)

6,075,800

1,215,200

2400

Providers of Public Transportation (600)

2,440,000

488,000

100

Total

30,827,300

6,165,500

II. Background

1. Introduction to the Planning Process

The Statewide and Nonmetropolitan Transportation Planning program and the Metropolitan Transportation Planning program provide funding to support cooperative, continuous, and comprehensive (3-C) planning for making transportation investment decisions throughout each State—both in metropolitan and nonmetropolitan areas. Since the 1962 Federal-aid Highway Act,

Federal authorizing legislation for expenditure of surface transportation funds has required metropolitan and statewide transportation plans and transportation improvement programs to be developed through a 3-C planning process. Over successive reauthorization cycles, including the passage of MAP-21 in July 2012, Congress has revised and expanded the requirements for 3-C planning.

Public Law 87-866, 76 Stat. 1145 (1962).

The Statewide and Nonmetropolitan Transportation Planning Process

States must undertake a 3-C statewide transportation planning process to develop a multimodal long-range statewide transportation plan and a statewide transportation improvement program (STIP).

The long-range statewide transportation plan must provide for the development of transportation facilities that function as an intermodal State transportation system and must cover at least a 20-year planning horizon at the time of adoption by the State. There is not a required update cycle for the long-range statewide transportation plan. When developing a plan, States need to cooperate with the MPOs in the metropolitan areas. In nonmetropolitan areas, States must cooperate with local elected officials who have the responsibility for transportation. Some States may have regional planning organizations to help support the planning process in nonmetropolitan areas. States also must provide an opportunity for public comment on the long-range statewide transportation plan. As part of public engagement, FHWA and FTA encourage States to include minority and low-income populations and otherwise incorporate environmental justice principles into the statewide and nonmetropolitan planning process and documents as appropriate.

See 23 U.S.C. 135.

In addition, States must develop a federally approved STIP at least once every 4 years. The STIP contains a 4-year program of projects, and must be consistent with the long-range statewide and metropolitan transportation plans. The STIP must incorporate the transportation improvement programs (TIPs) developed by MPOs either directly or by reference without alteration. Finally, the STIP must identify the source of funding that is reasonably expected to be available to support the program of projects in the STIP. When the State submits the STIP to FHWA and FTA for approval, the State must certify that the metropolitan and statewide and nonmetropolitan transportation planning processes are in compliance with applicable requirements. The FHWA and FTA will approve the STIP if they jointly determine that the STIP substantially meets the statewide and nonmetropolitan transportation planning requirements.

The Metropolitan Transportation Planning Process

Metropolitan transportation planning occurs in urbanized areas with a population of 50,000 or greater.

An MPO is the policy board of the organization created and designated by the Governor and local officials to carry out the metropolitan planning process in an urbanized area. The boundary of the metropolitan planning area covered by the MPO planning process is established by agreement between the Governor and the MPO and, in general, encompasses the current urbanized area

and the area to be urbanized during a 20-year forecast period. Certain urbanized areas—generally those over 200,000 in population—are designated as TMAs.

23 U.S.C. 134.

An MPO establishes the investment priorities of Federal transportation funds in its metropolitan areas through the metropolitan transportation plan and TIP. Each MPO, regardless of size, must prepare a metropolitan transportation plan and update it every 4 or 5 years. The plan must cover at least a 20-year planning horizon at the time of adoption by the MPO. Before it adopts its plan, the MPO must provide a reasonable opportunity for public comment on the plan's content. As part of public engagement, FHWA and FTA encourage MPOs to include minority and low-income populations and otherwise incorporate environmental justice principles into the metropolitan planning process and documents as appropriate.

The MPO, in cooperation with the State and providers of public transportation, must also develop a TIP. The TIP is a prioritized listing/program of transportation projects covering a period of 4 years, and must include a financial plan that describes the source of funding that would be reasonably expected to be available to support the projects in the TIP. The MPO must update and approve the TIP at least once every 4 years. Prior to approving the TIP, the MPO must provide a reasonable opportunity for public comment on the TIP. The TIP also is subject to approval by the Governor. When the MPO submits the TIP to the State, the MPO must certify that the metropolitan transportation planning process is in compliance with applicable requirements.

In the TMAs, the metropolitan transportation planning process also must include a congestion management process (CMP).

The CMP provides for the effective management of new and existing transportation facilities through the use of travel demand reduction and operational strategies.

23 U.S.C. 134(k)(3).

The FHWA and FTA must certify the transportation planning process in TMAs at least once every 4 years. During that certification process, FHWA and FTA will review whether the process complies with the metropolitan transportation planning requirements, including the new MAP-21 requirements.

2. What Does MAP-21 Do?

The MAP-21 leaves the basic framework of the planning process, as described above, largely untouched. However, MAP-21 introduces transformational changes to the planning process to increase transparency and accountability.

Most significantly, States and MPOs now must take a performance-based approach to planning and programming, linking investment decisionmaking to the achievement of performance targets.

Along with its emphasis on performance-based planning and programming, MAP-21 emphasizes the nonmetropolitan transportation planning process by requiring States to have a higher level of involvement with nonmetropolitan local officials and providing for the optional creation of RTPOs. The MAP-21 also makes some structural changes to the membership of the MPOs that serve a TMA. Finally, MAP-21 includes voluntary provisions related to scenario planning and developing programmatic mitigation plans. Many of these non-performance management changes codify existing best planning practices.

MAP-21 sections 1201 and 1202 revising 23 U.S.C. 134 and 135; MAP-21 sections 20005 and 20006 revising 49 U.S.C. 5303 and 5304.

By October 1, 2017, the Secretary of Transportation must submit to Congress a report evaluating the overall effectiveness of performance-based planning and the effectiveness of the performance-based planning process of each State and MPO. In addition, the Secretary will be required to report on the extent to which the MPOs have achieved the performance targets. 23 U.S.C. 134(l) and 135(h)(2) and 49 U.S.C. 5303(l) and 5304(h)(2).

3. Stakeholder Engagement

Beginning in 2009, FHWA and FTA initiated a series of peer exchanges, conferences, and workshops to develop a framework for performance-based planning and programming. These sessions explored how States, MPOs, regional planning organizations, and providers of public transportation were implementing performance-based planning and programming, both individually and in concert with their planning partners and stakeholders. During FHWA's and FTA's outreach efforts, the States and MPOs emphasized the need to integrate performance-based planning and programming into the existing, long-standing planning processes, and to avoid creating a separate or distinct process for performance-based planning.

After the passage of MAP-21, FHWA and FTA continued to engage stakeholders to discuss how FHWA and FTA could best implement the various MAP-21 changes to the planning process. This outreach included ongoing workshops on performance-based planning and programming, general and topic-based Webinars, an online dialogue, and participation at stakeholder meetings and conferences. The FHWA and FTA hosted Webinars on the planning provisions of MAP-21, as well as specific topics such as performance-based planning and programming. Participants in the Webinars included States, MPOs, and providers of public transportation.

The FTA also conducted an online dialogue on the topic of TMA MPO structure and the new MAP-21 requirement to include representation by providers of public transportation in that structure. Issues raised in the dialogue included voting representation and determining the process for inclusion of providers of public transportation on MPOs. A transcript from this online dialogue is included with the docket for this NPRM.

A list of the various stakeholder outreach initiatives, including any notes, meeting minutes, or recordings taken during the outreach, and comments received prior to publication, if any, are included in the docket for this NPRM. External stakeholders frequently commented on the need for flexibility and simplicity in implementing MAP-21 requirements given the varying size, capabilities, and operating environments of States, MPOs, and providers of public transportation. Stakeholders also expressed concerns regarding potential difficulties, uncertainties, and risks associated with implementing new provisions such as performance-based planning and programming.

III. Major Proposed Revisions to the Planning Rule

A. Performance-Based Planning and Programming

The MAP-21 transforms the Federal-aid highway program and the Federal transit program by requiring a transition to a performance-driven, outcome-based program that provides for a greater level of transparency and accountability, improved project decisionmaking, and more efficient investment of Federal transportation funds.

As part of this new performance-based approach, recipients of Federal-aid highway program funds and Federal transit funds would be required to link the investment priorities contained in the STIP and TIP to achieving performance targets. This proposed rule is one of several proposed rules that would establish the basic elements of a performance driven, outcome-based program. This proposed rule is

important to the FHWA's and FTA's overall implementation of the performance management provisions of MAP-21 because the planning process brings all of the elements together by tying performance to investment decisionmaking.

See, e.g., 23 U.S.C. 150(a).

Several MAP-21 provisions administered by FHWA and FTA focus on the achievement of performance outcomes. In implementing these provisions, FHWA and FTA are undertaking a number of separate but related rulemakings. This NPRM addresses the metropolitan transportation planning and statewide and nonmetropolitan transportation planning provisions of MAP-21. Additional FHWA and FTA performance-related rules include: Federal-aid Highway Performance Measure Rules [RIN 2125-AF49, 2125-AF53, 2125-AF54], updates to the Highway Safety Improvement Program Regulations [RIN 2125-AF56], Federal-aid Highway Risk-Based Asset Management Plan Rule for the National Highway System (NHS) [RIN 2125-AF57], Transit Asset Management Rule [RIN 2132-AB07], and National and Public Transportation Safety Plans Rule [RIN 2132-AB20].

A more detailed discussion of these related rulemakings is included in FHWA's first proposed Federal-aid Highway Performance Measure Rule, which is available online at

www.fhwa.dot.gov/tpm/.

The FTA anticipates publishing a consolidated Advance Notice of Proposed Rulemaking that will present the two transit rules under RIN 2132-AB20.

Another performance-related rule issued by the National Highway Traffic Safety Administration is the Uniform Procedures for State Highway Safety Grant Programs, Interim Final Rule, 78 FR 4986 (January 23, 2013) (to be codified at 23 CFR part 1200).

These performance-related rules for the various FHWA and FTA programs will implement the basic elements of a performance management framework, such as establishment of performance measures and targets and reporting requirements. The planning process brings these elements together—it is where States, MPOs, and providers of public transportation will link decisionmaking and investment priorities to performance targets in key areas.

The FHWA and FTA will establish national performance measures in key areas, including safety, infrastructure condition, congestion, system reliability, emissions, and freight movement.

In addition to establishing targets related to the performance measures identified in Title 23 and Chapter 53 of Title 49, States and MPOs may establish targets related to locally created measures.

See 23 U.S.C. 150(b) and 49 U.S.C. 5326(c) and 5329.

The performance management framework requires States, MPOs, and providers of public transportation to use these measures to establish targets in these key national performance areas to document expectations for future performance.

The proposed regulatory changes in §§ 450.206 and 450.306 mandate States and MPOs, respectively, to coordinate their targets with each other to ensure consistency, to the maximum extent practicable. In addition, for transit-related targets, States and MPOs would need to coordinate their targets relating to safety and state of good repair with providers of public transportation to ensure consistency with other performance-based provisions applicable to transit providers, to the maximum extent practicable. This coordination through the planning process should help align MPO and State decisionmaking and advance performance outcomes for the States.

See 23 U.S.C. 134(h)(2), 23 U.S.C. 135(d)(2), 49 U.S.C. 5303(h)(2), and 49 U.S.C. 5304(d)(2).

The FTA and FHWA request public comment on the following questions relating to target-setting: What obstacles do States, MPO and transit providers foresee to the coordination among them that is necessary in order to establish targets? What mechanisms currently exist or could be created to facilitate coordination? What role should FHWA and FTA play in assisting States, MPOs and transit providers in complying with these new target-setting requirements? What mechanisms exist or could be created to share data effectively amongst States, MPOs and transit providers? For those States, MPOs and transit providers that already utilize some type of performance management framework, are there best practices that they can share?

Once performance targets are selected, MAP-21 requires that MPOs reflect those targets in their metropolitan transportation plans and encourages States to do the same. Accordingly, this NPRM proposes

that, in their transportation plans, MPOs would need to describe these performance targets, evaluate the condition and performance of the transportation system, and report on progress toward the achievement of their performance targets.

In addition, States should include similar information in their transportation plans.

Importantly, as part of the State and MPO program of projects (the STIPs and TIPs, respectively), the States and MPOs would need to describe, to the maximum extent practicable, the anticipated effect of the investment priorities (or their program of transportation improvement projects) toward achieving the performance targets.

As the long-range plans, STIPs, and TIPs direct investment priorities, it is critical to ensure that performance targets are considered during the development of these documents.

See

proposed §§ 450.216, 450.218, 450.324 and 450.326.

See

23 U.S.C. 134(i)(2) and 49 U.S.C. 5303(i)(2).

23 U.S.C. 135(f)(7) and 49 U.S.C. 5304(f)(7).

See

23 U.S.C. 134(j)(2)(D), 23 U.S.C. 135(g)(4), 49 U.S.C. 5303(j)(2)(D), and 49 U.S.C. 5304(g)(4).

The MAP-21 performance-related provisions also require States, MPOs, and public transportation providers to develop other performance-based plans and processes or impose new requirements on existing performance-based plans and processes. These performance-based plans and processes include the Congestion Mitigation and Air Quality Improvement (CMAQ) Program performance plan,

the strategic highway safety plan,

the public transportation agency safety plan,

the highway and transit asset management plans,

and, optionally, a State freight plan.

This NPRM proposes in §§ 450.206 and 450.306 that MPOs and States integrate the goals, objectives, performance measures, and targets of these other performance plans and processes into their planning process.

This integration would help ensure that key performance elements of these other performance plans are considered as part of the investment decisionmaking process.

See

23 U.S.C. 149.

See

23 U.S.C. 130 and 148.

See

49 U.S.C. 5329.

See

23 U.S.C. 119 and 49 U.S.C. 5326.

See

MAP-21 Section 1118.

See

23 U.S.C. 134(h)(2)(D), 23 U.S.C. 135(d)(2)(C), 49 U.S.C. 5303(h)(2)(D), and 49 U.S.C. 5304(d)(2)(C).

The metropolitan planning agreement helps facilitate the working relationship among MPOs, States, and providers of public transportation. In this NPRM, FHWA and FTA propose to amend § 450.314 to require that MPOs include a description in their metropolitan planning agreements that identifies how the parties would cooperatively implement these performance-based planning provisions. The amended metropolitan planning agreements would identify the coordinated processes for the collection of performance data, the selection of performance targets for the metropolitan area, the reporting of metropolitan area targets, and the reporting of actual system performance related to those targets. The agreements would also describe the roles and responsibilities

for the collection of data for the NHS. Including this description is critical because of the new requirements for a State asset management plan for the NHS and establishment of performance measures and targets.

Federal-aid Highway Risk-Based Asset Management Plan Rule for the National Highway System (NHS) [RIN 2125-AF57].

The FHWA and FTA seek public comment on how regional planning coordination can be further improved in situations where multiple MPOs serve one or several adjacent urbanized areas. Additionally, FHWA and FTA seek public comment on additional mechanisms that could be created to improve regional coordination in situations where there may be multiple MPOs serving a common urbanized area or adjacent urbanized areas.

B. New Emphasis on Nonmetropolitan Transportation Planning

As indicated by the change in the title to the statutory section, MAP-21 places a new emphasis on the importance of nonmetropolitan transportation planning. The MAP-21 requires the States to work more closely with nonmetropolitan areas. It also gives States the opportunity to designate RTPOs to help address the planning needs of the nonmetropolitan area of the State.

Prior to MAP-21, when developing the long-range statewide transportation plan and the STIP, the State was required to consult with nonmetropolitan local officials, which meant that the State would confer with nonmetropolitan local officials and consider their views.

Under MAP-21 and these proposed regulations, States retain decisionmaking authority, but would be required to cooperate with nonmetropolitan local officials, which means that they would be required to work together to achieve a common outcome.

Changing from “consultation” to “cooperation” means States would need to work more closely with nonmetropolitan local officials in the development of the long-range statewide transportation plan and the STIP.

See

23 CFR 450.104.

See

23 CFR 450.104.

To support States' efforts to cooperate with nonmetropolitan areas, MAP-21 provides a more formal framework for States to optionally designate and establish RTPOs.

States have long had the option of establishing regional planning organizations to conduct transportation planning in nonmetropolitan areas, and several States have successfully done so. The MAP-21 codifies this best practice by formally providing for RTPOs. This NPRM proposes in § 450.210 that States may designate and establish RTPOs, and that the duties of the RTPO include the development and maintenance of regional long-range multimodal transportation plans and regional TIPs and fostering the coordination of local planning. These regional plans and programs, along with public involvement, would assist the State in development of the long-range statewide transportation plan and the STIP.

See

23 U.S.C. 135(m) and 49 U.S.C. 5304(l).

C. Additions to the Metropolitan Planning Process

The MAP-21 made two changes specific to the metropolitan planning process—one change affects the policy board structure of large MPOs, and the second establishes a process for scenario planning. Both of these changes would support the effective implementation of a performance-based planning process.

First, for each MPO serving a TMA, the planning statutes and current planning regulations identify a list of government or agency officials that must be on that policy board, including local elected officials, administrators or operators of major modes of transportation, and appropriate State officials. The MAP-21 specifically identifies in this list

representatives of providers of public transportation. This proposal would add representatives of providers of public transportation to the list of officials in § 450.310. This NPRM proposes that representatives of providers of public transportation would have equal decisionmaking rights and authorities as other officials who are on the policy board of an MPO that serves a TMA. It is up to the MPO, in cooperation with providers of public transportation, to determine how this representation will be structured and established. The MPOs can restructure to meet this requirement without being redesignated by the Governor and local officials.

23 U.S.C. 134(d) and 49 U.S.C. 5303(d).

Including public transportation representation on each MPO serving a TMA supports the new performance requirements for providers of public transportation, including the coordination of MPO targets with providers of public transportation, the coordination of public transportation provider targets with MPOs, and the integration of public transportation performance plans into the metropolitan transportation planning process.

Second, this NPRM proposes in § 450.324 that MPOs may use scenario planning during the development of their metropolitan transportation plans.

Scenario planning is currently used by many MPOs as part of their transportation planning process, and FHWA and FTA consider it a best practice.

23 U.S.C. 134(i)(4) and 49 U.S.C. 5303(i)(4).

FHWA and FTA have developed resources on scenario planning such as case studies and a Guidebook that are available at:

https://www.fhwa.dot.gov/planning/scenario_and_visualization/scenario_planning.

DOT has incorporated climate change scenarios, sustainability, and resilience into best practices documents DOT shares with the States and MPOs. Examples include the Cape Cod and the New Mexico climate scenario planning projects case studies that are available at:

www.volpe.dot.gov/interagencypilotproject.html

and

www.volpe.dot.gov/nmscenarioplanning.

Scenario planning is an analytical framework that evaluates the effects of alternative policies, plans and/or programs on the future of a community or region. Scenario planning informs decision makers and the public on the potential implications of various transportation system investments and performance. Scenario planning may consider potential regional investment strategies, distribution of population and employment, land use, future climate scenarios, system performance measures including locally developed measures, and the relationship between investments and local priorities. A defining characteristic of successful scenario planning is that it actively involves the public, the business community, and elected officials on a broad scale, educating them about, and incorporating their values and feedback into future plans.

The FHWA's and FTA's proposal encourages MPOs to use scenario planning during development of the transportation plan. If used, it should include an analysis of how the preferred scenario maintains or improves transportation system condition and performance. Use of scenario planning can improve the effectiveness of a performance management approach because it allows decisionmakers to understand alternative approaches to achieving their performance targets and optimize the use of limited transportation funds.

D. Programmatic Mitigation

In addition to revising the planning statutes, MAP-21 provides an array of provisions designed to increase innovation and improve efficiency, effectiveness, and accountability in the planning, design, engineering, construction, and financing of transportation projects. These provisions continue efforts to expedite project delivery through better

coordination between the transportation planning process and the environmental review process pursuant to the National Environmental Policy Act.

42 U.S.C. 4321, et seq.

The MAP-21 creates a new statutory framework for the optional development of programmatic mitigation plans as part of the planning process for use during the environmental review process.

Use of these plans can expedite project development because the plans provide opportunities for early consideration of environmental resources at a statewide, regional, or corridor level and identify options for mitigating impacts to environmental resources. Prior to the passage of MAP-21, States and MPOs could develop programmatic environmental mitigation plans as part of the statewide metropolitan transportation planning processes.

These new provisions would create a regulatory framework for States' and MPOs' possible development of programmatic environmental plans, including the scope, contents, and process for developing these plans. The proposed new §§ 450.214 and 450.320 would provide guidance on the use of the programmatic mitigation plan during the project development and environmental review process, as described more fully in the section-by-section discussion.

See 23 U.S.C. 169 (MAP-21 Section 1311).

See23 U.S.C. 134(i)(2)(D) and 135(f)(4); 49 U.S.C. 5303(i)(2)(B) and 5304(f)(4).

IV. Section-by-Section Discussion

The FHWA and FTA have drafted the section-by-section discussion for the statewide and nonmetropolitan planning sections and the metropolitan planning sections so those sections are self-contained sections. Although this approach may seem repetitive, it will enable stakeholders to review the sections that are relevant to them while minimizing references to other sections.

Sections or paragraphs that would be unchanged under this proposal or where the only changes would be in numbering are not identified in this discussion. In addition, references to the statewide transportation improvement program, metropolitan planning organizations, the Clean Air Act, and others may have been changed to the appropriate acronym. Minor and nonsubstantive changes in capitalizations, changing certain numbers from words to numerals, changes to citation format and order, adding statutory citations to some Clean Air Act references, updates to renumbered cross-references to other sections within part 450, updates to statutory references, and changes from “USDOT” to “DOT” have also been made throughout the proposed regulations without further discussion. In addition, some minor, nonsubstantive grammatical changes were made to provide clarity, including several changes throughout the regulatory text from the passive voice to the active voice without changing the meaning. The docket contains a redline version of the regulatory text showing the differences between the existing regulatory text for 23 CFR part 450 and the proposed regulatory text.

Subpart A—Transportation Planning and Programming Definitions

Section 450.104 Definitions

Existing § 450.104 would be retained, with proposed changes to terms and definitions, as follows.

“Alternatives analysis” would be removed consistent with MAP-21 changes to FTA's Fixed Guideway Capital Investment Grant Program (49 U.S.C. 5309), which eliminated the requirement to undertake an alternatives analysis.

“Amendment” would be updated to more accurately reflect the relationship of the Clean Air Act's transportation conformity requirements to the planning process, specifically, to clarify that a conformity determination is not a criterion for determining the need for an amendment in nonattainment and maintenance areas. In addition, the phrase “changing the number of stations in the case of fixed guideway transit projects” would be added to the list of examples of major changes in design concept or design scope.

“Asset management” would be a new definition that would be identical to the definition in MAP-21 Section 1103 (23 U.S.C. 101(a)(2)).

“Committed funds” would be updated to reflect changes to FTA terminology resulting from MAP-21 Section 20008 (49 U.S.C. 5309(h)(7)). Specifically, “Project Grant Agreement” would become “Expedited Grant Agreement.”

“Conformity” would be changed to add “subpart A” after the reference to “40 CFR part 93” to be more specific regarding the citation for the transportation conformity regulations. In addition, “transportation conformity rule” would be changed to “transportation conformity regulations” for clarity. Both of these changes are made throughout the proposed regulatory text where appropriate; please see the redline version of the regulatory text included in the docket for all instances. The phrase “or any required interim emission reductions or other milestones in any area” is added to the end of the second sentence of the definition to conform with the language in section 176(c)(1)(A)(iii) of the Clean Air Act, as amended (42 U.S.C. 7401 et seq.).

“Congestion management process” would be changed to add the phrase “travel demand reduction and” as part of the definition to make it consistent with the long-standing statutory definition in 23 U.S.C. 134(k)(3)(A).

“Consideration” would be updated to include the word “consequences” as an item to take into account.

“Designated recipient” would be updated to conform to the statutory definition, now in 49 U.S.C. 5302(4)(B)—“State regional authority” would be changed to “State or regional authority.” Changes resulting from MAP-21 would include: deleting reference to 49 U.S.C. 5306, changing “chief executive officer” to Governor, and replacing “transportation management areas (TMAs) identified under 49 U.S.C. 5303” with “urbanized areas of 200,000 or more in population.” See 49 U.S.C. 5302(4)(A).

“Environmental mitigation activities” would be updated to provide a more readable, streamlined definition for environmental mitigation activities without changing the substance of the definition. The proposed definition would remove reference to “activities” in the list of activities because it is duplicative. It would remove the phrase “compensate for (by replacing or providing substitute resources)” and replace it with “rectify, reduce, or eliminate” because any compensation would typically occur in project development, not in planning. It would remove the phrase “or disruption of elements” of the plan because it is unnecessary. It changes “human and natural environment” to “environmental resources” because it is more specific to state that environmental mitigation would address avoiding or minimizing potential impacts to specific environmental impacts during planning. It also would remove the last two sentences of the definition, which further expound on the definition of human and natural environment, and describe the regional nature of environmental mitigation activities. These sentences were removed because FHWA and FTA did not want States and MPOs to limit mitigation under consideration to only the listed examples as there might be other areas where mitigation could be considered.

“Expedited Grant Agreement (EGA)” would be a new definition added to

reflect a new term used in MAP-21. An EGA means a contract that defines the scope, the Federal financial contribution, and other terms and conditions of a Small Starts project, in accordance with 49 U.S.C. 5309(h)(7).

“Freight shippers” would be revised to broaden the definition to include any entity that routinely transports cargo from one location to another by providers of freight transportation services or by their own operations, involving one or more travel modes. The FHWA and FTA believe the existing definition is too narrow because it is limited to “any business that routinely transports its products from one location to another.” The proposed revised definition for “freight shippers” would be expanded to mean “any entity that routinely transports cargo from one location to another.” The term “entity” would be used in the revised definition to mean any entity that is shipping cargo, and it would replace the term “business,” which was used in the old definition, because it is too limited. The term “products” as used in the existing definition would be changed to “cargo” because “products” is limited to “products” resulting from “business” while “cargo” more widely considers movement of other goods in addition to “products.” “Vehicle fleet” would be changed to “involving one or more travel modes” to reflect the fact that that there may be more than one travel mode involved in shipping freight (e.g., freight movement between trucks and rail at an intermodal facility).

“Highway Safety Improvement Program” (HSIP) would be a new definition. As discussed in the major revisions discussion above, MAP-21's shift to performance-based approach to transportation planning includes several elements. One of those elements is the requirement to integrate the goals, objectives, performance measures, and targets from other performance-based plans and processes into the statewide and metropolitan transportation planning processes. The HSIP would be one of those processes. The new definition would be taken from the proposed 23 CFR 924.3. See the updates to the HSIP regulations [RIN 2125-AF56].

“Illustrative project” would be revised to remove a reference to “(but is not required to)” after the word “may” because it is redundant.

“Local official” would be added as a new definition because of the new emphasis under MAP-21 on nonmetropolitan transportation planning. In particular, MAP-21 requires States to work more closely with nonmetropolitan local officials. A local official would be defined as an elected or appointed official of general-purpose local government with responsibility for transportation.

“Major modes of transportation” is a proposed new definition. The FHWA and FTA propose to add this definition to help clarify the use of the term “major modes of transportation” as it relates to the changes in structure to each MPO that serves a TMA. Although each MPO that serves a TMA will continue to consist of officials, including “officials of public agencies that administer or operate major modes of transportation in the metropolitan area,” MAP-21 adds to the end of this phrase “representation by providers of public transportation.” Major modes of transportation would mean those forms of transportation administered, managed, owned, or operated by public agencies or authorities that provide services to the public for the movement of people and goods, or as operated by the private sector on behalf of a public, agency-owned facility.

“Metropolitan Planning Agreement” is a proposed new definition that would mean a written agreement between the MPO, the State(s), and the providers of public transportation serving the metropolitan planning area that describes how they will work cooperatively to meet their mutual responsibilities in carrying out the metropolitan transportation planning process, including performance-based planning. Even though Metropolitan Planning Agreements are currently provided for in § 450.314, FHWA and FTA propose this definition because this agreement plays an important role in transitioning to a performance-driven, outcome-based program by helping to identify how MPOs, States, and providers of public transportation would cooperatively implement performance-based planning.

“Non-metropolitan local officials” would be revised to change “non-metropolitan” to “nonmetropolitan.” This change would be made throughout the proposed regulatory text; to see all the instances please refer to the redline in the docket as referenced above.

“Obligated projects” would be updated to clarify that funds may have been obligated in the preceding program year or the current year.

“Performance measures,” “performance metrics,” and “performance targets” would be new definitions added as a result of the new performance-based planning provisions in MAP-21, including sections 1203, 20019, and 20021 (23 U.S.C. 150 and 49 U.S.C. 5326 and 5329). These definitions would refer to the definitions developed for these terms during the rulemakings to implement the referenced MAP-21 provisions. See Federal-aid Highway Performance Measure Rules [RIN 2125-AF49, 2125-AF53, 2125-AF54], Transit Asset Management Rule [RIN 2132-AB07], and National and Public Transportation Safety Plans Rule [RIN 2132-AB20].

“Project construction grant agreement” would be deleted because MAP-21 renamed it “Expedited Grant Agreement” (which is included as a new definition), in accordance with 49 U.S.C. 5309(h)(7).

“Provider of freight transportation services” would be modified so that “goods” is changed to “cargo” to be consistent with the definition of “freight shippers.”

“Public transportation agency safety plan” is a proposed new definition and would mean a comprehensive plan established by a State or recipient of funds under Title 49, chapter 53. This definition reflects MAP-21's new requirement that the statewide and nonmetropolitan transportation planning process integrate the goals, objectives, performance measures, and targets from other performance-based plans. The public transportation agency safety plan would be one of those plans.

“Public transportation operator” would be modified to provide clarification. The phrase “public entity” in the existing definition would be changed to “public entity or government-approved authority.” This would reflect that the public transportation operator may be: (1) A public entity, or (2) a governmental-approved authority that is not a public entity. Also, the definition is modified so that the list of entities that are not considered to be “public transportation operators” would be expanded to include a conveyance that provides “sightseeing” or “certain types of shuttle service.”

“Regional Transportation Planning Organization (RTPO)” would be a new definition resulting from MAP-21's emphasis on nonmetropolitan transportation planning and the creation of a new optional statutory framework for these organizations. The definition would be taken directly from 23 U.S.C. 135(m)(1) and (2) and would mean a policy board of nonmetropolitan local officials or their designees created to carry out the regional transportation planning process.

“Regionally significant project” would be modified by removing the word “significant” from the last sentence of the definition. This change would eliminate an unintended redundancy in the existing regulation,

as all fixed guideway transit facilities that offer an alternative to regional highway travel are regionally significant projects. The proposed change would not change the meaning of the term “Regionally significant project.”

“Scenario planning” would be a new definition added to reflect MAP-21's codification of an existing best practice in the metropolitan transportation planning process. Scenario planning would mean a planning process that evaluates the effects of alternative policies, plans and/or programs on the future of a community or region. The MPOs may use scenario planning as they develop the transportation plan. The FHWA and FTA have based this definition on language in 23 U.S.C. 134(i)(4)(A)-(C).

“Strategic Highway Safety Plan” would be retained and updated, consistent with 23 U.S.C. 148, as amended by MAP-21. In addition to minor administrative changes, FHWA and FTA propose to change “plan” to “comprehensive multidisciplinary plan, based on safety data.”

“Transit Asset Management Plan” and “Transit Asset Management System” would be proposed new definitions, added as a result of the new performance-based planning provisions in MAP-21, to integrate performance elements of other plans (including the new transit asset management plan) into the transportation planning process. These definitions would refer to the definitions developed for these terms during the rulemaking to implement the new MAP-21 transit asset management provisions (49 U.S.C. 5326). See Transit Asset Management Rule [RIN 2132-AB07].

“Transportation Contol Measure” would be changed to add the phrase “including a substitute or additional TCM that is incorporated into the applicable SIP through the process established in CAA section 176(c)(8)” as part of the definition. This change is being proposed for better consistency with the 2005 amendments to section 176 of the Clean Air Act (codified at 42 U.S.C. 7506(c)), enacted in section 6011(d) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat. 1144 (2005).

“Visualization techniques” would be changed to add language to clarify the types of methods that can be used (“GIS or web-based surveys, inventories”) as well as the types of facilities and resources that may be included (“identifying features such as roadway rights of way, transit, intermodal, and non-motorized transportation facilities, historic and cultural resources, natural resources, and environmentally sensitive areas”). This list is illustrative of the types of items that can be included and is not an exclusive list.

Subpart B—Statewide and Nonmetropolitan Transportation Planning and Programming

The title of Subpart B would be changed from “Statewide Transportation Planning and Programming” to “Statewide and Nonmetropolitan Transportation Planning” to reflect statutory changes. The addition of “Nonmetropolitan” to the title epitomizes MAP-21's new emphasis on the importance of nonmetropolitan transportation planning.

Section 450.200 Purpose

The statement of purpose in § 450.200 would be revised to make two changes to reflect the MAP-21 shift to a performance-based approach to statewide transportation planning. The two changes include adding reference to the new 23 U.S.C. 150 (the new Federal-aid highway program provision requiring the Secretary to establish performance measures and standards) and adding “performance-based” before the reference to the multimodal transportation planning process.

Section 450.202 Applicability

Existing § 450.202 would be modified to add RTPOs as one of the entities responsible for satisfying the statewide transportation planning provisions. One of MAP-21's major changes is the codification of a framework States may use to establish and designate RTPOs.

Section 450.206 Scope of the Statewide Transportation and Nonmetropolitan Planning Process

Section 450.206 describes the scope of the statewide and nonmetropolitan transportation planning process. The FHWA and FTA propose to revise this section to incorporate MAP-21's critical changes to the planning process requiring States, MPOs, and providers of public transportation to link investment priorities (the transportation improvement program of projects) to achieving performance targets that will be established to reflect performance measures in key areas. Several key elements of a performance management approach would be included in the proposed revisions to this regulation (see paragraph (c)): establishment of performance targets, coordination of performance targets, integration of elements of other performance-based plans, and consideration in the development of investment priorities. One other significant change is the inclusion of the word “nonmetropolitan” in the proposed heading reflecting the increased emphasis on nonmetropolitan transportation planning. These major proposed changes, as well as other minor proposed changes, are further described below.

The heading of existing § 450.206 would be changed to add “and Nonmetropolitan” to be consistent with MAP-21 section 1202's change to the heading of 23 U.S.C. 135.

Section 450.206(b) would be revised to add “(including Section 4(f) properties as defined in 23 CFR 774.17)” after “human and natural environment” to clarify that Section 4(f) properties should be included in considerations of human and natural environment for purposes of this section. This change also reflects the 2008 revision to the joint FHWA and FTA Section 4(f) regulations, which are now contained in 23 CFR 774 and include a definition for “Section 4(f) Property”.

The proposed new § 450.206(c) would describe the new performance-based approach to transportation planning and programming under MAP-21 and set up the foundation for such an approach. As a fundamental principle, proposed new paragraph (c)(1) would require States to use a performance-based approach to transportation decisionmaking to support national goals and purposes.

Proposed new paragraph (c)(2) starts building the foundational steps to this performance-based approach by requiring States to establish performance targets for the Federal-aid highway program based on measures that FHWA will develop in separate rulemakings (Federal-aid Highway Performance Measure Rules [RIN 2125-AF49, 2125-AF53, 2125-AF54]). These separate rulemakings will contain detailed requirements for establishing targets. As part of the planning process, States would be required when selecting and establishing performance targets in proposed paragraph (c)(2), to coordinate those targets to ensure consistency, to the maximum extent practicable, with the MPOs. In addition, States would also coordinate the establishment of performance targets with affected Federal Lands Management Agencies. See 23 U.S.C. 135(d)(2).

Proposed new paragraph (c)(3) relates to public transportation performance targets and would require States to coordinate the selection of public transportation targets with providers of public transportation. These targets will be based on measures and standards that will be developed by FTA in

separate rulemakings (Transit Asset Management Rule [RIN 2132-AB07], and National and Public Transportation Safety Plans Rule [RIN 2132-AB20]). Paragraph (c)(3) provides that in areas not represented by MPOs, States would be required to coordinate the selection of these public transportation performance targets to the maximum extent practicable with providers of public transportation, to ensure consistency. See 49 U.S.C. 5304(d)(2).

In paragraphs (c)(3) and (c)(4), the language in section 23 U.S.C. 135(d)(2)(B)(ii) and 49 U.S.C. 5304(d)(2)(B)(ii) that refers to “providers of public transportation” in “urbanized areas . . . not represented by a metropolitan planning organization” would not be carried forward because by statute, all “urbanized areas” continue to be represented by an MPO (23 U.S.C. 134(d)(1) and 49 U.S.C. 5303(d)(1)). Because of this discrepancy, FHWA and FTA propose the following interpretation. Instead of using “urbanized areas,” FHWA and FTA would instead use the phrase “areas not represented by a metropolitan planning organization” because States would need to coordinate with providers of public transportation in these areas not represented by a MPO to select performance targets with respect to 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d).

Proposed paragraph (c)(4) continues to build the foundational steps by requiring States to integrate into the statewide transportation planning process the elements (goals, objectives, performance measures, and targets) in other State transportation plans and transportation processes, as well as any plans developed by providers of transportation in areas not represented by an MPO. Examples of other performance-based plans and processes include the HSIP, the SHSP, the NHS Asset Management Plan, the State Freight Plan (if the State chooses to develop one), the transit asset management plan, and the public transportation agency safety plan.

The FHWA and FTA propose a new paragraph (c)(5) that is a critical piece of the foundation for a performance-based management approach. This paragraph would require States to consider the performance measures and its performance targets when developing its planning documents and making investment priorities. This would ensure that these decisions are transparent. See 23 U.S.C. 135(d)(2)(D) and 49 U.S.C. 5303(d)(2)(D).

Existing § 450.206(c) would become § 450.206(d) and be revised to include that the performance-based planning aspects of the statewide transportation planning process, as described above in proposed new paragraph (c), are not subject to review by any court. In addition, “reviewable” is changed to “subject to review.” These changes are consistent with the MAP-21 changes to 23 U.S.C. 135(d)(3) and 49 U.S.C. 5304(d)(3).

Existing § 450.206(d) would become 450.206(e) and the second sentence would be revised. The reference to 23 U.S.C. 104(b)(1) and (3) and 105 becomes 23 U.S.C. 104(b)(2) because MAP-21 section 1105 changed references to the 23 U.S.C. 104 apportioned programs, and MAP-21 section 1519(b) repealed 23 U.S.C. 105. Now, the Surface Transportation Program apportionment is under 23 U.S.C. 104(b)(2). Transportation planning, previously an eligible activity under the NHS program funds in SAFETEA-LU, is no longer eligible for the National Highway Performance Program (NHPP), which replaced the NHS program. References to 49 U.S.C. 5310 and 5311 would be added to clarify existing authorities. In addition, “for statewide transportation planning” would be added to the end of the second sentence to clarify eligibility of statewide planning for these funds.

Section 450.208 Coordination of Planning Process Activities

Section 450.208 generally describes how States must work with other agencies when conducting the statewide and nonmetropolitan transportation planning process. The revisions to this section propose changes in two areas. First, there is a change to reflect the new emphasis under MAP-21 on nonmetropolitan transportation planning. Second, there are changes to reflect an aspect of the new performance-based approach—the integration of elements of other performance-based plans into the planning process. These proposed changes, as well as other minor proposed changes, are further described below.

Consistent with MAP-21's new emphasis on nonmetropolitan transportation planning, this section proposes two changes. First, existing § 450.208(a)(4) would be revised to note the change in language from “consider the concerns” to “cooperate with affected” in accordance with changes to 23 U.S.C. 135(e)(1) and 49 U.S.C. 5303(e)(1). Second, this proposed section would now include RTPOs as an entity States would cooperate with, if they choose to designate and establish RTPOs.

The MAP-21 now requires the integration of other performance-based plans into the statewide transportation planning process under 23 U.S.C. 135(d)(2) and 49 U.S.C. 5304(d)(2). Current regulations encourage consideration of asset management principles during the planning process. With the new MAP-21 requirements to develop and implement asset management plans (See Federal-aid Highway Risk-Based Asset Management Plan Rule for the NHS [RIN 2125-AF57], Transit Asset Management Rule [RIN 2132-AB07], and National and Public Transportation Safety Plans Rule [RIN 2132-AB20]), it is even more important for States to consider these plans during the transportation planning process. The FHWA and FTA are proposing revisions to § 450.208(e) and a new § 450.208(f) to ensure that these asset management principles and techniques are part of the planning process. In particular, revised paragraph (e) would now require that States apply asset management principals and techniques to the statewide transportation planning process consistent with the Asset Management Plan for the NHS, the Transit Asset Management Plan, and the Public Transportation Agency Safety Plan. The new paragraph (f) covers the non-NHS highways and proposes that States “may” apply asset management principles to the transportation planning and programming processes.

Proposed new paragraph (g) includes the MAP-21 performance-related requirement that States integrate goals, objectives, performance measures, and targets of other performance-based plans into their statewide transportation planning process. This paragraph identifies the other performance-based plans processes States would integrate, including the Asset Management Plan for the NHS, the SHSP, the Public Transportation Agency Safety Plan, the Transit Asset Management Plan, the State Freight Plan (if one exists, as it is optional), as appropriate, and other State transportation plans and processes required as part of a performance-based program.

Existing § 450.208(g) would become § 450.208(i) and is revised to delete references to 49 U.S.C. 5316 and 5317 because MAP-21 repealed these sections. This change was made throughout this proposed regulation; please see the redline version of the regulatory text included in the docket for further information.

Existing § 450.208(h) would be deleted and the reference to the SHSP would be moved to § 450.208(g)(2). The reference to SHSP would be moved because of the new MAP-21 requirements for States to integrate the

elements of other performance-based plans and processes (including the SHSP) into the statewide transportation planning process.

Section 450.210 Interested Parties, Public Involvement, and Consultation

Section 450.210 requires States to involve members of the public and nonmetropolitan local officials in the planning process that produces the long-range statewide transportation plan and STIP. The proposed § 450.210 would retain the existing process for public involvement and would, along with minor changes: (1) Require States to cooperate, rather than consult, with nonmetropolitan local officials in development of the long-range statewide transportation plan and STIP, and (2) add a new process for States that elect to establish and designate RTPOs to perform planning in nonmetropolitan areas. These proposed changes reflect MAP-21's theme of increased cooperation between States and nonmetropolitan areas in transportation planning. These changes, and other minor changes, are described below.

Existing § 450.210(a)(1)(i) would be revised so that the word “citizens” would be replaced with the word “individuals” to avoid confusion of the term “citizens” with U.S. citizenship. In proposed paragraph (a)(1)(iii), the words “but not limited to” following “including” would be removed because they are unnecessary; use of “including” or “include” generally precedes a nonexclusive list. Both of these changes would be made throughout the proposed regulatory text; to see all the instances please refer to the redline version of the regulatory text included in the docket as referenced above. Examples of affected public agencies to which a State might provide an opportunity to be involved in the statewide planning process under § 450.210(a)(1)(i) include agencies with responsibility for economic development, human and natural resources, environmental protection, sustainability, mitigation, adaptation, climate, and air quality.

Section 450.210(b) requires States to provide for nonmetropolitan local official participation in the development of the long-range statewide transportation plan and STIP. Paragraph (b) would retain the current requirement for States to have a documented process for the participation of nonmetropolitan local officials and to review and solicit comments on the process at least once every 5 years. The current regulation requires this participation to be consultative in nature, which means that States are required to consider the views of nonmetropolitan local officials. Consistent with MAP-21's amendments, the proposed regulation would require States to cooperate with nonmetropolitan local officials, meaning that they would be required to work together to achieve a common outcome. The proposed change from consultation to cooperation would require States to work more closely with nonmetropolitan local officials in the development of the long-range statewide transportation plan and STIP. Section 450.210(b)(1) also would be revised to remove the reference to “(as of February 24, 2006)” because the requirement has existed for long enough that that date is no longer meaningful.

Proposed § 450.210(c), which concerns areas of States under the jurisdiction of an Indian tribal government, would replace “Federal land management agencies” with the “Department of the Interior” as the entity with which States must consult when forming the long-range statewide transportation plan and STIP for such area. This change would be made because the Department of the Interior, not the Federal land management agencies, is the Federal agency with responsibility for managing Indian tribal matters. Paragraph (c) would also be revised to insert the word “the” in the phrase “Secretary of the Interior” to correct that official's title.

Proposed § 450.210(d) would be added to provide a process to establish and designate an RTPO and describe the structure and primary functions of an RTPO. To support States' cooperation with nonmetropolitan areas, MAP-21 introduces an optional formal process for States to establish and designate RTPOs to carry out the transportation planning process in nonmetropolitan areas. If established, a State would cooperate with nonmetropolitan local officials through the RTPO. The establishment and designation of an RTPO is optional; if a State chooses not to establish RTPOs under the proposed rule, the State itself would carry out all elements of the statewide and nonmetropolitan planning process, as is currently required, and would cooperate directly with affected nonmetropolitan local officials.

The MAP-21 provides that “States” have the authority to establish and designate an RTPO. Proposed paragraph (d) would clarify that this authority resides in the Governor or the Governor's designee. This clarification is proposed because the Governor is the chief executive of a State. Proposed paragraph (d) would require existing regional planning organizations to go through the formal establishment and designation process required by this proposed section to become an RTPO. This is proposed because RTPOs have a certain structure and statutorily specified duties, as described below, and MAP-21 requires States to cooperate with RTPOs when they are present.

The proposed paragraphs (d)(1) and (d)(2), which closely track statutory language, would describe the structure of an RTPO. Because an RTPO would conduct planning for a nonmetropolitan region, an RTPO would be a multijurisdictional organization composed of volunteer nonmetropolitan local officials or their designees, and volunteer representatives of local transportation systems. An RTPO also would be required to establish a policy committee and a fiscal and administrative agent to provide professional planning, management, and administrative support. The policy committee would be composed mostly of nonmetropolitan local officials, with additional representatives, as appropriate, from the State, private business, transportation service providers, economic development practitioners, and the public in the region.

Proposed paragraph (d)(3), which also closely tracks statutory language, would describe the duties of an RTPO. The duties of an RTPO would include developing a regional long-range multimodal transportation plan and a regional TIP, providing a forum for public participation in the statewide and regional transportation planning process, and conducting other activities to support and enhance the statewide planning process. By conducting nonmetropolitan planning as local organizations, RTPOs would enhance the planning, coordination, and implementation of the long-range statewide transportation plans and STIPs, with an emphasis on addressing the needs of the nonmetropolitan areas of the State. Nothing in paragraph (d) would prevent an RTPO from conducting other transportation planning activities in addition to those required under this paragraph.

Section 450.212 Transportation Planning Studies and Project Development

Current § 450.212 and Appendix A provide the context and the means for using transportation planning information and decisions in the environmental review process. Those provisions reflect long-standing practice for highway and transit projects pursuant to various sections of the Council on Environmental Quality

regulations that implement NEPA at 40 CFR parts 1500-1508 and case law.

The practice of using information and decisions developed during transportation planning provides opportunities for expediting project delivery, generating cost savings by reducing duplication of effort, and improving environmental outcomes through the planning of projects in an environmentally sensitive manner. The MAP-21 section 1310 broadens this practice by creating 23 U.S.C. 168, which provides additional statutory authority for linking planning and the environmental review process. The FHWA and FTA propose to retain § 450.212 without revision. The agencies will address implementation of section 1310 and any needed updates to provisions on pre-MAP-21integration authorities through separate rulemaking or guidance.

See

Carmel-by-the-Sea

U.S. DOT,

123 F.3d 1142 (9th Cir. 1997) (finding that the EIS appropriately relied on growth plans developed during the planning process for the EIS discussion of the project's growth inducing effects);

North Buckhead Civic Association

Skinner,

903 F.2d 1533 (11th Cir. 1990) (validating the use of a purpose and need statement under NEPA that was developed through the transportation planning process);

Sierra Club

U.S. DOT,

310 F. Supp. 2d 1168 (D. Nevada 2004) (finding that reliance during the NEPA process on forecasts and modeling efforts developed in the planning process was reasonable).

The current Appendix A of 23 CFR part 450, referenced in existing § 450.212, provides detailed information on how to evaluate whether material, information, decisions, or analyses developed during the transportation planning process could be used during the environmental review process of a project (i.e., project development). The FHWA and FTA derived the concepts in Appendix A from NEPA regulations, guidance, and case law. The Agencies propose to retain Appendix A.

Section 450.214 Development of Programmatic Mitigation Plans

Proposed § 450.214 is new and implements a new statutory provision at 23 U.S.C. 169, created by MAP-21 Section 1311, that provides a statutory framework for the optional development of programmatic mitigation plans as part of the planning process for use during the subsequent environmental review process. See 23 U.S.C. 168(c)(1)(E). This new proposed regulatory section is intended to clarify the possible scope, scale, and contents of programmatic mitigation plans developed pursuant to 23 U.S.C. 169 as well as the process used to develop them, and subsequently use them, in the environmental review process. For FHWA and FTA, programmatic mitigation plans are plans that address the potential environmental impacts of future transportation projects.

A State can develop a programmatic mitigation plan at the statewide, regional, local jurisdiction, ecosystem, watershed or similar scale, and can normally develop a plan with an aim toward protecting, preserving, rehabilitating, or creating environmental resources, or mitigating possible harm to environmental resources due to future transportation projects. Examples of resources that the plan might identify include wetlands, streams, rivers, stormwater, parklands, cultural resources, historic resources, farmlands, and threatened and endangered species. The plan may inventory existing or planned wetland, stream, habitat, species, and/or other environmental resource mitigation sites or areas, and resource areas of high value or concern, as well as adopt or develop standard measures or operating procedures for mitigating certain types of impacts. The plan may include development of mitigation or conservation banks, in-lieu-fee programs, or consolidated mitigation areas. The plan may be used to develop mitigation strategies based on an analysis of greenhouse gas emissions and vulnerability to climate change impacts, or an energy analysis. In developing a programmatic mitigation plan as part of the statewide transportation planning process (or the metropolitan transportation planning process under § 450.320 below), a State (or MPO) would need to consult with each agency with jurisdiction over the environmental resources considered in the plan. The consultation may address considerations such as the applicability of the plan to meet multiple regulatory requirements and identification of steps necessary for implementation of the plan. The State (or MPO), must make the plan available for review and comment by the public and the applicable environmental resource agencies. A programmatic approach to environmental mitigation has the potential to streamline the project development process and improve environmental outcomes through early identification of potential environmental impacts and identification of potential avoidance or mitigation opportunities. The degree to which programmatic mitigation strategies are useful later in the project development process depends on the extent of consultation, as well as the level of detail that is developed during planning with the agency of jurisdiction over a particular resource that will later consider that mitigation for purposes of satisfying permit requirements. Thus, FHWA and FTA suggest that such consultation take place during planning, and agreement reached as much as feasible to maximize the extent to which programmatic mitigation can be used. The FHWA and FTA strongly encourage flexibility within the constraints of existing regulations with respect to permitting in support of better environmental outcomes.

Section 450.216 Development and Content of the Long-Range Statewide Transportation Plan

Existing § 450.214 would become § 450.216. It would be revised to codify in regulation MAP-21's provision that each State should implement a performance-based approach in the development of its long-range statewide transportation plan. The statewide transportation plan is a multimodal transportation plan addressing at least a 20-year planning horizon for all areas of the State. As part of the proposed performance-based changes to this section, each State should describe in its long-range statewide transportation plan the performance measures and performance targets it used to assess the performance of its transportation system. The State's long-range plan should include a system performance report that contains the State's evaluation of the condition and performance of the transportation system with respect to performance targets established by the State to address the performance measures identified under 23 U.S.C. 150(c), and 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d). The State should also report on the progress achieved by the MPOs in meeting their performance targets in comparison with the system performance recorded in previous reports. See 23 U.S.C. 135(f)(7) and 49 U.S.C. 5304(f)(7). This section adds the new emphasis on nonmetropolitan planning and requires a State to provide nonmetropolitan local officials or RTPOs the opportunity to participate in the development and update of the plan. Finally, the section also encourages the State to assess the appropriateness of innovative finance techniques in its development of financing strategies as part of the financial plan component of the long-range statewide transportation plan. It also encourages a State, when assessing its capital investments as part of the long-range statewide transportation plan, to consider the financial plans and investment strategies from the State Asset Management Plan for the NHS, as defined in 23 U.S.C. 119(e), and the investment priorities of the public

transit asset management plan, as discussed in 49 U.S.C. 5326. This will help ensure that key elements of the asset management plans are considered as part of the investment decisionmaking process.

Consistent with existing § 450.214, proposed § 450.216 would maintain the opportunity for the long-range statewide transportation plan to be comprised of policies and/or strategies, not necessarily specific projects, over the minimum 20-year forecast period. In addition, it would retain State discretion to identify a periodic schedule for updating the long-range statewide transportation plan and to revise the plan as necessary.

Existing § 450.214(c) would become proposed § 450.216(c) and be revised to add “as appropriate” after the list of items that the plan shall reference, summarize, or contain because some items might not be relevant. Examples of plans that the plan might reference include energy plans, or plans that address resilience to current and future conditions. Such conditions could include severe weather events and changes in weather patterns.

Existing § 450.214(d) would become proposed § 450.216(d) and be revised to reflect that States should integrate into the statewide transportation plan the priorities, goals, countermeasures, strategies, or projects contained in the HSIP, including the SHSP, as required under 23 U.S.C. 148, and the Public Transportation Agency Safety Plan required under 49 U.S.C. 5329, or an Interim Agency Safety Plan in accordance with 49 CFR part 659, as in effect until completion of the Public Transportation Agency Safety Plan.

Proposed § 450.216(f) would be added to reflect a key provision added by MAP-21 to 23 U.S.C. 135(f)(7) and 49 U.S.C. 5304(f)(7) regarding a performance driven, outcome-based statewide transportation planning process and closely follows the statutory text. Specifically, proposed paragraph (f) states that the statewide transportation plan should be performance-based and should include a description of the performance measures and targets used in assessing the performance of the transportation system. The statewide plan should also include a system performance report and subsequent updates evaluating the performance of the transportation system with respect to the performance targets, including progress achieved by the MPO(s) in meeting the performance targets in comparison with system performance recorded in previous reports.

Consistent with MAP-21's emphasis on nonmetropolitan planning discussed above, and requirements for States to work more closely with nonmetropolitan local officials and, if applicable, RTPOs, existing § 450.214(g) would become proposed § 450.216(h), “consultation” with “non-metropolitan” officials would become “cooperation” with “nonmetropolitan” officials, and provision for cooperation with RTPOs, if applicable, would be added. See 23 U.S.C. 135(f)(2)(B) and 49 U.S.C. 5304(f)(2)(B). State DOTs would retain final decisionmaking authority for development of the long range statewide transportation plan and the statewide transportation improvement program.

Existing § 450.214(j) would become proposed § 450.216(k) and be revised to add regional and local entities to the list of entities States must consult when developing the discussion on potential environmental mitigation strategies or the long-range statewide transportation plan.

Existing § 450.214(k) would become proposed § 450.216(l) and be updated. Consistent with MAP-21's new emphasis on nonmetropolitan transportation planning, this section proposes that the State provide nonmetropolitan local elected officials, or the RTPOs if applicable, the opportunity to participate in the development and update of the long-range statewide transportation plan. This change results from changes in MAP-21 section 1202 to 23 U.S.C. 135(f)(2)(B) and 49 U.S.C. 5304(f)(2)(B). In addition, proposed paragraph (l)(2) would remove the reference to “to the maximum extent practicable” to be consistent with the statutory text (23 U.S.C. 135(f)(3) and 49 U.S.C. 5304(f)(3)). Where applicable, “to the maximum extent practicable” is included in the appropriate provisions in the referenced § 450.210(a).

Existing § 450.214(l) would become proposed § 450.216(m) and be updated to remove two references to “(but is not required to)” after the word “may” because it is redundant. A statement would also be added to this section: “[t]he financial plan may include an assessment of the appropriateness of innovative finance techniques (for example, tolling, pricing, bonding, public private partnerships, or other strategies) as revenue sources.” This provision would support 23 U.S.C. 106(h)(3)(D), which encourages earlier consideration of innovative finance techniques. Although 23 U.S.C. 106(h)(3)(D) refers to consideration as part of the finance plan for a project, it is also appropriate to consider innovative finance techniques as part of the finance plan for the statewide plan.

New § 450.216(n) is proposed to provide that as the State develops the financial strategies for its long-range statewide transportation plan and assesses its capital investment, it should consider the financial plan and investment strategies from the newly required State asset management plan for the NHS as defined in 23 U.S.C. 119(e) and investment priorities of the newly required public transit asset management plan(s) as discussed in 49 U.S.C. 5326. Information from these newly required plans can inform States in their capital investment decisionmaking process.

Existing § 450.214(g) would become § 450.216(p) and would be revised to add “for public review” to clarify that the long-range statewide transportation plan shall be made available for public review, including electronically. This is consistent with a long-standing statutory requirement in 23 U.S.C. 135(f)(3) and 49 U.S.C. 5304(f)(3).

Section 450.218 Development and Content of the Statewide Transportation Improvement Program (STIP)

Existing § 450.216 would become proposed § 450.218. Section 450.218 describes the development and the content of the STIP. The STIP is the prioritized listing of transportation projects covering a period of 4 years that the State develops in cooperation with the MPOs, nonmetropolitan local officials, and, if applicable, RTPOs. The FHWA and FTA approve the STIP. This section would be revised to incorporate MAP-21's new requirements for a performance-based planning and programming process and increased emphasis on nonmetropolitan transportation planning. A significant revision to this section would be the addition of the new performance-based requirement that the STIP would include a description of how the investment priorities in the STIP contribute toward the achievement of the performance targets in the statewide transportation plan. Because the STIP is developed with opportunity for public comment, the new requirement to demonstrate how investment decisions are made adds additional accountability and transparency to the planning process. The establishment of performance targets would also align the STIP in those key areas where targets are established, including safety, state of good repair, congestion and reliability, freight, and emissions. A description of the performance-based changes to this section and other minor proposed changes to this section are as follows.

Existing § 450.216(a) would become § 450.218(a) and be updated to add “shall” after “4 years and” and include the phrase “of the State” after the word “Governor” to provide clarification.

Section 450.216(c) would become § 450.218(c) and be updated to reflect the new emphasis on nonmetropolitan transportation planning. Specifically, the proposed regulation would change “consultation” with “non-metropolitan” officials to “cooperation” with “nonmetropolitan” officials and would add cooperation with RTPOs, if applicable. These changes reflect MAP-21 revisions to 49 U.S.C. 5304(g)(2)(B)(i). Whereas 49 U.S.C. 5304 is nearly the same as 23 U.S.C. 135, this is one instance where changes to the two statutes were inconsistent. The MAP-21 revision to section 135(g)(2)(B)(i) does not change “consultation” to “cooperation.” In updating these joint regulations, FHWA and FTA determined that it was appropriate to use “cooperation,” rather than “consultation” in this paragraph of these joint regulations. To have two different processes—a consultation process for Title 23 actions and a cooperation process for Title 49 actions—is overly burdensome. Using “cooperation” is consistent with the comparable changes MAP-21 made to the long-range statewide transportation plan provisions (see proposed § 450.216(h)). Because of the long-standing requirement that the STIP be consistent with the long-range statewide transportation plan, the State should follow a similar coordination process for both of these documents. In addition, as defined for purposes of part 450, “cooperation” requires States to work more closely with nonmetropolitan local officials and RTPOs, if applicable, than “consultation.” This proposed change is also consistent with the overall MAP-21 approach to increasing the presence of affected nonmetropolitan local officials and regional planning organizations in the statewide planning process.

Existing § 450.216(e) and (g) would become proposed § 450.218(e) and (g), and “Federal Lands Highway Program” would be changed to “Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program” to reflect MAP-21 program changes to 23 U.S.C. 201-204.

Section 450.216(g) would become § 450.218(g) and be updated to reflect MAP-21 changes to programs, phrases, and plans. In particular, “transportation enhancements” would become “transportation alternatives,” and “associated transit improvements” would be added under (g). “Associated transit improvements” is FTA's equivalent of FHWA's “transportation alternatives.” Reference to SHSP would be changed to HSIP because HSIP is the program that funds safety projects (as opposed to a SHSP), and is more closely associated with the STIP. Under § 450.218(g)(2), 23 U.S.C. 104(f) would become 23 U.S.C. 104(d) and reference to 49 U.S.C. 5339 would be deleted. Paragraph 450.218(g)(4) would be revised to remove references to the “National Highway System,” and “and/or Equity Bonus” because these programs are not continued under MAP-21 and remove reference to “[a]t the State's discretion” as it is repetitive. Because of the creation of FTA's emergency relief funding program, FHWA and FTA want to clarify that § 450.218(g)(5), which indicates that emergency relief projects meeting certain conditions are not required to be included in the STIP, would not apply to resiliency projects funded under 49 U.S.C. 5324. Section 450.218(g)(6) would be revised and reference to “national planning and research projects funded under 49 U.S.C. 5314” would be changed to “[r]esearch development demonstration and deployment projects funded under 49 U.S.C. 5312, and technical assistance and standards development projects funded under 49 U.S.C. 5314.” This change is proposed because of MAP-21 changes to research programs that separated the programs into two sections and created a distinct technical assistance and standards development program. Section 450.218(g)(8) would be added to reflect that State safety oversight funds awarded under 49 U.S.C. 5329 are not subject to the rule of financial constraint, and therefore State safety oversight programs may, but are not required to, be included in the STIP.

Existing § 450.216(j) would become proposed § 450.218(j) and be updated to add “subpart A” after the second reference to “40 CFR part 93” to be more specific regarding the citation for the transportation conformity.

Section 450.216(l) would become § 450.218(l) and would be revised to delete “made” from the phrase “reasonably expected to be made available” for consistency with other terminology. The phrase “Starting December 11, 2007” would be removed because this date has passed and the use of year of expenditure dollars for revenue and cost estimates in the STIP continues to be a requirement. Reference to “(but is not required to)” after the word “may” would be removed because it is redundant.

Section 450.216(m) would become § 450.218(m) and the following provision would be moved to its own section at 450.218(p) for added emphasis: “The STIP shall include a project, or an identified phase of a project, only if full funding can reasonably be anticipated to be available for the project within the time period contemplated for completion of the project.” In addition, a more specific statutory citation to the definition of public transportation (“49 U.S.C. 5302”) would replace the more general reference (“49 U.S.C. Chapter 53”).

Consistent with the new requirements to integrate elements of other performance-based plans and processes into the statewide transportation planning process, a new proposed § 450.218(o) would be added to indicate that the STIP should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plan. See 23 U.S.C. 119(e) and 49 U.S.C. 5326. The financial plan and investment strategies of the State asset management plan for the NHS and the investment strategies of the public transit asset management plan are elements of new performance-based plans required under MAP-21. The FHWA and FTA propose in this section that States consider these elements as part of the investment decisionmaking process to inform the STIP.

The FHWA and FTA propose to incorporate the MAP-21 requirements for a performance-based STIP in proposed new § 450.218(r). See 23 U.S.C. 135(g)(4) and 49 U.S.C. 5304(g)(4). Importantly, proposed paragraph (r) would require the STIP describe how the projects in the STIP would achieve the State performance targets—linking investment priorities to those targets. Because the development of a STIP is a public process, these new requirements help establish accountability and transparency of transportation investment decisions.

Section 450.220 Self-Certification, Federal Findings, and Federal Approvals

Existing § 450.218 would become § 450.220. Proposed § 450.220 describes how States would self-certify that the transportation planning process is being carried out in accordance with all applicable requirements, including MAP-21 requirements. It also describes how FHWA and FTA would approve the STIP after the State submits the STIP to FHWA and FTA. This section would be largely unchanged except that in § 450.220(a)(4) the reference to section

1101(b) of SAFETEA-LU would become section 1101(b) of MAP-21, the successor provision.

Section 450.222 Project Selection From the STIP

Existing § 450.220 would become § 450.222. Proposed § 450.222 describes the procedures for the selection of projects from the STIP by the State and the MPOs. This section is changed in two ways. First, it would be revised to reflect MAP-21's increased emphasis on nonmetropolitan transportation planning. Second, it would be updated to reflect name changes to tribal funding programs. These changes are described below.

Proposed paragraph (c) would be revised to include the new MAP-21 requirements (23 U.S.C. 135(g)(6) and 49 U.S.C. 5304 (g)(6)) for States to cooperate with nonmetropolitan areas when selecting projects from the STIP for projects that are not on the NHS. This proposed new requirement will require States work with local officials, or, if applicable, RTPOs, when selecting projects from the STIP in nonmetropolitan areas. Prior to MAP-21, States were not required to conduct outreach with nonmetropolitan local officials when selecting projects from the STIP that are not on the NHS.

In revised § 450.222(d), “Federal Lands Highway Program” would be changed to “Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program” to reflect MAP-21 changes to 23 U.S.C. 201-204.

Section 450.224 Applicability of NEPA to Statewide Transportation Plans and Programs

Section 450.222 would become § 450.224 and be unchanged except that the acronym NEPA is spelled out as the “National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).” This change would be made throughout the proposed regulations; please see the redline version of the regulatory text included in the docket for further information.

Section 450.226 Phase-In of New Requirements

Existing § 450.224 would become § 450.226. This proposed section updates the schedule for implementation based on MAP-21 changes. The section is based on provisions in 23 U.S.C. 135(l) and 49 U.S.C. 5304(k), as well as the new performance requirements in 23 U.S.C. 150 and 49 U.S.C. 5326 and 5329.

For purposes of phasing in the new MAP-21 requirements, there are two categories of changes. The first category is those changes that are unrelated to performance management, and the second category is those changes that are performance management related. The FHWA and FTA propose two different phase-in schedules, one for each category of changes.

The major change unrelated to performance management is the new emphasis on nonmetropolitan transportation planning. The FHWA and FTA propose that STIPs and statewide long range plans adopted on or after a date 2 years after publication of this final rule in the

Federal Register

must reflect this new emphasis. The FHWA and FTA would only approve STIP amendments or updates that are based on a planning process that incorporates the new emphasis on nonmetropolitan transportation planning. For instance, if this final rule were published in fall of 2014, FHWA and FTA would only approve a STIP after fall of 2016 that meets the non-performance-based requirements of this rule. The FHWA and FTA also propose that before the end of this 2-year period, States may use the new MAP-21 requirements in developing STIPs and long-range transportation plans. The FHWA and FTA believe this approach is consistent with MAP-21 requirements (23 U.S.C. 135(l) and 49 U.S.C. 5303(k)) and does not require the State to deviate from its established planning update cycle to implement MAP-21 changes. This approach also meets the requirement that States shall reflect changes made to their transportation plan or STIP updates not later than 2 years after the date of issuance of guidance by the Secretary.

The second phase-in schedule would be for the new performance management requirements proposed in this NPRM (e.g., discussion of targets in long range plans and STIPs, requirements to coordinate target selection, linking of targets to investment priorities in STIPs, system performance reports, integration of elements of other plans) that depend on issuance of FHWA's and FTA's performance rules. The FHWA and FTA propose that updates and amendments to any STIPs and plans based on these new performance management requirements would be based on the effective date of the performance measures rules implementing 23 U.S.C. 150 and 49 U.S.C. 5326 and 5329.

The FHWA and FTA currently anticipate that the performance rules implementing these provisions would have the same effective date. If the effective date of these performance measure rules is not the same, the phase-in of the new performance management requirements would be based on the effective date of each individual performance measure rule. In order to determine the appropriate phase-in schedule of the new performance management requirements, FHWA and FTA balanced a number of statutory provisions and logistical and practical considerations. Each of these provisions has specific timing requirements for establishment of targets:

Federal-aid Highway Performance Measure Rules [RIN 2125-AF49, 2125-AF53, 2125-AF54], Transit Asset Management Rule [RIN 2132-AB07], and National and Public Transportation Safety Plans Rule [RIN 2132-AB20].

• 23 U.S.C. 150(d)(1)—States would have 1 year from the effective date of the performance management rule to establish targets (the specific timing will be discussed in the separate rulemaking implementing 23 U.S.C. 150);

• 49 U.S.C. 5329(d)(1)—States or recipients would be required to include performance targets in a safety plan 1 year after the effective date of the final rule; and

• 49 U.S.C. 5326(c)—Recipients would need to establish performance targets not later than 3 months after the issuance of the final rule and each fiscal year thereafter.

Once States or recipients establish targets, MPOs would be required to establish targets not later than 180 days after the date on which the relevant State or recipient establishes performance targets (23 U.S.C. 134(h)(2) and 49 U.S.C. 5303(h)(2)). These targets would need to be coordinated among the States, MPOs, and providers of public transportation to ensure consistency.

The FHWA and FTA determined that giving States, recipients, and MPOs 2 years following the effective date of the performance rules would provide adequate time for the relevant States, recipients, and MPOs to develop targets, coordinate targets, and include any performance-based planning requirements in their transportation planning process and related documents. This phase-in period would also provide time to integrate into the transportation planning process, directly or by reference, the goals, objectives, performance measures, and targets from other transportation plans and transportation processes, as proposed in 23 CFR 450.206(c) and 450.306(d). Depending on the measure, providing a 2-year phase-in of these requirements may provide MPOs additional time after the establishment of the targets to include these targets in any new or amended metropolitan or

long range statewide transportation plans or transportation improvement programs.

Consistent with the statutory requirement in 23 U.S.C. 135(l) and 49 U.S.C. 5304(k), FHWA and FTA are not proposing to require a State to deviate from its established planning update cycle to implement the changes required by MAP-21 to the planning process.

Subpart C—Metropolitan Transportation Planning and Programming

Section 450.300 Purpose

Similar to the “Purpose” section of subpart B, existing § 450.300 would be revised to make two changes to reflect that under MAP-21 the metropolitan planning process becomes a performance-based process. The two changes include adding reference to the new 23 U.S.C. 150 and adding “performance-based” before the reference to the “multimodal transportation planning process.”

Section 450.306 Scope of the Metropolitan Transportation Planning

Existing § 450.306 describes the scope of the metropolitan transportation planning process. Similar to proposed revisions to § 450.206 (the scope of the statewide and nonmetropolitan transportation planning process), FHWA and FTA propose to revise this section to incorporate MAP-21's critical performance-based changes to the planning process. States, MPOs, and providers of public transportation would link investment priorities (the transportation improvement program of projects) to achieving performance targets in key areas. Elements of a performance management approach would be included in the proposed revisions paragraphs (a) and (d): An emphasis on developing planning documents through a performance-based approach, establishment of performance targets, coordination of performance targets, and the integration of elements of other performance-based plans. These major proposed changes as well as other minor proposed changes are further described below.

Section 450.306 would be revised to add proposed new § 450.306(a) to reflect the new statutory language in 23 U.S.C. 134(c) and 49 U.S.C. 5303(c)(1) requiring a performance driven, outcome-based approach to planning for metropolitan areas.

Section 450.306(b) would become § 450.306(c) and be revised to add “(including Section 4(f) properties as defined in 23 CFR 774.17)” after “human and natural environment” to clarify that Section 4(f) properties should be included in considerations of human and natural environment for purposes of this section. This change also reflects the 2008 revision to the joint FHWA and FTA Section 4(f) regulations, which are now contained in 23 CFR 774 and include a definition for “Section 4(f) Property”.

Revised § 450.306(d) is proposed to incorporate MAP-21 requirements for a performance-based approach to metropolitan transportation planning. See 23 U.S.C. 134(h)(2) and 49 U.S.C. 5303(h)(2). As described in paragraph (d)(1), part of the metropolitan planning process would include supporting the national goals, described in 23 U.S.C. 150(b), and general purposes, described in 49 U.S.C. 5301(c).

Proposed new paragraph (d)(2) starts building the foundational steps to this performance-based approach for MPOs by requiring them to establish performance targets for the Federal-aid highway program based on measures that FHWA will develop in separate rulemakings (Federal-aid Highway Performance Measure Rules [RIN 2125-AF49, 2125-AF53, 2125-AF54]). These separate rulemakings will contain detailed requirements for establishing targets. This paragraph also would require MPOs to establish performance targets using the measures and standards that FTA will develop in separate rulemakings (Transit Asset Management Rule [RIN 2132-AB07] and National and Public Transportation Safety Plans Rule [RIN 2132-AB20]). As part of the planning process, in proposed paragraph (d)(2), MPOs would be required to coordinate the selection and establishment of targets. When establishing targets for the Federal-aid highway program, MPOs would be required to ensure that the MPOs' and State's targets are as consistent as practicable. When establishing transit-related targets, MPOs would be required to coordinate to the maximum extent practicable with providers of public transportation. These coordination requirements would be based on the new MAP-21 requirements in 23 U.S.C. 134(h)(2)(B) and 49 U.S.C. 5303(h)(2)(B).

Paragraph (d)(3) would require MPOs to select performance targets not later than 180 days after the date on which the relevant State or provider of public transportation establishes performance targets based on the MAP-21 requirements.

Paragraph (d)(4) would continue to build the foundational steps by requiring MPOs to integrate into the metropolitan transportation planning process the elements (goals, objectives, performance measures, and targets) in other State transportation plans and processes, as well as any plans developed by providers of public transportation in the metropolitan planning area, required as part of a performance-based program. Examples of other performance-based plans and processes include the SHSP, as defined in the HSIP (23 U.S.C. 148), the State NHS asset management plan for highways in 23 U.S.C. 119(e), the transit asset management plan as defined in 49 U.S.C. 5326, the Public Agency Safety Plan in 49 U.S.C. 5329(d), the optional State Freight Plan, as described in MAP-21 section 1118, the CMAQ performance plan in 23 U.S.C. 149(l), the congestion management process, and other State transportation plans and processes required as part of a performance-based program.

Existing § 450.306(c) would become § 450.306(e) and be changed to include that the performance-based planning aspects of the metropolitan transportation planning process, as described above in proposed new paragraph (d), are not reviewable by any court. These changes are consistent with MAP-21 changes to 23 U.S.C. 134(h)(3) and 49 U.S.C. 5303(h)(3).

Existing § 450.306 (e) and (h) would be deleted and references to the new NHS asset management plan and the Transit Asset Management Plan, other safety and security planning and review processes, plans, and programs, and the SHSP would be moved to § 450.306(d)(5). These would be moved because, as discussed above, this section includes the MAP-21 requirements to integrate elements of other performance-based plans into the metropolitan transportation planning process.

Existing § 450.306(i) would be moved to new § 450.310(c).

Section 450.308 Funding for Transportation Planning and Unified Planning Work Programs

Existing § 450.308 would be retained and updated. This section describes funding for metropolitan transportation planning and the development of Unified Planning Work Programs (regulations for these work programs are contained in 23 CFR part 420).

Proposed § 450.308(a) would remove reference to the Equity Bonus Program, formerly codified at 23 U.S.C. 105, because MAP-21 repealed this program and it is no longer available as a funding source. Proposed § 450.308(a) would also add the sentence, “At the option of the State, funds provided under 49 U.S.C. 5305(e) may also be provided to MPOs for activities that support metropolitan transportation planning.” This proposed sentence does not reflect

a change in the law, but rather would be added to clarify that funds apportioned under 23 U.S.C. 5305(e), which are primarily for the purpose of State planning and research, are a possible source of funding to MPOs for activities that support metropolitan transportation planning. Statutory references in § 450.308(a) would be updated as follows: 23 U.S.C. 104(f) becomes 23 U.S.C. 104(d), reference to 49 U.S.C. 5305(d) is added, reference to 49 U.S.C. 5339 is deleted, reference to 23 U.S.C. 104(b)(1) and (b)(3) becomes 23 U.S.C. 104(b)(2), and reference to 23 U.S.C. 133(d)(3)(E) becomes 23 U.S.C. 133(d)(4). All of these changes would be based on changes from MAP-21.

Proposed § 450.308(d) would replace the word “would” with the word “shall” to clarify that the requirements described in (d) are requirements of any simplified statement of work.

Existing § 450.308(f) would be unchanged, except FHWA and FTA propose remove “.1B” after the reference to FTA Circular C8100 and instead add the words “as amended” after the reference to FTA Circular C8100 to accommodate possible future editions of this circular. Proposed § 450.308(f) would also update the title of this circular to reflect the most recent edition, which is called “Program Guidance for Metropolitan Planning and State Planning and Research Program Grants.”

Section 450.310 Metropolitan Planning Organization Designation and Redesignation

Existing § 450.310 would be retained and revised to reflect changes from MAP-21, including changes to the structure of an MPO serving a TMA by adding representation by providers of public transportation to the list of officials that must be included. In addition, the proposed changes would move other provisions related to TMAs to this section. These changes, and other more minor changes, are described below.

Proposed § 450.310(c) is moved from existing § 450.306(i) and would be modified to reflect changes from MAP-21. In the first sentence, “designate” would be changed to “identify,” and the word “additional” would be deleted from this paragraph. The revisions would not change the meaning of this paragraph.

Consistent with MAP-21's requirements, proposed § 450.310(d)(1) would also require the structure of a MPO serving a TMA consist of representation by providers of public transportation, in addition to the officials identified in the existing regulations, and that each MPO serving a TMA satisfy the structure requirements no later than October 1, 2014. This NPRM proposes that representatives of providers of public transportation would have equal decisionmaking rights and authorities as other officials who are on the policy board of an MPO that serves a TMA. It is up to the MPO, in cooperation with providers of public transportation, to determine how this representation will be structured and established. The MPOs can restructure to meet this requirement without being redesignated by the Governor and local officials.

The FHWA and FTA have received several questions and comments

generally on how an MPO serving a TMA must be structured. As a result of these questions and comments, FHWA and FTA are requesting comment on whether any of the following questions should be addressed in the proposed regulation and, if so, how:

On September 30, 2013, FTA and FHWA published “Proposed Policy Guidance on Metropolitan Planning Organization Representation” for notice and comment. 78 FR 60015.

• Should the regulations clarify who appropriate “officials” may be?

• Can staff members or other alternates be substituted for the “officials” identified in paragraph (d)(1)?

• Can an official in paragraph (d)(1) serve in multiple capacities on the MPO board, e.g., can a local elected official or State official also serve as a representative of a major mode of transportation?

• Should the regulations provide more specificity on how each of the officials identified in paragraph (d)(1) should be represented on the MPO?

• Should the regulations include more information about MPO structure and governance?

To ease any necessary changes to MPO structure, the proposed rule includes new paragraph (d)(2), which would provide that an MPO may be restructured to meet the structure requirements without undergoing a redesignation. Since MAP-21 now provides a specific date for compliance with the required structure for an MPO serving a TMA, proposed new paragraph (d)(3) would require all the TMA MPOs to comply with this structure by October 1, 2014, except those MPOs that are exempt under 23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3). This exemption has existed in statute in some form since 1991. The FTA and FHWA's long-standing interpretation of this provision is that an exemption from the MPO structure requirements is only appropriate for an MPO where (1) the MPO operates pursuant to a State law that was in effect on or before December 18, 1991; (2) such State law has not been amended after December 18, 1991, as regards to the structure or organization of the MPO; and (3) the MPO has not been designated or re-designated after December 18, 1991. An MPO that claims it qualifies for this exemption must self-certify its exempt status with the FTA and FHWA as part of the MPO certification process described at 23 CFR 450.334 or through some other documentation. The proposed rule would add this statutory provision (23 U.S.C. 134(d)(3) and 49 U.S.C. 5303(d)(3)) to the regulations.

Existing § 450.310(l)(3) adds “described in paragraph (d).”

Section 450.312 Metropolitan Planning Area Boundaries

Proposed § 450.312 describes how metropolitan planning area boundaries would be established by agreement between the MPO and the Governor. This area is the geographic area in which the MPO carries out the metropolitan transportation planning process. This section is largely unchanged, with some minor, nonsubstantive, exceptions. Existing paragraph (a) would be split into two paragraphs. In paragraph (f), “the appropriate” would be added before “MPOs.” In paragraph (i), “reduces access disadvantages experienced by” would be revised to “improves access to.” None of these revisions are intended to change the meaning of this section.

Section 450.314 Metropolitan Planning Agreements

The metropolitan planning agreement helps facilitate the working relationship among MPOs, States, and providers of public transportation. Currently, MPOs, States, and providers of public transportation are required to form metropolitan planning agreements to delineate their respective responsibilities in the metropolitan planning process, including provisions for the cooperative development and sharing of information related to the formation of financial plans, the TIP, and the annual list of obligated projects.

The FHWA and FTA propose to revise § 450.314(a) to require that MPOs modify their existing metropolitan planning agreements to identify how the parties would work together to implement MAP-21's performance-based planning provisions. The modified metropolitan planning agreements would additionally identify

how the MPO, State, and providers of public transportation will collect transportation system performance data, select performance targets for the metropolitan area, report metropolitan area targets, report actual system performance related to those targets, and collect data for asset management plans for the NHS. These proposed changes would make the metropolitan planning agreement a focal point for establishing how the MPO, the State, and providers of public transportation will cooperatively implement the performance-based planning and related performance management provisions in MAP-21. States, MPOs, and providers of public transportation would need to coordinate their targets in key national performance areas and document expectations for future performance. Also, this section proposes that the metropolitan planning agreement describe the collection of data for the State asset management plan for the NHS. The NHS is on both State and locally owned highways. Given multiple NHS highway “owners,” the agreement can serve as a mechanism for identifying respective roles and responsibilities of the State and local governments related to collecting data for the NHS asset management plan in metropolitan areas.

Section 450.314(a) also would be revised to replace the phrase “public transportation operator(s)” with “providers of public transportation” because this is the phrase used in statute. A new § 450.314(b) would be added to require that metropolitan planning agreements should be reviewed periodically and updated as necessary. A need for changes could result from a number of factors, such as new Federal legislation or regulations. This is proposed to ensure that metropolitan planning agreements remain relevant and reflect current planning needs in metropolitan areas.

Existing § 450.314(d) describes the requirement for an agreement when more than one MPO has been designated to serve an urbanized area. Existing § 450.314(d) would become proposed § 450.314(e), and would be unchanged with the exception that it would be revised to require that MPOs modify their existing metropolitan planning agreements to identify how the parties would work together to implement MAP-21's performance-based planning provisions.

Existing § 450.314(f) describes the requirement for an agreement when part of an urbanized area that has been designated as a TMA overlaps into an adjacent MPA serving an urbanized area that is not designated as a TMA. Existing § 450.314(f) would become proposed § 450.314(g) and would be unchanged with the exception that, similar to proposed §§ 450.314(a) and 450.314(e), it would be revised to require that MPOs modify their existing metropolitan planning agreements to identify how the parties would work together to implement MAP-21's performance-based planning provisions. The MAP-21 requires that the States and MPOs coordinate their targets with each other to ensure consistency, to the maximum extent practicable. In addition, for transit-related targets, MAP-21 requires States and MPOs to coordinate their targets relating to safety and state of good repair with providers of public transportation to ensure consistency with other performance-based provisions applicable to transit providers, to the maximum extent practicable. The proposed revisions to the metropolitan planning agreement requirements in this section are intended to foster State, MPO, and public transportation provider coordination and consistency during performance target establishment. Also, in the case where there are multiple MPOs serving a single urbanized area, the agreement established under proposed § 450.314(e) would assist with coordination among the MPOs, States, and providers of public transportation serving this single urbanized area such that the individual State and MPO targets are consistent to the maximum extent practicable. Similarly, the metropolitan planning agreement established under § 450.214(f) would foster the development of consistent performance targets among the States, MPOs, and providers of public transportation in the situation where part of an urbanized area that has been designated as a TMA overlaps into an adjacent MPO serving an urbanized area that is not designated as a TMA. This coordination should help align MPO and State decisionmaking and advance performance outcomes for the States.

Section 450.316 Interested Parties, Participation and Consultation

Section 450.316 currently requires an MPO to use a documented participation plan to provide individuals, affected public agencies, representatives of public transportation employees, freight shippers, providers of freight transportation services, private providers of transportation, representatives of users of public transportation, representatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, and other interested parties with reasonable opportunities to be involved in the metropolitan transportation planning process. Examples of affected public agencies that an MPO might provide with an opportunity to be involved in the metropolitan planning process under § 450.316(a) include agencies with responsibility for economic development, human and natural resources, environmental protection, sustainability, mitigation, adaptation, climate, and air quality. The participation plan is required to include, for example, provisions for timely notice of public meetings and access to information about planning issues and processes, publishing public information, and responding to public input.

Proposed § 450.316(a)(2) would be revised to change the general citation to the transportation conformity regulations (“40 CFR part 93”) to the more specific regulatory citation to the provision in the transportation conformity regulations that addresses consultation (“40 CFR 93.105”).

Proposed § 450.316(b)(3) would be revised to change the statutory reference from 23 U.S.C. 204 to 23 U.S.C. 201-204. Although the relevant MAP-21 provision (23 U.S.C. 134(g)(3)(B)(iii)) continues to reference only 23 U.S.C. 204, there were significant changes made to the Federal Lands Highways Program under MAP-21 and that program was split into several different provisions—23 U.S.C. 201-204. The metropolitan planning process must provide for the design and delivery of transportation services provided by recipients of assistance under all these provisions.

Section 450.318 Transportation Planning Studies and Project Development

Existing § 450.318, which largely mirrors existing § 450.212, would be retained unchanged except for the deletion of existing paragraph (d). The FHWA and FTA propose to delete paragraph (d) due to revisions made to 49 U.S.C. 5309 by MAP-21. More specifically, MAP-21 removed the requirement for a stand-alone alternatives analysis for projects that seek Section 5309(d) or (e) funding. The reader should refer to the discussion provided under § 450.212 for an explanation of the proposed retention.

Section 450.320 Development of Programmatic Mitigation Plans

Proposed § 450.320 would follow the same language and format as proposed § 450.214, with the exception of changing references from the State or statewide to MPO or metropolitan, as

necessary. It would be duplicated in subpart C to avoid the need for cross referencing and to provide the same option for MPOs to develop programmatic mitigation plan(s) in the metropolitan transportation planning process. The reader should refer to the discussion provided under § 450.214 for an explanation of the proposed changes.

Section 450.322 Congestion Management Process in Transportation Management Areas

In TMAs, the metropolitan transportation planning process must include a congestion management process, 23 U.S.C. 134(k)(3). The congestion management process provides for the effective management of new and existing transportation facilities through the use of travel demand reduction and operational strategies. When developing and implementing a congestion management process, MPOs may use the process to support the performance-based approach to transportation decisionmaking. Specifically, the congestion management process may support the performance-based approach to metropolitan transportation planning in this part, support applicable performance measures established under section 23 U.S.C. 150(c), and also support applicable national goals described in section 23 U.S.C. 150(b) and in 49 U.S.C. 5301.

Existing § 450.320(b) would be revised and split into § 450.322(b) and (c). Proposed § 450.322(c) would add “and improve efficient service integration within and across modes, including highway, transit, passenger and freight rail operations, and non-motorized transport” to the list of strategies to manage demand and improve operations. This added provision would encourage States, MPOs, and operators of public transportation to develop multimodal strategies to manage demand and improve operations.

Existing § 450.320(c) would become § 450.322(d) and be revised as follows. Paragraph (d)(1) would be revised to add “underlying” before “causes of recurring and non-recurring congestion” to provide clarity with no change in meaning. Paragraph (d)(2) would be revised to add “including providers of public transportation.” This revision would emphasize that States and MPOs need to consult with local officials and operators of major modes of transportation, including providers of public transportation as they define levels of acceptable system performance as part of the congestion management process. This change closely tracks MAP-21's added provision in 23 U.S.C. 134(d)(2) and 49 U.S.C. 5303(d)(2), which requires representation of providers of public transportation on MPOs.

Section 450.324 Development and Content of the Metropolitan Transportation Plan

Existing § 450.322 would become § 450.324. It would be revised to reflect MAP-21's provision that each MPO must implement a performance-based approach in the development of its metropolitan transportation plan. The metropolitan transportation plan is a multimodal transportation plan addressing at least a 20-year planning horizon for the metropolitan planning area. The proposed performance-based changes to this section would require each MPO to describe in its metropolitan transportation plan the performance measures and performance targets it used to assess the performance of its transportation system. The MPO must also include a system performance report in the plan that contains its evaluation of the condition and performance of the transportation system with respect to performance targets established to address the performance measures identified under 23 U.S.C. 150(c), and 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d). The MPO must also report on the progress it achieves in meeting its performance targets in comparison with the system performance recorded in previous reports. This section is also revised to propose that MPOs may use scenario planning, a tool to inform decisionmakers about the implications of various transportation system investments and performance, during the development of their plan. Finally, this section encourages the MPO, when developing the financial plan as part of the long range plan, to assess the appropriateness of innovative finance techniques in its development of financing strategies. In addition, when assessing its capital investments as part of the plan, the MPO should consider the financial plans and investment strategies that are part of the State Asset Management Plan for the NHS (as defined in 23 U.S.C. 119(e)) and of the investment priorities of the public transit asset management plan (as discussed in 49 U.S.C. 5326). These changes, and other minor changes, are as follows.

Proposed § 450.324(a) would be revised to add “In formulating the transportation plan, the metropolitan planning organization shall consider factors described in § 450.306 as the factors relate to a 20-year forecast period.” to clarify that MPOs shall consider planning factors that are described in § 450.306.

Existing § 450.322(b) would be retained as proposed § 450.324(b) and be revised to provide clarity by changing “lead to” to “provide for.” Reference to “including accessible pedestrian and bicycle transportation facilities” would be added to be consistent with 23 U.S.C. 134(c)(2) and 49 U.S.C. 5303(c)(2).

Existing § 450.322(f) would become § 450.324(f) and be revised to add the MAP-21 requirements or clarify existing requirements for a metropolitan transportation plan, as described below.

Existing § 450.322(f)(1) would become § 450.324(f)(1) and be revised to require that, in addition to the projected demand for transportation, an MPO must include the current transportation demand of persons and goods in the metropolitan transportation plan. This change would enable the public and decision makers to better understand existing transportation system needs.

Existing § 450.322(f)(2) would become proposed § 450.324(f)(2). It would be revised for clarity and to include MAP-21 changes that specifically require MPOs to identify “nonmotorized transportation facilities” in the Metropolitan Transportation Plan. While the term “nonmotorized transportation facilities” is added to reflect MAP-21, the existing regulation requires MPOs to identify pedestrian walkways and bicycle facilities in their metropolitan transportation plans. To reflect this change, this paragraph would be revised to state “nonmotorized transportation facilities (e.g., pedestrian walkways and bicycle facilities).” See 23 U.S.C. 134(i)(2)(A)(i) and 49 U.S.C. 5303(i)(2)(A)(i). This section also would be updated to reflect that the legislation eliminated the requirement for an Alternatives Analysis.

Proposed new paragraphs (f)(3) and (4) would require that MPOs include important elements of MAP 21's performance-based approach into the metropolitan transportation plan. Specifically, MAP-21 requires that MPOs describe performance targets, evaluate the condition and performance of the transportation system, and report in the metropolitan transportation plan on progress it has achieved toward their performance targets. See 23 U.S.C. 134(i)(2)(B) and (C) and 49 U.S.C. 5303(i)(2)(B) and (C).

New paragraph (f)(3) proposes to require that an MPO describe in its metropolitan transportation plan the performance measures and performance targets that it used to assess the

performance of the transportation system.

New paragraph (f)(4) proposes to require that an MPO include a system performance report that describes the MPO's evaluation of the condition and performance of the transportation system with respect to performance targets identified in § 450.324(f)(3) and the progress toward the achievement of the performance targets. This section also proposes to require that MPOs that elect to use scenario planning during the development of their metropolitan transportation plans must also describe how the preferred scenario would improve the condition and performance of the transportation system and how changes in local development policies and investment strategies would impact the cost of achieving established performance targets. The option for MPOs to develop multiple scenarios is discussed below in proposed § 450.324(i).

Existing § 450.322(f)(5) would become § 450.324(f)(7) and be revised to include a provision that as MPOs assess capital investment and other strategies to preserve the existing and projected metropolitan transportation infrastructure and provide for multimodal capacity increases, they should consider the financial plan and investment strategies from the newly required State asset management plan for the NHS (as defined in 23 U.S.C. 119(e)) and the investment priorities of the newly required public transit asset management plans (as discussed in 49 U.S.C. 5326). Information from these newly required plans can inform MPOs in their capital investment decisionmaking process. Furthermore, they may also consider energy plans, and strategies that will enhance the resiliency of the transportation system to current and future conditions. Such conditions could include severe weather events and changes in weather patterns.

Existing § 450.322(f)(9) would become proposed § 450.324(f)(8), which adds references to “transportation alternatives” and “associated transit improvements,” as described in 23 U.S.C. 101(a) and 49 U.S.C. 5302(a) respectively, to reflect new programs that fund projects similar to those funded under the former Transportation Enhancements and Transit Enhancement Programs. The statute still requires “transportation and transit enhancement activities” to be included in a metropolitan transportation plan (23 U.S.C. 134(i)(2)(H) and 49 U.S.C. 5303(i)(2)(H)).

Existing § 450.322(f)(10) would become § 450.324(f)(11). In § 450.324(f)(11)(iii), language would be added, “the financial plan may include an assessment of the appropriateness of innovative finance techniques (for example, tolling, pricing, bonding, public private partnerships, or other strategies) as revenue sources for projects in the plan,” in consideration of 23 U.S.C. 106(h)(3)(D), which encourages early consideration of innovative finance as part of a project financial plan. Reference to the December 11, 2007, date in § 450.324(f)(11)(iv) would be deleted because this date has passed.

Existing § 450.322(h) would become § 450.324(h) and would be revised to state that MPOs should integrate into the metropolitan transportation plan the goals, objectives, performance measures, and strategies described in the HSIP, including in the SHSP required under 23 U.S.C. 148 and the Public Transportation Agency Safety Plan required under 49 U.S.C. 5329, the FHWA and FTA propose removing reference to the term “targets” because MPOs would be required to integrate targets from these plans and processes into the transportation planning process under proposed § 450.306(d).

Consistent with MAP-21, the proposed § 450.324(i) would encourage MPOs to elect to undertake scenario planning as part of the development of the metropolitan transportation plan. Scenario planning is an analytical tool that provides a framework for developing a shared vision of the future. It informs decisionmakers and the public about the potential implications of various investments and policies on transportation system condition and performance. Scenario planning is currently used by many MPOs as part of their transportation planning process and FHWA and FTA consider it a best practice. This proposed section describes the suggested framework that MPOs may follow as they develop those scenarios including potential regional investment strategies, alternative distributions of population and employment, land use, future climate scenarios, system performance measures including locally developed measures, and the relationship among a wider array of investments and local priorities. See 23 U.S.C. 134(i)(4) and 49 U.S.C. 5303(i)(4).

Existing § 450.322(l) would be retained and revised and become proposed § 450.324(m). Language would be added to describe the 12-month conformity lapse grace period in accordance with the Clean Air Act and the transportation conformity regulations (40 CFR part 93, subpart A). This change would be included here because it provides a grace period of up to 1 year before the existing conformity determination on the metropolitan plan will lapse. Specific information on conformity lapse grace period can be found in the transportation conformity regulations at 40 CFR 93.104.

The FHWA and FTA propose these revisions to incorporate the changes to the conformity regulations that have occurred since the last revisions to 23 CFR part 450. In addition, the general reference to the interagency consultation definition in “40 CFR part 93” would be replaced with the more specific citation at “40 CFR 93.105.”

For more information please see Transportation Conformity Rule Amendments to Implement Provisions contained in the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), 73 FR 4420, 4423 (Jan. 24, 2008).

Section 450.326 Development and Content of the Transportation Improvement Program (TIP)

Existing § 450.324 would become § 450.326 and would describe the development and the content of the TIP. The TIP is the prioritized program of transportation projects covering a period of 4 years that is developed and adopted by the MPO and approved by the Governor. This section would be revised to incorporate MAP-21's transformation of the planning and programming process to a performance-based planning and programming process (see proposed new paragraphs (c) and (d)) as well as other minor changes. The proposed revisions are as follows.

Proposed § 450.326(a) would be revised to add one of the MAP-21 general requirements for a TIP—that the TIP “shall reflect the investment priorities established in the current metropolitan transportation plan.” See 23 U.S.C. 134(j)(1)(A)(ii) and 49 U.S.C. 5303(j)(1)(A)(ii).

The FHWA and FTA propose to incorporate MAP-21 requirements for a performance-based TIP in proposed new § 450.326(c) and new § 450.326(d). See 23 U.S.C. 134(j)(1)(A) and (j)(2)(D) and 49 U.S.C. 5303(j)(1)(A) and (j)(2)(D). Proposed paragraph (c) would require that MPOs design TIPs that make progress toward achieving MPO performance targets. Importantly, proposed paragraph (d) would require the TIP describe how the projects in the TIP would achieve the MPO performance targets—linking investment priorities to those targets. Because the development of a TIP is a public process, these new requirements would promote greater accountability and transparency of transportation investment decisions.

Existing § 450.324(c) would become § 450.326(e) and be revised to reflect MAP-21 changes to programs, phrases, and plans. Those changes are “transportation enhancements” would become “transportation alternatives,” and “transit enhancements” would become “associated transit improvements.” “Strategic Highway Safety Plan” would be updated to become the “Highway Safety Improvement Program” since the HSIP is the safety funding program associated with funding safety projects in the TIP. “Federal Lands Highway Program” would be changed to “Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program” to reflect MAP-21 changes to 23 U.S.C. 201-204. In addition, “accessible” would be added before “pedestrian walkways.” Statutory citations referenced in proposed § 450.326(e)(2) would be changed as follows: 23 U.S.C. 104(f) becomes 23 U.S.C. 104(d), and 49 U.S.C. 5339 is deleted. Under proposed § 450.326(e)(4), “National Highway System” and “Equity Bonus” would be deleted because the programs are not continued under MAP-21, and eligibility is not continued under the NHPP program that replaced the NHS program. In addition “State planning and research projects” is replaced with “metropolitan planning projects” to correct an error in the existing regulations. Because of the creation of FTA's emergency relief funding program, FHWA and FTA want to clarify that § 450.324(c)(5), which indicates that emergency relief projects meeting certain conditions are not required to be included in the TIP, would not apply to resiliency projects funded under 49 U.S.C. 5324.

Existing § 450.324(f) would become proposed § 450.326(h) and be updated to add “subpart A” after the second reference to “40 CFR part 93” to be more specific regarding the citation for the transportation conformity regulations.

Existing § 450.324(h) would become § 450.326(j) and be unchanged, except that the reference to 270 days after the effective date of the old rule would be deleted because this date has passed and reference to “(but is not required to)” after the word “may” would be deleted because it is redundant.

Consistent with the new requirements to integrate elements of other performance-based plans into the metropolitan transportation planning process as described above, a new paragraph (m) would be added to indicate that the TIP should be informed by the financial plan and investment strategies from the State asset management plan for the NHS and the public transit asset management plan. See 23 U.S.C. 134(h)(2)(D) and 49 U.S.C. 5303(h)(2)(C). The financial plan of the State asset management plan for the NHS and the investment strategies of the public transit asset management plan are elements of new performance-based plans required under MAP-21. The FHWA and FTA propose in this section that MPOs consider these elements as part of the investment decisionmaking process to inform the TIP.

Existing § 450.324(k) would be deleted because the topic is addressed in proposed § 450.324(j).

Existing § 450.324(m) would become proposed § 450.326(p) and be revised to include language describing the 12-month conformity lapse grace period in accordance with the Clean Air Act and the transportation conformity regulations (40 CFR part 93, subpart A). This change would be included here because it provides a grace period of up to 1 year before the existing conformity determination on the TIP will lapse. Specific information on conformity lapse grace period can be found in the transportation conformity regulations at 40 CFR 93.104. In addition, the general reference to the interagency consultation definition in “40 CFR part 93” would be replaced with the more specific citation at “40 CFR 93.105.”

Section 450.332 Project Selection From the TIP

Existing § 450.330 would become proposed § 450.332. References to projects funded under the Bridge or Interstate maintenance programs would be removed because these programs were eliminated in MAP-21. Also, “Federal Lands Highway Program” would be changed to “Tribal Transportation Program, Federal Lands Transportation Program, and Federal Lands Access Program” to reflect MAP-21 changes to 23 U.S.C. 201-204.

Section 450.336 Certifications and Federal Certifications

Existing § 450.334 would be retained and become § 450.336. Proposed § 450.336 describes the long-standing requirement that the State and the MPO(s) would periodically certify that the metropolitan transportation planning process is being carried out in accordance with all applicable requirements and goes on to specifically describe what the applicable requirements are.

The only change to this section would be updating reference in § 450.336(a)(5) from the SAFETEA-LU provision to the successor provision in MAP-21.

The MPO self-certifications and Federal certifications of the planning process in TMA areas would continue to be based on meeting the requirements of 23 U.S.C. 134 and 49 U.S.C. 5303, subject to the phase-in requirements discussed in proposed § 450.340, and include meeting the requirements of the MAP-21 planning provisions implemented through this regulation. Some of the new planning requirements under Titles 23 and 49, which MPOs would have to meet to self-certify, would include the performance-based planning requirements. As part of the self-certification, larger MPOs would also certify that they are meeting the new requirements for MPO policy board representation in TMA areas. The FHWA and FTA would review that TMAs are meeting these requirements during FHWA and FTA certification reviews. The FHWA and FTA would conduct a certification review of each TMA at least once every 4 years.

Section 450.340 Phase-In of New Requirements

For purposes of phasing in the MAP-21 requirements, there are two categories of changes. The first category is those changes that are unrelated to performance management, and the second category is those changes that are performance management based. The FHWA and FTA propose two different phase-in schedules, one for each category of changes.

The proposed changes to this section are similar to the changes made to the phase-in requirements for the statewide and nonmetropolitan transportation planning provisions in proposed 23 CFR 450.226. With respect to any non-performance management changes, FHWA and FTA propose that the MPOs should follow the same phase-in requirements as the States, including not deviating from their established planning update cycle to implement the changes required by MAP-21 to the planning process. The structure of the planning requirements is based on integrated statewide and metropolitan planning processes. If the metropolitan planning process had a different phase-in schedule than the statewide planning process, the integration of the two processes would be eroded. There are provisions throughout the statute and regulations that support this proposal and demonstrate how the processes are integrated, including:

• 23 U.S.C. 135(b)(1) and 49 U.S.C. 5304(b)(1) require the State to coordinate planning carried out under the statewide and nonmetropolitan provisions with the transportation

planning activities carried out under the metropolitan planning provisions.

• Existing regulations (23 CFR 450.216(b)) require that the TIP be included without change in the STIP, directly or by reference, after approval of the TIP by the MPO and the Governor.

• Existing regulations (23 CFR 450.218) provide that the State shall certify that the transportation planning process is carried out in accordance with the applicable metropolitan and statewide planning requirements in 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304.

• In 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, there are requirements that either the MPO cooperate with the State on the development of the MPO financial plan and the TIP or that the State cooperate with the MPO in development of the statewide transportation plan and the STIP.

Because of all of these requirements to cooperate in the development of documents and to consider the planning processes together, FHWA and FTA determined that it is important that both the metropolitan and the statewide and nonmetropolitan processes have similar phase-in requirements. The MPOs, as well as States, also would have the option of developing any planning products consistent with the new regulatory requirements immediately upon issuance of the planning final rule.

With respect to any performance management changes, the MPOs would still need to consider the timing of implementing the new performance-based planning requirements (e.g., new requirements for the Metropolitan Planning Agreement).

Appendix A—Linking the Transportation Planning and NEPA Processes

The Agencies propose to retain Appendix A, which will continue to be referenced in §§ 450.212 and 450.318. References to Alternatives Analysis studies as required for funding under 49 U.S.C. 5309 are proposed to be removed pursuant to the elimination of that requirement by MAP-21. References to Alternatives Analysis studies as optional tools for linking planning with the environmental process will be retained, as these studies may still be completed by project sponsors at their option.

49 CFR Part 613

This section would be revised to refer to the proposed regulations in 23 CFR part 450. Because FHWA and the FTA jointly administer the transportation planning and programming process, we propose to keep the regulations identical.

V. Regulatory Analyses and Notices

All comments received on or before the close of business on the comment closing date indicated above will be considered and available for examination in the docket at the location specified in the

ADDRESSES

section above. Comments received after the comment closing date will be filed in the docket and considered to the extent practicable. In addition to late comments, we will continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material.

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

The FHWA and FTA have determined preliminarily that this rulemaking would be a significant regulatory action within the meaning of Executive Order 12866, and is significant under DOT regulatory policies and procedures because of substantial State, congressional, local government, and public interest. These interests involve receipt of Federal financial support for transportation investments, appropriate compliance with statutory requirements, and balancing of transportation mobility and environmental goals. The changes proposed herein would add new analysis, coordination, and documentation requirements (e.g., performance-based planning and programming, cooperation with local officials responsible for transportation or, if applicable, RTPOs, and new requirements for TMA MPO policy board membership). In preparing this proposal, FHWA and FTA have sought to maintain existing flexibility of operation wherever possible for States, MPOs, and other affected organizations, and to use existing processes to accomplish any new tasks or activities.

The FHWA and FTA have conducted a cost analysis identifying each of the proposed regulatory changes that would have a significant cost impact for MPOs, States, or providers of public transportation, and have estimated those costs on an annual basis. This cost analysis is included as a separate document, entitled “Regulatory Cost Analysis of Proposed Rulemaking,” and is available for review in the docket.

The FHWA and FTA do not have specific data to assess the monetary value of the benefits to the proposed changes to the planning process made by this rule. The FHWA and FTA have not been able to find data or empirical studies to assist it in monetizing or quantifying the benefits of this NPRM. In addition, estimates of the benefits of this NPRM would be difficult to develop. The FHWA and FTA expect that the proposed regulatory changes to the planning process would improve decisionmaking through increased transparency and accountability and support the national goals described in 23 U.S.C. 150(b) and 49 U.S.C. 5301. The proposal would promote transparency by requiring establishment of performance targets in key areas, such as safety, infrastructure condition, system reliability, emissions, and congestion, and by expressly linking investment decisions to the achievement of such targets. This would be documented in plans developed with public review. The proposal would promote accountability through mandating reports on progress toward meeting those targets. The FHWA and FTA expect that the proposed regulatory changes to the planning process would support the national goals described in 23 U.S.C. 150(b) and 49 U.S.C. 5301.

Beyond improved transparency and accountability, there are several other benefits of the proposal. Other elements of the proposal may improve decisionmaking, such as representation by providers of public transportation on each MPO that serves a TMA, updating the metropolitan planning agreements, requiring States to have a higher level of involvement with nonmetropolitan local officials, and providing an optional process for the creation of RTPOs. The proposal may enhance the statewide and nonmetropolitan transportation planning process by requiring State DOTs to cooperate with nonmetropolitan local officials or RTPOs, if applicable, when conducting rural transportation planning giving the local officials or RTPOs a stronger voice in the development of planning products and project selection. The proposed option for MPOs to use scenario planning in the development of their metropolitan transportation plans provides MPOs a framework for improved decisionmaking through comparison of the performance tradeoffs of various locally determined scenarios for transportation investment. Although conducting scenario planning entails costs, savings from improved implementation could offset these costs. These benefits will improve the transportation planning process. The FHWA and the FTA invite comments on

the potential costs and benefits that might be associated with the option for MPOs to use scenario planning during development of the metropolitan transportation plan.

The proposed option for State DOTs and MPOs to develop a programmatic mitigation plan as part of the statewide and the metropolitan transportation planning processes provides a framework whereby States and MPOs may identify environmental resources early in the planning process and as a result, potentially minimize or avoid impacts to these resources. This has the potential to streamline project development and to protect environmental resources and may have benefits that outweigh the costs of performing the analysis. The FHWA and the FTA invite comments on the potential costs and benefits that might be associated with the option for States and MPOs to develop a programmatic mitigation plan as part of the statewide or metropolitan transportation planning process.

Based on the cost analysis, we estimate the total cost of this proposed rule is $30.8 million. Of this total, the estimated costs for all 52 States

and an estimated 420 MPOs would be approximately $28.3 million per year. Eighty percent of these costs are directly reimbursable through Federal transportation funds allocated for metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 5303(h)) and for State planning and research (23 U.S.C. 505 and 49 U.S.C. 5313). The estimated cost to 600 providers of public transportation would be approximately $2.4 million per year. Eighty percent of these costs are directly reimbursable through Federal transportation funds allocated for urbanized area formula grants (4 U.S.C. 5307, 49 U.S.C. 5311).

The MAP-21 did not significantly increase the mandatory set-aside in Federal funds for metropolitan transportation planning, as well as Statewide Planning and Research funding. The States, providers of public transportation, and MPOs have the flexibility to use certain other categories of Federal highway dollars for transportation planning, such as Surface Transportation Program funds, if they so desire. Consequently, the increase in non-Federal cost burden attributable

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