[Title 23 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2003 Edition]
[From the U.S. Government Printing Office]
[[Page 1]]
23
Revised as of April 1, 2003
Highways
Containing a codification of documents of general
applicability and future effect
As of April 1, 2003
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
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Table of Contents
Page
Explanation................................................. v
Title 23:
Chapter I--Federal Highway Administration,
Department of Transportation 3
Chapter II--National Highway Traffic Safety
Administration and Federal Highway Administration,
Department of Transportation 435
Chapter III--National Highway Traffic Safety
Administration, Department of Transportation 477
Finding Aids:
Material Approved for Incorporation by Reference........ 513
Table of CFR Titles and Chapters........................ 515
Alphabetical List of Agencies Appearing in the CFR...... 533
List of CFR Sections Affected........................... 543
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 23 CFR 1.1 refers
to title 23, part 1,
section 1.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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collection request.
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Many agencies have begun publishing numerous OMB control numbers as
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
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reference, please contact the agency that issued the regulation
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the revision dates of the 50 CFR titles.
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REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2003.
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THIS TITLE
Title 23--Highways is composed of one volume. The contents of this
volume represent the current regulations of the National Highway Traffic
Safety Administration and the Federal Highway Administration, Department
of Transportation, issued under this title of the CFR as of April 1,
2003.
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TITLE 23--HIGHWAYS
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Part
chapter i--Federal Highway Administration, Department of
Transportation............................................ 1
chapter ii--National Highway Traffic Safety Administration
and Federal Highway Administration, Department of
Transportation............................................ 1200
chapter iii--National Highway Traffic Safety Administration,
Department of Transportation.............................. 1313
Cross References: Regulations concerning construction and maintenance of
roads on Indian lands, Bureau of Indian Affairs, Department of the
Interior: See Indians, 25 CFR part 170.
Regulations of the Bureau of Land Management concerning rights-of-way
for roads and highways: See Public Lands, Interior, 43 CFR part 2800.
Employment and Training Administration, Department of Labor: See
Employees' Benefits, 20 CFR chapter V.
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CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
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SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
Part Page
1 General..................................... 7
SUBCHAPTER B--PAYMENT PROCEDURES
140 Reimbursement............................... 12
172 Administration of engineering and design
related service contracts............... 20
180 Credit assistance for Surface Transportation
projects................................ 23
190 Incentive payments for controlling outdoor
advertising on the interstate system.... 23
192 Drug offender's driver's license suspension. 24
SUBCHAPTER C--CIVIL RIGHTS
200 Title VI program and related statutes--
implementation and review procedures.... 28
230 External programs........................... 31
SUBCHAPTER D--NATIONAL HIGHWAY INSTITUTE
260 Education and training programs............. 73
SUBCHAPTER E--PLANNING AND RESEARCH
420 Planning and research program administration 79
450 Planning assistance and standards........... 90
460 Public road mileage for apportionment of
highway safety funds.................... 117
470 Highway systems............................. 118
476 Interstate highway system................... 124
SUBCHAPTER F--TRANSPORTATION INFRASTRUCTURE MANAGEMENT
500 Management and monitoring systems........... 130
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511 [Reserved]
SUBCHAPTER G--ENGINEERING AND TRAFFIC OPERATIONS
620 Engineering................................. 138
625 Design standards for highways............... 140
626 Pavement policy............................. 143
627 Value engineering........................... 143
630 Preconstruction procedures.................. 144
633 Required contract provisions................ 152
635 Construction and maintenance................ 169
636 Design-build contracting.................... 196
637 Construction inspection and approval........ 210
640 Certification acceptance.................... 213
645 Utilities................................... 215
646 Railroads................................... 232
650 Bridges, structures, and hydraulics......... 242
652 Pedestrian and bicycle accommodations and
projects................................ 255
655 Traffic operations.......................... 258
656 Carpool and vanpool projects................ 265
657 Certification of size and weight enforcement 267
658 Truck size and weight, route designations--
length, width and weight limitations.... 272
660 Special programs (Direct Federal)........... 333
661 Indian Reservation Road Bridge Program...... 339
667 [Reserved]
668 Emergency relief program.................... 343
669 Enforcement of heavy vehicle use tax........ 351
SUBCHAPTER H--RIGHT-OF-WAY AND ENVIRONMENT
710 Right-of-way and real estate................ 354
750 Highway beautification...................... 369
751 Junkyard control and acquisition............ 387
752 Landscape and roadside development.......... 392
771 Environmental impact and related procedures. 395
772 Procedures for abatement of highway traffic
noise and construction noise............ 412
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777 Mitigation of environmental impacts to
privately owned wetlands................ 418
SUBCHAPTER I--PUBLIC TRANSPORTATION
810 Mass transit and special use highway
projects................................ 423
SUBCHAPTER J--HIGHWAY SAFETY
924 Highway safety improvement program.......... 429
SUBCHAPTER K--INTELLIGENT TRANSPORTATION SYSTEMS
940 Intelligent transportation system
architecture and standards.............. 432
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SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
PART 1--GENERAL--Table of Contents
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Federal-State cooperation; authority of State highway departments.
1.5 Information furnished by State highway departments.
1.7 Urban area boundaries.
1.8 [Reserved]
1.9 Limitation on Federal participation.
1.11 Engineering services.
1.23 Rights-of-way.
1.27 Maintenance.
1.28 Diversion of highway revenues.
1.32 Issuance of directives.
1.33 Conflicts of interest.
1.35 Bonus program.
1.36 Compliance with Federal laws and regulations.
Authority: 23 U.S.C. 315; 49 CFR 1.48(b).
Source: 25 FR 4162, May 11, 1960, unless otherwise noted.
Sec. 1.1 Purpose.
The purpose of the regulations in this part is to implement and
carry out the provisions of Federal law relating to the administration
of Federal aid for highways.
Sec. 1.2 Definitions.
(a) Terms defined in 23 U.S.C. 101(a), shall have the same meaning
where used in the regulations in this part, except as modified herein.
(b) The following terms where used in the regulations in this part
shall have the following meaning:
Administrator. The Federal Highway Administrator.
Advertising policy. The national policy relating to the regulation
of outdoor advertising declared in title 23 U.S.C. 131.
Advertising standards. The ``National Standards for Regulation by
States of Outdoor Advertising Signs, Displays and Devices Adjacent to
the National System of Interstate and Defense Highways'' promulgated by
the Secretary (part 20 of this chapter).
Federal laws. The provisions of title 23 U.S.C., and all other
Federal laws, heretofore or hereafter enacted, relating to Federal aid
for highways.
Latest available Federal census. The latest available Federal
decennial census, except for the establishment of urban area.
Project. An undertaking by a State highway department for highway
construction, including preliminary engineering, acquisition of rights-
of-way and actual construction, or for highway planning and research, or
for any other work or activity to carry out the provisions of the
Federal laws for the administration of Federal aid for highways.
Secondary road plan. A plan for administration of Federal aid for
highways on the Federal-aid secondary highway system pursuant to 23
U.S.C. 117.
Secretary. The Secretary of Transportation.
State. Any State of the United States, the District of Columbia and
Puerto Rico.
Urban area. An area including and adjacent to a municipality or
other urban place having a population of five thousand or more, as
determined by the latest available published official Federal census,
decennial or special, within boundaries to be fixed by a State highway
department, subject to the approval of the Administrator.
[25 FR 4162, May 11, 1960, as amended at 35 FR 18719, Dec. 10, 1970]
Sec. 1.3 Federal-State cooperation; authority of State highway departments.
The Administrator shall cooperate with the States, through their
respective State highway departments, in the construction of Federal-aid
highways. Each State highway department, maintained in conformity with
23 U.S.C. 302, shall be authorized, by the laws of the State, to make
final decisions for the State in all matters relating to, and to enter
into, on behalf of the State, all contracts and agreements for projects
and to take such other actions on behalf of the State as may be
necessary
[[Page 8]]
to comply with the Federal laws and the regulations in this part.
Sec. 1.5 Information furnished by State highway departments.
At the request of the Administrator the State highway department
shall furnish to him such information as the Administrator shall deem
desirable in administering the Federal-aid highway program.
Sec. 1.7 Urban area boundaries.
Boundaries of an urban area shall be submitted by the State highway
department and be approved by the Administrator prior to the inclusion
in a program of any project wholly or partly in such area involving
funds authorized for and limited to urban areas.
Sec. 1.8 [Reserved]
Sec. 1.9 Limitation on Federal participation.
(a) Federal-aid funds shall not participate in any cost which is not
incurred in conformity with applicable Federal and State law, the
regulations in this title, and policies and procedures prescribed by the
Administrator. Federal funds shall not be paid on account of any cost
incurred prior to authorization by the Administrator to the State
highway department to proceed with the project or part thereof involving
such cost.
(b) Notwithstanding the provisions of paragraph (a) of this section
the Administrator may, upon the request of a State highway department,
approve the participation of Federal-aid funds in a previously incurred
cost if he finds:
(1) That his approval will not adversely affect the public,
(2) That the State highway department has acted in good faith, and
that there has been no willful violation of Federal requirements,
(3) That there has been substantial compliance with all other
requirements prescribed by the Administrator, and full compliance with
requirements mandated by Federal statute,
(4) That the cost to the United States will not be in excess of the
cost which it would have incurred had there been full compliance, and
(5) That the quality of work undertaken has not been impaired.
(c) Any request submitted under paragraph (b) of this section shall
be accompanied by a detailed description of the relevant circumstances
and facts, and shall explain the necessity for incurring the costs in
question.
[38 FR 18368, July 10, 1973]
Sec. 1.11 Engineering services.
(a) Federal participation. Costs of engineering services performed
by the State highway department or any instrumentality or entity
referred to in paragraph (b) of this section may be eligible for Federal
participation only to the extent that such costs are directly
attributable and properly allocable to specific projects.
(b) Governmental engineering organizations. The State highway
department may utilize, under its supervision, the services of well-
qualified and suitably equipped engineering organizations of other
governmental instrumentalities for making surveys, preparing plans,
specifications and estimates, and for supervising the construction of
any project.
(c) Railroad and utility engineering organizations. The State
highway department may utilize, under its supervision, the services of
well-qualified and suitably equipped engineering organizations of the
affected railroad companies for railway-highway crossing projects and of
the affected utility companies for projects involving utility
installations.
(d) [Reserved]
(e) Responsibility of the State highway department. The State
highway department is not relieved of its responsibilities under Federal
law and the regulations in this part in the event it utilizes the
services of any engineering organization under paragraphs (b), (c) or
(d) of this section.
[25 FR 4162, May 11, 1960, as amended at 53 FR 18276, May 23, 1988; 57
FR 60728, Dec. 22,1992; 66 FR 58666, Nov. 23, 2001]
Sec. 1.23 Rights-of-way.
(a) Interest to be acquired. The State shall acquire rights-of-way
of such nature and extent as are adequate for the
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construction, operation and maintenance of a project.
(b) Use for highway purposes. Except as provided under paragraph (c)
of this section, all real property, including air space, within the
right-of-way boundaries of a project shall be devoted exclusively to
public highway purposes. No project shall be accepted as complete until
this requirement has been satisfied. The State highway department shall
be responsible for preserving such right-of-way free of all public and
private installations, facilities or encroachments, except (1) those
approved under paragraph (c) of this section; (2) those which the
Administrator approves as constituting a part of a highway or as
necessary for its operation, use or maintenance for public highway
purposes and (3) informational sites established and maintained in
accordance with Sec. 1.35 of the regulations in this part.
(c) Other use or occupancy. Subject to 23 U.S.C. 111, the temporary
or permanent occupancy or use of right-of-way, including air space, for
nonhighway purposes and the reservation of subsurface mineral rights
within the boundaries of the rights-of-way of Federal-aid highways, may
be approved by the Administrator, if he determines that such occupancy,
use or reservation is in the public interest and will not impair the
highway or interfere with the free and safe flow of traffic thereon.
Sec. 1.27 Maintenance.
The responsibility imposed upon the State highway department,
pursuant to 23 U.S.C. 116, for the maintenance of projects shall be
carried out in accordance with policies and procedures issued by the
Administrator. The State highway department may provide for such
maintenance by formal agreement with any adequately equipped county,
municipality or other governmental instrumentality, but such an
agreement shall not relieve the State highway department of its
responsibility for such maintenance.
Sec. 1.28 Diversion of highway revenues.
(a) Reduction in apportionment. If the Secretary shall find that any
State has diverted funds contrary to 23 U.S.C. 126, he shall take such
action as he may deem necessary to comply with said provision of law by
reducing the first Federal-aid apportionment of primary, secondary and
urban funds made to the State after the date of such finding. In any
such reduction, each of these funds shall be reduced in the same
proportion.
(b) Furnishing of information. The Administrator may require any
State to submit to him such information as he may deem necessary to
assist the Secretary in carrying out the provisions of 23 U.S.C. 126 and
paragraph (a) of this section.
Sec. 1.32 Issuance of directives.
(a) The Administrator shall promulgate and require the observance of
policies and procedures, and may take other action as he deems
appropriate or necessary for carrying out the provisions and purposes of
Federal laws, the policies of the Federal Highway Administration, and
the regulations of this part.
(b) The Administrator or his delegated representative, as
appropriate, is authorized to issue the following type of directives:
(1) Federal Highway Administration Regulations are issued by the
Administrator or his delegate, as necessary, to implement and carry out
the provisions of title 23 U.S.C., relating to the administration of
Federal aid for highways, direct Federal programs and State and
community safety programs; and title 49 U.S.C., relating to motor
carrier safety; and other applicable laws and programs under his
jurisdiction.
(2) Notices are temporary issuances transmitting one-time or short-
term instructions or information which is expected to remain in effect
for less than 90 days or for a predetermined period of time normally not
to exceed one year.
(3) Orders are directives limited in volume and contain permanent or
longlasting policy, instructions, and procedures. FHWA Orders are to be
used primarily as internal FHWA directives.
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(4) Joint Interagency Orders and Notices are used by FHWA and the
National Highway Traffic Safety Administration (NHTSA) to issue joint
policies, procedures, and information pertaining to the joint
administration of the State and Community Highway Safety Program. Where
necessary, other joint directives may be issued with other modal
administrations within the Department of Transportation.
(5) Manuals are generally designed for use in issuing permanent or
long-lasting detailed policy and procedure. Some of the major manuals
recognized by the FHWA Directives System follow:
(i) The Federal-Aid Highway Program Manual has been established to
assemble and organize program material of the type previously contained
in the Policy and Procedure and Instructional Memoranda which will
continue in effect until specifically revoked or published in the new
manual. Regulatory material is printed in italics in the manual and also
appears in this code. Nonregulatory material is printed in delegate
type.
(ii) The Administrative Manual covers all internal FHWA
administrative support functions.
(iii) The Highway Planning Program Manual covers the methods and
procedures necessary to conduct the highway planning functions.
(iv) The Research and Development Manual series entitled, ``The
Federally Coordinated Program of Research and Development in Highway
Transportation'' describes the FHWA research and development program.
(v) The External Audit Manual provides guidance to FHWA auditors in
their review of State programs and processes.
(vi) The Civil Rights and Equal Opportunity Manual provides guidance
to FHWA and State Civil Rights and Equal Employment Opportunity
Officers.
(vii) The BMCS Operations Manual provides program guidance for all
field employees assigned to the motor carrier safety program.
(viii) The Highway Safety Program Manual, issued jointly by FHWA and
NHTSA, contains volumes relating to the joint administration of the
program.
(6) Handbooks are internal operating instructions published in book
form where, because of the program area covered, it is desirable to
provide greater detail of administrative and technical instructions.
(7) Transmittals identify and explain the original issuance or page
change, provide background information, and provide filing instructions
for insertion of new pages and removal of changed pages, or both.
(49 U.S.C. 1655)
[39 FR 1512, Jan. 10, 1974]
Sec. 1.33 Conflicts of interest.
No official or employee of a State or any other governmental
instrumentality who is authorized in his official capacity to negotiate,
make, accept or approve, or to take part in negotiating, making,
accepting or approving any contract or subcontract in connection with a
project shall have, directly or indirectly, any financial or other
personal interest in any such contract or subcontract. No engineer,
attorney, appraiser, inspector or other person performing services for a
State or a governmental instrumentality in connection with a project
shall have, directly or indirectly, a financial or other personal
interest, other than his employment or retention by a State or other
governmental instrumentality, in any contract or subcontract in
connection with such project. No officer or employee of such person
retained by a State or other governmental instrumentality shall have,
directly or indirectly, any financial or other personal interest in any
real property acquired for a project unless such interest is openly
disclosed upon the public records of the State highway department and of
such other governmental instrumentality, and such officer, employee or
person has not participated in such acquisition for and in behalf of the
State. It shall be the responsibility of the State to enforce the
requirements of this section.
[[Page 11]]
Sec. 1.35 Bonus program.
(a) Any agreement entered into by a State pursuant to the provisions
of section 12 of the Federal-Aid Highway Act of 1958, Pub. L. 85-381, 72
Stat. 95, as amended, shall provide for the control or regulation of
outdoor advertising, consistent with the advertising policy and
standards promulgated by the Administrator, in areas adjacent to the
entire mileage of the Interstate System within that State, except such
segments as may be excluded from the application of such policy and
standards by section 12.
(b) Any such agreement for the control of advertising may provide
for establishing publicly owned informational sites, whether publicly or
privately operated, within the limits of or adjacent to the right-of-way
of the Interstate System on condition that no such site shall be
established or maintained except at locations and in accordance with
plans, in furtherance of the advertising policy and standards, submitted
to and approved by the Administrator.
(c) No advertising right in the acquisition of which Federal funds
participated shall be disposed of without the prior approval of the
Administrator.
[39 FR 28628, Aug. 9, 1974]
Sec. 1.36 Compliance with Federal laws and regulations.
If the Administrator determines that a State has violated or failed
to comply with the Federal laws or the regulations in this part with
respect to a project, he may withhold payment to the State of Federal
funds on account of such project, withhold approval of further projects
in the State, and take such other action that he deems appropriate under
the circumstances, until compliance or remedial action has been
accomplished by the State to the satisfaction of the Administrator.
[[Page 12]]
SUBCHAPTER B--PAYMENT PROCEDURES
PART 140--REIMBURSEMENT--Table of Contents
Subpart A [Reserved]
Subpart B--Construction Engineering Costs
Sec.
140.201 Purpose.
140.203 Policy.
140.205 Limitation.
140.207 Application of limitation.
Subparts C-D [Reserved]
Subpart E--Administrative Settlement Costs--Contract Claims
140.501 Purpose.
140.503 Definition.
140.505 Reimbursable costs.
Subpart F--Reimbursement for Bond Issue Projects
140.601 Purpose.
140.602 Requirements and conditions.
140.603 Programs.
140.604 Reimbursable schedule.
140.605 Approval actions.
140.606 Project agreements.
140.607 Construction.
140.608 Reimbursable bond interest costs of Interstate projects.
140.609 Progress and final vouchers.
140.610 Conversion from bond issue to funded project status.
140.611 Determination of bond retirement.
140.612 Cash management.
Appendix to Subpart F to Part 140--Reimbursable Schedule for Converted
```E'' (Bond Issue) Projects (Other Than Interstate Projects)
Subpart G [Reserved]
Subpart H--State Highway Agency Audit Expense
140.801 Purpose.
140.803 Policy.
140.805 Definitions.
140.807 Reimbursable costs.
Subpart I--Reimbursement for Railroad Work
140.900 Purpose.
140.902 Applicability.
140.904 Reimbursement basis.
140.906 Labor costs.
140.907 Overhead and indirect construction costs.
140.908 Materials and supplies.
140.910 Equipment.
140.912 Transportation.
140.914 Credits for improvements.
140.916 Protection.
140.918 Maintenance and extended construction.
140.920 Lump sum payments.
140.922 Billings.
Authority: 23 U.S.C. 101(e), 106, 109(e), 114(a), 120(g), 121, 122,
130, and 315; and 49 CFR 1.48(b).
Subpart A [Reserved]
Subpart B--Construction Engineering Costs
Source: 58 FR 39143, July 22, 1993, unless otherwise noted.
Sec. 140.201 Purpose.
The purpose of this subpart is to prescribe policies for claiming
reimbursement for eligible construction engineering (CE) costs.
Sec. 140.203 Policy.
(a) State highway agencies (SHA) may be reimbursed for the Federal
share of CE costs incurred as described in Sec. 140.703.
(b) Reimbursement for CE costs for Federal-aid construction projects
shall be subject to the limitation set forth in Sec. 140.205.
Sec. 140.205 Limitation.
(a) The estimated CE costs for a SHA for a fiscal year shall not
exceed, in the aggregate, 15 percent of the total estimated costs of all
projects financed within the boundaries of the State with Federal-aid
highway funds in such fiscal year, exclusive of the costs of rights-of-
way, preliminary engineering, and CE.
(b) For control purposes, a SHA's estimated CE costs percentage will
be determined by the ratio of the total amount obligated for CE to the
total amount obligated for all projects financed with Federal-aid
highway funds during the fiscal year, after excluding from such totals,
the obligations for rights-of-way, preliminary engineering,
[[Page 13]]
and CE. This percentage shall not exceed 15 percent at the end of the
fiscal year. The CE limitation may be applied on either a Federal or
State fiscal year basis.
(1) Amounts to be included in the determination for CE will be the
aggregate total of all obligations of CE, including original project
obligations at the authorization stage, all subsequent adjustments
during the fiscal year, and all adjustments (debits or credits) to
projects authorized in previous fiscal years.
(2) The CE limitation determination for each fiscal year will be
treated separately and may not be adjusted after the end of that fiscal
year.
(c) Projects which are closed (final voucher processed) as of
December 18, 1991, may be reopened to accept adjustments and additional
eligible project charges. All obligation/deobligation adjustments must
be included in the current fiscal year calculation. However, the CE cost
for each of these projects shall be limited to 15 percent of each
project construction cost in accordance with the provisions in effect
prior to December 18, 1991.
(d) If the SHA claims CE costs as an average percentage of the
actual construction costs in accordance with 23 U.S.C. 120(g), the
average rate shall be determined based upon reimbursable CE costs and
shall not exceed 15 percent, exclusive of the costs of rights-of-way,
preliminary engineering, and CE.
Sec. 140.207 Application of limitation.
The limitation applies to all projects financed with Federal-aid
highway funds.
Subparts C-D [Reserved]
Subpart E--Administrative Settlement Costs--Contract Claims
Source: 44 FR 59233, Oct. 15, 1979, unless otherwise noted.
Sec. 140.501 Purpose.
This regulation establishes the criteria for eligibility for
reimbursement of administrative settlement costs in defense of contract
claims on projects performed by a State under Federal-aid procedures.
Sec. 140.503 Definition.
Administrative settlement costs are costs related to the defense and
settlement of contract claims including, but not limited to, salaries of
a contracting officer or his/her authorized representative, attorneys,
and/or members of State boards of arbitration, appeals boards, or
similar tribunals, which are allocable to the findings and
determinations of contract claims, but not including administrative or
overhead costs.
Sec. 140.505 Reimbursable costs.
(a) Federal funds may participate in administrative settlement costs
which are:
(1) Incurred after notice of claim,
(2) Properly supported,
(3) Directly allocable to a specific Federal-aid or Federal project,
(4) For employment of special counsel for review and defense of
contract claims, when
(i) Recommended by the State Attorney General or State Highway
Agency (SHA) legal counsel and
(ii) Approved in advance by the FHWA Division Administrator, with
advice of FHWA Regional Counsel, and
(5) For travel and transportation expenses, if in accord with
established policy and practices.
(b) No reimbursement shall be made if it is determined by FHWA that
there was negligence or wrongdoing of any kind by SHA officials with
respect to the claim.
Subpart F--Reimbursement for Bond Issue Projects
Source: 48 FR 54971, Dec. 8, 1983, unless otherwise noted.
Sec. 140.601 Purpose.
To prescribe policies and procedures for the use of Federal funds by
State highway agencies (SHAs) to aid in the retirement of the principal
and interest of bonds, pursuant to 23 U.S.C. 122 and the payment of
interest on bonds of eligible Interstate projects.
[[Page 14]]
Sec. 140.602 Requirements and conditions.
(a) An SHA that uses the proceeds of bonds issued by the State, a
county, city or other political subdivision of the State, for the
construction of projects on the Federal-aid primary or Interstate
system, or extensions of any of the Federal-aid highway systems in urban
areas, or for substitute highway projects approved under 23 U.S.C.
103(e)(4), may claim payment of any portion of such sums apportioned to
it for expenditures on such system to aid in the retirement of the
principal of bonds at their maturities, to the the extent that the
proceeds of bonds have actually been expended in the construction of
projects.
(b) Any interest earned and payable on bonds, the proceeds of which
were expended on Interstate projects after November 6, 1978, is an
eligible cost of construction. The amount of interest eligible for
participation will be based on (1) the date the proceeds were expended
on the project, (2) amount expended, and (3) the date of conversion to a
regularly funded project. As provided for in section 115(c), Pub. L. 95-
599, November 6, 1978, interest on bonds issued in any fiscal year by a
State after November 6, 1978, may be paid under the authority of 23
U.S.C. 122 only if such SHA was eligible to obligate Interstate
Discretionary funds under the provisions of 23 U.S.C. 118(b) during such
fiscal year, and the Administrator certifies that such eligible SHA has
utilized, or will utilize to the fullest extent possible during such
fiscal year, its authority to obligate funds under 23 U.S.C. 118(b).
(c) The Federal share payable at the time of conversion, as provided
for in Sec. 140.610 shall be the legal pro rata in effect at the time of
execution of the project agreement for the bond issue project.
(d) The authorization of a bond issue project does not constitute a
commitment of Federal funds until the project is converted to a regular
Federal-aid project as provided for in Sec. 140.610.
(e) Reimbursements for the redemption of bonds may not precede, by
more than 60 days, the scheduled date of the retirement of the bonds.
(f) Federal funds are not eligible for payment into sinking funds
created and maintained for the subsequent retirement of bonds.
Sec. 140.603 Programs.
Programs covering projects to be financed from the proceeds of bonds
shall be prepared and submitted to FHWA. Project designations shall be
the same as for regular Federal-aid projects except that the prefix
letter ``B'' for bond issue shall be used as the first letter of each
project designation, e.g., ``BI'' for Bond Issue Projects--Interstate.
Sec. 140.604 Reimbursable schedule.
Projects to be financed from other than Interstate funds shall be
subject to a 36-month reimbursable schedule upon conversion to regular
Federal-aid financing (See appendix). FHWA will consider requests for
waiver of this provision at the time of conversion action. Waivers are
subject to the availability of liquidating cash.
Sec. 140.605 Approval actions.
(a) Authorization to proceed with preliminary engineering and
acquisition of rights-of-way shall be issued in the same manner as for
regularly financed Federal-aid projects.
(b) Authorization of physical construction shall be given in the
same manner as for regularly financed Federal-aid projects. The total
cost and Federal funds required, including interest, shall be indicated
in the plans, specifications, and estimates.
(c) Projects subject to the reimbursable schedule shall be
identified as an ``E'' project when the SHA is authorized to proceed
with all or any phase of the work.
(d) Concurrence in the award of contracts shall be given.
Sec. 140.606 Project agreements.
Project Agreements, Form PR-2, shall be prepared and executed.
Agreement provision 8 on the reverse side of Form PR-2 \1\ shall apply
for bond issue projects.
---------------------------------------------------------------------------
\1\ The text of FHWA Form PR-2 is found in 23 CFR part 630, subpart
C, appendix A.
---------------------------------------------------------------------------
[[Page 15]]
Sec. 140.607 Construction.
Construction shall be supervised by the SHA in the same manner as
for regularly financed Federal-aid projects. The FHWA will make
construction inspections and reports.
Sec. 140.608 Reimbursable bond interest costs of Interstate projects.
(a) Bond interest earned on bonds actually retired may be reimbursed
on the Federal pro rata basis applicable to such projects in accordance
with Sec. 140.602(b) and (c).
(b) No interest will be reimbursed for bonds issued after November
6, 1978, used to retire or otherwise refinance bonds issued prior to
that date.
Sec. 140.609 Progress and final vouchers.
(a) Progress vouchers may be submitted for the Federal share of
bonds retired or about to be retired, including eligible interest on
Interstate Bond Issue Projects, the proceeds of which have actually been
expended for the construction of the project.
(b) Upon completion of a bond issue project, a final voucher shall
be submitted by the SHA. After final review, the SHA will be advised as
to the total cost and Federal fund participation for the project.
Sec. 140.610 Conversion from bond issue to funded project status.
(a) At such time as the SHA elects to apply available apportioned
Federal-aid funds to the retirement of bonds, including eligible
interest earned and payable on Interstate Bond Projects, subject to
available obligational authority, its claim shall be supported by
appropriate certifications as follows:
I hereby certify that the following bonds, (list), the proceeds of
which have been actually expended in the construction of bond issue
projects authorized by title 23 U.S.C., section 122, (1) have been
retired on ------, or (2) mature and are scheduled for retirement on ---
---, which is ---- days in advance of the maturity date of ------.
Eligible interest claimed on Interstate Bond Projects shall be shown
for each bond and the certification shall include the statement:
I also certify that interest earned and paid or payable for each
bond listed has been determined from the date on and after which the
respective bond proceeds were actually expended on the project.
(b) The SHA's request for full conversion of a completed projects),
or partial conversion of an active or completed project(s), may be made
by letter, inclusive of the appropriate certification as described in
Sec. 140.610(a) making reference to any progress payments received or
the final voucher(s) previously submitted and approved in accordance
with Sec. 140.609.
(c) Approval of the conversion action shall be by the Division
Administrator.
(d) The SHA's request for partial conversion of an active or
completed bond issue project shall provide for: (1) Conversion to funded
project status of the portion to be financed out of the balance of
currently available apportioned funds, and (2) retention of the unfunded
portion of the project in the bond program.
(e) Where the SHA's request involves the partial conversion of a
completed bond issue project, payment of the Federal funds made
available under the conversion action shall be accomplished through use
of Form PR-20, Voucher for Work Performed under Provisions of the
Federal-aid and Federal Highway Acts, prepared in the division office
and appropriately cross-referenced to the Bond Issue Project final
voucher previously submitted and approved. The final voucher will be
reduced by the amount of the approved reimbursement.
Sec. 140.611 Determination of bond retirement.
Division Administrators shall be responsible for the prompt review
of the SHA's records to determine that bonds issued to finance the
projects and for which reimbursement has been made, including eligible
bond interest expense, have been retired pursuant to the State's
certification required by Sec. 140.610(a), and that such action is
documented in the project file.
Sec. 140.612 Cash management.
By July 1 of each year the SHA will provide FHWA with a schedule,
including the anticipated claims for reimbursement, of bond projects to
be converted during the next two fiscal years.
[[Page 16]]
The data will be used by FHWA in determining liquidating cash required
to finance such conversions.
Appendix to Subpart F to Part 140--Reimbursable Schedule for Converted
``E'' (Bond Issue) Projects (other than Interstate Projects)
------------------------------------------------------------------------
Cumulative
amount
reimbursable
Time in months following conversion from ``E'' (bond (percent of
issue) project to regular project Federal
funds
obligated)
------------------------------------------------------------------------
1......................................................... 1
2......................................................... 2
3......................................................... 5
4......................................................... 9
5......................................................... 13
6......................................................... 18
7......................................................... 23
8......................................................... 29
9......................................................... 34
10........................................................ 39
11........................................................ 44
12........................................................ 49
13........................................................ 54
14........................................................ 58
15........................................................ 61
16........................................................ 64
17........................................................ 67
18........................................................ 70
19........................................................ 73
20........................................................ 75
21........................................................ 77
22........................................................ 79
23........................................................ 81
24........................................................ 83
25........................................................ 85
26........................................................ 87
27........................................................ 89
28........................................................ 91
29........................................................ 93
30........................................................ 94
31........................................................ 95
32........................................................ 96
34........................................................ 97
35........................................................ 99
36........................................................ 100
------------------------------------------------------------------------
Subpart G [Reserved]
Subpart H--State Highway Agency Audit Expense
Source: 49 FR 45578, Nov. 19, 1984, unless otherwise noted.
Sec. 140.801 Purpose.
To establish the reimbursement criteria for Federal participation in
project related audit expenses.
Sec. 140.803 Policy.
Project related audits performed in accordance with generally
accepted auditing standards (as modified by the Comptroller General of
the United States) and applicable Federal laws and regulations are
eligible for Federal participation. The State highway agency (SHA) may
use other State, local public agency, and Federal audit organizations as
well as licensed or certified public accounting firms to augment its
audit force.
Sec. 140.805 Definitions.
(a) Project related audits. Audits which directly benefit Federal-
aid highway projects. Audits performed in accordance with the
requirements of 23 CFR part 12, audits of third party contract costs,
and other audits providing assurance that a recipient has complied with
FHWA regulations are all considered project related audits. Audits
benefiting only nonfederal projects, those performed for SHA management
use only, or those serving similar nonfederal purposes are not
considered project related.
(b) Third party contract costs. Project related costs incurred by
railroads, utilities, consultants, governmental instrumentalities,
universities, nonprofit organizations, construction contractors (force
account work), and organizations engaged in right-of-way studies,
planning, research, or related activities where the terms of a proposal
or contract (including lump sum) necessitate an audit. Construction
contracts (except force account work) are not included in this group.
Sec. 140.807 Reimbursable costs.
(a) Federal funds may be used to reimburse an SHA for the following
types of project related audit costs:
(1) Salaries, wages, and related costs paid to public employees in
accordance with subpart G of this part,
(2) Payments by the SHA to any Federal, State, or local public
agency audit organization, and
(3) Payments by the SHA to licensed or certified public accounting
firms.
(b) Audit costs incurred by an SHA shall be equitably distributed to
all benefiting parties. The portion of these costs allocated to the
Federal-Aid Highway Program which are not directly related to a specific
project or projects shall be equitably distributed,
[[Page 17]]
as a minimum, to the major FHWA funding categories in that State.
Subpart I--Reimbursement for Railroad Work
Source: 40 FR 16057, Apr. 9, 1975, unless otherwise noted.
Sec. 140.900 Purpose.
The purpose of this subpart is to prescribe policies and procedures
on reimbursement to the States for railroad work done on projects
undertaken pursuant to the provisions of 23 CFR part 646, subpart B.
Sec. 140.902 Applicability.
This subpart, and all references hereinafter made to ``projects,''
applies to Federal-aid projects involving railroad facilities, including
projects for the elimination of hazards of railroad-highway crossings,
and other projects which use railroad properties or which involve
adjustments required by highway construction to either railroad
facilities or facilities that are jointly owned or used by railroad and
utility companies.
Sec. 140.904 Reimbursement basis.
(a) General. On projects involving the elimination of hazards of
railroad-highway crossings, and on other projects where a railroad
company is not obligated to move or to change its facilities at its own
expense, reimbursement will be made for the costs incurred by the State
in making changes to railroad facilities as required in connection with
a Federal-aid highway project, in accordance with the provisions of this
subpart.
(b) Eligibility. To be eligible, the costs must be:
(1) For work which is included in an approved statewide
transportation improvement program.
(2) Incurred subsequent to the date of authorization by the Federal
Highway Administration (FHWA),
(3) Incurred in accordance with the provisions of 23 CFR, part 646,
subpart B, and
(4) Properly attributable to the project.
[40 FR 16057, Apr. 9, 1975, as amended at 53 FR 18276, May 23, 1988; 62
FR 45328, Aug. 27, 1997]
Sec. 140.906 Labor costs.
(a) General. (1) Salaries and wages, at actual or average rates, and
related expenses paid by a company to individuals, for the time they are
working on the project, are reimbursable when supported by adequate
records. This shall include labor costs associated with preliminary
engineering, construction engineering, right-of-way, and force account
construction.
(2) Salaries and expenses paid to individuals who are normally part
of the overhead organization of the company may be reimbursed for the
time they are working directly on the project, such as for accounting
and bill preparation, when supported by adequate records and when the
work performed by such individuals is essential to the project and could
not have been accomplished as economically by employees outside the
overhead organization.
(3) Amounts paid to engineers, architects and others for services
directly related to projects may be reimbursed.
(b) Labor surcharges. (1) Labor surcharges include worker
compensation insurance, public liability and property damage insurance,
and such fringe benefits as the company has established for the benefit
of its employees. The cost of labor surcharges will be reimbursed at
actual cost to the company or a company may, at its option, use an
additive rate or other similar technique in lieu of actual costs
provided that (i) the rate is based on historical cost data of the
company, (ii) such rate is representative of actual costs incurred,
(iii) the rate is adjusted at least annually taking into consideration
known anticipated changes and correcting for any over or under applied
costs for the preceding period, and (iv) the rate is approved by the SHA
and FHWA.
(2) Where the company is a self-insurer there may be reimbursement:
(i) At experience rates properly developed from actual costs, not to
exceed the rates of a regular insurance
[[Page 18]]
company for the class of employment covered, or
(ii) At the option of the company, a fixed rate of 8 percent of
direct labor costs for worker compensation and public liability and
property damage insurance together.
[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 56
FR 56578, Nov. 6, 1991]
Sec. 140.907 Overhead and indirect construction costs.
(a) A State may elect to reimburse the railroad company for its
overhead and indirect construction costs.
(b) The FHWA will participate in these costs provided that:
(1) The costs are distributed to all applicable work orders and
other functions on an equitable and uniform basis in accordance with
generally accepted accounting principles;
(2) The costs included in the distribution are limited to costs
actually incurred by the railroad;
(3) The costs are eligible in accordance with the Federal
Acquisition Regulation (48 CFR), part 31, Contract Cost Principles and
Procedures, relating to contracts with commercial organizations;
(4) The costs are considered reasonable;
(5) Records are readily available at a single location which
adequately support the costs included in the distribution, the method
used for distributing the costs, and the basis for determining additive
rates;
(6) The rates are adjusted at least annually taking into
consideration any overrecovery or underrecovery of costs; and
(7) The railroad maintains written procedures which assure proper
control and distribution of the overhead and indirect construction
costs.
[53 FR 18276, May 23, 1988]
Sec. 140.908 Materials and supplies.
(a) Procurement. Materials and supplies, if available, are to be
furnished from company stock, except they may be obtained from other
sources near the project site when available at less cost. Where not
available from company stock, they may be purchased either under
competitive bids or existing continuing contracts, under which the
lowest available prices are developed. Minor quantities and proprietary
products are excluded from these requirements. The company shall not be
required to change its existing standards for materials used in
permanent changes to its facilities.
(b) Costs. (1) Materials and supplies furnished from company stock
shall be billed at current stock price of such new or used material at
time of issue.
(2) Materials and supplies not furnished from company stock shall be
billed at actual costs to the company delivered to the point of entry on
the railroad company's line nearest the source of procurement.
(3) A reasonable cost of plant inspection and testing may be
included in the costs of materials and supplies where such expense has
been incurred. The computation of actual costs of materials and supplies
shall include the deduction of all offered discounts, rebates and
allowances.
(c) Materials recovered. (1) Materials recovered from temporary use
and accepted for reuse by the company shall be credited to the project
at prices charged to the job, less a consideration for loss in service
life at 10 percent for rails, angle bars, tie plates and metal turnout
materials and 15 percent for all other materials. Materials recovered
from the permanent facility of the company that are accepted by the
company for return to stock shall be credited to the project at current
stock prices of such used material.
(2) Materials recovered and not accepted for reuse by the company,
if determined to have a net sale value, shall be sold by the State or
railroad following an opportunity for State inspection and appropriate
solicitation for bids, to the highest bidder; or if the company
practices a system of periodic disposal by sale, credit to the project
shall be at the going prices supported by the records of the company.
Where applicable, credit for materials recovered from the permanent
facility in length or quantities in excess of that being placed should
be reduced to reflect any increased cost of railroad operation resulting
from the adjustment.
[[Page 19]]
(d) Removal costs. Federal participation in the costs of removing,
salvaging, transporting, and handling recovered materials will be
limited to the value of materials recovered, except where FHWA approves
additional measures for restoration of affected areas as required by the
physical construction or by reason of safety or aesthetics.
(e) Handling costs. The actual and direct costs of handling and
loading out of materials and supplies at and from company stores or
material yards and of unloading and handling of recovered materials
accepted by the company at its stores or material yards, are
reimbursable. At the option of the company, 5 percent of the amounts
billed for the materials and supplies which are issued from company
stores and material yards will be reimbursable in lieu of actual costs.
(f) Credit losses. On projects where a company actually suffers loss
by application of credits, the company shall have the opportunity of
submitting a detailed statement of such loss as a basis for further
adjustment.
Sec. 140.910 Equipment.
(a) Company owned equipment. Cost of company-owned equipment may be
reimbursed for the average or actual cost of operation, light and
running repairs, and depreciation, or at industry rates representative
of actual costs as agreed to by the railroad, SHA, and FHWA.
Reimbursement for company-owned vehicles may be made at average or
actual costs or at rates of recorded use per mile which are
representative of actual costs and agreed to by the company, SHA, and
FHWA.
(b) Other equipment. Where company owned equipment is not available,
reimbursement will be limited to the amount of rental paid (1) to the
lowest qualified bidder, (2) under existing continuing contracts at
reasonable cost, or (3) as an exception, by negotiation where (b) (1)
and (2) are impractical due to project location or schedule.
[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]
Sec. 140.912 Transportation.
(a) Employees. The company's cost of necessary employee
transportation and subsistence directly attributable to the project,
which is consistent with overall policy of the company, is reimbursable.
(b) Materials, supplies, and equipment. The most economical movement
of materials, supplies and equipment to the project and necessary return
to storage, including the associated costs of loading and unloading
equipment, is reimbursable. Transportation by a railroad company over
its own lines in a revenue train is reimbursable at average or actual
costs, at rates which are representative of actual costs, or at rates
which the company charges its customers for similar shipments provided
the rate structure is documented and available to the public. These
rates are to be agreed to by the company, SHA, and FHWA. No charge will
be made for transportation by work train other than the operating
expenses of the work train. When it is more practicable or more
economical to move equipment on its own wheels, reimbursement may be
made at average or actual costs or at rates which are representative of
actual costs and are agreed to by the railroad, SHA, and FHWA.
[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]
Sec. 140.914 Credits for improvements.
(a) Credit shall be made to the project for additions or
improvements which provide for higher quality or increased service
capability of the operating facility and which are provided solely for
the benefit of the company.
(b) Where buildings and other depreciable structures of a company
which are integral to operation of rail traffic must be replaced, credit
shall be made to the project as set forth in 23 CFR 646.216(c)(2).
(c) No credit is required for additions or improvements which are:
(1) Necessitated by the requirements of the highway project.
(2) Replacements which, although not identical, are of equivalent
standard.
(3) Replacements of devices or materials no longer regularly
manufactured and the next highest grade or size is used.
[[Page 20]]
(4) Required by governmental and appropriate regulatory commission
requirements.
Sec. 140.916 Protection.
The cost of essential protective services which, in the opinion of a
railroad company, are required to ensure safety to railroad operations
during certain periods of the construction of a project, is reimbursable
provided an item for such services is incorporated in the State-railroad
agreement or in a work order issued by the State and approved by FHWA.
Sec. 140.918 Maintenance and extended construction.
The cost of maintenance and extended construction is reimbursable to
the extent provided for in 23 CFR 646.216(f)(4), and where included in
the State-Railroad Agreement or otherwise approved by the State and
FHWA.
Sec. 140.920 Lump sum payments.
Where approved by FHWA, pursuant to 23 CFR 646.216(d)(3),
reimbursement may be made as a lump sum payment, in lieu of actual
costs.
Sec. 140.922 Billings.
(a) After the executed State-Railroad Agreement has been approved by
FHWA, the company may be reimbursed on progress billings of incurred
costs. Costs for materials stockpiled at the project site or
specifically purchased and delivered to the company for use on the
project may be reimbursed on progress billings following approval of the
executed State-Railroad Agreement or the written agreement under 23 CFR
646.218(c).
(b) The company shall provide one final and complete billing of all
incurred costs, or of the agreed-to lump sum, within one year following
completion of the reimbursable railroad work. Otherwise, previous
payments to the company may be considered final, except as agreed to
between the SHA and the railroad.
(c) All company cost records and accounts relating to the project
are subject to audit by representatives of the State and/or the Federal
Government for a period of three years from the date final payment has
been received by the company.
(d) A railroad company must advise the State promptly of any
outstanding obligation of the State's contractor for services furnished
by the company such as protective services.
[40 FR 16057, Apr. 9, 1975, as amended at 40 FR 29712, July 15, 1975; 62
FR 45328, Aug. 27, 1997]
PART 172--ADMINISTRATION OF ENGINEERING AND DESIGN RELATED SERVICE CONTRACTS--Table of Contents
Sec.
172.1 Purpose and applicability.
172.3 Definitions.
172.5 Methods of procurement.
172.7 Audits.
172.9 Approvals.
Authority: 23 U.S.C. 112, 114(a), 302, 315, and 402; 40 U.S.C. 541
et seq.; sec.1205(a), Pub. L. 105-178, 112 Stat. 107 (1998); sec. 307,
Pub. L. 104-59, 109 Stat. 568 (1995); sec. 1060, Pub. L. 102-240, 105
Stat. 1914, 2003 (1991); 48 CFR 12 and 31; 49 CFR 1.48(b) and 18.
Source: 67 FR 40155, June 12, 2002, unless otherwise noted.
Sec. 172.1 Purpose and applicability.
This part prescribes policies and procedures for the administration
of engineering and design related service contracts under 23 U.S.C. 112
as supplemented by the common grant rule, 49 CFR part 18. It is not the
intent of this part to release the grantee from the requirements of the
common grant rule. The policies and procedures involve federally funded
contracts for engineering and design related services for projects
subject to the provisions of 23 U.S.C. 112(a) and are issued to ensure
that a qualified consultant is obtained through an equitable selection
process, that prescribed work is properly accomplished in a timely
manner, and at fair and reasonable cost. Recipients of Federal funds
shall ensure that their subrecipients comply with this part.
Sec. 172.3 Definitions.
As used in this part:
Audit means a review to test the contractor's compliance with the
requirements of the cost principles contained in 48 CFR part 31.
[[Page 21]]
Cognizant agency means any Federal or State agency that has
conducted and issued an audit report of the consultant's indirect cost
rate that has been developed in accordance with the requirements of the
cost principles contained in 48 CFR part 31.
Competitive negotiation means any form of negotiation that utilizes
the following:
(1) Qualifications-based procedures complying with title IX of the
Federal Property and Administrative Services Act of 1949 (Public Law 92-
582, 86 Stat. 1278 (1972));
(2) Equivalent State qualifications-based procedures; or
(3) A formal procedure permitted by State statute that was enacted
into State law prior to the enactment of Public Law 105-178 (TEA-21) on
June 9, 1998.
Consultant means the individual or firm providing engineering and
design related services as a party to the contract.
Contracting agencies means State Departments of Transportation
(State DOTs) or local governmental agencies that are responsible for the
procurement of engineering and design related services.
Engineering and design related services means program management,
construction management, feasibility studies, preliminary engineering,
design, engineering, surveying, mapping, or architectural related
services with respect to a construction project subject to 23 U.S.C.
112(a).
One-year applicable accounting period means the annual accounting
period for which financial statements are regularly prepared for the
consultant.
Sec. 172.5 Methods of procurement.
(a) Procurement. The procurement of Federal-aid highway contracts
for engineering and design related services shall be evaluated and
ranked by the contracting agency using one of the following procedures:
(1) Competitive negotiation. Contracting agencies shall use
competitive negotiation for the procurement of engineering and design
related services when Federal-aid highway funds are involved in the
contract. These contracts shall use qualifications-based selection
procedures in the same manner as a contract for architectural and
engineering services is negotiated under title IX of the Federal
Property and Administrative Services Act of 1949 (40 U.S.C. 541-544) or
equivalent State qualifications-based requirements. The proposal
solicitation (project, task, or service) process shall be by public
announcement, advertisement, or any other method that assures qualified
in-State and out-of-State consultants are given a fair opportunity to be
considered for award of the contract. Price shall not be used as a
factor in the analysis and selection phase. Alternatively, a formal
procedure adopted by State Statute enacted into law prior to June 9,
1998 is also permitted under paragraph (a)(4) of this section.
(2) Small purchases. Small purchase procedures are those relatively
simple and informal procurement methods where an adequate number of
qualified sources are reviewed and the total contract costs do not
exceed the simplified acquisition threshold fixed in 41 U.S.C. 403(11).
Contract requirements should not be broken down into smaller components
merely to permit the use of small purchase requirements. States and
subrecipients of States may use the State's small purchase procedures
for the procurement of engineering and design related services provided
the total contract costs do not exceed the simplified acquisition
threshold fixed in 41 U.S.C. 403(11).
(3) Noncompetitive negotiation. Noncompetitive negotiation may be
used to procure engineering and design related services on Federal-aid
participating contracts when it is not feasible to award the contract
using competitive negotiation, equivalent State qualifications-based
procedures, or small purchase procedures. Contracting agencies shall
submit justification and receive approval from the FHWA before using
this form of contracting. Circumstances under which a contract may be
awarded by noncompetitive negotiation are limited to the following:
(i) The service is available only from a single source;
(ii) There is an emergency which will not permit the time necessary
to conduct competitive negotiations; or
[[Page 22]]
(iii) After solicitation of a number of sources, competition is
determined to be inadequate.
(4) State statutory procedures. Contracting agencies may procure
engineering and design related services using an alternate selection
procedure established in State statute enacted into law before June 9,
1998.
(b) Disadvantaged Business Enterprise (DBE) program. The contracting
agency shall give consideration to DBE consultants in the procurement of
engineering and design related service contracts subject to 23 U.S.C.
112(b)(2) in accordance with 49 CFR part 26.
(c) Compensation. The cost plus a percentage of cost and percentage
of construction cost methods of compensation shall not be used.
Sec. 172.7 Audits.
(a) Performance of audits. When State procedures call for audits of
contracts or subcontracts for engineering design services, the audit
shall be performed to test compliance with the requirements of the cost
principles contained in 48 CFR part 31. Other procedures may be used if
permitted by State statutes that were enacted into law prior to June 9,
1998.
(b) Audits for indirect cost rate. Contracting agencies shall use
the indirect cost rate established by a cognizant agency audit for the
cost principles contained in 48 CFR part 31 for the consultant, if such
rates are not under dispute. A lower indirect cost rate may be used if
submitted by the consultant firm, however the consultant's offer of a
lower indirect cost rate shall not be a condition of contract award. The
contracting agencies shall apply these indirect cost rates for the
purposes of contract estimation, negotiation, administration, reporting,
and contract payment and the indirect cost rates shall not be limited by
any administrative or de facto ceilings. The consultant's indirect cost
rates for its one-year applicable accounting period shall be applied to
the contract, however once an indirect cost rate is established for a
contract it may be extended beyond the one year applicable accounting
period provided all concerned parties agree. Agreement to the extension
of the one-year applicable period shall not be a condition of contract
award. Other procedures may be used if permitted by State statutes that
were enacted into law prior to June 9, 1998.
(c) Disputed audits. If the indirect cost rate(s) as established by
the cognizant audit in paragraph (b) of this section are in dispute, the
parties of any proposed new contract must negotiate a provisional
indirect cost rate or perform an independent audit to establish a rate
for the specific contract. Only the consultant and the parties involved
in performing the indirect cost audit may dispute the established
indirect cost rate. If an error is discovered in the established
indirect cost rate, the rate may be disputed by any prospective user.
(d) Prenotification; confidentiality of data. The FHWA and
recipients and subrecipients of Federal-aid highway funds may share the
audit information in complying with the State or subrecpient's
acceptance of a consultant's overhead rates pursuant to 23 U.S.C. 112
and this part provided that the consultant is given notice of each use
and transfer. Audit information shall not be provided to other
consultants or any other government agency not sharing the cost data, or
to any firm or government agency for purposes other than complying with
the State or subrecpient's acceptance of a consultant's overhead rates
pursuant to 23 U.S.C. 112 and this part without the written permission
of the affected consultants. If prohibited by law, such cost and rate
data shall not be disclosed under any circumstance, however should a
release be required by law or court order, such release shall make note
of the confidential nature of the data.
Sec. 172.9 Approvals.
(a) Written procedures. The contracting agency shall prepare written
procedures for each method of procurement it proposes to utilize. These
written procedures and all revisions shall be approved by the FHWA for
recipients of federal funds. Recipients shall approve the written
procedures and all revisions for their subrecipients. These procedures
shall, as appropriate to the
[[Page 23]]
particular method of procurement, cover the following steps:
(1) In preparing a scope of work, evaluation factors and cost
estimate for selecting a consultant;
(2) In soliciting proposals from prospective consultants;
(3) In the evaluation of proposals and the ranking/selection of a
consultant;
(4) In negotiation of the reimbursement to be paid to the selected
consultant;
(5) In monitoring the consultant's work and in preparing a
consultant's performance evaluation when completed; and
(6) In determining the extent to which the consultant, who is
responsible for the professional quality, technical accuracy, and
coordination of services, may be reasonably liable for costs resulting
from errors or deficiencies in design furnished under its contract.
(b) Contracts. Contracts and contract settlements involving design
services for projects that have not been delegated to the State under 23
U.S.C. 106(c), that do not fall under the small purchase procedures in
Sec. 172.5(a)(2), shall be subject to the prior approval by FHWA, unless
an alternate approval procedure has been approved by FHWA.
(c) Major projects. Any contract, revision of a contract or
settlement of a contract for design services for a project that is
expected to fall under 23 U.S.C. 106(h) shall be submitted to the FHWA
for approval.
(d) Consultant services in management roles. When Federal-aid
highway funds participate in the contract, the contracting agency shall
receive approval from the FHWA before hiring a consultant to act in a
management role for the contracting agency.
PART 180--CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS--Table of Contents
Authority: Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241,
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48.
Source: 64 FR 29750, June 2, 1999, unless otherwise noted.
Sec. 180.1 Cross-reference to credit assistance.
The regulations in 49 CFR part 80 shall be followed in complying
with the requirements of this part. Title 49 CFR part 80 implements the
Transportation Infrastructure Finance and Innovation Act of 1998, secs.
1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241.
PART 190--INCENTIVE PAYMENTS FOR CONTROLLING OUTDOOR ADVERTISING ON THE INTERSTATE SYSTEM--Table of Contents
Sec.
190.1 Purpose.
190.3 Agreement to control advertising.
190.5 Bonus project claims.
190.7 Processing of claims.
Authority: 23 U.S.C. 131(j) and 315; 49 CFR 1.48(b).
Source: 43 FR 42742, Sept. 21, 1978, unless otherwise noted.
Sec. 190.1 Purpose.
The purpose of this regulation is to prescribe project procedures
for making the incentive payments authorized by 23 U.S.C. 131(j).
Sec. 190.3 Agreement to control advertising.
To qualify for the bonus payment, a State must have entered into an
agreement with the Secretary to control outdoor advertising. It must
fulfill, and must continue to fulfill its obligations under such
agreement consistent with 23 CFR 750.101.
Sec. 190.5 Bonus project claims.
(a) The State may claim payment by submitting a form PR-20 voucher,
supported by strip maps which identify advertising control limits and
areas excluded from the claim and form FHWA-1175, for the one-half
percent bonus claim.
(b) The bonus payment computation is based on projects or portions
thereof for which (1) the section of highway on which the project is
located has been opened to traffic, and (2) final payment has been made.
A bonus project may cover an individual project, a part thereof, or a
combination of projects, on a section of an Interstate route.
[[Page 24]]
(c) The eligible system mileage to be shown for a bonus project is
that on which advertising controls are in effect. The eligible system
mileage reported in subsequent projects on the same Interstate route
section should cover only the additional system mileage not previously
reported. Eligible project cost is the total participating cost (State
and Federal share of approved preliminary engineering (PE), right-of-way
(R-O-W), and construction) exclusive of any ineligible costs. The amount
of the bonus payment is to be based on the eligible total costs of the
supporting projects included in each claim.
(d) Progress vouchers for route sections on which additional one-
half percent bonus payments are to be claimed are to be so identified,
and the final claim for each route section is to be identified as the
final voucher.
Sec. 190.7 Processing of claims.
Audited and approved PR-20 vouchers with form FHWA-1175 shall be
forwarded to the regional office for submission to the Finance Division,
Washington Headquarters, for payment. The associated strip maps shall be
retained with the division office copies of the PR-20 vouchers.
PART 192--DRUG OFFENDER'S DRIVER'S LICENSE SUSPENSION--Table of Contents
Sec.
192.1 Scope.
192.2 Purpose.
192.3 Definitions.
192.4 Adoption of drug offender's driver's license suspension.
192.5 Certification requirements.
192.6 Period of availability of withheld funds.
192.7 Apportionment of withheld funds after compliance.
192.8 Period of availability of subsequently apportioned funds.
192.9 Effect of noncompliance.
192.10 Procedures affecting States in noncompliance.
Authority: 23 U.S.C. 159 and 315.
Source: 57 FR 35999, Aug. 12, 1992, unless otherwise noted.
Redesignated at 60 FR 50100, Sept. 28, 1995.
Sec. 192.1 Scope.
This part prescribes the requirements necessary to implement 23
U.S.C. Sec. 159, which encourages States to enact and enforce drug
offender's driver's license suspensions.
Sec. 192.2 Purpose.
The purpose of this part is to specify the steps that States must
take in order to avoid the withholding of Federal-aid highway funds for
noncompliance with 23 U.S.C. 159.
Sec. 192.3 Definitions.
As used in this part:
(a) Convicted includes adjudicated under juvenile proceedings.
(b) Driver's license means a license issued by a State to any
individual that authorizes the individual to operate a motor vehicle on
highways.
(c) Drug offense means:
(1) The possession, distribution, manufacture, cultivation, sale,
transfer, or the attempt or conspiracy to possess, distribute,
manufacture, cultivate, sell, or transfer any substance the possession
of which is prohibited under the Controlled Substances Act, or
(2) The operation of a motor vehicle under the influence of such a
substance.
(d) Substance the possession of which is prohibited under the
Controlled Substances Act or substance means a controlled or counterfeit
chemical, as those terms are defined in subsections 102 (6) and (7) of
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 802 (6) and (7) and listed in 21 CFR 1308.11-.15.
[57 FR 35999, Aug. 12, 1992; 58 FR 62415, Nov. 26, 1993; 59 FR 39256,
Aug. 2, 1994]
Sec. 192.4 Adoption of drug offender's driver's license suspension.
(a) The Secretary shall withhold five percent of the amount required
to be apportioned to any State under each of sections 104(b)(1),
104(b)(3), and 104(b)(5) of title 23 of the United States Code on the
first day of fiscal years 1994 and 1995 if the States does not meet the
requirements of this section on that date.
(b) The Secretary shall withhold ten percent of the amount required
to be
[[Page 25]]
apportioned to any State under each of sections 104(b)(1), 104(b)(3),
and 104(b)(5) of title 23 of the United States Code on the first day of
fiscal year 1996 and any subsequent fiscal year if the State does not
meet the requirements of this section on that date.
(c) A State meets the requirements of this section if:
(1) The State has enacted and is enforcing a law that requires in
all circumstances, or requires in the absence of compelling
circumstances warranting an exception:
(i) The revocation, or suspension for at least 6 months, of the
driver's license of any individual who is convicted, after the enactment
of such law, of
(A) Any violation of the Controlled Substances Act, or
(B) Any drug offense, and
(ii) A delay in the issuance or reinstatement of a driver's license
to such an individual for at least 6 months after the individual
otherwise would have been eligible to have a driver's license issued or
reinstated if the individual does not have a driver's license, or the
driver's license of the individual is suspended, at the time the
individual is so convicted, or
(2) The Governor of the State:
(i) Submits to the Secretary no earlier than the adjournment sine
die of the first regularly scheduled session of the State's legislature
which begins after November 5, 1990, a written certification stating
that he or she is opposed to the enactment or enforcement in the State
of a law described in paragraph (c)(1) of this section relating to the
revocation, suspension, issuance, or reinstatement of driver's licenses
to convicted drug offenders; and
(ii) Submits to the Secretary a written certification that the
legislature (including both Houses where applicable) has adopted a
resolution expressing its opposition to a law described in paragraph
(c)(1) of this section.
(d) A State that makes exceptions for compelling circumstances must
do so in accordance with a State law, regulation, binding policy
directive or Statewide published guidelines establishing the conditions
for making such exceptions and in exceptional circumstances specific to
the offender.
Sec. 192.5 Certification requirements.
(a) Each State shall certify to the Secretary of Transportation by
April 1, 1993 and by January 1 of each subsequent year that it meets the
requirements of 23 U.S.C. 159 and this regulation.
(b) If the State believes it meets the requirements of 23 U.S.C. 159
and this regulation on the basis that it has enacted and is enforcing a
law that suspends or revokes the driver's license of drug offenders, the
certification shall contain:
(1) A statement by the Governor of the State that the State has
enacted and is enforcing a Drug Offender's Driver's License Suspension
law that conforms to 23 U.S.C. 159(a)(3)(A). The certifying statement
may be worded as follows: I, (Name of Governor), Governor of the (State
or Commonwealth) of ------------, do hereby certify that the (State or
Commonwealth) of ------------, has enacted is enforcing a Drug
Offender's Driver's License Suspension law that conforms to section 23
U.S. C. 159(a)(3)(A).
(2) Until a State has been determined to be in compliance with the
requirements of 23 U.S.C. 159 and this regulation, the certification
shall include also:
(i) A copy of the State law, regulation, or binding policy directive
implementing or interpreting such law or regulation relating to the
suspension, revocation, issuance or reinstatement or driver's licenses
of drug offenders, and
(ii) A statement describing the steps the State is taking to enforce
its law with regard to within State convictions, out-of-State
convictions, Federal convictions and juvenile adjudications. The
statement shall demonstrate that, upon receiving notification that a
State driver has been convicted of a within State, out-of-State or
Federal conviction or juvenile adjudication, the State is revoking,
suspending or delaying the issuance of that drug offender's driver's
license; and that, when the State convicts an individual of a drug
offense, it is notifying the appropriate State office or, if the
offender is a non-resident driver, the appropriate office in the
driver's home State. If the State is not yet making
[[Page 26]]
these notifications, the State may satisfy this element by submitting a
plan describing the steps it is taking to establish notification
procedures.
(c) If the State believes it meets the requirements of 23 U.S.C.
159(a)(3)(B) on the basis that it opposes a law that requires the
suspension, revocation or delay in issuance or reinstatement of the
driver's license of drug offenders that conforms to 23 U.S.C.
159(a)(3)(A), the certification shall contain:
(1) A statement by the Governor of the State that he or she is
opposed to the enactment or enforcement of a law that conforms to 23
U.S.C. 159(a)(3)(A) and that the State legislature has adopted a
resolution expressing its opposition to such a law. The certifying
statement may be worded as follows: I, (Name of Governor), Governor of
the (State or Commonwealth of ------------, do hereby certify that I am
opposed to the enactment or enforcement of a law that conforms to 23
U.S.C. 159(a)(3)(A) and that the legislature of the (State or
Commonwealth) of ------------, has adopted a resolution expressing its
opposition to such a law.
(2) Until a State has been determined to be in compliance with the
requirements of 23 U.S.C. 159(a)(3)(B) and this regulation, the
certification shall include a copy of the resolution.
(d) The Governor each year shall submit the original and three
copies of the certification to the local FHWA Division Administrator.
The FHWA Division Administrator shall retain the original and forward
one copy each to the FHWA Regional Administrator, FHWA Chief Counsel,
and the Director of the Office of Highway Safety.
(e) Any changes to the original certification or supplemental
information necessitated by the review of the certifications as they are
forwarded, State legislative changes or changes in State enforcement
activity (including failure to make progress in a plan previously
submitted) shall be submitted in the same manner as the original.
[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100,
Sept. 28, 1995]
Sec. 192.6 Period of availability of withheld funds.
(a) Funds withheld under Sec. 1212.4 from apportionment to any State
on or before September 30, 1995, will remain available for apportionment
as follows:
(1) If the funds would have been apportioned under 23 U.S.C.
104(b)(5)(A) but for this section, the funds will remain available until
the end of the fiscal year for which the funds are authorized to be
appropriated.
(2) If the funds would have been apportioned under 23 U.S.C.
104(b)(5)(B) but for this section, the funds will remain available until
the end of the second fiscal year following the fiscal year for which
the funds are authorized to be appropriated.
(3) If the funds would have been apportioned under 23 U.S.C.
104(b)(1) or 104(b)(3) but for this section, the funds will remain
available until the end of the third fiscal year following the fiscal
year for which the funds are authorized to be appropriated.
(b) Funds withheld under Sec. 1212.4 from apportionment to any State
after September 30, 1995 will not be available for apportionment to the
State.
Sec. 192.7 Apportionment of withheld funds after compliance.
Funds withheld under Sec. 1212.4 from apportionment, which remain
available for apportionment under Sec. 1212.6(a), will be made available
to any State that conforms to the requirements of Sec. 1212.4 before the
last day of the period of availability as defined in Sec. 1212.6(a).
[57 FR 35999, Aug. 12, 1992, as amended at 59 FR 39256, Aug. 2, 1994]
Sec. 192.8 Period of availability of subsequently apportioned funds.
(a) Funds apportioned pursuant to Sec. 1212.7 will remain available
for expenditure as follows:
(1) Funds originally apportioned under 23 U.S.C. 104(b)(5)(A) will
remain available until the end of the fiscal year succeeding the fiscal
year in which the funds are apportioned.
(2) Funds originally apportioned under 23 U.S.C. 104(b)(1),
104(b)(2), 104(b)(5)(B), or 104(b)(6) will remain available until the
end of the third fiscal year succeeding the fiscal year in which the
funds are apportioned.
(b) Sums apportioned to a State pursuant to Sec. 1212.7 and not
obligated at the end of the periods defined in Sec. 1212.8(a), shall
lapse or, in the case of
[[Page 27]]
funds apportioned under 23 U.S.C. 104(b)(5), shall lapse and be made
available by the Secretary for projects in accordance with 23 U.S.C.
118(b).
Sec. 192.9 Effect of noncompliance.
If a State has not met the requirements of 23 U.S.C. 159(a)(3) at
the end of the period for which funds withheld under Sec. 1212.4 are
available for apportionment to a State under Sec. 1212.6, then such
funds shall lapse or, in the case of funds withheld from apportionment
under 23 U.S.C. 104(b)(5), shall lapse and be made available by the
Secretary for projects in accordance with 23 U.S.C. 118(b).
Sec. 192.10 Procedures affecting States in noncompliance.
(a) Each fiscal year, each State determined to be in noncompliance
with 23 U.S.C. 159, based on FHWA's preliminary review of its statutes,
will be advised of the funds expected to be withheld under Sec. 1212.4
from apportionment, as part of the advance notice of apportionments
required under 23 U.S.C. 104(e), normally not later than ninety days
prior to final apportionment.
(b) If FHWA determines that the State is not in compliance with 23
U.S.C. 159 based on the agencies' preliminary review, the State may,
within 30 days of its receipt of the advance notice of apportionments,
submit documentation showing why it is in compliance. Documentation
shall be submitted to the Federal Highway Administration, 400 Seventh
Street, SW., Washington, DC 20590.
(c) Each fiscal year, each State determined not to be in compliance
with 23 U.S.C. 159(a)(3), based on FHWA's final determination, will
receive notice of the funds being withheld under Sec. 1212.4 from
apportionment, as part of the certification of apportionments required
under 23 U.S.C. 104(e), which normally occurs on October 1 of each
fiscal year.
[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100,
Sept. 28, 1995]
[[Page 28]]
SUBCHAPTER C--CIVIL RIGHTS
PART 200--TITLE VI PROGRAM AND RELATED STATUTES--IMPLEMENTATION AND REVIEW PROCEDURES--Table of Contents
Sec.
200.1 Purpose.
200.3 Application of this part.
200.5 Definitions.
200.7 FHWA Title VI policy.
200.9 State highway agency responsibilities.
200.11 Procedures for processing Title VI reviews.
200.13 Certification acceptance.
Authority: Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d
to 2000d-4; Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-
3619; 42 U.S.C. 4601 to 4655; 23 U.S.C. 109(h); 23 U.S.C. 324.
Source: 41 FR 53982, Dec. 10, 1976, unless otherwise noted.
Sec. 200.1 Purpose.
To provide guidelines for: (a) Implementing the Federal Highway
Administration (FHWA) Title VI compliance program under Title VI of the
Civil Rights Act of 1964 and related civil rights laws and regulations,
and (b) Conducting Title VI program compliance reviews relative to the
Federal-aid highway program.
Sec. 200.3 Application of this part.
The provisions of this part are applicable to all elements of FHWA
and provide requirements and guidelines for State highway agencies to
implement the Title VI Program requirements. The related civil rights
laws and regulations are listed under Sec. 200.5(p) of this part. Title
VI requirements for 23 U.S.C. 402 will be covered under a joint FHWA/
NHTSA agreement.
Sec. 200.5 Definitions.
The following definitions shall apply for the purpose of this part:
(a) Affirmative action. A good faith effort to eliminate past and
present discrimination in all federally assisted programs, and to ensure
future nondiscriminatory practices.
(b) Beneficiary. Any person or group of persons (other than States)
entitled to receive benefits, directly or indirectly, from any federally
assisted program, i.e., relocatees, impacted citizens, communities, etc.
(c) Citizen participation. An open process in which the rights of
the community to be informed, to provide comments to the Government and
to receive a response from the Government are met through a full
opportunity to be involved and to express needs and goals.
(d) Compliance. That satisfactory condition existing when a
recipient has effectively implemented all of the Title VI requirements
or can demonstrate that every good faith effort toward achieving this
end has been made.
(e) Deficiency status. The interim period during which the recipient
State has been notified of deficiencies, has not voluntarily complied
with Title VI Program guidelines, but has not been declared in
noncompliance by the Secretary of Transportation.
(f) Discrimination. That act (or action) whether intentional or
unintentional, through which a person in the United States, solely
because of race, color, religion, sex, or national origin, has been
otherwise subjected to unequal treatment under any program or activity
receiving financial assistance from the Federal Highway Administration
under title 23 U.S.C.
(g) Facility. Includes all, or any part of, structures, equipment or
other real or personal property, or interests therein, and the provision
of facilities includes the construction, expansion, renovation,
remodeling, alternation or acquisition of facilities.
(h) Federal assistance. Includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in
property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and
[[Page 29]]
(5) Any Federal agreement, arrangement, or other contract which has,
as one of its purposes, the provision of assistance.
(i) Noncompliance. A recipient has failed to meet prescribed
requirements and has shown an apparent lack of good faith effort in
implementing all of the Title VI requirements.
(j) Persons. Where designation of persons by race, color, or
national origin is required, the following designations ordinarily may
be used: ``White not of Hispanic origin'', ``Black not of Hispanic
origin'', ``Hispanic'', ``Asian or Pacific Islander'', ``American Indian
or Alaskan Native.'' Additional subcategories based on national origin
or primary language spoken may be used, where appropriate, on either a
national or a regional basis.
(k) Program. Includes any highway, project, or activity for the
provision of services, financial aid, or other benefits to individuals.
This includes education or training, work opportunities, health,
welfare, rehabilitation, housing, or other services, whether provided
directly by the recipient of Federal financial assistance or provided by
others through contracts or other arrangements with the recipient.
(l) State highway agency. That department, commission, board, or
official of any State charged by its laws with the responsibility for
highway construction. The term State would be considered equivalent to
State highway agency if the context so implies.
(m) Program area officials. The officials in FHWA who are
responsible for carrying out technical program responsibilities.
(n) Recipient. Any State, territory, possession, the District of
Columbia, Puerto Rico, or any political subdivision, or instrumentality
thereof, or any public or private agency, institution, or organization,
or other entity, or any individual, in any State, territory, possession,
the District of Columbia, or Puerto Rico, to whom Federal assistance is
extended, either directly or through another recipient, for any program.
Recipient includes any successor, assignee, or transferee thereof. The
term recipient does not include any ultimate beneficiary under any such
program.
(o) Secretary. The Secretary of Transportation as set forth in 49
CFR 21.17(g)(3) or the Federal Highway Administrator to whom the
Secretary has delegated his authority in specific cases.
(p) Title VI Program. The system of requirements developed to
implement Title VI of the Civil Rights Act of 1964. References in this
part to Title VI requirements and regulations shall not be limited to
only Title VI of the Civil Rights Act of 1964. Where appropriate, this
term also refers to the civil rights provisions of other Federal
statutes to the extent that they prohibit discrimination on the grounds
of race, color, sex, or national origin in programs receiving Federal
financial assistance of the type subject to Title VI itself. These
Federal statutes are:
(1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-d4 (49
CFR part 21; the standard DOT Title VI assurances signed by each State
pursuant to DOT Order 1050.2; Executive Order 11764; 28 CFR 50.3);
(2) Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (42 U.S.C. 4601-4655) (49 CFR part 25; Pub. L. 91-
646);
(3) Title VIII of the Civil Rights Act of 1968, amended 1974 (42
U.S.C. 3601- 3619);
(4) 23 U.S.C. 109(h);
(5) 23 U.S.C. 324;
(6) Subsequent Federal-Aid Highway Acts and related statutes.
Sec. 200.7 FHWA Title VI policy.
It is the policy of the FHWA to ensure compliance with Title VI of
the Civil Rights Act of 1964; 49 CFR part 21; and related statutes and
regulations.
Sec. 200.9 State highway agency responsibilities.
(a) State assurances in accordance with Title VI of the Civil Rights
Act of 1964.
(1) Title 49, CFR part 21 (Department of Transportation Regulations
for the implementation of Title VI of the Civil Rights Act of 1964)
requires assurances from States that no person in the United States
shall, on the grounds of race, color, or national origin, be excluded
from participation in, be denied
[[Page 30]]
the benefits of, or be otherwise subjected to discrimination under any
program or activity for which the recipient receives Federal assistance
from the Department of Transportation, including the Federal Highway
Administration.
(2) Section 162a of the Federal-Aid Highway Act of 1973 (section
324, title 23 U.S.C.) requires that there be no discrimination on the
ground of sex. The FHWA considers all assurances heretofore received to
have been amended to include a prohibition against discrimination on the
ground of sex. These assurances were signed by the 50 States, the
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and
American Samoa. The State highway agency shall submit a certification to
the FHWA indicating that the requirements of section 162a of the
Federal-Aid Highway Act of 1973 have been added to its assurances.
(3) The State highway agency shall take affirmative action to
correct any deficiencies found by the FHWA within a reasonable time
period, not to exceed 90 days, in order to implement Title VI compliance
in accordance with State-signed assurances and required guidelines. The
head of the State highway agency shall be held responsible for
implementing Title VI requirements.
(4) The State program area officials and Title VI Specialist shall
conduct annual reviews of all pertinent program areas to determine the
effectiveness of program area activities at all levels.
(b) State actions. (1) Establish a civil rights unit and designate a
coordinator who has a responsible position in the organization and easy
access to the head of the State highway agency. This unit shall contain
a Title VI Equal Employment Opportunity Coordinator or a Title VI
Specialist, who shall be responsible for initiating and monitoring Title
VI activities and preparing required reports.
(2) Adequately staff the civil rights unit to effectively implement
the State civil rights requirements.
(3) Develop procedures for prompt processing and disposition of
Title VI and Title VIII complaints received directly by the State and
not by FHWA. Complaints shall be investigated by State civil rights
personnel trained in compliance investigations. Identify each
complainant by race, color, sex, or national origin; the recipient; the
nature of the complaint; the dates the complaint was filed and the
investigation completed; the disposition; the date of the disposition;
and other pertinent information. Each recipient (State) processing Title
VI complaints shall be required to maintain a similar log. A copy of the
complaint, together with a copy of the State's report of investigation,
shall be forwarded to the FHWA division office within 60 days of the
date the complaint was received by the State.
(4) Develop procedures for the collection of statistical data (race,
color, religion, sex, and national origin) of participants in, and
beneficiaries of State highway programs, i.e., relocatees, impacted
citizens and affected communities.
(5) Develop a program to conduct Title VI reviews of program areas.
(6) Conduct annual reviews of special emphasis program areas to
determine the effectiveness or program area activities at all levels.
(7) Conduct Title VI reviews of cities, counties, consultant
contractors, suppliers, universities, colleges, planning agencies, and
other recipients of Federal-aid highway funds.
(8) Review State program directives in coordination with State
program officials and, where applicable, include Title VI and related
requirements.
(9) The State highway agency Title VI designee shall be responsible
for conducting training programs on Title VI and related statutes for
State program and civil rights officials.
(10) Prepare a yearly report of Title VI accomplishments for the
past year and goals for the next year.
(11) Beginning October 1, 1976, each State highway agency shall
annually submit an updated Title VI implementing plan to the Regional
Federal Highway Administrator for approval or disapproval.
(12) Develop Title VI information for dissemination to the general
public and, where appropriate, in languages other than English.
[[Page 31]]
(13) Establishing procedures for pregrant and postgrant approval
reviews of State programs and applicants for compliance with Title VI
requirements; i.e., highway location, design and relocation, and persons
seeking contracts with the State.
(14) Establish procedures to identify and eliminate discrimination
when found to exist.
(15) Establishing procedures for promptly resolving deficiency
status and reducing to writing the remedial action agreed to be
necessary, all within a period not to exceed 90 days.
Sec. 200.11 Procedures for processing Title VI reviews.
(a) If the regional Title VI review report contains deficiencies and
recommended actions, the report shall be forwarded by the Regional
Federal Highway Administrator to the Division Administrator, who will
forward it with a cover letter to the State highway agency for
corrective action.
(b) The division office, in coordination with the Regional Civil
Rights Officer, shall schedule a meeting with the recipient, to be held
not later than 30 days from receipt of the deficiency report.
(c) Recipients placed in a deficiency status shall be given a
reasonable time, not to exceed 90 days after receipt of the deficiency
letter, to voluntarily correct deficiencies.
(d) The Division Administrator shall seek the cooperation of the
recipient in correcting deficiencies found during the review. The FHWA
officials shall also provide the technical assistance and guidance
needed to aid the recipient to comply voluntarily.
(e) When a recipient fails or refuses to voluntarily comply with
requirements within the time frame allotted, the Division Administrator
shall submit to the Regional Administrator two copies of the case file
and a recommendation that the State be found in noncompliance.
(f) The Office of Civil Rights shall review the case file for a
determination of concurrence or noncurrence with a recommendation to the
Federal Highway Administrator. Should the Federal Highway Administrator
concur with the recommendation, the file is referred to the Department
of Transportation, Office of the Secretary, for appropriate action in
accordance with 49 CFR.
Sec. 200.13 Certification acceptance.
Title VI and related statutes requirements apply to all State
highway agencies. States and FHWA divisions operating under
certification acceptance shall monitor the Title VI aspects of the
program by conducting annual reviews and submitting required reports in
accordance with guidelines set forth in this document.
PART 230--EXTERNAL PROGRAMS--Table of Contents
Subpart A--Equal Employment Opportunity on Federal and Federal-Aid
Construction Contracts (Including Supportive Services)
Sec.
230.101 Purpose.
230.103 Definitions.
230.105 Applicability.
230.107 Policy.
230.109 Implementation of specific Equal Employment Opportunity
requirements.
230.111 Implementation of special requirements for the provision of on-
the-job training.
230.113 Implementation of supportive services.
230.115 Special contract requirements for ``Hometown'' or ``Imposed''
Plan areas.
230.117 Reimbursement procedures (Federal-aid highway construction
projects only).
230.119 Monitoring of supportive services.
230.121 Reports.
Appendix A to Subpart A of Part 230--Special Provisions
Appendix B to Subpart A of Part 230--Training Special Provisions
Appendix C to Subpart A of Part 230--Federal-Aid Highway Contractors
Annual EEO Report (Form PR-1391)
Appendix D to Subpart A of Part 230--Federal-Aid Highway Construction
Summary of Employment Data (Form PR-1392)
Appendixes E-F to Subpart A of Part 230 [Reserved]
Appendix G to Subpart A of Part 230--Special Reporting Requirements for
``Hometown'' or ``Imposed'' Plan Areas
Subpart B--Supportive Services for Minority, Disadvantaged, and Women
Business Enterprises
230.201 Purpose.
230.202 Definitions.
[[Page 32]]
230.203 Policy.
230.204 Implementation of supportive services.
230.205 Supportive services funds obligation.
230.206 Monitoring supportive services.
230.207 Sources of assistance.
Subpart C--State Highway Agency Equal Employment Opportunity Programs
230.301 Purpose.
230.303 Applicability.
230.305 Definitions.
230.307 Policy.
230.309 Program format.
230.311 State responsibilities.
230.313 Approval procedure.
Appendix A to Subpart C of Part 230--State Highway Agency Equal
Employment Opportunity Programs
Subpart D--Construction Contract Equal Opportunity Compliance Procedures
230.401 Purpose.
230.403 Applicability.
230.405 Administrative responsibilities.
230.407 Definitions.
230.409 Contract compliance review procedures.
230.411 Guidance for conducting reviews.
230.413 Review reports.
230.415 Consolidated compliance reviews.
Appendix A to Subpart D of Part 230--Sample Show Cause Notice
Appendix B to Subpart D of Part 230--Sample Corrective Action Plan
Appendix C to Subpart D of Part 230--Sample Show Cause Rescission
Appendix D to Subpart D of Part 230--Equal Opportunity Compliance Review
Process Flow Chart
Authority: 23 U.S.C. 101, 140, and 315; 42 U.S.C. 2000d et seq.; 49
CFR 1.48 and 60-1.
Source: 40 FR 28053, July 3, 1975, unless otherwise noted.
Subpart A--Equal Employment Opportunity on Federal and Federal-Aid
Construction Contracts (Including Supportive Services)
Sec. 230.101 Purpose.
The purpose of the regulations in this subpart is to prescribe the
policies, procedures, and guides relative to the implementation of an
equal employment opportunity program on Federal and Federal-aid highway
construction contracts, except for those contracts awarded under 23
U.S.C. 117, and to the preparation and submission of reports pursuant
thereto.
Sec. 230.103 Definitions.
For purposes of this subpart--
Administrator means the Federal Highway Administrator.
Areawide Plan means an affirmative action plan to increase minority
utilization of crafts in a specified geographical area pursuant to
Executive Order 11246, and taking the form of either a ``Hometown'' or
an ``Imposed'' plan.
Bid conditions means contract requirements which have been issued by
OFCC for purposes of implementing a Hometown Plan.
Division Administrator means the chief Federal Highway
Administration (FHWA) official assigned to conduct FHWA business in a
particular State, the District of Columbia, or the Commonwealth of
Puerto Rico.
Division Equal Opportunity Officer means an individual with staff
level responsibilities and necessary authority by which to operate as an
Equal Opportunity Officer in a Division office. Normally the Equal
Opportunity Officer will be a full-time civil rights specialist serving
as staff assistant to the Division Administrator.
Hometown Plan means a voluntary areawide plan which was developed by
representatives of affected groups (usually labor unions, minority
organizations, and contractors), and subsequently approved by the Office
of Federal Contract Compliance (OFCC), for purposes of implementing the
equal employment opportunity requirements pursuant to Executive Order
11246, as amended.
Imposed Plan means an affirmative action requirement for a specified
geographical area made mandatory by OFCC and, in some areas, by the
courts.
Journeyman means a person who is capable of performing all the
duties within a given job classification or craft.
State highway agency means that department, commission, board, or
official of any State charged by its laws with the responsibility for
highway construction. The term State should be
[[Page 33]]
considered equivalent to State highway agency.
Suggested minimum annual training goals means goals which have been
assigned to each State highway agency annually for the purpose of
specifying training positions on selected Federal-aid highway
construction projects.
Supportive services means those services provided in connection with
approved on-the-job training programs for highway construction workers
and highway contractors which are designed to increase the overall
effectiveness of training programs through the performance of functions
determined to be necessary in connection with such programs, but which
are not generally considered as comprising part of actual on-the-job
craft training.
Trainee means a person who received on-the-job training, whether
through an apprenticeship program or other programs approved or accepted
by the FHWA.
[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]
Sec. 230.105 Applicability.
(a) Federal-aid highway construction projects. This subpart applies
to all Federal-aid highway construction projects and to Appalachian
highway construction projects and other State supervised cooperative
highway construction projects except:
(1) Federal-aided highway construction projects being constructed
pursuant to 23 U.S.C. 117; and
(2) Those projects located in areas where the Office of Federal
Contract Compliance has implemented an ``Imposed'' or a ``Hometown''
Plan, except for those requirements pertaining to specific provisions
involving on-the-job training and those provisions pertaining to
supportive services and reporting requirements.
(b) Direct Federal highway construction projects. This subpart
applies to all direct Federal highway construction projects except:
(1) For those provisions relating to the special requirements for
the provision of supportive services; and
(2) For those provisions relating to implementation of specific
equal employment opportunity requirements in areas where the Office of
Federal Contract Compliance has implemented an ``Imposed'' or
``Hometown'' plan.
Sec. 230.107 Policy.
(a) Direct Federal and Federal-aid highway construction projects. It
is the policy of the FHWA to require that all direct Federal and
Federal-aid highway construction contracts include the same specific
equal employment opportunity requirements. It is also the policy to
require that all direct Federal and Federal-aid highway construction
subcontracts of $10,000 or more (not including contracts for supplying
materials) include these same requirements.
(b) Federal-aid highway construction projects. It is the policy of
the FHWA to require full utilization of all available training and
skill-improvement opportunities to assure the increased participation of
minority groups and disadvantaged persons and women in all phases of the
highway construction industry. Moreover, it is the policy of the Federal
Highway Administration to encourage the provision of supportive services
which will increase the effectiveness of approved on-the-job training
programs conducted in connection with Federal-aid highway construction
projects.
Sec. 230.109 Implementation of specific Equal Employment Opportunity requirements.
(a) Federal-aid highway construction projects. The special
provisions set forth in appendix A shall be included in the advertised
bidding proposal and made part of the contract for each contract and
each covered Federal-aid highway construction subcontract.
(b) Direct Federal highway construction projects. Advertising, award
and contract administration procedures for direct Federal highway
construction contracts shall be as set forth in Federal Acquisition
Regulations (48 CFR, chapter 1, section 22.803(c)). In order to obtain
information required by 48 CFR, chapter 1, Sec. 22.804-2(c), the
following requirement shall be included at the end of the bid schedule
in the proposal and contract assembly:
I expect to employ the following firms as subcontractors on this
project: (Naming subcontractors at this time does not constitute
[[Page 34]]
a binding commitment on the bidder to retain such subcontractors, nor
will failure to enter names affect the contract award):
Name____________________________________________________________________
Address_________________________________________________________________
Name____________________________________________________________________
Address_________________________________________________________________
[40 FR 28053, July 3, 1975, as amended at 51 FR 22800, June 23, 1986]
Sec. 230.111 Implementation of special requirements for the provision of on-the-job training.
(a) The State highway agency shall determine which Federal-aid
highway construction contracts shall include the ``Training Special
Provisions'' (appendix B) and the minimum number of trainees to be
specified therein after giving appropriate consideration to the
guidelines set forth in Sec. 230.111(c). The ``Training Special
Provisions'' shall supersede section 7(b) of the Special Provisions
(appendix A) entitled ``Specific Equal Employment Opportunity
Responsibilities.'' Minor wording revisions will be required to the
``Training Special Provisions'' in areas having ``Hometown'' or
``Imposed Plan'' requirements.
(b) The Washington Headquarters shall establish and publish annually
suggested minimum training goals. These goals will be based on the
Federal-aid apportioned amounts and the minority population. A State
will have achieved its goal if the total number of training slots on
selected federally aided highway construction contracts which have been
awarded during each 12-month period equals or exceeds the State's
suggested minimum annual goal. In the event a State highway agency does
not attain its goal during a calendar year, the State highway agency at
the end of the calendar year shall inform the Administrator of the
reasons for its inability to meet the suggested minimum number of
training slots and the steps to be taken to achieve the goal during the
next calendar year. The information is to be submitted not later than 30
days from the end of the calendar year and should be factual, and should
not only indicate the situations occurring during the year but show the
project conditions at least through the coming year. The final
determination will be made on what training goals are considered to be
realistic based on the information submitted by a State.
(c) The following guidelines shall be utilized by the State highway
agency in selecting projects and determining the number of trainees to
be provided training therein:
(1) Availability of minorities, women, and disadvantaged for
training.
(2) The potential for effective training.
(3) Duration of the contract.
(4) Dollar value of the contract.
(5) Total normal work force that the average bidder could be
expected to use.
(6) Geographic location.
(7) Type of work.
(8) The need for additional journeymen in the area.
(9) Recognition of the suggested minimum goal for the State.
(10) A satisfactory ratio of trainees to journeymen expected to be
on the contractor's work force during normal operations (considered to
fall between 1:10 and 1:4).
(d) Training programs which are established shall be approved only
if they meet the standards set forth in appendix B with regard to:
(1) The primary objectives of training and upgrading minority group
workers, women and disadvantaged persons.
(2) The development of full journeymen.
(3) The minimum length and type of training.
(4) The minimum wages of trainees.
(5) Trainees certifications.
(6) Keeping records and furnishing reports.
(e)(1) Training programs considered by a State highway agency to
meet the standards under this directive shall be submitted to the FHWA
division Administrator with a recommendation for approval.
(2) Employment pursuant to training programs approved by the FHWA
division Administrator will be exempt from the minimum wage rate
provisions of section 113 of title 23 U.S.C. Approval, however, shall
not be given to training programs which provide for employment of
trainees at wages less than those required by the Special Training
Provisions. (Appendix B.)
[[Page 35]]
(f)(1) Apprenticeship programs approved by the U.S. Department of
Labor as of the date of proposed use by a Federal-aid highway contractor
or subcontractor need not be formally approved by the State highway
agency or the FHWA division Administrator. Such programs, including
their minimum wage provisions, are acceptable for use, provided they are
administered in a manner reasonably calculated to meet the equal
employment opportunity obligations of the contractor.
(2) Other training programs approved by the U.S. Department of Labor
as of the date of proposed use by a Federal-aid highway contractor or
subcontractor are also acceptable for use without the formal approval of
the State highway agency or the division Administrator provided:
(i) The U.S. Department of Labor has clearly approved the program
aspects relating to equal employment opportunity and the payment of
trainee wage rates in lieu of prevailing wage rates.
(ii) They are reasonably calculated to qualify the average trainees
for journeyman status in the classification concerned by the end of the
training period.
(iii) They are administered in a manner calculated to meet the equal
employment obligations of the contractors.
(g) The State highway agencies have the option of permitting
Federal-aid highway construction contractors to bid on training to be
given under this directive. The following procedures are to be utilized
by those State highway agencies that elect to provide a bid item for
training:
(1) The number of training positions shall continue to be specified
in the Special Training Provisions. Furthermore, this number should be
converted into an estimated number of hours of training which is to be
used in arriving at the total bid price for the training item. Increases
and decreases from the estimated amounts would be handled as overruns or
underruns;
(2) A section concerning the method of payment should be included in
the Special Training Provisions. Some offsite training is permissible as
long as the training is an integral part of an approved training program
and does not comprise a substantial part of the overall training.
Furthermore, the trainee must be concurrently employed on a federally
aided highway construction project subject to the Special Training
Provisions attached to this directive. Reimbursement for offsite
training may only be made to the contractor where he does one or more of
the following: Contributes to the cost of the training, provides the
instruction to the trainee, or pays the trainee's wages during the
offsite training period;
(3) A State highway agency may modify the special provisions to
specify the numbers to be trained in specific job classifications;
(4) A State highway agency can specify training standards provided
any prospective bidder can use them, the training standards are made
known in the advertised specifications, and such standards are found
acceptable by FHWA.
[40 FR 28053, July 3, 1975; 40 FR 57358, Dec. 9, 1975, as amended at 41
FR 3080, Jan. 21, 1976]
Sec. 230.113 Implementation of supportive services.
(a) The State highway agency shall establish procedures, subject to
the availability of funds under 23 U.S.C. 140(b), for the provision of
supportive services in support of training programs approved under this
directive. Funds made available to implement this paragraph shall not be
used to finance the training of State highway agency employees or to
provide services in support of such training. State highway agencies are
not required to match funds allocated to them under this section.
(b) In determining the types of supportive services to be provided
which will increase the effectiveness of approved training programs.
State highway agencies shall give preference to the following types of
services in the order listed:
(1) Services related to recruiting, counseling, transportation,
physical examinations, remedial training, with special emphasis upon
increasing training opportunities for members of minority groups and
women;
[[Page 36]]
(2) Services in connection with the administration of on-the-job
training programs being sponsored by individual or groups of contractors
and/or minority groups and women's groups;
(3) Services designed to develop the capabilities of prospective
trainees for undertaking on-the-job training;
(4) Services in connection with providing a continuation of training
during periods of seasonal shutdown;
(5) Followup services to ascertain outcome of training being
provided.
(c) State highway agencies which desire to provide or obtain
supportive services other than those listed above shall submit their
proposals to the Federal Highway Administration for approval. The
proposal, together with recommendations of the division and regional
offices shall be submitted to the Administrator for appropriate action.
(d) When the State highway agency provides supportive services by
contract, formal advertising is not required by the FHWA, however, the
State highway agency shall solicit proposals from such qualified sources
as will assure the competitive nature of the procurement. The evaluation
of proposals by the State highway agency must include consideration of
the proposer's ability to effect a productive relationship with
contractors, unions (if appropriate), minority and women groups,
minority and women trainees, and other persons or organizations whose
cooperation and assistance will contribute to the successful performance
of the contract work.
(e) In the selection of contractors to provide supportive services,
State highway agencies shall make conscientious efforts to search out
and utilize the services of qualified minority or women organizations,
or minority or women business enterprises.
(f) As a minimum, State highway agency contracts to obtain
supportive services shall include the following provisions:
(1) A statement that a primary purpose of the supportive services is
to increase the effectiveness of approved on-the-job training programs,
particularly their effectiveness in providing meaningful training
opportunities for minorities, women, and the disadvantaged on Federal-
aid highway projects;
(2) A clear and complete statement of the services to be provided
under the contract, such as services to construction contractors,
subcontractors, and trainees, for recruiting, counseling, remedial
educational training, assistance in the acquisition of tools, special
equipment and transportation, followup procedures, etc.;
(3) The nondiscrimination provisions required by Title VI of the
Civil Rights Act of 1964 as set forth in FHWA Form PR-1273, and a
statement of nondiscrimination in employment because of race, color,
religion, national origin or sex;
(4) The establishment of a definite perriod of contract performance
together with, if appropriate, a schedule stating when specific
supportive services are to be provided;
(5) Reporting requirements pursuant to which the State highway
agency will receive monthly or quarterly reports containing sufficient
statistical data and narrative content to enable evaluation of both
progress and problems;
(6) A requirement that the contractor keep track of trainees
receiving training on Federal-aid highway construction projects for up
to 6 months during periods when their training is interrupted. Such
contracts shall also require the contractor to conduct a 6 month
followup review of the employment status of each graduate who completes
an on-the-job training program on a Federal-aid highway construction
project subsequent to the effective date of the contract for supportive
services.
(7) The basis of payment;
(8) An estimated schedule for expenditures;
(9) The right of access to contractor and subcontractor records and
the right to audit shall be granted to authorize State highway agency
and FHWA officials;
(10) Noncollusion certification;
(11) A requirement that the contractor provide all information
necessary to support progress payments if such are provided for in the
contract;
(12) A termination clause.
(g) The State highway agency is to furnish copies of the reports
received
[[Page 37]]
under paragraph (b)(5) of this section, to the division office.
[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]
Sec. 230.115 Special contract requirements for ``Hometown'' or ``Imposed'' Plan areas.
Direct Federal and Federal-aid contracts to be performed in
``Hometown'' or ``Imposed'' Plan areas will incorporate the special
provision set forth in appendix G.
Sec. 230.117 Reimbursement procedures (Federal-aid highway construction projects only).
(a) On-the-job special training provisions. State highway agencies
will be reimbursed on the same pro-rata basis as the construction costs
of the Federal-aid project.
(b) Supportive services. (1) The State highway agency must keep a
separate account of supportive services funds since they cannot be
interchanged with regular Federal-aid funds. In addition, these funds
may not be expended in a manner that would provide for duplicate payment
of Federal or Federal-aid funds for the same service.
(2) Where a State highway agency does not obligate all its funds
within the time specified in the particular year's allocation directive,
the funds shall revert to the FHWA Headquarters Office to be made
available for use by other State highway agencies, taking into
consideration each State's need for and ability to use such funds.
Sec. 230.119 Monitoring of supportive services.
Supportive services procured by a State highway agency shall be
monitored by both the State highway agency and the division office.
Sec. 230.121 Reports.
(a) Employment reports on Federal-aid highway construction contracts
not subject to ``Hometown'' or ``Imposed'' plan requirements.
(1) Paragraph 10c of the special provisions (appendix A) sets forth
specific reporting requirements. FHWA Form PR-1391, Federal-Aid Highway
Construction Contractors Annual EEO Report, (appendix C) and FHWA Form
PR 1392, Federal-Aid Highway Construction Summary of Employment Data
(including minority breakdown) for all Federal-Aid Highway Projects for
month ending July 31st, 19--, (appendix D) are to be used to fulfill
these reporting requirements.
(2) Form PR 1391 is to be completed by each contractor and each
subcontractor subject to this part for every month of July during which
work is performed, and submitted to the State highway agency. A separate
report is to be completed for each covered contract or subcontract. The
employment data entered should reflect the work force on board during
all or any part of the last payroll period preceding the end of the
month. The State highway agency is to forward a single copy of each
report to the FHWA division office.
(3) Form PR 1392 is to be completed by the State highway agencies,
summarizing the reports on PR 1391 for the month of July received from
all active contractors and subcontractors. Three (3) copies of completed
Forms PR 1392 are to be forwarded to the division office.
(b) Employment reports on direct Federal highway construction
contracts not subject to ``Hometown'' or ``Imposed'' plan requirements.
Forms PR 1391 (appendix C) and PR 1392 (appendix D) shall be used for
reporting purposes as prescribed in Sec. 230.121(a).
(c) Employment reports on direct Federal and Federal-aid highway
construction contracts subject to ``Hometown'' or ``Imposed'' plan
requirements.
(1) Reporting requirements for direct Federal and Federal-aid
highway construction projects located in areas where ``Hometown'' or
``Imposed'' plans are in effect shall be in accordance with those issued
by the U.S. Department of Labor, Office of Federal Contract Compliance.
(2) In order that we may comply with the U.S. Senate Committee on
Public Works' request that the Federal Highway Administration submit a
report annually on the status of the equal employment opportunity
program, Form PR 1391 is to be completed annually by
[[Page 38]]
each contractor and each subcontractor holding contracts or subcontracts
exceeding $10,000 except as otherwise provided for under 23 U.S.C. 117.
The employment data entered should reflect the work force on board
during all or any part of the last payroll period preceding the end of
the month of July.
(d) [Reserved]
(e) Reports on supportive services contracts. The State highway
agency is to furnish copies of the reports received from supportive
services contractors to the FHWA division office which will furnish a
copy to the regional office.
[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978; 61
FR 14616, Apr. 3, 1996]
Appendix A to Subpart A of Part 230--Special Provisions
specific equal employment opportunity responsibilities
1. General. a. Equal employment opportunity requirements not to
discriminate and to take affirmative action to assure equal employment
opportunity as required by Executive Order 11246 and Executive Order
11375 are set forth in Required Contract, Provisions (Form PR-1273 or
1316, as appropriate) and these Special Provisions which are imposed
pursuant to section 140 of title 23 U.S.C., as established by section 22
of the Federal-Aid Highway Act of 1968. The requirements set forth in
these Special Provisions shall constitute the specific affirmative
action requirements for project activities under this contract and
supplement the equal employment opportunity requirements set forth in
the Required Contract Provisions.
b. The contractor will work with the State highway agencies and the
Federal Government in carrying out equal employment opportunity
obligations and in their review of his/her activities under the
contract.
c. The contractor and all his/her subcontractors holding
subcontracts not including material suppliers, of $10,000 or more, will
comply with the following minimum specific requirement activities of
equal employment opportunity: (The equal employment opportunity
requirements of Executive Order 11246, as set forth in volume 6, chapter
4, section 1, subsection 1 of the Federal-Aid Highway Program Manual,
are applicable to material suppliers as well as contractors and
subcontractors.) The contractor will include these requirements in every
subcontract of $10,000 or more with such modification of language as is
necessary to make them binding on the subcontractor.
2. Equal Employment Opportunity Policy. The contractor will accept
as his operating policy the following statement which is designed to
further the provision of equal employment opportunity to all persons
without regard to their race, color, religion, sex, or national origin,
and to promote the full realization of equal employment opportunity
through a positive continuing program:
It is the policy of this Company to assure that applicants are
employed, and that employees are treated during employment, without
regard to their race, religion, sex, color, or national origin. Such
action shall include: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or termination; rates of
pay or other forms of compensation; and selection for training,
including apprenticeship, preapprenticeship, and/or on-the-job training.
3. Equal Employment Opportunity Officer. The contractor will
designate and make known to the State highway agency contracting
officers and equal employment opportunity officer (hereinafter referred
to as the EEO Officer) who will have the responsibility for and must be
capable of effectively administering and promoting an active contractor
program of equal employment opportunity and who must be assigned
adequate authority and responsibility to do so.
4. Dissemination of Policy. a. All members of the contractor's staff
who are authorized to hire, supervise, promote, and discharge employees,
or who recommend such action, or who are substantially involved in such
action, will be made fully cognizant of, and will implement, the
contractor's equal employment opportunity policy and contractual
responsibilities to provide equal employment opportunity in each grade
and classification of employment. To ensure that the above agreement
will be met, the following actions will be taken as a minimum:
(1) Periodic meetings of supervisory and personnel office employees
will be conducted before the start of work and then not less often than
once every six months, at which time the contractor's equal employment
opportunity policy and its implementation will be reviewed and
explained. The meetings will be conducted by the EEO Officer or other
knowledgeable company official.
(2) All new supervisory or personnel office employees will be given
a thorough indoctrination by the EEO Officer or other knowledgeable
company official, covering all major aspects of the contractor's equal
employment opportunity obligations within thirty days following their
reporting for duty with the contractor.
(3) All personnel who are engaged in direct recruitment for the
project will be instructed by the EEO Officer or appropriate
[[Page 39]]
company official in the contractor's procedures for locating and hiring
minority group employees.
b. In order to make the contractor's equal employment opportunity
policy known to all employees, prospective employees and potential
sources of employees, i.e., schools, employment agencies, labor unions
(where appropriate), college placement officers, etc., the contractor
will take the following actions:
(1) Notices and posters setting forth the contractor's equal
employment opportunity policy will be placed in areas readily accessible
to employees, applicants for employment and potential employees.
(2) The contractor's equal employment opportunity policy and the
procedures to implement such policy will be brought to the attention of
employees by means of meetings, employee handbooks, or other appropriate
means.
5. Recruitment. a. When advertising for employees, the contractor
will include in all advertisements for employees the notation: ``An
Equal Opportunity Employer.'' All such advertisements will be published
in newspapers or other publications having a large circulation among
minority groups in the area from which the project work force would
normally be derived.
b. The contractor will, unless precluded by a valid bargaining
agreement, conduct systematic and direct recruitment through public and
private employee referral sources likely to yield qualified minority
group applicants, including, but not limited to, State employment
agencies, schools, colleges and minority group organizations. To meet
this requirement, the contractor will, through his EEO Officer, identify
sources of potential minority group employees, and establish with such
identified sources procedures whereby minority group applicants may be
referred to the contractor for employment consideration.
In the event the contractor has a valid bargaining agreement
providing for exclusive hiring hall referrals, he is expected to observe
the provisions of that agreement to the extent that the system permits
the contractor's compliance with equal employment opportunity contract
provisions. (The U.S. Department of Labor has held that where
implementation of such agreements have the effect of discriminating
against minorities or women, or obligates the contractor to do the same,
such implementation violates Executive Order 11246, as amended.)
c. The contractor will encourage his present employees to refer
minority group applicants for employment by posting appropriate notices
or bulletins in areas accessible to all such employees. In addition,
information and procedures with regard to referring minority group
applicants will be discussed with employees.
6. Personnel Actions. Wages, working conditions, and employee
benefits shall be established and administered, and personnel actions of
every type, including hiring, upgrading, promotion, transfer, demotion,
layoff, and termination, shall be taken without regard to race, color,
religion, sex, or national origin. The following procedures shall be
followed:
a. The contractor will conduct periodic inspections of project sites
to insure that working conditions and employee facilities do not
indicate discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages
paid within each classification to determine any evidence of
discriminatory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
discrimination. Where evidence is found, the contractor will promptly
take corrective action. If the review indicates that the discrimination
may extend beyond the actions reviewed, such corrective action shall
include all affected persons.
d. The contractor will promptly investigate all complaints of
alleged discrimination made to the contractor in connection with his
obligations under this contract, will attempt to resolve such
complaints, and will take appropriate corrective action within a
reasonable time. If the investigation indicates that the discrimination
may affect persons other than the complainant, such corrective action
shall include such other persons. Upon completion of each investigation,
the contractor will inform every complainant of all of his avenues of
appeal.
7. Training and Promotion. a. The contractor will assist in
locating, qualifying, and increasing the skills of minority group and
women employees, and applicants for employment.
b. Consistent with the contractor's work force requirements and as
permissible under Federal and State regulations, the contractor shall
make full use of training programs, i.e., apprenticeship, and on-the-job
training programs for the geographical area of contract performance.
Where feasible, 25 percent of apprentices or trainees in each occupation
shall be in their first year of apprenticeship or training. In the event
the Training Special Provision is provided under this contract, this
subparagraph will be superseded as indicated in Attachment 2.
c. The contractor will advise employees and applicants for
employment of available training programs and entrance requirements for
each.
d. The contractor will periodically review the training and
promotion potential of minority group and women employees and will
encourage eligible employees to apply for such training and promotion.
[[Page 40]]
8. Unions. If the contractor relies in whole or in part upon unions
as a source of employees, the contractor will use his/her best efforts
to obtain the cooperation of such unions to increase opportunities for
minority groups and women within the unions, and to effect referrals by
such unions of minority and female employees. Actions by the contractor
either directly or through a contractor's association acting as agent
will include the procedures set forth below:
a. The contractor will use best efforts to develop, in cooperation
with the unions, joint training programs aimed toward qualifying more
minority group members and women for membership in the unions and
increasing the skills of minority group employees and women so that they
may qualify for higher paying employment.
b. The contractor will use best efforts to incorporate an equal
employment opportunity clause into each union agreement to the end that
such union will be contractually bound to refer applicants without
regard to their race, color, religion, sex, or national origin.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the extent such
information is within the exclusive possession of the labor union and
such labor union refuses to furnish such information to the contractor,
the contractor shall so certify to the State highway department and
shall set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a
reasonable flow of minority and women referrals within the time limit
set forth in the collective bargaining agreement, the contractor will,
through independent recruitment efforts, fill the employment vacancies
without regard to race, color, religion, sex, or national origin; making
full efforts to obtain qualified and/or qualifiable minority group
persons and women. (The U.S. Department of Labor has held that it shall
be no excuse that the union with which the contractor has a collective
bargaining agreement providing for exclusive referral failed to refer
minority employees.) In the event the union referral practice prevents
the contractor from meeting the obligations pursuant to Executive Order
11246, as amended, and these special provisions, such contractor shall
immediately notify the State highway agency.
9. Subcontracting. a. The contractor will use his best efforts to
solicit bids from and to utilize minority group subcontractors or
subcontractors with meaningful minority group and female representation
among their employees. Contractors shall obtain lists of minority-owned
construction firms from State highway agency personnel.
b. The contractor will use his best efforts to ensure subcontractor
compliance with their equal employment opportunity obligations.
10. Records and Reports. a. The contractor will keep such records as
are necessary to determine compliance with the contractor's equal
employment opportunity obligations. The records kept by the contractor
will be designed to indicate:
(1) The number of minority and nonminority group members and women
employed in each work classification on the project.
(2) The progress and efforts being made in cooperation with unions
to increase employment opportunities for minorities and women
(applicable only to contractors who rely in whole or in part on unions
as a source of their work force),
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minority and female employees, and
(4) The progress and efforts being made in securing the services of
minority group subcontractors or subcontractors with meaningful minority
and female representation among their employees.
b. All such records must be retained for a period of three years
following completion of the contract work and shall be available at
reasonable times and places for inspection by authorized representatives
of the State highway agency and the Federal Highway Administration.
c. The contractors will submit an annual report to the State highway
agency each July for the duration of the project, indicating the number
of minority, women, and non-minority group employees currently engaged
in each work classification required by the contract work. This
information is to be reported on Form PR 1391. If on-the-job training is
being required by ``Training Special Provision'', the contractor will be
required to furnish Form FHWA 1409.
[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978.
Correctly redesignated at 46 FR 21156, Apr. 9, 1981]
Appendix B to Subpart A of Part 230--Training Special Provisions
This Training Special Provision supersedes subparagraph 7b of the
Special Provision entitled ``Specific Equal Employment Opportunity
Responsibilities,'' (Attachment 1), and is in implementation of 23
U.S.C. 140(a).
As part of the contractor's equal employment opportunity affirmative
action program training shall be provided as follows:
The contractor shall provide on-the-job training aimed at developing
full journeymen in the type of trade or job classification involved.
The number of trainees to be trained under the special provisions
will be --------
[[Page 41]]
(amount to be filled in by State highway department).
In the event that a contractor subcontracts a portion of the
contract work, he shall determine how many, if any, of the trainees are
to be trained by the subcontractor, provided, however, that the
contractor shall retain the primary responsibility for meeting the
training requirements imposed by this special provision. The contractor
shall also insure that this training special provision is made
applicable to such subcontract. Where feasible, 25 percent of
apprentices or trainees in each occupation shall be in their first year
of apprenticeship or training.
The number of trainees shall be distributed among the work
classifications on the basis of the contractor's needs and the
availability of journeymen in the various classifications within a
reasonable area of recruitment. Prior to commencing construction, the
contractor shall submit to the State highway agency for approval the
number of trainees to be trained in each selected classification and
training program to be used. Furthermore, the contractor shall specify
the starting time for training in each of the classifications. The
contractor will be credited for each trainee employed by him on the
contract work who is currently enrolled or becomes enrolled in an
approved program and will be reimbursed for such trainees as provided
hereinafter.
Training and upgrading of minorities and women toward journeymen
status is a primary objective of this Training Special Provision.
Accordingly, the contractor shall make every effort to enroll minority
trainees and women (e.g., by conducting systematic and direct
recruitment through public and private sources likely to yield minority
and women trainees) to the extent that such persons are available within
a reasonable area of recruitment. The contractor will be responsible for
demonstrating the steps that he has taken in pursuance thereof, prior to
a determination as to whether the contractor is in compliance with this
Training Special Provision. This training commitment is not intended,
and shall not be used, to discriminate against any applicant for
training, whether a member of a minority group or not.
No employee shall be employed as a trainee in any classification in
which he has successfully completed a training course leading to
journeyman status or in which he has been employed as a journeyman. The
contractor should satisfy this requirement by including appropriate
questions in the employee application or by other suitable means.
Regardless of the method used the contractor's records should document
the findings in each case.
The minimum length and type of training for each classification will
be as established in the training program selected by the contractor and
approved by the State highway agency and the Federal Highway
Administration. The State highway agency and the Federal Highway
Administration shall approve a program if it is reasonably calculated to
meet the equal employment opportunity obligations of the contractor and
to qualify the average trainee for journeyman status in the
classification concerned by the end of the training period. Furthermore,
apprenticeship programs registered with the U.S. Department of Labor,
Bureau of Apprenticeship and Training, or with a State apprenticeship
agency recognized by the Bureau and training programs approved but not
necessarily sponsored by the U.S. Department of Labor, Manpower
Administration, Bureau of Apprenticeship and Training shall also be
considered acceptable provided it is being administered in a manner
consistent with the equal employment obligations of Federal-aid highway
construction contracts. Approval or acceptance of a training program
shall be obtained from the State prior to commencing work on the
classification covered by the program. It is the intention of these
provisions that training is to be provided in the construction crafts
rather than clerk-typists or secretarial-type positions. Training is
permissible in lower level management positions such as office
engineers, estimators, timekeepers, etc., where the training is oriented
toward construction applications. Training in the laborer classification
may be permitted provided that significant and meaningful training is
provided and approved by the division office. Some offsite training is
permissible as long as the training is an integral part of an approved
training program and does not comprise a significant part of the overall
training.
Except as otherwise noted below, the contractor will be reimbursed
80 cents per hour of training given an employee on this contract in
accordance with an approved training program. As approved by the
engineer, reimbursement will be made for training persons in excess of
the number specified herein. This reimbursement will be made even though
the contractor receives additional training program funds from other
sources, provided such other does not specifically prohibit the
contractor from receiving other reimbursement. Reimbursement for offsite
training indicated above may only be made to the contractor where he
does one or more of the following and the trainees are concurrently
employed on a Federal-aid project; contributes to the cost of the
training, provides the instruction to the trainee or pays the trainee's
wages during the offsite training period.
No payment shall be made to the contractor if either the failure to
provide the required training, or the failure to hire the trainee as a
journeyman, is caused by the
[[Page 42]]
contractor and evidences a lack of good faith on the part of the
contractor in meeting the requirements of this Training Special
Provision. It is normally expected that a trainee will begin his
training on the project as soon as feasible after start of work
utilizing the skill involved and remain on the project as long as
training opportunities exist in his work classification or until he has
completed his training program. It is not required that all trainees be
on board for the entire length of the contract. A contractor will have
fulfilled his responsibilities under this Training Special Provision if
he has provided acceptable training to the number of trainees specified.
The number trained shall be determined on the basis of the total number
enrolled on the contract for a significant period.
Trainees will be paid at least 60 percent of the appropriate minimum
journeyman's rate specified in the contract for the first half of the
training period, 75 percent for the third quarter of the training
period, and 90 percent for the last quarter of the training period,
unless apprentices or trainees in an approved existing program are
enrolled as trainees on this project. In that case, the appropriate
rates approved by the Departments of Labor or Transportation in
connection with the existing program shall apply to all trainees being
trained for the same classification who are covered by this Training
Special Provision.
The contractor shall furnish the trainee a copy of the program he
will follow in providing the training. The contractor shall provide each
trainee with a certification showing the type and length of training
satisfactorily completed.
The contractor will provide for the maintenance of records and
furnish periodic reports documenting his performance under this Training
Special Provision.
[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr.
9, 1981]
[[Page 43]]
Appendix C to Subpart A of Part 230
[GRAPHIC] [TIFF OMITTED] TC14OC91.000
[[Page 44]]
Appendix D to Subpart A of Part 230
[GRAPHIC] [TIFF OMITTED] TC14OC91.001
General Information and Instructions
This form is to be developed from the ``Contractor's Annual EEO
Report.'' This data is to be compiled by the State and submitted
annually. It should reflect the total employment on all Federal-Aid
Highway Projects in the State as of July 31st. The staffing figures to
be reported should represent the project work force on board in all or
any part of the last payroll period preceding the end of July. The
staffing figures
[[Page 45]]
to be reported in Table A should include journey-level men and women,
apprentices, and on-the-job trainees. Staffing figures to be reported in
Table B should include only apprentices and on-the-job trainees as
indicated.
Entries made for ``Job Categories'' are to be confined to the
listing shown. Miscellaneous job classifications are to be incorporated
in the most appropriate category listed on the form. All employees on
projects should thus be accounted for.
This information will be useful in complying with the U.S. Senate
Committee on Public Works request that the Federal Highway
Administration submit a report annually on the status of the Equal
Employment Opportunity Program, its effectiveness, and progress made by
the States and the Administration in carrying out section 22(A) of the
Federal-Aid Highway Act of 1968. In addition, the form should be used as
a valuable tool for States to evaluate their own programs for ensuring
equal opportunity.
It is requested that States submit this information annually to the
FHWA Divisions no later than September 25.
Line 01--State & Region Code. Enter the 4-digit code from the list
below.
Alabama..................... 01-04 Montana............... 30-08
Alaska...................... 02-10 Nebraska.............. 31-07
Arizona..................... 04-09 Nevada................ 32-09
Arkansas.................... 05-06 New Hampshire......... 33-01
California.................. 06-09 New Jersey............ 34-01
Colorado.................... 08-08 New Mexico............ 35-06
Delaware.................... 10-03 North Carolina........ 37-04
District of Columbia........ 11-03 North Dakota.......... 38-08
Florida..................... 12-04 Ohio.................. 39-05
Georgia..................... 13-04 Oklahoma.............. 40-06
Hawaii...................... 15-09 Oregon................ 41-10
Idaho....................... 16-10 Pennsylvania.......... 42-03
Illinois.................... 17-05 Puerto Rico........... 43-01
Iowa........................ 19-07 South Carolina........ 45-04
Kansas...................... 20-07 South Dakota.......... 46-08
Kentucky.................... 21-04 Tennessee............. 47-04
Louisiana................... 22-06 Texas................. 48-06
Maine....................... 23-01 Utah.................. 49-08
Maryland.................... 24-03 Vermont............... 50-01
Massachusetts............... 25-01 Virginia.............. 51-03
Michigan.................... 26-05 Washington............ 53-10
Minnesota................... 27-05 West Virginia......... 54-03
Mississippi................. 28-04 Wisconsin............. 55-05
Missouri.................... 29-07 Wyoming............... 56-08
(23 U.S.C. sec. 140(a), 315, 49 CFR 1.48(b))
[44 FR 46832, Aug. 8, 1979. Correctly redesignated at 46 FR 21156, Apr.
9, 1981, and amended at 56 FR 4721, Feb. 6, 1991]
Appendixes E-F to Subpart A of Part 230 [Reserved]
Appendix G to Subpart A of Part 230--Special Reporting Requirements for
``Hometown'' or ``Imposed'' Plan Areas
In addition to the reporting requirements set forth elsewhere in
this contract the contractor and the subcontractors holding
subcontracts, not including material suppliers, of $10,000 or more,
shall submit for every month of July during which work is performed,
employment data as contained under Form PR-1391 (appendix C to 23 CFR
part 230) and in accordance with the instructions included thereon.
[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr.
9, 1981]
Subpart B--Supportive Services for Minority, Disadvantaged, and Women
Business Enterprises
Source: 50 FR 51243, Dec. 16, 1985, unless otherwise noted.
Sec. 230.201 Purpose.
To prescribe the policies, procedures, and guidance to develop,
conduct, and administer supportive services assistance programs for
minority, disadvantaged, and women business enterprises.
Sec. 230.202 Definitions.
(a) Minority Business Enterprise, as used in this subpart, refers to
all small businesses which participate in the
[[Page 46]]
Federal-aid highway program as a minority business enterprise (MBE),
women business enterprise (WBE), or disadvantaged business enterprise
(DBE), all defined under 49 CFR part 23. This expanded definition is
used only in this subpart as a simplified way of defining the firms
eligible to benefit from this supportive services program.
(b) Supportive Services means those services and activities provided
in connection with minority business enterprise programs which are
designed to increase the total number of minority businesses active in
the highway program and contribute to the growth and eventual self-
sufficiency of individual minority businesses so that such businesses
may achieve proficiency to compete, on an equal basis, for contracts and
subcontracts.
(c) State highway agency means that department, commission, board,
or official of any State charged by its laws with the responsibility for
highway construction. The term State is considered equivalent to State
highway agency if the context so implies.
Sec. 230.203 Policy.
Based on the provisions of Pub. L. 97-424, dated January 6, 1983, it
is the policy of the Federal Highway Administration (FHWA) to promote
increased participation of minority business enterprises in Federal-aid
highway contracts in part through the development and implementation of
cost effective supportive services programs through the State highway
agencies.
Sec. 230.204 Implementation of supportive services.
(a) Subject to the availability of funds under 23 U.S.C. 140(c), the
State highway agency shall establish procedures to develop, conduct, and
administer minority business enterprise training and assistance programs
specifically for the benefit of women and minority businesses.
Supportive services funds allocated to the States shall not be used to
finance the training of State highway agency employees or to provide
services in support of such training. State highway agencies are not
required to match funds allocated to them under this section. Individual
States are encouraged to be actively involved in the provision of
supportive services. Such involvement can take the form of staff,
funding, and/or direct assistance to augment the supportive services
efforts financed by Federal-aid funds.
(b) State highway agencies shall give preference to the following
types of services:
(1) Services relating to identification, prequalification, and
certification assistance, with emphasis on increasing the total number
of legitimate minority business enterprises participating in the
Federal-aid highway program;
(2) Services in connection with estimating, bidding, and technical
assistance designed to develop and improve the capabilities of minority
businesses and assist them in achieving proficiency in the technical
skills involved in highway construction;
(3) Services designed to develop and improve the immediate and long-
term business management, recordkeeping, and financial accounting
capabilities;
(4) Services to assist minority business enterprises to become
eligible for and to obtain bonding and financial assistance;
(5) Services relating to verification procedures to ensure that only
bona fide minority business enterprises are certified as eligible for
participation in the Federal-aid highway program;
(6) Follow-up services to ascertain the outcome of training and
assistance being provided; and
(7) Other services which contribute to long-term development,
increased opportunities, and eventual self-sufficiency of minority
business enterprises.
(c) A detailed work statement of the supportive services which the
State highway agency considers to meet the guidance under this
regulation and a program plan for meeting the requirements of paragraph
(b) of this section and accomplishing other objectives shall be
submitted to the FHWA for approval.
(d) State highway agencies which desire to provide or obtain
services other than those listed in paragraph (b) of this section shall
submit their proposals to the FHWA for approval.
[[Page 47]]
(e) When the State highway agency provides supportive services by
contract, formal advertising is not required by FHWA; however, the State
highway agency shall solicit proposals from such qualified sources as
will assure the competitive nature of the procurement. The evaluation of
proposals by the State highway agency must include consideration of the
proposer's ability to effect a productive relationship with majority and
minority contractors, contractors' associations, minority groups, and
other persons or organizations whose cooperation and assistance will
increase the opportunities for minority business enterprises to compete
for and perform contracts and subcontracts.
(f) In the selection of contractors to perform supportive services,
State highway agencies shall make conscientious efforts to search out,
and utilize the services of qualified minority or women organizations,
or minority or women enterprises.
(g) As a minimum, State highway agency contracts to obtain
supportive services shall include the following provisions:
(1) A statement that a primary purpose of the supportive services is
to increase the total number of minority firms participating in the
Federal-aid highway program and to contribute to the growth and eventual
self-sufficiency of minority firms;
(2) A statement that supportive services shall be provided only to
those minority business enterprises determined to be eligible for
participation in the Federal-aid highway program in accordance with 49
CFR part 23 and have a work specialty related to the highway
construction industry;
(3) A clear and complete statement of the services to be provided
under the contract, such as technical assistance, managerial assistance,
counseling, certification assistance, and follow-up procedures as set
forth in Sec. 230.204(b) of this part;
(4) The nondiscrimination provisions required by Title VI of the
Civil Rights Act of 1964 as set forth in Form FHWA-1273, Required
Contract Provisions, Federal-Aid Construction Contracts, \1\ and a
statement of nondiscrimination in employment because of race, color,
religion, sex, or national origin;
---------------------------------------------------------------------------
\1\ Form FHWA-1273 is available for inspection and copying at the
locations given in 49 CFR part 7, appendix D, under Document Inspection
Facilities, and at all State highway agencies.
---------------------------------------------------------------------------
(5) The establishment of a definite period of contract performance
together with, if appropriate, a schedule stating when specific
supportive services are to be provided;
(6) Monthly or quarterly reports to the State highway agency
containing sufficient data and narrative content to enable evaluation of
both progress and problems;
(7) The basis of payment;
(8) An estimated schedule for expenditures;
(9) The right of access to records and the right to audit shall be
granted to authorize State highway agency and FHWA officials;
(10) Noncollusion certification;
(11) A requirement that the contractor provide all information
necessary to support progress payments if such are provided for in the
contract; and
(12) A termination clause.
(h) The State highway agency is to furnish copies of the reports
received under paragraph(g)(6) of this section to the FHWA division
office.
[50 FR 51243, Dec. 16, 1985, as amended at 52 FR 36922, Oct. 2, 1987]
Sec. 230.205 Supportive services funds obligation.
Supportive services funds shall be obligated in accordance with the
procedures set forth in Sec. 230.117(b) of this part. The point of
obligation is defined as that time when the FHWA has approved a detailed
work statement for the supportive services.
Sec. 230.206 Monitoring supportive services.
Supportive services programs shall be continually monitored and
evaluated by the State highway agency so that needed improvements can be
identified and instituted. This requires the documentation of valid
effectiveness
[[Page 48]]
measures by which the results of program efforts may be accurately
assessed.
Sec. 230.207 Sources of assistance.
It is the policy of the FHWA that all potential sources of
assistance to minority business enterprises be utilized. The State
highway agency shall take actions to ensure that supportive services
contracts reflect the availability of all sources of assistance in order
to maximize resource utilization and avoid unnecessary duplication.
Subpart C--State Highway Agency Equal Employment Opportunity Programs
Source: 41 FR 28270, July 9, 1976, unless otherwise noted.
Sec. 230.301 Purpose.
The purpose of the regulations in this subpart is to set forth
Federal Highway Administration (FHWA) Federal-aid policy and FHWA and
State responsibilities relative to a State highway agency's internal
equal employment opportunity program and for assuring compliance with
the equal employment opportunity requirements of federally-assisted
highway construction contracts.
Sec. 230.303 Applicability.
The provisions of this subpart are applicable to all States that
receive Federal financial assistance in connection with the Federal-aid
highway program.
Sec. 230.305 Definitions.
As used in this subpart, the following definitions apply:
(a) Affirmative Action Plan means:
(1) With regard to State highway agency work forces, a written
document detailing the positive action steps the State highway agency
will take to assure internal equal employment opportunity (internal
plan).
(2) With regard to Federal-aid construction contract work forces,
the Federal equal employment opportunity bid conditions, to be enforced
by a State highway agency in the plan areas established by the Secretary
of Labor and FHWA special provisions in nonplan areas (external plan).
(b) Equal employment opportunity program means the total State
highway agency program, including the affirmative action plans, for
ensuring compliance with Federal requirements both in State highway
agency internal employment and in employment on Federal-aid construction
projects.
(c) Minority groups. An employee may be included in the minority
group to which he or she appears to belong, or is regarded in the
community as belonging. As defined by U.S. Federal agencies for
employment purposes, minority group persons in the U.S. are identified
as Blacks (not of Hispanic origin), Hispanics, Asian or Pacific
Islanders, and American Indians or Alaskan Natives.
(d) Racial/ethnic identification. For the purpose of this regulation
and any accompanying report requirements, an employee may be included in
the group to which he or she appears to belong, identifies with, or is
regarded in the community as belonging. However, no person should be
counted in more than one racial/ethnic category. The following group
categories will be used:
(1) The category White (not of Hispanic origin): All persons having
origins in any of the original peoples of Europe, North Africa, the
Middle East, or the Indian Subcontinent.
(2) The category Black (not of Hispanic origin): All persons having
origins in any of the Black racial groups.
(3) The category Hispanic: All persons of Mexican, Puerto Rican,
Cuban, Central or South American, or other Spanish culture or origin,
regardless of race.
(4) The category Asian or Pacific Islanders: All persons having
origins in any of the original peoples of the Far East, Southeast Asia,
or the Pacific Islands. This area includes, for example, China, Japan,
Korea, the Philippine Islands, and Samoa.
(5) The category American Indian or Alaskan Native: All persons
having origins in any of the original peoples of North America.
(e) State means any of the 50 States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, and the Virgin Islands.
[[Page 49]]
(f) State highway agency means that department, commission, board,
or official of any State charged by its laws with the responsibility for
highway construction. The term State should be considered equivalent to
State highway agency if the context so implies.
[41 FR 28270, July 9, 1976, as amended at 41 FR 46293, Oct. 20, 1976]
Sec. 230.307 Policy.
Every employee and representative of State highway agencies shall
perform all official equal employment opportunity actions in an
affirmative manner, and in full accord with applicable statutes,
executive orders, regulations, and policies enunciated thereunder, to
assure the equality of employment opportunity, without regard to race,
color, religion, sex, or national origin both in its own work force and
in the work forces of contractors, subcontractors, and material
suppliers engaged in the performance of Federal-aid highway construction
contracts.
Sec. 230.309 Program format.
It is essential that a standardized Federal approach be taken in
assisting the States in development and implementation of EEO programs.
The format set forth in appendix A provides that standardized approach.
State equal employment opportunity programs that meet or exceed the
prescribed standards will comply with basic FHWA requirements.
Sec. 230.311 State responsibilities.
(a) Each State highway agency shall prepare and submit an updated
equal employment opportunity program, one year from the date of approval
of the preceding program by the Federal Highway Administrator, over the
signature of the head of the State highway agency, to the Federal
Highway Administrator through the FHWA Division Administrator. The
program shall consist of the following elements:
(1) The collection and analysis of internal employment data for its
entire work force in the manner prescribed in part II, paragraph III of
appendix A; and
(2) The equal employment opportunity program, including the internal
affirmative action plan, in the format and manner set forth in appendix
A.
(b) In preparation of the program required by Sec. 230.311(a), the
State highway agency shall consider and respond to written comments from
FHWA regarding the preceding program.
Sec. 230.313 Approval procedure.
After reviewing the State highway agency equal employment
opportunity program and the summary analysis and recommendations from
the FHWA regional office, the Washington Headquarters Office of Civil
Rights staff will recommend approval or disapproval of the program to
the Federal Highway Administrator. The State highway agency will be
advised of the Administrator's decision. Each program approval is
effective for a period of one year from date of approval.
Appendix A to Subpart C of Part 230--State Highway Agency Equal
Employment Opportunity Programs
Each State highway agency's (SHA) equal employment opportunity (EEO)
program shall be in the format set forth herein and shall address
Contractor Compliance (part I) and SHA Internal Employment (part II),
including the organizational structure of the SHA total EEO Program
(internal and external).
part i--contractor compliance
I. Organization and structure. A. Statehighway agency EEO
Coordinator (External) and staff support. 1. Describe the organizational
location and responsibilities of the State highway agency EEO
Coordinator. (Provided organization charts of the State highway agency
and of the EEO staff.)
2. Indicate whether full or part-time; if part-time, indicate
percentage of time devoted to EEO.
3. Indicate length of time in position, civil rights experience and
training, and supervision.
4. Indicate whether compliance program is centralized or
decentralized.
5. Identify EEO Coordinator's staff support (full- and part-time) by
job title and indicate areas of their responsibilities.
6. Identify any other individuals in the central office having a
responsibility for the implementation of this program and describe their
respective roles and training received in program area.
B. District or division personnel. 1. Describe the responsibilities
and duties of any district
[[Page 50]]
EEO personnel. Identify to whom they report.
2. Explain whether district EEO personnel are full-time or have
other responsibilities such as labor compliance or engineering.
3. Describe training provided for personnel having EEO compliance
responsibility.
C. Project personnel. Describe the EEO role of project personnel.
II. Compliance procedures. A. Applicable directives. 1. FHWA
Contract Compliance Procedures.
2. EEO Special Provisions (FHWA Federal-Aid Highway Program Manual,
vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 1) \1\
---------------------------------------------------------------------------
\1\ The Federal-Aid Highway Program Manual is available for
inspection and copying at the Federal Highway Administration (FHWA), 400
7th St., SW., Washington, DC 20590, or at FHWA offices listed in 49 CFR
part 7, appendix D.
---------------------------------------------------------------------------
3. Training Special Provisions (FHWA Federal-Aid Highway Program
Manual, vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 2) \1\
4. FHWA Federal-Aid Highway Program Manual, vol. 6, chap. 4, sec. 1,
subsec. 6 (Contract Procedures), and subsec. 8 (Minority Business
Enterprise). \1\
B. Implementation. 1. Describe process (methods) of incorporating
the above FHWA directives into the SHA compliance program.
2. Describe the methods used by the State to familiarize State
compliance personnel with all FHWA contract compliance directives.
Indicate frequency of work shops, training sessions, etc.
3. Describe the procedure for advising the contractor of the EEO
contract requirements at any preconstruction conference held in
connection with a Federal-aid contract.
III. Accomplishments. Describe accomplishments in the construction
EEO compliance program during the past fiscal year.
A. Regular project compliance review program. This number should
include at least all of the following items:
1. Number of compliance reviews conducted.
2. Number of contractors reviewed.
3. Number of contractors found in compliance.
4. Number of contractors found in noncompliance.
5. Number of show cause notices issued.
6. Number of show cause notices rescinded.
7. Number of show cause actions still under conciliation and
unresolved.
8. Number of followup reviews conducted.
(Note: In addition to information requested in items 4-8 above,
include a brief summary of total show cause and followup activities--
findings and achievements.)
B. Consolidated compliance reviews. 1. Identify the target areas
that have been reviewed since the inception of the consolidated
compliance program. Briefly summarize total findings.
2. Identify any significant impact or effect of this program on
contractor compliance.
C. Home office reviews. If the State conducts home office reviews,
describe briefly the procedures followed by State.
D. Major problems encountered. Describe major problems encountered
in connection with any review activities during the past fiscal year.
E. Major breakthroughs. Comment briefly on any major breakthrough or
other accomplishment significant to the compliance review program.
IV. Areawide plans/Hometown and Imposed (if applicable). A. Provide
overall analysis of the effectiveness of each areawide plan in the
State.
B. Indicate by job titles the number of State personnel involved in
the collection, consolidation, preparation, copying, reviewing,
analysis, and transmittal of area plan reports (Contracting Activity and
Post Contract Implementation). Estimate the amount of time (number of
hours) spent collectively on this activity each month. How does the
State use the plan report data?
C. Identify Office of Federal Contract Compliance Programs (OFCCP)
area plan audits or compliance checks in which State personnel
participated during the last fiscal year. On the average, how many hours
have been spent on these audits and/or checks during the past fiscal
year?
D. Describe the working relationship of State EEO compliance
personnel with representatives of plan administrative committee(s).
E. Provide recommendations for improving the areawide plan program
and the reporting system.
V. Contract sanctions. A. Describe the procedures used by the State
to impose contract sanctions or institute legal proceedings.
B. Indicate the State or Federal laws which are applicable.
C. Does the State withhold a contractor's progress payments for
failure to comply with EEO requirements? If so, identify contractors
involved in such actions during the past fiscal year. If not, identify
other actions taken.
VI. Complaints. A. Describe the State's procedures for handling
discrimination complaints against contractors.
B. If complaints are referred to a State fair employment agency or
similar agency, describe the referral procedure.
C. Identify the Federal-aid highway contractors that have had
discrimination complaints filed against them during the past fiscal year
and provide current status.
VII. External training programs, including supportive services. A.
Describe the State's process for reviewing the work classifications of
trainees to determine that there is a
[[Page 51]]
proper and reasonable distribution among appropriate craft.
B. Describe the State's procedures for identifying the number of
minorities and women who have completed training programs.
C. Describe the extent of participation by women in construction
training programs.
D. Describe the efforts made by the State to locate and use the
services of qualified minority and female supportive service
consultants. Indicate if the State's supportive service contractor is a
minority or female owned enterprise.
E. Describe the extent to which reports from the supportive service
contractors provide sufficient data to evaluate the status of training
programs, with particular reference to minorities and women.
VIII. Minority business enterprise program. FHPM 6-4-1-8 sets forth
the FHWA policy regarding the minority business enterprise program. The
implementation of this program should be explained by responding to the
following:
A. Describe the method used for listing of minority contractors
capable of, or interested in, highway construction contracting or
subcontracting. Describe the process used to circulate names of
appropriate minority firms and associations to contractors obtaining
contract proposals.
B. Describe the State's procedure for insuring that contractors take
action to affirmatively solicit the interest, capability, and prices of
potential minority subcontractors.
C. Describe the State's procedure for insuring that contractors have
designated liaison officers to administer the minority business
enterprise program in an effective manner. Specify resource material,
including contracts, which the State provides to liaison officers.
D. Describe the action the State has taken to meet its goals for
prequalification or licensing of minority business. Include dollar goals
established for the year, and describe what criteria or formula the
State has adopted for setting such goals. If it is different from the
previous year, describe in detail.
E. Outline the State's procedure for evaluating its
prequalification/licensing requirements.
F. Identify instances where the State has waived prequalification
for subcontractors on Federal-aid construction work or for prime
contractors on Federal-aid contracts with an estimated dollar value
lower than $100,000.
G. Describe the State's methods of monitoring the progress and
results of its minority business enterprise efforts.
IX. Liaison. Describe the liaison established by the State between
public (State, county, and municpal) agencies and private organizations
involved in EEO programs. How is the liaison maintained on a continuing
basis?
X. Innovative programs. Identify any innovative EEO programs or
management procedures initiated by the State and not previously covered.
part ii--state highway agency employment
I. General. The State highway agency's (SHA) internal program is an
integral part of the agency's total activities. It should include the
involvement, commitment and support of executives, managers, supervisors
and all other employees. For effective administration and implementation
of the EEO Program, an affirmative action plan (AAP) is required. The
scope of an EEO program and an AAP must be comprehensive, covering all
elements of the agency's personnel management policies and practices.
The major part of an AAP must be recognition and removal of any barriers
to equal employment opportunity, identification of problem areas and of
persons unfairly excluded or held back and action enabling them to
compete for jobs on an equal basis. An effective AAP not only benefits
those who have been denied equal employment opportunity but will also
greatly benefit the organization which often has overlooked, screened
out or underutilized the great reservoir of untapped human resources and
skills, especially among women and minority groups.
Set forth are general guidelines designed to assist the State
highway agencies in implementing internal programs, including the
development and implementation of AAP's to ensure fair and equal
treatment for all persons, regardless of race, color, religion, sex or
national origin in all employment practices.
II. Administration and implementation. The head of each State
highway agency is responsible for the overall administration of the
internal EEO program, including the total integration of equal
opportunity into all facets of personnel management. However, specific
program responsibilities should be assigned for carrying out the program
at all management levels.
To ensure effectiveness in the implementation of the internal EEO
program, a specific and realistic AAP should be developed. It should
include both short and long-range objectives, with priorities and target
dates for achieving goals and measuring progress, according to the
agency's individual need to overcome existing problems.
A. State Highway Agency Affirmative Action Officer (internal). 1.
Appointment of Affirmative Action Officer. The head of the SHA should
appoint a qualified Affirmative Action (AA) Officer (Internal EEO
Officer) with responsibility and authority to implement the internal EEO
program. In making the selection, the following factors should be
considered:
[[Page 52]]
a. The person appointed should have proven ability to accomplish
major program goals.
b. Managing the internal EEO program requires a major time
commitment; it cannot be added on to an existing full-time job.
c. Appointing qualified minority and/or female employees to head or
staff the program may offer good role models for present and potential
employees and add credibility to the programs involved. However, the
most essential requirements for such position(s) are sensitivity to
varied ways in which discrimination limits job opportunities, commitment
to program goals and sufficient status and ability to work with others
in the agency to achieve them.
2. Responsibilities of the Affirmative Action Officer. The
responsibilities of the AA Officer should include, but not necessarily
be limited to:
a. Developing the written AAP.
b. Publicizing its content internally and externally.
c. Assisting managers and supervisors in collecting and analyzing
employment data, identifying problem areas, setting goals and timetables
and developing programs to achieve goals. Programs should include
specific remedies to eliminate any discriminatory practices discovered
in the employment system.
d. Handling and processing formal discrimination complaints.
e. Designing, implementing and monitoring internal audit and
reporting systems to measure program effectiveness and to determine
where progress has been made and where further action is needed.
f. Reporting, at least quarterly, to the head of the SHA on progress
and deficiencies of each unit in relation to agency goals.
g. In addition, consider the creation of:
(1) An EEO Advisory Committee, whose membership would include top
management officials,
(2) An EEO Employee Committee, whose membership would include rank
and file employees, with minority and female representatives from
various job levels and departments to meet regularly with the AA
officer, and
(3) An EEO Counseling Program to attempt informal resolution of
discrimination complaints.
B. Contents of an affirmative action plan. The Affirmative Action
Plan (AAP) is an integral part of the SHA's EEO program. Although the
style and format of AAP's may vary from one SHA to another, the basic
substance will generally be the same. The essence of the AAP should
include, but not necessarily be limited to:
1. Inclusion of a strong agency policy statement of commitment to
EEO.
2. Assignment of responsibility and authority for program to a
qualified individual.
3. A survey of the labor market area in terms of population makeup,
skills, and availability for employment.
4. Analyzing the present work force to identify jobs, departments
and units where minorities and females are underutilized.
5. Setting specific, measurable, attainable hiring and promotion
goals, with target dates, in each area of underutilization.
6. Making every manager and supervisor responsible and accountable
for meeting these goals.
7. Reevaluating job descriptions and hiring criteria to assure that
they reflect actual job needs.
8. Finding minorities and females who are qualified or qualifiable
to fill jobs.
9. Getting minorities and females into upward mobility and relevant
training programs where they have not had previous access.
10. Developing systems to monitor and measure progress regularly. If
results are not satisfactory to meet goals, determine the reasons and
make necessary changes.
11. Developing a procedure whereby employees and applicants may
process allegations of discrimination to an impartial body without fear
of reprisal.
C. Implementation of an affirmative action plan. The written AAP is
the framework and management tool to be used at all organizational
levels to actively implement, measure and evaluate program progress on
the specific action items which represent EEO program problems or
deficiencies. The presence of a written plan alone does not constitute
an EEO program, nor is it, in itself, evidence of an ongoing program. As
a minimum, the following specific actions should be taken.
1. Issue written equal employment opportunity policy statement and
affirmative action commitment. To be effective, EEO policy provisions
must be enforced by top management, and all employees must be made aware
that EEO is basic agency policy. The head of the SHA (1) should issue a
firm statement of personal commitment, legal obligation and the
importance of EEO as an agency goal, and (2) assign specific
responsibility and accountability to each executive, manager and
supervisor.
The statement should include, but not necessarily be limited to, the
following elements:
a. EEO for all persons, regardless of race, color, religion, sex or
national origin as a fundamental agency policy.
b. Personal commitment to and support of EEO by the head of the SHA.
c. The requirement that special affirmative action be taken
throughout the agency to overcome the effects of past discrimination.
d. The requirement that the EEO program be a goal setting program
with measurement
[[Page 53]]
and evaluation factors similar to other major agency programs.
e. Equal opportunity in all employment practices, including (but not
limited to) recruiting, hiring, transfers, promotions, training,
compensation, benefits, recognition (awards), layoffs, and other
terminations.
f. Responsibility for positive affirmative action in the discharge
of EEO programs, including performance evaluations of managers and
supervisors in such functions, will be expected of and shared by all
management personnel.
g. Accountability for action or inaction in the area of EEO by
management personnel.
2. Publicize the affirmative action plan. a. Internally: (1)
Distribute written communications from the head of the SHA.
(2) Include the AAP and the EEO policy statement in agency
operations manual.
(3) Hold individual meetings with managers and supervisors to
discuss the program, their individual responsibilities and to review
progress.
(4) Place Federal and State EEO posters on bulletin boards, near
time clocks and in personnel offices.
(5) Publicize the AAP in the agency newsletters and other
publications.
(6) Present and discuss the AAP as a part of employee orientation
and all training programs.
(7) Invite employee organization representatives to cooperate and
assist in developing and implementing the AAP.
b. Externally: Distribute the AAP to minority groups and women's
organizations, community action groups, appropriate State agencies,
professional organizations, etc.
3. Develop and implement specific programs to eliminate
discriminatory barriers and achieve goals. a. Job structuring and upward
mobility: The AAP should include specific provisions for:
(1) Periodic classification plan reviews to correct inaccurate
position descriptions and to ensure that positions are allocated to the
appropriate classification.
(2) Plans to ensure that all qualification requirements are closely
job related.
(3) Efforts to restructure jobs and establish entry level and
trainee positions to facilitate progression within occupational areas.
(4) Career counseling and guidance to employees.
(5) Creating career development plans for lower grade employees who
are underutilized or who demonstrate potential for advancement.
(6) Widely publicizing upward mobility programs and opportunities
within each work unit and within the total organizational structure.
b. Recruitment and placement. The AAP should include specific
provisions for, but not necessarily limited to:
(1) Active recruitment efforts to support and supplement those of
the central personnel agency or department, reaching all appropriate
sources to obtain qualified employees on a nondiscriminatory basis.
(2) Maintaining contracts with organizations representing minority
groups, women, professional societies, and other sources of candidates
for technical, professional and management level positions.
(3) Ensuring that recruitment literature is relevant to all
employees, including minority groups and women.
(4) Reviewing and monitoring recruitment and placement procedures so
as to assure that no discriminatory practices exist.
(5) Cooperating with management and the central personnel agency on
the review and validation of written tests and other selection devices.
(6) Analyzing the flow of applicants through the selection and
appointment process, including an analytical review of reasons for
rejections.
(7) Monitoring the placement of employees to ensure the assignment
of work and workplace on a nondiscriminatory basis.
c. Promotions. The AAP should include specific provisions for, but
not necessarily limited to:
1. Establishing an agency-wide merit promotion program, including a
merit promotion plan, to provide equal opportunity for all persons based
on merit and without regard to race, color, religion, sex or national
origin.
2. Monitoring the operation of the merit promotion program,
including a review of promotion actions, to assure that requirements
procedures and practices support EEO program objectives and do not have
a discriminatory impact in actual operation.
3. Establishing skills banks to match employee skills with available
job advancement opportunities.
4. Evaluating promotion criteria (supervisory evaluations, oral
interviews, written tests, qualification standards, etc.) and their use
by selecting officials to identify and eliminate factors which may lead
to improper ``selection out'' of employees or applicants, particularly
minorities and women, who traditionally have not had access to better
jobs. It may be appropriate to require selecting officials to submit a
written justification when well qualified persons are passed over for
upgrading or promotion.
5. Assuring that all job vacancies are posted conspicuously and that
all employees are encouraged to bid on all jobs for which they feel they
are qualified.
6. Publicizing the agency merit promotion program by highlighting
breakthrough promotions, i.e. advancement of minorities and women to key
jobs, new career heights, etc.
[[Page 54]]
d. Training. The AAP should include specific provisions for, but not
necessarily limited to:
(1) Requiring managers and supervisors to participate in EEO
seminars covering the AAP, the overall EEO program and the
administration of the policies and procedures incorporated therein, and
on Federal, State and local laws relating to EEO.
(2) Training in proper interviewing techniques of employees who
conduct employment selection interviews.
(3) Training and education programs designed to provide
opportunities for employees to advance in relation to the present and
projected manpower needs of the agency and the employees' career goals.
(4) The review of profiles of training course participants to ensure
that training opportunities are being offered to all eligible employees
on an equal basis and to correct any inequities discovered.
e. Layoffs, recalls, discharges, demotions, and disciplinary
actions. The standards for deciding when a person shall be terminated,
demoted, disciplined, laid off or recalled should be the same for all
employees, including minorities and females. Seemingly neutral practices
should be reexamined to see if they have a disparate effect on such
groups. For example, if more minorities and females are being laid off
because they were the last hired, then, adjustments should be made to
assure that the minority and female ratios do not decrease because of
these actions.
(1) When employees, particularly minorities and females, are
disciplined, laid off, discharged or downgraded, it is advisable that
the actions be reviewed by the AA Officer before they become final.
(2) Any punitive action (i.e. harassment, terminations, demotions),
taken as a result of employees filing discrimination complaints, is
illegal.
(3) The following records should be kept to monitor this area of the
internal EEO program:
On all terminations, including layoffs and discharges: indicate
total number, name, (home address and phone number), employment date,
termination date, recall rights, sex, racial/ethnic identification (by
job category), type of termination and reason for termination.
On all demotions: indicate total number, name, (home address and
phone number), demotion date, sex, racial/ethnic identification (by job
category), and reason for demotion.
On all recalls: indicate total number, name, (home address and phone
number) recall date, sex, and racial/ethnic identification (by job
category).
Exit interviews should be conducted with employees who leave the
employment of the SHA.
f. Other personnel actions. The AAP should include specific
provisions for, but not necessarily limited to:
(1) Assuring that information on EEO counseling and grievance
procedures is easily available to all employees.
(2) A system for processing complaints alleging discrimination
because of race, color, religion, sex or national origin to an impartial
body.
(3) A system for processing grievances and appeals (i.e.
disciplinary actions, adverse actions, adverse action appeals, etc).
(4) Including in the performance appraisal system a factor to rate
manager's and supervisors' performance in discharging the EEO program
responsibilities assigned to them.
(5) Reviewing and monitoring the performance appraisal program
periodically to determine its objectivity and effectiveness.
(6) Ensuring the equal availability of employee benefits to all
employees.
4. Program evaluation. An internal reporting system to continually
audit, monitor and evaluate programs is essential for a successful AAP.
Therefore, a system providing for EEO goals, timetables, and periodic
evaluations needs to be established and implemented. Consideration
should be given to the following actions:
a. Defining the major objectives of EEO program evaluation.
b. The evaluation should be directed toward results accomplished,
not only at efforts made.
c. The evaluation should focus attention on assessing the adequacy
of problem identification in the AAP and the extent to which the
specific action steps in the plan provide solutions.
d. The AAP should be reviewed and evaluated at least annually. The
review and evaluation procedures should include, but not be limited to,
the following:
(1) Each bureau, division or other major component of the agency
should make annual and such other periodic reports as are needed to
provide an accurate review of the operations of the AAP in that
component.
(2) The AA Officer should make an annual report to the head of the
SHA, containing the overall status of the program, results achieved
toward established objectives, identity of any particular problems
encountered and recommendations for corrective actions needed.
e. Specific, numerical goals and objectives should be established
for the ensuing year. Goals should be developed for the SHA as a whole,
as well as for each unit and each job category.
III. Employment statistical data. A. As a minimum, furnish the most
recent data on the following:
1. The total population in the State,
[[Page 55]]
2. The total labor market in State, with a breakdown by racial/
ethnic identification and sex, and
3. An analysis of (1) and (2) above, in connection with the
availability of personnel and jobs within SHA's.
B. State highway agencies shall use the EEO-4 Form in providing
current work force data. This data shall reflect only State department
of transportation/State highway department employment.
[[Page 56]]
[GRAPHIC] [TIFF OMITTED] TC14OC91.002
[[Page 57]]
[GRAPHIC] [TIFF OMITTED] TC14OC91.003
[41 FR 28270, July 9, 1976, as amended at 41 FR 46294, Oct. 20, 1976]
[[Page 58]]
Subpart D--Construction Contract Equal Opportunity Compliance Procedures
Source: 41 FR 34239, Aug. 13, 1976, unless otherwise noted.
Sec. 230.401 Purpose.
The purpose of the regulations in this subpart is to prescribe
policies and procedures to standardize the implementation of the equal
opportunity contract compliance program, including compliance reviews,
consolidated compliance reviews, and the administration of areawide
plans.
Sec. 230.403 Applicability.
The procedures set forth hereinafter apply to all nonexempt direct
Federal and Federal-aid highway construction contracts and subcontracts,
unless otherwise specified.
Sec. 230.405 Administrative responsibilities.
(a) Federal Highway Administration (FHWA) responsibilities. (1) The
FHWA has the responsibility to ensure that contractors meet contractural
equal opportunity requirements under E.O. 11246, as amended, and title
23 U.S.C., and to provide guidance and direction to States in the
development and implementation of a program to assure compliance with
equal opportunity requirements.
(2) The Federal Highway Administrator or a designee may inquire into
the status of any matter affecting the FHWA equal opportunity program
and, when considered necessary, assume jurisdiction over the matter,
proceeding in coordination with the State concerned. This is without
derogation of the authority of the Secretary of Transportation,
Department of Transportation (DOT), the Director, DOT Departmental
Office of Civil Rights (OCR) or the Director, Office of Federal Contract
Compliance Programs (OFCCP), Department of Labor.
(3) Failure of the State highway agency (SHA) to discharge the
responsibilities stated in Sec. 230.405(b)(1) may result in DOT's taking
any or all of the following actions (see appendix A to 23 CFR part 630,
subpart C ``Federal-aid project agreement''):
(i) Cancel, terminate, or suspend the Federal-aid project agreement
in whole or in part;
(ii) Refrain from extending any further assistance to the SHA under
the program with respect to which the failure or refusal occurred until
satisfactory assurance of future compliance has been received from the
SHA; and
(iii) Refer the case to an appropriate Federal agency for legal
proceedings.
(4) Action by the DOT, with respect to noncompliant contractors,
shall not relieve a SHA of its responsibilities in connection with these
same matters; nor is such action by DOT a substitute for corrective
action utilized by a State under applicable State laws or regulations.
(b) State responsibilities. (1) The SHA's, as contracting agencies,
have a responsibility to assure compliance by contractors with the
requirements of Federal-aid construction contracts, including the equal
opportunity requirements, and to assist in and cooperate with FHWA
programs to assure equal opportunity.
(2) The corrective action procedures outlined herein do not preclude
normal contract administration procedures by the States to ensure the
contractor's completion of specific contract equal opportunity
requirements, as long as such procedures support, and sustain the
objectives of E.O. 11246, as amended. The State shall inform FHWA of any
actions taken against a contractor under normal State contract
administration procedures, if that action is precipitated in whole or in
part by noncompliance with equal opportunity contract requirements.
Sec. 230.407 Definitions.
For the purpose of this subpart, the following definitions shall
apply, unless the context requires otherwise:
(a) Actions, identified by letter and number, shall refer to those
items identified in the process flow chart. (Appendix D);
(b) Affirmative Action Plan means a written positive management tool
of a total equal opportunity program indicating the action steps for all
organizational levels of a contractor to initiate
[[Page 59]]
and measure equal opportunity program progress and effectiveness. (The
Special Provisions [23 CFR part 230 A, appendix A] and areawide plans
are Affirmative Action Plans.);
(c) Affirmative Actions means the efforts exerted towards achieving
equal opportunity through positive, aggressive, and continuous result-
oriented measures to correct past and present discriminatory practices
and their effects on the conditions and privileges of employment. These
measures include, but are not limited to, recruitment, hiring,
promotion, upgrading, demotion, transfer, termination, compensation, and
training;
(d) Areawide Plan means an Affirmative Action Plan approved by the
Department of Labor to increase minority and female utilization in
crafts of the construction industry in a specified geographical area
pursuant to E.O. 11246, as amended, and taking the form of either a
``Hometown'' or an ``Imposed'' Plan.
(1) Hometown Plan means a voluntary areawide agreement usually
developed by representatives of labor unions, minority organizations,
and contractors, and approved by the OFCCP for the purpose of
implementing the equal employment opportunity requirements pursuant to
E.O. 11246, as amended;
(2) Imposed Plan means mandatory affirmative action requirements for
a specified geographical area issued by OFCCP and, in some areas, by the
courts;
(e) Compliance Specialist means a Federal or State employee
regularly employed and experienced in civil rights policies, practices,
procedures, and equal opportunity compliance review and evaluation
functions;
(f) Consolidated Compliance Review means a review and evaluation of
all significant construction employment in a specific geographical
(target) area;
(g) Construction shall have the meanings set forth in 41 CFR 60-
1.3(e) and 23 U.S.C. 101(a). References in both definitions to expenses
or functions incidental to construction shall include preliminary
engineering work in project development or engineering services
performed by or for a SHA;
(h) Corrective Action Plan means a contractor's unequivocal written
and signed commitment outlining actions taken or proposed, with time
limits and goals, where appropriate to correct, compensate for, and
remedy each violation of the equal opportunity requirements as specified
in a list of deficiencies. (Sometimes called a conciliation agreement or
a letter of commitment.);
(i) Contractor means, any person, corporation, partnership, or
unincorporated association that holds a FHWA direct or federally
assisted construction contract or subcontract regardless of tier;
(j) Days shall mean calendar days;
(k) Discrimination means a distinction in treatment based on race,
color, religion, sex, or national origin;
(l) Equal Employment Opportunity means the absence of partiality or
distinction in employment treatment, so that the right of all persons to
work and advance on the basis of merit, ability, and potential is
maintained;
(m) Equal Opportunity Compliance Review means an evaluation and
determination of a nonexempt direct Federal or Federal-aid contractor's
or subcontractor's compliance with equal opportunity requirements based
on:
(1) Project work force--employees at the physical location of the
construction activity;
(2) Area work force--employees at all Federal-aid, Federal, and non-
Federal projects in a specific geographical area as determined under
Sec. 230.409 (b)(9); or
(3) Home office work force--employees at the physical location of
the corporate, company, or other ownership headquarters or regional
managerial, offices, including ``white collar'' personnel (managers,
professionals, technicians, and clericals) and any maintenance or
service personnel connected thereto;
(n) Equal Opportunity Requirements is a general term used throughout
this document to mean all contract provisions relative to equal
employment opportunity (EEO), subcontracting, and training;
(o) Good Faith Effort means affirmative action measures designed to
implement the established objectives of an Affirmative Action Plan;
(p) Show Cause Notice means a written notification to a contractor
based
[[Page 60]]
on the determination of the reviewer (or in appropriate cases by higher
level authority) to be in noncompliance with the equal opportunity
requirements. The notice informs the contractor of the specific basis
for the determination and provides the opportunity, within 30 days from
receipt, to present an explanation why sanctions should not be imposed;
(q) State highway agency (SHA) means that department, commission,
board, or official of any State charged by its laws with the
responsibility for highway construction. The term State should be
considered equivalent to State highway agency. With regard to direct
Federal contracts, references herein to SHA's shall be considered to
refer to FHWA regional offices, as appropriate.
Sec. 230.409 Contract compliance review procedures.
(a) General. A compliance review consists of the following elements:
(1) Review Scheduling (Actions R-1 and R-2).
(2) Contractor Notification (Action R-3).
(3) Preliminary Analysis (Phase I) (Action R-4).
(4) Onsite Verification and Interviews (Phase II) (Action R-5).
(5) Exit Conference (Action R-6).
(6) Compliance Determination and Formal Notification (Actions R-8,
R-9, R-10, R-11, R-12).
The compliance review procedure, as described herein and in appendix D
provides for continual monitoring of the employment process. Monitoring
officials at all levels shall analyze submissions from field offices to
ensure proper completion of procedural requirements and to ascertain the
effectiveness of program implementation.
(b) Review scheduling. (Actions R-1 and R-2). Because construction
work forces are not constant, particular attention should be paid to the
proper scheduling of equal opportunity compliance reviews. Priority in
scheduling equal opportunity compliance reviews shall be given to
reviewing those contractor's work forces:
(1) Which hold the greatest potential for employment and promotion
of minorities and women (particularly in higher skilled crafts or
occupations);
(2) Working in areas which have significant minority and female
labor forces within a reasonable recruitment area;
(3) Working on projects that include special training provisions;
and
(4) Where compliance with equal opportunity requirements is
questionable. (Based on previous PR-1391's (23 CFR part 230, subpart A,
appendix C) Review Reports and Hometown Plan Reports).
In addition, the following considerations shall apply:
(5) Reviews specifically requested by the Washington Headquarters
shall receive priority scheduling;
(6) Compliance Reviews in geographical areas covered by areawide
plans would normally be reviewed under the Consolidated Compliance
Review Procedures set forth in Sec. 230.415.
(7) Reviews shall be conducted prior to or during peak employment
periods.
(8) No compliance review shall be conducted that is based on a home
office work force of less than 15 employees unless requested or approved
by Washington Headquarters; and
(9) For compliance reviews based on an area work force (outside of
areawide plan coverage), the Compliance Specialist shall define the
applicable geographical area by considering:
(i) Union geographical boundaries;
(ii) The geographical area from which the contractor recruits
employees, i.e. reasonable recruitment area;
(iii) Standard Metropolitan Statistical Area (SMSA) or census
tracts; and
(iv) The county in which the Federal or Federal-aid project(s) is
located and adjacent counties.
(c) Contractor notification (Action R-3). (1) The Compliance
Specialist should usually provide written notification to the contractor
of the pending compliance review at least 2 weeks prior to the onsite
verification and interviews. This notification shall include the
scheduled date(s), an outline of the mechanics and basis of the review,
requisite interviews, and documents required.
(2) The contractor shall be requested to provide a meeting place on
the day
[[Page 61]]
of the visit either at the local office of the contractor or at the
jobsite.
(3) The contractor shall be requested to supply all of the following
information to the Compliance Specialist prior to the onsite
verification and interviews.
(i) Current Form PR-1391 developed from the most recent payroll;
(ii) Copies of all current bargaining agreements;
(iii) Copies of purchase orders and subcontracts containing the EEO
clause;
(iv) A list of recruitment sources available and utilized;
(v) A statement of the status of any action pertaining to employment
practices taken by the Equal Employment Opportunity Commission (EEOC) or
other Federal, State, or local agency regarding the contractor or any
source of employees;
(vi) A list of promotions made during the past 6 months, to include
race, national origin, and sex of employee, previous job held, job
promoted into; and corresponding wage rates;
(vii) An annotated payroll to show job classification, race,
national origin and sex;
(viii) A list of minority- or female-owned companies contacted as
possible subcontractors, vendors, material suppliers, etc.; and
(ix) Any other necessary documents or statements requested by the
Compliance Specialist for review prior to the actual onsite visit.
(4) For a project review, the prime contractor shall be held
responsible for ensuring that all active subcontractors are present at
the meeting and have supplied the documentation listed in
Sec. 230.409(c)(3).
(d) Preliminary analysis (Phase I) (Action R-4). Before the onsite
verification and interviews, the Compliance Specialist shall analyze the
employment patterns, policies, practices, and programs of the contractor
to determine whether or not problems exist by reviewing information
relative to:
(1) The contractor's current work force;
(2) The contractor's relationship with referral sources, e.g.,
unions, employment agencies, community action agencies, minority and
female organizations, etc.;
(3) The minority and female representation of sources;
(4) The availability of minorities and females with requisite skills
in a reasonable recruitment area;
(5) Any pending EEOC or Department of Justice cases or local or
State Fair Employment Agency cases which are relevant to the contractor
and/or the referral sources; and
(6) The related projects (and/or contractor) files of FHWA regional
or division and State Coordinator's offices to obtain current
information relating to the status of the contractor's project(s),
value, scheduled duration, written corrective action plans, PR-1391 or
Manpower Utilization Reports, training requirements, previous compliance
reviews, and other pertinent correspondence and/or reports.
(e) Onsite verification and interviews (Phase II) (Action R-5). (1)
Phase II of the review consists of the construction or home office site
visit(s). During the initial meeting with the contractor, the following
topics shall be discussed:
(i) Objectives of the visit;
(ii) The material submitted by the contractor, including the actual
implementation of the employee referral source system and any
discrepancies found in the material; and
(iii) Arrangements for the site tour(s) and employee interviews.
(2) The Compliance Specialist shall make a physical tour of the
employment site(s) to determine that:
(i) EEO posters are displayed in conspicuous places in a legible
fashion;
(ii) Facilities are provided on a nonsegregated basis (e.g. work
areas, washroom, timeclocks, locker rooms, storage areas, parking lots,
and drinking fountains);
(iii) Supervisory personnel have been oriented to the contractor's
EEO commitments;
(iv) The employee referral source system is being implemented;
(v) Reported employment data is accurate;
(vi) Meetings have been held with employees to discuss EEO policy,
particularly new employees; and
[[Page 62]]
(vii) Employees are aware of their right to file complaints of
discrimination.
(3) The Compliance Specialist should interview at least one
minority, one nonminority, and one woman in each trade, classification,
or occupation. The contractor's superintendent or home office manager
should also be interviewed.
(4) The Compliance Specialist shall, on a sample basis, determine
the union membership status of union employees on the site (e.g. whether
they have permits, membership cards, or books, and in what category they
are classified [e.g., A, B, or C]).
(5) The Compliance Specialist shall also determine the method
utilized to place employees on the job and whether equal opportunity
requirements have been followed.
(6) The Compliance Specialist shall determine, and the report shall
indicate the following:
(i) Is there reasonable representation and utilization of minorities
and women in each craft, classification or occupation? If not, what has
the contractor done to increase recruitment, hiring, upgrading, and
training of minorities and women?
(ii) What action is the contractor taking to meet the contractual
requirement to provide equal employment opportunity?
(iii) Are the actions taken by the contractor acceptable? Could they
reasonably be expected to result in increased utilization of minorities
and women?
(iv) Is there impartiality in treatment of minorities and women?
(v) Are affirmative action measures of an isolated nature or are
they continuing?
(vi) Have the contractor's efforts produced results?
(f) Exit conference (Action R-6). (1) During the exit conference
with the contractor, the following topics shall be discussed:
(i) Any preliminary findings that, if not corrected immediately or
not corrected by the adoption of an acceptable voluntary corrective
action plan, would necessitate a determination of noncompliance;
(ii) The process and time in which the contractor shall be informed
of the final determination (15 days following the onsite verification
and interviews); and
(iii) Any other matters that would best be resolved before
concluding the onsite portion of the review.
(2) Voluntary corrective action plans may be negotiated at the exit
conference, so that within 15 days following the exit portion of the
review, the Compliance Specialist shall prepare the review report and
make a determination of either:
(i) Compliance, and so notify the contractor; or
(ii) Noncompliance, and issue a 30-day show cause notice.
The acceptance of a voluntary corrective action plan at the exit
conference does not preclude a determination of noncompliance,
particularly if deficiencies not addressed by the plan are uncovered
during the final analysis and report writing. (Action R-7) A voluntary
corrective action plan should be accepted with the understanding that it
only address those problems uncovered prior to the exit conference.
(g) Compliance determinations (Action R-8). (1) The evidence
obtained at the compliance review shall constitute a sufficient basis
for an objective determination by the Compliance Specialist conducting
the review of the contractor's compliance or noncompliance with
contractual provisions pursuant to E.O. 11246, as amended, and FHWA EEO
Special Provisions implementing the Federal-Aid Highway Act of 1968,
where applicable.
(2) Compliance determinations on contractors working in a Hometown
Plan Area shall reflect the status of those crafts covered by part II of
the plan bid conditions. Findings regarding part I crafts shall be
transmitted through channels to the Washington Headquarters, Office of
Civil Rights.
(3) The compliance status of the contractor will usually be
reflected by positive efforts in the following areas:
(i) The contractor's equal employment opportunity (EEO) policy;
(ii) Dissemination of the policy and education of supervisory
employees concerning their responsibilities in implementing the EEO
policy;
[[Page 63]]
(iii) The authority and responsibilities of the EEO officer;
(iv) The contractor's recruitment activities, especially
establishing minority and female recruitment and referral procedures;
(v) The extent of participation and minority and female utilization
in FHWA training programs;
(vi) The contractor's review of personnel actions to ensure equal
opportunities;
(vii) The contractor's participation in apprenticeship or other
training;
(viii) The contractor's relationship (if any) with unions and
minority and female union membership;
(ix) Effective measures to assure nonsegregated facilities, as
required by contract provisions;
(x) The contractor's procedures for monitoring subcontractors and
utilization of minority and female subcontractors and/or subcontractors
with substantial minority and female employment; and
(xi) The adequacy of the contractor's records and reports.
(4) A contractor shall be considered to be in compliance (Action R-
9) when the equal opportunity requirements have been effectively
implemented, or there is evidence that every good faith effort has been
made toward achieving this end. Efforts to acheive this goal shall be
result-oriented, initiated and maintained in good faith, and emphasized
as any other vital management function.
(5) A contractor shall be considered to be in noncompliance (Action
R-10) when:
(i) The contractor has discriminated against applicants or employees
with respect to the conditions or privileges of employment; or
(ii) The contractor fails to provide evidence of every good faith
effort to provide equal opportunity.
(h) Show cause procedures--(1) General. Once the onsite verification
and exit conference (Action R-5) have been completed and a compliance
determination made, (Action R-8), the contractor shall be notified in
writing of the compliance determination. (Action R-11 or R-12) This
written notification shall be sent to the contractor within 15 days
following the completion of the onsite verification and exit conference.
If a contractor is found in noncompliance (Action R-10), action efforts
to bring the contractor into compliance shall be initiated through the
issuance of a show cause notice (Action R-12). The notice shall advise
the contractor to show cause within 30 days why sanctions should not be
imposed.
(2) When a show cause notice is required. A show cause notice shall
be issued when a determination of noncompliance is made based upon:
(i) The findings of a compliance review;
(ii) The results of an investigation which verifies the existence of
discrimination; or
(iii) Areawide plan reports that show an underutilization of
minorities (based on criteria of U.S. Department of Labor's Optional
Form 66 ``Manpower Utilization Report'') throughout the contractor's
work force covered by part II of the plan bid conditions.
(3) Responsibility for issuance. (i) Show cause notices will
normally be issued by SHA's to federally assisted contractors when the
State has made a determination of noncompliance, or when FHWA has made
such a determination and has requested the State to issue the notice.
(ii) When circumstances warrant, the Regional Federal Highway
Administrator or a designee may exercise primary compliance
responsibility by issuing the notice directly to the contractor.
(iii) The Regional Federal Highway Administrators in Regions 8, 10,
and the Regional Engineer in Region 15, shall issue show cause notices
to direct Federal contractors found in noncompliance.
(4) Content of show cause notice. The show cause notice must: (See
sample--appendix A of this subpart)
(i) Notify the contractor of the determination of noncompliance;
(ii) Provide the basis for the determination of noncompliance;
(iii) Notify the contractor of the obligation to show cause within
30 days why formal proceedings should not be instituted;
[[Page 64]]
(iv) Schedule (date, time, and place) a compliance conference to be
held approximately 15 days from the contractor's receipt of the notice;
(v) Advise the contractor that the conference will be held to
receive and discuss the acceptability of any proposed corrective action
plan and/or correction of deficiencies; and
(vi) Advise the contractor of the availability and willingness of
the Compliance Specialist to conciliate within the time limits of the
show cause notice.
(5) Preparing and processing the show cause notice. (i) The State or
FHWA official who conducted the investigation or review shall develop
complete background data for the issuance of the show cause notice and
submit the recommendation to the head of the SHA or the Regional Federal
Highway Administrator, as appropriate.
(ii) The recommendation, background data, and final draft notice
shall be reviewed by appropriate State or FHWA legal counsel.
(iii) Show cause notices issued by the SHA shall be issued by the
head of that agency or a designee.
(iv) The notice shall be personally served to the contractor or
delivered by certified mail, return receipt requested, with a
certificate of service or the return receipt filed with the case record.
(v) The date of the contractor's receipt of the show cause notice
shall begin the 30-day show cause period. (Action R-13).
(vi) The 30-day show cause notice shall be issued directly to the
noncompliant contractor or subcontractor with an informational copy sent
to any concerned prime contractors.
(6) Conciliation efforts during show cause period. (i) The
Compliance Specialist is required to attempt conciliation with the
contractor throughout the show cause time period. Conciliation and
negotiation efforts shall be directed toward correcting contractor
program deficiencies and initiating corrective action which will
maintain and assure equal opportunity. Records shall be maintained in
the State, FHWA division, or FHWA regional office's case files, as
appropriate, indicating actions and reactions of the contractor, a brief
synopsis of any meetings with the contractor, notes on verbal
communication and written correspondence, requests for assistance or
interpretations, and other relevant matters.
(ii) In instances where a contractor is determined to be in
compliance after a show cause notice has been issued, the show cause
notice will be recinded and the contractor formally notified (Action R-
17). The FHWA Washington Headquarters, Office of Civil Rights, shall
immediately be notified of any change in status.
(7) Corrective action plans. (i) When a contractor is required to
show cause and the deficiencies cannot be corrected within the 30-day
show cause period, a written corrective action plan may be accepted. The
written corrective action plan shall specify clear unequivocal action by
the contractor with time limits for completion. Token actions to correct
cited deficiencies will not be accepted. (See Sample Corrective Action
Plan--appendix B of this subpart)
(ii) When a contractor submits an acceptable written corrective
action plan, the contractor shall be considered in compliance during the
plan's effective implementation and submission of required progress
reports. (Action R-15 and R-17).
(iii) When an acceptable corrective action plan is not agreed upon
and the contractor does not otherwise show cause as required, the formal
hearing process shall be recommended through appropriate channels by the
compliance specialist immediately upon expiration of the 30-day show
cause period. (Action R-16, R-18, R-19)
(iv) When a contractor, after having submitted an acceptable
corrective action plan and being determined in compliance is
subsequently determined to be in noncompliance based upon the
contractor's failure to implement the corrective action plan, the formal
hearing process must be recommended immediately. There are no provisions
for reinstituting a show cause notice.
(v) When, however, a contractor operating under an acceptable
corrective action plan carries out the provisions of the corrective
action plan but the actions do not result in the necessary
[[Page 65]]
changes, the corrective action plan shall be immediately amended through
negotiations. If, at this point, the contractor refuses to appropriately
amend the corrective action plan, the formal hearing process shall be
recommended immediately.
(vi) A contractor operating under an approved voluntary corrective
action plan (i.e. plan entered into prior to the issuance of a show
cause) must be issued a 30-day show cause notice in the situations
referred to in paragraphs (h) (7) (iv) and (v) of this section, i.e.,
failure to implement an approved corrective action plan or failure of
corrective actions to result in necessary changes.
(i) Followup reviews. (1) A followup review is an extension of the
initial review process to verify the contractors performance of
corrective action and to validate progress report information.
Therefore, followup reviews shall only be conducted of those contractors
where the initial review resulted in a finding of noncompliance and a
show cause notice was issued.
(2) Followup reviews shall be reported as a narrative summary
referencing the initial review report.
(j) Hearing process. (1) When such procedures as show cause issuance
and conciliation conferences have been unsuccessful in bringing
contractors into compliance within the prescribed 30 days, the reviewer
(or other appropriate level) shall immediately recommend, through
channels, that the Department of Transportation obtain approval from the
Office of Federal Contract Compliance Programs for a formal hearing
(Action R-19). The Contractor should be notified of this action.
(2) Recommendations to the Federal Highway Administrator for hearing
approval shall be accompanied by full reports of findings and case files
containing any related correspondence. The following items shall be
included with the recommendation:
(i) Copies of all Federal and Federal-aid contracts and/or
subcontracts to which the contractor is party;
(ii) Copies of any contractor or subcontractor certifications;
(iii) Copy of show cause notice;
(iv) Copies of any corrective action plans; and
(v) Copies of all pertinent Manpower Utilization Reports, if
applicable.
(3) SHA's through FHWA regional and division offices, will be
advised of decisions and directions affecting contractors by the FHWA
Washington Headquarters, Office of Civil Rights, for the Department of
Transportation.
(k) Responsibility determinations. (1) In instances where requests
for formal hearings are pending OFCCP approval, the contractor may be
declared a nonresponsible contractor for inability to comply with the
equal opportunity requirements.
(2) SHA's shall refrain from entering into any contract or contract
modification subject to E.O. 11246, as amended, with a contractor who
has not demonstrated eligibility for Government contracts and federally
assisted construction contracts pursuant to E.O. 11246, as amended.
Sec. 230.411 Guidance for conducting reviews.
(a) Extensions of time. Reasonable extensions of time limits set
forth in these instructions may be authorized by the SHA's or the FHWA
regional office, as appropriate. However, all extensions are subject to
Washington Headquarters approval and should only be granted with this
understanding. The Federal Highway Administrator shall be notified of
all time extensions granted and the justification therefor. In sensitive
or special interest cases, simultaneous transmittal of reports and other
pertinent documents is authorized.
(b) Contract completion. Completion of a contract or seasonal
shutdown shall not preclude completion of the administrative procedures
outlined herein or the possible imposition of sanctions or debarment.
(c) Home office reviews outside regions. When contractor's home
offices are located outside the FHWA region in which the particular
contract is being performed, and it is determined that the contractors'
home offices should be reviewed, requests for such reviews with
accompanying justification shall be forwarded through appropriate
[[Page 66]]
channels to the Washington Headquarters, Office of Civil Rights. After
approval, the Washington Headquarters, Office of Civil Rights, (OCR)
shall request the appropriate region to conduct the home office review.
(d) Employment of women. Executive Order 11246, as amended,
implementing rules and regulations regarding sex discrimination are
outlined in 41 CFR part 60-20. It is the responsibility of the
Compliance Specialist to ensure that contractors provide women full
participation in their work forces.
(e) Effect of exclusive referral agreements. (1) The OFCCP has
established the following criteria for determining compliance when an
exclusive referral agreement is involved;
(i) It shall be no excuse that the union, with which the contractor
has a collective bargaining agreement providing for exclusive referral,
failed to refer minority or female employees.
(ii) Discrimination in referral for employment, even if pursuant to
provisions of a collective bargaining agreement, is prohibited by the
National Labor Relations Act and Title VII of the Civil Rights Act of
1964, as amended.
(iii) Contractors and subcontractors have a responsibility to
provide equal opportunity if they want to participate in federally
involved contracts. To the extent they have delegated the responsibility
for some of their employment practices to some other organization or
agency which prevents them from meeting their obligations, these
contractors must be found in noncompliance.
(2) If the contractor indicates that union action or inaction is a
proximate cause of the contractor's failure to provide equal
opportunity, a finding of noncompliance will be made and a show cause
notice issued, and:
(i) The contractor will be formally directed to comply with the
equal opportunity requirements.
(ii) Reviews of other contractors with projects within the
jurisdiction of the applicable union locals shall be scheduled.
(iii) If the reviews indicate a pattern and/or practice of
discrimination on the part of specific union locals, each contractor in
the area shall be informed of the criteria outlined in
Sec. 230.411(e)(1) of this section. Furthermore, the FHWA Washington
Headquarters, OCR, shall be provided with full documentary evidence to
support the discriminatory pattern indicated.
(iv) In the event the union referral practices prevent the
contractor from meeting the equal opportunity requirements pursuant to
the E.O. 11246, as amended, such contractor shall immediately notify the
SHA.
Sec. 230.413 Review reports.
(a) General. (1) The Compliance Specialist shall maintain detailed
notes from the beginning of the review from which a comprehensive
compliance review report can be developed.
(2) The completed compliance review report shall contain documentary
evidence to support the determination of a contractor's or
subcontractor's compliance status.
(3) Findings, conclusions, and recommendations shall be explicitly
stated and, when necessary, supported by documentary evidence.
(4) The compliance review report shall contain at least the
following information. \1\ (Action R-20)
---------------------------------------------------------------------------
\1\ The Federal Highway Administration will accept completed Form
FHWA-86 for the purpose. The form is available at the offices listed in
49 CFR part 7, appendix D.
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(i) Complete name and address of contractor.
(ii) Project(s) identification.
(iii) Basis for the review, i.e. area work force, project work
force, home office work force, and target area work force.
(iv) Identification of Federal or Federal-aid contract(s).
(v) Date of review.
(vi) Employment data by job craft, classification, or occupation by
race and sex in accordance with (iii) above. This shall be the data
verified during the onsite.
(vii) Identification of local unions involved with contractor, when
applicable.
(viii) Determination of compliance status: compliance or
noncompliance.
(ix) Copy of show cause notice or compliance notification sent to
contractor.
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(x) Name of the Compliance Specialist who conducted the review and
whether that person is a State, division or regional Compliance
Specialist.
(xi) Concurrences at appropriate levels.
(5) Each contractor (joint venture is one contractor) will be
reported separately. When a project review is conducted, the reports
should be attached, with the initial report being that of the prime
contractor followed by the reports of each subcontractor.
(6) Each review level is responsible for ensuring that required
information is contained in the report.
(7) When a project review is conducted, the project work force shall
be reported. When an areawide review is conducted (all Federal-aid,
Federal, and non-Federal projects in an area), then areawide work force
shall be reported. When a home office review is conducted, only home
office work force shall be reported. Other information required by
regional offices shall be detached before forwarding the reports to the
Washington Headquarters, OCR.
(8) The Washington Headquarters, OCR, shall be provided all of the
following:
(i) The compliance review report required by Sec. 230.413(a)(4).
(ii) Corrective action plans.
(iii) Show cause notices or compliance notifications.
(iv) Show cause recissions.
While other data and information should be kept by regional offices
(including progress reports, correspondence, and similar review backup
material), it should not be routinely forwarded to the Washington
Headquarters, OCR.
(b) Administrative requirements--(1) State conducted reviews. (i)
Within 15 days from the completion of the onsite verification and exit
conference, the State Compliance Specialist will:
(A) Prepare the compliance review report, based on information
obtained;
(B) Determine the contractor's compliance status;
(C) Notify the contractor of the compliance determination, i.e.,
send the contractor either notification of compliance or show cause
notice; and
(D) Forward three copies of the compliance review report, and the
compliance notification or show cause notice to the FHWA division EEO
Specialist.
(ii) Within 10 days of receipt, the FHWA division EEO Specialist
shall:
(A) Analyze the State's report, ensure that it is complete and
accurate;
(B) Resolve nonconcurrence, if any;
(C) Indicate concurrence, and, where appropriate, prepare comments;
and
(D) Forward two copies of the compliance review report, and the
compliance notification or show cause notice to the Regional Civil
Rights Director.
(iii) Within 15 days of receipt, the FHWA Regional Civil Rights
Director shall:
(A) Analyze the report, ensure that it is complete and accurate;
(B) Resolve nonconcurrence, if any;
(C) Indicate concurrence, and, where appropriate, prepare comments;
and
(D) Forward one copy of the compliance review report, and the
compliance notification or show cause notice to the Washington
Headquarters, OCR.
(2) FHWA division conducted reviews. (i) Within 15 days from the
completion of the onsite verification and exit conference, the division
EEO Specialist shall:
(A) Prepare compliance review report, based on information obtained;
(B) Determine the contractor's compliance status;
(C) Notify the State to send the contractor the compliance
determination, i.e. either notification of compliance or show cause
notice; and
(D) Forward two copies of the compliance review report and the
compliance notification or show cause notice to the Regional Civil
Rights Director.
(ii) Within 15 days of receipt, the FHWA Regional Civil Rights
Director will take the steps outlined in Sec. 230.413(b)(1)(iii).
(3) FHWA region conducted reviews. (i) Within 15 days from the
completion of the onsite verification and exit conference the regional
EEO Specialist shall:
(A) Prepare the compliance review report, based on information
obtained;
(B) Determine the contractor's compliance status;
(C) Inform the appropriate division to notify the State to send the
contractor
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the compliance determination i.e. either notification of compliance or
show cause notice; and
(D) Forward one copy of the compliance review report, and the
compliance notification or show cause notice to the Washington
Headquarters, OCR.
(4) Upon receipt of compliance review reports, the Washington
Headquarters, OCR, shall review, resolve any nonconcurrences, and record
them for the purpose of:
(i) Providing ongoing technical assistance to FHWA regional and
division offices and SHA's;
(ii) Gathering a sufficient data base for program evaluation;
(iii) Ensuring uniform standards are being applied in the compliance
review process;
(iv) Initiating appropriate changes in FHWA policy and implementing
regulations; and
(v) Responding to requests from the General Accounting Office,
Office of Management and Budget, Senate Subcommittee on Public Roads,
and other agencies and organizations.
Sec. 230.415 Consolidated compliance reviews.
(a) General. Consolidated compliance reviews shall be implemented to
determine employment opportunities on an areawide rather than an
individual project basis. The consolidated compliance review approach
shall be adopted and directed by either Headquarters, region, division,
or SHA, however, consolidated reviews shall at all times remain a
cooperative effort.
(b) OFCCP policy requires contracting agencies to ensure compliance,
in hometown an imposed plan areas, on an areawide rather than a project
basis. The consolidated compliance review approach facilitates
implementation of this policy.
(c) Methodology--(1) Selection of a target area. In identifying the
target area of a consolidated compliance review (e.g. SMSA, hometown or
imposed plan area, a multicounty area, or an entire State),
consideration shall at least be given to the following facts:
(i) Minority and female work force concentrations;
(ii) Suspected or alleged discrimination in union membership or
referral practices by local unions involved in highway construction;
(iii) Present or potential problem areas;
(iv) The number of highway projects in the target area; and
(v) Hometown or imposed plan reports that indicate underutilization
of minorities or females.
(2) Determine the review period. After the target area has been
selected, the dates for the actual onsite reviews shall be established.
(3) Obtain background information. EEO-3's Local Union Reports,
should be obtained from regional offices of the EEOC. Target area
civilian labor force statistics providing percent minorities and percent
females in the target area shall be obtained from State employment
security agencies or similar State agencies.
(4) Identify contractors. Every nonexempt federally assisted or
direct Federal contractor and subcontractor in the target area shall be
identified. In order to establish areawide employment patterns in the
target area, employment data is needed for all contractors and
subcontractors in the area. However, only those contractors with
significant work forces (working prior to peak and not recently
reviewed) may need to be actually reviwed onsite. Accordingly, once all
contractors are identified, those contractors which will actually be
reviewed onsite shall be determined. Compliance determinations shall
only reflect the status of crafts covered by part II of plan bid
conditions. Employment data of crafts covered by part I of plan bid
conditions shall be gathered and identified as such in the composite
report, however, OFCCP has reserved the responsibility for compliance
determinations on crafts covered by part I of the plan bid conditions.
(5) Contractor notification. Those contractors selected for onsite
review shall be sent a notification letter as outlined in
Sec. 230.409(c) along with a request for current workforce data \2\ for
completion
[[Page 69]]
and submission at the onsite review. Those contractors in the target
area not selected for onsite review shall also be requested to supply
current workforce data as of the onsite review period, and shall return
the data within 15 days following the onsite review period.
---------------------------------------------------------------------------
\2\ The Consolidated Workforce Questionnaire is convenient for the
purpose and appears as attachment 4 to volume 2, chapter 2, section 3 of
the Federal-Aid Highway Program Manual, which is available at the
offices listed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------
(6) Onsite reviews. Compliance reviews shall then be conducted in
accordance with the requirements set forth in Sec. 230.409. Reviewers
may use Form FHWA-86, Compliance Data Report, if appropriate. It is of
particular importance during the onsite reviews that the review team
provide for adequate coordination of activities at every stage of the
review process.
(7) Compliance determinations. Upon completion of the consolidated
reviews, compliance determinations shall be made on each review by the
reviewer. Individual show cause notices or compliance notifications
shall be sent (as appropriate) to each reviewed contractor.
The compliance determination shall be based on the contractor's target
area work force (Federal, Federal-aid and non-Federal), except when the
target area is coincidental with hometown plan area, compliance
determinations must not be based on that part of a contractor's work
force covered by part I of the plan bid conditions, as previously set
forth in this regulation. For example: ABC Contracting, Inc. employs
carpenters, operating engineers, and cement masons. Carpenters and
operating engineers are covered by part II of the plan bid conditions,
however, cement masons are covered by part I of the plan bid conditions.
The compliance determination must be based only on the contractor's
utilization of carpenters and operating engineers.
(d) Reporting--(1) Composite report. A final composite report shall
be submitted as a complete package to the Washington Headquarters, OCR,
within 45 days after the review period and shall consist of the
following:
(i) Compliance review report, for each contractor and subcontractor
with accompanying show cause notice or compliance notification.
(ii) Work force data to show the aggregate employment of all
contractors in the target area.
(iii) A narrative summary of findings and recommendations to include
the following:
(A) A summary of highway construction employment in the target area
by craft, race, and sex. This summary should explore possible patterns
of discrimination or underutilization and possible causes, and should
compare the utilization of minorities and females on contractor's work
forces to the civilian labor force percent for minorities and females in
the target area.
(B) If the target area is a plan area, a narrative summary of the
plan's effectiveness with an identification of part I and part II
crafts. This summary shall discuss possible differences in minority and
female utilization between part I and part II crafts, documenting any
inferences drawn from such comparisons.
(C) If applicable, discuss local labor unions' membership and/or
referral practices that impact on the utilization of minorities and
females in the target area. Complete and current copies of all
collective bargaining agreements and copies of EEO-3, Local Union
Reports, for all appropriate unions shall accompany the composite
report.
(D) Any other appropriate data, analyses, or information deemed
necessary for a complete picture of the areawide employment.
(E) Considering the information compiled from the summaries listed
above, make concrete recommendations on possible avenues for correcting
problems uncovered by the analyses.
(2) Annual planning report. The proper execution of consolidated
compliance reviews necessitates scheduling, along with other fiscal
program planning. The Washington Headquarters, OCR, shall be notified of
all planned consolidated reviews by August 10 of each year and of any
changes in the target area or review periods, as they become known. The
annual consolidated planning report shall indicate:
(i) Selected target areas:
(ii) The basis for selection of each area; and
(iii) The anticipated review period (dates) for each target area.
[[Page 70]]
Appendix A to Subpart D of Part 230--Sample Show Cause Notice
Certified Mail, Return Receipt Requested
Date
Contractor's Name
Address
City, State, and Zip Code.
Dear Contractor: As a result of the review of your (Project Number)
project located at (Project Location) conducted on (Date) by (Reviewing
Agency), it is our determination that you are not in compliance with
your equal opportunity requirements and that good faith efforts have not
been made to meet your equal opportunity requirements in the following
areas:
List of Deficiencies
1.
2.
3.
Your failure to take the contractually required affirmative action
has contributed to the unacceptable level of minority and female
employment in your operations, particularly in the semiskilled and
skilled categories of employees.
The Department of Labor regulations (41 CFR 60) implementing
Executive Order 11246, as amended, are applicable to your Federal-aid
highway construction contract and are controlling in this matter (see
Required Contract Provisions, Form PR-1273, Clause II). Section 60-
1.20(b) of these regulations provides that when equal opportunity
deficiencies exist, it is necessary that you make a commitment in
writing to correct such deficiencies before you may be found in
compliance. The commitment must include the specific action which you
propose to take to correct each deficiency and the date of completion of
such action. The time period allotted shall be no longer than the
minimum period necessary to effect the necessary correction. In
accordance with instructions issued by the Office of Federal Contract
Compliance Programs (OFCCP), U.S. Department of Labor, your written
commitment must also provide for the submission of monthly progress
reports which shall include a head count of minority and female
representation at each level of each trade and a list of minority
employees.
You are specifically advised that making the commitment discussed
above will not preclude a further determination of noncompliance upon a
finding that the commitment is not sufficient to achieve compliance.
We will hold a compliance conference at ----------------(Address) at
---------------- (Time) on ----------------(Date) for you to submit and
discuss your written commitment. If your written commitment is
acceptable and if the commitment is sufficient to achieve compliance,
you will be found in compliance during the effective implementation of
that commitment. You are cautioned, however, that our determination is
subject to review by the Federal Highway Administration, the Department
of Transportation, and OFCCP and may be disapproved if your written
commitment is not considered sufficient to achieve compliance.
If you indicate either directly or by inaction that you do not wish
to participate in the scheduled conference and do not otherwise show
cause within 30 days from receipt of this notice why enforcement
proceedings should not be instituted, this agency will commence
enforcement proceedings under Executive Order 11246, as amended.
If your written commitment is accepted and it is subsequently found
that you have failed to comply with its provisions, you will be advised
of this determination and formal sanction proceedings will be instituted
immediately.
In the event formal sanction proceedings are instituted and the
final determination is that a violation of your equal opportunity
contract requirements has taken place, any Federal-aid highway
construction contracts or subcontracts which you hold may be canceled,
terminated, or suspended, and you may be debarred from further such
contracts or subcontracts. Such other sanctions as are authorized by
Executive Order 11246, as amended, may also be imposed.
We encourage you to to take whatever action is necessary to resolve
this matter and are anxious to assist you in achieving compliance. Any
questions concerning this notice should be addressed to (Name, Address,
and Phone).
Sincerely yours,
[41 FR 34245, Aug. 13, 1976]
Appendix B to Subpart D of Part 230--Sample Corrective Action Plan
Deficiency 1: Sources likely to yield minority employees have not
been contacted for recruitment purposes.
Commitment: We have developed a system of written job applications
at our home office which readily identifies minority applicants. In
addition to this, as a minimum, we will contact the National Association
for the Advancement of Colored People (NAACP), League of Latin American
Citizens (LULAC), Urban League, and the Employment Security Office
within 20 days to establish a referral system for minority group
applicants and expand our recruitment base. We are in the process of
identifying other community organizations and associations that may be
able to provide minority applicants and will submit an updated listing
of recruitment sources and evidence of contact by ----------------
(Date).
Deficiency 2: There have been inadequate efforts to locate, qualify,
and increase skills
[[Page 71]]
of minority and female employees and applicants for employment.
Commitment: We will set up an individual file for each apprentice or
trainee by ------------(Date) in order to carefully screen the progress,
ensure that they are receiving the necessary training, and being
promoted promptly upon completion of training requirements. We have
established a goal of at least 50 percent of our apprentices and
trainees will be minorities and 15 percent will be female. In addition
to the commitment made to deficiency number 1, we will conduct a similar
identification of organizations able to supply female applicants. Based
on our projected personnel needs, we expect to have reached our 50
percent goal for apprentices and trainees by --------------(Date).
Deficiency 3: Very little effort to assure subcontractors have
meaningful minority group representation among their employees.
Commitment: In cooperation with the Regional Office of Minority
Business Enterprise, Department of Commerce, and the local NAACP, we
have identified seven minority-owned contractors that may be able to
work on future contracts we may receive. These contractors (identified
in the attached list) will be contacted prior to our bidding on all
future contracts. In addition, we have scheduled a meeting with all
subcontractors currently working on our contracts. This meeting will be
held to inform the subcontractors of our intention to monitor their
reports and require meaningful minority representation. This meeting
will be held on --------------------(Date) and we will summarize the
discussions and current posture of each subcontractor for your review by
--------------------(Date) Additionally, as requested, we will submit a
PR-1391 on --------------------(Date), ---------------------------------
-------(Date), --------------------(Date). Finally, we have committed
ourselves to maintaining at least 20 percent minority and female
representation in each trade during the time we are carrying out the
above commitments. We plan to have completely implemented all the
provisions of these commitments by --------------------(Date).
[41 FR 34245, Aug. 13, 1976]
Appendix C to Subpart D of Part 230--Sample Show Cause Rescission
Certified Mail, Return Receipt Requested
Date
Contractor
Address
City, State, and Zip Code
Dear Contractor: On --------------, (Date) you received a 30-day
show cause notice from this office for failing to implement the required
contract requirements pertaining to equal employment opportunity.
Your corrective action plan, discussed and submitted at the
compliance conference held on --------------------(Date), has been
reviewed and determined to be acceptable. Your implementation of your
corrective action plan shows that you are now taking the required
affirmative action and can be considered in compliance with Executive
Order 11246, as amended. If it should later be determined that your
corrective action plan is not sufficient to achieve compliance, this
Rescission shall not preclude a subsequent finding of noncompliance.
In view of the above, this letter is to inform you that the 30-day
show cause notice of --------------------(Date) is hereby rescinded. You
are further advised that if it is found that you have failed to comply
with the provisions of your corrective action plan, formal sanction
proceedings will be instituted immediately.
Sincerely,
[[Page 72]]
Appendix D to Subpart D of Part 230--Equal Opportunity Compliance Review
Process Flow Chart
[GRAPHIC] [TIFF OMITTED] TC14OC91.004
[41 FR 34245, Aug. 13, 1976]
[[Page 73]]
SUBCHAPTER D--NATIONAL HIGHWAY INSTITUTE
PART 260--EDUCATION AND TRAINING PROGRAMS--Table of Contents
Subpart A--Fellowship and Scholarship Grants
Sec.
260.101 Purpose.
260.103 Definitions.
260.105 Policy.
260.107 Eligibility.
260.109 Selection.
260.111 Responsibilities of educational institutions.
260.113 Responsibilities of employing agencies.
260.115 Equal opportunity.
260.117 Application procedures.
Subparts B-C [Reserved]
Subpart D--State Education and Training Programs
260.401 Purpose.
260.403 Policy.
260.405 Application and approval procedures.
260.407 Implementation and reimbursement.
Appendix A to Part 260--Request for Use of Federal-Aid Highway Funds for
Education or Training (Form FHWA-1422)
Subpart A--Fellowship and Scholarship Grants
Authority: 23 U.S.C. 307(a), 315, 321 and 403; and 49 CFR 1.48(b).
Source: 43 FR 3558, Jan. 26, 1978, unless otherwise noted.
Sec. 260.101 Purpose.
To establish policy for the Federal Highway Administration (FHWA)
Fellowship and Scholarship Programs as administered by the National
Highway Institute (NHI).
Sec. 260.103 Definitions.
As used in this regulation, the following definitions apply:
(a) Candidate. One who meets the eligibility criteria set forth in
Sec. 260.107, and who has completed and submitted the necessary forms
and documents in order to be considered for selection for a fellowship
or scholarship.
(b) Direct educational expenses. Those expenses directly related to
attending school including tuition, student fees, books, and expendable
supplies but excluding travel expenses to and from the school.
(c) Employing agency. The agency for which the candidate works. This
may be either a State or local highway/transportation agency or the
FHWA.
(d) Fellowship. The grant presented to the recipient's school and
administered by the school to assist the candidate financially during
the period of graduate study.
(e) Living stipend. The portion of the fellowship or scholarship
grant remaining after the direct educational expenses have been
deducted.
(f) Local highway/transportation agency. The agency or metropolitan
planning organization with the responsibility for initiating and
carrying forward a highway program or public transportation program
utilizing highways at the local level, usually the city or county level.
(g) National Highway Institute (NHI). The organization located
within the FHWA responsible for the administration of the FHWA
fellowship and scholarship grant programs.
(h) Recipient. The successful candidate receiving a fellowship or
scholarship.
(i) Scholarship. The grant presented to the recipient's school and
administered by the school to assist the candidate financially during
the period of post-secondary study.
(j) State highway/transportation agency. The agency with the
responsibility for initiating and carrying forward a highway program or
public transportation program utilizing highways at the State level.
Sec. 260.105 Policy.
It is the policy of the FHWA to administer, through the NHI,
fellowship and scholarship grant programs to assist State and local
agencies and the FHWA in developing the expertise needed for the
implementation of their highway programs and to assist in the
[[Page 74]]
development of more effective transportation programs at all levels of
government. These programs shall provide financial support for up to 24
months of either full-time or part-time study in the field of highway
transportation. The programs for each year shall be announced by FHWA
notices. \1\ These notices shall contain an application form and shall
announce the number of grants to be awarded and their value.
---------------------------------------------------------------------------
\1\ The Federal Highway Administration notices are available for
inspection and copying as prescribed in 49 CFR part 7, appendix D.
[43 FR 3558, Jan. 26, 1978, as amended at 45 FR 67091, Oct. 9, 1980]
Sec. 260.107 Eligibility.
(a) Prior recipients of FHWA scholarships or fellowships are
eligible if they will have completed all specific work commitments
before beginining study under the programs for which applications are
made.
(b) Candidates for the fellowship program shall have earned
bachelor's or comparable college-level degrees prior to beginining
advanced studies under the program.
(c) Candidates shall submit evidence of acceptance, or probable
acceptance, for study in programs that will enhance their contributions
to their employers. Evidence of probable acceptance may be a letter from
the department chairman or other school official.
(d) Candidates shall agree to pursue certain minimum study loads as
determined by the FHWA and designated in the FHWA notices announcing the
programs each year.
(e) FHWA employees who receive awards will be required to execute
continued service agreements, consistent with the Government Employees
Training Act requirements, which obligate the employees to continue to
work for the agency for three times the duration of the training
received.
(f) Candidates who are students or employees of State or local
highway/transportation agencies shall agree in writing to work on a
full-time basis in public service with State or local highway/
transportation agencies for a specified period of time after completing
study under the program. The FHWA notices announcing the programs each
year shall specify the time period of the work commitment.
(g) Candidates shall agree to respond to brief questionnaires
designed to assist the NHI in program evaluation both during and
following the study period.
(h) Recipients of awards for full-time shall agree to limit their
part-time employment as stipulated in the FHWA notice announcing the
programs.
(i) Candidates shall not profit financially from FHWA grants. Where
acceptance of the living stipend portion of the grant would result in a
profit to the candidate, as determined by comparing the candidate's
regular full-time salary with the candidate's part-time salary and
employer salary support plus living stipend, the grant amount will be
reduced accordingly. In cases where a candidate must relocate and
maintain two households, exceptions to this condition will be
considered.
(j) Candidates shall be citizens, or shall declare their intent to
become citizens of the United States.
Sec. 260.109 Selection.
(a) Candidates shall be rated by a selection panel appointed by the
Director of the NHI. Members of the panel shall represent the highway
transportation interests of government, industry, and the academic
community. The factors considered by the selection panel are weighed in
accordance with specific program objectives.
(b) The major factors to be considered by the panel are:
(1) Candidate's potential to contribute to a public agency's highway
transportation program,
(2) Relevance of a candidate's study program to the objectives of
the fellowship or scholarship program,
(3) Relevant experience, and
(4) Academic and professional achievements.
(c) Using ratings given by the selection panel, the Director of the
NHI shall select candidates for awards and designate alternates.
(d) The FHWA may designate in the FHWA notices announcing the
programs the maximum number of awards
[[Page 75]]
that will be made to employees of any one agency.
Sec. 260.111 Responsibilities of educational institutions.
(a) The college or university chosen by the grant recipient shall
enter into an appropriate agreement with the FHWA providing for the
administration of the grant by the college or university.
(b) The college or university chosen by the recipient shall
designate a faculty advisor prior to the commitment of funds by the
FHWA. The faculty advisor will be requested to submit reports of the
recipient's study progress following completion of each study period.
These reports are oriented toward total program evaluation. To assure
the recipient's rights to privacy, the FHWA will obtain appropriate
advance concurrences from the recipient.
Sec. 260.113 Responsibilities of employing agencies.
(a) A candidate's employing agency is responsible for furnishing a
statement of endorsement and information concerning the relevancy of the
candidate's study to agency requirements. The agency is encouraged to
identify educational and training priorities and to provide backup to
support its priority candidates for these programs.
(b) Employing agencies are encouraged to give favorable
consideration to the requests of candidates for educational leave and
salary support for the study period to facilitate the candidates'
applications. Agency decisions involving salary support and educational
leave that will affect the acceptance of awards by recipients should be
made at the earliest possible date to provide adequate time for the FHWA
to select alternates to replace candidates that decline their awards.
(c) Agencies are responsible for negotiations with their candidates
concerning conditions of reinstatement and the candidates' commitments
to return to work.
(d) Employing agencies are encouraged to publicize the availability
of these grants throughout the agencies, to implement procedures for
internal evaluation of applications, and to forward the applications to
the FHWA division office in their State.
(e) Employing agencies that choose to process their employees'
applications are responsible for observing the cutoff date for the FHWA
to receive applications. This date will be stipulated in the Notices
announcing the program for each academic year.
Sec. 260.115 Equal opportunity.
(a) Consistent with the provisions of the Civil Rights Act of 1964
and Title VI, assurances executed by each State, 23 U.S.C. 324, and 29
U.S.C. 794, no applicant, including otherwise qualified handicapped
individuals, shall on the grounds of race, color, religion, sex,
national origin, or handicap, be excluded from participation in, be
denied benefits of, or be otherwise subjected to discrimination under
this program.
(b) In accordance with Executive Order 11141, no individual shall be
denied benefits of this program because of age.
(c) Agencies should make information on this program available to
all eligible employees, including otherwise qualified handicapped
individuals, so as to assure nondiscrimination on the grounds of race,
color, religion, sex, national origin, age, or handicap.
Sec. 260.117 Application procedures.
(a) The FHWA notices announcing each year's programs and containing
the application form may be obtained from FHWA regional and division
offices, State highway agencies, metropolitan planning organizations,
Governors' highway safety representatives, Urban Mass Transportation
Administration regional directors, major transit authorities and from
colleges and universities. Forms may also be obtained from the NHI, HHI-
3, FHWA, Washington, DC 20590.
(b) In order to become a candidate, the applicant shall complete and
forward the application form according to the instructions in the FHWA
notice announcing the programs. The cutoff date for submitting the
application stipulated in the notices should be observed.
Subparts B-C [Reserved]
[[Page 76]]
Subpart D--State Education and Training Programs
Authority: 23 U.S.C. 315, 321 (b) and (c); 49 CFR 1.48(b).
Source: 43 FR 35477, Aug. 10, 1978, unless otherwise noted.
Sec. 260.401 Purpose.
To prescribe policy and implement procedures for the administration
of Federal-aid funds for education and training of State and local
highway department employees.
Sec. 260.403 Policy.
It is the policy of the Federal Highway Administration (FHWA) to
provide continuing education of State and local highway agency employees
engaged or to be engaged in Federal-aid highway work. To carry out this
policy, States are encouraged to fully utilize the authority contained
in 23 U.S.C. 321(b) and 321(c).
Sec. 260.405 Application and approval procedures.
The State may apply for education and training funds by submitting a
signed agreement designating the desired Federal-aid funds, not to
exceed the limits in 23 U.S.C. 321(b). The FHWA's approval of the
agreement will constitute obligation of funds and authorization for work
to proceed.
Sec. 260.407 Implementation and reimbursement.
(a) After execution of the fiscal agreement, the State may make
grants and contracts with public and private agencies, institutions,
individuals, and the National Highway Institute to provide highway-
related training and education. The principal recipients of this
training shall be employees who are engaged or likely to be engaged, in
Federal-aid highway work.
(b) Claims for Federal-aid reimbursement of costs incurred may be
submitted following established procedures to cover 75 percent of the
cost of tuition and direct educational expenses (including incidental
training, equipment, and program materials) exclusive of travel,
subsistence, or salary of trainees.
(c) As provided in 23 U.S.C. 321(c), education and training for
subject areas that are identified by the FHWA as Federal program
responsibilities, shall be provided at no cost to State and local
governments.
[43 FR 35477, Aug. 10, 1978, as amended at 45 FR 6378, Jan. 28, 1980; 53
FR 3745, Feb. 9, 1988]
[[Page 77]]
Appendix A to Part 260
[GRAPHIC] [TIFF OMITTED] TC14OC91.005
[[Page 78]]
[GRAPHIC] [TIFF OMITTED] TC14OC91.006
[[Page 79]]
SUBCHAPTER E--PLANNING AND RESEARCH
PART 420--PLANNING AND RESEARCH PROGRAM ADMINISTRATION--Table of Contents
Subpart A--Administration of FHWA Planning and Research Funds
Sec.
420.101 What is the purpose of this part?
420.103 How does the FHWA define the terms used in this part?
420.105 What is the FHWA's policy on use of FHWA planning and research
funds?
420.107 What is the minimum required expenditure of State planning and
research funds for research development and technology
transfer?
420.109 What are the requirements for distribution of metropolitan
planning funds?
420.111 What are the documentation requirements for use of FHWA
planning and research funds?
420.113 What costs are eligible?
420.115 What are the FHWA approval and authorization requirements?
420.117 What are the program monitoring and reporting requirements?
420.119 What are the fiscal requirements?
420.121 What other requirements apply to the administration of FHWA
planning and research funds?
Subpart B--Research, Development, and Technology Transfer Program
Management
420.201 What is the purpose of this subpart?
420.203 How does the FHWA define the terms used in this subpart?
420.205 What is the FHWA's policy for research, development, and
technology transfer funding?
420.207 What are the requirements for research, development, and
technology transfer work programs?
420.209 What are the conditions for approval?
Authority: 23 U.S.C. 103(b)(6), 104(f), 115, 120, 133(b), 134(n),
303(g), 505, and 315; and 49 CFR 1.48(b).
Source: 67 FR 47271, July 18, 2002, unless otherwise noted.
Subpart A--Administration of FHWA Planning and Research Funds
Sec. 420.101 What is the purpose of this part?
This part prescribes the Federal Highway Administration (FHWA)
policies and procedures for the administration of activities undertaken
by State departments of transportation (State DOTs) and their
subrecipients, including metropolitan planning organizations (MPOs),
with FHWA planning and research funds. Subpart A identifies the
administrative requirements that apply to use of FHWA planning and
research funds both for planning and for research, development, and
technology transfer (RD&T) activities. Subpart B describes the policies
and procedures that relate to the approval and authorization of RD&T
work programs. The requirements in this part supplement those in 49 CFR
part 18, Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments and 49 CFR part 19, Uniform
Administrative Requirements for Grants and Cooperative Agreements with
Institutions of Higher Education, Hospitals and Other Non-Profit
Organizations.
Sec. 420.103 How does the FHWA define the terms used in this part?
Unless otherwise specified in this part, the definitions in 23
U.S.C. 101(a) are applicable to this part. As used in this part:
FHWA planning and research funds include:
(1) State planning and research (SPR) funds (the two percent set
aside of funds apportioned or allocated to a State DOT for activities
authorized under 23 U.S.C. 505);
(2) Metropolitan planning (PL) funds (the one percent of funds
authorized under 23 U.S.C. 104(f) to carry out the provisions of 23
U.S.C. 134);
(3) National highway system (NHS) funds authorized under 23 U.S.C.
104(b)(1) used for transportation planning in accordance with 23 U.S.C.
134
[[Page 80]]
and 135, highway research and planning in accordance with 23 U.S.C. 505,
highway-related technology transfer activities, or development and
establishment of management systems under 23 U.S.C. 303;
(4) Surface transportation program (STP) funds authorized under 23
U.S.C. 104(b)(3) used for highway and transit research and development
and technology transfer programs, surface transportation planning
programs, or development and establishment of management systems under
23 U.S.C. 303; and
(5) Minimum guarantee (MG) funds authorized under 23 U.S.C. 505 used
for transportation planning and research, development and technology
transfer activities that are eligible under title 23, U.S.C.
Grant agreement means a legal instrument reflecting a relationship
between an awarding agency and a recipient or subrecipient when the
principal purpose of the relationship is to transfer a thing of value to
the recipient or subrecipient to carry out a public purpose of support
or stimulation authorized by a law instead of acquiring (by purchase,
lease, or barter) property or services for the direct benefit or use of
the awarding agency.
Metropolitan planning area means the geographic area in which the
metropolitan transportation planning process required by 23 U.S.C. 134
and 49 U.S.C. 5303-5305 must be carried out.
Metropolitan planning organization (MPO) means the forum for
cooperative transportation decisionmaking for a metropolitan planning
area.
National Cooperative Highway Research Program (NCHRP) means the
cooperative RD&T program directed toward solving problems of national or
regional significance identified by State DOTs and the FHWA, and
administered by the Transportation Research Board, National Academy of
Sciences.
Procurement contract means a legal instrument reflecting a
relationship between an awarding agency and a recipient or subrecipient
when the principal purpose of the instrument is to acquire (by purchase,
lease, or barter) property or services for the direct benefit or use of
the awarding agency.
State Department of Transportation (State DOT) means that
department, commission, board, or official of any State charged by its
laws with the responsibility for highway construction.
Transportation management area (TMA) means an urbanized area with a
population over 200,000 (as determined by the latest decennial census)
and designated by the Secretary of Transportation or other area when TMA
designation is requested by the Governor and the MPO (or affected local
officials), and officially designated by the Secretary of
Transportation.
Transportation pooled fund study means a planning, research,
development, or technology transfer activity administered by the FHWA, a
lead State DOT, or other organization that is supported by two or more
participants and that addresses an issue of significant or widespread
interest related to highway, public, or intermodal transportation. A
transportation pooled fund study is intended to address a new area or
provide information that will complement or advance previous
investigations of the subject matter.
Work program means a periodic statement of proposed work, covering
no less than one year, and estimated costs that documents eligible
activities to be undertaken by State DOTs and/or their subrecipients
with FHWA planning and research funds.
Sec. 420.105 What is the FHWA's policy on use of FHWA planning and research funds?
(a) If the FHWA determines that planning activities of national
significance, identified in paragraph (b) of this section, and the
requirements of 23 U.S.C. 134, 135, 303, and 505 are being adequately
addressed, the FHWA will allow State DOTs and MPOs:
(1) Maximum possible flexibility in the use of FHWA planning and
research funds to meet highway and local public transportation planning
and RD&T needs at the national, State, and local levels while ensuring
legal use of such funds and avoiding unnecessary duplication of efforts;
and
(2) To determine which eligible planning and RD&T activities they
desire
[[Page 81]]
to support with FHWA planning and research funds and at what funding
level.
(b) The State DOTs must provide data that support the FHWA's
responsibilities to the Congress and to the public. These data include,
but are not limited to, information required for: preparing proposed
legislation and reports to the Congress; evaluating the extent,
performance, condition, and use of the Nation's transportation systems;
analyzing existing and proposed Federal-aid funding methods and levels
and the assignment of user cost responsibility; maintaining a critical
information base on fuel availability, use, and revenues generated; and
calculating apportionment factors.
(c) The policy in paragraph (a) of this section does not remove the
FHWA's responsibility and authority to determine which activities are
eligible for funding. Activities proposed to be funded with FHWA
planning and research funds by the State DOTs and their subrecipients
shall be documented and submitted for FHWA approval and authorization as
prescribed in Secs. 420.111 and 420.113. (The information collection
requirements in paragraph (b) of Sec. 420.105 have been approved by the
Office of Management and Budget (OMB) under control numbers 2125-0028
and 2125-0032.)
Sec. 420.107 What is the minimum required expenditure of State planning and research funds for research development and technology transfer?
(a) A State DOT must expend no less than 25 percent of its annual
SPR funds on RD&T activities relating to highway, public transportation,
and intermodal transportation systems in accordance with the provisions
of 23 U.S.C. 505(b), unless a State DOT certifies, and the FHWA accepts
the State DOT's certification, that total expenditures by the State DOT
during the fiscal year for transportation planning under 23 U.S.C. 134
and 135 will exceed 75 percent of the amount apportioned for the fiscal
year.
(b) Prior to submitting a request for an exception to the 25 percent
requirement, the State DOT must ensure that:
(1) The additional planning activities are essential, and there are
no other reasonable options available for funding these planning
activities (including the use of NHS, STP, MG, or FTA State planning and
research funds (49 U.S.C. 5313(b)) or by deferment of lower priority
planning activities);
(2) The planning activities have a higher priority than RD&T
activities in the overall needs of the State DOT for a given fiscal
year; and
(3) The total level of effort by the State DOT in RD&T (using both
Federal and State funds) is adequate.
(c) If the State DOT chooses to pursue an exception, it must send
the request, along with supporting justification, to the FHWA Division
Administrator for action by the FHWA Associate Administrator for
Research, Development, and Technology. The Associate Administrator's
decision will be based upon the following considerations:
(1) Whether the State DOT has a process for identifying RD&T needs
and for implementing a viable RD&T program.
(2) Whether the State DOT is contributing to cooperative RD&T
programs or activities, such as the National Cooperative Highway
Research Program, the Transportation Research Board, and transportation
pooled fund studies.
(3) Whether the State DOT is using SPR funds for technology transfer
and for transit or intermodal research and development to help meet the
25 percent minimum requirement.
(4) Whether the State DOT can demonstrate that it will meet the
requirement or substantially increase its RD&T expenditures over a
multi-year period, if an exception is granted for the fiscal year.
(5) Whether Federal funds needed for planning exceed the 75 percent
limit for the fiscal year and whether any unused planning funds are
available from previous fiscal years.
(d) If the FHWA Associate Administrator for Research, Development,
and Technology approves the State DOT's request for an exception, the
exception is valid only for that fiscal year's funds. A new request must
be submitted and approved for subsequent fiscal year funds.
[[Page 82]]
Sec. 420.109 What are the requirements for distribution of metropolitan planning funds?
(a) The State DOTs shall make all PL funds authorized by 23 U.S.C.
104(f) available to the MPOs in accordance with a formula developed by
the State DOT, in consultation with the MPOs, and approved by the FHWA
Division Administrator. The formula may allow for a portion of the PL
funds to be used by the State DOT, or other agency agreed to by the
State DOT and the MPOs, for activities that benefit all MPOs in the
State, but State DOTs shall not use any PL funds for grant or subgrant
administration. The formula may also provide for a portion of the funds
to be made available for discretionary grants to MPOs to supplement
their annual amount received under the distribution formula.
(b) In developing the formula for distributing PL funds, the State
DOT shall consider population, status of planning, attainment of air
quality standards, metropolitan area transportation needs, and other
factors necessary to provide for an appropriate distribution of funds to
carry out the requirements of 23 U.S.C. 134 and other applicable
requirements of Federal law.
(c) The State DOTs shall inform the MPOs and the FHWA Division
Office of the amounts allocated to each MPO as soon as possible after PL
funds have been apportioned by the FHWA to the State DOTs.
(d) If the State DOT, in a State receiving the minimum apportionment
of PL funds under the provisions of 23 U.S.C. 104(f)(2), determines that
the share of funds to be allocated to any MPO results in the MPO
receiving more funds than necessary to carry out the provisions of 23
U.S.C. 134, the State DOT may, after considering the views of the
affected MPO(s) and with the approval of the FHWA Division
Administrator, use those funds for transportation planning outside of
metropolitan planning areas.
(e) In accordance with the provisions of 23 U.S.C. 134(n), any PL
funds not needed for carrying out the metropolitan planning provisions
of 23 U.S.C. 134 in any State may be made available by the MPO(s) to the
State DOT for funding statewide planning activities under 23 U.S.C. 135,
subject to approval by the FHWA Division Administrator.
(f) Any State PL fund distribution formula that does not meet the
requirements of paragraphs (a) and (b) of this section shall be brought
into conformance with those requirements before distribution on any new
apportionment of PL funds.
Sec. 420.111 What are the documentation requirements for use of FHWA planning and research funds?
(a) Proposed use of FHWA planning and research funds must be
documented by the State DOTs and subrecipients in a work program, or
other document that describes the work to be accomplished, that is
acceptable to the FHWA Division Administrator. Statewide, metropolitan,
other transportation planning activities, and transportation RD&T
activities may be documented in separate programs, paired in various
combinations, or brought together as a single work program. The
expenditure of PL funds for transportation planning outside of
metropolitan planning areas under Sec. 420.109(d) may be included in the
work program for statewide transportation planning activities or in a
separate work program submitted by the State DOT.
(b)(1) A work program(s) for transportation planning activities must
include a description of work to be accomplished and cost estimates by
activity or task. In addition, each work program must include a summary
that shows:
(i) Federal share by type of fund;
(ii) Matching rate by type of fund;
(iii) State and/or local matching share; and
(iv) Other State or local funds.
(2) Additional information on metropolitan planning area work
programs is contained in 23 CFR part 450. Additional information on RD&T
work program content and format is contained in subpart B of this part.
(c) In areas not designated as TMAs, a simplified statement of work
that describes who will perform the work and the work that will be
accomplished using Federal funds may be used in lieu of a work program.
If a simplified statement of work is used, it may be
[[Page 83]]
submitted separately or as part of the Statewide planning work program.
(d) The State DOTs that use separate Federal-aid projects in
accordance with paragraph (a) of this section must submit an overall
summary that identifies the amounts and sources of FHWA planning and
research funds available, matching funds, and the amounts budgeted for
each activity (e.g., statewide planning, RD&T, each metropolitan area,
contributions to NCHRP and transportation pooled fund studies, etc.).
(e) The State DOTs and MPOs also are encouraged to include cost
estimates for transportation planning, research, development, and
technology transfer related activities funded with other Federal or
State and/or local funds; particularly for producing the FHWA-required
data specified in paragraph (b) of Sec. 420.105, for planning for other
transportation modes, and for air quality planning activities in areas
designated as non-attainment for transportation-related pollutants in
their work programs. The MPOs in TMAs must include such information in
their work programs. (The information collection requirements in
Secs. 420.111 have been approved by the OMB and assigned control numbers
2125-0039 for States and 2132-0529 for MPOs.)
Sec. 420.113 What costs are eligible?
(a) Costs will be eligible for FHWA participation provided that the
costs:
(1) Are for work performed for activities eligible under the section
of title 23, U.S.C., applicable to the class of funds used for the
activities;
(2) Are verifiable from the State DOT's or the subrecipient's
records;
(3) Are necessary and reasonable for proper and efficient
accomplishment of project objectives and meet the other criteria for
allowable costs in the applicable cost principles cited in 49 CFR 18.22;
(4) Are included in the approved budget, or amendment thereto; and
(5) Were not incurred prior to FHWA authorization.
(b) Indirect costs of State DOTs and their subrecipients are
allowable if supported by a cost allocation plan and indirect cost
proposal prepared, submitted (if required), and approved by the
cognizant or oversight agency in accordance with the OMB requirements
applicable to the State DOT or subrecipient specified in 49 CFR
18.22(b).
Sec. 420.115 What are the FHWA approval and authorization requirements?
(a) The State DOT and its subrecipients must obtain approval and
authorization to proceed prior to beginning work on activities to be
undertaken with FHWA planning and research funds. Such approvals and
authorizations should be based on final work programs or other documents
that describe the work to be performed. The State DOT and its
subrecipients also must obtain prior approval for budget and
programmatic changes as specified in 49 CFR 18.30 or 49 CFR 19.25 and
for those items of allowable costs which require approval in accordance
with the cost principles specified in 49 CFR 18.22(b) applicable to the
entity expending the funds.
(b) Authorization to proceed with the FHWA funded work in whole or
in part is a contractual obligation of the Federal government pursuant
to 23 U.S.C. 106 and requires that appropriate funds be available for
the full Federal share of the cost of work authorized. Those State DOTs
that do not have sufficient FHWA planning and research funds or
obligation authority available to obligate the full Federal share of a
work program or project may utilize the advance construction provisions
of 23 U.S.C. 115(a) in accordance with the requirements of 23 CFR part
630, subpart G. The State DOTs that do not meet the advance construction
provisions, or do not wish to utilize them, may request authorization to
proceed with that portion of the work for which FHWA planning and
research funds are available. In the latter case, authorization to
proceed may be given for either selected work activities or for a
portion of the program period, but such authorization does not
constitute a commitment by the FHWA to fund the remaining portion of the
work if additional funds do become available.
(c) A project agreement must be executed by the State DOT and the
FHWA Division Office for each statewide transportation planning,
metropolitan
[[Page 84]]
planning area, or RD&T work program, individual activity or study, or
any combination administered as a single Federal-aid project. The
project agreement may be executed concurrent with or after authorization
has been given by the FHWA Division Administrator to proceed with the
work in whole or in part. In the event that the project agreement is
executed for only part of the work, the project agreement must be
amended when authorization is given to proceed with additional work.
(The information collection requirements in Sec. 420.115(c) have been
approved by the OMB and assigned control numbers 2125-0529.)
Sec. 420.117 What are the program monitoring and reporting requirements?
(a) In accordance with 49 CFR 18.40, the State DOT shall monitor all
activities performed by its staff or by subrecipients with FHWA planning
and research funds to assure that the work is being managed and
performed satisfactorily and that time schedules are being met.
(b)(1) The State DOT must submit performance and expenditure
reports, including a report from each subrecipient, that contain as a
minimum:
(i) Comparison of actual performance with established goals;
(ii) Progress in meeting schedules;
(iii) Status of expenditures in a format compatible with the work
program, including a comparison of budgeted (approved) amounts and
actual costs incurred;
(iv) Cost overruns or underruns;
(v) Approved work program revisions; and
(vi) Other pertinent supporting data.
(2) Additional information on reporting requirements for individual
RD&T studies is contained in subpart B of this part.
(c) Reports required by paragraph (b) of this section shall be
annual unless more frequent reporting is determined to be necessary by
the FHWA Division Administrator. The FHWA may not require more frequent
than quarterly reporting unless the criteria in 49 CFR 18.12 or 49 CFR
19.14 are met. Reports are due 90 days after the end of the reporting
period for annual and final reports and no later than 30 days after the
end of the reporting period for other reports.
(d) Events that have significant impact on the work must be reported
as soon as they become known. The types of events or conditions that
require reporting include: problems, delays, or adverse conditions that
will materially affect the ability to attain program objectives. This
disclosure must be accompanied by a statement of the action taken, or
contemplated, and any Federal assistance needed to resolve the
situation.
(e) Suitable reports that document the results of activities
performed with FHWA planning and research funds must be prepared by the
State DOT or subrecipient and submitted for approval by the FHWA
Division Administrator prior to publication. The FHWA Division
Administrator may waive this requirement for prior approval. The FHWA's
approval of reports constitutes acceptance of such reports as evidence
of work performed but does not imply endorsement of a report's findings
or recommendations. Reports prepared for FHWA-funded work must include
appropriate credit references and disclaimer statements. (The
information collection requirements in Sec. 420.117 have been approved
by the OMB and assigned control numbers 2125-0039 for States and 2132-
0529 for MPOs.)
Sec. 420.119 What are the fiscal requirements?
(a) The maximum rate of Federal participation for FHWA planning and
research funds shall be as prescribed in title 23, U.S.C., for the
specific class of funds used (i.e., SPR, PL, NHS, STP, or MG) except as
specified in paragraph (d) of this section. The provisions of 49 CFR
18.24 or 49 CFR 19.23 are applicable to any necessary matching of FHWA
planning and research funds.
(b) The value of third party in-kind contributions may be accepted
as the match for FHWA planning and research funds, in accordance with
the provisions of 49 CFR 18.24(a)(2) or 49 CFR 19.23(a) and may be on
either a total planning work program basis or for specific line items or
projects. The use of third party in-kind contributions must be
identified in the original work program/scope of work and the grant/
[[Page 85]]
subgrant agreement, or amendments thereto. The use of third-party in-
kind contributions must be approved in advance by the FHWA Division
Administrator and may not be made retroactive prior to approval of the
work program/scope of work or an amendment thereto. The State DOT or
subrecipient is responsible for ensuring that the following additional
criteria are met:
(1) The third party performing the work agrees to allow the value of
the work to be used as the match;
(2) The cost of the third party work is not paid for by other
Federal funds or used as a match for other federally funded grants/
subgrants;
(3) The work performed by the third party is an eligible
transportation planning or RD&T related activity that benefits the
federally funded work;
(4) The third party costs (i.e., salaries, fringe benefits, etc.)
are allowable under the applicable Office of Management and Budget (OMB)
cost principles (i.e., OMB Circular A-21, A-87, or A-122);\1\
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\1\ OMB Circulars are available on the Internet at http://
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(5) The third party work is performed during the period to which the
matching requirement applies;
(6) The third party in-kind contributions are verifiable from the
records of the State DOT or subrecipient and these records show how the
value placed on third party in-kind contributions was derived; and
(7) If the total amount of third party expenditures at the end of
the program period is not sufficient to match the total expenditure of
Federal funds by the recipient/subrecipient, the recipient/subrecipient
will need to make up any shortfall with its own funds.
(c) In accordance with the provisions of 23 U.S.C. 120(j), toll
revenues that are generated and used by public, quasi-public, and
private agencies to build, improve, or maintain highways, bridges, or
tunnels that serve the public purpose of interstate commerce may be used
as a credit for the non-Federal share of an FHWA planning and research
funded project.
(d) In accordance with 23 U.S.C. 505(c) or 23 U.S.C. 104(f)(3), the
requirement for matching SPR or PL funds may be waived if the FHWA
determines the interests of the Federal-aid highway program would be
best served. Waiver of the matching requirement is intended to encourage
State DOTs and/or MPOs to pool SPR and/or PL funds to address national
or regional high priority planning or RD&T problems that would benefit
multiple States and/or MPOs. Requests for waiver of matching
requirements must be submitted to the FHWA headquarters office for
approval by the Associate Administrator for Planning and Environment
(for planning activities) or the Associate Administrator for Research,
Development, and Technology (for RD&T activities). The matching
requirement may not be waived for NHS, STP, or MG funds.
(e) NHS, STP, or MG funds used for eligible planning and RD&T
purposes must be identified separately from SPR or PL funds in the work
program(s) and must be administered and accounted for separately for
fiscal purposes. In accordance with the statewide and metropolitan
planning process requirements for fiscally constrained transportation
improvement program (TIPs) planning or RD&T activities funded with NHS,
STP, or MG funds must be included in the Statewide and/or metropolitan
TIP(s) unless the State DOT and MPO (for a metropolitan area) agree that
they may be excluded from the TIP.
(f) Payment shall be made in accordance with the provisions of 49
CFR 18.21 or 49 CFR 19.22.
Sec. 420.121 What other requirements apply to the administration of FHWA planning and research funds?
(a) Audits. Audits of the State DOTs and their subrecipients shall
be performed in accordance with OMB Circular A-133, Audits of States,
Local Governments, and Non-Profit Organizations.\2\ Audits of for-profit
contractors are to be performed in accordance with State DOT or
subrecipient contract administration procedures.
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\2\ See footnote 1.
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[[Page 86]]
(b) Copyrights. The State DOTs and their subrecipients may copyright
any books, publications, or other copyrightable materials developed in
the course of the FHWA planning and research funded project. The FHWA
reserves a royalty-free, nonexclusive and irrevocable right to
reproduce, publish, or otherwise use, and to authorize others to use,
the work for Government purposes.
(c) Disadvantaged business enterprises. The State DOTs must
administer the transportation planning and RD&T program(s) consistent
with their overall efforts to implement section 1001(b) of the
Transportation Equity Act for the 21st Century (Pub. L. 105-178) and 49
CFR part 26 regarding disadvantaged business enterprises.
(d) Drug free workplace. In accordance with the provisions of 49 CFR
part 29, subpart F, State DOTs must certify to the FHWA that they will
provide a drug free workplace. This requirement may be satisfied through
the annual certification for the Federal-aid highway program.
(e) Equipment. Acquisition, use, and disposition of equipment
purchased with FHWA planning and research funds by the State DOTs must
be in accordance with 49 CFR 18.32(b). Local government subrecipients of
State DOTs must follow the procedures specified by the State DOT.
Universities, hospitals, and other non-profit organizations must follow
the procedures in 49 CFR 19.34.
(f) Financial management systems. The financial management systems
of the State DOTs and their local government subrecipients must be in
accordance with the provisions of 49 CFR 18.20(a). The financial
management systems of universities, hospitals, and other non-profit
organizations must be in accordance with 49 CFR 19.21.
(g) Lobbying. The provisions of 49 CFR part 20 regarding
restrictions on influencing certain Federal activities are applicable to
all tiers of recipients of FHWA planning and research funds.
(h) Nondiscrimination. The nondiscrimination provisions of 23 CFR
parts 200 and 230 and 49 CFR part 21, with respect to Title VI of the
Civil Rights Act of 1964 and the Civil Rights Restoration Act of 1987,
apply to all programs and activities of recipients, subrecipients, and
contractors receiving FHWA planning and research funds whether or not
those programs or activities are federally funded.
(i) Patents. The State DOTs and their subrecipients are subject to
the provisions of 37 CFR part 401 governing patents and inventions and
must include or cite the standard patent rights clause at 37 CFR 401.14,
except for Sec. 401.14(g), in all subgrants or contracts. In addition,
State DOTs and their subrecipients must include the following clause,
suitably modified to identify the parties, in all subgrants or
contracts, regardless of tier, for experimental, developmental or
research work: ``The subgrantee or contractor will retain all rights
provided for the State in this clause, and the State will not, as part
of the consideration for awarding the subgrant or contract, obtain
rights in the subgrantee's or contractor's subject inventions.''
(j) Procurement. Procedures for the procurement of property and
services with FHWA planning and research funds by the State DOTs must be
in accordance with 49 CFR 18.36(a) and (i) and, if applicable, 18.36(t).
Local government subrecipients of State DOTs must follow the procedures
specified by the State DOT. Universities, hospitals, and other non-
profit organizations must follow the procedures in 49 CFR 19.40 through
19.48. The State DOTs and their subrecipients must not use FHWA funds
for procurements from persons (as defined in 49 CFR 29.105) who have
been debarred or suspended in accordance with the provisions of 49 CFR
part 29, subparts A through E.
(k) Program income. Program income, as defined in 49 CFR 18.25(b) or
49 CFR 19.24, must be shown and deducted from total expenditures to
determine the Federal share to be reimbursed, unless the FHWA Division
Administrator has given prior approval to use the program income to
perform additional eligible work or as the non-Federal match.
(l) Record retention. Recordkeeping and retention requirements must
be in accordance with 49 CFR 18.42 or 49 CFR 19.53.
(m) Subgrants to local governments. The State DOTs and subrecipients
are
[[Page 87]]
responsible for administering FHWA planning and research funds passed
through to MPOs and local governments, for ensuring that such funds are
expended for eligible activities, and for ensuring that the funds are
administered in accordance with this part, 49 CFR part 18, Uniform
Administrative Requirements for Grants and Agreements to State and Local
Governments, and applicable OMB cost principles. The State DOTs shall
follow State laws and procedures when awarding and administering
subgrants to MPOs and local governments and must ensure that the
requirements of 49 CFR 18.37(a) have been satisfied.
(n) Subgrants to universities, hospitals, and other non-profit
organizations. The State DOTs and subrecipients are responsible for
ensuring that FHWA planning and research funds passed through to
universities, hospitals, and other non-profit organizations are expended
for eligible activities and for ensuring that the funds are administered
in accordance with this part, 49 CFR part 19, Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations, and applicable
OMB cost principles.
(o) Suspension and debarment. (1) The State DOTs and their
subrecipients shall not award grants or cooperative agreements to
entities who are debarred or suspended, or otherwise excluded from or
ineligible for participation in Federal assistance programs under
Executive Order 12549 of February 18, 1986 (3 CFR, 1986 Comp., p. 189);
and
(2) The State DOTs and their subrecipients shall comply with the
provisions of 49 CFR part 29, subparts A through E, for procurements
from persons (as defined in 49 CFR 29.105) who have been debarred or
suspended.
(p) Supplies. Acquisition and disposition of supplies acquired by
the State DOTs and their subrecipients with FHWA planning and research
funds must be in accordance with 49 CFR 18.33 or 49 CFR 19.35.
Subpart B--Research, Development and Technology Transfer Program
Management
Sec. 420.201 What is the purpose of this subpart?
The purpose of this subpart is to prescribe requirements for
research, development, and technology transfer (RD&T) activities,
programs, and studies undertaken by State DOTs and their subrecipients
with FHWA planning and research funds.
Sec. 420.203 How does the FHWA define the terms used in this subpart?
Unless otherwise specified in this part, the definitions in 23
U.S.C. 101(a) and subpart A of this part, are applicable to this
subpart. As used in this subpart:
Applied research means the study of phenomena to gain knowledge or
understanding necessary for determining the means by which a recognized
need may be met; the primary purpose of this kind of research is to
answer a question or solve a problem.
Basic research means the study of phenomena, and of observable
facts, without specific applications towards processes or products in
mind; the primary purpose of this kind of research is to increase
knowledge.
Development means the systematic use of the knowledge or
understanding gained from research, directed toward the production of
useful materials, devices, systems or methods, including design and
development of prototypes and processes.
Final report means a report documenting a completed RD&T study or
activity.
Intermodal RD&T means research, development, and technology transfer
activities involving more than one mode of transportation, including
transfer facilities between modes.
Peer exchange means a periodic review of a State DOT's RD&T program,
or portion thereof, by representatives of other State DOT's, for the
purpose of exchange of information or best practices. The State DOT may
also invite the participation of the FHWA, and other Federal, State,
regional or local
[[Page 88]]
transportation agencies, the Transportation Research Board, academic
institutions, foundations or private firms that support transportation
research, development or technology transfer activities.
RD&T activity means a basic or applied research project or study,
development or technology transfer activity.
Research means a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. Research can be basic
or applied.
Technology transfer means those activities that lead to the adoption
of a new technique or product by users and involves dissemination,
demonstration, training, and other activities that lead to eventual
innovation.
Transportation Research Information Services (TRIS) means the
database produced and maintained by the Transportation Research Board
and available online through the National Transportation Library. TRIS
includes bibliographic records and abstracts of on-going and completed
RD&T activities. TRIS Online also includes links to the full text of
public-domain documents.
Sec. 420.205 What is the FHWA's policy for research, development, and technology transfer funding?
(a) It is the FHWA's policy to administer the RD&T program
activities utilizing FHWA planning and research funds consistent with
the policy specified in Sec. 420.105 and the following general
principles in paragraphs (b) through (g) of this section.
(b) The State DOTs must provide information necessary for peer
exchanges.
(c) The State DOTs are encouraged to develop, establish, and
implement an RD&T program, funded with Federal and State DOT resources
that anticipates and addresses transportation concerns before they
become critical problems. Further, the State DOTs are encouraged to
include in this program development and technology transfer programs to
share the results of their own research efforts and promote the use of
new technology.
(d) To promote effective use of available resources, the State DOTs
are encouraged to cooperate with other State DOTs, the FHWA, and other
appropriate agencies to achieve RD&T objectives established at the
national level and to develop a technology transfer program to promote
and use those results. This includes contributing to cooperative RD&T
programs such as the NCHRP, the TRB, and transportation pooled fund
studies as a means of addressing national and regional issues and as a
means of leveraging funds.
(e) The State DOTs will be allowed the authority and flexibility to
manage and direct their RD&T activities as presented in their work
programs, and to initiate RD&T activities supported by FHWA planning and
research funds, subject to the limitation of Federal funds and to
compliance with program conditions set forth in subpart A of this part
and Sec. 420.207.
(f) The State DOTs will have primary responsibility for managing
RD&T activities supported with FHWA planning and research funds carried
out by other State agencies and organizations and for ensuring that such
funds are expended for purposes consistent with this subpart.
(g) Each State DOT must develop, establish, and implement a
management process that ensures effective use of available FHWA planning
and research funds for RD&T activities on a statewide basis. Each State
DOT is permitted to tailor its management process to meet State or local
needs; however, the process must comply with the minimum requirements
and conditions of this subpart.
(h) The State DOTs are encouraged to make effective use of the FHWA
Division, Resource Center, and Headquarters office expertise in
developing and carrying out their RD&T activities. Participation of the
FHWA on advisory panels and in program exchange meetings is encouraged.
Sec. 420.207 What are the requirements for research, development, and technology transfer work programs?
(a) The State DOT's RD&T work program must, as a minimum, consist of
a description of RD&T activities to be accomplished during the program
period, estimated costs for each eligible
[[Page 89]]
activity, and a description of any cooperative activities including the
State DOT's participation in any transportation pooled fund studies and
the NCHRP. The State DOT's work program should include a list of the
major items with a cost estimate for each item. The work program should
also include any study funded under a previous work program until a
final report has been completed for the study.
(b) The State DOT's RD&T work program must include financial
summaries showing the funding levels and share (Federal, State, and
other sources) for RD&T activities for the program year. State DOTs are
encouraged to include any activity funded 100 percent with State or
other funds for information purposes.
(c) Approval and authorization procedures in Sec. 420.115 are
applicable to the State DOT's RD&T work program.
Sec. 420.209 What are the conditions for approval?
(a) As a condition for approval of FHWA planning and research funds
for RD&T activities, a State DOT must develop, establish, and implement
a management process that identifies and results in implementation of
RD&T activities expected to address high priority transportation issues.
The management process must include:
(1) An interactive process for identification and prioritization of
RD&T activities for inclusion in an RD&T work program;
(2) Use of all FHWA planning and research funds set aside for RD&T
activities, either internally or for participation in transportation
pooled fund studies or other cooperative RD&T programs, to the maximum
extent possible;
(3) Procedures for tracking program activities, schedules,
accomplishments, and fiscal commitments;
(4) Support and use of the TRIS database for program development,
reporting of active RD&T activities, and input of the final report
information;
(5) Procedures to determine the effectiveness of the State DOT's
management process in implementing the RD&T program, to determine the
utilization of the State DOT's RD&T outputs, and to facilitate peer
exchanges of its RD&T Program on a periodic basis;
(6) Procedures for documenting RD&T activities through the
preparation of final reports. As a minimum, the documentation must
include the data collected, analyses performed, conclusions, and
recommendations. The State DOT must actively implement appropriate
research findings and should document benefits; and
(7) Participation in peer exchanges of its RD&T management process
and of other State DOTs' programs on a periodic basis. To assist peer
exchange teams in conducting an effective exchange, the State DOT must
provide to them the information and documentation required to be
collected and maintained under this subpart. Travel and other costs
associated with the State DOT's peer exchange may be identified as a
line item in the State DOT's work program and will be eligible for 100
percent Federal funding. The peer exchange team must prepare a written
report of the exchange.
(b) Documentation that describes the State DOT's management process
and the procedures for selecting and implementing RD&T activities must
be developed by the State DOT and submitted to the FHWA Division office
for approval. Significant changes in the management process also must be
submitted by the State DOT to the FHWA for approval. The State DOT must
make the documentation available, as necessary, to facilitate peer
exchanges.
(c) The State DOT must include a certification that it is in full
compliance with the requirements of this subpart in each RD&T work
program. If the State DOT is unable to certify full compliance, the FHWA
Division Administrator may grant conditional approval of the State DOT's
work program. A conditional approval must cite those areas of the State
DOT's management process that are deficient and require that the
deficiencies be corrected within 6 months of conditional approval. The
certification must consist of a statement signed by the Administrator,
or an official designated by the Administrator, of the State DOT
certifying as follows: ``I (name of certifying official), (position
title), of the State (Commonwealth) of --------, do hereby
[[Page 90]]
certify that the State (Commonwealth) is in compliance with all
requirements of 23 U.S.C. 505 and its implementing regulations with
respect to the research, development, and technology transfer program,
and contemplate no changes in statutes, regulations, or administrative
procedures which would affect such compliance.''
(d) The FHWA Division Administrator shall periodically review the
State DOT's management process to determine if the State is in
compliance with the requirements of this subpart. If the Division
Administrator determines that a State DOT is not complying with the
requirements of this subpart, or is not performing in accordance with
its RD&T management process, the FHWA Division Administrator shall issue
a written notice of proposed determination of noncompliance to the State
DOT. The notice will set forth the reasons for the proposed
determination and inform the State DOT that it may reply in writing
within 30 calendar days from the date of the notice. The State DOT's
reply should address the deficiencies cited in the notice and provide
documentation as necessary. If the State DOT and the Division
Administrator cannot resolve the differences set forth in the
determination of nonconformity, the State DOT may appeal to the Federal
Highway Administrator whose action shall constitute the final decision
of the FHWA. An adverse decision shall result in immediate withdrawal of
approval of FHWA planning and research funds for the State DOT's RD&T
activities until the State DOT is in full compliance.
(The information collection requirements in Sec. 420.209 have been
approved by the OMB and assigned control number 2125-0039.)
PART 450--PLANNING ASSISTANCE AND STANDARDS--Table of Contents
Subpart A--Planning Definitions
Sec.
450.100 Purpose.
450.102 Applicability.
450.104 Definitions.
Subpart B--Statewide Transportation Planning
450.200 Purpose.
450.202 Applicability.
450.204 Definitions.
450.206 Statewide transportation planning process: General
requirements.
450.208 Statewide transportation planning process: Factors.
450.210 Coordination.
450.212 Public involvement.
450.214 Statewide transportation plan.
450.216 Statewide transportation improvement program (STIP).
450.218 Funding.
450.220 Approvals.
450.222 Project selection for implementation.
450.224 Phase-in of new requirements.
Subpart C--Metropolitan Transportation Planning and Programming
450.300 Purpose.
450.302 Applicability.
450.304 Definitions.
450.306 Metropolitan planning organization: Designations and
redesignation.
450.308 Metropolitan planning organization: Metropolitan planning area
boundaries.
450.310 Metropolitan planning organization: Agreements.
450.312 Metropolitan transportation planning: Responsibilities,
cooperation, and coordination.
450.314 Metropolitan transportation planning process: Unified planning
work programs.
450.316 Metropolitan transportation planning process: Elements.
450.318 Metropolitan transportation planning process: Major
metropolitan transportation investments.
450.320 Metropolitan transportation planning process: Relation to
management systems.
450.322 Metropolitan transportation planning process: Transportation
plan.
450.324 Transportation improvement program: General.
450.326 Transportation improvement program: Modification.
450.328 Transportation improvement program: Relationship to statewide
TIP.
450.330 Transportation improvement program: Action required by FHWA/
FTA.
450.332 Project selection for implementation.
450.334 Metropolitan transportation planning process: Certification.
450.336 Phase-in of new requirements.
Authority: 23 U.S.C. 134, 135, 217(g), and 315; 42 U.S.C. 7410 et
seq.; 49 U.S.C. 5303-5306; 49 CFR 1.48(b) and 1.51.
Source: 58 FR 58064, Oct. 28, 1993, unless otherwise noted.
[[Page 91]]
Subpart A--Planning Definitions
Sec. 450.100 Purpose.
The purpose of this subpart is to provide definitions for terms used
in this part which go beyond those terms defined in 23 U.S.C. 101(a).
Sec. 450.102 Applicability.
The definitions in this subpart are applicable to this part, except
as otherwise provided.
Sec. 450.104 Definitions.
Except as defined in this subpart, terms defined in 23 U.S.C 101(a)
are used in this part as so defined.
Consultation means that one party confers with another identified
party in accordance with an established process and, prior to taking
action(s), considers that party's views and periodically informs that
party about action(s) taken.
Cooperation means that the parties involved in carrying out the
planning, programming and management systems processes work together to
achieve a common goal or objective.
Coordination means the comparison of the transportation plans,
programs, and schedules of one agency with related plans, programs and
schedules of other agencies or entities with legal standing, and
adjustment of plans, programs and schedules to achieve general
consistency .
Governor means the Governor of any one of the fifty States, or
Puerto Rico, and includes the Mayor of the District of Columbia.
Maintenance area means any geographic region of the United States
designated nonattainment pursuant to the CAA Amendments of 1990 (Section
102(e)), 42 U.S.C. 7410 et seq., and subsequently redesignated to
attainment subject to the requirement to develop a maintenance plan
under section 175A of the Clean Air Act as amended (CAA), 42 U.S.C. 7410
et seq.
Major metropolitan transportation investment means a high-type
highway or transit improvement of substantial cost that is expected to
have a significant effect on capacity, traffic flow, level of service,
or mode share at the transportation corridor or subarea scale.
Consultation among the MPO, State department of transportation, transit
operator, the FHWA and the FTA may lead to the designation of other
proposed improvements as major investments beyond the examples listed
below. Examples of such investments could generally include but are not
limited to: Construction of a new partially controlled access (access
allowed only for public roads) principal arterial, extension of an
existing partially controlled access (access allowed only for public
roads) principal arterial by one or more miles, capacity expansion of a
partially controlled access (access provided only for public roads)
principal arterial by at least one lane through widening or an
equivalent increase in capacity produced by access control or
technological improvement, construction or extension of a high-occupancy
vehicle (HOV) facility or a fixed guideway transit facility by one or
more miles, the addition of lanes or tracks to an existing fixed
guideway transit facility for a distance of one or more miles, or a
substantial increase in transit service on a fixed guideway facility.
For this purpose, a fixed guideway refers to any public transportation
facility which utilizes and occupies a designated right-of-way or rails
including (but not limited to) rapid rail, light rail, commuter rail,
busways, automated guideway transit, and people movers. Projects that
generally are not considered to be major transportation investments
include but are not limited to: Highway projects on principal arterials
where access is not limited to public roads only, small scale
improvements or extensions (normally less than one mile) on principal
arterials with the primary goal of relieving localized safety or
operational difficulties, resurfacing, replacement, or rehabilitation of
existing principal arterials and equipment, highway projects not located
on a principal arterial, and changes in transit routing and scheduling.
Management system means a systematic process, designed to assist
decisionmakers in selecting cost effective strategies/actions to improve
the efficiency and safety of, and protect the investment in the nation's
infrastructure. A management system includes:
[[Page 92]]
identification of performance measures; data collection and analysis;
determination of needs; evaluation, and selection of appropriate
strategies/actions to address the needs; and evaluation of the
effectiveness of the implemented strategies/actions.
Metropolitan planning area means the geographic area in which the
metropolitan transportation planning process required by 23 U.S.C. 134
and section 8 of the Federal Transit Act must be carried out.
Metropolitan planning organization (MPO) means the forum for
cooperative transportation decisionmaking for the metropolitan planning
area. MPOs designated prior to the promulgation of this regulation
remain in effect until redesignated in accordance with Sec. 450.106 and
nothing in this part is intended to require or encourage such
redesignation.
Metropolitan transportation plan means the official intermodal
transportation plan that is developed and adopted through the
metropolitan transportation planning process for the metropolitan
planning area.
Nonattainment area means any geographic region of the United States
that the Environmental Protection Agency (EPA) has designated as a
nonattainment area for a transportation related pollutant(s) for which a
National Ambient Air Quality Standard (NAAQS) exists.
Non-metropolitan area means the geographic area outside designated
metropolitan planning areas, as designated under 23 U.S.C. 134 and 49
U.S.C. 5303.
Non-metropolitan local official means elected and appointed
officials of general purpose local government, in non-metropolitan
areas, with jurisdiction/responsibility for transportation.
Regionally significant project means a project (other than projects
that may be grouped in the STIP/TIP pursuant to Sec. 450.216 and
Sec. 450.324) that is on a facility which serves regional transportation
needs (such as access to and from the area outside of the region, major
activity centers in the region, major planned developments such as new
retail malls, sports complexes, etc., or transportation terminals as
well as most terminals themselves) and would normally be included in the
modeling of a metropolitan area's transportation network, including, as
a minimum, all principal arterial highways and all fixed guideway
transit facilities that offer a significant alternative to regional
highway travel.
State means any one of the fifty States, the District of Columbia,
or Puerto Rico.
State Implementation Plan (SIP) means the portion (or portions) of
an applicable implementation plan approved or promulgated, or the most
recent revision thereof, under sections 110, 301(d) and 175A of the
Clean Air Act (42 U.S.C. 7409, 7601, and 7505a).
Statewide transportation improvement program (STIP) means a staged,
multiyear, statewide, intermodal program of transportation projects
which is consistent with the Statewide transportation plan and planning
processes and metropolitan plans, TIPs and processes.
Statewide transportation plan means the official statewide,
intermodal transportation plan that is developed through the statewide
transportation planning process.
Transportation improvement program (TIP) means a staged, multiyear,
intermodal program of transportation projects which is consistent with
the metropolitan transportation plan.
Transportation Management Area (TMA) means an urbanized area with a
population over 200,000 (as determined by the latest decennial census)
or other area when TMA designation is requested by the Governor and the
MPO (or affected local officials), and officially designated by the
Administrators of the FHWA and the FTA. The TMA designation applies to
the entire metropolitan planning area(s).
[58 FR 58064, Oct. 28, 1993, as amended at 68 FR 3181, Jan. 23, 2003; 68
FR 7419, Feb. 14, 2003]
Subpart B--Statewide Transportation Planning
Sec. 450.200 Purpose.
The purpose of this subpart is to implement 23 U.S.C. 135, which
requires each State to carry out a continuing, comprehensive, and
intermodal statewide transportation planning process,
[[Page 93]]
including the development of a statewide transportation plan and
transportation improvement program, that facilitates the efficient,
economic movement of people and goods in all areas of the State,
including those areas subject to the requirements of 23 U.S.C 134.
Sec. 450.202 Applicability.
The requirements of this subpart are applicable to States and any
other agencies/organizations which are responsible for satisfying these
requirements.
Sec. 450.204 Definitions.
Except as otherwise provided in subpart A of this part, terms
defined in 23 U.S.C. 101(a) are used in this part as so defined.
Sec. 450.206 Statewide transportation planning process: General requirements.
(a) The statewide transportation planning process shall include, as
a minimum:
(1) Data collection and analysis;
(2) Consideration of factors contained in Sec. 450.208;
(3) Coordination of activities as noted in Sec. 450.210;
(4) Development of a statewide transportation plan that considers a
range of transportation options designed to meet the transportation
needs (both passenger and freight) of the state including all modes and
their connections; and
(5) Development of a statewide transportation improvement program
(STIP).
(b) The statewide transportation planning process shall be carried
out in coordination with the metropolitan planning process required by
subpart C of this part and shall consider coordination with planning
activities in non-metropolitan areas.
(c) In carrying out statewide transportation planning, the State
shall consider, with respect to non-metropolitan areas, the concerns of
local elected officials representing units of general purpose local
government.
[58 FR 58064, Oct. 28, 1993, as amended at 68 FR 3181, Jan. 23, 2003]
Sec. 450.208 Statewide transportation planning process: Factors.
(a) Each State shall, at a minimum, explicitly consider, analyze as
appropriate and reflect in planning process products the following
factors in conducting its continuing statewide transportation planning
process:
(1) The transportation needs (strategies and other results)
identified through the management systems required by 23 U.S.C. 303;
(2) Any Federal, State, or local energy use goals, objectives,
programs, or requirements;
(3) Strategies for incorporating bicycle transportation facilities
and pedestrian walkways in appropriate projects throughout the State;
(4) International border crossings and access to ports, airports,
intermodal transportation facilities, major freight distribution routes,
national parks, recreation and scenic areas, monuments and historic
sites, and military installations;
(5) The transportation needs of nonmetropolitan areas (areas outside
of MPO planning boundaries) through a process that includes consultation
with local elected officials with jurisdiction over transportation;
(6) Any metropolitan area plan developed pursuant to 23 U.S.C. 134
and section 8 of the Federal Transit Act, 49 U.S.C. app. 1607;
(7) Connectivity between metropolitan planning areas within the
State and with metropolitan planning areas in other States;
(8) Recreational travel and tourism;
(9) Any State plan developed pursuant to the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq. (and in addition to plans pursuant
to the Coastal Zone Management Act);
(10) Transportation system management and investment strategies
designed to make the most efficient use of existing transportation
facilities (including consideration of all transportation modes);
(11) The overall social, economic, energy, and environmental effects
of transportation decisions (including housing and community development
effects and effects on the human, natural and manmade environments);
[[Page 94]]
(12) Methods to reduce traffic congestion and to prevent traffic
congestion from developing in areas where it does not yet occur,
including methods which reduce motor vehicle travel, particularly
single-occupant motor vehicle travel;
(13) Methods to expand and enhance appropriate transit services and
to increase the use of such services (including commuter rail);
(14) The effect of transportation decisions on land use and land
development, including the need for consistency between transportation
decisionmaking and the provisions of all applicable short-range and
long-range land use and development plans (analyses should include
projections of economic, demographic, environmental protection, growth
management and land use activities consistent with development goals and
transportation demand projections);
(15) Strategies for identifying and implementing transportation
enhancements where appropriate throughout the State;
(16) The use of innovative mechanisms for financing projects,
including value capture pricing, tolls, and congestion pricing;
(17) Preservation of rights-of-way for construction of future
transportation projects, including identification of unused rights-of-
way which may be needed for future transportation corridors,
identification of those corridors for which action is most needed to
prevent destruction or loss (including strategies for preventing loss of
rights-of-way);
(18) Long-range needs of the State transportation system for
movement of persons and goods;
(19) Methods to enhance the efficient movement of commercial motor
vehicles;
(20) The use of life-cycle costs in the design and engineering of
bridges, tunnels, or pavements;
(21) The coordination of transportation plans and programs developed
for metropolitan planning areas of the State under 23 U.S.C. 134 and
section 8 of the Federal Transit Act with the statewide transportation
plans and programs developed under this subpart, and the reconciliation
of such plans and programs as necessary to ensure connectivity within
transportation systems;
(22) Investment strategies to improve adjoining State and local
roads that support rural economic growth and tourism development,
Federal agency renewable resources management, and multipurpose land
management practices, including recreation development; and
(23) The concerns of Indian tribal governments having jurisdiction
over lands within the boundaries of the State.
(b) The degree of consideration and analysis of the factors should
be based on the scale and complexity of many issues, including
transportation problems, land use, employment, economic development,
environmental and housing and community development objectives, the
extent of overlap between factors and other circumstances statewide or
in subareas within the State.
Sec. 450.210 Coordination.
(a) In addition to the coordination required under
Sec. 450.208(a)(21), in carrying out the requirements of this subpart,
each State, in cooperation with participating organizations (such as
MPOs, Indian tribal governments, environmental, resource and permit
agencies, public transit operators) shall, to the extent appropriate,
provide for a fully coordinated process including coordination of the
following:
(1) Data collection, data analysis and evaluation of alternatives
for a transit, highway, bikeway, scenic byway, recreational trail, or
pedestrian program with any such activities for the other programs;
(2) Plans, such as the statewide transportation plan required under
Sec. 450.214, with programs and priorities for transportation projects,
such as the STIP;
(3) Data analysis used in development of plans and programs, (for
example, information resulting from traffic data analysis, data and
plans regarding employment and housing availability, data and plans
regarding land use control and community development) with land use
projections, with data analysis on issues that are part of public
[[Page 95]]
involvement relating to project implementation, and with data analyses
done as part of the establishment and maintenance of management systems
developed in response to 23 U.S.C. 303;
(4) Consideration of intermodal facilities with land use planning,
including land use activities carried out by local, regional, and
multistate agencies;
(5) Transportation planning carried out by the State with
transportation planning carried out by Indian tribal governments,
Federal agencies and local governments, MPOs, large-scale public and
private transportation providers, operators of major intermodal
terminals and multistate businesses;
(6) Transportation planning carried out by the State with
significant transportation-related actions carried out by other agencies
for recreation, tourism, and economic development and for the operation
of airports, ports, rail terminals and other intermodal transportation
facilities;
(7) Public involvement carried out for the statewide planning
process with public involvement carried out for the metropolitan
planning process;
(8) Public involvement carried out for planning with public
involvement carried out for project development;
(9) Transportation planning carried out by the State with Federal,
State, and local environmental resource planning that substantially
affects transportation actions;
(10) Transportation planning with financial planning;
(11) Transportation planning with analysis of potential corridors
for preservation;
(12) Transportation planning with analysis of social, economic,
employment, energy, environmental, and housing and community development
effects of transportation actions; and
(13) Transportation planning carried out by the State to meet the
requirements of 23 U.S.C. 135 with transportation planning to meet other
Federal requirements including the State rail plan.
(b) The degree of coordination should be based on the scale and
complexity of many issues including transportation problems, land use,
employment, economic, environmental, and housing and community
development objectives, and other circumstances statewide or in subareas
within the State.
Sec. 450.212 Public involvement.
(a) Public involvement processes shall be proactive and provide
complete information, timely public notice, full public access to key
decisions, and opportunities for early and continuing involvement. The
processes shall provide for:
(1) Early and continuing public involvement opportunities throughout
the transportation planning and programming process;
(2) Timely information about transportation issues and processes to
citizens, affected public agencies, representatives of transportation
agency employees, private providers of transportation, other interested
parties and segments of the community affected by transportation plans,
programs, and projects;
(3) Reasonable public access to technical and policy information
used in the development of the plan and STIP;
(4) Adequate public notice of public involvement activities and time
for public review and comment at key decision points, including but not
limited to action on the plan and STIP;
(5) A process for demonstrating explicit consideration and response
to public input during the planning and program development process;
(6) A process for seeking out and considering the needs of those
traditionally underserved by existing transportation systems, such as
low-income and minority households which may face challenges accessing
employment and other amenities;
(7) Periodic review of the effectiveness of the public involvement
process to ensure that the process provides full and open access to all
and revision of the process as necessary.
(b) Public involvement activities carried out in a metropolitan area
in response to metropolitan planning requirements in Sec. 450.322(c) or
Sec. 450.324(c) may by agreement of the State and the MPO satisfy the
requirements of this section.
(c) During initial development and major revisions of the statewide
transportation plan required under Sec. 450.214,
[[Page 96]]
the State shall provide citizens, affected public agencies and
jurisdictions, employee representatives of transportation and other
affected agencies, private and public providers of transportation, and
other interested parties a reasonable opportunity to comment on the
proposed plan. The proposed plan shall be published, with reasonable
notification of its availability, or otherwise made readily available
for public review and comment. Likewise, the official statewide
transportation plan (see Sec. 450.214(d)) shall be published, with
reasonable notification of its availability, or otherwise made readily
available for public information.
(d) During development and major revision of the statewide
transportation improvement program required under Sec. 450.216, the
Governor shall provide citizens, affected public agencies and
jurisdictions, employee representatives of transportation or other
affected agencies, private providers of transportation, and other
interested parties, a reasonable opportunity for review and comment on
the proposed program. The proposed program shall be published, with
reasonable notification of its availability, or otherwise made readily
available for public review and comment. The approved program (see
Sec. 450.220(c)) if it differs significantly from the proposed program,
shall be published, with reasonable notification of its availability, or
otherwise made readily available for public information.
(e) The time provided for public review and comment for minor
revisions to the statewide transportation plan or statewide
transportation improvement program will be determined by the State and
local officials based on the complexity of the revisions.
(f) The State shall, as appropriate, provide for public comment on
existing and proposed procedures for public involvement throughout the
statewide transportation planning and programming process. As a minimum,
the State shall publish procedures and allow 45 days for public review
and written comment before the procedures and any major revisions to
existing procedures are adopted.
(g) The public involvement processes will be considered by the FHWA
and the FTA as they make the planning finding required in
Sec. 450.220(b) to assure that full and open access is provided to the
decision making process.
(h) The State shall provide for non-metropolitan local official
participation. The State shall have a documented process(es) that is
separate and discrete from the public involvement process for consulting
with non-metropolitan local officials representing units of general
purpose local government and/or local officials with responsibility for
transportation that provides an opportunity for their participation in
the statewide transportation planning process and development of the
statewide transportation improvement program.
(i) The State shall review and solicit comments from non-
metropolitan local officials and other interested parties for a period
of not less than 60 days regarding the effectiveness of the consultation
process and proposed modifications within 2 years of process
implementation, and thereafter at least once every 5 years. A specific
request for comments shall be directed to the State association of
counties, State municipal league, regional planning agencies, or
directly to non-metropolitan local officials. The State, at its
discretion, shall be responsible for determining whether to adopt any
proposed modifications. If a proposed modification is not adopted, the
State shall make publicly available its reasons for not accepting the
proposed modification, including notification to non-metropolitan local
officials or their associations.
[58 FR 58064, Oct. 28, 1993, as amended at 68 FR 3181, Jan. 23, 2003]
Sec. 450.214 Statewide transportation plan.
(a) The State shall develop a statewide transportation plan for all
areas of the State.
(b) The plan shall:
(1) Be intermodal (including consideration and provision, as
applicable, of elements and connections of and between rail, commercial
motor vehicle, waterway, and aviation facilities, particularly with
respect to intercity
[[Page 97]]
travel) and statewide in scope in order to facilitate the efficient
movement of people and goods;
(2) Be reasonably consistent in time horizon among its elements, but
cover a period of at least 20 years;
(3) Contain, as an element, a plan for bicycle transportation,
pedestrian walkways and trails which is appropriately interconnected
with other modes;
(4) Be coordinated with the metropolitan transportation plans
required under 23 U.S.C. 134;
(5) Reference, summarize or contain any applicable short range
planning studies, strategic planning and/or policy studies,
transportation need studies, management system reports and any
statements of policies, goals and objectives regarding issues such as
transportation, economic development, housing, social and environmental
effects, energy, etc., that were significant to development of the plan;
and
(6) Reference, summarize or contain information on the availability
of financial and other resources needed to carry out the plan.
(c) In developing the plan, the State shall:
(1) Cooperate with the MPOs on the portions of the plan affecting
metropolitan planning areas;
(2) Cooperate with the Indian tribal government and the Secretary of
the Interior on the portions of the plan affecting areas of the State
under the jurisdiction of an Indian tribal government;
(3) Provide for public involvement as required under Sec. 450.212;
(4) Provide for substantive consideration and analysis as
appropriate of specified factors as required under Sec. 450.208; and
(5) Provide for coordination as required under Sec. 450.210.
(d) The State shall provide and carryout a mechanism to establish
the document, or documents, comprising the plan as the official
statewide transportation plan.
(e) The plan shall be continually evaluated and periodically updated
as appropriate using the procedures in this section for development and
establishment of the plan.
(f) In developing the statewide transportation plan, affected local
officials with responsibility for transportation shall be involved on a
consultation basis for the portions of the plan in non-metropolitan
areas of the State.
[58 FR 58064, Oct. 28, 1993, as amended at 68 FR 3181, Jan. 23, 2003]
Sec. 450.216 Statewide transportation improvement program (STIP).
(a) Each State shall develop a statewide transportation improvement
program for all areas of the State. In case of difficulties in
developing the STIP portion for a particular area, e.g., metropolitan
area, Indian tribal lands, etc., a partial STIP covering the rest of the
State may be developed. The portion of the STIP in a metropolitan
planning area (the metropolitan TIP developed pursuant to subpart C of
this part) shall be developed in cooperation with the MPO. To assist
this process, the State will need to provide MPOs with estimates of
available Federal and State funds which the MPO can utilize in
developing the metropolitan TIP. Metropolitan planning area TIPs shall
be included without modification in the STIP, directly or by reference,
once approved by the MPO and the Governor and after needed conformity
findings are made. Metropolitan TIPs in nonattainment and maintenance
areas are subject to the FHWA and the FTA conformity findings before
their inclusion in the STIP. In nonattainment and maintenance areas
outside metropolitan planning areas, Federal findings of conformity must
be made prior to placing projects in the STIP. The State shall notify
the appropriate MPO, local jurisdictions, Federal land agency, Indian
tribal government, etc. when a TIP including projects under the
jurisdiction of the agency has been included in the STIP. All title 23
and Federal Transit Act fund recipients will share information as
projects in the STIP are implemented. The Governor shall provide for
public involvement in development of the STIP as required by
Sec. 450.212. In addition, the STIP shall:
(1) Include a list of priority transportation projects proposed to
be carried out in the first 3 years of the STIP. Since each TIP is
approved by the Governor, the TIP priorities will dictate
[[Page 98]]
STIP priorities for each individual metropolitan area. As a minimum, the
lists shall group the projects that are to be undertaken in each of the
years, e.g., year 1, year 2, year 3;
(2) Cover a period of not less than 3 years, but may at State
discretion cover a longer period. If the STIP covers more than 3 years,
the projects in the additional years will be considered by the FHWA and
the FTA only as informational;
(3) Contain only projects consistent with the statewide plan
developed under Sec. 450.214;
(4) In nonattainment and maintenance areas, contain only
transportation projects found to conform, or from programs that conform,
to the requirements contained in 40 CFR part 51;
(5) Be financially constrained by year and include sufficient
financial information to demonstrate which projects are to be
implemented using current revenues and which projects are to be
implemented using proposed revenue sources while the system as a whole
is being adequately operated and maintained. In nonattainment and
maintenance areas, projects included in the first two years of the
current STIP/TIP shall be limited to those for which funds are available
or committed. In the case of proposed funding sources, strategies for
ensuring their availability shall be identified;
(6) Contain all capital and non-capital transportation projects
(including transportation enhancements, Federal lands highways projects,
trails projects, pedestrian walkways, and bicycle transportation
facilities), or identified phases of transportation projects, proposed
for funding under the Federal Transit Act (49 U.S.C. app. 1602, 1607a,
1612 and 1614) and/or title 23, U.S.C. excluding:
(i) Safety projects funded under section 402 of the Surface
Transportation Assistance Act of 1982, as amended (49 U.S.C. app. 2302);
(ii) IVHS planning grants funded under section 6055(b) of the
Intermodal Surface Transportation Efficiency Act of 1991 (Pub. L. 102-
240, 105 Stat. 1914);
(iii) Transit planning grants funded under section 8 or 26 of the
Federal Transit Act (49 U.S.C. app. 1607 and 1622);
(iv) Metropolitan planning projects funded under 23 U.S.C. 104(f);
(v) State planning and research projects funded under 23 U.S.C.
307(c)(1) (except those funded with NHS, STP and minimum allocation (MA)
funds that the State and MPO for a metropolitan area agree should be in
the TIP and consequently must be in the STIP); and
(vi) Emergency relief projects (except those involving substantial
functional, locational or capacity changes);
(7) Contain all regionally significant transportation projects
requiring an action by the FHWA or the FTA whether or not the projects
are to be funded with title 23, U.S.C. or Federal Transit Act funds,
e.g., addition of an interchange to the Interstate System with State,
local and/or private funds, demonstration projects not funded under
title 23, U.S.C., or the Federal Transit Act. (The STIP should, for
information purposes, include all regionally significant transportation
projects proposed to be funded with Federal funds other than those
administered by the FHWA or the FTA. It should also include, for
information purposes, if appropriate and cited in any TIPs, all
regionally significant projects, to be funded with non-Federal funds);
(8) Include for each project the following:
(i) Sufficient descriptive material (i.e., type of work, termini,
length, etc.) to identify the project or phase;
(ii) Estimated total cost;
(iii) The amount of Federal funds proposed to be obligated during
each program year;
(iv) For the first year, the proposed category of Federal funds and
source(s) of non-Federal funds;
(v) For the second and third years, the likely category or possible
categories of Federal funds and sources of non-Federal funds;
(vi) Identification of the agencies responsible for carrying out the
project; and
(9) For non-metropolitan areas, include in the first year only those
projects which have been selected in accordance with the project
selection requirements in Sec. 450.222(c).
[[Page 99]]
(b) Projects that are not considered to be of appropriate scale for
individual identification in a given program year may be grouped by
function, work type, and/or geographic area using the applicable
classifications under 23 CFR 771.117 (c) and (d) and/or 40 CFR part 51.
(c) Projects in any of the first three years of the STIP may be
moved to any other of the first three years of the STIP subject to the
project selection requirements of Sec. 450.222.
(d) The STIP may be amended at any time under procedures agreed to
by the cooperating parties consistent with the procedures established in
this section (for STIP development), in Sec. 450.212 (for public
involvement) and in Sec. 450.220 (for the FHWA and the FTA approval).
(e) In developing the statewide transportation improvement program,
affected local officials with responsibility for transportation shall be
involved on a consultation basis for the portions of the program in non-
metropolitan areas of the State.
[58 FR 58064, Oct. 28, 1993, as amended at 68 FR 3181, Jan. 23, 2003]
Sec. 450.218 Funding.
Funds provided under sections 8, 9, 18, and 26(a)(2) of the Federal
Transit Act and 23 U.S.C. 104(b)(1), 104(b)(3), 104(f)(3) and 307(c)(1)
may be used to accomplish activities in this subpart.
Sec. 450.220 Approvals.
(a) At least every two years, each State shall submit the entire
proposed STIP, and amendments as necessary, concurrently to the FHWA and
the FTA for joint approval. The State shall certify that the
transportation planning process is being carried out in accordance with
all applicable requirements of:
(1) 23 U.S.C. 135, section 8(q) of the Federal Transit Act and this
part;
(2) Title VI of the Civil Rights Act of 1964 and the Title VI
assurance executed by each State under 23 U.S.C. 324 and 29 U.S.C. 794;
(3) Section 1003(b) of the Intermodal Surface Transportation
Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914) regarding the
involvement of disadvantaged business enterprises in the FHWA and the
FTA funded projects (sec. 105(f), Pub. L. 97-424, 96 Stat. 2100; 49 CFR
part 23);
(4) The provisions of the Americans with Disabilities Act of 1990
(Pub. L. 101-336, 104 Stat. 327, as amended) and U.S. DOT regulations
``Transportation for Individuals with Disabilities'' (49 CFR parts 27,
37, and 38);
(5) The provisions of 49 CFR part 20 regarding restrictions on
influencing certain Federal activities; and
(6) In States containing nonattainment and maintenance areas,
sections 174 and 176 (c) and (d) of the Clean Air Act as amended (42
U.S.C. 7504, 7506 (c) and (d)).
(b) The FHWA and the FTA Administrators, in consultation with, where
applicable, Federal lands agencies, will review the STIP or amendment
and jointly make a finding as to the extent the projects in the STIP are
based on a planning process that meets or substantially meets the
requirements of title 23, U.S.C., the Federal Transit Act and subparts
A, B and C of this part.
(c) If, upon review, the FHWA and the FTA Administrators jointly
determine that the STIP or amendment meet, to an acceptable degree, the
requirements of 23 U.S.C. 135 and these regulations (including subpart C
where a metropolitan TIP is involved), they will approve the STIP.
Approval action will take one of the following forms, as appropriate:
(1) Joint approval of the STIP;
(2) Joint approval of the STIP subject to certain corrective actions
being taken;
(3) Joint approval of the STIP as the basis for approval of
identified categories of projects; and/or
(4) Under special circumstances, joint approval of a partial STIP
covering only a portion of the State.
(d) The joint approval period for a new STIP or amended STIP will
not exceed two years. Where the State demonstrates that extenuating
circumstances will delay the submittal of a new STIP or amended STIP for
approval, FHWA and FTA will consider and take appropriate action on
requests to extend the approval beyond two years for all or part of the
STIP for a limited period of time. Where the request involves projects
in a metropolitan planning area(s), the affected
[[Page 100]]
MPO(s) must concur in the request and if the delay was due to the
development and approval of the TIP, the affected MPO(s) must provide
supporting information for the request. If nonattainment and/or
maintenance areas are involved, a request for an extension cannot be
granted if the conformity determination on the TIP is no longer valid
under EPA's conformity regulations (40 CFR part 51).
(e) If, upon review, the FHWA and the FTA Administrators jointly
determine that the STIP or amendment does not substantially meet the
requirements of 23 U.S.C. 135 and this part for any identified
categories of projects, they will not approve the STIP.
(f) The FHWA and the FTA will notify the State of actions taken
under this section.
(g) Where necessary in order to maintain or establish operations,
the Federal Transit Administrator and/or the Federal Highway
Administrator may approve operating assistance for specific projects or
programs even though the projects or programs may not be included in an
approved STIP.
Sec. 450.222 Project selection for implementation.
(a) Except as provided in Secs. 450.220(f) and 450.216(a)(7), only
projects included in the Federally approved STIP shall be eligible for
funds administered by the FHWA or the FTA.
(b) In metropolitan planning areas, transportation projects
requiring title 23 or Federal Transit Act funds administered by the FHWA
or the FTA shall be selected in accordance with procedures established
pursuant to the project selection portion of the metropolitan planning
regulation in subpart C of this part.
(c) Outside metropolitan planning areas, transportation projects
undertaken on the National Highway System with title 23 funds and under
the bridge and Interstate maintenance programs shall be selected by the
State in consultation with the affected local officials. Federal lands
highway projects shall be selected in accordance with 23 U.S.C. 204.
Other transportation projects undertaken with funds administered by the
FHWA shall be selected by the State in cooperation with the affected
local officials, and projects undertaken with Federal Transit Act funds
shall be selected by the State in cooperation with the appropriate
affected local officials and transit operators.
(d) The projects in the first year of an approved STIP shall
constitute an ``agreed to'' list of projects for subsequent scheduling
and implementation. No further project selection action is required for
the implementing agency to proceed with these projects except that if
appropriated Federal funds available are significantly less than the
authorized amounts, Sec. 450.332(c) provides for a revised list of
``agreed to'' projects to be developed upon the request of the State,
MPO, or transit operators. If an implementing agency wishes to proceed
with a project in the second and third year of the STIP, the specific
project selection procedures stated in paragraphs (b) and (c) of this
section must be used. Expedited selection procedures which provide for
the advancement of projects from the second or third years of the STIP
may be used if agreed to by all the parties involved in the selection.
Sec. 450.224 Phase-in of new requirements.
(a) The State shall, by January 1, 1995, identify the official
statewide transportation plan, described under Sec. 450.214, to be used
as a basis for subsequently approved STIPs. Until such a plan is
identified, but no later than January 1, 1995, the State may identify
existing plans and policies which can serve as the official interim
plan. STIP development shall be based upon a transportation plan which
serves as the official plan (including an interim plan, if appropriate,
prior to January 1, 1995, provided that all factors identified in
Sec. 450.208 are considered).
(b) The State has a period of one year after February 24, 2003 to
document and implement the consultation process discussed in
Sec. 450.212(h).
[58 FR 58064, Oct. 28, 1993, as amended at 68 FR 3181, Jan. 23, 2003]
[[Page 101]]
Subpart C--Metropolitan Transportation Planning and Programming
Sec. 450.300 Purpose.
The purpose of this subpart is to implement 23 U.S.C. 134 and
section 8 of the Federal Transit Act, as amended, which require that a
Metropolitan Planning Organization (MPO) be designated for each
urbanized area and that the metropolitan area has a continuing,
cooperative, and comprehensive transportation planning process that
results in plans and programs that consider all transportation modes and
supports metropolitan community development and social goals. These
plans and programs shall lead to the development and operation of an
integrated, intermodal transportation system that facilitates the
efficient, economic movement of people and goods.
Sec. 450.302 Applicability.
The provisions of this subpart are applicable to agencies involved
in the transportation planning, program development, and project
selection processes in metropolitan planning areas.
Sec. 450.304 Definitions.
Except as otherwise provided in subpart A of this part, terms
defined in 23 U.S.C 101(a) are used in this part as so defined.
Sec. 450.306 Metropolitan planning organization: Designations and redesignation.
(a) Designations of metropolitan planning organizations (MPOs) made
after December 18, 1991, shall be by agreement among the Governor(s) and
units of general purpose local governments representing 75 percent of
the affected metropolitan population (including the central city or
cities as defined by the Bureau of the Census), or in accordance with
procedures established by applicable State or local law. To the extent
possible, only one MPO shall be designated for each UZA or group of
contiguous UZAs. More than one MPO may be designated within an UZA only
if the Governor(s) determines that the size and complexity of the UZA
make designation of more than one MPO appropriate.
(b) The designation shall clearly identify the policy body that is
the forum for cooperative decisionmaking that will be taking the
required approval actions as the MPO.
(c) To the extent possible, the MPO designated should be established
under specific State legislation, State enabling legislation, or by
interstate compact, and shall have authority to carry out metropolitan
transportation planning.
(d) Redesignation (designation of a new MPO(s) to replace an
existing MPO) shall occur by agreement of the Governor and affected
local units of government representing 75 percent of the population in
the entire metropolitan area. The central city(ies) must be among the
units of local government agreeing to the redesignation.
(e) Nothing in this subpart shall be deemed to prohibit the MPO from
utilizing the staff resources of other agencies to carry out selected
elements of the planning process.
(f) Existing MPO designations remain valid until a new MPO is
redesignated, unless revoked by the Governor and local units of
government representing 75 percent of the population in the area served
by the existing MPO (the central city(ies) must be among those desiring
to revoke the MPO designation), or as otherwise provided under State or
local procedures. If the Governor and local officials decide to
redesignate an existing MPO, but do not formally revoke the existing MPO
designation, the existing MPO remains in effect until a new MPO is
formally designated.
(g) Redesignation of an MPO in a multistate metropolitan area
requires the approval of the Governor of each State and local officials
representing 75 percent of the population in the entire metropolitan
planning area. The local officials in the central city(ies) must be
among those agreeing to the redesignation.
(h) Redesignation of an MPO covering more than one UZA requires the
approval of the Governor and local officials representing 75 percent of
the population in the metropolitan planning area covered by the current
MPO; the local officials in the central city(ies) in each urbanized area
must
[[Page 102]]
be among those agreeing to the redesignation.
(i) The voting membership of an MPO policy body designated/
redesignated subsequent to December 18, 1991, and serving a TMA, must
include representation of local elected officials, officials of agencies
that administer or operate major modes or systems of transportation,
e.g., transit operators, sponsors of major local airports, maritime
ports, rail operators, etc. (including all transportation agencies that
were included in the MPO on June 1, 1991), and appropriate State
officials. Where agencies that operate other major modes of
transportation do not already have a voice on existing MPOs, the MPOs
(in cooperation with the States) are encouraged to provide such agencies
a voice in the decisionmaking process, including representation/
membership on the policy body and/or other appropriate committees.
Further, where appropriate, existing MPOs should increase the
representation of local elected officials on the policy board and other
committees as a means for encouraging their greater involvement in MPO
processes. Adding such representation to an MPO will not, in itself,
constitute a redesignation action.
(j) Where the metropolitan planning area boundaries for a previously
designated MPO need to be expanded, the membership on the MPO policy
body and other committees, should be reviewed to ensure that the added
area has appropriate representation.
(k) Adding membership (e.g., local elected officials and operators
of major modes or systems of transportation, or representatives of newly
urbanized areas) to the policy body or expansion of the metropolitan
planning area does not automatically require redesignation of the MPO.
To the extent possible, it is encouraged that this be done without a
formal redesignation. The Governor and MPO shall review the previous MPO
designation, State and local law, MPO bylaws, etc., to determine if this
can be accomplished without a formal redesignation. If redesignation is
considered necessary, the existing MPO will remain in effect until a new
MPO is formally designated or the existing designation is formally
revoked in accordance with the procedures of this section.
Sec. 450.308 Metropolitan planning organization: Metropolitan planning area boundaries.
(a) The metropolitan planning area boundary shall, as a minimum,
cover the UZA(s) and the contiguous geographic area(s) likely to become
urbanized within the twenty year forecast period covered by the
transportation plan described in Sec. 450.322 of this part. The boundary
may encompass the entire metropolitan statistical area or consolidated
metropolitan statistical area, as defined by the Bureau of the Census.
For geographic areas designated as nonattainment or maintenance areas
(as created by the Clean Air Act Amendments of 1990 (CAAA)) for
transportation related pollutants under the CAA, the boundaries of the
metropolitan planning area shall include at least the boundaries of the
nonattainment or maintenance areas, except as otherwise provided by
agreement between the MPO and the Governor under the procedures
specified in Sec. 450.310(f) of this part. In the absence of a formal
agreement between the Governor and the MPO to reduce the metropolitan
planning area to an area less than the boundaries of the nonattainment
or maintenance area, the entire nonattainment or maintenance area is
subject to the applicable provisions of this part. Where a portion of
the nonattainment or maintenance area is excluded from the metropolitan
planning area boundary, the STP funds suballocated to urbanized areas
greater than 200,000 in population shall not be utilized for projects
outside the metropolitan planning area boundary.
(b) The metropolitan planning area for a new UZA served by an
existing or new MPO shall be established in accordance with these
criteria. The current planning area boundaries for previously designated
UZAs shall be reviewed and modified if necessary to comply with these
criteria.
(c) In addition to the criteria in paragraph (a) of this section,
the planning areas currently in use for all transportation modes should
be reviewed before establishing the metropolitan planning
[[Page 103]]
area boundary. Where appropriate, adjustments should be made to reflect
the most comprehensive boundary to foster an effective planning process
that ensures connectivity between modes, reduces access disadvantages
experienced by modal systems, and promotes efficient overall
transportation investment strategies.
(d) Approval of metropolitan planning area boundaries by the FHWA or
the FTA is not required. However, metropolitan planning area boundary
maps must be submitted to the FHWA and the FTA after their approval by
the MPO and the Governor.
Sec. 450.310 Metropolitan planning organization: Agreements.
(a) The responsibilities for cooperatively carrying out
transportation planning (including corridor and subarea studies) and
programming shall be clearly identified in an agreement or memorandum of
understanding between the State and the MPO.
(b) There shall be an agreement between the MPO and operators of
publicly owned transit services which specifies cooperative procedures
for carrying out transportation planning (including corridor and subarea
studies) and programming as required by this subpart.
(c) In nonattainment or maintenances areas, if the MPO is not
designated for air quality planning under section 174 of the Clean Air
Act (42 U.S.C. 7504), there shall be an agreement between the MPO and
the designated agency describing their respective roles and
responsibilities for air quality related transportation planning.
(d) To the extent possible, there shall be one cooperative agreement
containing the understandings required by paragraphs (a) through (c) of
this section among the State, MPO, publicly owned operators of mass
transportation services, and air quality agencies.
(e) Where the parties involved agree, the requirement for agreements
specified in paragraphs (a), (b), and (c) of this section may be
satisfied by including the responsibilities and procedures for carrying
out a cooperative process in the unified planning work program or a
prospectus as defined in Sec. 450.314(c).
(f) If the metropolitan planning area does not include the entire
nonattainment or maintenance area, there shall be an agreement among the
State department of transportation, State air quality agency, affected
local agencies, and the MPO describing the process for cooperative
planning and analysis of all projects outside the metropolitan planning
area but within the nonattainment or maintenance area. The agreement
also must indicate how the total transportation related emissions for
the nonattainment or maintenance area, including areas both within and
outside the metropolitan planning area, will be treated for the purposes
of determining conformity in accordance with the U.S. EPA conformity
regulation (40 CFR part 51). The agreement shall address policy
mechanisms for resolving conflicts concerning transportation related
emissions that may arise between the metropolitan planning area and the
portion of the nonattainment or maintenance area outside the
metropolitan planning area. Proposals to exclude a portion of the
nonattainment or maintenance area from the planning area boundary shall
be coordinated with the FHWA, the FTA, the EPA, and the State air
quality agency before a final decision is made.
(g) Where more than one MPO has authority within a metropolitan
planning area or a nonattainment or maintenance area, there shall be an
agreement between the State department(s) of transportation and the MPOs
describing how the processes will be coordinated to assure the
development of an overall transportation plan for the metropolitan
planning area. In metropolitan planning areas that are nonattainment or
maintenance areas, the agreement shall include State and local air
quality agencies. The agreement shall address policy mechanisms for
resolving potential conflicts that may arise between the MPOs, e.g.,
issues related to the exclusion of a portion of the nonattainment area
from the planning area boundary.
(h) For all requirements specified in paragraphs (a) through (g) of
this section, existing agreements shall be reviewed for compliance and
reaffirmed
[[Page 104]]
or modified as necessary to ensure participation by all appropriate
modes.
Sec. 450.312 Metropolitan transportation planning: Responsibilities, cooperation, and coordination.
(a) The MPO in cooperation with the State and with operators of
publicly owned transit services shall be responsible for carrying out
the metropolitan transportation planning process. The MPO, the State and
transit operator(s) shall cooperatively determine their mutual
responsibilities in the conduct of the planning process, including
corridor refinement studies, described in Secs. 450.316 through 450.318.
They shall cooperatively develop the unified planning work program,
transportation plan, and transportation improvement program specified in
Secs. 450.314 through 450.318. In addition, the development of the plan
and TIP shall be coordinated with other providers of transportation,
e.g., sponsors of regional airports, maritime port operators, rail
freight operators, etc.
(b) The MPO shall approve the metropolitan transportation plan and
its periodic updates. The MPO and the Governor shall approve the
metropolitan transportation improvement program and any amendments.
(c) In nonattainment or maintenance areas, the MPO shall coordinate
the development of the transportation plan with the SIP development
process including the development of the transportation control
measures. The MPO shall develop or assist in developing the
transportation control measures.
(d) In nonattainment or maintenance areas for transportation related
pollutants, the MPO shall not approve any transportation plan or program
which does not conform with the SIP, as determined in accordance with
the U.S. EPA conformity regulation (40 CFR Part 51).
(e) If more than one MPO has authority in a metropolitan planning
area (including multi-State metropolitan planning areas) or in an area
which is designated as nonattainment or maintenance for transportation
related pollutants, the MPOs and the Governor(s) shall cooperatively
establish the boundaries of the metropolitan planning area (including
the twenty year planning horizon and relationship to the nonattainment
or maintenance areas) and the respective jurisdictional responsibilities
of each MPO. The MPOs shall consult with each other and the State(s) to
assure the preparation of integrated plans and transportation
improvement programs for the entire metropolitan planning area. An
individual MPO plan and program may be developed separately. However,
each plan and program must be consistent with the plans and programs of
other MPOs in the metropolitan planning area. For the overall
metropolitan planning area, the individual MPO planning process shall
reflect coordinated data collection, analysis and development. In those
areas where this provision is applicable, coordination efforts shall be
initiated and the process and outcomes documented in subsequent
transmittals of the UPWP and various planning products (the plan, TIP,
etc.) to the State, the FHWA, and the FTA.
(f) The Secretary must designate as transportation management areas
all UZAs over 200,000 population as determined by the most recent
decennial census. The Secretary designated TMAs by publishing a notice
in the Federal Register. Copies of this notice may be obtained from the
FHWA Metropolitan Planning Division or Office of Planning FTA. The TMAs
so designated and those designated subsequently by the FHWA and the FTA
(including those designated upon request of the MPO and the Governor)
must comply with the special requirements applicable to such areas
regarding congestion management systems, project selection, and
certification. The TMA designation applies to the entire metropolitan
planning area boundary. If a metropolitan planning area encompasses a
TMA and other UZA(s), the designation applies to the entire metropolitan
planning area regardless of the population of constituent UZAs.
(g) As required by 23 CFR part 500, the required management systems
shall be developed cooperatively by the State, the MPOs and transit
operators for each metropolitan planning area. In TMAs, the congestion
management system will be developed as part of the
[[Page 105]]
metropolitan transportation planning process.
(h) The State shall cooperatively participate in the development of
metropolitan transportation plans. The relationship of the statewide
transportation plan and the metropolitan plan is specified in subpart B
of this part.
(i) Where a metropolitan planning area includes Federal public lands
and/or Indian tribal lands, the affected Federal agencies and Indian
tribal governments shall be involved appropriately in the development of
transportation plans and programs.
Sec. 450.314 Metropolitan transportation planning process: Unified planning work programs.
(a) In TMAs, the MPO(s) in cooperation with the State and operators
of publicly owned transit shall develop unified planning work programs
(UPWPs) that meet the requirements of 23 CFR part 420, subpart A, and:
(1) Discuss the planning priorities facing the metropolitan planning
area and describe all metropolitan transportation and transportation-
related air quality planning activities (including the corridor and
subarea studies discussed in Sec. 450.318) anticipated within the area
during the next one or two year period, regardless of funding sources or
agencies conducting activities, in sufficient detail to indicate who
will perform the work, the schedule for completing it and the products
that will be produced;
(2) Document planning activities to be performed with funds provided
under title 23, U.S.C., and the Federal Transit Act.
(b) Arrangements may be made with the FHWA and the FTA to combine
the UPWP requirements with the work program for other Federal sources of
planning funds.
(c) The metropolitan transportation planning process may include the
development of a prospectus that establishes a multiyear framework
within which the UPWP is accomplished. The prospectus may be used to
satisfy the requirements of Sec. 450.310 and paragraph (a)(1) of this
section.
(d) In areas not designated as TMAs, the MPO in cooperation with the
State and transit operators, with the approval of the FHWA and the FTA,
may prepare a simplified statement of work, in lieu of a UPWP, that
describes who will perform the work and the work that will be
accomplished using Federal funds. If a simplified statement of work is
used, it may be submitted as part of the Statewide planning work
program, in accordance with 23 CFR part 420.
Sec. 450.316 Metropolitan transportation planning process: Elements.
(a) Section 134(f) of title 23, U.S.C., and Federal Transit Act
section 8(f) (49 U.S.C. app. 1607(f)) list 15 factors that must be
considered as part of the planning process for all metropolitan areas.
The following factors shall be explicitly considered, analyzed as
appropriate, and reflected in the planning process products:
(1) Preservation of existing transportation facilities and, where
practical, ways to meet transportation needs by using existing
transportation facilities more efficiently;
(2) Consistency of transportation planning with applicable Federal,
State, and local energy conservation programs, goals, and objectives;
(3) The need to relieve congestion and prevent congestion from
occurring where it does not yet occur including:
(i) The consideration of congestion management strategies or actions
which improve the mobility of people and goods in all phases of the
planning process; and
(ii) In TMAs, a congestion management system that provides for
effective management of new and existing transportation facilities
through the use of travel demand reduction and operation management
strategies (e.g., various elements of IVHS) shall be developed in
accordance with Sec. 450.320;
(4) The likely effect of transportation policy decisions on land use
and development and the consistency of transportation plans and programs
with the provisions of all applicable short- and long-term land use and
development plans (the analysis should include projections of
metropolitan planning area economic, demographic, environmental
protection, growth management, and land use activities consistent with
[[Page 106]]
metropolitan and local/central city development goals (community,
economic, housing, etc.), and projections of potential transportation
demands based on the interrelated level of activity in these areas);
(5) Programming of expenditures for transportation enhancement
activities as required under 23 U.S.C. 133;
(6) The effects of all transportation projects to be undertaken
within the metropolitan planning area, without regard to the source of
funding (the analysis shall consider the effectiveness, cost
effectiveness, and financing of alternative investments in meeting
transportation demand and supporting the overall efficiency and
effectiveness of transportation system performance and related impacts
on community/central city goals regarding social and economic
development, housing, and employment);
(7) International border crossings and access to ports, airports,
intermodal transportation facilities, major freight distribution routes,
national parks, recreation areas, monuments and historic sites, and
military installations (supporting technical efforts should provide an
analysis of goods and services movement problem areas, as determined in
cooperation with appropriate private sector involvement, including, but
not limited to, addressing interconnected transportation access and
service needs of intermodal facilities);
(8) Connectivity of roads within metropolitan planning areas with
roads outside of those areas;
(9) Transportation needs identified through the use of the
management systems required under 23 U.S.C. 303 (strategies identified
under each management system will be analyzed during the development of
the transportation plan, including its financial component, for possible
inclusion in the metropolitan plan and TIP);
(10) Preservation of rights-of-way for construction of future
transportation projects, including future transportation corridors;
(11) Enhancement of the efficient movement of freight;
(12) The use of life-cycle costs in the design and engineering of
bridges, tunnels, or pavement (operating and maintenance costs must be
considered in analyzing transportation alternatives);
(13) The overall social, economic, energy, and environmental effects
of transportation decisions (including consideration of the effects and
impacts of the plan on the human, natural and man-made environment such
as housing, employment and community development, consultation with
appropriate resource and permit agencies to ensure early and continued
coordination with environmental resource protection and management
plans, and appropriate emphasis on transportation-related air quality
problems in support of the requirements of 23 U.S.C. 109(h), and section
14 of the Federal Transit Act (49 U.S.C. 1610), section 4(f) of the DOT
Act (49 U.S.C. 303) and section 174(b) of the Clean Air Act (42 U.S.C.
7504(b)));
(14) Expansion, enhancement, and increased use of transit services;
(15) Capital investments that would result in increased security in
transit systems; and
(16) Recreational travel and tourism.
(b) In addition, the metropolitan transportation planning process
shall:
(1) Include a proactive public involvement process that provides
complete information, timely public notice, full public access to key
decisions, and supports early and continuing involvement of the public
in developing plans and TIPs and meets the requirements and criteria
specified as follows:
(i) Require a minimum public comment period of 45 days before the
public involvement process is initially adopted or revised;
(ii) Provide timely information about transportation issues and
processes to citizens, affected public agencies, representatives of
transportation agency employees, private providers of transportation,
other interested parties and segments of the community affected by
transportation plans, programs and projects (including but not limited
to central city and other local jurisdiction concerns);
(iii) Provide reasonable public access to technical and policy
information used in the development of plans and TIPs and open public
meetings where matters related to the Federal-aid
[[Page 107]]
highway and transit programs are being considered;
(iv) Require adequate public notice of public involvement activities
and time for public review and comment at key decision points,
including, but not limited to, approval of plans and TIPs (in
nonattainment areas, classified as serious and above, the comment period
shall be at least 30 days for the plan, TIP and major amendment(s));
(v) Demonstrate explicit consideration and response to public input
received during the planning and program development processes;
(vi) Seek out and consider the needs of those traditionally
underserved by existing transportation systems, including but not
limited to low-income and minority households;
(vii) When significant written and oral comments are received on the
draft transportation plan or TIP (including the financial plan) as a
result of the public involvement process or the interagency consultation
process required under the U.S. EPA's conformity regulations, a summary,
analysis, and report on the disposition of comments shall be made part
of the final plan and TIP;
(viii) If the final transportation plan or TIP differs significantly
from the one which was made available for public comment by the MPO and
raises new material issues which interested parties could not reasonably
have foreseen from the public involvement efforts, an additional
opportunity for public comment on the revised plan or TIP shall be made
available;
(ix) Public involvement processes shall be periodically reviewed by
the MPO in terms of their effectiveness in assuring that the process
provides full and open access to all;
(x) These procedures will be reviewed by the FHWA and the FTA during
certification reviews for TMAs, and as otherwise necessary for all MPOs,
to assure that full and open access is provided to MPO decisionmaking
processes;
(xi) Metropolitan public involvement processes shall be coordinated
with statewide public involvement processes wherever possible to enhance
public consideration of the issues, plans, and programs and reduce
redundancies and costs;
(2) Be consistent with Title VI of the Civil Rights Act of 1964 and
the Title VI assurance executed by each State under 23 U.S.C. 324 and 29
U.S.C. 794, which ensure that no person shall, on the grounds of race,
color, sex, national origin, or physical handicap, be excluded from
participation in, be denied benefits of, or be otherwise subjected to
discrimination under any program receiving Federal assistance from the
United States Department of Transportation;
(3) Identify actions necessary to comply with the Americans With
Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, as amended)
and U.S. DOT regulations ``Transportation for Individuals With
Disabilities'' (49 CFR parts 27, 37, and 38);
(4) Provide for the involvement of traffic, ridesharing, parking,
transportation safety and enforcement agencies; commuter rail operators;
airport and port authorities; toll authorities; appropriate private
transportation providers, and where appropriate city officials; and
(5) Provide for the involvement of local, State, and Federal
environment resource and permit agencies as appropriate.
(c) In attainment areas not designated as TMAs simplified procedures
for the development of plans and programs, if considered appropriate,
shall be proposed by the MPO in cooperation with the State and transit
operator, and submitted by the State for approval by the FHWA and the
FTA. In developing proposed simplified planning procedures,
consideration shall be given to the transportation problems in the area
and their complexity, the growth rate of the area (e.g., fast, moderate
or slow), the appropriateness of the factors specified for consideration
in this subpart including air quality, and the desirability of
continuing any planning process that has already been established. Areas
experiencing fast growth should give consideration to a planning process
that addresses all of the general requirements specified in this
subpart. As a minimum, all areas
[[Page 108]]
employing a simplified planning process will need to develop a
transportation plan to be approved by the MPO and a TIP to be approved
by the MPO and the Governor.
(d) The metropolitan transportation planning process shall include
preparation of technical and other reports to assure documentation of
the development, refinement, and update of the transportation plan. The
reports shall be reasonably available to interested parties, consistent
with Sec. 450.316(b)(1).
[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]
Sec. 450.318 Metropolitan transportation planning process: Major metropolitan transportation investments.
(a) Where the need for a major metropolitan transportation
investment is identified, and Federal funds are potentially involved,
major investment (corridor or subarea) studies shall be undertaken to
develop or refine the plan and lead to decisions by the MPO, in
cooperation with participating agencies, on the design concept and scope
of the investment. Where the studies have not been completed prior to
plan approval, the provisions of Sec. 450.322(b)(8) apply.
(b) When any of the implementing agencies or the MPO wish to
initiate a major investment study, a meeting will be convened to
determine the extent of the analyses and agency roles in a cooperative
process which involves the MPO, the State department of transportation,
public transit operators, environmental, resource and permit agencies,
local officials, the FHWA and the FTA and where appropriate community
development agencies, major governmental housing bodies, and such other
related agencies as may be impacted by the proposed scope of analysis. A
reasonable opportunity, consistent with Sec. 450.316(b)(1), shall be
provided for citizens and interested parties including affected public
agencies, representatives of transportation agency employees, and
private providers of transportation to participate in the cooperative
process. This cooperative process shall establish the range of
alternatives to be studied, such as alternative modes and technologies
(including intelligent vehicle and highway systems), general alignment,
number of lanes, the degree of demand management, and operating
characteristics.
(c) To the extent appropriate as determined under paragraph (b) of
this section, major investment studies shall evaluate the effectiveness
and cost-effectiveness of alternative investments or strategies in
attaining local, State and national goals and objectives. The analysis
shall consider the direct and indirect costs of reasonable alternatives
and such factors as mobility improvements; social, economic, and
environmental effects; safety; operating efficiencies; land use and
economic development; financing; and energy consumption.
(d) These major investment studies will serve as the ``alternatives
analyses'' required by section 3(i)(1)(A) of the Federal Transit Act (49
U.S.C. app. 1602(i)) for certain projects for which discretionary
section 3 ``New Start'' funding is being sought. The studies will also
be used as the primary source of information for the other section
3(i)(1)(A) Secretarial findings on cost-effectiveness, local financial
commitment and capacity, mobility improvements, environmental benefits,
economic development, operating efficiency, etc.
(e) These major investment studies also will, when appropriate,
serve as the analysis of demand reduction and operational management
strategies pursuant to 23 CFR 500.109(b).
(f) A major investment study will include environmental studies
which will be used for environmental documents as described in
paragraphs (f)(1) and (2) of this section:
(1) As a minimum the participating agencies will use the major
investment study as input to an environmental impact statement or
environmental assessment prepared subsequent to the completion of the
study. In such a case, the major investment study reports shall document
the consideration given to alternatives and their impacts; or
(2) The participating agencies may elect to develop a draft
environmental impact statement or environmental assessment as part of
the major investment study. At any time after the completion of the
study and the inclusion of the major transportation investment
[[Page 109]]
in the plan and the TIP the participating agencies may request the
development of final environmental decision documents required under
NEPA for such major transportation investments, culminating in the
execution of a Record of Decision or Finding of No Significant Impact by
the FHWA and/or the FTA.
(g) Major investment studies may lead to decisions that modify the
project design concept and scope assumed in the plan development
process. In this case, the study shall lead to the specification of a
project's design concept and scope in sufficient detail to meet the
requirements of the U.S. EPA conformity regulations (40 CFR part 51).
(h) Major investment studies are eligible for funds authorized under
sections 8, 9 and 26 of the Federal Transit Act (49 U.S.C. app. 1607,
16072, and 1622) and planning and capital funds apportioned under title
23, U.S.C., and shall be included in the UPWP. If CMAQ, STP, NHS, or
other capital funds administered by the FHWA are utilized for this
purpose, the study must also be included in the TIP.
(i) Where the environmental process has been completed and a Record
of Decision or Finding of No Significant Impact has been signed,
Sec. 450.318 does not apply. Where the environmental process has been
initiated but not completed, the FHWA and the FTA shall be consulted on
appropriate modifications to meet the requirements of this section.
[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]
Sec. 450.320 Metropolitan transportation planning process: Relation to management systems.
(a) Within all metropolitan areas, congestion, public
transportation, and intermodal management systems, to the extent
appropriate, shall be part of the metropolitan transportation planning
process required under the provisions of 23 U.S.C. 134 and 49 U.S.C.
5303-5305.
(b) In TMAs designated as nonattainment for ozone or carbon
monoxide, Federal funds may not be programmed for any project that will
result in a significant increase in carrying capacity for single
occupant vehicles (a new general purpose highway on a new location or
adding general purpose lanes, with the exception of safety improvements
or the elimination of bottlenecks) unless the project results from a
congestion management system (CMS) meeting the requirements of 23 CFR
part 500. Such projects shall incorporate all reasonably available
strategies to manage the SOV facility effectively (or to facilitate its
management in the future). Other travel demand reduction and operational
management strategies, as appropriate for the corridor, but not
appropriate for incorporation into the SOV facility itself, shall be
committed to by the State and the MPO for implementation in a timely
manner, but no later than the completion date for the SOV project.
Projects that had advanced beyond the NEPA stage prior to April 6, 1992,
and which are actively advancing to implementation, e.g., right-of-way
acquisition has been approved, shall be deemed programmed and not
subject to this provision.
(c) In TMAs, the planning process must include the development of a
CMS that provides for effective management of new and existing
transportation facilities through the use of travel demand reduction and
operational management strategies and meets the requirements of 23 CFR
part 500.
(d) The effectiveness of the management systems in enhancing
transportation investment decisions and improving the overall efficiency
of the metropolitan area's transportation systems and facilities shall
be evaluated periodically, preferably as part of the metropolitan
planning process.
[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]
Sec. 450.322 Metropolitan transportation planning process: Transportation plan.
(a) The metropolitan transportation planning process shall include
the development of a transportation plan addressing at least a twenty-
year planning horizon. The plan shall include both long-range and short-
range strategies/actions that lead to the development of an integrated
intermodal
[[Page 110]]
transportation system that facilitates the efficient movement of people
and goods. The transportation plan shall be reviewed and updated at
least triennially in nonattainment and maintenance areas and at least
every five years in attainment areas to conform its validity and
consistency with current and forecasted transportation and land use
conditions and trends and to extend the forecast period, except that the
transportation plan for the New York Metropolitan Transportation Council
that was reviewed and updated on September 30, 1999, shall be reviewed
and updated no later than September 30, 2005. The transportation plan
must be approved by the MPO.
(b) In addition, the plan shall:
(1) Identify the projected transportation demand of persons and
goods in the metropolitan planning area over the period of the plan;
(2) Identify adopted congestion management strategies including, as
appropriate, traffic operations, ridesharing, pedestrian and bicycle
facilities, alternative work schedules, freight movement options, high
occupancy vehicle treatments, telecommuting, and public transportation
improvements (including regulatory, pricing, management, and operational
options), that demonstrate a systematic approach in addressing current
and future transportation demand;
(3) Identify pedestrian walkway and bicycle transportation
facilities in accordance with 23 U.S.C. 217(g);
(4) Reflect the consideration given to the results of the management
systems, including in TMAs that are nonattainment areas for carbon
monoxide and ozone, identification of SOV projects that result from a
congestion management system that meets the requirements of 23 CFR part
500;
(5) Assess capital investment and other measures necessary to
preserve the existing transportation system (including requirements for
operational improvements, resurfacing, restoration, and rehabilitation
of existing and future major roadways, as well as operations,
maintenance, modernization, and rehabilitation of existing and future
transit facilities) and make the most efficient use of existing
transportation facilities to relieve vehicular congestion and enhance
the mobility of people and goods;
(6) Include design concept and scope descriptions of all existing
and proposed transportation facilities in sufficient detail, regardless
of the source of funding, in nonattainment and maintenance areas to
permit conformity determinations under the U.S. EPA conformity
regulations at 40 CFR part 51. In all areas, all proposed improvements
shall be described in sufficient detail to develop cost estimates;
(7) Reflect a multimodal evaluation of the transportation,
socioeconomic, environmental, and financial impact of the overall plan,
including all major transportation investments in accordance with
Sec. 450.318;
(8) For major transportation investments for which analyses are not
complete, indicate that the design concept and scope (mode and
alignment) have not been fully determined and will require further
analysis. The plan shall identify such study corridors and subareas and
may stipulate either a set of assumptions (assumed alternatives)
concerning the proposed improvements or a no-build condition pending the
completion of a corridor or subarea level analysis under Sec. 450.318.
In nonattainment and maintenance areas, the set of assumed alternatives
shall be in sufficient detail to permit plan conformity determinations
under the U.S. EPA conformity regulations (40 CFR part 51);
(9) Reflect, to the extent that they exist, consideration of: the
area's comprehensive long-range land use plan and metropolitan
development objectives; national, State, and local housing goals and
strategies, community development and employment plans and strategies,
and environmental resource plans; local, State, and national goals and
objectives such as linking low income households with employment
opportunities; and the area's overall social, economic, environmental,
and energy conservation goals and objectives;
(10) Indicate, as appropriate, proposed transportation enhancement
activities as defined in 23 U.S.C. 101(a); and
[[Page 111]]
(11) Include a financial plan that demonstrates the consistency of
proposed transportation investments with already available and projected
sources of revenue. The financial plan shall compare the estimated
revenue from existing and proposed funding sources that can reasonably
be expected to be available for transportation uses, and the estimated
costs of constructing, maintaining and operating the total (existing
plus planned) transportation system over the period of the plan. The
estimated revenue by existing revenue source (local, State, and Federal
and private) available for transportation projects shall be determined
and any shortfalls identified. Proposed new revenues and/or revenue
sources to cover shortfalls shall be identified, including strategies
for ensuring their availability for proposed investments. Existing and
proposed revenues shall cover all forecasted capital, operating, and
maintenance costs. All cost and revenue projections shall be based on
the data reflecting the existing situation and historical trends. For
nonattainment and maintenance areas, the financial plan shall address
the specific financial strategies required to ensure the implementation
of projects and programs to reach air quality compliance.
(c) There must be adequate opportunity for public official
(including elected officials) and citizen involvement in the development
of the transportation plan before it is approved by the MPO, in
accordance with the requirements of Sec. 450.316(b)(1). Such procedures
shall include opportunities for interested parties (including citizens,
affected public agencies, representatives of transportation agency
employees, and private providers of transportation) to be involved in
the early stages of the plan development/update process. The procedures
shall include publication of the proposed plan or other methods to make
it readily available for public review and comment and, in nonattainment
TMAs, an opportunity for at least one formal public meeting annually to
review planning assumptions and the plan development process with
interested parties and the general public. The procedures also shall
include publication of the approved plan or other methods to make it
readily available for information purposes.
(d) In nonattainment and maintenance areas for transportation
related pollutants, the FHWA and the FTA, as well as the MPO, must make
a conformity determination on any new/revised plan in accordance with
the Clean Air Act and the EPA conformity regulations (40 CFR part 51).
(e) Although transportation plans do not need to be approved by the
FHWA or the FTA, copies of any new/revised plans must be provided to
each agency.
[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996;
67 FR 62373, Oct. 7, 2002]
Sec. 450.324 Transportation improvement program: General.
(a) The metropolitan transportation planning process shall include
development of a transportation improvement program (TIP) for the
metropolitan planning area by the MPO in cooperation with the State and
public transit operators.
(b) The TIP must be updated at least every two years and approved by
the MPO and the Governor. The frequency and cycle for updating the TIP
must be compatible with the STIP development and approval process. Since
the TIP becomes part of the STIP, the TIP lapses when the FHWA and FTA
approval for the STIP lapses. In the case of extenuating circumstances,
FHWA and FTA will consider and take appropriate action on requests to
extend the STIP approval period for all or part of the STIP in
accordance with Sec. 450.220(d). Although metropolitan TIPs, unlike
statewide TIPs, do not need to be approved by the FHWA or the FTA,
copies of any new or amended TIPs must be provided to each agency.
Additionally, in nonattainment and maintenance areas for transportation
related pollutants, the FHWA and the FTA, as well as the MPO, must make
a conformity determination on any new or amended TIPs (unless the
amendment consists entirely of exempt projects) in accordance with the
Clean Air Act requirements and the EPA conformity regulations (40 CFR
part 51).
[[Page 112]]
(c) There must be reasonable opportunity for public comment in
accordance with the requirements of Sec. 450.316(b)(1) and, in
nonattainment TMAs, an opportunity for at least one formal public
meeting during the TIP development process. This public meeting may be
combined with the public meeting required under Sec. 450.322(c). The
proposed TIP shall be published or otherwise made readily available for
review and comment. Similarly, the approved TIP shall be published or
otherwise made readily available for information purposes.
(d) The TIP shall cover a period of not less than 3 years, but may
cover a longer period if it identifies priorities and financial
information for the additional years. The TIP must include a priority
list of projects to be carried out in the first three years. As a
minimum, the priority list shall group the projects that are to be
undertaken in each of the years, i.e., year 1, year 2, year 3. In
nonattainment and maintenance areas, the TIP shall give priority to
eligible TCMs identified in the approved SIP in accordance with the U.S.
EPA conformity regulation (40 CFR part 51) and shall provide for their
timely implementation.
(e) The TIP shall be financially constrained by year and include a
financial plan that demonstrates which projects can be implemented using
current revenue sources and which projects are to be implemented using
proposed revenue sources (while the existing transportation system is
being adequately operated and maintained). The financial plan shall be
developed by the MPO in cooperation with the State and the transit
operator. The State and the transit operator must provide MPOs with
estimates of available Federal and State funds which the MPOs shall
utilize in developing financial plans. It is expected that the State
would develop this information as part of the STIP development process
and that the estimates would be refined through this process. Only
projects for which construction and operating funds can reasonably be
expected to be available may be included. In the case of new funding
sources, strategies for ensuring their availability shall be identified.
In developing the financial analysis, the MPO shall take into account
all projects and strategies funded under title 23, U.S.C., and the
Federal Transit Act, other Federal funds, local sources, State
assistance, and private participation. In nonattainment and maintenance
areas, projects included for the first two years of the current TIP
shall be limited to those for which funds are available or committed.
(f) The TIP shall include:
(1) All transportation projects, or identified phases of a project,
(including pedestrian walkways, bicycle transportation facilities and
transportation enhancement projects) within the metropolitan planning
area proposed for funding under title 23, U.S.C., (including Federal
Lands Highway projects) and the Federal Transit Act, excluding safety
projects funded under 23 U.S.C. 402, emergency relief projects (except
those involving substantial functional, locational and capacity
changes), and planning and research activities (except those funded with
NHS, STP, and/or MA funds). Planning and research activities funded with
NHS, STP and/or MA funds, other than those used for major investment
studies, may be excluded from the TIP by agreement of the State and the
MPO;
(2) Only projects that are consistent with the transportation plan;
(3) All regionally significant transportation projects for which an
FHWA or the FTA approval is required whether or not the projects are to
be funded with title 23, U.S.C., or Federal Transit Act funds, e.g.,
addition of an interchange to the Interstate System with State, local,
and/or private funds, demonstration projects not funded under title 23,
U.S.C., or the Federal Transit Act, etc.;
(4) For informational purposes and air quality analysis in
nonattainment and maintenance areas, all regionally significant
transportation projects proposed to be funded with Federal funds,
including intermodal facilities, not covered in paragraphs (f)(1) or
(f)(3) of this section; and
(5) For informational purposes and air quality analysis in
nonattainment and maintenance areas, all regionally significant projects
to be funded with non-Federal funds.
[[Page 113]]
(g) With respect to each project under paragraph (f) of this section
the TIP shall include:
(1) Sufficient descriptive material (i.e., type of work, termini,
length, etc.) to identify the project or phase;
(2) Estimated total cost;
(3) The amount of Federal funds proposed to be obligated during each
program year;
(4) Proposed source of Federal and non-Federal funds;
(5) Identification of the recipient/subrecipient and State and local
agencies responsible for carrying out the project;
(6) In nonattainment and maintenance areas, identification of those
projects which are identified as TCMs in the applicable SIP; and
(7) In areas with Americans with Disabilities Act required
Paratransit and key station plans, identification of those projects
which will implement the plans.
(h) In nonattainment and maintenance areas, projects included shall
be specified in sufficient detail (design concept and scope) to permit
air quality analysis in accordance with the U.S. EPA conformity
requirements (40 CFR part 51).
(i) Projects proposed for FHWA and/or FTA funding that are not
considered by the State and MPO to be of appropriate scale for
individual identification in a given program year may be grouped by
function, geographic area, and work type using applicable
classifications under 23 CFR 771.117 (c) and (d). In nonattainment and
maintenance areas, classifications must be consistent with the exempt
project classifications contained in the U.S. EPA conformity
requirements (40 CFR part 51).
(j) Projects utilizing Federal funds that have been allocated to the
area pursuant to 23 U.S.C. 133(d)(3)(E) shall be identified.
(k) The total Federal share of projects included in the TIP proposed
for funding under section 9 of the Federal Transit Act (49 U.S.C. app.
1607a) may not exceed section 9 authorized funding levels available to
the area for the program year.
(l) Procedures or agreements that distribute suballocated Surface
Transportation Program or section 9 funds to individual jurisdictions or
modes within the metropolitan area by predetermined percentages or
formulas are inconsistent with the legislative provisions that require
MPOs in cooperation with the State and transit operators to develop a
prioritized and financially constrained TIP and shall not be used unless
they can be clearly shown to be based on considerations required to be
addressed as part of the planning process.
(m) For the purpose of including Federal Transit Act section 3
funded projects in a TIP the following approach shall be followed:
(1) The total Federal share of projects included in the first year
of the TIP shall not exceed levels of funding committed to the area; and
(2) The total Federal share of projects included in the second,
third and/or subsequent years of the TIP may not exceed levels of
funding committed, or reasonably expected to be available, to the area.
(n) As a management tool for monitoring progress in implementing the
transportation plan, the TIP shall:
(1) Identify the criteria and process for prioritizing
implementation of transportation plan elements (including intermodal
trade-offs) for inclusion in the TIP and any changes in priorities from
previous TIPs;
(2) List major projects from the previous TIP that were implemented
and identify any significant delays in the planned implementation of
major projects;
(3) In nonattainment and maintenance areas, describe the progress in
implementing any required TCMs, including the reasons for any
significant delays in the planned implementation and strategies for
ensuring their advancement at the earliest possible time; and
(4) In nonattainment and maintenance areas, include a list of all
projects found to conform in a previous TIP and are now part of the base
case for the purpose of air quality conformity analyses. Projects shall
be included in this list until construction or acquisition has been
fully authorized, except when a three-year period has
[[Page 114]]
elapsed subsequent to the NEPA approval without any major action taking
place to advance the project.
(o) In order to maintain or establish operations, in the absence of
an approved metropolitan TIP, the FTA and/or the FHWA Administrators, as
appropriate, may approve operating assistance.
Sec. 450.326 Transportation improvement program: Modification.
The TIP may be modified at any time consistent with the procedures
established in this part for its development and approval. In
nonattainment or maintenance areas for transportation related pollutants
if the TIP is amended by adding or deleting projects which contribute to
and/or reduce transportation related emissions or replaced with a new
TIP, new conformity determinations by the MPO and the FHWA and the FTA
will be necessary. Public involvement procedures consistent with
Sec. 450.316(b)(1) shall be utilized in amending the TIP, except that
these procedures are not required for TIP amendments that only involve
projects of the type covered in Sec. 450.324(i).
Sec. 450.328 Transportation improvement program: Relationship to statewide TIP.
(a) After approval by the MPO and the Governor, the TIP shall be
included without modification, directly or by reference, in the STIP
program required under 23 U.S.C. 135 and consistent with Sec. 450.220,
except that in nonattainment and maintenance areas, a conformity finding
by the FHWA and the FTA must be made before it is included in the STIP.
After approval by the MPO and the Governor, a copy shall be provided to
the FHWA and the FTA.
(b) The State shall notify the appropriate MPO and Federal Lands
Highways Program agencies, e.g., Bureau of Indian Affairs and/or
National Park Service, when a TIP including projects under the
jurisdiction of these agencies has been included in the STIP.
Sec. 450.330 Transportation improvement program: Action required by FHWA/FTA.
(a) The FHWA and the FTA must jointly find that each metropolitan
TIP is based on a continuing, comprehensive transportation process
carried on cooperatively by the States, MPOs and transit operators in
accordance with the provisions of 23 U.S.C. 134 and section 8 of the
Federal Transit Act (49 U.S.C. app. 1607). This finding shall be based
on the self-certification statement submitted by the State and MPO under
Sec. 450.334 and upon other reviews as deemed necessary by the FHWA and
the FTA.
(b) In nonattainment and maintenance areas, the FHWA and the FTA
must also jointly find that the metropolitan TIP conforms with the
adopted SIP and that priority has been given to the timely
implementation of transportation control measures contained in the SIP
in accordance with 40 CFR part 51. As part of their review in
nonattainment areas requiring TCMs, the FHWA and the FTA will
specifically consider any comments relating to the financial plans for
the plan and TIP contained in the summary of significant comments
required under Sec. 450.316(b). If the TIP is found to be in
nonconformance with the SIP, the TIP shall be returned to the Governor
and the MPO with the joint finding. If the TIP is found to conform with
the SIP, the Governor/MPO shall be notified of the joint finding. After
the FHWA and the FTA find the TIP to be in conformance, the TIP shall be
incorporated, without modification, into the STIP, directly or by
reference.
Sec. 450.332 Project selection for implementation.
(a) In areas not designated as TMAs and when Sec. 450.332(c) does
not apply, projects to be implemented using title 23 funds other than
Federal lands projects or Federal Transit Act funds shall be selected by
the State and/or the transit operator, in cooperation with the MPO from
the approved metropolitan TIP. Federal Lands Highways
[[Page 115]]
program projects shall be selected in accordance with 23 U.S.C. 204.
(b) In areas designated as TMAs where Sec. 450.332(c) does not
apply, all title 23 and Federal Transit Act funded projects, except
projects on the NHS and projects funded under the bridge, interstate
maintenance, and Federal Lands Highways programs, shall be selected by
the MPO in consultation with the State and transit operator from the
approved metropolitan TIP and in accordance with the priorities in the
approved metropolitan TIP. Projects on the NHS, and projects funded
under the bridge and Interstate maintenance programs shall be selected
by the State in cooperation with the MPO, from the approved metropolitan
TIP. Federal Lands Highway Program projects shall be selected in
accordance with 23 U.S.C. 204.
(c) Once a TIP that meets the requirements of Sec. 450.324 has been
developed and approved, the first year of the TIP shall constitute an
``agreed to'' list of projects for project selection purposes and no
further project selection action is required for the implementing agency
to proceed with projects, except where the appropriated Federal funds
available to the metropolitan planning area are significantly less than
the authorized amounts. In this case, a revised ``agreed to'' list of
projects shall be jointly developed by the MPO, State, and the transit
operator if requested by the MPO, State, or the transit operator. If the
State or transit operator wishes to proceed with a project in the second
or third year of the TIP, the specific project selection procedures
stated in paragraphs (a) and (b) of this section must be used unless the
MPO, State, and transit operator jointly develop expedited project
selection procedures to provide for the advancement of projects from the
second or third year of the TIP.
(d) Projects not included in the Federally approved STIP will not be
eligible for funding with title 23, U.S.C., or Federal Transit Act
funds.
(e) In nonattainment and maintenance areas, priority will be given
to the timely implementation of TCMs contained in the applicable SIP in
accordance with the U.S. EPA conformity regulations at 40 CFR part 51.
Sec. 450.334 Metropolitan transportation planning process: Certification.
(a) The State and the MPO shall annually certify to the FHWA and the
FTA that the planning process is addressing the major issues facing the
area and is being conducted in accordance with all applicable
requirements of:
(1) Section 134 of title 23, U.S.C., section 8 of the Federal
Transit Act (49 U.S.C. app. 1607) and this part;
(2) Sections 174 and 176 (c) and (d) of the Clean Air Act (42 U.S.C.
7504, 7506 (c) and (d));
(3) Title VI of the Civil Rights Act of 1964 and the Title VI
assurance executed by each State under 23 U.S.C. 324 and 29 U.S.C. 794;
(4) Section 1003(b) of the Intermodal Surface Transportation
Efficiency Act of 1991 (Pub. L. 102-240) regarding the involvement of
disadvantaged business enterprises in the FHWA and the FTA funded
planning projects (sec. 105(f), Pub. L. 97-424, 96 Stat. 2100; 49 CFR
part 23); and
(5) The provisions of the Americans with Disabilities Act of 1990
(Pub. L. 101-336, 104 Stat. 327, as amended) and U.S. DOT regulations
``Transportation for Individuals with Disabilities'' (49 CFR parts 27,
37, and 38).
(b) The FHWA and the FTA jointly will review and evaluate the
transportation planning process for each TMA (as appropriate but no less
than once every three years) to determine if the process meets the
requirements of this subpart.
(c) In TMAs that are nonattainment or maintenance areas for
transportation related pollutants, the FHWA and the FTA will also review
and evaluate the transportation planning process to assure that the MPO
has an adequate process to ensure conformity of plans and programs in
accordance with procedures contained in 40 CFR part 51.
(d) Upon the review and evaluation conducted under paragraphs (b)
and (c) of this section, if the FHWA and the FTA jointly determine that
the transportation planning process in a TMA meets or substantially
meets the requirements of this part, they will take one of the following
actions, as appropriate:
[[Page 116]]
(1) Jointly certify the transportation planning process;
(2) Jointly certify the transportation planning process subject to
certain specified corrective actions being taken; or
(3) Jointly certify the planning process as the basis for approval
of only those categories of programs or projects that the Administrators
may jointly determine and subject to certain specified corrective
actions being taken.
(e) A certification action under this section will remain in effect
for three years unless a new certification determination is made sooner.
(f) If, upon the review and evaluation conducted under paragraph (b)
or (c) of this section, the FHWA and the FTA jointly determine that the
transportation planning process in a TMA does not substantially meet the
requirements, they may take the following action as appropriate, if
after September 30, 1993, the transportation planning process is not
certified:
(1) Withhold in whole or in part the apportionment attributed to the
relevant metropolitan planning area under 23 U.S.C. 133(d)(3), capital
funds apportioned under section 9 of the Federal Transit Act, and
section 3 funds under the Federal Transit Act (49 U.S.C. 1607(a)); or
(2) Withhold approval of all or certain categories of projects.
(g) If a transportation planning process remains uncertified for
more than two consecutive years after September 30, 1994, 20 percent of
the apportionment attributed to the metropolitan planning area under 23
U.S.C. 133(d)(3) and capital funds apportioned under the formula program
of section 9 of the Federal Transit Act (49 U.S.C. app. 1607a) will be
withheld.
(h) The State and the MPO shall be notified of the actions taken
under paragraphs (f) and (g) of this section. Upon full, joint
certification by the FHWA and the FTA, all funds withheld will be
restored to the metropolitan area, unless they have lapsed.
Sec. 450.336 Phase-in of new requirements.
(a) Except for reflecting the consideration given the results of the
management systems, the planning process and plans in nonattainment
areas requiring TCMs shall comply, to the extent possible, with the
requirements of this subpart by October 1, 1994. All other metropolitan
areas shall comply to the extent possible with the requirements of this
subpart by December 18, 1994. Where time does not permit a quantitative
analysis of certain factors, a qualitative analysis of those factors
will be acceptable. If a forecast period of less than twenty years is
acceptable for SIP development and air quality conformity purposes, that
same time period will be acceptable for transportation planning. The
initial plan update shall be financially feasible, taking into account
capital costs and the funds reasonably available for capital
improvements, as well as addressing to the extent possible the costs of
and revenues available for operating and maintenance of the
transportation system. Where TCMs are required, the plan update process
shall be coordinated with the process for developing TCMs. The planning
process for subsequent updates of the plan and the updated plans shall
comply with the requirements of this subpart. Plan updates performed in
all areas must consider the results of the management systems (specified
in 23 CFR part 500) as they become available. The plan shall reflect
this consideration.
(b)(1) During the period prior to the full implementation of the CMS
in a TMA, the MPO in cooperation with the State, the public transit
operators, and other operators of major modes of transportation shall
identify the location of the most serious congestion problems in the
metropolitan area and proceed with the development of actions to address
these problems.
(2) Prior to the full implementation of a CMS, an adequate interim
CMS in a TMA designated as nonattainment for carbon monoxide and/or
ozone shall, as a minimum, include a process that results in an
appropriate analysis of all reasonably available (including multimodal)
travel demand reduction and operational management strategies for the
corridor in which a project that will result in a significant increase
in SOV capacity is proposed. This analysis must demonstrate how
[[Page 117]]
far such strategies can go in eliminating the need for additional SOV
capacity in the corridor. If the analysis demonstrates that additional
SOV capacity is warranted, then all reasonable strategies to manage the
facility effectively (or to facilitate its management in the future)
shall be incorporated into the proposed facility. Other travel demand
reduction and operational management strategies appropriate for the
corridor, but not appropriate for incorporation into the SOV facility
itself must be committed to by the State and the MPO for implementation
in a timely manner but no later than completion of construction of the
SOV facility. If the area does not already have a traffic management and
carpool/vanpool program, the establishment of such programs must be a
part of the commitment.
(3) In TMAs that are nonattainment for carbon monoxide and/or ozone,
the MPO, a State and/or transit operator may not advance a project
utilizing Federal funds that provides a significant capacity increase
for SOVs (adding general purpose lanes, with the exception of safety
improvements or the elimination of bottlenecks, or a new highway on a
new location) beyond the NEPA process unless an interim CMS is in place
that meets the criteria in paragraphs (b)(1) and (b)(2) of this section
and the project results from this interim CMS.
(4) Projects that are part of or consistent with a State mandated
congestion management system/plan are not subject to the requirements in
paragraphs (b)(1) and (b)(2) of this section.
(5) Projects advanced beyond the NEPA process as of April 6, 1992
and which are being implemented, e.g., right-of-way acquisition has been
approved, will be deemed to be programmed and not subject to this
requirement.
[58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996]
PART 460--PUBLIC ROAD MILEAGE FOR APPORTIONMENT OF HIGHWAY SAFETY FUNDS--Table of Contents
Sec.
460.1 Purpose.
460.2 Definitions.
460.3 Procedures.
Authority: 23 U.S.C. 315, 402(c); 49 CFR 1.48.
Source: 40 FR 44322, Sept. 26, 1975, unless otherwise noted.
Sec. 460.1 Purpose.
The purpose of this part is to prescribe the policies and procedures
followed in identifying and reporting public road mileage for
utilization in the statutory formula for the apportionment of highway
safety funds under 23 U.S.C. 402(c).
Sec. 460.2 Definitions.
As used in this part:
(a) Public road means any road under the jurisdiction of and
maintained by a public authority and open to public travel.
(b) Public authority means a Federal, State, county, town, or
township, Indian tribe, municipal or other local government or
instrumentality thereof, with authority to finance, build, operate or
maintain toll or toll-free highway facilities.
(c) Open to public travel means that the road section is available,
except during scheduled periods, extreme weather or emergency
conditions, passable by four-wheel standard passenger cars, and open to
the general public for use without restrictive gates, prohibitive signs,
or regulation other than restrictions based on size, weight, or class of
registration. Toll plazas of public toll roads are not considered
restrictive gates.
(d) Maintenance means the preservation of the entire highway,
including surfaces, shoulders, roadsides, structures, and such traffic
control devices as are necessary for its safe and efficient utilization.
(e) State means any one of the 50 States, the District of Columbia,
Puerto Rico, the Virgin Islands, Guam, and American Samoa. For the
purpose of the application of 23 U.S.C. 402 on Indian reservations,
State and Governor of a State include the Secretary of the Interior.
Sec. 460.3 Procedures.
(a) General requirements. 23 U.S.C. 402(c) provides that funds
authorized to
[[Page 118]]
carry out section 402 shall be apportioned according to a formula based
on population and public road mileage of each State. Public road mileage
shall be determined as of the end of the calendar year preceding the
year in which the funds are apportioned and shall be certified to by the
Governor of the State or his designee and subject to the approval of the
Federal Highway Administrator.
(b) State public road mileage. Each State must annually submit a
certification of public road mileage within the State to the Federal
Highway Administration Division Administrator by the date specified by
the Division Administrator. Public road mileage on Indian reservations
within the State shall be identified and included in the State mileage
and in computing the State's apportionment.
(c) Indian reservation public road mileage. The Secretary of the
Interior or his designee will submit a certification of public road
mileage within Indian reservations to the Federal Highway Administrator
by June 1 of each year.
(d) Action by the Federal Highway Administrator. (1) The
certification of Indian reservation public road mileage, and the State
certifications of public road mileage together with comments thereon,
will be reviewed by the Federal Highway Administrator. He will make a
final determination of the public road mileage to be used as the basis
for apportionment of funds under 23 U.S.C. 402(c). In any instance in
which the Administrator's final determination differs from the public
road mileage certified by a State or the Secretary of the Interior, the
Administrator will advise the State or the Secretary of the Interior of
his final determination and the reasons therefor.
(2) If a State fails to submit a certification of public road
mileage as required by this part, the Federal Highway Administrator may
make a determination of the State's public road mileage for the purpose
of apportioning funds under 23 U.S.C. 402(c). The State's public road
mileage determined by the Administrator under this subparagraph may not
exceed 90 percent of the State's public road mileage utilized in
determining the most recent apportionment of funds under 23 U.S.C.
402(c).
PART 470--HIGHWAY SYSTEMS--Table of Contents
Subpart A--Federal-aid Highway Systems
Sec.
470.101 Purpose.
470.103 Definitions.
470.105 Urban area boundaries and highway functional classification.
470.107 Federal-aid highway systems.
470.109 System procedures--General.
470.111 Interstate System procedures.
470.113 National Highway System procedures.
470.115 Approval authority.
Appendix A to Subpart A of Part 470--Guidance Criteria for Evaluating
Requests for Interstate System Designations under 23 U.S.C.
139 (a) and (b).
Appendix B to Subpart A of Part 470--Designation of Segments of Section
332(a)(2) Corridors as Parts of the Interstate System.
Appendix C to Subpart A of Part 470--Policy for the Signing and
Numbering of Future Interstate Corridors Designated by Section
332 of the NHS Designation Act of 1995 or Designated Under 23
U.S.C. 139(b).
Appendix D to Subpart A of Part 470--Guidance Criteria for Evaluating
Requests for Modifications to the National Highway System.
Subparts B-C [Reserved]
Authority: 23 U.S.C. 103(b)(2), 103 (e)(1), (e)(2), and (e)(3),
103(f), 134, 135, and 315; and 49 CFR 1.48(b)(2).
Source: 40 FR 42344, Sept. 12, 1975, unless otherwise noted.
Redesignated at 41 FR 51396, Nov. 22, 1976.
Subpart A--Federal-aid Highway Systems
Source: 62 FR 33355, June 19, 1997, unless otherwise noted.
Sec. 470.101 Purpose.
This part sets forth policies and procedures relating to the
identification of Federal-aid highways, the functional classification of
roads and streets, the designation of urban area boundaries, and the
designation of routes on the Federal-aid highway systems.
[[Page 119]]
Sec. 470.103 Definitions.
Except as otherwise provided in this part, terms defined in 23
U.S.C. 101(a) are used in this part as so defined.
Consultation means that one party confers with another identified
party and, prior to taking action(s), considers that party's views.
Cooperation means that the parties involved in carrying out the
planning, programming and management systems processes work together to
achieve a common goal or objective.
Coordination means the comparison of the transportation plans,
programs, and schedules of one agency with related plans, programs, and
schedules of other agencies or entities with legal standing, and
adjustment of plans, programs, and schedules to achieve general
consistency.
Federal-aid highway systems means the National Highway System and
the Dwight D. Eisenhower National System of Interstate and Defense
Highways (the ``Interstate System'').
Federal-aid highways means highways on the Federal-aid highway
systems and all other public roads not classified as local roads or
rural minor collectors.
Governor means the chief executive of the State and includes the
Mayor of the District of Columbia.
Metropolitan planning organization (MPO) means the forum for
cooperative transportation decisionmaking for the metropolitan planning
area in which the metropolitan transportation planning process required
by 23 U.S.C. 134 and 49 U.S.C. 5303-5305 must be carried out.
Responsible local officials means--
(1) In urbanized areas, principal elected officials of general
purpose local governments acting through the Metropolitan Planning
Organization designated by the Governor, or
(2) In rural areas and urban areas not within any urbanized area,
principal elected officials of general purpose local governments.
State means any one of the fifty States, the District of Columbia,
Puerto Rico, or, for purposes of functional classification of highways,
the Virgin Islands, American Samoa, Guam, or the Commonwealth of the
Northern Marianas.
Sec. 470.105 Urban area boundaries and highway functional classification.
(a) Urban area boundaries. Routes on the Federal-aid highway systems
may be designated in both rural and urban areas. Guidance for
determining the boundaries of urbanized and nonurbanized urban areas is
provided in the ``Federal-Aid Policy Guide,'' Chapter 4 [G 4063.0],
dated December 9, 1991. \1\
---------------------------------------------------------------------------
\1\ The ``Federal-aid Policy Guide'' is available for inspection and
copying as prescribed in 49 CFR part 7, Appendix D.
---------------------------------------------------------------------------
(b) Highway Functional Classification. (1) The State transportation
agency shall have the primary responsibility for developing and updating
a statewide highway functional classification in rural and urban areas
to determine functional usage of the existing roads and streets.
Guidance criteria and procedures are provided in the FHWA publication
``Highway Functional Classification--Concepts, Criteria and
Procedures.'' \2\ The State shall cooperate with responsible local
officials, or appropriate Federal agency in the case of areas under
Federal jurisdiction, in developing and updating the functional
classification.
---------------------------------------------------------------------------
\2\ This publication, revised in March 1989, is available on request
to the FHWA, Office of Environment and Planning, HEP-10, 400 Seventh
Street, SW., Washington, DC 20590.
---------------------------------------------------------------------------
(2) The results of the functional classification shall be mapped and
submitted to the Federal Highway Administration (FHWA) for approval and
when approved shall serve as the official record for Federal-aid
highways and the basis for designation of the National Highway System.
Sec. 470.107 Federal-aid highway systems.
(a) Interstate System. (1) The Dwight D. Eisenhower National System
of Interstate and Defense Highways (Interstate System) shall consist of
routes of highest importance to the Nation, built to the uniform
geometric and construction standards of 23 U.S.C. 109(h), which connect,
as directly as practicable, the principal metropolitan areas, cities,
and industrial centers, including important routes into, through, and
around urban areas, serve the national defense and, to the greatest
extent possible, connect at suitable
[[Page 120]]
border points with routes of continental importance in Canada and
Mexico.
(2) The portion of the Interstate System designated under 23 U.S.C.
103 (e)(1), (e)(2), and (e)(3) shall not exceed 69,230 kilometers
(43,000 miles). Additional Interstate System segments are permitted
under the provisions of 23 U.S.C. 139 (a) and (c) and section
1105(e)(5)(A) of the Intermodal Surface Transportation Efficiency Act of
1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914, as amended.
(b) National Highway System. (1) The National Highway System shall
consist of interconnected urban and rural principal arterials and
highways (including toll facilities) which serve major population
centers, international border crossings, ports, airports, public
transportation facilities, other intermodal transportation facilities
and other major travel destinations; meet national defense requirements;
and serve interstate and interregional travel. All routes on the
Interstate System are a part of the National Highway System.
(2) The National Highway System shall not exceed 286,983 kilometers
(178,250 miles).
(3) The National Highway System shall include the Strategic Highway
Corridor Network (STRAHNET) and its highway connectors to major military
installations, as designated by the Administrator in consultation with
appropriate Federal agencies and the States. The STRAHNET includes
highways which are important to the United States strategic defense
policy and which provide defense access, continuity, and emergency
capabilities for the movement of personnel, materials, and equipment in
both peace time and war time.
(4) The National Highway System shall include all high priority
corridors identified in section 1105(c) of the ISTEA.
Sec. 470.109 System procedures--General.
(a) The State transportation agency, in consultation with
responsible local officials, shall have the responsibility for proposing
to the Federal Highway Administration all official actions regarding the
designation, or revision, of the Federal-aid highway systems.
(b) The routes of the Federal-aid highway systems shall be proposed
by coordinated action of the State transportation agencies where the
routes involve State-line connections.
(c) The designation of routes on the Federal-aid highway systems
shall be in accordance with the planning process required, pursuant to
the provisions at 23 U.S.C. 135, and, in urbanized areas, the provisions
at 23 U.S.C. 134(a). The State shall cooperate with local and regional
officials. In urbanized areas, the local officials shall act through the
metropolitan planning organizations designated for such areas under 23
U.S.C. 134.
(d) In areas under Federal jurisdiction, the designation of routes
on the Federal-aid highway systems shall be coordinated with the
appropriate Federal agency.
Sec. 470.111 Interstate System procedures.
(a) Proposals for system actions on the Interstate System shall
include a route description and a statement of justification. Proposals
shall also include statements regarding coordination with adjoining
States on State-line connections, with responsible local officials, and
with officials of areas under Federal jurisdiction.
(b) Proposals for Interstate or future Interstate designation under
23 U.S.C. 139(a) or (b), as logical additions or connections, shall
consider the criteria contained in appendix A of this subpart. For
designation as a part of the Interstate system, 23 U.S.C. 139(a)
requires that a highway meet all the standards of a highway on the
Interstate System, be a logical addition or connection to the Interstate
System, and have the affirmative recommendation of the State or States
involved. For designation as a future part of the Interstate System, 23
U.S.C. 139(b) requires that a highway be a logical addition or
connection to the Interstate System, have the affirmative recommendation
of the State or States involved, and have the written agreement of the
State or States involved that such highway will be constructed to meet
all the standards of a highway on the Interstate System within twelve
[[Page 121]]
years of the date of the agreement between the FHWA Administrator and
the State or States involved. Such highways must also be on the National
Highway System.
(c) Proposals for Interstate designation under 23 U.S.C. 139(c)
shall pertain only to Alaska or Puerto Rico. For designation as parts of
the Interstate System, 23 U.S.C. 139(c) requires that highway segments
be in States which have no Interstate System; be logical components to a
system serving the State's principal cities, national defense needs and
military installations, and traffic generated by rail, water, and air
transportation modes; and have been constructed to the geometric and
construction standards adequate for current and probable future traffic
demands and the needs of the locality of the segment. Such highways must
also be on the National Highway System.
(d) Routes proposed for Interstate designation under section
332(a)(2) of the NHS Designation Act of 1995 (NHS Act) shall be
constructed to Interstate standards and connect to the Interstate
System. Proposals shall consider the criteria contained in appendix B of
this subpart.
(e) Proposals for Interstate route numbering shall be submitted by
the State transportation agency to the Route Numbering Committee of the
American Association of State Highway and Transportation Officials.
(f) Signing of corridors federally designated as future Interstate
routes can follow the criteria contained in appendix C of this subpart.
No law, rule, regulation, map, document, or other record of the United
States, or of any State or political subdivision thereof, shall refer to
any highway under 23 U.S.C. 139, nor shall any such highway be signed or
marked, as a highway on the Interstate System until such time as such
highway is constructed to the geometric and construction standards for
the Interstate System and has been designated as a part of the
Interstate System.
Sec. 470.113 National Highway System procedures.
(a) Proposals for system actions on the National Highway System
shall include a route description, a statement of justification, and
statements of coordination with adjoining States on State-line
connections, with responsible local officials, and with officials of
areas under Federal jurisdiction.
(b) Proposed modifications to the National Highway System shall
enhance the national transportation characteristics of the National
Highway System and shall follow the criteria listed in Sec. 470.107.
Proposals shall also consider the criteria contained in appendix D of
this subpart.
Sec. 470.115 Approval authority.
(a) The Federal Highway Administrator will approve Federal-aid
highway system actions involving the designation, or revision, of routes
on the Interstate System, including route numbers, future Interstate
routes, and routes on the National Highway System.
(b) The Federal Highway Administrator will approve functional
classification actions.
Appendix A to Subpart A of Part 470--Guidance Criteria for Evaluating
Requests for Interstate System Designations Under 23 U.S.C. 139 (a) and
(b)
Section 139 (a) and (b), of title 23, U.S.C., permits States to
request the designation of National Highway System routes as parts or
future parts of the Interstate System. The FHWA Administrator may
approve such a request if the route is a logical addition or connection
to the Interstate System and has been, or will be, constructed to meet
Interstate standards. The following are the general criteria to be used
to evaluate 23 U.S.C. 139 requests for Interstate System designations.
1. The proposed route should be of sufficient length to serve long-
distance Interstate travel, such as connecting routes between principal
metropolitan cities or industrial centers important to national defense
and economic development.
2. The proposed route should not duplicate other Interstate routes.
It should serve Interstate traffic movement not provided by another
Interstate route.
3. The proposed route should directly serve major highway traffic
generators. The term ``major highway traffic generator'' means either an
urbanized area with a population over 100,000 or a similar major
concentrated land use activity that produces and attracts long-distance
Interstate and statewide travel of persons and goods. Typical examples
of
[[Page 122]]
similar major concentrated land use activities would include a principal
industrial complex, government center, military installation, or
transportation terminal.
4. The proposed route should connect to the Interstate System at
each end, with the exception of Interstate routes that connect with
continental routes at an international border, or terminate in a ``major
highway traffic generator'' that is not served by another Interstate
route. In the latter case, the terminus of the Interstate route should
connect to routes of the National Highway System that will adequately
handle the traffic. The proposed route also must be functionally
classified as a principal arterial and be a part of the National Highway
System system.
5. The proposed route must meet all the current geometric and safety
standards criteria as set forth in 23 CFR part 625 for highways on the
Interstate System, or a formal agreement to construct the route to such
standards within 12 years must be executed between the State(s) and the
Federal Highway Administration. Any proposed exceptions to the standards
shall be approved at the time of designation.
6. A route being proposed for designation under 23 U.S.C. 139(b)
must have an approved final environmental document (including, if
required, a 49 U.S.C. 303(c) [Section 4(f)] approval) covering the route
and project action must be ready to proceed with design at the time of
designation. Routes constructed to Interstate standards are not
necessarily logical additions to the Interstate System unless they
clearly meet all of the above criteria.
Appendix B to Subpart A of Part 470--Designation of Segments of Section
332(a)(2) Corridors as Parts of the Interstate System
The following guidance is comparable to current procedures for
Interstate System designation requests under 23 U.S.C. 139(a). All
Interstate System additions must be approved by the Federal Highway
Administrator. The provisions of section 332(a)(2) of the NHS Act have
also been incorporated into the ISTEA as section 1105(e)(5)(A).
1. The request must be submitted through the appropriate FHWA
Division and Regional Offices to the Associate Administrator for Program
Development (HEP-10). Comments and recommendations by the division and
regional offices are requested.
2. The State DOT secretary (or equivalent) must request that the
route segment be added to the Interstate System. The exact location and
termini must be specified. If the route segment involves more than one
State, each affected State must submit a separate request.
3. The request must provide information to support findings that the
segment (a) is built to Interstate design standards and (b) connects to
the existing Interstate System. The segment should be of sufficient
length to provide substantial service to the travelling public.
4. The request must also identify and justify any design exceptions
for which approval is requested.
5. Proposed Interstate route numbering for the segment must be
submitted to FHWA and the American Association of State Highway and
Transportation Officials Route Numbering
Appendix C to Subpart A of Part 470--Policy for the Signing and
Numbering of Future Interstate Corridors Designated by Section 332 of
the NHS Designation Act of 1995 or Designated Under 23 U.S.C. 139(b)
Policy
State transportation agencies are permitted to erect informational
Interstate signs along a federally designated future Interstate corridor
only after the specific route location has been established for the
route to be constructed to Interstate design standards.
Conditions
1. The corridor must have been designated a future part of the
Interstate System under section 332(a)(2) of the NHS Designation Act of
1995 or 23 U.S.C. 139(b).
2. The specific route location to appropriate termini must have
received Federal Highway (FHWA) environmental clearance. Where FHWA
environmental clearance is not required or Interstate standards have
been met, the route location must have been publicly announced by the
State.
3. Numbering of future Interstate route segments must be coordinated
with affected States and be approved by the American Association of
State Highway and Transportation Officials and the FHWA at Headquarters.
Short portions of a multistate corridor may require use of an interim 3-
digit number.
4. The State shall coordinate the location and content of signing
near the State line with the adjacent State.
5. Signing and other identification of a future Interstate route
segment must not indicate, nor imply, that the route is on the
Interstate System.
6. The FHWA Regional Office must confirm in advance that the above
conditions have been met and approve the general locations of signs.
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Sign Details
1. Signs may not be used to give directions and should be away from
directional signs, particularly at interchanges.
2. An Interstate shield may be located on a green informational sign
of a few words. For example: Future Interstate Corridor or Future I-00
Corridor.
3. The Interstate shield may not include the word ``Interstate.''
4. The FHWA Division Office must approve the signs as to design,
wording, and detailed location.
Appendix D to Subpart A of Part 470--Guidance Criteria for Evaluating
Requests for Modifications to the National Highway System
Section 103(b), of title 23, U.S.C., allows the States to propose
modifications to the National Highway System (NHS) and authorizes the
Secretary to approve such modifications provided that they meet the
criteria established for the NHS and enhance the characteristics of the
NHS. In proposing modifications under 23 U.S.C. 103(b), the States must
cooperate with local and regional officials. In urbanized areas, the
local officials must act through the metropolitan planning organization
(MPO) designated for such areas under 23 U.S.C. 134. The following
guidance criteria should be used by the States to develop proposed
modifications to the NHS.
1. Proposed additions to the NHS should be included in either an
adopted State or metropolitan transportation plan or program.
2. Proposed additions should connect at each end with other routes
on the NHS or serve a major traffic generator.
3. Proposals should be developed in consultation with local and
regional officials.
4. Proposals to add routes to the NHS should include information on
the type of traffic served (i.e., percent of trucks, average trip
length, local, commuter, interregional, interstate) by the route, the
population centers or major traffic generators served by the route, and
how this service compares with existing NHS routes.
5. Proposals should include information on existing and anticipated
needs and any planned improvements to the route.
6. Proposals should include information concerning the possible
effects of adding or deleting a route to or from the NHS might have on
other existing NHS routes that are in close proximity.
7. Proposals to add routes to the NHS should include an assessment
of whether modifications (adjustments or deletions) to existing NHS
routes, which provide similar service, may be appropriate.
8. Proposed modifications that might affect adjoining States should
be developed in cooperation with those States.
9. Proposed modifications consisting of connections to major
intermodal facilities should be developed using the criteria set forth
below. These criteria were used for identifying initial NHS connections
to major intermodal terminals. The primary criteria are based on annual
passenger volumes, annual freight volumes, or daily vehicular traffic on
one or more principal routes that serve the intermodal facility. The
secondary criteria include factors which underscore the importance of an
intermodal facility within a specific State.
Primary Criteria
Commercial Aviation Airports
1. Passengers--scheduled commercial service with more than 250,000
annual enplanements.
2. Cargo--100 trucks per day in each direction on the principal
connecting route, or 100,000 tons per year arriving or departing by
highway mode.
Ports
1. Terminals that handle more than 50,000 TEUs (a volumetric measure
of containerized cargo which stands for twenty-foot equivalent units)
per year, or other units measured that would convert to more than 100
trucks per day in each direction. (Trucks are defined as large single-
unit trucks or combination vehicles handling freight.)
2. Bulk commodity terminals that handle more than 500,000 tons per
year by highway or 100 trucks per day in each direction on the principal
connecting route. (If no individual terminal handles this amount of
freight, but a cluster of terminals in close proximity to each other
does, then the cluster of terminals could be considered in meeting the
criteria. In such cases, the connecting route might terminate at a point
where the traffic to several terminals begins to separate.)
3. Passengers--terminals that handle more than 250,000 passengers
per year or 1,000 passengers per day for at least 90 days during the
year.
Truck/Rail
1. 50,000 TEUs per year, or 100 trucks per day, in each direction on
the principal connecting route, or other units measured that would
convert to more than 100 trucks per day in each direction. (Trucks are
defined as large single-unit trucks or combination vehicles carrying
freight.)
Pipelines
1. 100 trucks per day in each direction on the principal connecting
route.
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Amtrak
1. 100,000 passengers per year (entrainments and detrainments).
Joint Amtrak, intercity bus and public transit terminals should be
considered based on the combined passenger volumes. Likewise, two or
more separate facilities in close proximity should be considered based
on combined passenger volumes.
Intercity Bus
1. 100,000 passengers per year (boardings and deboardings).
Public Transit
1. Stations with park and ride lots with more than 500 vehicle
parking spaces, or 5,000 daily bus or rail passengers, with significant
highway access (i.e., a high percentage of the passengers arrive by cars
and buses using a route that connects to another NHS route), or a major
hub terminal that provides for the transfer of passengers among several
bus routes. (These hubs should have a significant number of buses using
a principal route connecting with the NHS.)
Ferries
1. Interstate/international--1,000 passengers per day for at least
90 days during the year. (A ferry which connects two terminals within
the same metropolitan area should be considered as local, not
interstate.)
2. Local--see public transit criteria above.
Secondary Criteria
Any of the following criteria could be used to justify an NHS
connection to an intermodal terminal where there is a significant
highway interface:
1. Intermodal terminals that handle more than 20 percent of
passenger or freight volumes by mode within a State;
2. Intermodal terminals identified either in the Intermodal
Management System or the State and metropolitan transportation plans as
a major facility;
3. Significant investment in, or expansion of, an intermodal
terminal; or
4. Connecting routes targeted by the State, MPO, or others for
investment to address an existing, or anticipated, deficiency as a
result of increased traffic.
Proximate Connections
Intermodal terminals, identified under the secondary criteria noted
above, may not have sufficient highway traffic volumes to justify an NHS
connection to the terminal. States and MPOs should fully consider
whether a direct connection should be identified for such terminals, or
whether being in the proximity (2 to 3 miles) of an NHS route is
sufficient.
Subparts B-C [Reserved]
PART 476--INTERSTATE HIGHWAY SYSTEM--Table of Contents
Subpart A--General
Sec.
476.2 Definitions.
Subparts B-C [Reserved]
Subpart D--Withdrawal of Interstate Segments and Substitution of Public
Mass Transit or Highway Projects or Both
476.300 Purpose.
476.302 Applicability.
476.304 Withdrawal request.
476.306 Withdrawal approval.
476.308 Concept approval for substitute projects.
476.310 Proposals for substitute public mass transit and highway
projects.
476.312 Combined proposal.
476.314 Administrator's review and approval of substitute projects.
Authority: 23 U.S.C. 103(e)(2), 103(e)(4), 103(g), 103(h) and 315;
49 CFR 1.48(b) and 1.50(f).
Subpart A--General
Sec. 476.2 Definitions.
(a) Except as otherwise provided, terms defined in 23 U.S.C. 101(a)
are used in this part as so defined.
(b) The following terms, where used in the regulations in this part,
have the following meaning:
(1) Base cost year for the latest Interstate System cost estimate
approved by Congress shall be the calendar year specified in the
Interstate Cost Estimate Manual \1\ for that estimate. For example, the
base cost year for the 1972 estimate is 1970.
---------------------------------------------------------------------------
\1\ The ``Instructional Manual for the Preparation and Submission of
the (Year) Estimate of the Cost of Completing the Interstate System in
Accordance with section 104(b)(5) of title 23 U.S.C., Highways,''
published by the Federal Highway Administration, U.S. Department of
Transportation, is available for inspection and copying as prescribed in
49 CFR part 7, appendix D.
---------------------------------------------------------------------------
(2) Concurrence means written agreement which is currently binding
on the concurring party and which addresses the specific proposal being
submitted for approval.
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(3) Governor means the Governor of any one of the fifty States and
the Mayor of the District of Columbia. It also refers to any State or
local entity specifically designated by the Governor for the purpose of
executing any of his/her responsibilities under this part.
(4) Interstate segment means any designated, toll-free route, or
portion thereof, of the Interstate System.
(5) Local governments concerned means local units of general purpose
government under State law within whose jurisdiction the Interstate
segment lies, or is to be withdrawn.
(6) Open to traffic means a segment which has been constructed or
has had major improvements with Federal-aid Interstate funds and open to
normal Interstate traffic; or a segment which was an existing freeway,
meeting acceptable Interstate geometric standards and recognized as the
final location of the route, when incorporated into the System. Open to
traffic does not mean a segment of existing highway that is ultimately
planned to be replaced by an entirely new facility.
(7) Responsible local officials means:
(i) In urbanized areas, principal elected officials of general
purpose local governments acting through the Metropolitan Planning
Organization in accordance with part 450, subpart A of this title, and;
(ii) In rural areas and urban areas not within any urbanized area,
principal elected officials of general purpose local governments.
(8) Substitute highway project means any undertaking for highway
construction, which may encompass phases of work including preliminary
engineering, right-of-way, and actual construction, individually or any
combination thereof, on any of the Federal-aid systems described in 23
U.S.C. 103 and which is eligible for Federal financial assistance under
title 23, U.S.C. A substitute highway project may include the
construction of exclusive or preferential bus lanes, high occupancy
vehicle lanes, highway traffic control devices, bus passenger loading
areas and facilities (including shelters), and fringe and corridor
parking facilities to serve bus and other public mass transportation
passengers. A substitute highway project may also be a carpool and
vanpool project including but not limited to, providing carpooling
opportunities to the elderly and handicapped, systems for locating
potential riders and informing them of convenient carpool opportunities,
acquiring vehicles appropriate for carpool use, designating existing
highway lanes as preferential carpool highway lanes, providing related
traffic control devices, and designating existing facilities for use as
preferential parking for carpools.
(9) Substitute nonhighway public mass transit project means any
undertaking to develop or improve public mass transit facilities or
equipment. A project in an urbanized area must be included in and
related to the transportation improvement program (TIP) required under
23 CFR part 450, subpart B. The TIP in urbanized areas and all projects
in nonurbanized areas must include either the construction of fixed rail
facilities, or the purchase of passenger equipment, or both. Passenger
equipment includes buses, fixed rail rolling stock, and other
transportation equipment for passenger use.
(10) Under construction or under contract for construction means
funds for physical construction have been obligated (for highway
projects) or have been included in an approved grant (for transit
projects) which would commit the final development of the ultimate
project in both length and scope. When projects do not involve physical
construction, under construction or under contract for construction
means the obligation of funds (for highway projects) or grant approval
(for transit projects) has occurred.
[45 FR 69396, Oct. 20, 1980, as amended at 51 FR 39748, Oct. 31, 1986]
Subparts B-C [Reserved]
Subpart D--Withdrawal of Interstate Segments and Substitution of Public
Mass Transit or Highway Projects or Both
Source: 45 FR 69397, Oct. 20, 1980, unless otherwise noted.
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