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CFR Citation: 23 CFR Parts 450 and 500

NOTICE: Part III

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Federal Transit Administration

EFFECTIVE DATES: March 16, 2007.

DOCUMENT SUMMARY: This final rule revises the regulations governing the development of metropolitan transportation plans and programs for urbanized areas, State transportation plans and programs and the regulations for Congestion Management Systems. The revision results from the passage of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEALU) (Pub. L. 10959, August 10, 2005), which also incorporates changes initiated in its predecessor legislation, the Transportation Equity Act for the 21st Century (TEA21) (Pub. L. 105178, June 9, 1998) and generally will make the regulations consistent with current statutory requirements.

SUMMARY: Transportation Department, Federal Highway Administration, Federal Transit Administration,

DOCUMENT BODY 2: 49 CFR Part 613
[Docket No. FHWA200522986]
RIN 2125AF09; FTA RIN 2132AA82

Statewide Transportation Planning; Metropolitan Transportation Planning

SUPPLEMENTAL INFORMATION

Interested parties may access all comments on the NPRM received by the U.S. Department of Transportation (USDOT) online through the Docket Management System (DMS) at http://dms.dot.gov. The DMS Web site is available 24 hours each day, 365 days each year. Follow the instructions online. Additional assistance is available at the help section of the Web site.

An electronic copy of this final rule may be downloaded using the Office of the Federal Register's Web page at: http:// http://www.gpoaccess.gov/index.html. Background

The regulations found at 23 CFR 450 and 500 and 49 CFR 613 outline the requirements for State Departments of Transportation (DOTs), Metropolitan Planning Organizations (MPOs) and public transportation operators to conduct a continuing, comprehensive and coordinated transportation planning and programming process in metropolitan areas and States. These regulations have not been comprehensively updated or revised since October 28, 1993. Since that time, Congress has enacted several laws that affect the requirements outlined in these regulations (e.g. such as the TEA21 and the SAFETEALU). Therefore, the agencies needed to update these regulations to be consistent with current statutory requirements.

Notice of Proposed Rulemaking:

On June 9, 2006, the agencies published, in the Federal Register, a notice of proposed rulemaking (NPRM) proposing to revise the regulations governing the development of statewide and metropolitan transportation plans and programs and the regulations for Congestion Management Systems (71 FR 33510). The comment period remained open until September 7, 2006. During the comment period on the proposed rule, the FTA and the FHWA held six public outreach workshops and a national telecast, also available on the World Wide Web. Those meetings provided an opportunity for FTA and FHWA to provide an overview of the NPRM and offer clarification of selected provisions. Comments were not solicited at those meetings, and attendees were encouraged to submit all comments to the official docket. A summary of the issues raised at the meetings and the general response of the FTA and the FHWA presenters, along with copies of the materials presented at the meeting, is included in the docket (item Number 27).

In addition, the FHWA and the FTA responded to requests for presentations at several regularly scheduled meetings or conferences of national and regional professional, industry or advocacy organizations during the comment period of the NPRM.

Discussion of Comments

In response to the NPRM, we received over 150 documents (representing more than 1,600 comments) submitted to the docket as reflected in the summary below (and spreadsheet on file in the docket). The following discussion summarizes our response. We received diverse and even opposing comments. General comments concerning the rule are addressed initially, followed by specific responses to individual sections of the regulatory proposals.

We categorized the comments received by the type of organization that submitted the comments. The following categories are used throughout this discussion: State DOTs; MPOs, councils of government (COGs) and regional planning agencies; national and regional professional, industry or advocacy organization (which includes organizations representing State DOTs, MPOs, COGs or other agencies whose individual comments may be included in a different category), local/regional transit agency; general public; city/county (other sub State government); State (other agency, Governor, Legislator); Federal agency and other.

State DOTs submitted almost onequarter of the documents, which account for almost onethird of all comments. MPOs, COGs and regional planning agencies submitted slightly more than onethird of the documents, also accounting for approximately onethird of the comments. National and regional professional, industry or advocacy organizations submitted over onequarter of the documents and approximately one quarter of the comments. Local/regional transit agencies submitted approximately 5 percent of the documents. Other organizations or individuals submitted the remainder. Most State DOTs and some other commenters wrote in support of the comments submitted by the American Association of State Highway and Transportation Officials (AASHTO). Many MPOs and COGs and some other commenters wrote in support of the comments submitted by the Association of Metropolitan Planning Organizations (AMPO) and/or the National Association of Regional Councils (NARC). Several public transportation operators and others wrote in support of the comments submitted by the American Public Transportation Association (APTA).

The FHWA and the FTA received comments on almost all sections of the
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rule. The largest number of individual comments we received were on fiscal constraint issues. Other sections with more than five percent of the overall comments included: Sec. 450.104 (Definitions), Sec. 450.216 (Development and content of the statewide transportation improvement program (STIP)), Sec. 450.322 (Development and content of the metropolitan transportation plan), and Sec. 450.324 (Development and content of the transportation improvement program).

Several national and regional advocacy organizations, a few State DOTs and MPOs, some transit agencies and others suggested changes that go beyond what is required by statute. The FHWA and the FTA have adhered closely to the statutory language in drafting the regulation. Over time, and as necessary, the FHWA and the FTA will continue to issue additional guidance and disseminate information on noteworthy practices that may address these suggestions.

In response to several comments, specific regulatory reference to a Regional Transit Security Strategy (RTSS), including its definition, was removed due to the concern for possible disclosure of security sensitive information in the planning process. Further, an RTSS is not required universally of all metropolitan areas and States. Regulatory language in both the metropolitan and statewide transportation planning sections was revised to make broad reference to the need for coordination with ``appropriate'' transit securityrelated plans, programs, and decisionmaking processes.

One national and regional professional, industry or advocacy organization suggested the incorporation of the Real Time System Management Information Program (required by Sec. 1201 of the SAFETEA LU) into the statewide transportation planning process. While the FHWA and the FTA agree that current, good quality data can improve effective transportation decisions and is key to effective operation and management strategies, we recognize each State's need to determine their appropriate statewide coordinated data collection program to support their individual planning process. We encourage the States to consider including realtime data, provided by the Real Time System Management Information Program, but have not included a requirement in this rule.

The FHWA and the FTA were asked to evaluate whether the leadership posts on MPO boards were acting in an impartial manner. A few organizations expressed concern that nonmetropolitan or nonelected officials who serve as board chairs may have conflicts of interest that undermine local control of transportation funding. The FHWA and the FTA will consider conducting such a study as part of their discretionary research programs. Currently, we do not have enough information on this subject for incorporation into this rule.

Several documents providing research, data, and analysis on various issues related to transportation, planning and environment were submitted to the docket. The FHWA and the FTA have reviewed these documents and considered the information in developing this rule.

The FHWA and the FTA were asked to recognize regional planning organizations/regional transportation planning organizations (RPOs/ RTPOs) throughout the rule as stakeholders and interested parties in the transportation planning process in States where they are established by law. Although the rule is silent on RPOs/RTPOs, Sec. 450.208(a)(6) highlights that statewide transportation planning needs to coordinate with related planning activities being conducted outside of metropolitan planning areas. The FHWA and the FTA recognize that the RPO/RTPO planning process and activities should be input into the statewide transportation planning process. Further, many of the RPOs/ RTPOs are recognized as forms of local government, and are addressed in Sec. 420.210 (Interested parties, public involvement and

consultation).

A few commenters observed that many small MPOs have very little funding from USDOT or nonUSDOT sources, have very limited staffs, and limited consultant or technical support resources of their own. The FHWA and the FTA were urged to find ways to scale the regulatory requirements to fit the size and scope of smaller MPOs. We noted this comment and have tried to provide as much flexibility in the rule as practicable. We have provided some streamlined requirements for the nontransportation management area (TMA) MPOs, such as Simplified Statement of Work and grouping of projects within the transportation improvement program (TIP). The MPO is responsible for developing a planning process that is appropriate for its communities, given the resources and technical capability of the MPO.

Several State DOTs and a national and regional advocacy organization objected to including guidance documents with the regulations as Appendices A and B. These commenters noted that by including these documents with the regulation as appendices, the guidance documents would have the force and effect of law and, as a result, would ``open up FHWA and FTA (and thus the States and MPOs) to litigation challenges based on a selective reading of short passages in these lengthy documents.'' Therefore, these commenters requested removal of the appendices. Additionally, these commenters were concerned that including these guidance documents with the regulation would make it more difficult to change these documents in response to evolving practices, as any change would require a rulemaking action.

The Office of the Federal Register, pursuant to the Federal Register Act (44 U.S.C. Chapter 15) has established criteria for publishing material in the Federal Register and the Code of Federal Regulations. Under these criteria, agencies may use an appendix to improve upon the quality or use of a regulation, but not to impose requirements or restrictions. Additionally, agencies may not use an appendix as a substitute for regulatory text.\1\ The information the FHWA and the FTA proposed to include in appendices A and B is intended to be nonbinding guidance. Therefore, we believe that State DOTs and MPOs would not be subject to increased litigation based on inclusion of these appendices.
\1\ Federal Register Document Drafting Handbook, October 1998 Revision. National Archives and Records Administration, Office of the Federal Register. It is available at the following URL: http://www.archives.gov/federalregister/write/handbook/ddh.pdf .

We believe that Appendix A, Linking the Transportation Planning and NEPA Processes, provides explanatory information that amplifies the rule and does not add any additional requirements and would not be subject to many changes. Therefore, we have decided to keep Appendix A, but are adding a disclaimer to this effect in the introduction of Appendix A highlighting its nonbinding status. In addition, we have made some minor changes to the text of Appendix A to ensure that it is consistent with the environmental streamlining requirements of Sec. 6002 of the SAFETEALU.

As for Appendix B, Fiscal Constraint of Transportation Plans and Programs, the FHWA and the FTA agree with these commenters that modifications to this document may be more frequently required to respond to evolving practices. Therefore, the FHWA and the FTA have decided to remove Appendix
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B from the rule. However, there are three elements within that appendix that the agencies believe should be a part of the regulatory text for clarity and completeness. These elements are: (1) Treatment of highway and transit operations and maintenance costs and revenues; (2) use of ``year of expenditure dollars'' in developing cost and revenue estimates; and (3) use of ``cost ranges/cost bands'' in the outer years of the metropolitan transportation plan. Please see the responses to the comments on Appendix B for additional background information and explanation. Consequently, we have included language in Sec. 450.216 (Development and content of the statewide transportation improvement program (STIP)), Sec. 450.322 (Development and content of the metropolitan transportation plan), and Sec. 450.324 (Development and content of the transportation improvement program (TIP)) to address these issues within the regulation. The material contained in the proposed Appendix B will be made available as a guidance document on the agencies' Web sites.

SectionbySection Discussion

The discussion in this section compares the NPRM with the final rule and discusses comments submitted on each section along with an explanation of any changes we made from the NPRM to the final rule. All references to revisions or changes are to changes in language that we originally proposed in the NPRM.
23 CFR Part 450
Subpart ATransportation Planning and Programming Definitions Section 450.100 Purpose

No comments were received on this section and no changes were made. Section 450.102 Applicability

No comments were received on this section and no changes were made. Section 450.104 Definitions

There were more than 45 documents with over 225 comments submitted on this section, with half of the documents coming from MPOs and almost onefourth each from State DOTs and national and regional advocacy groups. Transit agencies, city/county agencies and the general public also commented on this section. Some of those that commented on this section recommended specific changes to examples or lists included in various definitions. It is important to note that the recommended lists in these definitions are intended to be advisory and not exhaustive; therefore, we did not make changes to the lists of examples.

Several definitions were revised based on comments received. These changes are described below.

Many State DOTs and MPOs as well as several national and regional advocacy organizations were concerned about the definitions of ``administrative modification'' and ``amendment.'' Commenters requested greater distinction between the two terms.

Several of those that commented on this section requested that the words ``minor revision'' be included in the definition of
``administrative modification.'' This change has been made. The examples in this definition have also been clarified, including ``minor changes to project/project phase initiation dates.'' It is important to note that while an ``administrative modification'' can change the initiation date, it cannot affect the completion date of the project as modeled in the regional emissions analysis in nonattainment or maintenance areas. A change in the project/project phase completion date in a nonattainment or maintenance area would be considered an ``amendment.'' Finally, based on comments, the term ``not significant'' was removed.

Commenters suggested that the term ``amendment'' include the words ``major change'' and use ``major'' in the examples. These changes have been made. State DOTs and MPOs should work with the FHWA and the FTA to identify thresholds for a ``major'' change in project cost. Examples of thresholds could include, but are not limited to, project cost increase that exceeds 20 percent of the total project cost; or project cost increase that exceeds a certain dollar amount, for example, the increase in costs exceeds the programmed amount by $50,000 or $100,000.

Further, some State DOTs and advocacy organizations wrote that changes in illustrative projects should not require an amendment. We agree. A sentence has been added to the definition of ``amendment'' to clarify this point. Also, most State DOTs that commented on this section noted that ``amendment'' should apply differently to longrange statewide transportation plans, since they are not subject to fiscal constraint. A sentence was added to the definition to clarify the long range statewide transportation plan context.

After consultation with EPA, the definition of ``attainment area'' was revised to be consistent with the definition in the glossary of the Environmental Protection Agency's (EPA) Plain English Guide to the Clean Air Act.\2\ We also included in this definition a clarification that a ``maintenance area'' is not considered an attainment area for transportation planning purposes.
\2\ This document, ``Plain English Guide to the Clean Air Act'' is available via the Internet at the following URL: http://www.epa.gov/air/oaqps/peg_caa/pegcaain.html .

A few commenters expressed confusion about the definitions of ``Available funds'' and ``Committed funds'' as they relate to air quality conformity. We have simplified these definitions to remove the phrase ``for projects or project phases in the first two years of a TIP and/or STIP in air quality nonattainment and maintenance areas.'' By deleting this phrase, however, we have not removed the requirement that projects in the first two years of a STIP and/or TIP in air quality nonattainment and maintenance areas be available or committed. This is still part of the definition under fiscal constraint. The requirement that these terms only apply to the first two years is already embedded in the regulation and does not need to be repeated in the definition of the terms ``Available'' and ``Committed.''

A national and regional advocacy organization and a few transit agencies suggested that ``Full funding grant agreement'' and ``Project construction grant agreement'' be added to the examples of ``Committed funds.'' This change has been made. We also received a comment that the requirement for private funds to be in writing as part of ``Committed funds'' would limit private participation in transportation projects. The FHWA and the FTA find that a written commitment is necessary to ensure that the private funds ultimately are provided and is integral to the concept of ``committed funds.'' This change was not made.

After consultation with the EPA, the definition of ``conformity'' was revised based on language from the EPA's conformity Web page \3\ and in the EPA's conformity rule (40 CFR 93.100).\4\
\3\ EPA's conformity web page can be found at the following URL: http://www.epa.gov/otaq/stateresources/transconf/index.htm. \4\ This document is available via the Internet at the following

FOR FURTHER INFORMATION CONTACT For the FHWA: Mr. Larry D. Anderson, Planning Oversight and Stewardship Team (HEPP10), (202) 3662374, Mr. Robert Ritter, Planning Capacity Building Team (HEPP20), (202) 493 2139, or Ms. Diane Liff, Office of the Chief Counsel (HCC10), (202) 3666203. For the FTA: Mr. Charles Goodman, Office of Planning and Environment, (202) 3661944, Mr. Darin Allan, Office of Planning and Environment, (202) 3666694, or Mr. Christopher VanWyk, Office of Chief Counsel, (202) 3661733. Both agencies are located at 400 Seventh Street SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m for FHWA, and 9 a.m. to 5:30 p.m. for FTA, Monday through Friday, except Federal holidays.