Exemption Criteria for Highway Sanctions

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. 94-29]

Exemption Criteria for Highway Sanctions

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed policy statement; request for comments.

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SUMMARY: The purpose of this document is to propose a policy which

would: govern the exemption criteria that would be used to determine

which projects could advance if the Environmental Protection Agency

(EPA) imposes highway sanctions in accordance with section 179(a) or

section 110(m) of the CAA, in conjunction with EPA regulations

published in the Federal Register on January 11, 1994, and August 4,

1994; define the requirements which establish the basis for project

exemptions; and describe and clarify the types of projects and programs

which are exempt. The FHWA requests comments on the proposed policy.

DATES: Comments should be received by August 29, 1995.

ADDRESSES: Submit written, signed comments to FHWA Docket 94-29,

Federal Highway Administration, Room 4232, HCC-10, Office of Chief

Counsel, 400 Seventh Street, SW., Washington DC 20590. All comments

received will be available for examination at the above address between

8:30 a.m. and 4:15 p.m., e.t., Monday through Friday, except Federal

holidays. Those desiring notification of receipt of comments must

include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Ms. Lucy Garliauskas, Office of

Environment and Planning, (202) 366-2068, or Mr. Reid Alsop, Office of

Chief Counsel, (202) 366-1372, FHWA. Office hours are from 7:45 a.m. to

4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: This policy statement proposes criteria and

offers clarification on the types of projects (``exempt projects'')

listed in section 179(b)(1) of the Clean Air Act (CAA) as amended in

1990 (42 U.S.C. 7509(b)(1)), that may continue to advance while an area

is subject to highway funding sanctions. Under section 179(b) and

section 110(m) of the CAA, the EPA Administrator may impose a

prohibition on project approvals and grants made under title 23, United

States Code, by the Secretary of Transportation (``highway

sanctions''). The descriptions of exempt projects contained within this

document would apply equally to sanctions applied under section 179(a)

(``mandatory sanctions'') or section 110(m) (``discretionary

sanctions''). Section 110(m) contemplates circumstances under which EPA

may extend highway sanctions to areas not designated as

``nonattainment''. Hence,

[[Page 34316]]

the information contained in this notice applies to attainment,

nonattainment, and unclassifiable areas.

As of this date EPA has published two final rules related to

sanctions. A final rule was published in the Federal Register on

January 11, 1994, entitled, ``Criteria for Exercising Discretionary

Sanctions under Title I of the Clean Air Act'' (59 FR 1476). It

establishes criteria to guide EPA's decision on whether, in a specific

circumstance, to impose discretionary sanctions on a statewide basis

under section 110(m).

A second regulation, ``Selection of Sequence of Mandatory Sanctions

for Findings Made Pursuant to Section 179 of the Clean Air Act,'' was

published on August 4, 1994 (59 FR 39832). This regulation establishes

that, following section 179(a) findings, the 2-to-1 offset sanction on

new or modified major stationary sources applies first, 18 months after

the finding (except where EPA reverses the order through a separate

rulemaking), unless EPA has determined that the State corrected the

deficiency that prompted the finding. Highway sanctions apply second,

six months after application of the offset sanction, unless EPA has

determined that the State corrected the deficiency that prompted the

finding.

Those two final rules (and this proposed policy statement, if made

final) effectively supersede the joint DOT/EPA Federal Register notice

of April 10, 1980 (45 FR 24692), ``Federal Assistance Limitation

Required by section 176(a) of the Clean Air Act.'' The EPA also expects

to publish another regulation that would establish the sequence of

sanctions applied under section 502(d)(2)(B) of the Clean Air Act

relating to the EPA's permit program.

The proposed policy seeks to clarify the types of projects which

are exempt from sanctions and to establish criteria that are uniformly

applied when determining which programs and projects are exempt from

highway sanctions. The proposed policy gives recognition to the

respective roles and responsibilities of the FHWA and the EPA in

applying funding and program/project approval limitations under section

179(b)(1), when the highway sanction is imposed under section 179(a) or

section 110(m) of the CAA of 1990.

The policy would be nationally applicable. Although FHWA would

consult with EPA to determine whether projects meet the exemption

criteria set forth in this proposed policy, the final authority to

determine whether a project is exempt from highway sanctions under the

safety exemption criteria and seven congressionally authorized

activities is the responsibility of the Secretary of Transportation, as

delegated to the FHWA. Other transportation related projects, not

covered under the aforementioned exemptions, are not exempt unless the

EPA Administrator, in consultation with the Secretary of

Transportation, finds that they will improve air quality and not

contribute to increased single occupancy vehicle (SOV) capacity.

A number of stand-alone projects which do not affect air quality

but have other environmentally beneficial impacts are not specifically

exempt from sanctions by the CAA. These projects may improve water

quality, mitigate wetland impacts, provide landscaping, preserve

historic structures, reduce noise, and have other aesthetic benefits.

While the proposed policy statement would not exempt these projects,

FHWA requests comments as to whether the following types of projects

should be exempt from highway sanctions because of their de minimis

impact on air quality. These activities are generally exempted from the

CAA transportation conformity requirements (see 40 CFR Secs. 51.460 and

93.134). Comments should include a discussion of the basis for the

commentor's position in favor of, or against, such an exemption. FHWA

would consult further with EPA before granting such an exemption.

The projects for which exemption status is being considered

include:

1. Wetland mitigation;

2. Planting trees, shrubs, wildflowers;

3. Landscaping;

4. Purchase of scenic easements;

5. Billboard and other sign removal;

6. Historic preservation;

7. Transportation enhancements; and

8. Noise abatement.

Requirements which Establish the Basis for Highway Sanctions

Exemptions

The Secretary of Transportation may make certain project approvals

and award grants, even while the nonattainment area or State is under

highway sanctions. As stated in section 179(b)(1) of the CAA, safety

projects could go forward provided the Secretary of Transportation

determines that, based on accident or other data, the principal purpose

of the project is an improvement in safety to resolve a demonstrated

safety problem and will likely result in a significant reduction in or

avoidance of accidents.

In addition to safety projects, section 179(b)(1) specifically

exempted seven activities from highway sanctions. Projects that the EPA

Administrator, in consultation with the Secretary of Transportation,

determines would contribute to air quality improvement and would not

encourage SOV capacity are also exempted. Programs and projects which

are allowed to go forward under section 179(b)(1) should strive to

avoid increasing or relocating emissions and congestion rather than

simply reducing them.

Safety Program/Project Requirements Under 23 U.S.C.

Several programs have been established under title 23, U.S.C.,

expressly for the purpose of addressing safety objectives, either

through programs targeted at driver behavior or safety projects

intended to remediate structures, facilities, or prevent loss of human

life. These programs include the:

(1) Highway Safety Improvement Program as defined under 23 CFR

Part 924;

(2) the Highway Bridge Replacement and Rehabilitation Program as

defined under 23 CFR Part 650, Subpart D; and

(3) grant programs whose principal purpose is to improve safety

and which do not include any capital improvements, including all

programs established in Chapter I or IV or 23 U.S.C. that are

administered by the National Highway Traffic Safety Administration

(NHTSA).

Additionally, the Transportation Management and Monitoring Systems

defined under 23 CFR Part 500 (58 FR 63475, December 1, 1993), defined

data requirements for six management systems and the Traffic Monitoring

System. The requirements set forth in the management systems are being

phased in and, with the exception of the pavement and bridge management

systems, will be fully operational by October 1, 1996. The pavement and

bridge management systems are required to be fully operational by

October 1, 1997, and October 1, 1998, respectively. These requirements,

as applied to the safety and bridge management systems, will yield

additional information and data needed to support highway sanction

exemptions as specified in section 179(b)(1) of the CAA. This

information may be used to supplement existing data or, as it is

developed, may improve existing data or information currently

available.

Programs or projects stemming from the following provisions could

be exempt on the basis of an established safety-related project need

meeting section 179(b) requirements. Title 23 of the Code of Federal

Regulations (April 1, 1994) sets forth the requirements for eligibility

for Federal funding for projects under the Highway Safety Improvement

Program (23 CFR Part 924) and the Highway Bridge Replacement and

Rehabilitation Program (23 CFR Part

[[Page 34317]]

650, Subpart D) and programs administered by NHTSA (Chapters II and III

of 23 CFR). These programs have been established with the purpose of

addressing safety objectives and may be used to establish justification

for the safety exemptions under the CAA if the section 179(b)

requirements and those of this policy are fully met.

1. Highway Safety Improvement Program (23 CFR Part 924).

The Highway Safety Improvement Program requires each State to

develop and implement a program which has as its goal reducing the

number and severity of accidents and decreasing the potential for

accidents on all highways. The program is to be continuous and its

components consist of planning, implementation, and evaluation of

safety programs and projects.

The implementation of the highway safety improvement program is

subject to procedures set forth in 23 CFR Part 630, Subpart A, Federal-

aid Programs Approval and Project Authorization, and the priorities

developed in conjunction with 23 CFR Part 924, section 924.9-Planning.

The planning components of the program shall incorporate a process

for collecting and maintaining a record of accident data; a process for

analyzing available data to identify hazardous locations on the basis

of accident experience or accident potential; a process for conducting

engineering studies to develop highway safety improvements; and

projects considering the potential reduction in the number and severity

of accidents.

2. The Highway Bridge Replacement and Rehabilitation Program.

This program is administered in accordance with 23 U.S.C. 144.

Eligible work under this program includes the total replacement of a

structurally deficient or functionally obsolete bridge, a nominal

amount of approach work sufficient to connect the bridge to the roadway

or major work required to restore the structural integrity of a bridge

as well as work necessary to correct major safety defects. Bridge

projects eligible for funding under the bridge replacement and

rehabilitation program must be supported by bridge inventory data and

evaluation of the bridge inventory.

Projects are submitted by the State to the FHWA in accordance with

23 CFR part 630, Subpart A, Federal-aid Programs Approval and

Authorization. Priority considerations will be given to those projects

which will remove from service those highway bridges most in danger of

failure.

3. Highway Safety Programs Administered by NHSTA.

The National Highway Traffic Safety Administration (NHTSA)

administers (independently, jointly, or cooperatively with other

Federal agencies) programs whose principal purpose is to improve

highway safety and which do not include any capital improvements. Under

these programs, the agency awards either grants, contracts, or

cooperative agreements. These programs include, but are not limited to,

programs authorized under chapter IV of title 23, U.S.C., such as:

Section 402, Highway Safety Programs, under which the agency

promulgates guidelines and awards grants to States having approved

highway safety programs designed to reduce traffic accidents and

deaths, injuries and property damage;

Section 403, Highway Safety Research and Development, under which

the agency engages in research on all phases of highway safety and

traffic conditions and other related research and development

activities which will promote highway safety;

Section 408, Alcohol Traffic Safety Programs, and section 410,

Alcohol Impaired Driving Countermeasures, under which the agency makes

grants to States which adopt and implement effective programs to reduce

traffic safety problems resulting from persons driving while under the

influence of alcohol or a controlled substance.

NHTSA programs also include, but are not limited to, programs

authorized under Chapter I of title 23, U.S.C., such as:

Section 153, Use of Safety Belts and Motorcycle Helmets, under

which the agency has made grants to States with effective safety belt

and motorcycle helmet use laws and under which States are subject to

the transfer of certain highway construction funds to section 402

programs for not having such laws in effect;

Section 154, National Maximum Speed Limit, under which States are

subject to the transfer of certain highway construction funds to

section 402 programs for noncompliance with the National Maximum Speed

Limit requirements.

4. ISTEA Management Systems

Section 1034 of the ISTEA amended title 23, United States Code, by

adding section 303, Management Systems. Section 303 requires State

development, establishment, and implementation of a system for managing

each of the following: highway pavement of Federal-aid highways (PMS);

bridges on and off Federal-aid highways (BMS); highway safety (SMS);

traffic congestion (CMS); public transportation facilities and

equipment (PTMS); and intermodal transportation facilities and systems

(IMS). An interim final rule (IFR) for these systems was published on

December 1, 1993, as 23 CFR part 500. The IFR allows for a phase-in of

the management systems ranging over the next several years.

While each of the systems may result in the identification of

strategies that benefit attainment of the NAAQS, the data available

from the BMS and SMS would significantly contribute to the

justification for project exemption for bridge and safety strategies

identified by these systems.

The BMS (23 CFR part 500, subpart C), which must be fully

operational by October 1, 1998, must include a bridge inventory

database, a procedure for predicting the deterioration of bridge

elements with or without intervening action, and identification of

feasible actions to improve bridge condition, safety, and

serviceability.

The SMS (23 CFR part 500, subpart D), which must be fully

operational by October 1, 1996, is to provide information for selecting

and implementing effective highway safety strategies and projects and

must include identification of highway safety strategies, actions,

projects or programs for consideration in development of highway safety

plans, State enforcement plans, and metropolitan and statewide

transportation plans and improvement programs.

The proposed policy for exemption criteria for highway sanctions

follows:

HIGHWAY SANCTION EXEMPTION CRITERIA POLICY

SUBJECT: Policy for Exemption Criteria to be Used to Determine Which

Projects Can Advance if the Environmental Protection Agency Imposes the

Highway Funding Sanction Under section 179(a) or 110(m) of the CAA, as

Amended in 1990.

FROM: Rodney E. Slater, Federal Highway Administrator U. S. Department

of Transportation.

MEMO TO: Regional Administrators, Federal Lands Highway Program

Administrator

The purpose of this memorandum is to define the exemption criteria

that will be used to determine which projects can go forward and which

grants can be awarded in the event the Environmental Protection (EPA)

Agency imposes highway sanctions under section 179(a) or section 110(m)

of the Clean Air Act (CAA) of 1990. This policy contains a

[[Page 34318]]

description of the criteria for exemptions and clarification of the

types of projects and programs that are exempt. Projects for which

exemptions can not be granted are also included in this policy

memorandum.

A. General Description

Highway sanctions, when applied, halt the approval of projects and

the award of any grants funded under title 23, United States Code

(Title 23), except as defined in section 179(b) and this policy. This

applies to the following major funding programs:

1. Surface Transportation Program (STP);

2. National Highway System;

3. Interstate Maintenance;

4. Bridges;

5. Interstate Construction;

6. Interstate Substitution; and

7. Congestion Mitigation and Air Quality Improvement Program

(CMAQ).

Projects funded under all other Title 23 programs and other

authorizations are also subject to sanctions, including demonstration

projects identified by the Congress and specified in the Intermodal

Surface Transportation Efficiency Act (ISTEA) of 1991 under sections

1103-1108 or in other laws, unless they meet the criteria set forth in

this policy memorandum. Additionally, projects to be funded under

previously authorized programs, such as Federal-aid Urban, etc., are

also subject to sanction.

Projects funded under title 49, U.S.C., chapter 53, the Federal

Transit Laws, as amended, are categorically exempt from sanctions by

law as are other transportation programs authorized by statutes other

than Title 23.

B. Typical Nonexempt Projects

The following types of projects generally do not meet the exemption

criteria in section 179(b)(1) and would not be allowed to proceed if

funded or approved under Title 23 unless it is demonstrated that they

meet one or more of the exemption criteria. These include projects that

expand highway or road capacity, nonexempt project development

activities and any other project that does not explicitly meet the

criteria in this notice. These may include activities for:

1. The addition of general purpose through lanes to existing roads;

2. New highway facilities on new locations;

3. New interchanges on existing highways;

4. Improvements to, or reconfiguration of, existing interchanges;

5. Additions of new access points to the existing road network;

6. Increasing functional capacity of the facility;

7. Relocating existing highway facilities;

8. Repaving or resurfacing except for safety purposes, as defined

by section 179(b);

9. Nonexempt projects, project development, including NEPA

documentation and preliminary engineering, right-of-way purchase,

equipment purchase, and construction;

10. Stand-alone projects that do not affect air quality but have

other environmentally beneficial impacts such as wetland mitigation,

planting and landscaping, purchase of scenic easements, billboard

and other sign removal, historic preservation, transportation

enhancements, and noise abatement.

C. Project Exemptions

Under section 179(b)(1) of the CAA, once the EPA imposes highway

sanctions, the FHWA may not approve or award any grants in the

sanctioned area except those which fall under three categories: (1)

safety programs and projects; (2) congressionally-authorized activities

under section 179(b)(1)(B); and (3) air quality improvement projects

that do not encourage single occupancy vehicle capacity.

1. Safety Programs and Projects

Safety projects are those for which the principal purpose is an

improvement in safety but the projects may also have other important

benefits. These projects must resolve a demonstrated safety problem

with the likely result being a significant reduction in or avoidance of

accidents as determined by the FHWA. Such demonstration must be

supported by accident or other data submitted by the State or

appropriate local government.

Three types of categories of safety-based programs and projects

could potentially meet the exemption criteria: grant programs and

related activities; statewide safety improvement programs; and specific

projects outside of a statewide safety program. Each category calls for

a different level of justification specific to a particular category.

a. Programs administered by the National Highway Traffic Safety

Administration qualify for blanket exemptions, on the basis that their

principal purpose is to improve safety and do not include any capital

improvements. Programs that fall within this category include but are

not limited to: Use of Safety Belts and Motorcycle Helmets (23 U.S.C.

153); National Maximum Speed Limit (23 U.S.C. 154); Highway Safety

Programs (23 U.S.C. 402); Highway Safety Research and Development (23

U.S.C. 403); Alcohol Traffic Safety Programs (23 U.S.C. 408); and

Alcohol-Impaired Driving Countermeasures (23 U.S.C. 401).

b. Statewide safety improvement programs include specific safety

projects that can be justified on the basis of State or national level

data, which will be additionally supported by data and analysis

stemming from the management system requirements once the systems are

fully operational. Projects meeting this exemption category would come

out of the Highway Safety Improvement Program (23 CFR part 924) and the

Highway Bridge Replacement and Rehabilitation Program (23 CFR part 650,

subpart D). The Highway Safety Improvement Program also includes the

Hazard Elimination Program (23 U.S.C. 152).

c. Specific projects for which justification is needed to show that

the project is related to safety, unless the project is drawn out of a

statewide safety program and would be likely to reduce accidents, would

include capital projects such as:

1. Elimination of, and safety features for, railroad-highway grade

crossings;

2. Repair of damage caused by natural disasters, civil unrest, or

terrorist acts;

3. Changes in vertical or horizontal alignment;

4. Increasing sight distance;

5. Elimination of high hazard locations or roadside obstacles;

6. Shoulder improvements, widening narrow pavements;

7. Adding or upgrading guardrail, medians and barriers, crash

cushions, fencing;

8. Pavement resurfacing or rehabilitation to improve skid

resistance;

9. Replacement or rehabilitation of unsafe bridges;

10. Safety roadside rest areas, truck size and weight inspection

stations;

11. Addition and upgrading of traffic control devices, (traffic

signals, signs, and pavement markings);

12. Lighting improvements; and

13. Truck climbing lanes.

Justification for an exemption on the grounds of safety must be

based on accident or other data such as the data derived from a safety

management system, bridge management system, the Highway Safety

Improvement Program, or the Highway Bridge Replacement and

Rehabilitation Program. Such data need not be specific to the proposed

project's location but may be based on accident or other data from

similar conditions, including national experience where such projects

have been implemented to remove safety hazards. For example,

[[Page 34319]]

rigid highway sign posts were identified in the past as a safety hazard

causing unnecessary deaths and injuries. The identification of this

hazard led to national policy requiring rigid posts to be replaced with

breakaway poles.

Projects exempted under the safety provision may not involve

substantial functional (such as upgrading major arterial to freeways),

locational, or capacity changes except when the safety problem could

not otherwise be solved. Although substantial changes to the function,

location, or capacity have been previously allowed for projects funded

under Emergency Relief, such projects could not proceed under sanction.

2. Congressionally Authorized Activities

Seven project types are identified specifically in CAA section

179(b)(1) as exempt from highway sanctions. Essentially these are

projects that discourage single occupancy vehicles or improve traffic

flow (e.g., intersections, turning lanes) in ways that reduce

congestion and emissions:

a. Capital programs for public transit. These include any capital

investment for new construction, rehabilitation, replacement, or

reconstruction of facilities and acquisition of vehicles and equipment;

b. Construction or restriction of certain roads or lanes solely for

the use of passenger buses or high occupancy vehicles (HOV). Exempt

projects include construction of new HOV lanes, if those lanes are

solely dedicated as 24-hour HOV facilities, and converting existing

lanes for HOV use during peak hours, including capital costs necessary

to restrict existing lanes (barriers, striping, signage, etc.);

c. Planning for requirements for employers to reduce employee work

trip-related vehicle emissions. This also includes promotional and

other activities associated with this type of program that are eligible

under Title 23;

d. Highway ramp metering, traffic signalization, and related

programs that improve traffic flow and achieve a net emission

reduction;

e. Fringe and transportation corridor parking facilities serving

multiple occupancy vehicle programs or transit operations (this

includes the construction of new facilities and the maintenance of

existing facilities);

f. Programs to limit or restrict vehicle use in downtown areas or

other areas of emission concentration, particularly during periods of

peak use, through road use charges, tolls, parking surcharges, or other

pricing mechanisms, vehicle restricted zones or periods, or vehicle

registration programs; exempt projects include all activities of these

types that are eligible under existing funding programs; and

g. Programs for breakdown and accident scene management,

nonrecurring congestion, and vehicle information systems, to reduce

congestion and emissions.

The FHWA will consult with the EPA on any project claimed to reduce

emissions; that is, with projects falling under paragraphs c, d, and g,

above. The final authority to determine whether a project meets the

criteria in this section and is therefore exempt from highway

sanctions, however, rests with the FHWA.

3. Air Quality Improvement Programs That Do Not Encourage Single

Occupancy Vehicle Capacity

Transportation programs not otherwise exempt that improve air

quality and which would not encourage single occupancy vehicle capacity

(as determined by EPA in consultation with DOT) are also exempt from

highway sanctions.

For example, transportation control measures (TCMs) listed in

section 108(f) of the CAA and projects funded under 23 U.S.C. 149, the

Congestion Mitigation and Air Quality Improvement (CMAQ) program, are

projects which the EPA and DOT may, after individual review of each

project, find to be exempt from highway sanctions. For these projects

to advance while highway sanctions are in place, the State must submit

to DOT an emissions reduction analysis similar to that required under

the CMAQ program. Upon receipt, DOT will forward it to the EPA. The EPA

will complete its review and make its finding regarding air quality and

single occupancy vehicle travel within 14 days of receipt of such

information.

The EPA and DOT have agreed that the following projects will be

categorically exempt from highway sanctions, and will not require

additional EPA review or an individual finding by EPA:

a. TCMs included in an EPA-approved State Implementation Plan (SIP)

or Federal Implementation Plan which have emission reduction credit and

will not encourage single occupant vehicle travel;

b. Inspection and maintenance facilities and activities eligible

for CMAQ funding;

c. Bicycle and pedestrian facilities and programs; and

d. Carpool/Vanpool programs.

In considering exempt projects, States should seek to ensure

adequate access to downtown and other commercial and residential areas,

and avoid increasing or relocating emissions and congestion rather than

reducing them.

D. Planning and Research Activities

Planning and research activities for transportation and/or air

quality purposes are exempt from highway sanctions (except as noted in

Section E. Project Development Activities). Such planning and research

is critical for the development of projects that improve safety and

address an area's transportation/air quality needs. Planning and

research activities include development of major investment studies

which may be coupled with the draft Environmental Impact Statement or

Environmental Assessment. Major investment studies take a multimodal

approach in considering transportation alternatives (including new

highway capacity) which would be exempt from highway sanctions if

advanced as stand alone projects.

Research activities also include those research, development,

testing, and planning projects involving the National Intelligent

Transportation Systems (ITS) Program. The goal of the ITS Program is to

use advanced technology to improve travel and roadway safety without

expanding existing infrastructure. ITS activities are generally done

under seven broad categories: Travel and transportation management;

travel demand management; public transportation operations; electronic

payment; commercial vehicle operations; emergency management; and

advanced vehicle control and safety systems.

For these reasons, planning and research activities can continue

even under highway sanctions. These studies may be carried out with any

Title 23 program funds (metropolitan planning, state planning and

research, STP, or other programs) under Sections 134, 135, and 307 or

other relevant sections.

E. Project Development Activities

Development and completion of studies that are necessary to meet

requirements under the National Environmental Policy Act (NEPA) are

exempt from highway sanctions as long as consideration of projects that

would be exempt under the policy statement, such as transit or other

transportation demand management (TDM) measures, are actively pursued

as reasonable independent alternatives. Once all alternatives that

could be considered exempt from highway sanctions under this policy

statement are eliminated, project development activities for NEPA or

other purposes are no longer exempt and can no longer be approved if

they are to be funded under Title 23. For

[[Page 34320]]

example, if prior to completion of NEPA documentation, all TDM measures

are eliminated from consideration and the sole remaining question is

the determination of an alignment for a highway capacity-expanding

project (which may include TDM), subsequent project development

activities are not exempt from highway sanctions.

The FHWA may not approve preliminary engineering for final design

of a project, nor can approval be granted for a project's plans,

specifications, and estimates (PS&E) after initiation of highway

sanctions for projects that are not exempt under this policy. Neither

right-of-way nor any necessary equipment may be purchased or leased

with Federal funds for nonexempt projects while an area is under

sanction. Federally-funded construction may not in any way begin on a

project that does not meet the exemption criteria described in this

policy while an area is under sanction.

Highway sanctions apply to those projects whose funds have not yet

been obligated by the FHWA by the date the highway sanction applies.

Those projects that have already received approval to proceed and had

obligated funds before the EPA imposes the prohibition may proceed even

while the area is under sanction, if no other FHWA action is required

to proceed. In the case of a phased project, only those phases that

have been approved and had obligated funds prior to the date of

sanction application may proceed. For example, if preliminary

engineering for a project was approved and funds were obligated prior

to application of sanctions but no approval was secured for later

project phases (such as right-of-way acquisition, construction, etc.),

preliminary engineering could proceed while the highway sanction

applies but no subsequent phases of the project could proceed with

Federal highway funds unless the total project meets the exemption

criteria in this policy. These restrictions pertain only to project

development activities that are to be approved or funded under Title

23. Activities funded under title 49, U.S.C., or through State or other

funds may proceed even after highway sanctions have been imposed

unless: (1)approval or action by FHWA under title 23 is required; and

(2) they do not otherwise meet the exemption criteria of this policy

statement.

F. Other Environmental Requirements

Exemption of a transportation project from the section 179(b)(1)

highway sanctions does not waive any applicable requirements under the

NEPA (e.g., environmental documents), section 176 of the CAA

(conformity requirement), or other Federal law.

Authority: 42 U.S.C. 7509(b); 23 U.S.C. 315; and 49 CFR 1.48.

Issued on: June 22, 1995.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 95-16103 Filed 6-29-95; 8:45 am]

BILLING CODE 4910-22-P