Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 450 and 771

Federal Transit Administration

49 CFR Part 613

[Docket No. FHWA-2013-0037]

RIN 2125-AF52; 2132-AB10

Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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

DATES:

Effective June 27, 2016.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

This document, the notices of proposed rulemakings (NPRM) published on June 2, 2014 (79 FR 31784), and September 10, 2014 (79 FR 53673), and all comments received may be viewed online through the Federal eRulemaking portal at

http://www.regulations.gov

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

https://www.federalregister.gov

and the Government Printing Office's Web site at:

http://www.gpo.gov.

Table of Contents for Supplementary Information

I. Executive Summary

A. Purpose of the Regulatory Action

B. Summary of Major Provisions and Key Changes From NPRM

1. Performance-Based Planning and Programming

2. New Emphasis on Nonmetropolitan Transportation Planning

3. Additions to the Metropolitan Planning Program

4. Use of Planning Products in Project Development

5. Programmatic Mitigation

6. Other Changes

7. Changes Resulting From the FAST Act

C. Costs and Benefits

II. Acronyms and Abbreviations

III. Background

IV. Summary of Comments

A. Specific Topics for Which FHWA and FTA Requested Comments

B. Recurring Comment Themes on Major Provisions of the Rule

V. Section-by-Section Discussion

VI. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose of the Regulatory Action

The MAP-21 transformed the Federal-aid highway program and the Federal transit program by requiring a transition to performance-driven, outcome-based approaches to key areas. With respect to planning, although MAP-21 leaves the basic framework of the planning process largely untouched, the statute introduced critical changes to the planning process by requiring States, MPOs, and operators of public transportation to link investment priorities to the achievement of performance targets that they would establish to address performance measures in key areas such as safety, infrastructure condition, congestion, system reliability, emissions, and freight movement. With respect to planning, the FAST Act left the provisions from MAP-21 intact and made minor revisions to existing provisions.

Accordingly, the final rule establishes that the statewide and metropolitan transportation planning processes must provide for the use of a performance-based approach to decisionmaking in support of the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301. The final rule requires that States, MPOs, and operators of public transportation establish targets in key national performance areas to document expectations for future performance and that States, MPOs, and operators of public transportation must coordinate the targets that they set for key areas. It further establishes that MPOs must reflect those targets in the MTPs and that States must reflect those targets in their long-range statewide transportation plans. The final rule establishes that the States and MPOs must each describe the anticipated effect of their respective transportation improvement programs toward achieving their targets. As MAP-21 contained new performance-related provisions requiring States, MPOs, and operators of public transportation to develop other performance-based plans and processes, the final rule establishes that States and MPOs must integrate the goals, objectives, performance measures, and targets of those other performance-based plans and processes into their planning processes.

To support the effective implementation of a performance-based planning process, the final rule establishes that every MPO serving an area designated as a transportation management area (TMA) must include on its policy board an official (or officials) who is formally designated to

represent the collective interests of the operators of public transportation in the metropolitan planning area (MPA) and will have equal decisionmaking rights and authorities as other officials on its policy board. It also establishes the option for MPOs to use scenario planning during the development of their MTPs. Scenario planning is an analytical framework to inform decisionmakers about the implications of various investments and policies on transportation system condition and performance.

To continue implementation of the MAP-21 project delivery provisions concerning coordination between the transportation planning process and the environmental review process, the final rule amends the existing planning regulations to add a reference to a new statutory process for integrating planning and the environmental review activities, but preserves other authorities for integration. It also establishes an optional framework for the States and MPOs to develop programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes.

To support FAST's minor amendments to the planning process, this final rule amends the existing planning regulations to add new planning factors for States and MPOs to consider and implement as part of the planning process. It adds “takes into consideration resiliency needs” to the purposes of the statewide and nonmetropolitan and the metropolitan transportation planning processes. It adds new parties that States and MPOs shall provide early and continuous involvement opportunities to in the transportation planning process and that States and MPOs shall allow to comment on the long-range statewide transportation plan and the metropolitan transportation plans. It provides MPO's serving TMA's with an optional framework for developing a congestion management plan, and it adds consideration of the role intercity buses may play to the long-range statewide transportation plan and the metropolitan transportation plan. It also makes reducing the vulnerability of the existing transportation infrastructure to natural disasters a part of the metropolitan transportation plan. It provides structure for the transit representation on MPOs serving TMA areas. It also provides a revised new authority for the use of planning information in the environmental review process that States and MPOs may use. The final rule also contains FAST's requirement that long-range statewide transportation plans shall include a description of performance measures and targets and shall include a system performance report. Previously under MAP-21 this requirement was a “should.” These new or revised provisions from the FAST Act have been included in the final rule without changing the language used in the FAST Act.

B. Summary of Major Provisions and Key Changes From NPRM

The final rule retains the major provisions of the NPRM with some changes based on the review and analysis of comments received. In the final rule, FHWA and FTA make the statewide, metropolitan, and nonmetropolitan transportation planning regulations consistent with current statutory requirements. The final rule establishes the following: A new mandate for States and MPOs to take a performance-based approach to planning and programming; a new emphasis on the nonmetropolitan transportation planning process, by requiring States to have a higher level of involvement with nonmetropolitan local officials and providing a process for the creation of RTPOs; a structural change to the membership of the larger MPOs; a new framework for voluntary scenario planning; new authority for the integration of the planning and environmental review processes; and a process for programmatic mitigation plans. Section references below refer to the sections of the regulatory text for title 23 of the Code of Federal Regulations (CFR).

1. Performance-Based Planning and Programming

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

1

As part of this new performance-based approach, recipients of Federal-aid highway program funds and Federal transit funds are required to link the investment priorities contained in the Statewide Transportation Improvement Program (STIP) and Transportation Improvement Program (TIP) to achievement of performance targets. In a series of rulemakings, FHWA and FTA will establish national performance measures in key areas, including safety, infrastructure condition, congestion, system reliability, emissions, and freight movement.

1

See,

e.g.,

23 U.S.C. 150(a).

Sections 450.206 and 450.306 were amended to establish the requirement that States, MPOs, and operators of public transportation use these measures to establish targets in the key national performance areas to document expectations for future performance.

2

The final rule further establishes that States and MPOs must coordinate their respective targets with each other to ensure consistency to the maximum extent practicable. Although proposed in the NPRM, the final rule does not require that States select and establish performance targets in coordination with Federal Lands Management agencies. The final rule requires that for transit-related targets, States and MPOs must coordinate their selection of targets relating to transit safety and transit state of good repair to the maximum extent practicable with operators of public transportation to ensure consistency with other performance-based provisions applicable to operators of public transportation.

2

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

The MAP-21 performance-related provisions also require States, MPOs, and operators of public transportation to develop other performance-based plans and processes or add new requirements on existing performance-based plans and processes. These performance-based plans and processes include the Congestion Mitigation and Air Quality Improvement (CMAQ) Program performance plan, the strategic highway safety plan, the public transportation agency safety plan, the highway and transit asset management plans, and the State freight plan. Sections 450.206 and 450.306 were further amended to establish that States and MPOs integrate the goals, objectives, performance measures, and targets of these other performance plans and processes into their planning process.

3

This integration would help ensure that key performance elements of these other performance plans are considered as part of the investment decisionmaking process. To provide States and MPOs with the needed flexibility to develop their approaches to integrating the performance-based plans into their planning processes as requested by multiple commenters, FHWA and FTA deleted proposed sections that would require the consideration of elements of these plans in the development of the

long-range statewide transportation plans,

4

MTPs,

5

TIPs,

6

and STIPs.

7

3

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

4

Proposed section 450.216(n).

5

Proposed section 450.324((f)(7).

6

Proposed section 450.218(o) and proposed section 450.218(r).

7

Proposed section 450.326(d) and proposed section 450.326(m).

Section 450.208 in the NPRM and in the final rule discusses coordination of planning process activities. Section 450.208(e) of the NPRM proposed that, in carrying out the statewide transportation planning process, States shall apply asset management principles and techniques, consistent with the State Asset Management Plan for the National Highway System (NHS), the Transit Asset Management Plan, and the Public Transportation Safety Plan. Because this is not a statutory requirement and the statewide and nonmetropolitan transportation planning process is much broader than an asset management plan, FHWA and FTA changed “shall” to “should” in this provision. Section 450.208(g) in the NPRM would have required that a State integrate the goals, objectives, performance measures, and targets into the statewide transportation planning process, as appropriate from a specified list of performance-based plans—a requirement that was also listed in section 450.206(c). This requirement remains, however, the paragraph in section 450.208(g) was deleted from the final rule as it duplicates section 450.206(c)(4).

Section 450.210 requires that States shall provide opportunities for public review and comment at key decision points in the transportation planning process and for nonmetropolitan local official participation in the development of the long-range State plan and the STIP. Consistent with the requirement to engage the public in the transportation planning process, FHWA and FTA added section 450.210(a)(3) to the final rule, which states that: “With respect to the setting of targets, nothing in this part precludes a State from considering comments made as part of the State's public involvement process.”

Section 450.314 was amended to require that MPOs identify how they will cooperatively implement these performance-based planning provisions with States and operators of public transportation. Rather than requiring a reopening of metropolitan planning agreements as proposed in the NPRM, the final rule provides the option documenting it either as part of the metropolitan planning agreements, or documenting it in some other means outside of the metropolitan planning agreements as determined cooperatively by the MPO(s), State(s), and providers of public transportation. Whichever option is selected, section 450.314(h) establishes that the MPO(s), the State(s), and the providers of public transportation must jointly agree upon and document in writing the coordinated processes for the collection of performance data, the selection of performance targets for the metropolitan area, the reporting of metropolitan area targets, and the reporting of actual system performance related to those targets. The documentation must also describe the roles and responsibilities for the collection of data for the NHS. Including this description is critical because of the new requirements for a State asset management plan for the NHS and establishment of performance measures and targets.

8

8

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

Sections 450.216 and 450.324 discuss the development of the long-range statewide transportation plan and the MTP. In the final rule, section 450.324 was amended to establish that, once performance targets are selected by MPOs, MPOs must reflect those targets in their MTPs. As a result of FAST, the amended section 450.216 requires States to do the same. Accordingly, amended section 450.324 establishes

9

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

10

Amended section 450.216 requires States to include similar information in their transportation plans.

11

Sections 450.216(n) and 450.324(f)(7) of the NPRM proposed that the long-range statewide transportation plan and the MTP should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plan(s). As the language is not statutory, and many commented that it could generate confusion and inconsistent enforcement, FHWA and FTA removed these subparagraphs from the final rule. However, FHWA and FTA note that the statute, section 450.206(c)(4), and section 450.306(d)(4) require that States and MPOs integrate the goals, objectives, performance measures, and targets described in other performance-based plans into their planning processes. The final rule will provide States and MPOs the flexibility to determine how to integrate the performance-based plans into their planning processes.

9

See proposed sections 450.216, 450.218, 450.324 and 450.326.

10

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

11

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

Sections 450.218 and 450.326 were amended to establish that, as part of the State and MPO programs of projects (the STIPs and TIPs, respectively), the States and MPOs must describe, to the maximum extent practicable, the anticipated effect of the investment priorities (or their program of transportation improvement projects) toward achieving the performance targets.

12

As the long-range plans, STIPs, and TIPs direct investment priorities, it is critical to ensure that performance targets are considered during the development of these documents. However, sections 450.218(r) and 450.328(d), which proposed that a STIP (and TIP) should be consistent with the strategies to achieve targets presented in other performance management plans such as the highway and transit asset management plans, the Strategic Highway Safety Plan, the public transportation agency safety plan, the CMAQ performance plan, and the State freight plan (if one exists), are not included in the final rule.

12

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

The FHWA and FTA removed this paragraph in the final rule, noting that the statute and sections 450.206(c)(4) and 450.306(d)(4) require that States and MPOs integrate the goals, objectives, performance measures, and targets described in other performance-based plans into their planning processes. The FHWA and FTA wish to provide States and MPOs the flexibility to determine how State asset management plans for the NHS and public transit asset management plans are considered when STIPs and TIPs are being developed.

Finally, proposed section 450.326(n) was changed to 450.326(m) in the final rule. The phrase “or funds under 49 U.S.C. 5307” was deleted from this paragraph as it is not consistent with FTA Circular C9030.1E, which permits section 5307 funds to be suballocated according to a formula.

2. New Emphasis on Nonmetropolitan Transportation Planning

This regulation also places a new emphasis on the importance of nonmetropolitan transportation planning. This new emphasis, as proposed in the NPRM, is retained in the final rule without change. The final rule retains sections 450.208-450.210

and 450.216, without alteration from the NPRM, in which State “consultation” with local officials or RTPOs, if applicable, was changed to “cooperation” and States have the option to establish and designate RTPOs to conduct transportation planning in nonmetropolitan areas. Section 450.210(d)(1) provides the option that a State may establish an RTPO which shall be a multijurisdictional organization of nonmetropolitan local officials or their designees who volunteer for such organizations and representatives of local transportation systems who volunteer for such organizations. The FHWA and FTA note that the establishment of an RTPO by a State is optional and that a State can choose to retain its existing rural planning organizations (RPO). However, the final rule affirms that in order to be treated as an RTPO under this regulation, any existing regional planning organization must be established and designated as an RTPO under the provisions of this section. The final rule describes its required structure and responsibilities.

Related to the new emphasis on nonmetropolitan transportation planning, FHWA and FTA did not include the proposed change to the definition of “consideration” in section 450.104. Multiple commenters noted that to require States and MPOs to take into account the consequences, in addition to the opinions, actions, and relevant information from other parties when making a decision or determining a course of action, would be extraordinarily burdensome and with limited benefit. The FHWA and FTA also corrected sections 450.216(h) and 450.218(c) to refer to the new requirements for a cooperative process in section 450.210.

3. Additions to the Metropolitan Planning Process

The MAP-21 made two changes specific to the metropolitan planning process to support the effective implementation of performance-based approach to planning and programming. The first change affects the policy board structure of large MPOs. For each MPO serving a TMA, the planning statutes and this final regulation identify a list of government or agency officials that must be on that policy board. The June 2, 2014, FHWA and FTA Guidance on Transit Representation on the TMA MPO

13

is superseded by revisions to section 450.310 in the final rule. Section 450.310(d)(3) in the NPRM became section 450.310(d)(4) in the final rule and is unchanged. The new section 450.310(d)(3) requires that representation by operators of public transportation be added to this list of officials. The final rule establishes that every MPO that serves an area designated as a TMA must include an official (or officials) who is formally designated to represent the collective interests of the operators of public transportation in the MPA and will have equal decisionmaking rights and authorities as other officials on its policy board. Related to this requirement, FHWA and FTA did not include the proposed definitions for “local official” and “major modes of transportation” in the final rule. As the NPRM already included a definition of “nonmetropolitan local official,” and section 450.310 identifies “local elected official,” FHWA and FTA deleted the definition of “local official.” With respect to “major modes of transportation,” FHWA and FTA concur with comments that the definition is overly broad and could be read to include all forms of transportation, including non-major modes, and that MPOs are in the best position to define what constitutes a major mode of transportation in their respective MPAs. The FHWA and FTA will continue to work with each MPO to determine what major modes exist in their MPA so that they are included appropriately in the MPO structure.

13

79 FR 31214.

The second change in section 450.324 of the final rule provides that MPOs may use scenario planning during the development of their plans. Scenario planning is an analytical framework to inform decisionmakers about the implications of various investments and policies on transportation system condition and performance during the development of their plan.

4. Use of Planning Products in Project Development

In addition to changing the planning statutes, the MAP-21 and FAST made changes to project delivery provisions concerning coordination between the transportation planning process and the environmental review process. The FHWA and FTA have long supported the use of planning products and decisions during the environmental review process, an approach referred to as Planning and Environmental Linkages (PEL). Under PEL, Federal agencies use and rely on planning analyses, studies, decisions, or other information for the project development and environmental review of transportation projects. With PEL, FHWA and FTA may, for example: Establish a project's purpose and need by relying on the goal and objective developed during the planning process; eliminate the need to further consider alternatives deemed to be unreasonable by relying on analyses conducted to evaluate the alternatives during planning; rely on future land use plans as a source of information for the cumulative impacts analysis required under National Environmental Policy Act (NEPA); carry forward suitable mitigation measures and approaches identified through the planning process; or establish the modal choice selections for the consideration of reasonable alternatives to address the identified need, provided that such strategies are consistent with NEPA for the particular project. The final rule explicitly recognizes a variety of PEL methods that may be used to integrate planning with environmental reviews. The PEL provisions are in sections 450.212 and 450.318. Only sections 450.212(d) and 450.318(e) are new provisions, added as a result of the PEL authority created in the MAP-21 and substantially amended in FAST.

In the final rule, sections 450.212(a) and 450.318(a) describe the PEL approach developed by FHWA and FTA, based on NEPA regulations, guidance, and case law. Sections 450.212(b) and 450.318(b) retain the prior rule's provisions on using documents and other source materials through incorporation by reference pursuant to NEPA regulations at 40 CFR 1502.21. Sections 450.212(c), 450.318(c), and 450.318(d) keep language from the prior rule addressing integration by means of agreement of the NEPA lead agencies, including the use of tiering, incorporation of planning corridor or subarea studies into the NEPA document, and other means. Sections 450.212(c) and 450.318(d) retain the prior rule's description of the non-binding guidance in Appendix A to part 450, which discusses the integration of planning and environmental reviews. The FHWA and FTA made minor revisions to Appendix A in the final rule. These revisions include deleting the text in the response to question 16 that describes 49 U.S.C. 5313(b) funds as an eligible source of funds for conducting environmental studies and analyses within transportation planning. This change was made because 49 U.S.C. 5313(b) funds are not an eligible source of planning funds for conducting environmental studies and analyses within transportation planning. In another revision to Appendix A in the final rule, under the response to question 18, FHWA and FTA have

updated the number of positions that were being funded with Federal and State funds to support focused and accelerated project review by a variety of local, State, and tribal agencies from 246 positions (as of 2003) to over 200 positions (as of 2015). This change was made to update the number of positions funded to accelerate project review at local, State, tribal, and Federal agencies to reflect more recent information. The FHWA and FTA have added language in 450.212(c) and 450.318(d) to clarify that Appendix A applies only to PEL authorities in sections 450.212(a)-(c) and 450.318(a)-(c).

Sections 450.212(d) and 450.318(e) add a reference to the statutory provision, 23 U.S.C. 168, added by MAP-21 and amended by FAST. The numbering for the new provisions is different in the final rule than in the NPRM. This is because sections 450.318(d) of the prior rule was deleted, as proposed in the planning NPRM. In addition, FHWA and FTA replaced the text from the PEL NPRM and in its place inserted references to the section 168 provisions.

5. Programmatic Mitigation

Sections 450.214 and 450.320 discuss an optional framework for developing programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes. The FHWA and FTA have largely retained the language in the NPRM for these sections, with the exception of a few changes. In sections 450.214 and 450.320, additional language has been added to make it clear that this provision for developing programmatic mitigation plans as part of the statewide or the metropolitan transportation planning process is optional. In sections 450.214(a)(2)(ii) and 450.320(a)(2)(ii), the final rule added archeological resources to the list of examples of resources in the NPRM that may be identified in a programmatic mitigation plan. In the same paragraph, the phrase “threatened or endangered species critical habitat” has been corrected from the NPRM to read “threatened and endangered species and critical habitat” in the final rule. In sections 450.214(a)(2)(iii) and 450.320(a)(2)(iii), the final rule added stormwater to the list of examples of resource categories described in the NPRM for existing or planned environmental resource banks that may be identified in a programmatic mitigation plan. New language has been added in sections 450.214(f) and 450.320(f) of this section to make it clear that a programmatic mitigation plan may be developed as part of, or separately from, the planning process and that a programmatic mitigation plan developed separately from the planning process under another authority may be adopted in the statewide or metropolitan planning process.

Section 1306 of FAST amends 23 U.S.C. 169(f) to change “may use” to “shall give substantial weight to” and changes “any other environmental laws and regulations” to “other Federal environmental law” such that a Federal agency responsible for environmental reviews “shall give substantial weight to” the recommendations in the programmatic mitigation plan when carrying out its responsibilities under NEPA or “other Federal environmental law.” Sections 450.214(d) and 450.320(d) of the final rule are amended to reflect these changes.

6. Other Changes

The definitions for “conformity” and “consideration” proposed in the NPRM were amended in the final rule.

7. Changes Resulting From the FAST Act

Sections 450.200 and 450.300 add intermodal facilities that support intercity transportation including intercity bus facilities and commuter van pool providers to the purposes of the statewide and metropolitan transportation planning processes. Sections 450.200 and 450.300 add a new requirement to take into consideration resiliency needs to the purposes of the statewide and nonmetropolitan and the metropolitan transportation planning processes. Sections 450.206(a)(9) and (10) and 450.306(b)(9) and (10) add two new planning factors to the scope of the statewide and nonmetropolitan and the metropolitan transportation planning processes that States and MPOs shall consider and implement: Improve resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and enhance travel and tourism.

Section 450.210(a)(1)(i) adds public ports and intercity bus operators to the list of entities that a State shall provide public involvement opportunities to as part of the statewide and nonmetropolitan transportation planning process. Section 450.216(b) adds that the long-range statewide transportation plan shall include consideration of the role of intercity buses may play in reducing congestion, pollution, and energy consumption. In section 450.216(l)(2), public ports has been added to the list of interested parties that a State shall provide a reasonable opportunity to comment on the proposed long-range statewide transportation plan exactly as described in FAST section 1201 (23 U.S.C. 135(f)(3)(A)(ii)). Also, in section 450.216(l)(2), examples of providers of private providers of public transportation have been added to the final rule exactly as described in FAST section 1202 (23 U.S.C. (f)(3)(A)(ii)) including intercity bus operators, employer based cash-out program, shuttle program, or telework program. Sections 450.216(f)(1) and (2) provide that States shall include a description of performance measures and targets and a system performance report in the long-range statewide transportation plan (previously under MAP-21 this was a “should”).

Section 1306 of FAST amends 23 U.S.C. 169(f) to change “may use” to “shall give substantial weight to” and changes “any other environmental laws and regulations” to “other Federal environmental law” such that a Federal agency responsible for environmental reviews “shall give substantial weight to” the recommendations in the programmatic mitigation plan when carrying out its responsibilities under NEPA or “other Federal environmental law.” Sections 450.214(d) and 450.320(d) of the final rule are amended to reflect these changes exactly as discussed in section 1306 of FAST.

Sections 450.316(a) and (b) provide that MPOs must provide public ports with a reasonable opportunity to comment on the MTP. Section 450.316(b) provides that MPOs should consult with officials responsible for tourism and natural disaster risk reduction when developing MTPs and TIPs. Section 450.322 provides an optional framework for an MPO serving a TMA to develop a congestion management plan (the requirement for a congestion management process for MPOs serving a TMA has been retained). Section 450.324(f)(7) adds a new requirement to assess capital investment and other strategies that reduce the vulnerability of the existing transportation infrastructure to natural disasters to the MTP. Section 450.324(f)(8) adds consideration of the role intercity buses may play in reducing congestion, pollution, and energy consumption as part of the MTP. Section 450.324(j) adds public ports to the list of entities a MPO shall provide opportunity to comment on the MTP and also adds a list of examples of private providers of transportation.

In making the changes to the final rule based on the amendments to 23 U.S.C. 134 and 135 from FAST, FHWA and FTA have used the exact language in the regulations that was used in the Act,

and have included it in the final rule without alteration.

Table 1—Summary of Key Changes From the Planning NPRMs to the Final Rule

Topic

NPRM section(s)

Key changes from NPRMs to final rule

Performance-Based Planning and Programming

450.206(c)

Coordination of the planning process—the requirement that the State should select and establish performance targets in coordination with Federal Lands Management agencies in section 450.206(c) was deleted.

450.208(g)

Coordination of the planning process—In section 450.208(g), the requirement that the State shall integrate other performance-based plans into the statewide planning process was deleted as it is already covered in the scope of the planning process in section 450.206(c)(4).

450.210(a)(3)

Interested parties—In section 450.210(a), additional language was added in section 450.210(a)(3): “With respect to the setting of targets, nothing in in this part precludes a State from considering comments made as part of the State's public involvement process.”

450.218(r), 450.328(d)

Development and content of the STIP and TIP—In sections 450.218(r) and 450.328(d), the requirement that the discussion in the STIP and TIP be consistent with the strategies to achieve targets presented in other performance management plans such as the highway and transit asset management plans, the Strategic Highway Safety Plan (SHSP), the public agency safety plan, the CMAQ performance plan, and the State freight plan (if one exists) was deleted.

450.314(a), (e), and (g)

Metropolitan Planning Agreements —Proposed changes to sections 450.314(a), (e), and (g) were deleted and replaced by new section 450.314(h) which requires States, MPOs, and operators of public transportation to cooperatively develop and include specific provisions for cooperatively developing and sharing information related to transportation performance data, the selection of performance targets, the reporting of performance targets, the reporting of performance, and data collection for the State asset management system for the NHS as part of the metropolitan planning agreement or in some mutually agreed upon and documented means.

Additions to the Metropolitan Planning Process

450.310 and June 2, 2014 FTA/FHWA Guidance on Transit Representation on a TMA MPO

The June 2, 2014 FHWA/FTA Guidance on Transit Representation on a TMA MPO published with the NPRM is superseded by revisions to section 450.310 this final regulation.

New Authority for Using Planning Information in the Environmental Review Process

450.212(d), 450.318(e)

Added a reference to the additional PEL authority in 23 U.S.C. 168.

Programmatic Mitigation Plans

450.214 and 450.320

Language was added to clarify that developing programmatic mitigation plans as part of the statewide or the metropolitan transportation planning process is optional.

450.214(a)(2)(iii) and 450.320(a)(2)(iii)

Stormwater was added to the list of examples of environmental resource categories described in the NPRM that may be identified in a programmatic mitigation plan.

450.214(b, d, and f) and 450.320(b, d, and f)

Changed to make it clear that a State or MPO may adopt a programmatic mitigation plan(s) that is developed outside of the planning process.

450.214(a)(2)(ii and iii) and 450.320(a)(2)(ii and iii)

Archeological resources was added to the list of examples of resources that may be identified in a programmatic mitigation plan. The phrase “endangered species critical habit” was corrected to read “endangered species, and critical habitat.”

Other Changes (Asset Management)

450.208(e)

Coordination of Planning Process Activities—“shall” was changed to “should” (“In carrying out the statewide transportation planning process, States “should” apply asset management principles consistent with the NHS Asset Management Plan, the Transit Asset Management plan, and Public Transportation Agency Safety Plan . . .”).

450.218(o), 450.326(m)

Development and content of the STIP (section 450.218(o)) and TIP (section 450.326(m))—The phrase “The STIP and TIP should be informed by the financial plan and the investment strategies from the State asset management plan for the NHS and by the public transit asset management plan(s) . . .” was deleted.

450.216(n), 450.324(f)(7)

Development and content of the long-range statewide transportation plan (450.216(n)) and Development and content of the MTP (450.324(f)(7))—The phrase “. . . long-range statewide transportation plans and metropolitan transportation plans should be informed by the financial plan and the investment strategies from the asset management plan for the NHS and investment priorities of the public transit asset management plans(s) . . .” is deleted from the final rule.

Other Changes (misc.)

450.104

Definitions—The proposed definitions for

local official

and for

major modes of transportation

are deleted from the final rule.

The proposed definitions for

, conformity,

and

consideration

are amended in the final rule.

450.324(a)

The word “minimum” is added to the phrase a transportation plan addressing no less than a “minimum” 20-year planning horizon.

450.326(n)

Sec. 450.326(n) becomes 450.326(m) in the final rule and the phrase “or funds under 49 U.S.C. 5307” is deleted.

Other Changes (from FAST)

450.200 and 450.300

Intermodal facilities that support intercity transportation, including intercity bus facilities and commuter van pool providers is added to the purpose of the statewide and metropolitan multimodal transportation planning processes.

450.206(a)(9 and 10) and 450.306(b)(9 and 10)

Adds “takes into consideration resiliency needs” to the purpose of the statewide and nonmetropolitan and the metropolitan transportation planning processes.

450.210(a)(1)(i)

Two new planning factors are added to the scope of the statewide and nonmetropolitan and the metropolitan transportation planning processes: (Improve resiliency and reliability of the transportation system and reduce or mitigate stormwater impacts of surface transportation; and enhance travel and tourism).

450.212(d) and 450.450.318(e)

Public ports and intercity bus operators are added to the list of entities that a State shall provide early and continuous public involvement opportunities as part of the statewide transportation planning process.

New authority for using planning information in the environmental review process, sections 450.212(d) and 450.318(e) are added to reference FAST section 1305 (23 U.S.C. 168).

450.214(d) and 450.320(d)

Programmatic mitigation plans—changes “may use” to “shall give substantial weight to” and changes “any other environmental laws and regulations” to “other Federal environmental law”—A Federal agency responsible for environmental reviews “shall give substantial weight to” the recommendations in the programmatic mitigation plan when carrying out its responsibilities under the National Environmental Policy Act of 1969 or “other Federal environmental law.”

450.216 and 450.324

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

Section 450.216(b) adds requirement for consideration of the role of intercity buses in reducing congestion, pollution, and energy consumption as part of the long-range statewide transportation plan.

Section 450.216(f)(1) and (2) “should” becomes “shall”—The statewide transportation plan “shall” include a description of performance measures and targets and shall include a system performance report.

Section 450.216(l)(2) adds public ports to the list of entities States shall provide a reasonable opportunity to comment on the plan and adds examples of private providers of transportation.

Section 450.324(f)(2) adds public transportation facilities and intercity bus facilities to the list of existing and proposed transportation facilities to be included in the metropolitan transportation plan.

Section 450.324(f)(7) adds “reduce the vulnerability of the existing transportation infrastructure to natural disasters” to the assessment of capital investment and other strategies to preserve the existing and projected future metropolitan transportation infrastructure in the metropolitan transportation plan. Section 450.324(f)(8) adds consideration of the role intercity buses may play in reducing congestion, pollution, and energy consumption as part of the metropolitan transportation plan.

Section 450.324(j) adds public ports to the list of entities that an MPO shall provide a reasonable opportunity to comment on the metropolitan transportation plan. Section 450.324(j) adds a list of examples of private providers of transportation.

450.310(d)

Describes TMA MPO structure.

450.316

Interested parties, participation, and consultation.

Section 450.316(a)—adds public ports to the list of entities that an MPO shall provide a reasonable opportunity to comment on the metropolitan transportation plan. Section 450.324(j) adds a list of examples of private providers of transportation.

Section 450.316(b)—adds officials responsible for tourism and natural disaster risk reduction to the list of agencies and officials that an MPO should consult with in developing metropolitan transportation plans and TIPs.

450.322

Congestion management process.

Adds a list of examples in section 450.322(a) of travel demand reduction strategies. Adds job access projects as a congestion management strategy.

Adds new section 450.322(h)—A MPO serving a TMA may develop a congestion management plan.

C. Costs and Benefits

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

To estimate the incremental costs associated with the new requirements in the final rule that represent a change to current planning practices, FHWA and FTA assumed that implementing the performance-based planning provisions would increase the costs of preparing State and MPO long-range plans, TIPs, and STIPs by an average of 15 percent, based on an analysis of current costs and discussions with States and MPOs that have implemented a performance-based approach to transportation planning and programming. Following this approach, FHWA and FTA estimate the updated total cost for implementation of the changes to the planning process resulting from the final rule is $30.9 million annually (as compared to the estimate of $30.8 million in the NPRM). To implement the changes in support of a more efficient, performance-based planning process, FHWA and FTA estimate that the aggregate increase in costs attributable to the final rule for all 50 States, the District of Columbia, and Puerto Rico and 409 MPOs is approximately $28.4 million per year (as compared to the estimate of $28.3 million in the NPRM). These costs are primarily attributed to an increase in staff time needed to meet the new requirements. For the estimated 600 operators of public transportation that operate within MPAs, the total cost would be $2.5 million per year to coordinate with MPOs in their selection of performance targets for transit state of good repair and transit safety.

The FHWA and FTA updated the total cost estimate for the changes made from the NPRM to the final rule based on additional information on the number of MPOs that was not available at the time the NPRM was issued. The costs are revised for the final rule because FHWA and FTA assumed in the NPRM that there would be 420 MPOs (210 TMA MPOs and 210 non-TMA MPOs) after the 2010 census. This assumption was based on the fact that there were 384 existing MPOs at the time in addition to 36 new urbanized areas resulting from the 2010 census. The actual number of MPOs has turned out to be slightly lower (201 TMA MPOs and 208 non-TMA MPOs) because several of the new urbanized areas resulting from the 2010 census merged into existing MPOs instead of forming new MPOs. The costs were also adjusted for inflation from 2012 to 2014.

The FHWA and FTA expect that the final rule changes to the planning process will result in some significant benefits, including improved decisionmaking through increased transparency and accountability, and support of the national goals described in 23 U.S.C. 150(b) and the general purposes described in 49 U.S.C. 5301. The final rule would promote transparency by requiring the establishment of performance targets in key areas, such as safety, infrastructure condition, system reliability, emissions, and congestion and by expressly linking investment decisions to the achievement of such targets. This would be documented in plans or programs developed with public review.

The FHWA and FTA expect that the planning process would become more transparent as investments of Federal funds would be based on a decisionmaking process that is focused on transportation system performance, and the specific transportation system performance goals, measures, and targets that drive investment decisions would be known to the public, elected officials, and other interested parties. The proposal would establish accountability through mandating reports on progress toward meeting those targets. In addition, FHWA and FTA expect that these regulatory changes would make the planning process more accountable by having States, MPOs, and operators of public transportation identify desired transportation system performance outcomes related to the national performance areas and that investments made would be more focused on achieving these system performance outcomes. Other elements of the final rule would improve decisionmaking, such as including representation by operators of public transportation on each MPO that serves a TMA, establishing agreements in metropolitan areas identifying roles and responsibilities for performance-based planning, requiring States to have a higher level of involvement with nonmetropolitan local officials, and providing an optional process for the creation of RTPOs.

The FHWA and FTA have not been able to locate data or empirical studies to assist in monetizing or quantifying the benefits of the final rule. Estimates of the benefits of the final rule would be difficult to develop. Therefore, in order to evaluate benefits, FHWA and FTA used a break-even analysis as the primary approach to quantify benefits. The approach determines the point at which benefits from the final rule exceed the annual costs of compliance. The total annual MAP-21 funding programmed through this process in FY 2014 is $37.8 billion in FHWA funds and $10.7 billion in FTA funds. Under FAST, the total annual funding programmed through this process in FY 2016 is $39.7 billion in FHWA funds and $11.7 billion in FTA funds. The annual average cost for implementing this regulation is estimated to be $30.9 million per year. If return on investment increases by at least 0.064 percent of the combined FHWA and FTA annual funding programs, the benefits of the regulation exceed the costs. The total Federal, State, and local cost in FY 2014 of the planning program is $1,493,868,000. Generally, 80 percent of these eligible costs are directly reimbursable through Federal transportation funds allocated for metropolitan planning (23 U.S.C. 104(d) and 49 U.S.C. 5305(f)) and for State planning and research (23 U.S.C. 505 and 49 U.S.C. 5305(f)). States, MPOs, and operators of public transportation have the flexibility to use some FHWA Federal capital funds or some FTA formula program funds for transportation planning (23 U.S.C. 133(b)(1), 49 U.S.C. 5307(a)(1)(B), and 5311(B)(1)(A)). As the cost burden of the final rule is estimated to be 2.5 percent of the total planning program, FHWA and FTA believe the economic impact is minimal and the benefits of implementation outweigh the costs.

The table below is a summary of the costs and benefits calculated for the final rule.

Table 2—Summary of Average Annual Regulatory Costs and Burden Hours of Effort Due to the Changes in the Regulations Resulting From MAP-21

[2014 dollars]

Entity

Total

additional

cost

Non-Federal share

(20%)

Average

additional

person hours

per agency

TMA MPOs (201)

$18,141,200

$3,628,200

1,800

Non-TMA MPOs (208)

3,990,500

798,100

400

States (50), the District of Columbia, and Puerto Rico

6,257,800

1,251,600

2,400

Operators of Public Transportation (600)

2,510,000

502,000

100

Total

30,899,500

6,179,900

II. Acronyms and Abbreviations

Acronym

Full name

3-C

Cooperative, Continuous, and Comprehensive.

AASHTO

American Association of State Highway and Transportation Officials.

AK DOT

Alaska Department of Transportation.

AMPO

Association of Metropolitan Planning Organizations.

AOG

Association of Governments.

APTA

American Public Transportation Association.

ARC

Atlanta Regional Commission.

ARTBA

American Road & Transportation Builders Association.

ASHTD

Arkansas State Highway and Transportation Department.

Assoc.

Association.

BART

Bay Area Rapid Transit.

CAA

Clean Air Act.

CALTRANS

California Department of Transportation.

CEDS

Comprehensive Economic Development Strategies.

CEQ

Council on Environmental Quality.

CFR

Code of Federal Regulations.

CMAQ

Congestion Mitigation and Air Quality Improvement Program.

CMP

Congestion Management Process.

CO DOT

Colorado Department of Transportation.

COG

Council of Governments.

CT DOT

Connecticut Department of Transportation.

DC DOT

District of Columbia Department of Transportation.

DOT

Department of Transportation.

DRCOG

Denver Regional Council of Governments.

DVRPC

Delaware Valley Regional Planning Commission.

EA

Environmental Assessment.

EDD

Economic Development District.

EGA

Expedited Grant Agreement.

EIS

Environmental Impact Statement.

EJ

Environmental Justice.

EO

Executive Order.

EPA

Environmental Protection Agency.

FAST Act

Fixing America's Surface Transportation Act.

FFGA

Full Funding Grant Agreement.

FHWA

Federal Highway Administration.

FL DOT

Florida Department of Transportation.

FMATS

Fairbanks Metropolitan Area Transportation System.

FONSI

Finding of No Significant Impact.

FRESC

Front Range Economic Strategy Center.

FTA

Federal Transit Administration.

FY

Fiscal Year.

GA DOT

Georgia Department of Transportation.

GIS

Geographic Information Systems.

H-GAC

Houston-Galveston Area Council.

HI DOT

Hawaii DOT.

HSIP

Highway Safety Improvement Program.

HUD

Housing and Urban Development.

IA DOT

Iowa Department of Transportation.

IAC

Interagency Consultation.

ID DOT

Idaho Department of Transportation.

ISTEA

Intermodal Surface Transportation Efficiency Act of 1991.

ITS

Intelligent Transportation System.

KY TC

Kentucky Transportation Cabinet.

MAP-21

Moving Ahead for Progress in the 21st Century Act.

MARC

Mid-America Regional Council.

MA DOT

Massachusetts Department of Transportation.

MAG

Maricopa Association of Governments.

MD DOT

Maryland Department of Transportation.

ME DOT

Maine Department of Transportation.

MT DOT

Montana Department of Transportation.

MI DOT

Michigan Department of Transportation.

MN DOT

Minnesota Department of Transportation.

MO DOT

Missouri Department of Transportation.

MPA

Metropolitan Planning Area.

MPO

Metropolitan Planning Organizations.

MTA

Metropolitan Transportation Authority.

MTC

Metropolitan Transportation Commission.

MTP

Metropolitan Transportation Plan.

NAAQS

National Ambient Air Quality Standards.

NACTO

National Association of City Transportation Officials.

NADO

National Association of Development Organizations.

NARC

National Association of Regional Councils.

NARP

National Association of Railroad Passengers.

NCCOG

North Carolina Councils of Governments.

NC DOT

North Carolina Department of Transportation.

NCHRP

National Cooperative Highway Research Program.

NCTCOG

North Central Texas Council of Governments.

NDDOT

North Dakota Department of Transportation.

NEPA

National Environmental Policy Act.

NHPP

National Highway Performance Program.

NHS

National Highway System.

NIRPC

Northwestern Indiana Regional Planning Commission.

NJ DOT

New Jersey Department of Transportation.

NJ Transit

New Jersey Transit.

NJTPA

North Jersey Transportation Planning Authority.

NPRM

Notice of Proposed Rulemakings.

NRDC

Natural Resources Defense Council.

NYMTA

New York Metropolitan Transportation Agency.

NYMTC

New York Metropolitan Transportation Council.

NYS DOT

New York State Department of Transportation.

OK DOT

Oklahoma Department of Transportation.

OMB

Office of Management and Budget.

OR DOT

Oregon Department of Transportation.

PA DOT

Pennsylvania Department of Transportation.

PEL

Planning and Environmental Linkages.

PL

Metropolitan Planning Funds.

PM 10

Particulate Matter up to 10 micrometers in size.

PM 2.5

Particulate Matter up to 2.5 micrometers in size.

PRA

Paperwork Reduction Act.

PSRC

Puget Sound Regional Council.

RDC

Regional Development Commission.

RDD

Regional Development District.

RI DOT

Rhode Island Department of Transportation.

RIA

Regulatory Impact Analysis.

RIN

Regulation Identification Number.

RMAP

Rockford Metropolitan Agency for Planning.

ROD

Record of Decision.

RPC

Regional Planning Commission.

RPDC

Regional Planning and Development Commission.

RPO

Rural Planning Organization.

RTC

Regional Transportation Council.

RTD

Regional Transportation District.

RTPO

Regional Transportation Planning Organization.

SACOG

Sacramento Area Council of Governments.

SAFETEA-LU

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users.

SANDAG

San Diego Association of Governments.

SASHTO

Southeastern Association of State Highway and Transportation Officials.

SCAG

Southern California Association of Governments.

SCCRTC

Santa Cruz County Regional Transportation Commission.

SCVTA

Santa Clara Valley Transportation Authority.

SD DOT

South Dakota Department of Transportation.

SDAG

San Diego Association of Governments.

SE WI MPO

Southeastern Wisconsin Metropolitan Planning Organization.

Seattle DOT

Seattle Department of Transportation.

SELC

Southern Environmental Law Center.

SEMCOG

Southeast Michigan Council of Governments.

SFRTA

South Florida Regional Transportation Authority.

SHSP

Strategic Highway Safety Plan.

SIP

State Implementation Plan.

SJCOG

San Joaquin Council of Governments.

SOV

Single Occupancy Vehicles.

SPR

State Planning and Research.

STIP

Statewide Transportation Improvement Program.

STP

Surface Transportation Program.

TCA

Transportation Corridor Agencies.

TCM

Transportation Control Measure.

TEA-21

Transportation Equity Act for the 21st Century.

TIP

Transportation Improvement Program.

TMA

Transportation Management Area.

TN DOT

Tennessee Department of Transportation.

TPO

Transportation Planning Organization.

TriMet

Tri-County Metropolitan Transportation District of Oregon.

TTP

Tribal Transportation Program.

TX DOT

Texas Department of Transportation.

UPWP

Unified Planning Work Program.

U.S.C.

United States Code.

USDOT

U.S. Department of Transportation.

UT DOT

Utah DOT.

UZA

Urbanized Area.

VA DOT

Virginia Department of Transportation.

VMT

Vehicle Miles Traveled.

VT DOT

Vermont Department of Transportation or Vermont Agency of Transportation.

WFRC

Wasatch Front Regional Council.

WI DOT

Wisconsin Department of Transportation.

WMATA

Washington Metropolitan Area Transit Authority.

WA State DOT

Washington State Department of Transportation.

WY DOT

Wyoming Department of Transportation.

III. Background

On June 2, 2014, FHWA and FTA published an NPRM at 79 FR 31784 proposing the following changes to 23 CFR part 450: That the statewide and metropolitan transportation planning processes provide for the use of a performance-based approach to decisionmaking; that each MPO that serves an area designated as a TMA include an official (or officials) who is formally designated to represent operators of public transportation in the MPA on its policy board; that MPOs be given the option to use scenario planning during the development of their MTP; that States work more closely with nonmetropolitan areas; and that States have the option of designating RTPOs to help address the planning needs of the State's nonmetropolitan areas. It also proposed revisions to the existing PEL provisions, and an optional framework for developing programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes for States and MPOs based on 23 U.S.C. 169 as established by section 1311 of MAP-21. The public comment period for the NPRM was scheduled to close on September 2, 2014. The FHWA and FTA extended the comment period 30 days to October 2, 2014, based on concerns expressed by the American Association of State Highway & Transportation Officials (AASHTO) that the closing date did not provide sufficient time to review and provide comprehensive comments (79 FR 51922).

In addition, on September 10, 2014, FHWA and FTA published a separate “Section 168 NPRM” at 79 FR 53673 proposing to add implementing regulations for 23 U.S.C. 168, “integration of planning and environmental review,” at 23 CFR 450.212(d)-(f) and 450.318(f)-(h). The regulations would create an additional process for integrating planning and the environmental review activities (planning and environmental linkages) based on 23 U.S.C. 168 as established by section 1310 of MAP-21. The comment period for the section 168 NPRM closed on November 10, 2014. The final rule combines the two rulemakings, covering changes proposed in the Planning NPRM and those proposed in the Section 168 NPRM. The final rule covers the statewide and metropolitan planning processes and includes the integration of planning and environmental review and programmatic mitigation plans as part of the statewide and the metropolitan transportation planning processes for States and MPOs.

A. Introduction to the Planning Process

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

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

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

related to scenario planning, developing programmatic mitigation plans, and the use of planning products in the environmental review process. Many of these non-performance management changes codify existing best planning practices.

The FAST makes minor changes to existing planning provisions. It adds two new planning factors to be considered and implemented in the planning process, it adds new stakeholders to be included in the planning process, and it substantially amends the new authority provided by MAP-21 for using planning products in the environmental review process.

C. Stakeholder Engagement

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

IV. Summary of Comments

The FHWA and FTA received a total of 162 comment letters that were submitted to the docket. Fifty-one of these comment letters were received from MPOs, 36 from States, 27 from advocacy organizations, 18 from regional planning organizations, 16 from associations representing public transportation agencies, 9 from operators of public transportation, 2 from the public, 2 from local governments, and 1 from a Tribal government. Collectively, these comment letters contained a total of approximately 989 individual comments.

In addition, a total of 38 comment letters were submitted to the docket proposing to implement changes to planning and environmental linkages resulting from section 1310 of MAP-21. Fourteen of the comment letters were received from States, 9 from MPOs, 5 from advocacy groups, 4 from the public, 3 from associations representing public transportation agencies, 2 from operators of public transportation, 1 from a regional planning organization, and 1 from a State environmental resource agency. Cumulatively, these comment letters contained over 100 individual comments. After reviewing the comments received in response to the two NPRMs, FHWA and FTA decided to consolidate the Planning rule and the “Additional Authorities or Planning and Environmental Linkages” rule into a single final rule. The FHWA and FTA believe that a consolidated final rule will help stakeholders understand the range of options for integrating planning and environmental review, including the pre-existing regulations for integrating planning and environmental review in sections 450.212 and 450.318, and the new section 168 authorities adopted in the final rule.

The FHWA and FTA carefully considered the comments received from the stakeholders. The comments and summaries of analyses and determinations are discussed in the following sections.

A. Selected Topics for Which FHWA and FTA Requested Comments

Performance Target Setting

The FTA and FHWA requested public comment on the following questions relating to target setting: (1) What obstacles do States, MPOs, and operators of public transportation foresee to the coordination among them that is necessary in order to establish targets? (2) What mechanisms currently exist or could be created to facilitate coordination? (3) What role should FHWA and FTA play in assisting States, MPOs, and operators of public transportation in complying with these new target-setting requirements? (4) What mechanisms exist or could be created to share data effectively among States, MPOs, and operators of public transportation? For those States, MPOs, and operators of public transportation that already utilize some type of performance management framework, are there best practices that they can share? Comments were received from at least 25 separate entities on these questions including AASHTO, APTA, ARC, CO DOT, CT DOT, DRCOG, FL MPO Advisory Council, H-GAC, MD DOT, MTC, MI DOT, NACTO, NJ DOT, NYS DOT, NCTCOG/RTC, the Northeast Ohio Areawide Coordinating Agency, the River to Sea Transportation Planning Organization (TPO), SACOG, SANDAG, SCAG, SJCOG, TN DOT, WMATA, and WI DOT.

What obstacles do States, MPO, and operators of public transportation foresee to the coordination among them that is necessary in order to establish targets?

Several commenters noted that the establishment of performance targets will require unprecedented levels of coordination and cooperation between States, MPOs, and operators of public transportation (AMPO, H-GAC, and NCTCOG/RTC). See section IV(B) (Recurring comment themes) for detailed discussion and FHWA and FTA responses to coordination on target setting.

The AMPO and ARC stated that they would prefer a single effective date for all of the MAP-21 performance measures rules to minimize confusion during the implementation of the measures and in the reporting of results. The H-GAC commented that there is potential for confusion between the target setting provisions proposed under 23 CFR 490 and 23 CFR 450. The MI DOT, MTC, SACOG, SANDAG, SCAG, SJCOG, and VA DOT stated that it is difficult to comment on the merits of the performance-based planning framework as the majority of measures and target-setting methodologies have not yet been released. See section IV(B) (Recurring comment themes) for more discussion and responses to these comments.

The MD DOT, NJ DOT, and TN DOT commented that setting performance targets will be a significant challenge in interstate MPOs that have membership in multiple States, since each State differs with respect to legal framework, resource availability, policies, goals, and priorities. The MD DOT and TN DOT indicated that it is not clear who will have the ultimate authority in establishing targets when a State or MPO cannot come to agreement. See section IV(B) (Recurring comment themes) for more discussion of this issue and FHWA and FTA responses.

The MTC, SACOG, SANDAG, SCAG, and SJCOG were concerned that the future Federal performance regulations will overwhelm policymakers by diluting robust processes established on the State or regional level with the addition of more measures and targets. In response, FHWA and FTA believe that States and MPOs should utilize their existing processes to the maximum extent possible. Discussion on the specific measures and target setting under the Federal performance requirements is outside the scope of the final rule.

The AMPO and ARC stated that the transition to performance-based planning will be challenging, in part

because different organizations have different structures and priorities, and in part because of the financial burdens of data collection and analysis. The FHWA and FTA agree that the transition to performance-based planning will be challenging. However, as discussed in section IV(B) (Recurring comment themes), interagency coordination will be key to successful implementation. The financial burdens of data collection and analysis for target setting are outside the scope of the final rule.

Several commenters (ARC, NJ DOT, and TN DOT) stated that it is not uncommon for States, MPOs, and operators of public transportation to have different priorities that may conflict with each other, and that this may lead to conflicts when setting performance targets and trying to achieve them. Several MPOs commented that they have to balance multiple objectives when working with communities and that this may lead to conflicts with their State. Another commenter noted that data collection will be a major challenge that needs to be addressed by the MPOs with their local members, particularly as it relates to data needed on locally owned systems. A few commenters stated that they are concerned as to whether the analytical tools and framework will exist to allow States, MPOs, and operators of public transportation to identify realistic and attainable targets for each required measure. One operator of public transportation (WMATA) commented that there is not a uniform approach to performance management among operators of public transportation, either in setting targets or in tracking progress toward achievement of targets. In response to these comments, FHWA and FTA emphasize the importance of early and ongoing interagency coordination during performance-based planning and programming. The approach used by operators of public transportation for setting targets is outside the scope of this rule. See FHWA and FTA response below to the question on “What role should FHWA and FTA play in assisting States, MPOs, and operators of public transportation in complying with these new target-setting requirements?” regarding technical assistance FHWA and FTA plan to provide regarding approaches to tracking progress toward achievement of targets.

What mechanisms currently exist or could be created to facilitate coordination?

The ARC, CO DOT, CT DOT, Florida MPO Advisory Council, MI DOT, NYS DOT, River to Sea Transportation Planning Organization (TPO), and RMAP indicated that they have well-established, long-standing, formal forums or work groups for ongoing discussion and coordination of planning issues and topic areas among the States, MPOs, and operators of public transportation within a particular State, and that these forums typically meet on a regularly scheduled basis (

i.e.,

monthly or quarterly). These same commenters stated that through these forums, they have built relationships between the various planning organizations within their State for successful collaboration and cooperation. The commenters further stated that these established forums are ideal for coordinating the development and implementation of performance management as part of the planning process, including data collection and analysis, performance target setting, use of analytical tools, standards and consistency, and system performance reporting. Several of the commenters stated that they are already using these established forums within their respective States for coordinating planning issues to implement performance-based planning and programming among the States, MPOs, and operators of public transportation. The Florida MPO Advisory Council commented that it has formed alliances of MPOs to address transportation planning issues at a multi-MPO level.

The FHWA and FTA agree that these examples of practice provided by commenters on how to facilitate coordination are good practices and that the development and implementation of ongoing, multiagency, and multidisciplinary forums that meet on a regular basis is an ideal way to establish relationships among the States, and MPOs, and operators of public transportation within a State.

The ARC commented that it has examples of mechanisms to facilitate interagency coordination such as an interagency consultation concept used for air quality planning and MPO technical committees. The FMATS commented that they want the MPO to be required to participate in the development of HSIP projects and the State Asset Management Plan for the NHS. In response to this comment, FHWA and FTA agree that it would be desirable for States to include the MPOs in the development of the projects for the Highway Safety Improvement Program (HSIP) and in the development of the State Asset Management Plan for the NHS because those plans contribute to performance-based planning and programming. However, there are separate NPRMs and rules governing those documents and processes and they are outside the scope of the final rule.

The FMATS also commented that the first round of performance target setting should be a joint process and facilitated by FHWA and FTA. In response, FHWA and FTA note that the final rule requires that States and MPOs coordinate during the target setting process (sections 450.206 and 450.306). The final rule also requires MPOs and operators of public transportation to coordinate target setting on transit performance measures in the metropolitan areas (section 450.306) and States must coordinate with operators of public transportation for target setting on transit performance measures outside of the metropolitan areas (section 450.206).

What role should FHWA and FTA play in assisting States, MPOs, and operators of public transportation in complying with these new target-setting requirements?

The ARC and CO DOT commented that FHWA and FTA could provide technical assistance and best practices or peer review summaries on a regular basis to assist the States, MPOs, and operators of public transportation in complying with the new target setting requirements. The CT DOT suggested that FHWA and FTA could provide guidance to States, MPOs, and operators of public transportation to implement the new target setting requirements. At least one commenter stated that the ability to use Federal funds for the necessary data collection efforts to support performance management is important. The CO DOT, CT DOT, Florida MPO Advisory Council, MI DOT, and NJ DOT suggested that FHWA and FTA could conduct best practices research and share the results in regional and statewide forums and with individual MPOs during transportation planning certification reviews. The Florida MPO Advisory Council and MI DOT also suggested that FHWA and FTA actively participate in established processes to set and implement performance targets in the States.

Others stated that FHWA and FTA already participate in these processes in some States. The MI DOT suggested that FHWA and FTA develop training sessions to ensure that planning agencies are fully aware of all the new requirements and timelines associated with the rules. The WI DOT recommended that FHWA and FTA provide further guidance on best practices related to the coordination process among States, MPOs, and operators of public transportation. The WA State DOT suggested that FHWA

and FTA could provide further guidance and best practices for the coordination of data at a statewide level and that FHWA and FTA could mediate differences between States and MPOs during the target setting process by providing guidance as to the intent of the rules. The MD DOT commented that a consistent presence of FHWA and FTA in MPO meetings to help facilitate performance measures and targets discussions would be helpful. Several commenters suggested that there needs to be substantial collaborative effort by Federal and grantee stakeholders to develop common data collection and reporting processes. The MI DOT was concerned whether the analytical tools and framework exists to allow States, MPOs, and transit agencies to identify realistic and attainable targets for the national performance measures.

In response, FHWA and FTA plan to provide technical assistance to the States, MPOs, and operators of public transportation through a number of means, including the issuance of guidance, conducting peer reviews and workshops, sharing best practices, and conducting training on topics such as target setting, implementation of performance-based planning and programming, interagency coordination, data collection, and performance progress reporting. Performance-based planning and programming will also become a topic of discussion at future TMA planning certification reviews.

The APTA commented that FHWA and FTA should not allow these changes in the planning process to slow project development, and that these changes to the planning process should encourage accelerated project development through more consistent and complete information flow. The FHWA and FTA agree that these changes to the planning process should not slow project development and that, in fact, they may accelerate project development by providing more focus on national goal areas.

The MI DOT, MTC, SACOG, SANDAG, SCAG, and SJCOG suggested that FHWA and FTA should limit the numbers of required measures. The commenters stated that fewer measures are preferable to a large number of measures. The FHWA and FTA respond that the number of performance measures that will be established is outside the scope of the final rule.

What mechanisms exist or could be created to share data effectively amongst States, MPOs, and operators of public transportation?

The ARC, MI DOT, and NACTO suggested that FHWA and FTA could share data nationally as a mechanism to achieve consistency of effort across applications, and to reduce duplication of effort among States, MPOs, and operators of public transportation. A few commenters noted that FHWA and FTA could support the implementation of performance management by providing easy access to national data sources. The ARC commented that joint procurement and sharing of data with States and MPOs and the use of the national transit database could be methods for effectively sharing data among States, MPOs, and operators of public transportation.

See also comments provided under the previous question on “What mechanisms currently exist or could be created to facilitate coordination?” for additional examples of mechanisms for sharing data among States, MPOs, and operators of public transportation.

In response to this comment, FHWA and FTA note that sharing data nationally and providing easy access to national data sources to achieve consistency is outside the scope of this rule.

For those States, MPOs, and operators of public transportation that already utilize some type of performance management framework, are there best practices that they can share?

The ARC, DRCOG, MD DOT, MI DOT, MTC, SACOG, SANDAG, SCAG, and SJCOG commented that they have already implemented performance-based planning and programming and have long-standing, successful processes in place for establishing performance measures, performance targets, and reporting on progress toward achievement of performance targets.

The CT DOT stated that it anticipates taking a lead role in an open process working with the MPOs and operators of public transportation on target setting since the State owns an overwhelming majority of the transportation systems affected by the MAP-21 performance measures. The CT DOT stated that it also collects, stores, and analyzes most of the data associated with those systems. The MD DOT commented that the State should have the ultimate responsibility regarding target setting within the State.

The DRCOG commented that targets should be set to encourage continuous improvement rather than a concrete objective goal. The commenter further stated that establishing strict, inflexible targets encourages aiming low to achieve an arbitrary plateau not necessarily linked to quality. The DRCOG advised against project-by-project performance measures, and instead recommended that performance measures and targets should be applied at a system or programmatic level. At least one commenter stated that it will be important that funding is aligned with the performance targets in order to achieve them.

A few commenters said that they look to utilize current database information for tracking performance measures first before developing new systems for data collection. Commenters also suggested that the framework for target setting be flexible enough to allow for an adjustment in targets, strategies, and processes as agencies learn and acquire experience with performance management.

The AASHTO, AMPO, CT DOT, and H-GAC stated that there is a need for flexibility when establishing reasonable and appropriate performance targets. They further commented that it will take time to implement performance management and performance-based planning, and that there is potential for significant conflicts to arise during the development of targets.

The ARC was concerned that there might be misleading comparisons on how performance results might be portrayed and interpreted. Another commenter stated that, when relying on a limited number of high level performance metrics, it may not present a comprehensive picture of the effectiveness of a region's performance. The Florida MPO Advisory Council and MD DOT commented that MPOs should be allowed the flexibility to develop and set targets that suit the unique needs of their specific metropolitan area.

In response to these comments, FHWA and FTA agree that there is a need for flexibility in setting targets. There is flexibility in that States and MPOs are responsible for setting their respective targets for the national performance areas. When setting targets for FHWA performance measures, the final rule requires States and MPOs to coordinate with each other and set targets that are consistent to the maximum extent practical. Operators of public transportation and MPOs are required to coordinate to the maximum extent practicable when setting transit performance targets. As part of coordination when setting targets, States, MPOs, and operators of public transportation should seek to minimize conflicts. This requires close coordination between the States and MPOs in areas such as the collection and use of data, use of analytical tools, setting of targets, and the identification of strategies to achieve the targets. Operators of public transportation are responsible for setting performance

targets for the transit performance measures in metropolitan areas in coordination with the affected MPOs.

Although the final rule provides MPOs up to 180 days to set targets after their State sets performance targets, FHWA and FTA strongly encourage States and MPOs to set performance targets at the same time and in coordination with each other. Transportation planning must be cooperative because no single agency has responsibility for the entire transportation system. For example, some roads that are part of the Interstate System are subject to certain standards and are usually maintained by a State. Others are county arterials or city streets which are designed, operated, and maintained by counties or local municipalities. Transit systems are often built, operated, and maintained by a separate entity. See section IV.(B.) for more discussion on interagency coordination.

States and MPOs may have situations where they need to evaluate competing priorities as they make decisions about setting targets for the national performance areas. Scenario planning is one possible tool that States and MPOs can use to evaluate the effect of various scenarios on system performance in order to develop the metropolitan and statewide long-range transportation plans. The FHWA and FTA also agree with the comment that a limited number of high level performance metrics for the national performance areas may not present a comprehensive picture of the effectiveness of a region's performance. States and MPOs are encouraged, but not required, to develop and implement additional performance measures beyond the required national measures that they feel are appropriate to meet their system planning needs. In setting targets as part of their planning process, the States and MPOs are strongly encouraged to engage many of the same stakeholders that they normally engage as part of their planning process.

Regional Planning Coordination

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

Comments were submitted to the docket on these questions from nine entities, including AASHTO, ARC, CO DOT, CT DOT, MD DOT, NRDC, NJ DOT, RMAP, and WI DOT.

How can regional planning coordination be further improved in situations where multiple MPOs serve one or several adjacent urbanized areas?

The AASHTO, CT DOT, and MD DOT suggested that FHWA and FTA develop resource documents and best practice guides to support regional planning coordination as it relates to performance management implementation, and that these resources and best practices be made available at a centralized DOT online vehicle. The MD DOT suggested that FHWA, FTA, and the National Highway and Transit Institutes provide training classes on how States and MPOs can execute and implement these requirements. The MD DOT also suggested that FHWA and FTA could provide access to professional experts to address State and MPO staff questions.

The FHWA and FTA agree that training and technical support can improve the coordination of regional planning. As part of FHWA's Every Day Counts initiative, FHWA and FTA are supporting the Regional Models of Cooperation effort, which provides a framework and process for States and MPOs to develop multijurisdictional transportation plans and agreements to improve communication, collaboration, policy implementation, technology use, and performance management across agency boundaries. See

https://www.fhwa.dot.gov/everydaycounts/edc-3/regional.cfm

.

The FHWA and FTA are also in the process of developing a training course on performance-based planning and programming which will be available at the publication of the final rule. The FHWA Office of Transportation Performance Management (TPM) offers support and assistance to States, MPOs, and operators of public transportation implementing MAP-21 performance provisions. Examples of support include workshops on TPM, peer-to-peer exchanges and demonstration workshops, and “Let's Talk Performance” Webinars, which can be found at

http://www.fhwa.dot.gov/tpm/resources/presentations.cfm

.

The CT DOT proposed that States and MPOs coordinate the collection and analysis of data regarding travel patterns to, through, and among adjacent MPOs. Examples would include traffic counts, household surveys, big data purchases (

e.g.,

cell phone data) that would be beneficial to all decisionmakers. It further noted that it is coordinating efforts with local officials to reorganize the boundaries of MPOs so that they more closely resemble TMA boundaries and/or major transportation corridors that meet a minimum population threshold. It also supports efforts of MPOs to work on joint projects and studies with other MPOs that share urbanized areas and transportation corridors. The NJ DOT commented that an MPO historically has led numerous multistate coordination efforts and noted that States and MPOs are assessing whether that MPO should be the lead facilitator in coordinating target setting that best serves the needs of the entire metropolitan area.

What additional mechanisms could be created to improve regional coordination in situations where there may be multiple MPOs serving a common urbanized area or adjacent urbanized areas?

The FHWA and FTA received comments from ARC, Florida MPO Advisory Council, and NRDC. The ARC noted that, in complex regions that have multiple urbanized areas and/or MPOs, it will be critical for the Federal partners to build on the Interagency Consultation (IAC) concept used for air quality planning in nonattainment areas. While not suggesting that existing air quality IAC groups be reconstituted and their mission changed, a similar concept could be used to coordinate setting targets for the metropolitan area.

The ARC, which is located in a metropolitan statistical area with multiple urbanized areas, shared that it hosts and facilitates a number of standing technical committees, such as a Technical Coordinating Committee, comprised of staff from cities, counties, and State agencies, and a Transit Operators Subcommittee, which is composed of representatives of all operators of public transportation throughout the region. In addition, it regularly convenes working groups and task forces to meet for a specified period of time to focus on specific issues of a time sensitive nature. For example, it convened a Project Delivery Task Force to address systemic issues related to the implementation of transportation projects in its region. The ARC explained that the these task force meetings have been extremely well attended and have provided a structured and energetic forum for agencies at all levels to discuss challenges, provide constructive criticism, and offer solutions. Based on the success of this initiative, the ARC suggests that MPOs form task forces to discuss the implementation of a performance management approach to planning and programming in metropolitan areas. The NRDC encouraged that MPOs use the

existing consortium framework from the HUD Sustainable Communities Initiative planning process (supported by the Inter-Agency Partnership for Sustainable Communities at HUD, DOT, and EPA).

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

B. Recurring Comment Themes on Major Provisions of the Rule

This section contains a consolidated summary of comments and FHWA and FTA responses on major provisions of the rule. The key topic areas covered in this section include: State, MPO, and operator of public transportation coordination on performance-based planning and programming; traditionally underserved populations, environmental justice (EJ), Title VI of the Civil Rights Act of 1964 (as amended), equity, and the transportation planning process; asset management and the transportation planning process; common effective date and phase-in of new requirements; and other changes proposed by commenters. This section is written in narrative format with the exception of the discussion on traditionally underserved populations, EJ, Title VI of the Civil Rights Act of 1964 (as amended), equity, and the transportation planning process which, because of the level of detail, specificity, and uniqueness of the individual comments on the topic area, FHWA and FTA have organized in a comment and response format for ease of providing clarity in the responses.

• State, MPO, and Operator of Public Transportation Coordination on Performance-Based Planning and Programming

At least 48 commenters provided comments on the topic of coordination (Albany MPO, AASHTO, AMPO, APTA, ARC, Board of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC DOT, DRCOG, DVRPC, FMATS, FL DOT, Florida MPO Advisory Council, HI DOT, H-GAC, IA DOT, MAG, MARC, Miami-Dade MPO, MT DOT, MTC, NACTO, NARC, NJTPA, North Florida TPO, NYMTC, (NYMTA), New York State Association of MPOs, NYS DOT, OR DOT, PA DOT, River to Sea TPO, SACOG, SANDAG, San Luis Obispo Council of Governments (COG), SCCRTC, SCAG, SJCOG, SEMCOG, Transportation for America, TX DOT, WA State DOT, and Wilmington MPO)) as it relates to coordination among States, MPOs, and operators of public transportation on the new requirements for performance-based planning and programming. Twenty-five of the commenters were from MPOs, 13 were from States, 8 were from associations, 1 was from an operator of public transportation, and 1 was from an advocacy organization. The comments were received on several sections in the NPRM, including sections 450.206, 450.208, 459.216, 450.218, 450.306, 450.314, 450.324, and 450.326. These sections include the scope of the statewide and metropolitan planning processes, coordination of the statewide transportation planning process, metropolitan planning agreements, development and content of the STIP and TIP, and development and content of the long-range statewide transportation plan and the MPO MTP.

The Federal-Aid Highway Act of 1962 set forward requirements for a 3-C transportation planning process in metropolitan areas. Subsequent acts required the designation of an MPO by the Governor and local officials in census designated urbanized areas. The 1993 planning regulations that resulted from the 1991 passage of ISTEA added provisions for cooperatively developed, written metropolitan planning agreements that outline the planning roles and responsibilities of the States, MPOs, and operators of public transportation in metropolitan areas. Section 450.306(a) continues the longstanding requirement that MPOs are required to conduct the metropolitan transportation planning process in the metropolitan area, including the development of an MTP and TIP, in cooperation with the State and operators of public transportation and expands the metropolitan planning process to make it performance-driven and outcome-based. States are required to cooperate with MPOs when conducting the statewide planning process, including during the development of the long-range statewide transportation plan and the STIP (sections 450.216(g), 450.218(b)). Cooperation means that the parties involved in carrying out the transportation planning and programming process work together to achieve a common goal or objective (section 450.104). Coordination means the cooperative development of plans, programs, and schedules among agencies and entities with legal standing and adjustment of such plans, programs, and schedules to achieve general consistency, as appropriate (section 450.104).

The final rule includes provisions for coordination on performance-based planning and programming among States, MPOs, and operators of public transportation in metropolitan areas. The new requirement for performance-based planning and programming expands the cooperation and coordination role among States and MPOs in the transportation planning process by requiring coordination on target setting for the FHWA required performance measures. Similarly, the role of operators of public transportation is also expanded as States and MPOs are required to coordinate with operators of public transportation on target setting for the FTA required performance measures. Several commenters emphasized the importance of coordination (H-GAC, MAG, MARC, and NCTCOG/RTC) among all metropolitan planning partners, including the States, MPOs, and operators of public transportation for successful implementation of the new requirements for performance management. The FHWA and FTA agree that coordination of performance management between the States, MPOs, and operators of public transportation is critical to successful implementation of performance management and achievement of targets. Coordination needs to include not only target setting, but also the data collection necessary to

support setting targets, identification of investments and strategies to achieve targets, and reporting of progress toward achieving targets.

The final rule includes the new requirement that the State coordinate with the relevant MPOs when setting FHWA performance targets (section 450.206(c)(2)), and, similarly, that MPOs coordinate with the relevant State (section 450.306(d)(2)(ii)) when the MPO is setting FHWA performance targets. States have up to 1 year from the effective date of each performance management final rule to set performance targets for that performance measure (section 450.206(c)(2)), and the MPOs have 180-days after the State or operator of public transportation sets performance targets to set its own targets (section 450(d)(3)). This final rule requires that, as part of the State and MPO coordination on FHWA target setting, the performance targets be consistent to the maximum extent practicable. Although the final rule allows the MPO up to 180 days to set performance targets after the State sets its targets, FHWA and FTA believe it is important that the State and MPO work together on FHWA target setting and, ideally, the State and MPO should be setting their targets at the same time in coordination with each other to ensure that they are consistent to the maximum extent practicable. The MPOs and operators of public transportation should coordinate to the maximum extent practicable in metropolitan areas on target selection for the public transportation performance targets. The MPOs have up to 180 days to set transit performance targets for the metropolitan area's transit performance measures after operators of public transportation set transit performance targets. State and MPO coordination on target setting will be crucial to successful implementation of performance management and the performance-based planning and programming process that supports performance management.

Although States, MPOs, and operators of public transportation are required to establish performance targets for the federally required performance measures based on the phase-in schedules and timeframes described in the final rule, FHWA and FTA think it is important to note that they coordinate on their target setting in advance of establishing those targets. As such, State, MPO, and operator of public transportation coordination on target setting will need to begin in advance of when the targets are required to be established.

Scope of the Metropolitan and Statewide Transportation Planning Processes (Sections 450.206 and 450.306)

Several comments received on section 450.306(d) emphasized the importance of coordination (H-GAC, MAG, MARC, and NCTCOG/RTC) among all metropolitan planning partners, including the States, MPOs, and operators of public transportation for successful implementation of performance management. The FHWA and FTA agree. Coordination of performance management among the States, MPOs, and operators of public transportation is critical to successful performance management and achievement of targets. Coordination needs to include not only target setting, but also the identification of investments and strategies to achieve those targets.

The WA State DOT commented that there is a need for more explicit explanations on the relationships and roles between the States and MPOs in section 450.306(d). The commenter further stated that it is unclear if MPOs are required to match the targets set by the State. The FHWA and FTA respond that States and MPOs are each required to set performance targets for the federally required performance measures. When setting performance targets for the federally required performance measures, MPOs are not required to match State targets; however, States and MPOs are required to coordinate to ensure consistency to the maximum extent practicable when setting the highway-related performance targets. Similarly, States (in areas not represented by an MPO) and MPOs (in MPAs) are to coordinate the selection of State and MPO transit-related performance targets to the maximum extent practicable with operators of public transportation to ensure consistency with the transit safety and state of good repair targets. No changes have been made to this section as a result of this comment.

The MTC, SACOG, SANDAG, SCAG, and SJCOG commented on the difficulty of coordination on target setting when there are a large number of agencies. The WA State DOT commented that there is a need for more explicit explanations on the relationships and roles between the States and MPOs. The MD DOT, NJ DOT, and TN DOT commented that setting of performance targets will be a significant challenge in interstate MPOs that have membership in multiple States, since each State differs with respect to legal framework, resource availability, policies, goals, and priorities. A few States (MD DOT and TN DOT) indicated that it is not clear who will have the ultimate authority in establishing targets when a State or MPO cannot agree.

The commenters further stated that funding constraints may make it difficult to move in the desired direction for many performance targets. They are also concerned about the implementation costs and resources required of smaller MPOs. The DC DOT and NJTPA commented on the new provisions for performance-based planning in section 450.306(d) because of the difficulty in coordinating target setting in situations where there may be multiple States, MPOs, and/or operators of public transportation involved, such as in bi-State or tri-State metropolitan regions.

In response to these comments, FHWA and FTA note that section 450.314(h) of the rule describes methods for States, MPOs, and operators of public transportation in metropolitan areas to mutually agree upon and document the roles and responsibilities for conducting performance-based planning and programming through the metropolitan planning agreement or by some other means. The FHWA and FTA also note the longstanding requirement in 23 U.S.C. 134(i)(2)(E)(iii) and 49 U.S.C. 5303(i)(2)(E)(iii) which provide that the State, MPO, and operator of public transportation shall cooperatively develop estimates of funds that will be available to support plan and TIP implementation. The availability of funding would certainly influence target setting, and the cooperative development of the funding estimates should help further encourage the States, MPOs, and operators of public transportation to work together. Comments on the costs of implementation and resources for MPOs to undertake these new requirements, including for smaller MPOs, are addressed separately in this document under the section addressing the regulatory impact analysis (RIA) for this rule.

The APTA commented that areas with multiple MPOs should be encouraged to coordinate across urbanized areas through informal means. The FHWA and FTA response to this comment is that the regulations at section 450.314(h) require that the State(s), MPO(s), and operator(s) of public transportation serving a single urbanized area mutually agree upon and document specific written provisions for interagency coordination on performance-based planning and programming, either as part of the metropolitan planning agreement, or by

some other means as mutually agreed upon by the MPO(s), State(s), and operator(s) of public transportation. It is up to the agencies to mutually decide how that coordination will take place.

Sections 450.206(c)(4) and 450.306(d)(4) of the final rule require that the State and the MPOs are required to integrate into the statewide and the metropolitan transportation planning processes, directly or by reference, the goals, objectives, performance, measures, and targets in other State transportation plans and transportation processes, as well as any plans developed pursuant to chapter 53 of title 49 by operators of public transportation in areas not represented by an MPO required as part of a performance-based program. Examples of such plans and processes include the HSIP, SHSP, the State asset management plan for the NHS, the State Freight Plan, the Transit Asset Management Plan, and the Public Transportation Agency Safety Plan.

Several commenters (Albany MPO, AMPO, DVRPC, NARC, New York State Association of MPOs, NYMTC, PA DOT, and San Luis Obispo COG) remarked that this requirement appears to be in conflict with sections 450.306(d)(2)(i), (ii), and (iii), which state that each MPO shall establish performance targets, and the selection of targets shall be coordinated with the State and, to the maximum extent practicable, coordinated with operators of public transportation. The FHWA and FTA response to this comment is that these provisions do not conflict. They reflect the need for close coordination between States, MPOs, and operators of public transportation during the target setting process to ensure that the targets are coordinated and consistent to the maximum extent practicable. This would suggest that State, MPO, and operator of public transportation coordination during the development of other performance-based plans and processes (such as the State asset management plan for the NHS and transit asset management plans, safety plans, freight plans, and congestion plans) is desirable because these plans could affect the performance targets and the investments that support those targets. Early coordination on the development of these other performance-based plans and processes could ease their integration into the statewide and the metropolitan transportation planning processes.

The San Luis Obispo COG and SCCRTC commented on section 450.306, scope of the metropolitan planning process. They felt that decisionmaking for metropolitan projects often lies with the State, and as a result, the ability for an MPO to succeed at performance-based planning and at achieving performance targets is constrained. In response to this comment, FHWA and FTA reiterate the importance of early and ongoing State and MPO coordination on performance-based planning and programming, particularly with target setting and the identification of investments and strategies necessary to achieve targets. The FHWA and FTA note that it is an MPOs responsibility to develop the TIP (23 CFR 450.326), in cooperation with the State(s) and any affected public transportation operator(s), and to review and update the MTP (23 CFR 450.324(c)). The FHWA and FTA note that the State is required to develop the STIP in cooperation with the MPO designated for the metropolitan area (23 CFR 450.218(b)) and the State shall include each metropolitan TIP without changes in the STIP, directly or by reference, after approval of the TIP by the MPO and the Governor (23 CFR 450.218(b)).

Many commenters indicated that they disagreed with the requirement to amend the metropolitan planning agreement, stating that it is inflexible, that there would be a need to update the agreements frequently, and that updates take a long time. In reviewing these comments, FHWA and FTA decided to retain the requirement that there be mutually developed written documentation describing the interagency roles and responsibilities for performance-based planning in a metropolitan area. However, the final rule allows for flexibility, in that it may be documented as part of the metropolitan planning agreement, or in some other form mutually agreed upon by the States, MPOs, and operators of public transportation.

Coordination of Statewide Planning Process Activities (Section 450.208)

Regarding the coordination of planning process activities in section 450.208, NYS DOT commented that in multijurisdictional mega-regions, flexibility is needed to coordinate performance management requirements among States, MPOs, and interstate agencies or authorities. The commenter further stated that this flexibility is needed due to the complexity of transportation facilities and services that may straddle several MPO and State boundaries. The SEMCOG commented that there should be flexibility to allow MPOs to develop cooperative procedures for performance-based planning that are best for the local situation. The FHWA and FTA agree that States, MPOs, and interstate agencies and authorities need the flexibility to determine how best to coordinate their respective transportation planning activities and believe that the final rule provides for flexibility. Section 450.314(h) provides States, MPOs, and operators of public transportation options for mutually identifying the agency roles and responsibilities for performance-based planning and programming in metropolitan areas in writing, either through the metropolitan planning agreements or by some other mutually determined means.

Development and Content of Long-Range Statewide Transportation Plans, MTPs, STIPs, and TIPs (Sections 450.216, 450.218, 450.324, and 450.326)

The FMATS commented that it is essential for States to develop performance targets in full coordination with MPOs and the nonmetropolitan planning areas to ensure that performance targets are considered during the development of TIPs and STIPs, and that investment priorities are tied to targets. The FHWA and FTA agree that State and MPO coordination is a key part of target setting. It is also key that MPOs and operators of public transportation coordinate in metropolitan areas and that States coordinate with rural operators of public transportation as part of target setting for transit measures. The Miami-Dade MPO stated that it is important for States to coordinate the STIP with MPOs and that the STIP be consistent with the metropolitan plans, especially in TMAs. In response to this comment, FHWA and FTA reiterate that the STIP and the TIP must be consistent with the long-range statewide transportation plan (section 450.218(k)) and the MTP (section 450.326(i)), respectively, and that that the STIP must incorporate the TIP without alteration (section 450.218(b)).

Section 450.314 Metropolitan Planning Agreements

Section 450.314 discusses the requirement that States, MPOs, and operators of public transportation serving an MPA cooperatively establish a metropolitan planning agreement. These agreements determine the mutual responsibilities of the parties in carrying out the metropolitan transportation planning process. Forty-three commenters (Albany MPO, AASHTO, AMPO, APTA, ARC, Board of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CO DOT, CT DOT, DC DOT, DRCOG, DVRPC, FL DOT, Florida MPO Advisory Council,

FMATS, H-GAC, HI DOT, IA DOT, MAG, MARC, Metropolitan Transportation Council MPO, MT DOT, MTC, NACTO, NARC, New York State Association of MPOs, NJTPA, NC DOT, North Florida TPO, NYMTA, NYMTC, NYS DOT, OR DOT, PA DOT, River to Sea TPO, SACOG, SANDAG, SCAG, SJCOG, Transportation for America, TX DOT, and Wilmington MPO) provided comments on this section. Twenty-one of the commenters were from MPOs, 13 were from States, 7 were from transportation associations, 1 was from an operator of public transportation, and 1 was from an advocacy organization.

The requirement to have metropolitan planning agreements is long-standing, dating to the 1993 planning regulations that resulted from the passage of ISTEA in 1991. The metropolitan planning agreements serve as a basis for describing the interagency coordination that is part of the 3-C planning process. In the NPRM, FHWA and FTA proposed to add new provisions in this section to require that the States, MPOs, and operators of public transportation update the metropolitan planning agreements to include new interagency coordination provisions for State, MPO, and operator of public transportation on performance-based planning and programming and on the collection of data for the State asset management plan for the NHS. Specifically, sections 450.314(a), (e), and (g) in the NPRM would have required that the metropolitan planning agreements include specific provisions for cooperatively developing and sharing information related to transportation systems performance data, the selection of performance targets, the reporting of performance targets, the reporting of system performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (section 450.306(d)), and the collection of data for the State asset management plan for the NHS.[P]Requirements R1 and R2 from the analogous Requirement R3 in the currently-effective Reliability Standard.

The NPRM proposed the addition of this new provision to the metropolitan planning agreements for two reasons: (1) To document the coordination necessary to successfully implement performance-based planning in metropolitan areas, and (2) to document coordination on the collection of data for the NHS for the State asset management plan (given that there are NHS highways in metropolitan areas and that some NHS roads are not on the State highway system but instead are under the ownership of local jurisdictions).

Nearly all of the comments on this section focused on the proposed requirements for including specific provisions in the metropolitan planning agreements for cooperatively developing and sharing information related to transportation systems performance data, the selection of performance targets, the reporting of performance targets, the reporting of system performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (see section 450.306(d)), and the collection of data for the State asset management plan for the NHS. The commenters near universally stated that it would be difficult, time consuming, expensive, and require extensive review to carry this out and that these changes should not be included in the final rule. They further indicated that including the provision as part of the metropolitan planning agreement creates inflexibility because it would be difficult and time consuming to change the agreements as roles of the agencies might shift over time and the agreements might be subject to frequent change.

Nearly all of the commenters (AASHTO, Albany MPO, AMPO, ARC, Board of the French Broad River MPO, CALTRANS, Charlotte Regional TPO, CT DOT, DC DOT, DRCOG, DVRPC, FL DOT, Florida MPO Advisory Council, H-GAC, HI DOT, IA DOT, Metropolitan Council MPO, MTC, MT DOT, NACTO, NARC, NJTPA, North Florida TPO, NYMTA, NYMTC, OR DOT, PA DOT, River to Sea TPO, Transportation for America, and TX DOT) stated that they did not support these new requirements. These commenters suggested that they should not be included in the final rule, should be made optional, or should be done by more flexible means outside of the metropolitan planning agreement itself because of the difficulty in amending these agreements.

As part of their comments to the docket, many commenters provided examples of locally preferred, less formal methods of documentation for coordination (in place of using the metropolitan planning agreement). The alternative methods of documenting coordination suggested by the commenters include: MPO operating procedures (AASHTO, CT DOT, and TX DOT), Unified Planning Work Program (UPWP) (CT DOT), handshake agreements (ARC), resolution (Board of the French Broad River MPO, Charlotte Regional TPO, and Wilmington Urban Area MPO), and a secondary agreement separate from the metropolitan planning agreement (FMATS). The New York State Association of MPOs suggested documenting coordination methods through addendums or amendments to the existing metropolitan planning agreements without having to open existing agreements. The NYMTA commented that it prefers that the agency roles and responsibilities be identified outside the metropolitan planning agreement in a more informal manner. The CO DOT commented that the metropolitan planning agreement should be flexible, especially for the proposed new elements on performance-based planning. While many commenters (AASHTO, ARC, DVRPC, FMATS, MTC, New York State Association of MPOs, NYMTA, PA DOT, SANDAG, SCAG, SJCOOG, and Transportation for America) further stated that although they disagreed with the proposal requiring that the metropolitan planning agreements be modified, they recognized the importance of ensuring all planning agencies are coordinating and collaborating together on regional planning issues, including performance-based planning.

After reviewing these comments, FHWA and FTA have decided to modify the final rule to make it more flexible while still fulfilling a requirement to jointly agree upon and document mutual responsibilities for coordination in support of performance-based planning. In the final rule, FHWA and FTA have deleted the provisions for documenting the mutual responsibilities for interagency coordination on performance-based planning and for coordination on data collection on the NHS from sections 450.314(a), (e), and (g), and added new section 450.314(h).

The new section 450.314(h) requires that States, MPOs, and operators of public transportation jointly agree upon and develop specific written provisions for cooperatively developing and sharing information related to transportation performance data, the selection of performance targets, the reporting of performance targets, the reporting of performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (see section 450.306(d)), and the collection of data for the State asset management plan for the NHS. The provision requiring documentation of mutual responsibilities for State, MPO, and operator of public transportation coordination in the final rule is more flexible than what was proposed in the NPRM in that these provisions for coordination shall be documented either: (1) As part of the metropolitan planning agreements required under sections 450.314(a), (e), and (g), or (2) in some other means outside of the metropolitan planning agreement as determined jointly by the States, MPOs, and operators of public transportation.

Similar to the NPRM, section 450.314(a), (e), and (g), and section 450.314(h) of the final rule requires documentation of responsibilities for coordination in each of the following circumstances: (1) When one MPO serves an urbanized area, (2) when more than one MPO serves an urbanized area, and (3) when an urbanized area that has been designated as a TMA overlaps into an adjacent MPA serving an urbanized area that is not a TMA. As a result, the language for the metropolitan planning agreements, as it relates to performance-based planning and for the data collection for the NHS, is unchanged in the final rule with the exception that it has been made more flexible to provide States, MPOs, and operators of public transportation more options in how they establish written methods for coordination.

In the final rule, FHWA and FTA still require the States, MPOs, and operators of public transportation to mutually identify the roles and responsibilities of each agency for performance-based planning and for collection of data for the NHS in a documented manner. However, the option is provided to jointly agree upon and document the methods for coordination either through amending the existing metropolitan planning agreement or through another mechanism outside of the metropolitan planning agreement. This mechanism can be mutually agreed on by the States, MPOs, and operators of public transportation.

Four commenters (Albany MPO, DVRPC, New York State Association of MPOs, and NYMTC) were concerned that it will be difficult to establish agreements because some of the data and analytical tools necessary for performance-based planning might not yet be available and that several of the other NPRMs establishing performance measures for the performance-based programs have not yet been released. The FHWA and FTA response is that under section 450.340 of the final rule (phase-in of new requirements), MPOs have 2 years from the issuance of the other performance management final rules before they have to comply with the performance-based planning requirements of the final rule, including compliance with the requirement to document the interagency coordination on performance-based planning and data collection for the NHS as required in section 450.314. As a result, FHWA and FTA made no changes to the final rule based on this comment.

Transportation for America commented that it wants stronger local decisionmaking through improved State and MPO coordination regarding NHS within MPO boundaries, and that they would rather have coordination than cooperation. In response to this comment, FHWA and FTA note that section 450.314(h) requires States and MPOs to mutually determine and document the roles and responsibilities of each agency for the collection of data for the NHS in the MPA of the MPO in writing as part of the metropolitan planning agreement, or in some other mutually agreed to format. No changes are made to the final rule based on this comment.

Two commenters (FMATS and MARC) remarked that it is critical to describe and clarify the roles and responsibilities of parties responsible for the collection of data on the NHS because of the new requirements for a State asset management plan for the NHS and the establishment of performance measures and targets. The FMATS further stated that a conflict resolution process should be included as part of the agreement. The MARC commented that MAP-21 added many locally owned and operated principal arterial routes to the NHS and that States should have primary responsibility for data collection on the NHS with the option of providing funding to others to collect. The FHWA and FTA respond that the final rule does not establish who has primary responsibility for data collection for the NHS routes that are off the State system. However, that should be part of what is cooperatively described by the States, MPOs, and operators of public transportation in their documentation prepared to fulfill the requirements of section 450.314(h).

In regards to the FMATS comment about establishing a conflict resolution process, FHWA and FTA respond that States, MPOs, and operators of public transportation are not required to establish a conflict resolution process. However, they may choose to do so. The FHWA and FTA did not make any changes to the final rule as a result of these comments.

The CO DOT and NC DOT commented that FHWA and FTA should provide the States, MPOs, and operators of public transportation the flexibility to determine the specific elements that are appropriate for inclusion in the metropolitan planning agreement. In response to these comments, States, MPOs, and operators of public transportation are provided the flexibility to determine the specific elements that are appropriate for inclusion in the metropolitan planning agreement provided that, at a minimum, they include the requirement elements described in section 450.314. The NJ DOT stated that it already has in place various agreements with its transportation partners that were reached through a collaborative process, and it would rather use these or other less formal documents than the metropolitan planning agreement.

The FHWA and FTA response to this comment is that for the documentation on coordination for performance-based planning and for data collection for the NHS, States, MPOs, and operator of public transportation may collaboratively decide to document their methods for coordination outside of the metropolitan planning agreement as part of other less formal written agreements or through some other means.

The FMATS commented that that when a State updates it long-range statewide transportation plan or other performance-based plans, it is critical that it coordinate with MPOs because the State plans have impacts on the MPOs planning process. The FHWA and FTA response to this comment is that the metropolitan planning agreement, or another cooperatively developed agreement outside of the planning agreement could be a good place for describing this coordination.

The DVRPC stated that a single agreement might not be possible, for example in regions with multiple States. The FHWA and FTA response to this comment is that while a single agreement is preferred, it might not always be realistic, particularly in situations where there are multiple States involved and that, if necessary, there might be more than one agreement.

The NYMTA encouraged FHWA and FTA to provide examples of best practices on State, MPO, and operator of public transportation coordination that MPOs may implement. The APTA commented that FHWA and FTA could support coordination through guidance and technical assistance. The FHWA and FTA agree that sharing best practices on performance-based planning including sharing methods of coordination is useful and would benefit the state of the practice. The FHWA and FTA are already in the process of, and plan to continue developing guidance, workshops, peer exchanges, and other materials as appropriate to help disseminate best practices for performance-based planning and programming, including best practices on interagency coordination.

The MN DOT commented that it would like to see more clarification concerning bi-State MPOs in regards to coordination efforts for target setting in the final rule. The FHWA and FTA

reiterate that, similar to what was required in the NPRM under sections 450.314(a), (e), and (g), section 450.314(h) in the final rule requires documentation of responsibilities for coordination for each of the following circumstances: (1) When one MPO serves an urbanized area, (2) when more than one MPO serves an urbanized area, and (3) when an urbanized area that has been designated as a TMA overlaps into an adjacent MPA serving an urbanized area that is not a TMA. A bi-State MPO could exist in any of these circumstances, because some urbanized areas cross State lines. Under these requirements, a bi-State MPO would have written agreements that include both States. The States, MPOs, and operators of public transportation would mutually identify and document their methods, roles, and responsibilities for coordination on performance-based planning and programming as part of the metropolitan planning agreement or by some other means.

Provisions for target setting for bi-State MPOs that are for specific performance measures are outside the context of the final rule. There are other rules on target setting for the specific federally required performance measures.

In the NPRM, sections 450.314(a), (e), and (g) used the words “system” and “systems” when referring to transportation systems performance data and when referring to the reporting of system performance. As described previously, FHWA and FTA added new section 450.314(h) instead of revising sections 450.314(a), (e), and (g). At least one commenter (MAG) asked for clarification on what the word “system” is referring to. The FHWA and FTA feel that the use of the words in this section is confusing, vague, undefined, and subject to misinterpretation and has removed them from section 450.314(h).

In summary, FHWA and FTA feel strongly that interagency coordination is an important part of successful implementation of the 3-C planning process, including the new requirements for performance-based planning. The requirement for cooperatively documenting the mutual responsibilities for carrying out the 3-C metropolitan transportation planning process has a long history dating back to the 1993 planning regulations. Performance-based planning is the newest addition to the 3-C planning process. Documenting the mutual responsibilities of the States, MPOs, and operators of public transportation in writing, either through the metropolitan planning agreement or through another means, is crucial to the successful implementation of the coordination that is necessary for the successful implementation of performance-based planning. For this reason, the final rule retains the requirement to document the methods for interagency coordination on performance-based planning and for data collection for the State asset management plan for the NHS. However, the final rule provides flexibility in how it may be documented.

The FHWA and FTA reiterate the importance of coordination to the effectiveness of performance-based planning and programming. Consequently, FHWA and FTA intend to initiate a rulemaking that will propose methods for improving MPO coordination in the transportation planning process, which recognizes the critical role that MPOs play in ensuring the economic well-being of a region and in identifying efficient improvements that serve its mobility needs. This targeted rulemaking will address the coordination challenges and inefficiencies that may result where there are multiple MPOs designated within a single urbanized area. The rulemaking may clarify the statutory requirement for the State and MPO to determine whether it is appropriate to designate multiple MPOs within a region, based on the size and complexity of the area. To further a 3-C transportation planning process, it may describe the coordination and collaboration requirements for MPOs already designated in regions with other MPOs. The changes under consideration are intended to enable MPOs to speak with a stronger, more unified voice, to increase efficiencies, to accelerate project delivery, and to improve the extent to which transportation investments reflect the needs and priorities of that region.

To date, FHWA and FTA have conducted numerous workshops, peer exchanges, and best practice studies to provide information and examples of performance-based planning and programming practices for use by the States, MPOs, and operators of public transportation, including information on interagency coordination. These resources are intended to aid the planning agencies in their transition to performance-based planning and programming. Many of these resources include elements of interagency coordination practices. This material is available at:

http://www.fhwa.dot.gov/planning/performance_based_planning/

. The FHWA and FTA plan to continue to develop and share additional resources on performance-based planning and programming in the future, including resources on interagency coordination.

• Traditionally Underserved Populations, Environmental Justice, Title VI of the Civil Rights Act of 1964 (as Amended), Equity, and the Transportation Planning Process

At least 12 commenters discussed the relationships between traditionally underserved populations and the transportation planning process (Community Labor United, Enterprise Community Partners, Front Range Economic Strategy Center, National Association of Social Workers, National Housing Conference, NRDC, Partnership for Active Transportation, Partnership for Working Families, Policy Link, Public Advocates, Sierra Club, and United Spinal Association). The comments focused on two elements: (1) Participation of traditionally underserved populations in the planning process itself, and (2) consideration of traditionally underserved populations in the planning process, including the development of key planning documents such as transportation plans and programs.

Related topic areas on which FHWA and FTA received comments included equity, EJ (Executive Order (E.O.) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 1994), and Title VI of the Civil Rights Act of 1964 (as amended, 42 U.S.C. 2000d-1). These comments were submitted on several sections of the planning regulations including scope of the statewide and nonmetropolitan and metropolitan planning processes (sections 450.206 and 450.306) and development and content of the long-range statewide transportation plan, MTP, STIP, and TIP (sections 450.216, 450.218, 450.325, and 450.326). Comments were also received on sections of the NPRM concerning Federal findings and approvals (section 450.220) and self-certifications and Federal certifications (section 450.336).

Given the level of detail, specificity, and uniqueness of the individual comments on this topic area, FHWA and FTA have organized this section in a comment and response format for ease of providing clarity in the responses.

Comment:

The Nine to Five National Association of Working Women commented that an equitable transportation system is critical to creating thriving communities of opportunity. The commenter stated that where and how we decide to make transportation investments is critical to communities' access to economic

opportunity. The commenter further stated that low income and minority communities face tremendous barriers in access to transportation that can get them to critical places like school, work, child care, appointments, and grocery stores, and that reducing those barriers will require targeted investments.

Response:

The FHWA and FTA agree that the transportation system plays a critical role in connecting Americans to opportunity by providing people with reliable and affordable connections to employment, education, services, other opportunities, creating career pathways into transportation jobs, and revitalizing neighborhoods and regions. The FHWA and FTA emphasize transportation system connectivity to create economic growth and spark community revitalization, particularly for disadvantaged groups like low-income, minority, older adults, or individuals with disabilities. The FHWA and FTA and the Office of the Secretary of Transportation are actively working with States, MPOs, operators of public transportation, and others on an initiative called Ladders of Opportunity. Ladders of Opportunity is an outreach effort that encourages MPOs, States, and operators of public transportation to consider connectivity and access for traditionally underserved populations to employment, health care, healthy food, and other essential services using Geographic Information Systems (GIS) based analysis tools and data. Ladders of Opportunity and connectivity have been part of the planning emphasis areas of the FHWA and FTA for Federal fiscal years 2015 and 2016.

The FHWA and FTA have developed several case study examples of analysis of connectivity and shared it with States and MPOs via Webinars and a workshop. Under the Ladders of Opportunity initiative, the MPOs are being encouraged to include funded work program activities to include an analysis of connectivity gaps with their MTP and TIP development. The FHWA and FTA will continue to conduct outreach and training on this topic and encourage MPOs to include a connectivity analysis as part of their planning process and plan and TIP development.

Comment:

The Enterprise Community Partners, NRDC, and National Housing Conference, suggested that there be a requirement to include housing and community development representatives and consider those topics in the in the scope of the statewide and metropolitan planning processes (sections 450.206 and 450.306).

Response:

The FHWA and FTA note that under sections 450.206 and 450.306 it is required that the statewide and metropolitan planning process promotes consistency between transportation improvements and State and local planned growth and economic development patterns. The FHWA and FTA also note that under sections 450.210(a) and 450.316(a), States and MPOs are required to provide individuals, affected public agencies, representatives of the disabled, and other interested parties an opportunity to be involved in the statewide and the metropolitan transportation planning processes. The FHWA and FTA believe that these affected public agencies and other interested parties should include housing and community development representatives.

Comment:

Several commenters suggested that FHWA and FTA should consider that scenario planning in the development of the MTP be used by MPOs to analyze the impact of investments and policies on the transportation system, including prioritizing the needs of low-income populations, minorities, or people with disabilities.

On section 450.324(i), voluntary use of scenario planning in the development of the metropolitan transportation plan, at least seven advocacy groups (Community Labor United, Front Range Economic Center, National Association of Social Workers, Partnership for Working Families, PolicyLink, Public Advocates, United Spinal Association) suggested that scenario planning be used by MPOs to analyze the impact of investments and policies on the transportation system including prioritizing the needs of low-income populations, minorities, or people with disabilities. One advocacy group (National Housing Conference) suggested that MPOs should consider housing needs when conducting scenario planning.

Response:

The FHWA and FTA agree with the commenters that scenario planning could help an MPO conduct an analysis of the impact of investments on low-income, minority, or disabled populations. However, FHWA and FTA reiterate that the use of scenario planning by the MPOs as part of developing the MTP is optional under the final rule (section 450.324(i)). The FHWA and FTA have a long-standing history of working with MPOs on the implementation of EJ into the planning process and Title VI. Similarly, MPOs could choose to evaluate housing needs as part of scenario planning, but are not required. That decision is left to the individual MPOs to decide. Based on these comments, no changes are made to the final rule.

The FHWA and FTA strongly support scenario planning as a best practice for developing the MTP. The NPRM and the final rule provide an optional framework for MPOs to use scenario planning in the development of their MTPs at section 450.324(i). The FHWA and FTA have developed considerable resources, examples of practice, and peer exchanges in support of promoting scenario planning. They are available at:

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

.

Comment:

An EJ, equity, and Title VI analysis should be part of the scope of the statewide and metropolitan planning processes.

Nearly all of the commenters who provided comments on the relationships between traditionally underserved populations and the transportation planning process stated that States and MPOs should conduct an analysis of the impact of transportation plans, STIPs, and TIPs on EJ communities and Title VI in the interest of ensuring that investments are made in ways that help all communities prosper and achieve equitable investments. Several commenters recommended that performance measures be used to prioritize projects and expand equity and access to economic opportunity, public transit, access to jobs, affordable housing, pedestrian safety, and transportation costs for the benefit of traditionally underserved populations.

Others recommended that MTPs should be evaluated by their potential to connect the traditionally underserved to opportunities by providing them with reliable and affordable connections to employment, education, services, and other opportunities; creating career pathways into transportation jobs; and revitalizing neighborhoods and regions. Public Advocates suggested that MPOs should complete a comprehensive study of current conditions of disadvantaged communities as part of an equity analysis. They further stated that MPOs should routinely gather, analyze, and report relevant transit rider and demographic data and disaggregate by race and income. The Center for Social Inclusion stated that MPOs should conduct an equity analysis assessment of the TIP investments because they are short-term, in addition to an analysis of the MTP, which is longer term.

Response:

The FHWA and FTA have been working actively with the States and MPOs to implement EJ principles into the statewide and metropolitan transportation planning and project development processes in accordance

with Executive Order 12898. The FHWA and FTA also require States and MPOs to comply with the requirements of Title VI and periodically review their compliance as part of TMA planning certification and through other Title VI reviews. The FHWA and FTA do not prescribe specifically how a State, MPO, or operator of public transportation conducts its analysis of EJ or Title VI. That is left to the specific agencies to decide based on their needs and situations. The FHWA and FTA provide examples of good practice and training that States, MPOs, and operators of public transportation can use to guide their practices.

Comment:

The NRDC suggested that FHWA and FTA should establish a framework for MPOs to demonstrate to them and local communities how they are incorporating EO 12898 into their planning process.

Response:

The FHWA and FTA typically discuss efforts at integrating EJ into the planning process and EO 12898 during certification reviews of TMAs.

Comment:

The Nine to Five National Association of Working Women stated that developing State and metropolitan planning guidance that includes the voices of directly affected communities and prioritizes enhanced mobility and opportunity for the most vulnerable populations, transit investments can go a long way to supporting improved social and economic outcomes in these communities.

Response:

The FHWA and FTA note that under section 450.210(a)(1)(vii), the final rule continues the long-standing requirement that States develop and use a documented public involvement process that provides opportunities for public review and comment at key decision points in the statewide and nonmetropolitan transportation planning process. The State's public involvement process is required to include seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services (section 450.210(a)(1)(viii)).

The MPOs are required to develop a participation plan in consultation with all interested parties. Similar to the State's documented public involvement process, the MPO public participation plan is required to include a process for seeking out and considering the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services (section 450.316(a)(1)(vii)).

Both the States and the MPOs are also required to provide adequate notice of public participation activities and a reasonable opportunity to comment on the long-range transportation plan, STIP, and TIP. The final rule also continues the long-standing requirement that both States and MPOs must hold any public meetings at convenient times and accessible locations, provide the public timely notice and reasonable access to information about transportation issues and process, and demonstrate explicit consideration and response to public input received on the long-range plan, STIP, and TIP (sections 450.210 and 450.316).

Comment:

Nearly all of the advocacy groups commented that FHWA and FTA should provide guidance on EJ based on EO 12898. Several commenters suggested that best practices from academic research should be used in equity analysis design and be recommended by FHWA and FTA.

Response:

The FHWA and FTA have a longstanding practice of undertaking research studies and identifying best practices and case studies in EJ, including equity analysis. This information is available at:

http://www.fhwa.dot.gov/environment/environmental_justice/

. This site is updated frequently with new resource material. The FHWA and FTA also offer training on EJ and Title VI on request.

Comment:

Several advocacy groups (Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Partnership for Working Families, PolicyLink, Public Advocaes, The Leadership Conference on Civil and Human Rights, and United Spinal Association) commented that EO 12898 and Title VI of the Civil Rights Act of 1964, as amended, should be part of the State and the MPO self-certification and topics of review in FHWA and FTA TMA transportation planning certification. They suggested that in sections 450.220 and 450.336 States and MPOs should be required to self-certify compliance with EO 12898 and Title VI and that FHWA and FTA should review compliance as part of the TMA transportation planning certification review.

Response:

States and MPOs are required by the final rule to certify compliance with Title VI. The FHWA and FTA do not require States and MPOs to self-certify compliance to the EO because it is only intended to improve the internal management of the Executive Branch and is directed to Federal agencies.

Also, as stated in section 6-609 of the EO, it does not create substantive rights. Consistent with this approach, all of the requirements identified in sections 450.220 and 450.336 are based on law, not EOs. However, FHWA and FTA encourage States, MPOs, and operators of public transportation to incorporate EJ principles into the planning processes and documents. The FHWA and FTA consider EJ when making future funding or other approval decisions on a project basis, as required by EO 12898.

The FHWA and FTA further respond that EJ is typically discussed as part of TMA planning certification reviews. The FHWA and FTA have a long-standing history of working with States and MPOs to implement EJ as part of the transportation planning and project development processes. States and MPOs are required by the final rule to certify compliance with Title VI (sections 450.220 and 450.336). The FHWA and FTA typically discuss compliance with Title VI as part of TMA planning certification reviews.

The FHWA and FTA note that Title VI of the Civil Rights Act of 1964 is a Federal law that protects persons from discrimination based on race, color, or national origin in programs and activities that receive Federal financial assistance. These regulations require States to certify that the transportation planning process is being carried out in accordance with all applicable requirements of Title VI (42 U.S.C. 2000d-1) and 49 CFR part 21 at the time that the STIP or STIP amendments are submitted to FHWA and FTA for joint approval (section 450.220(a)(2)). The MPOs must make similar certification concurrent with the submittal of the TIP to FHWA and FTA as part of the STIP approval (section 450.336(a)(3)). The FHWA and FTA typically review compliance with Title VI as part of the planning certification review of TMAs, and also review Title VI complaints as part of other reviews that are outside the scope of the final rule.

Comment:

The National Association of Social Workers, NRDC, Policy Link, Sierra Club, and United Spinal Association commented that MPOs should establish governing bodies that are inclusive of the communities they serve, and that the decisionmaking bodies should reflect the diversity of interests based on age, race, ethnicity, disability, and income.

Response:

The FHWA and FTA note that the policy board for MPOs that serve TMAs are to be established in accordance with the requirements in the final rule at section 450.310, which is reflective of the law at 23 U.S.C. 134(d) and 49 U.S.C. 5303(d). This section requires specific representation from

local elected officials, officials of public agencies that administer or operate major modes of transportation in the metropolitan area, representation by operators of public transportation, and appropriate State officials. The FHWA and FTA encourage MPOs to seek representation from minority communities as part of meeting the requirements of section 450.310. As discussed elsewhere in this summary, MPOs are required to self-certify compliance with Title VI and FHWA and FTA periodically review this self-certification.

Comment:

The Center for Social Inclusion, Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Policy Link, Public Advocates, and United Spinal Association commented that FHWA and FTA should collect and share data on travel behavior that is disaggregated by race and income. They also commented that FHWA and FTA should facilitate local and targeted hiring on transportation projects. One commenter suggested that FHWA and FTA should do a comprehensive study on the current condition of targeted communities.

Response:

The FHWA and FTA response to these comments is that these requests are outside the scope of this rule.

Comment:

Several commenters (United Spinal Association, Public Advocates, Policy Link, Community Labor United, Front Range Economic Strategy Center, National Association of Social Workers, Partnership for Working Families) encouraged FHWA and FTA to consider incentivizing implementation of equity-based performance measures in its Transportation Investment Generating Economic Recovery (TIGER) program. The Center for Social Inclusion suggested that a competitive grant program similar to TIGER should be established to incentivize States, MPOs, and operators of public transportation to coordinate and conduct project level equity analysis.

Response:

The FHWA and FTA note that the TIGER grantees work with DOT modal administrations to choose between two and four project-level performance measures from a list of measures that directly relate to the five departmental strategic goals, which include the goal of fostering quality of life for all. This does not preclude any grantee from developing additional performance measures for internal analytic purposes, which could more directly reflect their community's strategic goals and priorities, such as equity-based performance measures. In response to other comments that suggested creating other grant programs similar to TIGER and include equity-based performance measures as part of those programs, FHWA and FTA note that the TIGER grant program is established under appropriations bills and that FHWA and FTA could not establish other grant programs similar to TIGER because it requires specific statutory authority to do so. The FHWA and FTA also note that the TIGER grant program and any other similar programs are outside the scope of the final rule.

Comment:

The FHWA and FTA should prepare a quadrennial national report of non-discrimination that includes demographic data, inventory of complaints filed, compliance reviews conducted, an assessment of impediments to non-discrimination, and recommendations for compliance.

Some commenters (National Association of Social Workers, Policy Link, The Leadership Conference on Civil Rights, and United Spinal Association) suggested that FHWA and FTA prepare a quadrennial national report of non-discrimination that includes demographic data, an inventory of complaints filed, compliance reviews conducted, an assessment of impediments to non-discrimination, and recommendations for compliance. These same commenters argued that the information collected would aid FHWA and FTA in monitoring State and MPO progress in prioritizing investments that increase mobility and access to centers of employment.

Response:

The FHWA and FTA respond that this comment is outside the scope of the final rule.

Comment:

Several commenters suggested specific performance measures be incorporated into the planning process for the purposes of analyzing equity, EJ, and Title VI.

Community Labor United, the Front Range Economic Strategy Center, the National Association of Social Workers, NRDC, Partnership for Working Families, Policy Link, and United Spinal Association suggested that the DOT should incentivize States and MPOs to set performance measures and prioritize projects that expand economic opportunity for low-income and minority communities. Some suggested a number of specific performance measures be incorporated into the planning process such as housing and transportation costs, fatalities and injuries, security (distances police and fire professionals have to travel to the scene of accidents and crimes), system connectivity, energy conservation, system preservation, and person throughput. The Center for Social Inclusion stated that there should be a comprehensive equity performance measure.

Response:

The FHWA and FTA note that the final rule does not establish specific performance measures and the discussion of specific performance measures is outside of its scope. There are other FHWA and FTA rulemakings in varying stages of development that will address performance measures. The FHWA notes that 23 U.S.C. 150 prescribes that FHWA and FHWA is expressly limited to establishing performance measures only for areas identified in that statute.

Comment:

One commenter (NRDC) stated that FHWA and FTA should consider that the congestion reduction goal should be changed to congestion management to reflect the fact that congestion can sometimes be a symptom of a healthy economy.

Response:

Congress specifically established Congestion Reduction as a national goal for the Federal-aid highway program as provided in 23 U.S.C. 150(b)(3). The FHWA and FTA note that these regulations do include a congestion management process requirement for TMAs in section 450.322 as required under 23 U.S.C. 134(k)(3). Based on these comments, FHWA and FTA are not making any changes to the regulations. The FHWA and FTA will continue to make resources, best practices, workshops, peer exchanges, and guidance available to the States, MPOs, and operators of public transportation on these topics (equity, EJ, Title VI, and scenario planning) and work to assist them with implementing these practices into their planning processes.

Comment:

At least one commenter (9 to 5, National Association of Working Women), sugges

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