[Federal Register Volume 71, Number 111 (Friday, June 9, 2006)]
[Proposed Rules]
[Pages 33510-33560]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5145]



[[Page 33509]]

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Part II





Department of Transportation





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Federal Highway Administration



23 CFR Parts 450 and 500



Federal Transit Administration

49 CFR Part 613



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Statewide Transportation Planning; Metropolitan Transportation 
Planning; Proposed Rule

Federal Register / Vol. 71, No. 111 / Friday, June 9, 2006 / Proposed 
Rules

[[Page 33510]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Parts 450 and 500

Federal Transit Administration

49 CFR Part 613

[Docket No. FHWA-2005-22986]
FHWA RIN 2125-AF09; FTA RIN 2132-AA82


Statewide Transportation Planning; Metropolitan Transportation 
Planning

AGENCIES: Federal Highway Administration (FHWA); Federal Transit 
Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The FHWA and the FTA are jointly issuing this document which 
proposes the revision of regulations governing the development of 
metropolitan transportation plans and programs for urbanized areas, 
State transportation plans and programs and the regulations for 
Congestion Management Systems and invites public comment. This proposed 
revision results from the recent passage of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: a Legacy for Users 
(SAFETEA-LU) (Pub. L. 109-59, August 10, 2005), which also incorporates 
changes initiated in its predecessor legislation, the Transportation 
Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, June 9, 
1998) and generally would make the regulations consistent with current 
statutory requirements. Interested parties are invited to send comments 
regarding all facets of this proposal.

DATES: Comments must be received on or before September 7, 2006.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, submit electronically at http://
dms.dot.gov or fax comments to (202) 493-2251. Alternatively, comments 
may be submitted via the Federal eRulemaking Portal at http://
www.regulations.gov. All comments should include the docket number that 
appears in the heading of this document. All comments received will be 
available for examination and copying at the above address from 9 a.m. 
to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those 
desiring notification of receipt of comments must include a self-
addressed, stamped postcard or may print the acknowledgement page that 
appears after submitting comments electronically. Anyone is able to 
search the electronic form of all comments received into any of our 
dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). Persons making comments may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 53, Number 70, Pages 19477-78) or may visit 
http://dms.dot.gov/.

FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Larry D. Anderson, 
Planning Oversight and Stewardship Team (HEPP-10), (202) 366-2374, Mr. 
Robert Ritter, Planning Capacity Building Team (HEPP-20), (202) 493-
2139, or Ms. Diane Liff, Office of the Chief Counsel (HCC-10), (202) 
366-6203. For the FTA: Mr. Charles Goodman, Office of Planning and 
Environment, (202) 366-1944, Ms. Carolyn Mulvihill, Office of Planning 
and Environment, (202) 366-2258, or Mr. Christopher VanWyk, Office of 
Chief Counsel, (202) 366-1733. Both agencies are located at 400 Seventh 
Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 
4:15 p.m for FHWA, and 9 a.m. to 5:30 p.m. for FTA, Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    Interested parties may submit or retrieve comments online through 
the Docket Management System (DMS) at http://dms.dot.gov. The DMS Web 
site is available 24 hours each day, 365 days each year. Follow the 
instructions online. Additional assistance is available at the help 
section of the Web site.
    An electronic copy of this notice of proposed rulemaking may be 
downloaded using the Office of the Federal Register's Web page at: 
http://www.archives.gov and the Government Printing Office's Web page 
at: http://www.gpoaccess.gov/index.html.

Background

Statement of the Problem

    The joint FHWA/FTA rules governing statewide and metropolitan 
transportation planning have remained unchanged since the agencies 
originally promulgated these rules on October 28, 1993 (58 FR 58064) in 
response to the Intermodal Surface Transportation Efficiency Act of 
1991 (ISTEA) (Pub. L. 102-240, December 18, 1991). Two statutory 
changes--the TEA-21 and the SAFETEA-LU--have occurred in the 
intervening years. The FHWA and the FTA, State Departments of 
Transportations (DOTs), Metropolitan Planning Organizations (MPOs), 
public transportation operators and the transportation community at 
large have evolved, and technology has improved. The proposed revisions 
would recognize the changes that have occurred in the last 12 years and 
bring the regulation up to date. We invite comments on all aspects of 
the proposed regulation, including the clarity of its requirements and 
any anticipated operational issues.
    The existing rules have not been revised or amended since issuance 
in 1993, with two exceptions: The temporary waiver of certain 
metropolitan transportation planning and transportation conformity 
requirements for the New York City metropolitan area in response to the 
September 11, 2001, terrorist attacks (67 FR 62373, October 7, 2002), 
which has ended, and the requirement for States to establish, 
implement, and periodically review and revise a documented consultation 
process(es) with non-metropolitan local officials (68 FR 3181, January 
23, 2003). The proposed regulations would not change the requirements 
related to State consultation with non-metropolitan local officials.
    Section 1308 of the TEA-21 required the Secretary to eliminate the 
major investment study set forth in Section 450.318 of title 23, Code 
of Federal Regulations, as a separate requirement, and promulgate 
regulations to integrate such requirement, as appropriate, as part of 
the analyses required to be undertaken pursuant to the planning 
provisions of title 23, U.S.C. and title 49, U.S.C., Chapter 53 and the 
National Environmental Policy Act of 1969 (NEPA) for Federal-aid 
highway and transit projects. In addition, Section 3005 of SAFETEA-LU 
requires the Secretary to issue regulations setting standards for the 
Annual Listing of Projects required in 23 U.S.C. 134(j)(7)(B) and 49 
U.S.C. 5303(j)(7)(B) as amended by SAFETEA-LU. The proposed regulations 
are intended to satisfy these requirements.

History

    SAFETEA-LU. Section 6001 of the SAFETEA-LU amended 23 U.S.C. 134 
and 135, to require a continuing, comprehensive, and coordinated 
transportation planning and programming process in metropolitan areas 
and States. Similar changes were made to 49 U.S.C. 5303-5306 by 
sections 3005, 3006 and 3007 of the SAFETEA-LU, which address the

[[Page 33511]]

metropolitan and statewide transportation planning processes in the 
context of the FTA's responsibilities. Section 1308 of TEA-21, which 
requires the Secretary of Transportation to eliminate the major 
investment study as a separate requirement and, as appropriate, 
integrate the requirement into the transportation planning and National 
Environmental Policy Act (NEPA) processes, was not changed by the 
SAFETEA-LU and remains in effect.
    Prior Rulemaking. On May 25, 2000, the FHWA and the FTA jointly 
published a notice of proposed rulemaking (NPRM) in the Federal 
Register (65 FR 33922) proposing amendments to the existing 
metropolitan and statewide transportation planning regulations 23 CFR 
part 450 and 49 CFR part 613. Concurrently, the FHWA and the FTA 
jointly proposed to redesignate and amend existing regulations to 
further emphasize using the NEPA process to facilitate effective and 
timely transportation planning decisionmaking (65 FR 33959, May 25, 
2000). The metropolitan and statewide transportation planning and NEPA 
NPRMs were issued concurrently to further the goal of the FTA and the 
FHWA to better coordinate the planning processes with project 
development activities and decisions associated with the NEPA process. 
On July 7, 2000 (65 FR 41891), a supplemental notice was published to 
extend the comment period on both NPRMs until September 23, 2000.
    More than 400 documents (representing slightly more than 300 
discrete comments) were submitted to that docket, distributed 
relatively equally among three primary sources: State DOTs, MPOs, and 
various other transportation stakeholder groups.
    During the comment period, the U.S. Senate Committee on Environment 
and Public Works and the U.S. House Committee on Transportation and 
Infrastructure held hearings regarding the NPRMs on September 12 and 
13, 2000, respectively, focused on the intent of TEA-21 and possible 
burdens on State DOTs and MPOs that would not, it was asserted, result 
in increased efficiency and effectiveness of the planning or project 
development processes.
    In response to the number, extent, and nature of the concerns, as 
well as in anticipation of further imminent statutory guidance 
(although, as it turned out, the SAFETEA-LU would not be enacted until 
2005), the FHWA and FTA issued a notice in the September 20, 2002, 
Federal Register (67 FR 59219) withdrawing the NPRM.\1\
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    \1\ The FHWA and the FTA proceeded with a separate rulemaking 
effort to address the issue of State consultation with non-
metropolitan local officials. A final rule on that issue was 
published January 23, 2003 (68 FR 3181).
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    In the years since the May 2000 NPRM, transportation planning has 
continued to evolve. For example, the 2000 census identified increased 
urbanization, requiring the designation of additional metropolitan 
areas and establishment of additional MPOs and new Transportation 
Management Areas (TMAs). The TEA-21 provided increased funds for 
transportation planning. Improved technologies such as Geographic 
Information Systems (GIS), the proliferation of Internet use, and 
improved data collection and processing have allowed planners to 
analyze more data and provide new ways to share information. New 
partners, such as freight carriers and shippers, are engaged in the 
process. The nation increasingly competes in a global economy, with 
greater emphasis on the need to move freight efficiently, and a greater 
recognition for the need to maximize the use and efficiency of the 
existing transportation system. The planning regulations need to be 
updated to respond to these and other related changes, as well as to 
the new statutory mandates of the SAFETEA-LU.

Interim Guidance

    After withdrawing the NPRM, the FHWA and the FTA developed and 
issued a number of guidance documents to provide direction to State 
DOTs, MPOs and public transportation operators in implementing the TEA-
21 statutory provisions. These are summarized below:
    On February 2, 2001, the FHWA and the FTA jointly issued 
``Implementing TEA-21 Planning Provisions'',\2\ which provided 
information on how to proceed with the TEA-21 statutory planning 
requirements, noting that ``Although new planning regulations have not 
been issued, the requirements in TEA-21 are in effect.'' Under this 
guidance, the FHWA and the FTA field offices were to work with MPOs, 
State DOTs, and transit operators ``to ensure a basic level of 
compliance with TEA-21 planning requirements, based on the statutory 
language.'' The guidance focused on the following new TEA-21 
requirements: (a) Annual listing of projects; (b) revenue estimates for 
transportation plans and TIPs; (c) State consultation with local 
officials in non-metropolitan areas; (d) consultation with transit 
users and freight shippers and service providers; (e) MIS integration; 
(f) Federal planning finding for STIP approvals; (g) consolidation of 
planning factors; and (h) public involvement during certification 
reviews. These requirements continue, some enhanced, in SAFETEA-LU.
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    \2\ This joint guidance is available via the Internet at the 
following URL:http://www.fhwa.dot.gov/hep/tea21mem.htm.
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    Subsequently, on February 22, 2005, the FHWA and the FTA issued 
joint ``Program Guidance on Linking the Transportation Planning and 
NEPA Processes.'' \3\ This guidance, developed for use by State DOTs, 
MPOs, and public transportation operators, summarized and further 
explained provisions in current law and regulation, and provided 
direction on how information, analysis, and products from metropolitan 
and statewide transportation planning processes (pursuant to 23 U.S.C. 
134-135 and 49 U.S.C. 5303-5306) could be incorporated into and relied 
upon in the NEPA process under existing Federal statutes and 
regulations. This guidance is included in this proposal as Appendix A 
to part 450. A companion legal analysis outlining authority under 
current law was also issued on February 22, 2005.\4\ Appendix A 
reiterates the statutory provision that transportation plans and 
programs are exempt from NEPA review. Development of Appendix A 
involved outreach to key national transportation planning stakeholder 
groups (American Association of State Highway and Transportation 
Officials (AASHTO), the Association of Metropolitan Planning 
Organizations (AMPO), the National Association of Regional Councils 
(NARC), the American of Public Transportation Association (APTA), and 
the Surface Transportation Policy Project (STPP) as well as Federal 
environmental, regulatory, and resource agencies.
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    \3\ This joint guidance is available via the Internet at the 
following URL: http://nepa.fhwa.dot.gov/ ReNepa/ReNepa. nsf/
aa5aec9f63be 385c852568cc 0055ea16/ 9fd918150ac2449 
685256fb10050726c? OpenDocument.
    \4\ This joint guidance is available via the Internet at the 
following URL: http://nepa.fhwa.dot.gov/renepa/renepa. nsf/
All+Documents/ 9FD918150AC2449685256FB10050726C /$FILE/Planning-
NEPA%20guidance,%20legal,%20 final,%202-22-05.doc or http://nepa.
fhwa.dot.gov/ renepa/renepa. nsf/All+ Documents/9FD918150AC 
2449685256FB10050726C/$FILE/ Planning-NEPA%20guidance,%20legal, 
%20final, %202- 22-05.pdf.
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    On March 10, 2005, the FHWA issued a memorandum on Wetland and 
Natural Habitat Mitigation that emphasized that wetland and natural 
habitat mitigation measures, such as wetland and habitat banks or 
statewide and regional

[[Page 33512]]

conservation measures, are eligible for Federal-aid participation when 
they are undertaken to create mitigation resources for future 
transportation projects. In its memorandum, the FHWA clarified that, to 
provide for wetland or other mitigation banks, the State DOT and the 
FHWA Division Office should identify potential future wetlands and 
habitat mitigation needs for a reasonable time frame and establish a 
need for the mitigation credits. The transportation planning process 
should guide the determination of future mitigation needs. (See http://
www.fhwa.dot.gov/environment/wetland/wethabmitmem.htm.) The U.S. 
Environmental Protection Agency (EPA) and the U.S. Army Corps of 
Engineers (the Corps) have also announced proposed revisions to 
regulations governing compensatory mitigation for authorized impacts to 
wetlands, streams, and other waters of the U.S. under Section 404 of 
the Clean Water Act. (See 71 FR 15520 (March 28, 2006).) These 
revisions are designed to improve the effectiveness of compensatory 
mitigation at replacing lost aquatic resource functions and area, 
expand public participation in compensatory mitigation decision-making, 
and increase the efficiency and predictability of the process of 
proposing compensatory mitigation and approving new mitigation banks.
    On March 30, 2005, the FHWA and the FTA issued joint ``Guidance on 
Designation and Redesignation of MPOs.'' \5\ This guidance, designed to 
address inconsistencies that existed between 23 U.S.C. 134, 49 U.S.C. 
5303, and 23 CFR Part 450 regarding the designation and redesignation 
of MPOs, provided clarifying information and illustrative examples of 
scenarios that do and do not trigger MPO redesignations, based on 
several actual events that transpired since the enactment of TEA-21.
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    \5\ This joint guidance is available via the Internet at the 
following URL: http://www.fhwa.dot.gov/planning/mpodes.htm.
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    On April 12, 2005, the FHWA and the FTA jointly issued ``Planning 
Horizons for Metropolitan Long Range Transportation Plans.'' \6\ This 
guidance provided updated and clarified information on the ``planning 
horizon'' requirement for metropolitan long-range transportation plans. 
The guidance required that metropolitan long-range transportation plans 
(see 23 CFR 450.322(a)) shall address ``at least a 20-year planning 
horizon.'' Furthermore, the guidance allowed the FHWA and the FTA to 
take actions on STIPs/TIPs and associated amendments or transportation 
conformity determinations with an MPO long-range transportation plan 
initially adopted with a minimum 20-year planning horizon. However, if 
the long-range transportation plan is amended to add, delete, or 
significantly change a regionally significant project (in any 
metropolitan area), the transportation plan's horizon should be at 
least 20 years at the time of the MPO action.
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    \6\ This joint guidance is available via the Internet at the 
following URL: http://www.fhwa.dot.gov/planning/planhorz.htm.
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    On June 30, 2005, the FHWA and the FTA jointly issued ``Guidance on 
Fiscal Constraint for STIPs, TIPs, and Metropolitan Plans.'' \7\ This 
guidance summarized and described in detail the ISTEA and TEA-21 fiscal 
constraint requirements to ensure that transportation plans and 
programs reflect realistic assumptions on capital, operations, and 
maintenance costs associated with the surface transportation system. 
This guidance is included in this proposal as Appendix B to Part 450.
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    \7\ This joint guidance is available via the Internet at the 
following URL: http://www.fhwa.dot.gov/planning/fcindex.htm.
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    On September 2, 2005, the FHWA and the FTA jointly issued ``Interim 
Guidance for Implementing Key SAFETEA-LU Provisions on Planning, 
Environment, and Air Quality for Joint FHWA/FTA Authorities.'' \8\ This 
guidance was issued after the enactment of the SAFETEA-LU to inform the 
FHWA and the FTA field offices on how to implement SAFETEA-LU 
provisions. related to transportation planning, air quality, and 
environment. This guidance established the following interim 
implementation schedule and requirements: (a) Statewide and 
metropolitan transportation plans and programs under development at the 
time of SAFETEA-LU enactment could be completed under TEA-21 
requirements and schedules; (b) transportation plans and programs 
adopted after July 1, 2007, must comply with all the SAFETEA-LU 
planning provisions; (c) States or MPOs opting to implement the 
SAFETEA-LU requirements prior to July 1, 2007, must satisfy all the 
SAFETEA-LU provisions prior to adoption of transportation plans and 
programs; and (d) FHWA/FTA certifications of Transportation Management 
Areas (TMAs) would be extended to four years (except for any existing 
``conditional'' certifications, which must be completed as previously 
scheduled).
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    \8\ This joint guidance is available via the Internet at the 
following URL: http://www.fhwa.dot.gov/hep/igslpja.htm.
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Development of the Proposed Regulation

    The proposed revised regulations reflect the requirements of the 
SAFETEA-LU, including requirements first mandated in the TEA-21. To 
implement these legislative mandates, we have adhered closely to the 
statutory language in drafting the regulation. Over time, and as 
necessary, the FHWA and FTA will continue to issue additional guidance 
and disseminate information on noteworthy practices.

Approach to Structure of Proposed Regulation

    While the statutory changes resulting from the SAFETEA-LU form a 
large basis for the proposed regulation, several pre-existing 
regulatory provisions not specifically mentioned in the SAFETEA-LU 
remain relevant for carry over into the new rule. The statute alone 
does not fully present all the connections between various regulatory 
provisions nor define program stewardship and oversight mechanisms. 
Oversight mechanisms such as FHWA/FTA certification reviews of TMAs and 
the FHWA/FTA planning finding to support approval of the STIP have been 
effectively used to ensure compliance and to add value for promoting 
continuous improvement in the statewide and metropolitan transportation 
planning process.
    Close adherence to the legislative mandate, described in ``Key 
Statutory Changes'' below, and further highlighted in the ``Section by 
Section Discussion,'' means that additional regulatory language was 
generally not included in the revised regulation if it expanded 
significantly on legislative language. In some cases, which will be 
noted below, other factors, such as court decisions or Presidential 
directives, required change and amplification. In these instances, 
however, we have tried to keep supplemental, non-statutory language to 
a minimum in the proposed regulations, except where clarification would 
assist compliance. In most cases, State DOTs, MPOs, transportation 
stakeholders, and the public are familiar and experienced in using 
existing practices.
    We also propose to clarify and revise the regulation's section 
headings to use plainer language, as described below. The organization 
of each section and general structure reflects, mostly unchanged, the 
existing regulation, except as indicated in the ``Section by Section 
Discussion''.
    The FHWA and FTA have conducted routine coordination/outreach 
activities with major transportation stakeholders,

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including regular participation in national and regional conferences 
and meetings on transportation planning issues, that provided important 
insight and perspective on the transportation planning process. In 
addition to these meetings, the FHWA and the FTA met with 
transportation stakeholder organizations as appropriate to understand 
the state-of-the-practice of transportation planning and recent or 
emerging policy concerns, identify noteworthy practices, and highlight 
outstanding transportation planning initiatives. Through programs such 
as the Transportation Planning Capacity Building Program,\9\ the FHWA 
and the FTA have reached out to the transportation planning community 
to provide technical assistance and technology transfer and strengthen 
the transportation planning processes. Further, the FHWA and the FTA 
have worked with State DOTs, MPOs, and public transportation operators 
through their professional associations to discuss proposed guidance 
and statutory changes, and to implement improvements to the 
transportation planning process.
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    \9\ The Transportation Planning Capacity Building (TPCB) Program 
is a collaborative effort of FHWA and the FTA with various public 
and private organizations. Broadly speaking, it exists to help State 
and local transportation staff meet their complex political, social, 
economic, and environmental demands. On a practical level, the TPCB 
Program provides information, training, and technical assistance to 
help transportation professionals create plans and programs that 
respond to the needs of the many users of their local transportation 
systems.
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    In developing the regulation, the knowledge we have gained 
regarding concerns and operations of our program stakeholders has 
assisted our understanding of the effect of both statute and 
regulations in a real world environment, enabled us to anticipate and 
address stakeholders' issues and concerns, and has made us attentive to 
the need to issue and administer regulations that are flexible to apply 
across the United States. For example, we propose retaining the 
existing rule language on separate and discrete State consultation 
processes with non-metropolitan local officials based on stakeholders' 
past concerns.
    These proposed rules were developed by an interagency and 
multidisciplinary task force of transportation planners, engineers and 
environmental specialists of the FHWA and the FTA, with input from 
other Federal agencies and components of the Office of the Secretary of 
Transportation. The task force reviewed legislation and input received 
from partners and stakeholders. In addition, comments were solicited 
from the field staffs of the FHWA and the FTA.

Key Statutory Changes

    Although substantial portions of the SAFETEA-LU sections 3005, 
3006, and 6001 mirror previous law, there are several key statutory 
changes and new requirements, summarized below:
Metropolitan Planning
    New Planning Factor: Security and safety of the transportation 
system are stand-alone planning factors, signaling an increase in 
importance from prior legislation, in which security and safety were 
coupled in the same planning factor. (23 U.S.C. 134(h)(1)(C) and 49 
U.S.C. 5303(h)(1)(C).
    Expanded Planning Factor: The TEA-21 planning factor related to 
environment was expanded to include ``promote consistency between 
transportation improvements and State and local planned growth and 
economic development patterns.'' (23 U.S.C. 134(h)(1)(E) and 49 U.S.C. 
5303(h)(1)(E)).
    Metropolitan Transportation Plans: The requirement for metropolitan 
transportation plans to cover a 20-year minimum plan horizon at the 
time of adoption is maintained. The SAFETEA-LU statutorily established 
time frames for updating metropolitan transportation plans. For air 
quality nonattainment and maintenance areas, transportation plans shall 
be updated at least every four years (compared to a three-year update 
cycle in the regulations implementing ISTEA). The requirement for 
attainment area MPOs to update transportation plans at least every five 
years remains unchanged from the regulations.
    Environmental Mitigation Activities in Metropolitan Transportation 
Plans: Metropolitan transportation plans shall include a discussion of 
potential environmental mitigation activities, to be developed in 
consultation with Federal, State and Tribal wildlife, land management, 
and regulatory agencies. (23 U.S.C. 134(i)(2)(B) and 49 U.S.C. 
5303(i)(2)(B)).
    New Consultations: MPOs shall consult ``as appropriate'' with 
``State and local agencies responsible for land use management, natural 
resources, environmental protection, conservation, and historic 
preservation'' in developing metropolitan transportation plans (23 
U.S.C. 134(i)(4) and 49 U.S.C. 5303(i)(4)).
    Participation Plan: MPOs must develop and utilize a ``Participation 
Plan'' that provides reasonable opportunities for interested parties to 
comment on the content of the metropolitan transportation plan and 
metropolitan TIP. Further, this ``Participation Plan'' must be 
developed ``in consultation with all interested parties.'' (23 U.S.C. 
134(i)(5)(B) and 49 U.S.C. 5303(i)(5)(B)).
    Congestion Management Processes in Transportation Management Areas 
(TMAs): Within a metropolitan planning area serving a TMA, there must 
be ``a process that provides for effective management and operation'' 
to address congestion management (23 U.S.C. 134(k)(3)) and 49 U.S.C. 
5303(k)(3)).
    Operational and Management Strategies in Transportation Plans: 
Metropolitan transportation plans shall include operational and 
management strategies to improve the performance of the existing 
transportation facilities to relieve vehicular congestion and maximize 
the safety and mobility of people and goods (23 U.S.C. 134(i)(2)(D)) 
and 49 U.S.C. 5303(i)(2)(D)).
    TIP Cycles and Scope: TIPs are to be updated at least every four 
years (compared to at least every two years in ISTEA and TEA-21). In 
addition, TIPs must include projects covering four years (compared to 
three years in ISTEA and TEA-21) (23 U.S.C. 134(j)(1)(D) and 
134(j)(2)(A) and 49 U.S.C. 5303(j)(1)(D) and 5303(j)(2)(A)).
    Visualization Techniques in Metropolitan Transportation Plan and 
TIP Development: As part of transportation plan and TIP development, 
MPOs shall employ visualization techniques to the maximum extent 
practicable (23 U.S.C. 134(i)(5)(C)(ii) and 49 U.S.C. 
5303(i)(5)(C)(ii)).
    Publication of the Metropolitan Transportation Plan and TIP: MPOs 
shall publish or otherwise make available for public review 
transportation plans and TIPs ``including (to the maximum extent 
practicable) in electronically accessible formats and means, such as 
the World Wide Web'' (23 U.S.C. 134(i)(6) and 49 U.S.C. 5303(i)(6) on 
transportation plans and 23 U.S.C. 134(j)(7)(a) and 49 U.S.C. 
5303(j)(7)(a) on TIPs).
    Annual Listing of Obligated Projects: This TEA-21 requirement is 
retained, but the development of the annual listing ``shall be a 
cooperative effort of the State, transit operator, and MPO.'' For 
clarity, two new project types (investments in pedestrian walkways and 
bicycle transportation facilities) for which Federal funds have been 
obligated in the preceding year in the metropolitan planning area are 
emphasized (23 U.S.C. 134(j)(7)(B) and 49 U.S.C. 5303(j)(7)(B)).
    TMA Certification Cycle: FHWA/FTA must certify each TMA planning 
process

[[Page 33514]]

at least every four years (compared to every three years in ISTEA and 
TEA-21) (23 U.S.C. 134(k)(5)(A)(ii) and 49 U.S.C. 5303(k)(5)(A)(ii)).
    Strategic Highway Safety Plan (SHSP): State must develop a 
strategic highway safety plan that identifies and analyzes safety 
problems and opportunities in order to use Highway Safety Improvement 
Program funds for new eligible activities under 23 U.S.C. 148.
    Coordinated Public Transit-Human Services Transportation Plan: 
Sections 3012, 3018, and 3019 of the SAFETEA-LU require that proposed 
projects under three FTA formula funding programs (Special Needs of 
Elderly Individuals and Individuals with Disabilities (49 U.S.C. 
5310(d)(2)(B)(i) and (ii)); Job Access and Reverse Commute (49 U.S.C. 
5316(g)(3)(A) and (B)); and New Freedom (49 U.S.C. 5317(f)(3)(A) and 
(B)) must be derived from a locally developed public transit-human 
services transportation plan. This plan must be developed through a 
process that includes representatives of public, private, and non-
profit transportation and human services providers, as well as the 
public. And, an areawide solicitation for applications for grants under 
the latter two programs above shall be made in cooperation with the 
appropriate MPO.
Statewide Planning
    New Planning Factor: Security and safety of the transportation 
system are stand-alone planning factors, signaling an increase in 
importance from prior legislation, in which security and safety were in 
the same planning factor (23 U.S.C. 135(d)(1)(C) and 49 U.S.C. 
5304(d)(1)(C)).
    Expanded Planning Factor: The TEA-21 planning factor related to 
environment was expanded to include ``promote consistency between 
transportation improvements and State and local planned growth and 
economic development patterns'' (23 U.S.C. 135(d)(1)(E) and 49 U.S.C. 
5304(d)(1)(E)).
    Environmental Mitigation Activities in Long-Range Statewide 
Transportation Plans: Long-range statewide transportation plans shall 
include a discussion of potential environmental mitigation activities, 
to be developed in consultation with Federal, State and Tribal 
wildlife, land management, and regulatory agencies (23 U.S.C. 135(f)(4) 
and 49 U.S.C. 5304(f)(4)).
    New Consultations: States shall consult ``as appropriate'' with 
``State, local, and Federally-recognized Tribal agencies responsible 
for land use management, natural resources, environmental protection, 
conservation, and historic preservation'' in developing the long-range 
statewide transportation plan (23 U.S.C. 135(f)(2)(D) and 49 U.S.C. 
5304(f)(2)(D)).
    STIP Cycles and Scope: STIPs are to be updated at least every four 
years (compared to at least every two years in ISTEA and TEA-21). In 
addition, STIPs must include projects covering four years (compared to 
three years in the ISTEA and the TEA-21) (23 U.S.C. 135(g)(1) and 49 
U.S.C. 5304(g)(6)).
    Visualization Techniques in Long-Range Statewide Transportation 
Plan Development: States shall employ visualization techniques in the 
development of the Long-Range Statewide Transportation Plan to the 
maximum extent practicable (23 U.S.C. 135(f)(3)(B)(ii) and 49 U.S.C. 
5304(f)(3)(B)(ii)).
    Publication of the Long-Range Statewide Transportation Plan: States 
shall publish or otherwise make available for public review the long-
range statewide transportation plan ``including (to the maximum extent 
practicable) in electronically accessible formats and means, such as 
the World Wide Web'' (23 U.S.C. 135(f)(8) and 49 U.S.C. 5304(f)(8)).
    Strategic Highway Safety Plan (SHSP): State must develop a 
strategic highway safety plan that identifies and analyzes safety 
problems and opportunities in order to use Highway Safety Improvement 
Program funds for new eligible activities under 23 U.S.C. 148.
    State Highway Safety Improvement Program Projects in the STIP: 
Projects or strategies contained in the State highway safety 
improvement program from the State strategic highway safety plan must 
be consistent with the requirements of the STIP (23 U.S.C. 148(a)(5)).
    Indian Reservation Road Projects in the STIP: ``Funds available to 
Indian tribes for Indian reservation roads shall be expended on 
projects identified in a transportation improvement program approved by 
the Secretary'' (23 U.S.C. 202).

Section-by-Section Discussion

Subpart A--Transportation Planning and Programming Definitions

Section 450.100 Purpose

    Existing Sec.  450.100 would be largely retained.

Section 450.102 Applicability

    Existing Sec.  450.102 would be retained without change.

Section 450.104 Definitions

    Existing Sec.  450.104 would be retained, with terms and 
definitions, as follows.
    We propose a definition for ``administrative modification'' to 
describe a type of revision to a long-range statewide or metropolitan 
transportation plan, TIP or STIP that is not significant enough to 
require public review and comment, redemonstration of fiscal 
constraint, or a conformity determination (in nonattainment and 
maintenance areas). This term, along with ``amendment'' are the two 
types of ``revisions.''
    ``Alternatives analysis'' would be defined to reflect the FTA's 
Capital Investment Grant Program (49 U.S.C. 5309).
    We propose a definition for ``amendment'' to describe a type of 
revision to a long-range statewide or metropolitan transportation plan, 
TIP, or STIP that is significant enough to require public review and 
comment, redemonstration of fiscal constraint, or a conformity 
determination (in nonattainment and maintenance areas). This term, 
along with ``administrative modification'' are the two types of 
``revisions.''
    ``Attainment area'' would be defined as reflected in the 
Transportation Conformity Reference Guide.\10\
---------------------------------------------------------------------------

    \10\ The Transportation Conformity Reference Guide is available 
via the Internet at http://www.fhwa.dot.gov/environment/conformity/
ref_guid/coverpag.htm.
---------------------------------------------------------------------------

    We propose to include ``available funds'' and ``committed funds'' 
based on the FHWA/FTA Interim Guidance on Fiscal Constraint.\11\
---------------------------------------------------------------------------

    \11\ Interim FHWA/FTA Guidance on Fiscal Constraint for STIPs, 
TIPs, and Metropolitan Plans (issued on June 30, 2005) available on 
the internet at http://www.fhwa.dot.gov/planning/fcindex.htm.
---------------------------------------------------------------------------

    ``Conformity,'' and ``conformity lapse'' would be defined as 
reflected in the Clean Air Act, as amended (42 U.S.C. 7401 et seq.).
    We propose a definition for ``congestion management process'' to 
reflect the SAFETEA-LU language.
    We propose a definition for ``consideration'' to reflect a basic 
level of attention to other planning issues, as opposed to more 
substantial review under ``consultation'' and ``cooperation,'' in 
preparing transportation plans and programs.
    ``Consultation'' would remain largely unchanged, with minor 
revisions to reflect that consultation may occur between more than two 
parties.
    ``Cooperation'' would be slightly revised to reflect current 
legislation and practice.
    ``Coordinated public transit-human service transportation plan'' 
would be defined to reflect 49 U.S.C. 5316(g)(3).
    ``Coordination'' would be slightly revised to reflect current 
legislation and practice.

[[Page 33515]]

    ``Design concept'' and ``design scope'' would be defined as 
reflected in the EPA's transportation conformity rule at 40 CFR 93.101.
    We propose to include definitions of: ``environmental mitigation 
activities,'' ``Federal land management agency,'' ``Federally funded 
non-emergency transportation services,'' ``financially constrained'' or 
``fiscal constraint,'' ``financial plan,'' and ``freight shippers''.
    The definition of ``Governor'' would be retained.
    ``Illustrative project'' would be added to reflect new legislative 
provisions from the TEA-21 and 23 U.S.C. 134(i)(2)(C) and 135(f)(5) and 
49 U.S.C. 5303(i)(2)(C) and 5304(f)(5).
    ``Indian Tribal government'' would be added based on the Federally 
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).
    ``Intelligent transportation systems (ITS)'' would be added to 
reflect new legislative provisions from the TEA-21 and 23 U.S.C. 
134(h)(1)(A) and 23 U.S.C. 135(d)(A) and 49 U.S.C. 5304(d)(A) and 49 
U.S.C. 5309(e)(10)(B).
    We propose to include definitions of: ``interim metropolitan 
transportation plan'' and ``interim transportation improvement 
program''.
    ``Long-range statewide transportation'' would be slightly revised 
and renamed from the former ``statewide transportation plan'' to 
reflect new statutory language from 23 U.S.C. 135(f) and 49 U.S.C. 
5304(f).
    ``Maintenance area'' would be revised to reflect the EPA definition 
used in the conformity regulation at 40 CFR part 93.101.
    ``Major metropolitan transportation investment'' would be removed 
to reflect the legislative provision from Section 1308 of the TEA-21.
    ``Management system'' would be retained in consideration of their 
extensive use by States, although the requirement for maintaining them 
was eliminated by legislative changes in the National Highway System 
Designation Act of 1995 (Pub. L. 104-59; November 28, 1995).
    ``Metropolitan planning area'' (MPA) and ``metropolitan planning 
organization'' (MPO) would be revised to reflect legislative changes in 
23 U.S.C. 134(b) and 49 U.S.C. 5303(b). Importantly, the term ``MPO'' 
refers to the policy board for the organization that is designated 
under 23 U.S.C. 134 and 49 U.S.C. 5303.
    ``Metropolitan transportation plan'' would remain unchanged, except 
for legislative references.
    ``National Ambient Air Quality Standards'' would be defined, using 
legislative language from the Clean Air Act (42 U.S.C. 7401 et seq).
    ``Nonattainment area'' would remain unchanged, except for 
legislative references.
    ``Non-metropolitan area'' and ``non-metropolitan local official'' 
would remain unchanged.
    A definition is proposed for ``operational and management 
strategies'' to reflect the legislative policy directions from the 
SAFETEA-LU.
    We propose to add definitions for the terms ``obligated projects,'' 
and ``project selection''.
    ``Provider of freight transportation services'' would be added as 
described for freight-related industries in the Transportation 
Warehousing Sector 48-49 of the North American Industrial 
Classification System.
    We propose to add a definition for ``regional ITS architecture,'' 
as set forth in the National ITS Architecture Consistency Policy for 
Transit Projects (Number C-01-03) and FHWA regulations on ITS 
architecture and standards (23 CFR parts 655 and 940).
    The definition of ``regionally significant project'' would be 
retained, with some clarifying revisions.
    We propose a definition for ``Regional Transit Security Strategy'' 
that is aligned with the concept required by the Department of Homeland 
Security.
    We propose a definition for ``revision'' that describes a change to 
a long-range statewide or metropolitan transportation plan, TIP, or 
STIP that occurs between scheduled periodic updates. A revision may or 
may not be significant. A significant revision is defined as an 
``amendment'' (see above), while a non-significant revision is defined 
as an ``administrative modification'' (see above).
    ``State'' would be unchanged.
    The definition of ``State implementation plan'' would be retained, 
with some clarifying revisions.
    ``Statewide transportation improvement program'' would be 
unchanged.
    ``Strategic highway safety plan'' would be defined consistent with 
23 U.S.C. 148(b)(6), as amended by the SAFETEA-LU.
    ``Transportation control measure'' would be defined, as reflected 
in U.S. EPA's transportation conformity rule at 40 CFR part 93.101.
    ``Transportation improvement program'' would be revised slightly.
    ``Transportation management area'' (TMA) would be slightly changed, 
particularly to change the provision in which the TMA designation 
formerly applied to the entire metropolitan planning area(s).
    ``Unified planning work program'' would be defined.
    We propose a definition for ``update'' that applies to a complete 
change to a long-range statewide or metropolitan transportation plan, 
TIP, or STIP that occurs on a regular schedule as prescribed by Federal 
statute. Updates always require public review and comment, 
demonstration of fiscal constraint (except for long-range statewide 
transportation plans), and a conformity determination (in nonattainment 
and maintenance areas).
    ``Urbanized area'' would be defined, consistent with recent 
statutory changes in 23 U.S.C. 134(b).
    We propose to add definitions for the terms ``users of public 
transportation'' and ``visualization techniques.''

Subpart B--Statewide Transportation Planning and Programming

Section 450.200 Purpose

    The statement of purpose in Sec.  450.200 would be slightly revised 
to better reflect the policy statement contained in 23 U.S.C. 135 and 
49 U.S.C. 5304. The proposed revision would support strengthened 
linkages between statewide and metropolitan transportation planning, 
and include a specific reference to ``accessible pedestrian walkways 
and bicycle facilities.''

Section 450.202 Applicability

    Existing Sec.  450.202 would be revised to specifically include 
MPOs and public transportation operators within the statewide 
transportation planning process and to add 23 U.S.C. 135 and 49 U.S.C. 
5304 as a statutory citation.

Section 450.204 Definitions

    Existing Sec.  450.204 would remain the same, except for the 
addition of 49 U.S.C. 5302 as a statutory citation.

Section 450.206 Scope of the Statewide Transportation Planning Process

    For purposes of simplification, a majority of the content of 
existing Sec.  450.206 would be removed or relocated to other sections 
due to outdated or redundant information and the section would be re-
titled. Proposed Sec.  450.206(a) would revise the content in existing 
Sec.  450.208(a) by replacing the ISTEA planning factors with the eight 
planning factors in 23 U.S.C. 135(d)(1) and 49 U.S.C. 5304(d)(1). See 
``Key Statutory Changes'' above. The planning factors are based on the 
language in the statute, with the exception of minor amplification of 
the factor on ``security.''

[[Page 33516]]

    In Sec.  450.206(b) we propose to provide general information on 
the use of and application of the eight planning factors throughout the 
statewide transportation planning process.
    In paragraph (c) what we propose is consistent with the language in 
23 U.S.C. 135(d)(2) and 49 U.S.C. 5304(d)(2) that the failure to 
consider any of the factors shall not be reviewable by any court in any 
matter affecting a long-range statewide transportation plan, Statewide 
transportation improvement program (STIP), or FHWA/FTA planning process 
findings.
    In paragraph (d) we propose to re-locate and revise the information 
and statutory references in existing Sec.  450.218 (Funding). In 
addition, this proposed paragraph would establish the statewide 
planning work program required by 23 CFR part 420 (for funds under 23 
U.S.C. and 49 U.S.C.) as the primary tool to discuss the planning 
priorities of the State.

Section 450.208 Coordination of Planning Process Activities

    Existing Sec.  450.210 would be redesignated as Sec.  450.208. 
Paragraph (a) would be revised to focus on required planning 
coordination efforts as defined in 23 U.S.C. 135(b)(1) and 135(e) and 
49 U.S.C. 5304(b)(1) and 49 U.S.C. 5304(e) to reflect the 
simplification of language provided by the change in planning factors.
    A new paragraph (b) is proposed to address the 23 U.S.C. 135(b)(2) 
and 49 U.S.C. 5304(b)(2) requirement for the statewide transportation 
planning process to be coordinated with air quality planning conducted 
by State air quality agencies in the development of the transportation 
portion of the State Implementation Plan (SIP).
    A new paragraph (c) is proposed to reflect the 23 U.S.C. 135(c)(1) 
and 49 U.S.C. 5304(c)(1) provision allowing two or more States to enter 
into agreements or compacts for cooperative efforts and mutual 
assistance regarding multi-State transportation planning activities. 
This paragraph would note that the U.S. Congress reserves the right to 
alter, amend, or repeal interstate compacts entered into under this 
part.
    Paragraph (d) would retain existing rule language providing States 
the option to use any one or more of the management systems (in whole 
or in part) under 23 CFR part 500 for purposes of carrying out the 
statewide transportation planning process.
    Paragraph (e) is proposed to encourage States to apply asset 
management principles and techniques in establishing planning goals, 
defining STIP priorities, and assessing transportation investment 
decisions to include transportation system safety, operations, 
preservation, and maintenance.
    Paragraph (f) is proposed to ensure that statewide transportation 
planning processes are carried out in a manner consistent with regional 
Intelligent Transportation System (ITS) architectures in 23 CFR part 
940 (based on the ITS consistency requirement in section 5206(e) of the 
TEA-21).
    Paragraph (g) is proposed to address the need for transportation 
planning processes to be consistent with the development of Public 
Transit-Human Services Transportation Plans, as defined in 49 U.S.C. 
5310, 5316, and 5317.
    Paragraph (h) is proposed to promote consistency between the 
statewide transportation planning process and the Strategic Highway 
Safety Plan, as specified in 23 U.S.C. 148, as well as with the 
Regional Transit Security Strategy, as required by the Department of 
Homeland Security.

Section 450.210 Interested Parties, Public Involvement, and 
Consultation

    Existing Sec.  450.212 would be revised, re-titled, and 
redesignated as Sec.  450.210. Overall, existing Sec.  450.212 (Public 
Involvement) would be broadened to focus on all facets of participation 
and consultation in the statewide transportation planning process, 
including the involvement of ``interested parties'' (as defined by 23 
U.S.C. 135(f)(3)(A) and 49 U.S.C. 5304(f)(3)(A)) and State consultation 
with non-metropolitan local officials, Indian Tribal governments, and 
the Secretary of the Interior. See ``Key Statutory Changes'' above.
    Proposed paragraph (a) would continue the requirement for State 
public involvement processes that include the ``interested parties'' 
defined under 23 U.S.C. 135(f)(3)(A) and 49 U.S.C. 5304(f)(3)(A). 
Proposed paragraph (a)(1)(ix) provides for periodic State evaluation of 
its public involvement procedures. The FHWA and the FTA believe that 
the periodic assessment of such processes, including the voluntary 
development and use of public involvement process performance criteria, 
can help to determine that the effort is well spent and help adjust and 
respond to changes over time.
    Proposed paragraph (a)(2) would require States to provide for 
public comment on existing and proposed procedures for public 
involvement in the development of the long-range statewide 
transportation plan and the STIP, allowing at least 45 days for public 
review and written comment before the procedures and any amendment to 
existing procedures are adopted.
    Proposed paragraph (b) would retain the content in current Sec.  
450.212(h) regarding State development of a documented process(es) that 
is separate and discrete from the State's public involvement process 
for consulting with non-metropolitan local officials representing units 
of general purpose local government and/or local officials responsible 
for transportation. In addition, proposed paragraph (b)(1) would retain 
the content in existing Sec.  450.212(i) on the periodic review (at 
least once every five years) of the effectiveness of the consultation 
process(es), including the solicitation of comments (for a period of at 
least 60 days) from non-metropolitan local officials and other 
interested parties, and the consideration of these comments by the 
State in modifying the process(es). Per the existing regulation, the 
five year review cycle begins February 24, 2006. The existing 
regulation allowed one year to implement the consultation process after 
the regulation was published (68 FR 3181, January 23, 2003), 
established an initial review after two years, and every five years 
thereafter.
    Proposed paragraph (c) focuses on State consultation with Indian 
Tribal governments and the Secretary of Interior in the development of 
the long-range statewide transportation plan and the STIP, reflecting 
the language and intent articulated in 23 U.S.C. 135(f)(2)(C) and 
135(g)(2)(C) and 49 U.S.C. 5304(f)(2)( C) and 5304(g)(2)( C). This 
proposed paragraph also encourages States, as appropriate, to develop a 
documented process(es) that outlines roles, responsibilities, and key 
decision points for consulting with Indian Tribal governments and 
Federal land management agencies in the development of the long-range 
statewide transportation plan and the STIP. The FHWA and the FTA 
believe that a documented process(es) would provide for greater 
understanding between States and Indian Tribal governments and Federal 
land management agencies on how this consultation would occur. The FHWA 
and the FTA recognize an obligation and requirement for Federal 
government consultation with Indian Tribes, in addition to State 
consultation with Tribes.

[[Page 33517]]

Section 450.212 Transportation Planning Studies and Project Development

    Section 1308 of the TEA-21 eliminated the major MIS as a separate 
requirement and called for the Secretary to integrate, as appropriate, 
the remaining aspects and features of the MIS (and associated corridor 
or subarea studies) into the transportation planning and the NEPA 
regulations.
    Since 1998, the FHWA and the FTA (in cooperation with Federal, 
environmental, resource, and regulatory agencies) have undertaken 
several initiatives to promote strengthened linkages between the 
transportation planning and project development/NEPA processes under 
existing legislative, statutory, and regulatory authorities. In 
particular, on February 22, 2005, the FHWA and the FTA disseminated 
legal analysis and program guidance entitled ``Linking the 
Transportation Planning and NEPA Processes.'' \12\ Although voluntary 
to States, MPOs, and public transportation operators, this program 
guidance was intended to articulate how information, analysis, and 
products from metropolitan and statewide transportation planning 
processes could be incorporated into and relied upon in the NEPA 
process under existing Federal statutes and regulations.
---------------------------------------------------------------------------

    \12\ This guidance document is available via the Internet at 
http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/
aa5aec9f63be385c852568cc0055ea16/9fd918150ac2449685256fb10050726c? 
OpenDocument and is included as Appendix A.
---------------------------------------------------------------------------

    Proposed Sec.  450.212 is structured around the guiding principles 
and legal opinion reflected in the program guidance.

Section 450.214 Development and Content of the Long-range Statewide 
Transportation Plan

    Existing Sec.  450.214 would be re-titled. Consistent with existing 
Sec.  450.214, proposed Sec.  450.214 would maintain the opportunity 
for the long-range statewide transportation plan to be comprised of 
policies and/or strategies, not necessarily specific projects, over the 
minimum 20-year forecast period. In addition, proposed paragraph (n) 
would retain State discretion to identify a periodic schedule for 
updating the long-range statewide transportation plan and to revise the 
plan as necessary. The FHWA and the FTA recognize that changes to 
transportation plans between formal update cycles may be necessary. We 
have proposed definitions for the terms ``administrative 
modification,'' ``amendment,'' and ``revision'' to clarify these 
actions.
    Proposed Sec.  450.214 also would be revised to reflect key 
provisions in 23 U.S.C. 135(d)(1)(G) and 135(d)(1)(H) and 49 U.S.C. 
5304(d)(1)(G) and 5304(d)(1)(H). Proposed paragraph (b) calls for the 
long-range statewide transportation plan to include capital, 
operations, and management strategies, investments, procedures, and 
other measures to ensure the preservation of the existing 
transportation system.
    The FHWA and the FTA believe improved planning for the operations 
and management of the Nation's transportation system is vitally 
important to continuing to deliver the safety, reliability, and 
mobility for people and freight in the 21st century that the nation 
expects. Operations and management (or management and operations) is a 
coordinated approach to optimizing the performance of existing 
infrastructure and building operational capacity into new projects 
through the implementation of multimodal, intermodal, and often cross-
jurisdictional systems, services, and projects. To be effective, 
management and operations must be a collaborative effort between 
transportation planners and managers with responsibility for day-to-day 
transportation operations. Management and operations refers to a broad 
range of strategies, such as traffic detection and surveillance, work 
zone management, emergency management, and traveler information 
services. It also refers to strategies that address the economically 
critical area of goods movement, such as improving intermodal 
connections and designing and operating key elements of the 
transportation system to accommodate the patterns and dynamics of 
freight operations. Such strategies enhance reliability and goods 
movement efficiency; improve public safety and security; support 
homeland security and safeguard the personal security; reduce traveler 
delays associated with incidents and other events; and improve 
information for businesses and for the traveling public.
    In order to draw a strong link between the Strategic Highway Safety 
Planning process described in 23 U.S.C. 148 and the statewide 
transportation planning process, proposed paragraph (d) states that the 
long-range statewide transportation plan should include a safety 
element that incorporates or summarizes the priorities, goals, 
countermeasures, or projects contained in the Strategic Highway Safety 
Plan (SHSP). See ``Key Statutory Changes'' above, on the SHSP 
requirement.
    Proposed paragraph (i) requires that the long-range statewide 
transportation plan be developed, as appropriate, with State, Tribal, 
and local agencies responsible for land use management, natural 
resources, environmental protection, conservation, and historic 
preservation, including the comparison of transportation plans to State 
and Tribal inventories or plans/maps of natural and historic resources 
as mandated in 23 U.S.C. 135(f)(2)(D) and 49 U.S.C. 5304(f)(2)(D).
    While the title of 23 U.S.C. 135(f)(2)(D) and 49 U.S.C. 
5304(f)(2)(D) is ``Consultation, Comparison and Consideration,'' it is 
important to note that the consultation referenced in the statute is 
different from the definition of consultation in the existing or 
proposed regulation. The statute specifically defines ``consultation'' 
in this section as involving ``comparison of transportation plans to 
State and Tribal conservation plans or maps, if available, and 
comparison of transportation plans to inventories of natural or 
historic resources, if available.''
    Proposed paragraph (j) requires that the long-range statewide 
transportation plan contain a discussion of potential environmental 
mitigation activities (at the policy and/or strategic-levels, not 
project-specific). See ``Key Statutory Changes'' above. In developing 
this discussion in consultation with Federal, State, and Tribal land 
management, wildlife, and regulatory agencies, this proposed paragraph 
allows States to establish reasonable timeframes for performing this 
consultation.
    Proposed paragraph (k) identifies the ``interested parties'' 
defined in 23 U.S.C. 135(f)(3)(A) and 49 U.S.C. 5304(f)(3)(A) that must 
be provided a reasonable opportunity to comment on the proposed long-
range statewide transportation plan.
    Proposed paragraph (l) would implement a provision, added by TEA-21 
and retained in 23 U.S.C. 135(f)(5) and 49 U.S.C. 5304(f)(5), for an 
optional financial plan to be developed to support the long-range 
statewide transportation plan. Another provision added by the TEA-21, 
retained by 23 U.S.C. 135(f)(5) and 49 U.S.C. 5304(f)(5), and reflected 
in proposed paragraphs (l) and (m) states that the financial plan may 
include informational ``illustrative projects'' reflecting additional 
projects that would be included if other revenue sources were to become 
available.
    Also reflecting language in 23 U.S.C. 135(f)(3)(B)(iii) and 49 
U.S.C. 5304(f)(3)(B)(iii), proposed paragraph (n) would require the 
State to publish or otherwise make available the long-range statewide 
transportation plan in electronically accessible formats and means 
(such as the World Wide Web). See ``Key Statutory Changes'' above.

[[Page 33518]]

Section 450.216 Development and Content of the Statewide Transportation 
Improvement Program (STIP)

    Existing Sec.  450.216 would be re-titled. Except for some 
restructuring and reorganization, much of the content of existing Sec.  
450.216 would remain intact.
    Substantive changes reflected in proposed Sec.  450.216 reflect key 
legislative and statutory changes resulting from the TEA-21 and the 
SAFETEA-LU. Proposed paragraph (a) requires that the STIP cover a 
period of at least four years and be updated at least every four years. 
Proposed paragraph (e) would require, pursuant to 23 U.S.C. 204(a) or 
(j), that Federal Lands Highway program TIPs be included without 
modification in the STIP (directly or by reference) once approved by 
the FHWA.
    Proposed paragraph (l) would implement a provision, included in the 
TEA-21 and retained in 23 U.S.C. 135(g)(4)(F) and 49 U.S.C. 
5304(g)(4)(F), that a financial plan may be developed to support the 
STIP. Proposed paragraph (l) would be consistent with the FHWA/FTA 
Interim Guidance on Fiscal Constraint that was issued on June 30, 
2005,\13\ and is included in Appendix B. Another provision in paragraph 
(l) that was prompted by TEA-21 and retained in 23 U.S.C. 135(g)(4)(F) 
and 49 U.S.C. 5304(g)(4)(F), states that the financial plan may include 
informational ``illustrative projects'' reflecting additional projects 
that would be included if other revenue sources were to become 
available.
---------------------------------------------------------------------------

    \13\ This joint guidance is available via the Internet at the 
following URL: http://www.fhwa.dot.gov/planning/fcindex.htm.
---------------------------------------------------------------------------

    Proposed paragraph (m) also would retain the provision in existing 
Sec.  450.216(a)(5) that projects included in the first two years of 
the STIP in nonattainment and maintenance areas shall be limited to 
those for which funds are available or committed. The FHWA and the FTA 
believe that retaining this provision is critical to realistic, 
meaningful planning and public involvement.
    The FHWA and the FTA invite comments on whether the agencies should 
require States submitting STIP amendments to demonstrate that funds are 
``available or committed'' for projects identified in the STIP in the 
year the STIP amendment is submitted and the following year.
    Proposed paragraph (o) would allow projects in the first four of 
years of the STIP to be advanced in place of another project in the 
first four years of the STIP, subject to the project selection 
requirements of Sec.  450.220. In addition, proposed paragraph (o) 
recognizes State discretion to revise the STIP under procedures agreed 
to by the State, the MPOs and the public transportation operators. The 
FHWA and the FTA recognize that changes to transportation programs 
between formal update cycles may be necessary. We have proposed 
definitions for the terms ``administrative modification,'' 
``amendment,'' and ``revision'' to clarify these actions.

Section 450.218 Self-certification, Federal Findings, and Federal 
Approvals

    Existing Sec.  450.220 would be re-titled and redesignated as Sec.  
450.218. Proposed paragraph (a) would revise existing Sec.  450.220(a) 
to reflect that the State must submit the entire STIP to the FHWA and 
the FTA for joint approval, at least once every four years, consistent 
with the extended cycle established in 23 U.S.C. 135(g)(1) and 49 
U.S.C. 5304(g)(1). Furthermore, the State must submit any STIP 
amendments for joint approval. In addition, proposed paragraphs (a)(1) 
through (a)(8) would articulate the existing legislative and regulatory 
authorities to be included in the State self-certification, including 
three additional Federal requirements ((1) the Older Americans Act; (2) 
23 U.S.C. 324 regarding the prohibition of discrimination based on 
gender; and (3) section 504 of the Rehabilitation Act of 1973 regarding 
discrimination against individuals with disabilities). These 
requirements previously existed and the regulations would be revised to 
include them.
    We also are proposing to modify existing Sec.  450.220(b) slightly 
in proposed paragraph (b) to indicate the relationship of the FHWA/FTA 
planning finding on the statewide transportation planning process to 
self-certifications by the State.
    Existing Sec.  450.220(d) would be revised and redesignated as a 
new proposed paragraph (c), indicating that STIP extensions (and by 
their inclusion, TIP extensions) would be limited to 180 days, with 
priority consideration to be given to projects and strategies involving 
the operation and management of the multimodal transportation system.

Section 450.220 Project Selection From the STIP

    Existing Sec.  450.222 would be re-titled and redesignated as Sec.  
450.220 and the references to funding categories updated. This section 
generally would remain unchanged, except for two key additions.
    Proposed paragraph (d) reflects the requirement in 23 U.S.C. 
204(a)(5) that Federal Lands Highway program projects be included in an 
approved STIP.
    Proposed paragraph (e) would provide the option for expedited 
project selection procedures to be used, as agreed to by all parties 
involved in the project selection process.
    The FHWA and the FTA invite comments on whether States should be 
required to prepare an ``agreed to'' list of projects at the beginning 
of each of the four years in the STIP, rather than only the first year. 
The FHWA and the FTA also invite comments on whether a STIP amendment 
should be required to move a project between years in the STIP, if an 
``agreed to'' list is required for each year.

Section 450.222 Applicability of NEPA to Statewide Transportation Plans 
and Programs

    This new proposed section re-states the provisions of the TEA-21 
and 23 U.S.C. 135(j) and 49 U.S.C. 5304(j) that any decisions by the 
Secretary regarding the long-range statewide transportation plan and 
the STIP are not Federal actions subject to the provisions of the NEPA.

Section 450.224 Phase-In of New Requirements

    Existing Sec.  450.224 would be revised. This proposed section re-
states the provisions in 23 U.S.C. 135(j)(B) and 49 U.S.C 5304(p)(B) 
that State transportation improvement programs adopted on or after July 
1, 2007 shall reflect the provisions of 23 U.S.C. 134 and 135 and 
U.S.C. 5303 and 5304 as amended by the SAFETEA-LU. In addition, this 
proposed section clarifies that all State and FHWA/FTA actions on 
transportation plans and programs taken on or after July 1, 2007 (i.e., 
updates and amendments) are subject to the provisions of 23 U.S.C. 134 
and 135 and U.S.C. 5303 and 5304 as amended by SAFETEA-LU and these 
proposed rules. Provisions for early accommodation of SAFETEA-LU 
requirements, as well as its revised update cycles also are described 
in this section.

Subpart C--Metropolitan Transportation Planning and Programming

Section 450.300 Purpose

    Existing Sec.  450.300 would be retained. The statement of purpose 
would be slightly revised to include a specific reference to 
``accessible pedestrian walkways and bicycle facilities,'' as specified 
in 23 U.S.C. 134(c)(2) and 49 U.S.C. 5303(c)(2).

[[Page 33519]]

Section 450.302 Applicability

    Existing Sec.  450.302 would be retained with minor changes to 
reflect current statutory citations related to metropolitan 
transportation planning and programming.

Section 450.304 Definitions

    This section would remain the same, except for the addition of 49 
U.S.C. 5302 as a statutory citation.

Section 450.306 Scope of the Metropolitan Transportation Planning 
Process

    For purposes of simplification, existing Sec.  450.316(a) would be 
relocated to Sec.  450.306(a), re-titled and revised by replacing the 
16 planning factors from ISTEA with the eight planning factors in 23 
U.S.C. 134(h)(1) and 49 U.S.C. 5303(h)(1). See ``Key Statutory 
Changes'' above. The planning factors are based on the language in the 
statute, with the exception of minor amplification of the factor on 
``security.''
    Proposed paragraph (b) provides general information on the use of 
and application of the eight planning factors throughout the 
metropolitan transportation planning process.
    Proposed paragraph (c) is consistent with language in 23 U.S.C. 
134(h)(2) and 49 U.S.C. 5303(h)(2) that the failure to consider any of 
the factors shall not be reviewable by any court in any matter 
affecting a metropolitan transportation plan, TIP, or the FHWA/FTA 
certification of a metropolitan transportation planning process.
    Proposed paragraph (d) would require metropolitan transportation 
planning processes to be coordinated with the statewide transportation 
planning process as specified in 23 U.S.C. 135(b) and U.S.C. 5304(b).
    Paragraph (e) is proposed to encourage MPOs to apply asset 
management principles and techniques in establishing planning goals, 
defining TIP priorities, and assessing transportation investment 
decisions to include system operations, preservation, and maintenance, 
as well as strategies and policies to support homeland security and to 
safeguard the personal security of all motorized and non-motorized 
users. Paragraph (f) is proposed to ensure that metropolitan 
transportation planning processes are carried out in a consistent 
manner with regional ITS architectures in 23 CFR part 940 (based on the 
ITS consistency requirement under section 5206(e) of the TEA-21).
    Paragraph (g) is proposed to address the need for transportation 
planning processes to be consistent with the development of Coordinated 
Public Transit-Human Services Transportation Plans, as required by 49 
U.S.C. 5310, 5316, and 5317 as amended by the SAFETEA-LU.
    Paragraph (h) is proposed to promote consistency with the 
metropolitan transportation planning process and the Strategic Highway 
Safety Plan, as specified in 23 U.S.C. 148, and with the Regional 
Transit Security Strategy, as required by the Department of Homeland 
Security.
    Paragraph (i) would re-locate and slightly revise the information 
contained in existing Sec.  450.312(f) regarding the designation of 
urbanized areas over 200,000 population as transportation management 
areas (TMAs), as specified in 23 U.S.C. 134(k)(1) and 49 U.S.C. 
5303(k)(1).
    Paragraph (j) would re-locate and slightly revise the information 
contained in existing Sec.  450.316(c) regarding the opportunity for 
MPOs serving non-TMAs in attainment of the NAAQS to propose (in 
cooperation with the State(s) and the public transportation 
operator(s)) a procedure for developing an abbreviated metropolitan 
transportation plan and TIP, for approval by the FHWA and the FTA.

Section 450.308 Funding for Transportation Planning and Unified 
Planning Work Programs

    Existing Sec.  450.314 would be slightly revised, re-titled, and 
redesignated as Sec.  450.308. Proposed paragraph (a) discusses the 
categories of Federal funds that may be used for metropolitan 
transportation planning.
    Proposed paragraph (b) would remove the reference to TMAs contained 
in existing Sec.  450.314, with the intent of stressing that all MPOs 
have a responsibility to meet the requirements of this section. 
However, proposed paragraph (d) would continue the provision in 23 
U.S.C. 134(l) and 49 U.S.C. 5303(l) that all MPOs serving non-TMAs may 
develop a simplified statement of work in lieu of a UPWP.

Section 450.310 Metropolitan Planning Organization Designation and 
Redesignation

    Existing Sec.  450.306 would be revised, re-titled, and 
redesignated as Sec.  450.310. While much of the content of existing 
Sec.  450.306 would not be significantly changed, a number of new 
paragraphs are proposed to address issues that have arisen since the 
enactment of the ISTEA in 1991, including the impacts of the 2000 
decennial census.
    Proposed paragraph (c) would provide that specific State 
legislation, State enabling legislation, or interstate compact should 
be utilized, to the extent possible, for designating MPOs.
    Proposed paragraph (d) would mirror the language in 23 U.S.C. 
134(d)(2) and 49 U.S.C. 5303(d)(2) outlining the composition of MPOs 
that serve TMAs.
    Proposed paragraph (e) would provide clarifying information 
regarding multiple MPOs serving a single urbanized area, primarily 
based on language in 23 U.S.C. 134(d)(6) and 49 U.S.C. 5303(d)(6). 
Additional language is proposed regarding the development of written 
agreements between two or more MPOs serving the same urbanized area to 
clearly identify areas of coordination and the division of 
responsibilities among the MPOs.
    Proposed paragraph (g) would retain existing Sec.  450.306(e) 
regarding the opportunity for MPOs to utilize the staff of other 
agencies to carry out selected elements of the metropolitan 
transportation planning process.
    New proposed paragraph (h) clarifies that a designated MPO remains 
in effect until it has been officially redesignated.
    Proposed paragraph (k) would provide clarifying information on what 
constitutes ``units of general purpose local government.''
    Proposed paragraphs (l) and (m) would provide clarifying 
information on situations that may or may not necessitate MPO 
redesignations. Since promulgation of the existing rule in 1993, the 
FHWA and the FTA have addressed a number of issues on this topic. On 
March 30, 2005, FHWA and FTA issued joint guidance entitled ``FHWA/FTA 
Guidance on Designation and Redesignation of MPOs'' \14\ to address 
inconsistencies that existed between 23 U.S.C. 134, 49 U.S.C. 5303, and 
23 CFR part 450 on the designation and redesignation of MPOs. This 
joint guidance also provided clarifying information and illustrative 
examples of scenarios that may or may not trigger MPO redesignations, 
based on several actual events that transpired since the enactment of 
the TEA-21. The proposed text is based on this previously-issued 
guidance.
---------------------------------------------------------------------------

    \14\ This joint guidance is available via the Internet at the 
following URL: http://www.fhwa.dot.gov/planning/mpodes.htm.
---------------------------------------------------------------------------

Section 450.312 Metropolitan Planning Area Boundaries

    Existing Sec.  450.308 would be re-titled, redesignated as Sec.  
450.312 and revised to reflect the TEA-21 and the SAFETEA-LU changes to 
23 U.S.C. 134 and 49 U.S.C. 5303.
    Proposed paragraph (a) would retain the option in existing Sec.  
450.308(a) of

[[Page 33520]]

extending the metropolitan planning area (MPA) boundary to the limits 
of the metropolitan statistical area or combined statistical area, as 
provided in 23 U.S.C. 134(e)(2)(B) and 49 U.S.C. 5303(e)(2)(B).
    Proposed paragraph (b) would replace existing Sec.  450.308(a) and 
includes the option to expand the MPA boundary to encompass the entire 
area designated as nonattainment for the ozone, carbon monoxide, or 
particulate matter NAAQS.
    Proposed paragraph (c) allows a MPA boundary to encompass more than 
one urbanized area.
    Proposed paragraph (d) states that a MPA boundary may be 
established to coincide with the geography of regional economic 
development and growth forecasting areas. This provision is intended to 
provide impetus for strengthening linkages between metropolitan 
transportation planning and economic development planning, as 
articulated in 23 U.S.C. 134(g)(3) and 49 U.S.C. 5303(g)(3).
    Proposed paragraph (e) allows new census designated urbanized areas 
within an existing MPA without requiring redesignation of the existing 
MPO.
    Proposed paragraph (f) addresses situations where the boundaries of 
an urbanized area or MPA extend across two or more States to encourage 
coordinated transportation planning in multistate areas.
    Proposed paragraph (g) explicitly states that a MPA boundary shall 
not overlap with another MPA.
    Proposed paragraph (h) establishes options for addressing 
situations in which part of an urbanized area extends into an adjacent 
MPA. The affected MPOs may either adjust their respective MPA 
boundaries so that the urbanized area lies only within one MPA or 
establish written agreements that clearly identify areas of 
coordination and division of transportation planning responsibilities 
between the MPOs.
    Proposed paragraph (j) provides clarifying information to existing 
Sec.  450.308(d) on the need for approved MPA boundaries to be provided 
to the FHWA and the FTA in sufficient detail to be accurately 
delineated on a map. The FHWA and the FTA would collect this data for 
informational purposes only to understand national policy issues such 
as the dynamics related to multiple planning geographies (e.g., MPA 
boundaries compared to air quality nonattainment and maintenance 
areas).

Section 450.314 Metropolitan Planning Agreements

    Existing Sec.  450.310 and Sec.  450.312 would be combined, 
revised, re-titled, and redesignated as Sec.  450.314.
    The content of existing Sec.  450.310(a), (b) and (d) would be 
combined and largely retained in proposed paragraph (a), except that 
the reference to ``corridor and subarea studies'' in existing Sec.  
450.310(a) would be removed. ``Corridor and subarea studies'' are 
proposed to be addressed in Sec.  450.318.
    Proposed paragraph (a) requires a written agreement(s) by the MPO, 
State(s), and public transportation operator(s) that clearly identifies 
their mutual responsibilities in carrying out the metropolitan 
transportation planning process.
    Proposed paragraph (a)(1) would require such an agreement(s) to 
include specific provisions for the cooperative development and sharing 
of information related to the financial plans that support the 
metropolitan transportation plan, the TIP and the annual listing of 
obligated projects. This proposed paragraph is intended to articulate 
the cooperative relationships reflected in the TEA-21 and the SAFETEA-
LU.
    Proposed paragraph (a)(2) would encourage the written agreement(s) 
to include provisions for consulting with officials responsible for 
other types of planning affected by transportation (e.g., State and 
local planned growth, economic development, environmental protection, 
airport operations, freight movements, non-emergency transportation 
service providers funded by other sources than title 49, U.S.C., 
Chapter 53, and safety/security operations). This proposed paragraph is 
intended to articulate the extensive cooperative relationships 
reflected in the 23 U.S.C. 134 and 49 U.S.C. 5303.
    Proposed paragraph (b) regarding interagency cooperation in MPAs 
that do not include the entire air quality nonattainment or maintenance 
areas would retain existing 450.310(f), except for minor wording 
changes for clarification.
    Proposed paragraph (c) would retain existing Sec.  450.310(c), 
except for minor wording changes for clarification.
    Existing Sec.  450.310(d) would be removed since more than one 
agreement may be necessary to cover the realm of the various 
cooperative working relationships necessary to undertake comprehensive 
metropolitan transportation planning.
    Existing Sec.  450.310(e) would be removed, since new proposed 
Sec.  450.308 contains additional information on cooperative working 
relationships to be documented in the UPWP or simplified statement of 
work.
    Proposed paragraph (d) combines several paragraphs from existing 
Sec.  450.310 and Sec.  450.312 regarding cooperative agreements among 
planning agencies when more than one MPO serves a single urbanized 
area. Proposed paragraph (d) requires coordination of metropolitan 
transportation plans and TIPs, and strongly encourages coordinated data 
collection, analysis, and planning assumptions across and between the 
MPOs, including coordination when transportation improvements extend 
across the boundaries of more than one MPA. This proposed paragraph 
also allows multiple MPOs to jointly develop a single, coordinated 
metropolitan transportation plan and TIP for the entire urbanized area.
    Proposed paragraph (e) includes provisions in 23 U.S.C. 134(f) and 
49 U.S.C. 5303(f) for situations in which the boundaries of the 
urbanized area or MPA extend across two or more States.
    Proposed paragraph (f) would specifically allow for part of an 
urbanized area designated as a TMA to overlap into an adjacent MPA 
serving a non-TMA urbanized area without requiring the entire adjacent 
urbanized area also to be designated as a TMA. While MPA boundaries may 
not overlap, more than one MPO may serve a single MPA. Proposed 
paragraph (f) would require TMAs to establish formal agreements that 
clearly define specific MPO responsibilities within the urbanized area. 
This proposed change acknowledges the geographical boundary 
complexities that arose with the 2000 census.\15\ If the affected MPOs 
choose to pursue this option, proposed paragraph (f) would require the 
development of a written agreement between the MPOs, the State(s), and 
the public transportation operator(s) describing how specific TMA 
requirements (e.g., congestion management process, surface 
transportation program funds suballocated to the urbanized area over 
200,000 population, and project selection) will be met for the 
overlapping part of the urbanized area.
---------------------------------------------------------------------------

    \15\ For the 2000 decennial Census, the Bureau of the Census 
used a new procedure for defining urbanized areas, based strictly on 
the population density of census blocks and block groups. This 
resulted in most urbanized areas having very irregular shaped 
boundaries, with a large number of these urbanized areas extending 
across traditional jurisdictional boundaries (e.g., counties and 
townships), which are often used to define the metropolitan planning 
area boundaries.
---------------------------------------------------------------------------

    Existing Sec.  450.312(i) has been retained, expanded, and 
relocated to proposed Sec.  450.316(c) discussed below.

[[Page 33521]]

Section 450.316 Interested Parties, Participation, and Consultation

    Existing Sec.  450.316(b) would be revised, expanded, re-titled, 
and redesignated as Sec.  450.316. Since the enactment of the ISTEA in 
1991, MPOs have been required to develop and utilize 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 metropolitan 
transportation plans and TIPs. Title 23 U.S.C. 134(i)(5) and 49 U.S.C. 
5303(i)(5) as amended by the SAFETEA-LU expanded the public involvement 
provisions by requiring MPOs to develop and utilize ``participation 
plans'' that are developed in consultation with an expanded list of 
``interested parties'' identified in 23 U.S.C. 134(i)(5)(A) and 49 
U.S.C. 5303(i)(5)(A). See ``Key Statutory Changes'' above.
    Proposed paragraph (a) would describe the requirement in 23 U.S.C. 
134(i)(5)(B) and 49 U.S.C. 5303(i)(5)(B) as amended by the SAFETEA-LU 
for developing and using a documented Participation Plan and would 
retain much of the content from existing Sec.  450.316(b), with 
additional language provided to directly address the requirement in 23 
U.S.C. 134(i)(5)(A) and 49 U.S.C. 5303 for extensive stakeholder 
``participation'' that is above and beyond ``public involvement.'' 
Specifically, proposed paragraph (a) would re-state the requirements in 
23 U.S.C. 134(i)(5)(C) and 49 U.S.C. 5303(i)(5)(C) for the MPO to hold 
any public meetings at convenient and accessible locations and times, 
employ visualization techniques to describe metropolitan transportation 
plans and TIPs, and make public information available in electronically 
accessible format and means (such as the World Wide Web).
    The FHWA and the FTA recognize that there are myriad ways to use 
visualization techniques to better convey plans and programs and there 
are wide variations among MPO capabilities and needs, especially 
between large, established MPOs and small, new MPOs. States and MPOs 
may use everything from static maps to interactive GIS systems, from 
artist renderings and physical models to photo manipulation to computer 
simulation. Visualization can be used to support plans, individual 
projects or Scenario Planning, where various future scenarios are 
depicted to allow stakeholders to develop a shared vision for the 
future by analyzing various forces (e.g., health, transportation, 
economic, environment, land use, etc.) that affect growth.
    While the FHWA and the FTA will encourage States and MPOs to 
identify and implement the most appropriate visualization technique for 
their particular circumstances, we do not propose to specify when 
specific techniques must be used. As technology continues to change and 
visualization techniques evolve, we anticipate that the techniques will 
be varied as they appropriately illustrate the project or plans they 
are trying to explain.
    The FHWA and the FTA will provide technical assistance and 
information to States and MPOs on how to deploy different visualization 
techniques and will share noteworthy practices to highlight innovations 
that provide the public, elected and appointed officials and other 
stakeholders with better opportunities to understand the various 
options proposed for plans and programs. The FHWA and the FTA will 
share this information through the Transportation Planning Capacity 
Building Program, Web sites and publications.
    Title 23 U.S.C. 134(i)(5)(B) and 49 U.S.C. 5303(i)(5)(B), as 
amended by SAFETEA-LU, require development of a participation plan. The 
FHWA and the FTA propose that the participation plan include elements 
of the public involvement process currently required of MPOs, as well 
as new requirements mandated by SAFETEA-LU. Proposed paragraph (a) 
identifies the interested parties to be included in the metropolitan 
transportation planning process, largely retains the language in 
existing Sec.  450.316(b) regarding the public involvement process and 
builds on that process to describe the requirements of the new 
participation plan.
    Proposed paragraph (a)(1)(vi) largely retains the language in 
existing Sec.  450.316(b)(1)(v) that would require the participation 
plan to demonstrate explicit consideration and response to public input 
received during the development of the metropolitan transportation plan 
and the TIP.
    Proposed paragraph (a)(1)(vii) largely retains the language in 
existing Sec.  450.316(b)(1)(vi) that would require the participation 
plan to seek out and consider the needs of those traditionally 
underserved by existing transportation systems, including low-income 
and minority households.
    Proposed paragraph (a)(1)(viii) largely retains the language in 
existing Sec.  405.316(b)(1)(viii) that would require the participation 
plan to provide an additional opportunity for public comment, if the 
final metropolitan transportation plan or TIP differs significantly 
from the version that was initially made available for public comment.
    Proposed paragraph (a)(1)(ix) largely retains the language in 
existing Sec.  450.316 (b)(1)(xi) that the participation plan be 
coordinated with the statewide transportation planning public 
involvement and consultation processes.
    Proposed paragraph (a)(1)(x) largely retains the language in 
existing Sec.  450.316(b)(1)(ix) requiring MPOs to periodically review 
the participation plan's effectiveness to ensure a full and open 
participation process.
    Proposed paragraph (a)(2) largely retains the language in existing 
Sec.  450.316(b)(1)(vii) regarding the MPO's disposition of comments 
received on the draft metropolitan transportation plan or TIP as part 
of the final metropolitan transportation plan or TIP.
    Proposed paragraph (a)(3) would retain the language in existing 
Sec.  450.316(b)(1)(i) requiring a minimum public comment period of 45 
calendar days be provided before the initial or revised participation 
plan is adopted by the MPO.
    Proposed paragraph (b) reiterates the language in 23 U.S.C. 
134(i)(4) and 49 U.S.C. 5303(i)(4) that requires MPOs to consult with 
agencies and officials responsible for other planning activities within 
the MPA that are affected by transportation in the development of 
metropolitan transportation plans and TIPs. See ``Key Statutory 
Changes'' above.
    Proposed paragraphs (c) and (d) expand upon existing Sec.  
450.312(i) regarding MPO consultation with Indian Tribal governments or 
Federal land management agencies in the development of metropolitan 
plans and TIPs when the MPA includes Indian Tribal lands or Federal 
public lands. See ``Key Statutory Changes'' above.
    Proposed paragraph (e) encourages MPOs to develop a documented 
process(es) that outlines roles, responsibilities, and key decision 
points for consulting with other governments and agencies, as defined 
in proposed paragraphs (b), (c) and (d). Such procedures may be 
included in the agreement(s) developed under proposed Sec.  450.314. 
This proposed paragraph is intended to communicate the importance for 
MPOs to consult with a diverse array of State, local, and Indian Tribal 
governments and agencies in carrying out comprehensive metropolitan 
transportation planning.

[[Page 33522]]

Section 450.318 Transportation Planning Studies and Project Development

    Existing Sec.  450.318 would be revised and re-titled. Section 1308 
of the TEA-21 eliminated the major investment study (MIS) as a separate 
requirement and required the Secretary to integrate, as appropriate, 
the remaining aspects and features of the MIS (and associated corridor 
or subarea studies) into the transportation planning and NEPA 
regulations (23 CFR part 771).
    Since 1998, the FHWA and the FTA (in cooperation with Federal, 
environmental, resource, and regulatory agencies) have undertaken 
several initiatives to promote strengthened linkages between the 
transportation planning and project development/NEPA processes under 
existing legislative, statutory, and regulatory authorities. In 
particular, on February 22, 2005, the FHWA and the FTA disseminated 
legal analysis and program guidance entitled ``Linking the 
Transportation Planning and NEPA Processes''.\16\ Although voluntary to 
States, MPOs, and public transportation operators, this program 
guidance was intended to articulate how information, analysis, and 
products from metropolitan and statewide transportation planning 
processes could be incorporated into and relied upon in the NEPA 
process under existing Federal statutes and regulations. Proposed Sec.  
450.318 is structured around the guiding principles and legal opinion 
reflected in that document.
---------------------------------------------------------------------------

    \16\ This guidance document is available via the Internet at the 
following URL: http://nepa.fhwa.dot.gov/ReNepa/ReNepa.nsf/ aa5aec9f63be385c85256 8cc0055ea16/ 9fd918150ac244 
9685256fb10050726c?OpenDocument.
---------------------------------------------------------------------------

Section 450.320 Congestion Management Process in Transportation 
Management Areas

    Existing Sec.  450.320 would be retained as Sec.  450.320, and 
revised and re-titled to reflect the requirement in 23 U.S.C. 134(k)(3) 
and 49 U.S.C. 5303(k)(3) that TMAs develop and use a congestion 
management process. See ``Key Statutory Changes'' above.
    The SAFETEA-LU amended 23 U.S.C. 134(k)(3) and 49 U.S.C. 5303(k)(3) 
to require that the planning process in a TMA include a congestion 
management ``process'' instead of a ``system''. This section is based 
on most of the information on ``congestion management systems'' 
contained in 23 CFR part 500. Therefore, this proposed rulemaking 
transfers the TMA congestion management ``system'' requirements in 23 
CFR 500.109 to this subpart. The intent is to reiterate the importance 
of the congestion management process to TMA transportation planning and 
programming and consolidate this TMA requirement with the rest of the 
requirements for TMA planning processes.
    In the past the CMS requirement, perhaps because it was a separate 
regulation, has often been carried out in a stove-piped manner, 
separate from the typical MPO planning process and separate from 
transportation system operational and management strategies. The 
proposed regulations reflect the goal that CMP be an integral part of 
developing a long range transportation plan and TIP for TMA MPOs. The 
proposed regulation also reflects the FHWA and the FTA goal to have a 
common set of performance measures and a common set of goals and 
objectives among the CMP, the long range transportation plan and the 
transportation systems operational and management strategies for a 
region. Items such as the regional ITS architecture and the selection 
process for projects to be included in the TIP should be consistent and 
seamless with the CMP. As part of developing the CMP, planners should 
be working in collaboration with others in the region, including public 
transportation operators and State and local operations staff.
    Proposed paragraph (a) re-states the language in 23 U.S.C. 
134(k)(3) and 49 U.S.C. 5303(k)(3) requiring the development and 
implementation of a congestion management process in TMAs.
    Proposed paragraph (b) largely retains the definition of a CMS 
contained in existing 23 CFR 500.109(a)
    Proposed paragraphs (c)(1) through (c)(6) retain the specific TMA 
congestion management language from existing 23 CFR 500.109(b)(1) 
through (b)(6).
    Proposed paragraph (d) reflects the language in 23 U.S.C. 134(m)(1) 
and 49 U.S.C. 5303(m)(1) regarding the use of the congestion management 
process in TMAs designated as nonattainment for ozone or carbon 
monoxide. Paragraph (d) would require that any project that would 
result in a significant increase in the carrying capacity for single 
occupant vehicles (SOVs) be addressed through a congestion management 
process.
    Proposed paragraph (e) largely retains the language in the latter 
portion of 23 CFR 500.109(c) requiring analysis of all reasonable 
(including multimodal) travel demand reduction and operational 
management strategies for the corridor in which a project that would 
result in a significant increase in SOV capacity is proposed in 
nonattainment and maintenance area TMAs.
    Proposed paragraph (f) reflects the language in 23 U.S.C. 135(i) 
and 49 U.S.C. 5304(i) allowing State laws, rules, or regulations 
pertaining to congestion management systems or processes to constitute 
the congestion management process.
    The phase-in period defined in 23 CFR 500.109(d)(2) would be 
removed from this proposed section since that date has passed.

Section 450.322 Development and Content of the Metropolitan 
Transportation Plan

    Existing Sec.  450.316 would be revised, re-titled, and 
redesignated as Sec.  450.322, largely to reflect statutory 
requirements from the TEA-21 and the SAFETEA-LU.
    Proposed paragraph (a) retains the language under existing Sec.  
450.316 that the metropolitan transportation plan must address at least 
a 20-year planning horizon. Additional clarifying information would 
specify that the minimum 20-year horizon applies at the time the 
metropolitan transportation plan is approved by the MPO. Proposed 
paragraph (a) would clarify that the effective date of the metropolitan 
transportation plan in nonattainment and maintenance areas is the date 
of a conformity determination issued by the FHWA and the FTA. This 
proposed change is intended to eliminate confusion over the validity of 
the metropolitan transportation plan in relation to the timing of the 
MPO and the FHWA/FTA conformity determinations, as well as provide a 
consistent temporal basis to track the new four-year update cycle 
established by the SAFETEA-LU.
    Proposed paragraph (c) reflects the provision in 23 U.S.C. 
134(i)(1) and 49 U.S.C. 5303(i)(1) that metropolitan transportation 
plans in air quality nonattainment and maintenance areas be updated at 
least every four years, instead of the former three-year update cycle. 
For attainment area MPOs, proposed paragraph (c) would maintain the 
previous 5-year update cycle. See ``Key Statutory Changes'' above. In 
addition, proposed paragraph (c) would provide MPO discretion to revise 
the plan as necessary. The FHWA and the FTA recognize that changes to 
transportation plans between formal update cycles may be necessary. We 
have proposed definitions for the terms ``administrative 
modification,''

[[Page 33523]]

``amendment,'' and ``revision'' to clarify these actions.
    Proposed paragraph (d) addresses the State air quality agency 
coordination of the development of the TCMs in a SIP. This proposed 
paragraph also discusses the ``TCM substitution'' provisions in Section 
6011(d) of the SAFETEA-LU.
    Proposed paragraph (f)(2) notes that the locally preferred 
alternative selected from a planning Alternatives Analysis under the 
FTA's Capital Investment Grant program (49 U.S.C. 5309 and 49 CFR part 
611) need to be adopted by the MPO as part of the metropolitan 
transportation plan as a condition for funding under 49 U.S.C. 5309.
    As specified in 23 U.S.C. 134(i)(2)(D) and 49 U.S.C. 5303(i)(2)(D), 
proposed paragraph (f)(3) would require the metropolitan transportation 
plan include operational and management strategies to improve the 
performance of existing transportation facilities to relieve vehicular 
congestion and maximize the safety and mobility of people and goods. 
See ``Key Statutory Changes'' above.
    The FHWA and the FTA believe improved planning for the operations 
and management of the Nation's transportation system is vitally 
important to achieving the high expectations for safety, reliability, 
and mobility for people and freight in the 21st century. Operations and 
management (or management and operations) is a coordinated approach to 
optimizing the performance of existing infrastructure through 
implementation of multimodal, intermodal, and often cross-
jurisdictional systems, services, and projects. To be effective, 
management and operations must be viewed as a collaborative effort 
between transportation planners and managers with responsibility for 
day-to-day transportation operations. Management and operations refers 
to a broad range of strategies. Examples include traffic detection and 
surveillance, work zone management, emergency management, freight 
management systems, and traveler information services. Such strategies 
enhance reliability and service efficiency; improve public safety and 
security; reduce traveler delays associated with incidents and other 
events; and improve information for businesses and for the traveling 
public.
    Proposed paragraph (f)(7) would require, consistent with 23 U.S.C. 
134(i)(2)(B) and 49 U.S.C. 5303(i)(2)(B), that the metropolitan 
transportation plan contain a discussion of potential environmental 
mitigation activities (at the policy- and/or strategic-levels, not 
project-specific), developed in consultation with Federal, State, and 
Tribal regulatory agencies responsible for land management, wildlife, 
and other environmental issues. In addition, this proposed paragraph 
allows MPOs to establish reasonable timeframes for performing this 
consultation. See ``Key Statutory Changes'' above.
    Proposed paragraph (f)(10) would implement the provision, in 23 
U.S.C. 134(i)(2)(C) and 49 U.S.C. 5303(i)(2)(C), for a financial plan 
to be developed to support the metropolitan transportation plan. In 
addition, proposed paragraph (f)(9), states that the financial plan may 
include informational ``illustrative projects'' reflecting additional 
projects that would be included if other revenue sources were to become 
available as allowed by 23 U.S.C. 134(i)(2)(C) and 49 U.S.C. 
5303(i)(2)(C). Appendix B to this proposed rule contains a revised 
version of the FHWA/FTA Guidance on Fiscal Constraint of Transportation 
Plans and Programs, which is based on interim guidance issued by the 
FHWA and the FTA.\17\
---------------------------------------------------------------------------

    \17\ FHWA/FTA Guidance on Fiscal Constraint of Transportation 
Plans and Programs, June 30, 2005, available via the Internet at the 
following URL: http://www.fhwa.dot.gov/planning/fcindex.htm.
---------------------------------------------------------------------------

    Proposed paragraph (g) would require that the metropolitan 
transportation plan be developed, as appropriate, in consultation with 
State and local agencies responsible for land use management, natural 
resources, environmental protection, conservation, and historic 
preservation, including the comparison of transportation plans to State 
and Indian Tribal inventories or plans/maps of natural and historic 
resources, as specified in 23 U.S.C. 134(i)(2)(B)(ii) and 49 U.S.C. 
5303(i)(2)(B)(ii). See ``Key Statutory Changes'' above.
    While the title of 23 U.S.C. 134(i)(4) and 49 U.S.C. 5303(i)(4) is 
``Consultation'', it is important to note that the consultation 
referenced in proposed paragraph (g) is different from the definition 
of consultation in the existing or proposed regulation. The statute 
specifically defines ``consultation'' in this section as involving, as 
appropriate, ``comparison of transportation plans with State 
conservation plans or maps, if available, or comparison of 
transportation plans to inventories of natural or historic resources, 
if available.''
    In order to draw a strong link between the Strategic Highway Safety 
Planning process described in 23 U.S.C. 148 and the metropolitan 
transportation planning process, proposed paragraph (h) states that the 
metropolitan transportation plan should include a safety element that 
incorporates or summarizes the priorities, goals, countermeasures, or 
projects for the MPA contained in the Strategic Highway Safety Plan. 
This proposed paragraph also seeks to promote consistency between the 
development of metropolitan transportation plans and emergency relief/
disaster preparedness plans, as well as strategies and policies that 
support homeland security and safeguard the personal security of all 
motorized and non-motorized users (as appropriate).
    Proposed paragraph (i) would provide opportunities to comment for 
the ``interested parties'', specified in 23 U.S.C. 134(i)(5) and 49 
U.S.C. 5303(i)(5) in the development of the metropolitan transportation 
plan, using the participation plan developed under proposed Sec.  
450.316.
    Proposed paragraph (j) would require the MPO to publish or 
otherwise make available the metropolitan transportation plan in 
electronically accessible formats and means (such as the World Wide 
Web), to the maximum extent practicable as specified in 23 U.S.C. 
134(i)(5)(C) and 49 U.S.C. 5303(i)(5)(C). See ``Key Statutory Changes'' 
above.
    The FHWA and the FTA recognize that there are myriad ways to use 
visualization techniques to better convey plans and programs. States 
and MPOs may use everything from static maps to interactive GIS 
systems, from artist renderings and physical models to photo 
manipulation to computer simulation. Visualization can be used to 
support plans, individual projects or Scenario Planning, where various 
future scenarios are depicted to allow stakeholders to develop a shared 
vision for the future by analyzing various forces (e.g., health, 
transportation, economic, environmental, land use, etc.) that affect 
growth. While the FHWA and the FTA will encourage States and MPOs to 
identify and implement the most appropriate visualization technique for 
their particular circumstances, we do not propose to specify when 
specific techniques must be used. There is too much variation among 
MPOs and their circumstances to mandate specific visualization 
techniques. As technology continues to change and visualization 
techniques evolve, we anticipate that the techniques will be varied as 
they appropriately illustrate the projects and plans MPOs are trying to 
explain.
    The FHWA and the FTA will provide technical assistance and 
information to States and MPOs on how to deploy different visualization 
techniques and will share noteworthy practices to highlight innovations 
that provide the

[[Page 33524]]

public, elected and appointed officials and other stakeholders with 
better opportunities to understand the various options proposed for 
plans and programs. This information will be shared through the 
Transportation Planning Capacity Building Program, our Web sites and 
publications.
    Proposed paragraph (l) would be added to authorize utilization of 
an interim transportation plan during a conformity lapse, with the 
intent to continue funding of exempt projects, transportation control 
measures (TCMs) in an approved State Implementation Plan, and other 
projects that can advance under a conformity lapse in accordance with 
40 CFR part 93. Under the provisions of Sec.  176(c) of the Clean Air 
Act, as amended by the SAFETEA-LU, nonattainment and maintenance areas 
have 12 months from the time the area misses a deadline to determine 
conformity of their transportation plan or TIP before a conformity 
lapse occurs. During this conformity lapse grace period, all planning 
requirements in this subpart and subpart B must still be met.

Section 450.324 Development and Content of the Transportation 
Improvement Program (TIP)

    Existing Sec.  450.324 would be revised and retained as Sec.  
450.324. Except for some restructuring and reorganization, much of the 
content of existing Sec.  450.324 would remain intact.
    Substantive changes reflected in proposed Sec.  450.324 are 
consistent with key legislative and statutory changes resulting from 
the TEA-21 and the SAFETEA-LU. Proposed paragraph (a) requires that the 
TIP cover a period of at least four years and be updated at least every 
four years. See ``Key Statutory Changes'' above.
    Proposed paragraph (d) would modify existing Sec.  450.324(f)(4) 
and (f)(5) to clarify that all regionally significant projects, whether 
federally funded or otherwise, would be included in the metropolitan 
TIP for purposes of transportation conformity, fiscal constraint, and 
public disclosure.
    Proposed paragraph (h) would implement a provision, retained in 23 
U.S.C. 134(j)(2)(B) and 49 U.S.C. 5303(j)(2)(B), requiring a financial 
plan to be developed to support the TIP. Another provision added by 
TEA-21, retained in 23 U.S.C. 134(j)(2)(B) and 49 U.S.C. 5303(j)(2)(B), 
and also reflected in proposed paragraph (h), states that the financial 
plan may include informational ``illustrative projects'' reflecting 
additional projects that would be included if other revenue sources 
were to become available.
    Proposed paragraph (i) would retain provisions in existing Sec.  
450.324(e) that explains the fiscal constraint standard for TIPs. The 
FHWA and the FTA believe that retaining these provisions are extremely 
important to meaningful planning and public involvement to ensure that 
TIPs are not merely ``wish lists.''
    The FHWA and the FTA invite comments on whether the agencies should 
require MPOs submitting TIP amendments to demonstrate that funds are 
``available or committed'' for projects identified in the TIP in the 
year the TIP amendment is submitted and the following year.
    Proposed paragraph (k) would be added to authorize utilization of 
an interim TIP during a conformity lapse, with the intent to continue 
funding exempt projects, transportation control measures (TCMs) in an 
approved State Implementation Plan, and other projects that can advance 
under a conformity lapse in accordance with 40 CFR part 93. Under the 
provisions of Sec.  176(c) of the Clean Air Act, as amended by the 
SAFETEA-LU, nonattainment and maintenance areas have 12 months from the 
time the area misses a deadline to determine conformity of their 
transportation plan or TIP before a conformity lapse occurs. During 
this conformity lapse grace period, all planning requirements in this 
subpart and subpart B must still be met.

Section 450.326 TIP Revisions and Relationship to the STIP

    Existing Sec.  450.326 and Sec.  450.328 would be combined, re-
titled, and redesignated as Sec.  450.326. The existing regulatory text 
would remain largely unchanged. It allows for revision of TIPs through 
the addition or deletion of projects, subject to conditions that 
protect the principles of fiscal constraint and public involvement. The 
FHWA and the FTA recognize that changes to TIPs between formal update 
cycles may be necessary. This proposed section intends to clarify that 
in nonattainment and maintenance areas, a new conformity determination 
is necessary unless the changes to TIPs are administrative 
modifications (i.e., addition or deletion of exempt projects). 
Consistent with this, proposed paragraph (a) would clarify that a new 
conformity determination is necessary when regionally significant non-
exempt projects are added to or deleted from a TIP. Similarly, moving a 
project or a phase of a project from year five or later of a TIP to the 
first four years would constitute an amendment that would require a new 
conformity determination. And, in all areas, changes that affect fiscal 
constraint must take place by amendment of the TIP. We have proposed 
definitions for the terms ``administrative modification,'' 
``amendment,'' and ``revision'' to clarify these actions.

Section 450.328 TIP Action by the FHWA and the FTA

    Existing Sec.  450.330 would be redesignated as Sec.  450.328. The 
existing regulatory text would be changed slightly for clarification or 
technical corrections.
    A new paragraph (c) would address situations in which a 
metropolitan transportation plan is not updated within the cycles 
required in the SAFETEA-LU, and proposes limitations on projects that 
could be advanced from an existing TIP. In nonattainment and 
maintenance areas, Sec.  176(c) of the Clean Air Act, as amended by the 
SAFETEA-LU, provides a 12-month conformity lapse grace period from the 
time conformity expires on a plan or TIP before an area enters a 
conformity lapse. During the conformity lapse grace period, all 
planning requirements defined in 450.322 and 450.324 must still be met. 
As long as the TIP is still valid, projects can continue to be 
advanced, but amendments to the TIP would require a new conformity 
determination.
    A new paragraph (e) would be added to address the addition of 
``illustrative projects'' to TIPs. This proposed paragraph makes it 
clear that no Federal action may be taken on these projects until they 
become formally included in the TIP, as specified in statute.

Section 450.330 Project Selection From the TIP

    Existing Sec.  450.332 would be revised, re-titled, and 
redesignated as Sec.  450.330. Existing Sec.  450.332(a), (b), and (c) 
would be redesignated as Sec.  450.330(b), (c) and (a), respectively, 
with largely citation corrections made to the text. In addition, 
proposed paragraph (a) has been revised to reflect the requirement in 
23 U.S.C. 134(j)(2)(A) and 49 U.S.C. 5303(j)(2)(A) that the TIP include 
projects covering four years. See ``Key Statutory Changes'' above.
    With minor citation changes, existing Sec.  450.332(d) and (e) 
would be redesignated in proposed Sec.  450.330 paragraphs (d) and (e), 
respectively.
    The FHWA and the FTA invite comments on whether MPOs should be 
required to prepare an ``agreed to'' list of projects at the beginning 
of each of the four years in the TIP, rather than only the first year. 
The FHWA and the FTA also invite comments on whether a TIP amendment 
should be required to

[[Page 33525]]

move a project between years in the TIP, if an ``agreed to'' list is 
required for each year.

Section 450.332 Annual Listing of Obligated Projects

    This new proposed section addresses the requirements of the TEA-21 
and 23 U.S.C. 134(j)(7)(B) and 49 U.S.C. 5303(j)(7)(B) for the 
development of an annual listing of projects (including investments in 
pedestrian walkways and bicycle facilities) for which funds under 23 
U.S.C. or 49 U.S.C. Chapter 53 were obligated in the preceding program 
year in MPAs.
    Proposed paragraph (a) re-states the language in 23 U.S.C. 
134(j)(7)(B) and 49 U.S.C. 5303(j)(7)(B) that the annual listing shall 
be cooperatively developed by the State(s), public transportation 
operator(s), and the MPO, in accordance with Sec.  450.314(a) and 
specifies the timetable for publication of the annual listing.
    Proposed paragraph (b) specifies that the information contained in 
the annual listing of obligated projects be consistent with the 
information contained in the TIP and specifies the information to be 
included.
    Proposed paragraph (c) states that the annual listing of obligated 
projects shall be published or otherwise made available by the MPO in 
accordance with the participation plan's criteria related to the TIP.

Section 450.334 Self-Certifications and Federal Certifications

    Existing Sec.  450.334 would be revised, re-titled, and retained as 
Sec.  450.334. Proposed paragraph (a) would revise existing Sec.  
450.334(a) to align the transmittals of the State/MPO self-
certifications and the TIP to the FHWA and the FTA, thereby reflecting 
the language in 23 U.S.C. 134(j)(1)(D) and 49 U.S.C. 5303(j)(1)(D) that 
requires TIPs to be updated at least once every four years. In 
addition, proposed paragraphs (a)(1) through (a)(8) would articulate 
the existing legislative and regulatory authorities to be included in 
the State/MPO self-certification, including three additional Federal 
requirements (1) the Older Americans Act, (2) 23 U.S.C. 324 regarding 
the prohibition of discrimination based on gender, and (3) section 504 
of the Rehabilitation Act of 1973 regarding discrimination against 
individuals with disabilities). These requirements previously existed 
and the regulations would be revised to include them.
    Proposed paragraph (b) would combine and revise the content of 
existing Sec.  450.334(b) through (h), based largely on language in 23 
U.S.C. 134(k)(5) and 49 U.S.C. 5303(k)(5) that describes TMA 
certification. In addition, proposed paragraphs (b)(1)(i) through 
(b)(1)(iii) describe specific FHWA/FTA options on TMA certification.

Section 450.336 Applicability of NEPA to Metropolitan Transportation 
Plans and Programs

    This new proposed section includes the provisions of the TEA-21 and 
23 U.S.C. 134(p) and 49 U.S.C. 5303(p) that any decisions by the FHWA 
and the FTA regarding the metropolitan transportation plan and the TIP 
are not Federal actions subject to the provisions of NEPA.

Section 450.338 Phase-in of New Requirements

    Existing Sec.  450.336 would be revised and redesignated as Sec.  
450.338. Proposed paragraphs (a), (b) and (c) include the requirements 
in Sections 3005(b) and 6001(b) of the SAFETEA-LU that State and MPO 
transportation plans and programs adopted on or after July 1, 2007, 
shall reflect the provisions in 23 U.S.C. 134 and 49 U.S.C. 5303 as 
amended by the SAFETEA-LU. In addition, this proposed section clarifies 
that all State, MPO, and FHWA/FTA actions on metropolitan 
transportation plans and programs taken on or after July 1, 2007 (i.e., 
updates and amendments) are subject to the provisions in 23 U.S.C. 134 
and 49 U.S.C. 5303 as amended by the SAFETEA-LU and these proposed 
rules. Provisions for early accommodation of SAFETEA-LU requirements, 
as well as its revised update cycles are described in this section.
    Proposed paragraph (d) would establish that the congestion 
management process for newly designated TMAs shall be implemented 
within 18 months of the designation of the TMA. This requirement is 
consistent with previous joint guidance provided by the FHWA and the 
FTA entitled ``Frequently Asked Questions on Applying 2000 Census Data 
to Urbanized and Urban Areas''.\18\
---------------------------------------------------------------------------

    \18\ Guidance issued on March 31, 2003, available via the 
Internet at the following URL: http://www.fhwa.dot.gov/planning/
census/faqa2cdt.htm.
---------------------------------------------------------------------------

Appendix A--Linking the Transportation Planning and NEPA Processes

    The agencies propose to include an Appendix A in the regulations 
discussing the mandated linkage between transportation planning and 
project development to amplify requirements in 23 U.S.C. 134 and 135 
and in 49 U.S.C. 5303 and 5304 regarding this linkage.
    Despite the statutory emphasis over the last 40 years directing 
that Federally funded highway and transit projects flow from 
metropolitan and statewide transportation planning processes, the 
environmental analyses produced to meet the requirements of the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4231 et 
seq.) have often been disconnected from the analyses used to develop 
long-range transportation plans, statewide and metropolitan 
Transportation Improvement Programs (STIPs/TIPs), planning-level 
corridor/subarea/feasibility studies, or FTA's planning Alternatives 
Analyses. Congress established a strong transportation planning process 
for a reason, so that it would lay a foundation and help shape project 
decisions. This Appendix reinforces how planning analyses and decisions 
should be relied on during the NEPA process. The Appendix presents 
environmental review as a continuum of sequential study, refinement, 
and expansion performed in transportation planning and during project 
development/NEPA, with information developed and conclusions drawn in 
early stages utilized in subsequent (and more detailed) review stages. 
The Appendix includes a ``Questions and Answers'' section that 
addresses common issues regarding linking the transportation planning 
and NEPA/project development processes.

Appendix B--Fiscal Constraint of Transportation Plans and Programs

    The agencies propose to include Appendix B on fiscal constraint to 
amplify requirements in 23 U.S.C. 134 and 135 and in 49 U.S.C 5303 and 
5304 associated with fiscal constraint. Appendix B summarizes and 
describes in detail the ISTEA and TEA-21 fiscal constraint requirements 
to ensure that transportation plans and programs reflect realistic 
assumptions on capital, operations, and maintenance costs associated 
with the surface transportation system. Appendix B explains how to 
estimate ``reasonably available'' future revenues and what is 
considered ``Available or Committed'' funds. The Appendix also 
describes how to address changes in revenues or costs after the 
metropolitan transportation plan, TIP, or STIP are adopted and the 
FHWA/FTA position on how operations or maintenance are to be covered by 
fiscal constraint analyses. The Appendix includes a ``Questions and 
Answers'' section that addresses common uncertainties

[[Page 33526]]

regarding different fiscal constraint situations.

Section 500.109 Congestion Management Systems (CMS)

    The SAFETEA-LU amended 23 U.S.C. 134(k)(3) and 49 U.S.C. 5303 to 
require that the planning process in a TMA include a congestion 
management ``process'' instead of a ``system''. This proposed 
rulemaking transfers the TMA congestion management ``system'' 
requirements from this section to Sec.  450.320. The intent of moving 
the requirements from this section to Sec.  450.320 is to reiterate the 
importance of the congestion management process to TMA transportation 
planning and programming and consolidate the TMA congestion management 
process requirement with the rest of the requirements for TMA planning 
processes.
    Proposed paragraph (a) largely retains the language contained in 
existing Sec.  500.109(a). The remaining portions of existing Sec.  
500.109 that pertain to congestion management in TMAs are proposed to 
be moved to Sec.  450.320.
    The phase-in period defined in existing Sec.  500.109(d)(2) would 
be removed because it is no longer necessary.

49 CFR Part 613

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

Distribution Tables

    For ease of reference, two distribution tables are provided. The 
first indicates proposed changes in section numbering and titles. The 
second provides details within each section.

                        Section Title and Number
------------------------------------------------------------------------
              Old section                          New section
------------------------------------------------------------------------
Subpart A                                Subpart A
450.100 Purpose........................  450.100 Purpose.
450.102 Applicability..................  450.102 Applicability.
450.104 Definitions....................  450.104 Definitions.
Subpart B                                Subpart B
450.200 Purpose........................  450.200 Purpose.
450.202 Applicability..................  450.202 Applicability.
450.204 Definitions....................  450.204 Definitions.
450.206 Statewide transportation         450.206 Scope of the statewide
 planning process: General requirements.  transportation planning
                                          process.
450.208 Statewide transportation         450.208 Coordination of
 planning process: Factors.               planning process activities.
450.210 Coordination...................  450.210 Interested parties,
                                          public involvement, and
                                          consultation.
                                         450.212 Transportation planning
                                          studies and project
                                          development.
450.212 Public involvement.............  450.214 Development and content
                                          of the long-range statewide
                                          transportation plan.
450.214 Statewide transportation plan..  450.216 Development and content
                                          of the statewide
                                          transportation improvement
                                          program (STIP).
450.216 Statewide transportation         450.218 Self-certifications,
 improvement program (STIP).              Federal findings, and Federal
                                          approvals.
450.218 Funding........................   450.220 Project selection from
                                          the STIP.
450.220 Approvals......................   450.222 Applicability of NEPA
                                          to statewide transportation
                                          plans and programs.
450.222 Project selection for            450.224 Phase-in of new
 implementation.                          requirements.
Subpart C                                Subpart C
450.300 Purpose........................  450.300 Purpose.
450.302 Applicability..................  450.302 Applicability.
450.304 Definitions....................  450.304 Definitions.
450.306 Metropolitan planning            450.306 Scope of the
 organizations: Designation and           metropolitan transportation
 redesignation.                           planning process.
450.308 Metropolitan planning            450.308 Funding for
 organization: Metropolitan planning      transportation planning and
 boundary.                                unified planning work
                                          programs.
450.310 Metropolitan planning            450.310 Metropolitan planning
 organization: planning agreements.       organization designation and
                                          redesignation.
450.312 Metropolitan transportation       450.312 Metropolitan planning
 planning: Responsibilities,              area boundaries.
 cooperation, and coordination.
450.314 Metropolitan transportation      450.314 Metropolitan planning
 planning process: Unified planning       agreements.
 work programs.
450.316 Metropolitan transportation      450.316 Interested parties,
 planning process: Elements.              participation and
                                          consultation.
450.318 Metropolitan transportation      450.318 Transportation planning
 planning process: Major metropolitan     studies and project
 transportation investments.              development.
450.320 Metropolitan transportation      450.320 Congestion management
 planning process: Relation to            process in transportation
 management systems.                      management areas.
450.322 Metropolitan transportation      450.322 Development and content
 planning process: Transportation plan.   of the metropolitan
                                          transportation plan.
450.324 Transportation improvement       450.324 Development and content
 program: General.                        of the transportation
                                          improvement program (TIP).
450.326 Transportation improvement       450.326 TIP revisions and
 program: modification.                   relationship to the STIP.
450.328 Transportation improvement       450.328 TIP action by the FHWA
 program: Relationship to statewide TIP.  and the FTA.
450.330 Transportation improvement       450.330 Project selection from
 program: Action required by FHWA/FTA.    the TIP.
450.332 Project selection for            450.332 Annual listing of
 implementation.                          obligated projects.
450.334 Metropolitan transportation      450.334 Self-certifications and
 planning process: Certification.         Federal certifications.

[[Page 33527]]

 
450.336 Phase-in of new requirements...  450.336 Applicability of NEPA
                                          to metropolitan transportation
                                          plans and programs.
None...................................  450.338 Phase-in of new
                                          requirements.
Section 500
500.109 CMS............................   500.109 CMS.
------------------------------------------------------------------------

    The following distribution table identifies details for each 
existing section and proposed section:

------------------------------------------------------------------------
              Old section                          New section
------------------------------------------------------------------------
Subpart A                                Subpart A
450.100................................  450.100. [Revised].
450.102................................  450.102.
450.104................................  450.104.
Definitions............................  Definitions.
None...................................  Administrative modification.
                                          [New].
None...................................  Alternatives analysis. [New].
None...................................  Amendment. [New].
None...................................  Attainment area. [New].
None...................................  Available funds. [New].
None...................................  Committed funds. [New].
None...................................  Conformity. [New].
None...................................  Conformity lapse. [New].
None...................................  Congestion management process.
                                          [New].
None...................................  Consideration. [New].
Consultation...........................  Consultation. [Revised].
Cooperation............................  Cooperation. [Revised].
None...................................  Coordinated public transit-
                                          human services transportation
                                          plan. [New].
Coordination...........................   Coordination. [Revised].
None...................................  Design concept. [New].
None...................................  Design scope. [New].
None...................................  Environmental mitigation
                                          activities. [New].
None...................................  Federal land management agency.
                                          [New].
None...................................  Federally funded non-emergency
                                          transportation services.
                                          [New].
None...................................  Financially constrained or
                                          Fiscal constraint. [New].
None...................................  Financial plan. [New].
None...................................  Freight shippers. [New].
Governor...............................  Governor.
None...................................  Illustrative project. [New].
None...................................  Indian Tribal government.
                                          [New].
None...................................  Intelligent transportation
                                          system (ITS). [New].
None...................................  Interim metropolitan
                                          transportation plan. [New].
None...................................  Interim transportation
                                          improvement program (TIP).
                                          [New].
Maintenance area.......................  Maintenance area. [Revised].
Major metropolitan transportation        Removed.
 investment.
Management system......................  Management system. [Revised].
Metropolitan planning area.............  Metropolitan planning area.
                                          [Revised].
Metropolitan planning organization.....  Metropolitan planning
                                          organization.
(MPO)..................................  (MPO). [Revised].
Metropolitan transportation plan.......  Metropolitan transportation
                                          plan.
None...................................  National ambient air quality
                                          standards. [New].
Nonattainment area.....................  Nonattainment area.
Non-metropolitan area..................  Non-metropolitan area.
Non-metropolitan local official........  Non-metropolitan local
                                          official.
None...................................  Obligated projects. [New].
None...................................  Operational and management
                                          strategies. [New].
None...................................  Project selection. [New].
None...................................  Provider of freight
                                          transportation services.
                                          [New].
None...................................  Regional ITS architecture.
                                          [New].
None...................................  Regional transit security
                                          strategy.
Regionally significant project.........  Regionally significant project.
                                          [Revised].
None...................................  Revision. [New].
State..................................  State.
State implementation plan (SIP)........  State implementation plan
                                          (SIP). [Revised].
Statewide transportation improvement     Statewide transportation
 Program (STIP).                          improvement program (STIP).
Statewide transportation plan..........  Long-range statewide
                                          transportation plan.
                                          [Revised].
None...................................  Strategic Highway Safety Plan.
                                          [New].
None...................................  Transportation control measures
                                          (TCMs). [New].

[[Page 33528]]

 
Transportation improvement program       Transportation improvement
 (TIP).                                   program (TIP). [Revised].
Transportation management area (TMA)...  Transportation management area
                                          (TMA). [Revised].
None...................................  Unified planning work program
                                          (UPWP). [New].
None...................................  Update. [New].
None...................................  Urbanized area. [New].
None...................................  Users of public transportation.
                                          [New].
None...................................  Visualization techniques.
                                          [New].
Subpart B                                Subpart B
450.200................................  450.200. [Revised].
450.202................................  450.202. [Revised].
450.204................................  450.204. [Revised].
450.206(a)(1) through (a)(5)...........  Removed.
450.206(b).............................  450.208(a)(1). [Revised].
450.206(c).............................  450.208(a)(3).
450.208(a)(1)..........................  450.208(d). [Revised].
450.208(a)(2) through (a)(23)..........  450.206(a)(1) through (a)(8).
                                          [Revised].
450.208(b).............................  450.206(b). [Revised].
None...................................  450.206(c). [New].
450.210(a)(1) through (a)(13)..........  450.208(a)(1) through (a)(7).
                                          [Revised].
450.210(b).............................  Removed.
None...................................  450.208(b). [New].
None...................................  450.208(c). [New].
None...................................  450.208(e). [New].
None...................................  450.208(f). [New].
None...................................  450.208(g). [New].
None...................................  450.208(h). [New].
450.212(a) through (g).................  450.210(a). [Revised].
450.212(h) through (i).................  450.210(b)(1) through (b)(2).
                                          [Revised].
None...................................  450.210(c). [New].
None...................................  450.212. [New].
450.214(a) through (b)(3)..............  450.214(a). [Revised].
None...................................  450.214(b). [New].
450.214(b)(4)..........................  450.214(e). [Revised].
450.214(b)(5)..........................  450.214(c). [Revised].
450.214(b)(6)..........................  450.214(k). [Revised].
None...................................  450.214(d). [Revised].
None...................................  450.214(e). [New].
450.214(c)(1) through (c)(5)...........  450.214(g) and (h). [Revised].
450.214(d).............................  Removed.
None...................................  450.214(i). [New].
None...................................  450.214(j). [New].
None...................................  450.214(m). [New].
None...................................  450.214(n). [New].
450.214(e).............................  450.214(o).
None...................................  450.214(p). [New].
450.214(f).............................  450.214(f). [Revised].
450.216(a) last sentence...............  450.216(g). [Revised].
450.216(a)(1) through (a)(2)...........  450.216(a) through (b).
                                          [Revised].
450.216(a)(3)..........................  450.216(k).
None...................................  450.216(l). [New].
450.216(a)(4)..........................  450.216(b). [Revised].
None...................................  450.216(d). [New].
None...................................  450.216(e). [New].
450.216(a)(5)..........................  450.216(m). [Revised].
450.216(a)(6)..........................  450.216(g). [Revised].
450.216(a)(7)..........................  450.216(h). [Revised].
450.216(a)(8)..........................  450.216(i). [Revised].
450.216(a)(9)..........................  Removed.
450.216(b).............................  450.216(j). [Revised].
None...................................  450.216(f). [New].
None...................................  450.216(n). [New].
None...................................  450.216(m). [New].
450.216(c) through (d).................  450.216(o).
450.216(e).............................  450.216(c). [Revised].
450.218................................  450.206(d). [Revised].
450.220(a) through (g).................  450.218(a) through (d).
                                          [Revised].
450.222(a) through (d).................  450.220(a) through (e).
                                          [Revised].
None...................................  450.222. [New].
450.224(a) through (b).................  450.224(a) through (c).
                                          [Revised].
Subpart C                                Subpart C
450.300................................  450.300. [Revised].
450.302................................  450.302. [Revised].
450.304................................  450.304. [Revised].
450.306(a) through (d).................  450.310(a) through (d).
                                          [Revised].

[[Page 33529]]

 
None...................................  450.310(f). [New].
450.306(e).............................  450.310(g).
None...................................  450.310(h). [New].
450.306(f).............................  450.310(i). [Revised].
450.306(g).............................  450.310(j). [Revised].
450.306(h).............................   450.310(e). [Revised].
450.306(i) through (j).................  Removed.
450.306(k).............................  450.310(l) through (m).
                                          [Revised].
None...................................  450.310(k). [New].
450.308(a) through (c).................  450.312(a), (b), and (i).
                                          [Revised].
None...................................  450.312(c). [New].
None...................................  450.312(d). [New].
None...................................  450.312(e). [New].
None...................................  450.312(f). [New].
None...................................  450.312(g). [New].
None...................................  450.312(h). [New].
450.308(d).............................  450.312(j). [Revised].
450.310(a), (b), and (d)...............  450.314(a). [Revised].
None...................................  450.314(a)(1). [New].
None...................................  450.314(a)(2). [New].
450.310(c).............................  450.314(c).
450.310(e).............................  Removed.
450.310(f).............................  450.314(b). [Revised].
450.310(g).............................  450.314(d). [Revised].
450.310(h).............................  Removed.
None...................................  450.314(f). [New].
450.312(a).............................  Removed.
450.312(b).............................  Removed.
450.312(c).............................  450.322(d). [Revised].
450.312(d).............................  Removed.
450.312(e).............................  450.314(e).
450.312(f).............................  450.306(i).
450.312(g).............................  Removed.
450.312(h).............................  Removed.
450.312(i).............................  450.316(c) through (d).
                                          [Revised].
None...................................  450.316(e). [New].
None...................................  450.308(a). [New].
450.314(a) through (d).................  450.308(b) through (e).
                                          [Revised].
None...................................  450.308(f). [New].
450.316(a)(1) through (a)(16)..........  450.306(a)(1) through (a)(8).
                                          [Revised].
None...................................  450.306(b). [New].
None...................................  450.306(c). [New].
None...................................  450.306(d). [New].
None...................................  450.306(e). [New].
None...................................  450.306(f). [New].
None...................................  450.306(g). [New].
None...................................  450.306(h). [New].
None...................................  450.316(a). [New].
450.316(b)(1)(i).......................  450.316(a)(3). [Revised].
450.316(b)(1)(ii) through (b)(1)(vi)...  450.316(a)(1)(i) through
                                          (a)(1)(vi). [Revised].
450.316(b)(1)(vii).....................  450.316(a)(2)(). [Revised].
450.316(b)(1)(viii) through (b)(1)(xi).  450.316(a)(1)(vii) through
                                          (a)(1)(x). [Revised].
450.316(b)(2)..........................  Removed.
450.316(b)(3)..........................  Removed.
450.316(b)(4)..........................  Removed.
None...................................  450.316(b). [New].
450.312(i).............................  450.316(c).
None...................................  450.316(d). [New].
450.316(c).............................  450.306(j). [Revised].
450.316(d).............................  Removed.
450.318(a) through (f).................  450.318(a) through (c).
                                          [Revised].
450.320(a) through (c).................  450.320(a) through (f).
                                          [Revised].
450.322(a) and (e).....................  450.322(a) through (c).
                                          [Revised].
None...................................  450.322(e). [New].
450.322(b)(1) through (b)(2)...........  450.322(f)(1) through (f)(2).
                                          [Revised].
450.322(b)(3)..........................  450.322(f)(8). [Revised].
450.322(b)(4) through (b)(7)...........  450.322(f)(3) through (f)(6).
                                          [Revised].
450.322(b)(8)..........................  Removed.
450.322(b)(9)..........................  450.322(f)(7). [Revised].
450.322(b)(10).........................  Removed.
450.322(b)(11).........................  450.322(f)(8). [Revised].
None...................................  450.322(g)(1) through (g)(2).
                                          [New].
None...................................  450.322(h). [New].
450.322(c).............................  450.322(i). [Revised].

[[Page 33530]]

 
None...................................  450.322(j). [New].
None...................................  450.322(k). [New].
450.322(d).............................  450.322(l). [Revised].
450.324(a) through (n).................  450.324(a) through (j).
                                          [Revised].
None...................................  450.324(k). [New].
None...................................  450.324(l). [New].
450.326................................  450.326(a). [Revised].
450.328(a) through (b).................  450.326(b) through (c).
                                          [Revised].
450.330(a) through (b).................  450.328(a) through (b).
                                          [Revised].
None...................................  450.328(c) through (e). [New].
450.324(o).............................  450.328(f). [Revised].
450.332(a) through (e).................  450.330(a) through (e).
                                          [Revised].
None...................................  450.332(a) through (c). [New].
450.334(a) through (h).................  450.334(a) through (b).
                                          [Revised].
None...................................  450.336. [New].
450.336................................  450.338(a) through (d).
                                          [Revised].
500.109 (a) through (c)................  500.109(a) through (b).
                                          [Revised].
------------------------------------------------------------------------

Rulemaking Analyses and Notices

    All comments received on or before the close of business on the 
comment closing date indicated above will be considered and will be 
available for examination in the docket at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practicable. In addition to late 
comments, we will continue to file relevant information in the docket 
as it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA and FTA have determined preliminarily that this rulemaking 
would be a significant regulatory action within the meaning of 
Executive Order 12866, and is significant under Department of 
Transportation regulatory policies and procedures because of 
substantial State, local government, congressional, and public 
interest. These interests involve receipt of Federal financial support 
for transportation investments, appropriate compliance with statutory 
requirements, and balancing of transportation mobility and 
environmental goals. The changes proposed herein would add new 
coordination and documentation requirements (e.g., greater public 
outreach and consultation with State and local planning and resource 
agencies, annual listing of obligated projects, etc.), but would reduce 
the frequency of some existing regulatory reporting requirements (e.g., 
metropolitan transportation plan, STIP/TIP, and certification reviews). 
In preparing this proposal, the FHWA and the FTA have sought to 
maintain existing flexibility of operation wherever possible for State 
DOTs, MPOs, and other affected organizations, and to utilize existing 
processes to accomplish any new tasks or activities.
    The FHWA and the FTA have conducted a cost analysis identifying 
each of the proposed regulatory changes that would have a significant 
cost impact for MPOs or State DOTs, and have estimated those costs on 
an annual basis. This cost analysis is included as a separate document, 
entitled ``Regulatory Cost Analysis of Proposed Rulemaking,'' and is 
available for review in the docket. Based on the cost analysis, we 
estimate that the aggregate increase in costs over current expenditures 
attributable to this rulemaking for all 52 State DOTs and 384 MPOs 
would be approximately $19.8 million per year, or about $46,000 per 
agency, on average. Eighty (80) percent of these costs are directly 
reimbursable through Federal transportation funds allocated for 
metropolitan planning. [23 U.S.C. 104(f) and 49 U.S.C. 5303(h)] and for 
State planning and research [23 U.S.C. 505 and 49 U.S.C. 5313]. 
Furthermore, the SAFETEA-LU significantly increased the mandatory set-
aside in Federal funds for metropolitan transportation planning, as 
well as Statewide Planning and Research funding. In addition, the State 
DOTs and MPOs have the flexibility to use most other Federal highway 
dollars for transportation planning if they so desire. Consequently, 
the increase in non-Federal cost burden attributable to this proposed 
rulemaking is estimated to be only $4 million per year in total, or 
about $9,100 per agency, on average. Therefore, we believe that the 
economic impact of this rulemaking would be minimal.
    The FHWA and the FTA welcome comments on the economic impacts of 
these proposed regulations. Comments, including those from the State 
DOTs and MPOs, regarding specific burdens, impacts, and costs would be 
most welcome and would aid us in more fully appreciating the impacts of 
this ongoing planning process requirement. Hence, we encourage comments 
on all facets of this proposal regarding its costs, burdens, and 
impacts.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 
5 U.S.C. 601-612), the FHWA and the FTA have determined that States and 
metropolitan planning organizations are not included in the definition 
of small entity set forth in 5 U.S.C. 601. Small governmental 
jurisdictions are limited to representations of populations of less 
than 50,000. Metropolitan planning organizations, by definition 
represent urbanized areas having a minimum population of 50,000. 
Therefore the Regulatory Flexibility Act does not apply.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). This proposed rule will not result in the 
expenditure of non-Federal funds by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $120.7 
million in any one year (2 U.S.C. 1532).
    Additionally, the definition of ``Federal mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or Tribal governments have authority to adjust their 
participation in the program in accordance with changes

[[Page 33531]]

made in the program by the Federal government. The Federal-aid highway 
program and Federal Transit Act permit this type of flexibility to the 
States.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and the 
FHWA and the FTA have determined that this proposed action would not 
have sufficient federalism implications to warrant the preparation of a 
Federalism assessment. The FHWA and the FTA have also determined that 
this proposed action would not preempt any State law or regulation or 
affect the States' ability to discharge traditional State governmental 
functions. Comment is solicited specifically on the Federalism 
implications of this proposal.
    By letter dated November 29, 2005, the FHWA and the FTA solicited 
comments from the National Governors' Association (NGA) as 
representatives for the elected State officials on the Federalism 
implications of this proposed rule.\19\ An identical letter was sent on 
the same date to several other organizations representing elected 
officials and Indian Tribal governments. These organizations were: the 
National Conference of State Legislators (NCSL), the American Public 
Works Association (APWA), the Association of Metropolitan Planning 
Organizations (AMPO), the National Association of Regional Councils 
(NARC), the National Association of Counties (NACO), the Conference of 
Mayors (COM), the National Association of City Transportation Officials 
(NACTO), and the National Congress of American Indians (NCAI).
---------------------------------------------------------------------------

    \19\ A copy of this letter is included in the docket.
---------------------------------------------------------------------------

    In response to this letter, AMPO and NARC requested a meeting to 
discuss their Federalism concerns. On December 21, 2005, we met with 
representatives from AMPO and NARC. A summary of this meeting is 
available in the docket. Briefly, both AMPO and NARC expressed concern 
with the potential burdens that new requirements might have on MPOs, 
especially the smaller MPOs. In particular, AMPO and NARC were 
concerned with our implementation of the SAFETEA-LU provisions relating 
to public participation, congestion management process, and 
implementation of planning update cycles. During the meeting, the FHWA 
and the FTA indicated that we would consider the issues discussed at 
the meeting. In response to the concerns raised, we propose flexible 
public participation requirements in Section 450.316, recognizing the 
wide variations among MPO capabilities and needs. Regarding the 
implementation of planning update cycles, the FHWA and the FTA note 
that 23 U.S.C. 134(b) and 135(b) and 49 U.S.C. 5303(b) and 5304(b) 
state that ``beginning July 1, 2007, State or metropolitan planning 
organization plan or program updates shall reflect changes made by this 
section.'' The FHWA and the FTA do not have the legal authority to 
allow flexibility with regard to this date.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Numbers 20.205, 
Highway Planning and Construction (or 20.217); 20.500, Federal Transit 
Capital Improvement Grants; 20.505, Federal Transit Technical Studies 
Grants; 20.507, Federal Transit Capital and Operating Assistance 
Formula Grants. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation in Federal programs and 
activities apply to these programs and were carried out as part of the 
outreach on the Federalism implications of this rulemaking. The FHWA 
and the FTA solicit comments on this issue.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. The FHWA and the FTA 
have determined that this proposal contains collection of information 
requirements for the purposes of the Paperwork Reduction Act. However, 
the FHWA and the FTA believe that any increases in burden hours per 
submission are more than offset by decreases in the frequency of 
collection for these information requirements.
    The reporting requirements for metropolitan planning unified 
planning work programs (UPWPs), transportation plans, and 
transportation improvement programs (TIPs) are currently approved under 
OMB control number 2132-0529 (expiration date: 06/30/2007). The 
information reporting requirements for State planning work programs 
have been approved by the OMB under control number 2125-0039. The FTA 
conducted the analysis supporting this approval on behalf of both the 
FTA and the FHWA, since the regulations are jointly issued by both 
agencies. The reporting requirements for statewide transportation plans 
and programs are also approved under this same OMB control number. The 
information collection requirements addressed under the current OMB 
approval number (2132-0529) impose a total burden of 314,900 hours on 
the planning agencies that must comply with the requirements in the 
existing regulation. The FHWA and the FTA conducted an analysis of the 
change in burden hours attributed to the proposed rulemaking, based on 
estimates used in the submission for OMB approval. This analysis is 
included as a separate document entitled ``Estimated Change in 
Reporting Burden Hours Attributable to Proposed Rulemaking'', and is 
available for review in the docket. The analysis results are summarized 
below.
    The creation and submission of required reports and documents have 
been limited to those specifically required by 23 U.S.C. 134 and 135 
and in 49 U.S.C. 5303 and 5304 or essential to the performance of our 
findings, certifications and/or approvals. Under the proposed 
rulemaking, there would be no significant change in the submission 
requirements for UPWPs or State planning work programs; therefore there 
is no change in the annual reporting burden for this element. The 
proposed rulemaking would require that additional sections be added to 
the metropolitan and statewide transportation plans, which we estimate 
would increase the required level of effort by 20 percent over current 
plan development. However, the proposed rulemaking would also reduce 
the required frequency of plan submission from 3 to 4 years for MPOs 
located in nonattainment or maintenance areas. One half of all MPOs are 
located in nonattainment or maintenance areas and would realize a 
reduction in their annual reporting burden. Based on the burden hours 
used in the FTA analysis submitted for OMB approval, the decrease in 
burden hours for MPOs located in nonattainment and maintenance areas 
more than offsets the increase in burden hours associated with the new 
sections required in the plans.
    The proposed rulemaking requires that State and metropolitan 
transportation improvement program (STIP and TIP) documents include 4 
years of projects; an increase from 3 years of projects required under 
current regulations. We estimate that the inclusion of an additional 
year of projects would increase the reporting burden associated with 
TIP development by 10 percent over current levels. However, the 
proposed rulemaking would also reduce the

[[Page 33532]]

required frequency of TIP submission from 2 years to 4 years for all 
States and MPOs. Based on the burden hours used in the FTA analysis 
submitted for OMB approval, the decrease in burden hours associated 
with the reduced frequency of submission more than offsets the increase 
in burden hours associated with including an additional year of 
projects in the TIP.
    Interested parties are invited to send comments regarding any 
aspect of this information collection, including, but not limited to: 
(1) Whether the collection of information is necessary for the 
performance of the functions of the FHWA and the FTA; (2) the accuracy 
of the estimated burden; (3) ways to enhance the quality, utility, and 
clarity of the collection of information; and (4) ways to minimize the 
collection burden without reducing the quality of the information 
collected.

National Environmental Policy Act

    The FHWA and the FTA have analyzed this proposed action for the 
purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 
4321), and have determined that this proposed action would not have any 
effect on the quality of the environment.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13175 (Tribal Consultation)

    The FHWA and the FTA have analyzed this action under Executive 
Order 13175, dated November 6, 2000, and believe that the proposed 
action would not have substantial direct effects on one or more Indian 
Tribes; would not impose substantial direct compliance costs on Indian 
Tribal governments; and would not preempt Tribal laws. The planning 
regulations contain requirements for States to consult with Indian 
Tribal governments in the planning process. Tribes are required under 
25 CFR 170 to develop long range plans and develop an Indian 
Reservation Roads (IRR) TIP for programming IRR projects. However, the 
requirements in 25 CFR part 170 would not be changed by this 
rulemaking. Therefore, a Tribal summary impact statement is not 
required.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use dated May 18, 2001. We have determined that it is 
not a significant energy action under that order because although it is 
a significant regulatory action under Executive Order 12866, it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects is not required.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898 requires that each Federal agency make 
achieving environmental justice part of its mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of its programs, policies, and 
activities on minorities and low-income populations. The FHWA and the 
FTA also believe that the requirements of Title VI of the Civil Rights 
Act of 1964 (42 U.S.C. 2000d et seq.) apply to this proposed rule. The 
FHWA and the FTA have preliminarily determined that this proposed rule 
does not raise any environmental justice issues. The agencies request 
comment on this assessment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects

23 CFR Parts 450 and 500

    Grant programs--transportation, Highway and roads, Mass 
transportation, Reporting and recordkeeping requirements.

49 CFR Part 613

    Grant programs--transportation, Highways and roads, Mass 
transportation, Reporting and recordkeeping requirements.

    In consideration of the foregoing, the FHWA and the FTA propose to 
revise title 23, Code of Federal Regulations, parts 450 and 500 and 
title 49, Code of Federal Regulations, part 613 as set forth below:

Title 23--Highways

    1. Revise part 450 to read as follows:

PART 450--PLANNING ASSISTANCE AND STANDARDS

Subpart A--Transportation Planning and Programming Definitions
Sec.
450.100 Purpose.
450.102 Applicability.
450.104 Definitions.
Subpart B--Statewide Transportation Planning and Programming
450.200 Purpose.
450.202 Applicability.
450.204 Definitions.
450.206 Scope of the statewide transportation planning process.
450.208 Coordination of planning process activities.
450.210 Interested parties, public involvement, and consultation.
450.212 Transportation planning studies and project development.
450.214 Development and content of the long-range statewide 
transportation plan.
450.216 Development and content of the statewide transportation 
improvement program (STIP).
450.218 Self-certifications, Federal findings, and Federal 
approvals.
450.220 Project selection from the STIP.
450.222 Applicability of NEPA to statewide transportation plans and 
programs.
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 Scope of the metropolitan transportation planning process.
450.308 Funding for transportation planning and unified planning 
work programs.
450.310 Metropolitan planning organization designation and 
redesignation.
450.312 Metropolitan planning area boundaries.
450.314 Metropolitan planning agreements.
450.316 Interested parties, participation, and consultation.

[[Page 33533]]

450.318 Transportation planning studies and project development.
450.320 Congestion management process in transportation management 
areas.
450.322 Development and content of the metropolitan transportation 
plan.
450.324 Development and content of the transportation improvement 
program (TIP).
450.326 TIP revisions and relationship to the STIP.
450.328 TIP action by the FHWA and the FTA.
450.330 Project selection from the TIP.
450.332 Annual listing of obligated projects.
450.334 Self-certifications and Federal certifications.
450.336 Applicability of NEPA to metropolitan transportation plans 
and programs.
450.338 Phase-in of new requirements.
Appendix A to part 450--Linking the transportation planning and NEPA 
processes.
Appendix B to part 450--Fiscal constraint of transportation plans 
and programs.

    Authority: 23 U.S.C. 134-135; 42 U.S.C. 7410 et seq.; 49 U.S.C. 
5303-5304; 49 CFR 1.48 and 1.51.

Subpart A--Transportation Planning and Programming Definitions


Sec.  450.100  Purpose.

    The purpose of this subpart is to provide definitions for terms 
used in this part.


Sec.  450.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.


Sec.  450.104  Definitions.

    Unless otherwise specified, the definitions in 23 U.S.C. 101(a) and 
49 U.S.C. 5302 are applicable to this part.
    Administrative modification means a revision to a long-range 
statewide or metropolitan transportation plan, TIP, or STIP that is not 
significant enough to require public review and comment, 
redemonstration of fiscal constraint, or a conformity determination (in 
nonattainment and maintenance areas). Examples of administrative 
modifications include minor changes in the cost or initiation date of 
included projects.
    Alternatives analysis (AA) means a study required for eligibility 
of funding under the Federal Transit Administration's (FTA's) Capital 
Investment Grant program (49 U.S.C. 5309), which includes an assessment 
of a range of alternatives designed to address a transportation problem 
in a corridor or subarea, resulting in sufficient information to 
support selection by State and local officials of a locally preferred 
alternative for adoption into a metropolitan transportation plan, and 
for the Secretary to make decisions to advance the locally preferred 
alternative through the project development process, as set forth in 49 
CFR part 611 (Major Capital Investment Projects).
    Amendment means a revision to a long-range statewide or 
metropolitan transportation plan, TIP, or STIP that is significant 
enough to require public review and comment, redemonstration of fiscal 
constraint, and/or a conformity determination (in nonattainment and 
maintenance areas). Examples of amendments include the addition or 
deletion of a regionally significant project, or a substantial change 
in the cost, design concept, or design scope of an included project.
    Attainment area means any geographic area considered to have air 
quality that meets or exceeds the U. S. Environmental Protection 
Agency's (EPA's) health standards in the Clean Air Act, as amended (42 
U.S.C. 7401 et seq.). An area may be an attainment area for one 
pollutant and a nonattainment area for others. A ``maintenance area'' 
(see definition below) is not considered an attainment area for 
transportation planning purposes.
    Available funds means, for projects or project phases in the first 
two years of the metropolitan Transportation Improvement Program (TIP) 
and/or Statewide Transportation Improvement Program (STIP) in air 
quality nonattainment and maintenance areas, funds derived from an 
existing source dedicated to or historically used for transportation 
purposes. For Federal funds, authorized and/or appropriated funds and 
the extrapolation of formula and discretionary funds at historic rates 
of increase are considered ``available.'' A similar approach may be 
used for State and local funds that are dedicated to or historically 
used for transportation purposes.
    Committed funds means, for projects or project phases in the first 
two years of a TIP and/or STIP in air quality nonattainment and 
maintenance areas, funds that have been dedicated or obligated for 
transportation purposes. For State funds that are not dedicated to 
transportation purposes, only those funds over which the Governor has 
control may be considered ``committed.'' Approval of a TIP by the 
Governor is considered a commitment of those funds over which the 
Governor has control. For local or private sources of funds not 
dedicated to or historically used for transportation purposes 
(including donations of property), a commitment in writing (e.g., 
letter of intent) by the responsible official or body having control of 
the funds may be considered a commitment.
    Conformity means the process to assess the compliance of a 
transportation plan, program, or project with the State Implementation 
Plan (SIP) for air quality. The conformity process is defined in the 
Clean Air Act, as amended (42 U.S.C. 7401 et seq.) and governed by the 
EPA under its transportation conformity rule (40 CFR part 93).
    Conformity lapse means, pursuant to section 176(c) of the Clean Air 
Act (42 U.S.C. 7506(c)), as amended, that the conformity determination 
for a metropolitan transportation plan or TIP has expired and thus 
there is no currently conforming metropolitan transportation plan or 
TIP.
    Congestion management process means a systematic approach required 
in transportation management areas (TMAs) that provides for effective 
management and operation, based on a cooperatively developed and 
implemented metropolitan-wide strategy, of new and existing 
transportation facilities eligible for funding under title 23, U.S.C., 
and title 49, U.S.C., through the use of operational management 
strategies.
    Consideration means that one or more parties takes into account the 
opinions, action, and relevant information from other parties in making 
a decision or determining a course of action.
    Consultation means that one or more parties confer with other 
identified parties in accordance with an established process and, prior 
to taking action(s), considers the views of the other parties and 
periodically informs them about action(s) taken.
    Cooperation means that the parties involved in carrying out the 
transportation planning and programming processes work together to 
achieve a common goal or objective.
    Coordinated public transit-human services transportation plan means 
a unified, comprehensive strategy for transit service delivery 
developed by public, private, and non-profit providers of 
transportation and human services, with participation by the public, 
including people with disabilities, older adults, and individuals with 
lower incomes, in order to minimize duplication and maximize collective 
coverage. The plan is a requirement under the FTA formula programs for 
the Elderly and Persons with Disabilities (49 U.S.C. 5310), Job Access 
and Reverse Commute (49 U.S.C. 5316), and New Freedom (49 U.S.C. 5317), 
but may include other Federal, State, or local programs.

[[Page 33534]]

    Coordination means the cooperative development of plans, programs, 
and schedules among agencies and entities with legal standing and 
adjustment of such plans, programs, and schedules to achieve general 
consistency, as appropriate.
    Design concept means the type of facility identified for a 
transportation improvement project (e.g., freeway, expressway, arterial 
highway, grade-separated highway, toll road, reserved right-of-way rail 
transit, mixed-traffic rail transit, or exclusive busway).
    Design scope means the aspects that will affect the proposed 
facility's impact on the region, usually as they relate to vehicle or 
person carrying capacity and control (e.g., number of lanes or tracks 
to be constructed or added, length of project, signalization, safety 
features, access control including approximate number and location of 
interchanges, or preferential treatment for high-occupancy vehicles).
    Environmental mitigation activities means strategies, policies, 
programs, actions, and activities that, over time, will serve to avoid, 
minimize, rectify, reduce, or compensate for (by replacing or providing 
substitute resources) the impacts to or disruption of elements of the 
human and natural environment associated with the implementation of a 
long-range statewide transportation plan or metropolitan transportation 
plan. The human and natural environment includes, for example, 
neighborhoods and communities, homes and businesses, cultural 
resources, parks and recreation areas, wetlands and water sources, 
forested and other natural areas, agricultural areas, endangered and 
threatened species, and the ambient air. The environmental mitigation 
strategies and activities are intended to be regional in scope, even 
though the mitigation may address potential project-level impacts. The 
environmental mitigation strategies and activities must be developed in 
consultation with Federal, State, and Tribal wildlife, land management, 
and regulatory agencies during the statewide and metropolitan 
transportation planning processes and be reflected in all adopted 
transportation plans.
    Federal land management agency means units of Federal Government 
currently responsible for the administration of public lands (e.g., 
U.S. Forest Service, U.S. Fish and Wildlife Service, Bureau of Land 
Management, and the National Park Service).
    Federally funded non-emergency transportation services means 
transportation services provided to the general public, including those 
with special transport needs, by public transit, private non-profit 
service providers, and private third-party contractors to public 
agencies.
    Financially constrained or Fiscal Constraint means that each 
program year in the TIP and the STIP includes sufficient financial 
information for demonstrating that projects can be implemented using 
current and/or reasonably available revenues, by source, while the 
entire transportation system is being adequately operated and 
maintained. Additionally, projects in air quality nonattainment and 
maintenance areas can be included in the first two years of the TIP and 
STIP only if funds are ``available or committed.''
    Financial plans means documentation required to be included with 
metropolitan transportation plans, TIPs, and STIPs that demonstrates 
the consistency between reasonable available and projected sources of 
Federal, State, local, and private revenues and the costs of 
implementing proposed transportation system improvements, as well as 
operating and maintaining the entire transportation system.
    Freight shippers means any business that routinely transports its 
products from one location to another by providers of freight 
transportation services or by its own vehicle fleet.
    Governor means the Governor of any of the 50 States or the 
Commonwealth of Puerto Rico or the Mayor of the District of Columbia.
    Illustrative project means a transportation project that would be 
included in a metropolitan transportation plan, TIP, or STIP for which 
financial constraint had been demonstrated if reasonable additional 
resources beyond those identified in the financial plan were available.
    Indian Tribal government means a duly formed governing body for an 
Indian or Alaska Native tribe, band, nation, pueblo, village, or 
community that the Secretary of the Interior acknowledges to exist as 
an Indian Tribe pursuant to the Federally Recognized Indian Tribe List 
Act of 1994, Public Law 103-454.
    Intelligent transportation system (ITS) means electronics, 
photonics, communications, or information processing used singly or in 
combination to improve the efficiency or safety of a surface 
transportation system.
    Interim metropolitan transportation plan means a transportation 
plan composed of projects eligible to proceed under a conformity lapse 
and otherwise meeting all other applicable provisions of this part, 
including approval by the MPO.
    Interim transportation improvement program (TIP) means a TIP 
composed of projects eligible to proceed under a conformity lapse and 
otherwise meeting all other applicable provisions of this part, 
including approval by the MPO and the Governor.
    Long-range statewide transportation plan means the official, 
statewide, multimodal, transportation plan covering a period of no less 
than 20 years developed through the statewide transportation planning 
process.
    Maintenance area means any geographic region of the United States 
that the EPA previously designated as a nonattainment area for one or 
more pollutants pursuant to the Clean Air Act Amendments of 1990, and 
subsequently redesignated as an attainment area subject to the 
requirement to develop a maintenance plan under section 175(a) of the 
Clean Air Act, as amended.
    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 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 determined by 
agreement between the metropolitan planning organization (MPO) for the 
area and the Governor, in which the metropolitan transportation 
planning process is carried out.
    Metropolitan planning organization (MPO) means the policy board of 
an organization created and designated to carry out the metropolitan 
transportation planning process.
    Metropolitan transportation plan means the official multimodal 
transportation plan covering a period of no less than 20 years that is 
developed, adopted, and updated by the MPO through the metropolitan 
transportation planning process.
    National ambient air quality standard (NAAQS) means those standards 
established pursuant to section 109 of the Clean Air Act.
    Nonattainment area means any geographic region of the United States 
that has been designated by the EPA as a nonattainment area under 
section 107 of the Clean Air Act for any pollutants for which a NAAQS 
exists.
    Non-metropolitan area means a geographic area outside designated 
metropolitan planning areas.

[[Page 33535]]

    Non-metropolitan local officials means elected and appointed 
officials of general purpose local government in a non-metropolitan 
area with responsibility for transportation.
    Obligated projects means strategies and projects funded under title 
23, U.S.C., and title 49, U.S.C., Chapter 53 for which the supporting 
Federal funds were authorized and committed by the State or designated 
recipient in the preceding program year.
    Operational and management strategies means actions and strategies 
aimed at improving the performance of existing and planned 
transportation facilities to relieve vehicular congestion and 
maximizing the safety and mobility of people and goods.
    Project selection means the procedures followed to advance projects 
from the first four years of an approved TIP and/or STIP to 
implementation, in accordance with agreed upon procedures.
    Provider of freight transportation services means any business that 
transports or otherwise facilitates the movement of goods from one 
location to another for other businesses or for itself.
    Regional ITS architecture means a regional framework for ensuring 
institutional agreement and technical integration for the 
implementation of ITS projects or groups of projects.
    Regionally significant project means a transportation project 
(other than projects that may be grouped in the STIP or TIP pursuant to 
Sec.  450.216 and Sec.  450.324 or exempt projects as defined in EPA's 
transportation conformity regulation (40 CFR part 93) that is on a 
facility which serves regional transportation needs (such as access to 
and from the area outside the region; major activity centers in the 
region, major planned developments such as new retail malls, sports 
complexes, or employment centers; or transportation terminals) and 
would normally be included in the modeling of the metropolitan area's 
transportation network . At a minimum, this includes all capacity 
expanding projects on principal arterial highways and all fixed 
guideway transit facilities that offer a significant alternative to 
regional highway travel.
    Regional transit security strategy means an overarching strategy 
for the region with mode-specific goals and objectives as they relate 
to prevention, detection, response, and recovery as a sustainable 
effort to protect regional transit systems' critical infrastructure 
from terrorism, with an emphasis on explosives and non-conventional 
threats that would cause major loss of life and severe disruption, as 
required by the Department of Homeland Security.
    Revision means a change to a long-range statewide or metropolitan 
transportation plan, TIP, or STIP that occurs between scheduled 
periodic updates. A revision may or may not be significant. A 
significant revision is defined as an ``amendment,'' while a non-
significant revision is defined as an ``administrative modification.''
    State means any one of the fifty states, the District of Columbia, 
or Puerto Rico.
    State implementation plan (SIP) means an EPA--approved, State 
developed plan mandated by the Clean Air Act for air quality 
nonattainment areas that contains procedures to monitor, control, 
attain, maintain, and enforce compliance with the NAAQS.
    Statewide transportation improvement program (STIP) means a 
statewide staged, at least four-year, multi-year program of 
transportation projects that is consistent with the long-range 
statewide transportation plan, metropolitan transportation plans, and 
TIPs, and required for projects to be eligible for funding under 23 
U.S.C. and 49 U.S.C. Chapter 53.
    Strategic highway safety plan means a plan developed by the State 
DOT in accordance with the requirements of 23 U.S.C. 148(a)(6).
    Transportation control measure (TCM) means any measure that is 
specifically identified and committed to in the applicable SIP that is 
either one of the types listed in section 108 of the Clean Air Act or 
any other measure for the purpose of reducing emissions or 
concentrations of air pollutants from transportation sources by 
reducing vehicle use or changing traffic flow or congestion conditions. 
Notwithstanding the above, vehicle technology-based, fuel-based, and 
maintenance-based measures that control the emissions from vehicles 
under fixed traffic conditions are not TCMs.
    Transportation improvement program (TIP) means a staged, at least 
four-year, multi-year program of projects developed and formally 
adopted by an MPO as part of the metropolitan transportation planning 
process that is consistent with the metropolitan transportation plan, 
and required for projects to be eligible for funding under 23 U.S.C. 
and 49 U.S.C. Chapter 53.
    Transportation management area (TMA) means an urbanized area with a 
population over 200,000, as defined by the Bureau of the Census and 
designated by the Secretary of Transportation, or any additional area 
where TMA designation is requested by the Governor and the MPO and 
designated by the Secretary of Transportation.
    Unified planning work program (UPWP) means a statement of work 
identifying the planning priorities and activities to be carried out 
within a metropolitan planning area. At a minimum, a UPWP includes a 
description of the planning work and resulting products, who will 
perform the work, time frames for completing the work, the cost of the 
work, and the source(s) of funds.
    Update means a complete change to a long-range statewide or 
metropolitan transportation plan, TIP, or STIP in order to meet the 
regular schedule as prescribed by Federal statute. Updates always 
require public review and comment, demonstration of fiscal constraint 
(except for long-range statewide transportation plans), and a 
conformity determination (in nonattainment and maintenance areas).
    Urbanized area means a geographic area with a population of 50,000 
or more, as designated by the Bureau of the Census.
    Users of public transportation means any person, or groups 
representing such persons, who use transportation open to the general 
public, other than taxis and other privately funded and operated 
vehicles.
    Visualization techniques means methods employed by States and MPOs 
in the development of transportation plans and programs with the 
public, elected and appointed officials, and other stakeholders in a 
clear and easily accessible format such as maps, pictures, and/or 
displays, to promote improved understanding of existing or proposed 
transportation plans and programs.

Subpart B--Statewide Transportation Planning and Programming


Sec.  450.200  Purpose.

    The purpose of this subpart is to implement the provisions of 23 
U.S.C. 135 and 49 U.S.C. 5304, as amended, which require each State to 
carry out a continuing, cooperative, and comprehensive statewide 
multimodal transportation planning process, including the development 
of a long-range statewide transportation plan and statewide 
transportation improvement program (STIP), that facilitates the safe 
and efficient management, operation, and development of surface 
transportation systems that will serve the mobility needs of people and 
freight (including accessible pedestrian walkways and bicycle 
transportation facilities) and that fosters economic growth and 
development within and between States and urbanized areas, while 
minimizing transportation-related

[[Page 33536]]

fuel consumption and air pollution in all areas of the State, including 
those areas subject to the metropolitan transportation planning 
requirements of 23 U.S.C. 134 and 49 U.S.C. 5303.


Sec.  450.202  Applicability.

    The provisions of this subpart are applicable to States and any 
other organizations or entities (e.g., metropolitan planning 
organizations (MPOs) and public transportation operators) that are 
responsible for satisfying the requirements for transportation plans 
and programs throughout the State pursuant to 23 U.S.C. 135 and 49 
U.S.C. 5304.


Sec.  450.204  Definitions.

    Except as otherwise provided in subpart A of this part, terms 
defined in 23 U.S.C. 101(a) and 49 U.S.C. 5302 are used in this subpart 
as so defined.


Sec.  450.206  Scope of the statewide transportation planning process.

    (a) Each State shall carry out a continuing, cooperative, and 
comprehensive statewide transportation planning process that provides 
for consideration and implementation of projects, strategies, and 
services that will address the following factors:
    (1) Support the economic vitality of the United States, the States, 
metropolitan areas, and non-metropolitan areas, especially by enabling 
global competitiveness, productivity, and efficiency;
    (2) Increase the safety of the transportation system for all 
motorized and non-motorized users;
    (3) Increase the ability of the transportation system to support 
homeland security and to safeguard the personal security of all 
motorized and non-motorized users;
    (4) Increase accessibility and mobility of people and freight;
    (5) Protect and enhance the environment, promote energy 
conservation, improve the quality of life, and promote consistency 
between transportation improvements and State and local planned growth 
and economic development patterns;
    (6) Enhance the integration and connectivity of the transportation 
system, across and between modes throughout the State, for people and 
freight;
    (7) Promote efficient system management and operation; and
    (8) Emphasize the preservation of the existing transportation 
system.
    (b) Consideration of the planning factors in paragraph (a) of this 
section shall be reflected, as appropriate, in all aspects of the 
statewide transportation planning process, including activities such as 
the formulation of goals, objectives, performance measures, and 
evaluation criteria for use in developing the long-range statewide 
transportation plan; identification of prioritization criteria for 
projects and strategies reflected in the STIP; and development of 
short-range planning studies, strategic planning and/or policy studies, 
or transportation needs studies.
    (c) The failure to consider any factor specified in paragraph (a) 
of this section shall not be reviewable by any court in any matter 
affecting a long-range statewide transportation plan, STIP, project or 
strategy, or the FHWA/FTA planning process findings.
    (d) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are 
available to the State to accomplish activities in this subpart. At the 
State's option, funds provided under 23 U.S.C. 104(b)(1) and (3) and 
105 and 49 U.S.C. 5307 may also be used. Statewide transportation 
planning activities performed with funds provided under title 23, 
U.S.C., and 49 U.S.C., Chapter 53 shall be documented in a statewide 
planning work program in accordance with the provisions of 23 CFR part 
420. The work program should include a discussion of the transportation 
planning priorities facing the State.


Sec.  450.208  Coordination of planning process activities.

    (a) In carrying out the statewide transportation planning process, 
each State shall:
    (1) Coordinate planning carried out under this subpart with the 
metropolitan transportation planning activities carried out under 
subpart C of this part for metropolitan areas of the State. The State 
is encouraged to rely on information, studies, or analyses provided by 
MPOs for portions of the transportation system located in metropolitan 
planning areas;
    (2) Coordinate planning carried out under this subpart with 
statewide trade and economic development planning activities and 
related multistate planning efforts;
    (3) Coordinate planning carried out under this subpart with 
planning by Federal land management agencies that have jurisdiction 
over land within the boundaries of the State;
    (4) Consider the concerns of local elected and appointed officials 
with responsibilities for transportation in non-metropolitan areas;
    (5) Consider the concerns of Indian Tribal governments that have 
jurisdiction over land within the boundaries of the State;
    (6) Coordinate transportation plans, programs, and planning 
activities with related planning activities being conducted outside of 
metropolitan planning areas and between States; and
    (7) Establish a forum for coordinating data collection and analyses 
to support statewide transportation planning and programming priorities 
and decisions.
    (b) The State air quality agency shall coordinate with the State 
department of transportation (State DOT) to develop the transportation 
portion of the State Implementation Plan (SIP) consistent with the 
Clean Air Act (42 U.S.C. 7401 et seq.).
    (c) Two or more States may enter into agreements or compacts, not 
in conflict with any law of the United States, for cooperative efforts 
and mutual assistance in support of activities under this subpart 
related to interstate areas and localities in the States and 
establishing authorities the States consider desirable for making the 
agreements and compacts effective. However, the U. S. Congress reserves 
the right to alter, amend, or repeal interstate compacts entered into 
under this part.
    (d) States may use any one or more of the management systems (in 
whole or in part) described in 23 CFR part 500.
    (e) States are encouraged to apply asset management principles and 
techniques in establishing planning goals, defining STIP priorities, 
and assessing transportation investment decisions, including 
transportation system safety, operations, preservation, and 
maintenance.
    (f) The statewide transportation planning process shall be 
consistent with the development of applicable regional intelligent 
transportation systems (ITS) architectures, as defined in 23 CFR part 
940.
    (g) The statewide transportation planning process should be 
consistent with the development of Coordinated Public Transit-Human 
Services Transportation Plans, as required by 49 U.S.C. 5310, 5316, and 
5317.
    (h) The statewide transportation planning process should be 
consistent with the Strategic Highway Safety Plan, as specified in 23 
U.S.C. 148, and the Regional Transit Security Strategy as required by 
the Department of Homeland Security.


Sec.  450.210  Interested parties, public involvement, and 
consultation.

    (a) In carrying out the statewide transportation planning process, 
including development of the long-range statewide transportation plan 
and the STIP, the State shall develop and use a documented public 
involvement

[[Page 33537]]

process that provides opportunities for public review and comment at 
key decision points.
    (1) The State's public involvement process at a minimum shall:
    (i) Establish early and continuous public involvement opportunities 
that provide timely information about transportation issues and 
decisionmaking processes to citizens, affected public agencies, 
representatives of public transportation employees, freight shippers, 
private providers of transportation, representatives of users of public 
transportation, representatives of users of pedestrian walkways and 
bicycle transportation facilities, representatives of the disabled, 
providers of freight transportation services, and other interested 
parties;
    (ii) Provide reasonable public access to technical and policy 
information used in the development of the long-range statewide 
transportation plan and the STIP;
    (iii) Provide adequate public notice of public involvement 
activities and time for public review and comment at key decision 
points, including but not limited to a reasonable opportunity to 
comment on the proposed long-range statewide transportation plan and 
STIP;
    (iv) To the maximum extent practicable, ensure that public meetings 
are held at convenient and accessible locations and times;
    (v) To the maximum extent practicable, use visualization techniques 
to describe the proposed long-range statewide transportation plan and 
supporting studies;
    (vi) To the maximum extent practicable, make public information 
available in electronically accessible format and means, such as the 
World Wide Web, as appropriate to afford reasonable opportunity for 
consideration of public information;
    (vii) Demonstrate explicit consideration and response to public 
input during the development of the long-range statewide transportation 
plan and STIP;
    (viii) Include a process for seeking out and considering the needs 
of those traditionally underserved by existing transportation systems, 
such as low-income and minority households, who may face challenges 
accessing employment and other services; and
    (ix) Provide for the periodic review of the effectiveness of the 
public involvement process to ensure that the process provides full and 
open access to all interested parties and revise the process, as 
appropriate.
    (2) The State shall provide for public comment on existing and 
proposed processes for public involvement in the development of the 
long-range statewide transportation plan and the STIP. At a minimum, 
the State shall allow 45 calendar days for public review and written 
comment before the procedures and any major revisions to existing 
procedures are adopted. The State shall provide copies of the approved 
public involvement process document(s) to the FHWA and the FTA for 
informational purposes.
    (b) The State shall provide for non-metropolitan local official 
participation in the development of the long-range statewide 
transportation plan and the STIP. The State shall have a documented 
process(es) for consulting with non-metropolitan local officials 
representing units of general purpose local government and/or local 
officials with responsibility for transportation that is separate and 
discrete from the public involvement process and provides an 
opportunity for their participation in the development of the long-
range statewide transportation plan and the STIP. Although the FHWA and 
the FTA shall not review or approve this consultation process(es), 
copies of the process document(s) shall be provided to the FHWA and the 
FTA for informational purposes.
    (1) At least once every five years (as of February 24, 2006), the 
State shall review and solicit comments from non-metropolitan local 
officials and other interested parties for a period of not less than 60 
calendar days regarding the effectiveness of the consultation process 
and any proposed revisions. 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.
    (2) The State, at its discretion, shall be responsible for 
determining whether to adopt any proposed revisions. If a proposed 
revision is not adopted, the State shall make publicly available its 
reasons for not accepting the proposed revision, including notification 
to non-metropolitan local officials or their associations.
    (c) For each area of the State under the jurisdiction of an Indian 
Tribal government, the State shall develop the long-range statewide 
transportation plan and STIP in consultation with the Tribal government 
and the Secretary of Interior. States are encouraged to develop a 
documented process(es) that outlines roles, responsibilities, and key 
decision points for consulting with Indian Tribal governments and 
Federal land management agencies in the development of the long-range 
statewide transportation plan and the STIP.


Sec.  450.212  Transportation planning studies and project development.

    (a) An MPO(s), State(s), and/or public transportation operator(s) 
may undertake a corridor or subarea planning study as part of the 
statewide transportation planning process. The results of these 
transportation planning studies may be incorporated into the overall 
project development process to the extent that they meet the 
requirements of the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.) and associated implementing regulations (23 
CFR part 771 and 40 CFR parts 1500-1508). Specifically, these corridor 
or subarea studies maybe used to produce any of the following for a 
proposed transportation project:
    (1) Purpose and need or goals and objective statement(s);
    (2) General travel corridor and/or general mode(s) definition 
(i.e., highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Description of the affected environment; and/or
    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents produced by, or in support of, the 
transportation planning process described in this subpart may be 
incorporated by reference into subsequent NEPA documents, in accordance 
with 40 CFR 1502.21, to the extent that:
    (1) The NEPA lead agencies agree that such incorporation will aid 
in establishing or evaluating the purpose and need for the Federal 
action, reasonable alternatives, cumulative or other impacts on the 
human and natural environment, or mitigation of these impacts; and
    (2) The corridor or subarea planning study is conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Continual opportunity to comment during the metropolitan 
transportation planning process and development of the corridor or 
subarea planning study;
    (iv) Documentation of relevant decisions in a form that is 
identifiable and available for review during the NEPA scoping process 
and can be appended to or referenced in the NEPA document; and
    (v) The review of the FHWA and the FTA, as appropriate.

[[Page 33538]]

    (c) By agreement of the NEPA lead agencies, the above integration 
may be accomplished through incorporating the subarea or corridor 
planning study into the draft Environmental Impact Statement or 
Environmental Assessment and other means of incorporation by reference 
that the NEPA lead agencies deem appropriate. Additional details on 
linkages between the transportation planning and project development/
NEPA processes is contained in Appendix A to this part.


Sec.  450.214  Development and content of the long-range statewide 
transportation plan.

    (a) The State shall develop a long-range statewide transportation 
plan, with a minimum 20-year forecast period, that provides for the 
development and implementation of the multimodal transportation system 
for the State. The long-range statewide transportation plan shall 
consider and include, as applicable, elements and connections between 
public transportation, non-motorized modes, rail, commercial motor 
vehicle, waterway, and aviation facilities, particularly with respect 
to intercity travel.
    (b) The long-range statewide transportation plan should include 
capital, operations and management strategies, investments, procedures, 
and other measures to ensure the preservation and most efficient use of 
the existing transportation system.
    (c) The long-range statewide transportation plan shall reference, 
summarize, or contain any applicable short-range planning studies; 
strategic planning and/or policy studies; transportation needs studies; 
management systems reports; emergency relief and disaster preparedness 
plans; and any statements of policies, goals, and objectives on issues 
(e.g., transportation, safety, economic development, social and 
environmental effects, or energy) that were relevant to the development 
of the long-range statewide transportation plan.
    (d) The long-range statewide transportation plan should include a 
safety element that incorporates or summarizes the priorities, goals, 
countermeasures, or projects contained in the Strategic Highway Safety 
Plan required by 23 U.S.C. 148.
    (e) The long-range statewide transportation plan should include a 
security element that incorporates or summarizes the priorities, goals, 
or projects set forth in the Regional Transit Security Strategy(ies), 
as required by the Department of Homeland Security.
    (f) Within each metropolitan area of the State, the long-range 
statewide transportation plan shall be developed in cooperation with 
the affected MPOs.
    (g) For non-metropolitan areas, the long-range statewide 
transportation plan shall be developed in consultation with affected 
non-metropolitan officials with responsibility for transportation using 
the State's consultation process(es) established under Sec.  
450.210(b).
    (h) For each area of the State under the jurisdiction of an Indian 
Tribal government, the long-range statewide transportation plan shall 
be developed in consultation with the Tribal government and the 
Secretary of the Interior consistent with Sec.  450.210(c).
    (i) The long-range statewide transportation plan shall be 
developed, as appropriate, in consultation with State, Tribal, and 
local agencies responsible for land use management, natural resources, 
environmental protection, conservation, and historic preservation. This 
consultation shall involve comparison of transportation plans to State 
and Tribal conservation plans or maps, if available, and comparison of 
transportation plans to inventories of natural or historic resources, 
if available.
    (j) A long-range statewide transportation plan shall include a 
discussion of potential environmental mitigation activities and 
potential areas to carry out these activities, including activities 
that may have the greatest potential to restore and maintain the 
environmental functions affected by implementation of the plan. The 
discussion shall be developed in consultation with Federal, State, and 
Tribal land management, wildlife, and regulatory agencies. The State 
may establish reasonable timeframes for performing this consultation. 
Additional information on linkages between the transportation planning 
and project development/NEPA processes is contained in Appendix A to 
this part.
    (k) In developing and updating the long-range statewide 
transportation plan, the State shall provide citizens, affected public 
agencies, representatives of public transportation employees, freight 
shippers, private providers of transportation, representatives of users 
of public transportation, representatives of users of pedestrian 
walkways and bicycle transportation facilities, representatives of the 
disabled, providers of freight transportation services, and other 
interested parties with a reasonable opportunity to comment on the 
proposed long-range statewide transportation plan. In carrying out 
these requirements, the State shall, to the maximum extent practicable, 
utilize the public involvement process described under Sec.  
450.210(a).
    (l) The long-range statewide transportation plan may include a 
financial plan that demonstrates how the adopted long-range statewide 
transportation plan can be implemented, indicates resources from public 
and private sources that are reasonably expected to be made available 
to carry out the plan, and recommends any additional financing 
strategies for needed projects and programs. The financial plan may 
include, for illustrative purposes, additional projects that would be 
included in the adopted long-range statewide transportation plan if 
additional resources beyond those identified in the financial plan were 
available.
    (m) The State shall not be required to select any project from the 
illustrative list of additional projects included in the financial plan 
described in paragraph (k) of this section.
    (n) The long-range statewide transportation plan shall be published 
or otherwise made available, including (to the maximum extent 
practicable) in electronically accessible formats and means, such as 
the World Wide Web, as described in Sec.  450.210(a).
    (o) The State shall continually evaluate, revise, and periodically 
update the long-range statewide transportation plan, as appropriate, 
using the procedures in this section for development and establishment 
of the long-range statewide transportation plan.
    (p) Copies of any new or revised long-range statewide 
transportation plan documents shall be provided to the FHWA and the FTA 
for informational purposes.


Sec.  450.216  Development and content of the statewide transportation 
improvement program (STIP).

    (a) The State shall develop a statewide transportation improvement 
program (STIP) for all areas of the State. The STIP shall cover a 
period of not less than four years and be updated at least every four 
years, or more frequently if the Governor elects a more frequent update 
cycle. If the STIP covers more than four years, the FHWA and the FTA 
will consider the projects in the additional years as informational. In 
case of difficulties developing a portion of the STIP for a particular 
area (e.g., metropolitan planning area, nonattainment or maintenance 
area, or Indian Tribal lands), a partial STIP covering the rest of the 
State may be developed.

[[Page 33539]]

    (b) For each metropolitan area in the State, the STIP shall be 
developed in cooperation with the MPO designated for the metropolitan 
area. Each metropolitan transportation improvement program (TIP) shall 
be included without change in the STIP, directly or by reference, after 
approval of the TIP by the MPO and the Governor. A metropolitan TIP in 
a nonattainment or maintenance area is subject to an FHWA/FTA 
conformity finding before inclusion in the STIP. In areas outside a 
metropolitan planning area but within an air quality nonattainment or 
maintenance area containing any part of a metropolitan area, projects 
must be consistent with the regional emissions analysis that supported 
the conformity determination of the associated metropolitan TIP.
    (c) For each non-metropolitan area in the State, the STIP shall be 
developed in consultation with affected non-metropolitan local 
officials with responsibility for transportation using the State's 
consultation process(es) established under Sec.  450.210.
    (d) For each area of the State under the jurisdiction of an Indian 
Tribal government, the STIP shall be developed in consultation with the 
Tribal government and the Secretary of the Interior.
    (e) Federal Lands Highway program TIPs shall be included without 
change in the STIP, directly or by reference, once approved by the FHWA 
pursuant to 23 U.S.C. 204(a) or (j).
    (f) The Governor shall provide all interested parties with a 
reasonable opportunity to comment on the proposed STIP as required by 
Sec.  450.210(a).
    (g) The STIP shall include federally supported capital and non-
capital surface transportation projects (or phases of projects) within 
the boundaries of the State proposed for funding under title 23, 
U.S.C., and title 49, U.S.C., Chapter 53 (including transportation 
enhancements; Federal Lands Highway program projects; safety projects 
included in the State's Strategic Highway Safety Plan; trails projects; 
pedestrian walkways; and bicycle facilities), but excluding:
    (1) Safety projects funded under 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(f), 
49 U.S.C. 5305(d), and 49 U.S.C. 5339;
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) At the State's discretion, State planning and research projects 
funded with National Highway System, Surface Transportation Program, 
and/or Equity Bonus funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) National planning and research projects funded under 49 U.S.C. 
5314; and
    (7) Project management oversight projects funded under 49 U.S.C. 
5327.
    (h) The STIP shall contain all regionally significant projects 
requiring an action by the FHWA or the FTA whether or not the projects 
are to be funded with 23 U.S.C., Chapters 1 and 2 or title 49, U.S.C., 
Chapter 53 funds (e.g., addition of an interchange to the Interstate 
System with State, local, and/or private funds, and congressionally 
designated projects not funded under title 23, U.S.C., or title 49, 
U.S.C., Chapter 53). For informational purposes, the STIP should 
include all regionally significant projects proposed to be funded with 
Federal funds other than those administered by the FHWA or the FTA. In 
addition, the STIP should include, for informational purposes (if 
appropriate and included in any TIPs), all regionally significant 
projects to be funded with non-Federal funds.
    (i) The STIP shall include for each project or phase (e.g., 
preliminary engineering, environment/NEPA, right-of-way, design, or 
construction) the following:
    (1) Sufficient descriptive material (i.e., type of work, termini, 
and length) to identify the project or phase;
    (2) Estimated total project cost, or a project cost range, which 
may extend beyond the four years of the STIP;
    (3) The amount of funds proposed to be obligated during each 
program year for the project or phase, by sources of Federal and non-
Federal funds; and
    (4) Identification of the agencies responsible for carrying out the 
project or phase.
    (j) 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 93. 
In nonattainment and maintenance areas, classifications must be 
consistent with the ``exempt project'' classifications contained in the 
EPA's transportation conformity regulation (40 CFR part 93). In 
addition, projects proposed for funding under title 23, U.S.C., Chapter 
2 that are not regionally significant may be grouped in one line item 
or identified individually in the STIP.
    (k) Each project or project phase included in the STIP shall be 
consistent with the long-range statewide transportation plan developed 
under Sec.  450.214 and, in metropolitan planning areas, consistent 
with an approved metropolitan transportation plan developed under Sec.  
450.322.
    (l) The STIP may include a financial plan that demonstrates how the 
approved STIP can be implemented, indicates resources from public and 
private sources that are reasonably expected to be made available to 
carry out the STIP, and recommends any additional financing strategies 
for needed projects and programs. The financial plan may include, for 
illustrative purposes, additional projects that would be included in 
the adopted STIP if reasonable additional resources beyond those 
identified in the financial plan were available. The State is not 
required to select any project from the illustrative list for 
implementation, and projects on the illustrative list cannot be 
advanced to implementation without an action by the FHWA and the FTA on 
the STIP. Additional criteria for STIP financial constraint and 
financial plans that support the STIP are contained in Appendix B to 
this part.
    (m) The STIP shall include a project, or an identified phase of a 
project, only if full funding can reasonably be anticipated to be 
available for the project within the time period contemplated for 
completion of the project. In nonattainment and maintenance areas, 
projects included in the first two years of the STIP shall be limited 
to those for which funds are available or committed. Financial 
constraint of the STIP shall be demonstrated and maintained by year and 
shall include sufficient financial information to demonstrate which 
projects are to be implemented using current and/or reasonably 
available revenues, by source, and which projects are to be implemented 
using proposed revenue sources while the entire transportation system 
is being adequately operated and maintained. In the case of proposed 
funding sources, strategies for ensuring their availability shall be 
identified, preferably in the financial plan consistent with paragraph 
(l) of this section.
    (n) In areas outside a metropolitan planning area but inside a 
nonattainment or maintenance area that contains any part of a 
metropolitan area, projects must be consistent with the regional 
emissions analysis that supported the conformity determination of the 
associated metropolitan TIP before they are added to the STIP.
    (o) Projects in any of the first four years of the STIP may be 
advanced in place of another project in the first four

[[Page 33540]]

years of the STIP, subject to the project selection requirements of 
Sec.  450.220. In addition, the STIP may be revised at any time under 
procedures agreed to by the State, MPO(s), and public transportation 
operator(s) consistent with the STIP development procedures established 
in this section, as well as the procedures for participation by 
interested parties (see Sec.  450.210(a)), subject to FHWA/FTA approval 
(see Sec.  450.218). All changes that affect fiscal constraint must 
take place by amendment of the STIP.


Sec.  450.218  Self-certifications, Federal findings, and Federal 
approvals.

    (a) At least every four years, the State shall submit an updated 
STIP concurrently to the FHWA and the FTA for joint approval. STIP 
amendments shall also be submitted for joint approval. At the time the 
entire proposed STIP is submitted 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. 134 and 135, 49 U.S.C. 5303 and 5304, and this part;
    (2) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000d-1), 49 CFR part 21, and 23 CFR parts 200 and 300;
    (3) Section 1101(b) of the SAFETEA-LU (Pub. L. 109-59) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in USDOT funded projects;
    (4) The provisions of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
    (5) 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)) and 40 CFR part 93;
    (6) The Older Americans Act, as amended (42 U.S.C. 6101), 
prohibiting discrimination on the basis of age in programs or 
activities receiving Federal financial assistance;
    (7) Section 324 of title 23, U.S.C., regarding the prohibition of 
discrimination based on gender; and
    (8) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 35 regarding discrimination against individuals with 
disabilities.
    (b) The FHWA and the FTA shall review the STIP at least every four 
years, or at the time the amended STIP is submitted, (based on self-
certifications and appropriate reviews established and conducted by the 
FHWA and the FTA) and make a joint finding on the extent to which the 
projects in the STIP are based on a statewide transportation planning 
process that meets or substantially meets the requirements of 23 U.S.C. 
134 and 135, 49 U.S.C. 5303 and 5304, and subparts A, B, and C of this 
part. Approval of the STIP by the FHWA and the FTA, in its entirety or 
in part, will be based upon the results of this joint finding.
    (1) If the FHWA and the FTA determine that the STIP or amended STIP 
are based on a statewide transportation planning process that meets or 
substantially meets the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, 
and this part, the FHWA and the FTA may jointly:
    (i) Approve the entire STIP;
    (ii) Approve the STIP subject to certain corrective actions being 
taken; or
    (iii) Under special circumstances, approve a partial STIP covering 
only a portion of the State.
    (2) If the FHWA and the FTA jointly determine and document in the 
planning finding that a submitted STIP or amended STIP does not 
substantially meet the requirements of 23 U.S.C. 135, 49 U.S.C. 5304, 
and this part for any identified categories of projects, the FHWA and 
the FTA will not approve the STIP.
    (c) The approval period for a new or amended STIP shall not exceed 
four years. If a State demonstrates, in writing, that extenuating 
circumstances will delay the submittal of a new or amended STIP, the 
FHWA and the FTA will consider and take appropriate action on a request 
to extend the approval beyond four years for all or part of the STIP 
for a period not to exceed 180 days. In these cases, priority 
consideration will be given to projects and strategies involving the 
operation and management of the multimodal transportation system. Where 
the request involves projects in a metropolitan planning area(s), the 
affected MPO(s) must concur in the request. If the delay was due to the 
development and approval of a metropolitan TIP(s), the affected MPO(s) 
must provide supporting information, in writing, for the request.
    (d) Where necessary in order to maintain or establish transit 
operations, the FHWA and/or the FTA may approve operating assistance 
for specific projects or programs funded under 49 U.S.C. 5307, 5311, 
5316, and 5317, even though the projects or programs may not be 
included in an approved STIP.


Sec.  450.220  Project selection from the STIP.

    (a) Except as provided in Sec.  450.216(g) and Sec.  450.218(d), 
only projects in a FHWA/FTA approved STIP shall be eligible for funds 
administered by the FHWA or the FTA.
    (b) In metropolitan planning areas, transportation projects 
proposed for funds administered by the FHWA or the FTA shall be 
selected from the approved TIP/STIP in accordance with procedures 
established pursuant to the project selection portion of subpart C of 
this part.
    (c) In non-metropolitan areas, transportation projects undertaken 
on the National Highway System, under the Bridge and Interstate 
Maintenance programs in title 23, U.S.C., and under sections 5310, 
5311, 5316, and 5317 of title 49, U.S.C., Chapter 53 shall be selected 
from the approved STIP by the State in consultation with the affected 
non-metropolitan local officials with responsibility for 
transportation.
    (d) Federal Lands Highway program projects shall be selected from 
the approved STIP in accordance with the procedures developed pursuant 
to 23 U.S.C. 204.
    (e) 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 action under paragraphs (b) through (d) 
of this section is required for the implementing agency to proceed with 
these projects. If Federal funds available are significantly less than 
the authorized amounts, or where there are significant shifting of 
projects between years, Sec.  450.330(a) provides for a revised list of 
``agreed to'' projects to be developed upon the request of the State, 
MPO, or public transportation operator(s). If an implementing agency 
wishes to proceed with a project in the second, third, or fourth year 
of the STIP, the procedures in paragraphs (b) through (d) of this 
section or expedited procedures that provide for the advancement of 
projects from the second, third, or fourth years of the STIP may be 
used, if agreed to by all parties involved in the selection process.


Sec.  450.222  Applicability of NEPA to statewide transportation plans 
and programs.

    Any decision by the FHWA and the FTA concerning a long-range 
statewide transportation plan or STIP developed through the processes 
provided for in 23 U.S.C. 135 and 49 U.S.C. 5304 shall not be 
considered to be a Federal action subject to review under NEPA.


Sec.  450.224  Phase-in of new requirements.

    (a) Prior to July 1, 2007, long-range statewide transportation 
plans and STIPs under development since August 10, 2005, may be 
completed under

[[Page 33541]]

TEA-21 requirements. Long-range statewide transportation plans and 
STIPs may also reflect the provisions of this part prior to July 1, 
2007, but cannot take advantage of the extended update cycles (e.g., 
four years for STIPs) until all provisions and requirements of this 
part are reflected in the long-range statewide transportation plan and 
STIP.
    (b) For STIPs that are developed under TEA-21 requirements prior to 
July 1, 2007, the FHWA/FTA action (i.e., conformity determinations and 
STIP approvals) must be completed no later than June 30, 2007. For 
long-range statewide transportation plans that are completed under TEA-
21 requirements prior to July 1, 2007, the State adoption action must 
be completed no later than June 30, 2007. If these actions are 
completed on or after July 1, 2007, the provisions and requirements of 
this part shall take effect, regardless of when the long-range 
statewide transportation plan or the STIP were developed.
    (c) In addition, the applicable action (see paragraph (b) of this 
section) on any amendments or updates to STIPs or long-range statewide 
transportation plans on or after July 1, 2007, shall be based on the 
provisions and requirements of this part.

Subpart C--Metropolitan Transportation Planning and Programming


Sec.  450.300  Purpose.

    The purposes of this subpart are to implement the provisions of 23 
U.S.C. 134 and 49 U.S.C. 5303, as amended, which: (1) Sets forth the 
national policy that the MPO designated for each urbanized area is to 
carry out a continuing, cooperative, and comprehensive multimodal 
transportation planning process, including the development of a 
metropolitan transportation plan and a transportation improvement 
program (TIP), that encourages and promotes the safe and efficient 
development, management, and operation of surface transportation 
systems to serve the mobility needs of people and freight (including 
accessible pedestrian walkways and bicycle transportation facilities) 
and foster economic growth and development, while minimizing 
transportation-related fuel consumption and air pollution; and (2) 
encourages continued development and improvement of metropolitan 
transportation planning processes guided by the planning factors set 
forth in 23 U.S.C. 134(h) and 49 U.S.C. 5303(h).


Sec.  450.302  Applicability.

    The provisions of this subpart are applicable to organizations and 
entities responsible for the transportation planning and programming 
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) and 49 U.S.C. 5302 are used in this subpart 
as so defined.


Sec.  450.306  Scope of the metropolitan transportation planning 
process.

    (a) The metropolitan transportation planning process shall be 
continuous, cooperative, and comprehensive, and provide for 
consideration and implementation of projects, strategies, and services 
that will address the following factors:
    (1) Support the economic vitality of the metropolitan area, 
especially by enabling global competitiveness, productivity, and 
efficiency;
    (2) Increase the safety of the transportation system for all 
motorized and non-motorized users;
    (3) Increase the ability of the transportation system to support 
homeland security and to safeguard the personal security of all 
motorized and non-motorized users;
    (4) Increase accessibility and mobility of people and freight;
    (5) Protect and enhance the environment, promote energy 
conservation, improve the quality of life, and promote consistency 
between transportation improvements and State and local planned growth 
and economic development patterns;
    (6) Enhance the integration and connectivity of the transportation 
system, across and between modes, for people and freight;
    (7) Promote efficient system management and operation; and
    (8) Emphasize the preservation of the existing transportation 
system.
    (b) Consideration of the planning factors in paragraph (a) of this 
section should be reflected, as appropriate, in all aspects of the 
metropolitan transportation planning process, including activities such 
as the formulation of goals, objectives, performance measures, and 
evaluation criteria for use in developing the metropolitan 
transportation plan; identification of prioritization criteria for 
projects and strategies reflected in the TIP; and development of short-
range planning studies, strategic planning and/or policy studies, or 
transportation needs studies.
    (c) The failure to consider any factor specified in paragraph (a) 
of this section shall not be reviewable by any court in any matter 
affecting a metropolitan transportation plan, TIP, a project or 
strategy, or the certification of a metropolitan transportation 
planning process.
    (d) The metropolitan transportation planning process shall be 
carried out in coordination with the statewide transportation planning 
process required by 23 U.S.C. 135 and 49 U.S.C. 5304.
    (e) In carrying out the metropolitan transportation planning 
process, MPOs, States, and public transportation operators are 
encouraged to apply asset management principles and techniques in 
establishing planning goals, defining TIP priorities, and assessing 
transportation investment decisions, including transportation system 
safety, operations, preservation, and maintenance, as well as 
strategies and policies to support homeland security and to safeguard 
the personal security of all motorized and non-motorized users.
    (f) The metropolitan transportation planning process shall be 
consistent with the development of applicable regional intelligent 
transportation systems (ITS) architectures, as defined in 23 CFR part 
940.
    (g) The metropolitan transportation planning process should be 
consistent with the development of Coordinated Public Transit-Human 
Services Transportation Plans, as required by 49 U.S.C. 5310, 5316, and 
5317.
    (h) The metropolitan transportation planning process should be 
consistent with the Strategic Highway Safety Plan, as specified in 23 
U.S.C. 148, and the Regional Transit Security Strategy, as required by 
the Department of Homeland Security.
    (i) The FHWA and the FTA shall designate as a transportation 
management area (TMA) each urbanized area with a population of over 
200,000 individuals, as defined by the Bureau of the Census. The FHWA 
and the FTA shall also designate any additional urbanized area as a TMA 
on the request of the Governor and the MPO designated for that area.
    (j) In an urbanized area not designated as a TMA that is an air 
quality attainment area, the MPO(s) may propose and submit to the FHWA 
and the FTA for approval a procedure for developing an abbreviated 
metropolitan transportation plan and TIP. In developing proposed 
simplified planning procedures, consideration shall be given to whether 
the abbreviated metropolitan transportation plan and TIP will achieve 
the purposes of 23 U.S.C. 134, 49 U.S.C. 5303, and these regulations, 
taking into account

[[Page 33542]]

the complexity of the transportation problems in the area. The 
simplified procedures shall be developed by the MPO in cooperation with 
the State(s) and public transportation operator(s).


Sec.  450.308  Funding for transportation planning and unified planning 
work programs.

    (a) Funds provided under 23 U.S.C. 104(f), 49 U.S.C. 5305(d), 49 
U.S.C. 5307, and 49 U.S.C. 5339 are available to MPOs to accomplish 
activities in this subpart. At the State's option, funds provided under 
23 U.S.C. 104(b)(1) and (b)(3) and 23 U.S.C. 105 may also be provided 
to MPOs for metropolitan transportation planning. In addition, an MPO 
serving an urbanized area with a population over 200,000, as designated 
by the Bureau of the Census, may at its discretion use funds sub-
allocated under 23 U.S.C. 133(d)(3)(E) for metropolitan transportation 
planning activities.
    (b) Metropolitan transportation planning activities performed with 
funds provided under title 23, U.S.C. and title 49, U.S.C., Chapter 53 
shall be documented in a unified planning work program (UPWP) or 
simplified statement of work in accordance with the provisions of this 
section and 23 CFR part 420.
    (c) Except as provided in paragraph (d) of this section, each MPO, 
in cooperation with the State(s) and public transportation operator(s), 
shall develop a UPWP that includes a discussion of the planning 
priorities facing the MPA. The UPWP shall identify work proposed for 
the next one or two-year period by major activity and task (including 
activities that address the planning factors in Sec.  450.306(a)), in 
sufficient detail to indicate who (e.g., MPO, State, public 
transportation operator, local government, or consultant) will perform 
the work, the schedule for completing the work, the resulting products, 
the proposed funding by activity/task, and a summary of the total 
amounts and sources of Federal and matching funds.
    (d) With the prior approval of the State and the FHWA and the FTA, 
an MPO in an area not designated as a TMA may prepare a simplified 
statement of work, in cooperation with the State(s) and the public 
transportation operator(s), in lieu of a UPWP. A simplified statement 
of work would include a description of the major activities to be 
performed during the next one- or two-year period, who (e.g., State, 
MPO, public transportation operator, local government, or consultant) 
will perform the work, the resulting products, and a summary of the 
total amounts and sources of Federal and matching funds. If a 
simplified statement of work is used, it may be submitted as part of 
the State's planning work program, in accordance with 23 CFR part 420.
    (e) Arrangements may be made with the FHWA and the FTA to combine 
the UPWP or simplified statement of work with the work program(s) for 
other Federal planning funds.
    (f) Administrative requirements for UPWPs and simplified statements 
of work are contained in 23 CFR part 420 and FTA Circular C8100.1B 
(Program Guidance and Application Instructions for Metropolitan 
Planning Grants).


Sec.  450.310  Metropolitan planning organization designation and 
redesignation.

    (a) To carry out the metropolitan transportation planning process 
under this subpart, a metropolitan planning organization (MPO) shall be 
designated for each urbanized area with a population of more than 
50,000 individuals (as determined by the Bureau of the Census).
    (b) MPO designation shall be made by agreement between the Governor 
and units of general purpose local government that together represent 
at least 75 percent of the affected population (including the largest 
incorporated city, based on population, as named by the Bureau of the 
Census) or in accordance with procedures established by applicable 
State or local law.
    (c) An MPO should be designated, to the extent possible, under 
specific State legislation, State enabling legislation, or by 
interstate compact, and shall have authority to carry out 
transportation planning for the entire area that it serves.
    (d) When an MPO that serves a TMA is designated or redesignated, 
the MPO shall include local elected officials, officials of agencies 
that administer or operate major modes of transportation, and 
appropriate State transportation officials.
    (e) To the extent possible, only one MPO should be designated for 
each urbanized area or group of contiguous urbanized areas. More than 
one MPO may be designated to serve an urbanized area only if the 
Governor(s) and the existing MPO, if applicable, determine that the 
size and complexity of the urbanized area make designation of more than 
one MPO appropriate. In those cases where two or more MPOs serve the 
same urbanized area, the MPOs shall establish official, written 
agreements that clearly identify areas of coordination and the division 
of transportation planning responsibilities among the MPOs.
    (f) Nothing in this subpart shall be construed to interfere with 
the authority, under any State law in effect on December 18, 1991, of a 
public agency with multimodal transportation responsibilities to 
develop the metropolitan transportation plan and TIP for adoption by 
the MPO, or to develop long-range capital plans, coordinate transit 
services, and projects and carry out other activities pursuant to State 
law.
    (g) Nothing in this subpart shall be deemed to prohibit an MPO from 
utilizing the staff resources of other agencies to carry out selected 
elements of the metropolitan transportation planning process.
    (h) An MPO designation shall remain in effect until an official 
redesignation has been made in accordance with this section.
    (i) An existing MPO may be redesignated only by agreement between 
the Governor and units of general purpose local government that 
together represent at least 75 percent of the existing metropolitan 
planning area population (including the largest incorporated city, 
based on population, as named by the Bureau of the Census).
    (j) Redesignation of an MPO serving a multi-State metropolitan 
planning area requires agreement between the Governors of each State 
served by the existing MPO and units of general purpose local 
government that together represent at least 75 percent of the existing 
metropolitan planning area population (including the largest 
incorporated city, based on population, as named by the Bureau of the 
Census).
    (k) For the purposes of redesignation, units of general purpose 
local government may be defined as either:
    (1) The local elected officials currently serving on the MPO; or
    (2) The elected officials from each unit of general purpose local 
government located within the metropolitan planning area served by the 
existing MPO.
    (l) Redesignation of an MPO is required whenever the existing MPO 
determines that:
    (1) There is a substantial change in the proportion of voting 
members on the existing MPO representing the largest incorporated city, 
other units of general purpose local government served by the MPO, and 
the State(s); or
    (2) There is a substantial change in the decisionmaking authority 
or responsibility of the MPO, or in decisionmaking procedures 
established under MPO by-laws.
    (m) The following changes to an MPO do not require a redesignation:

[[Page 33543]]

    (1) The identification of a new urbanized area (as determined by 
the Bureau of the Census) within an existing metropolitan planning 
area;
    (2) Adding members to the MPO that represent new units of general 
purpose local government resulting from expansion of the metropolitan 
planning area;
    (3) Adding members to satisfy the specific membership requirements 
for an MPO that serves a TMA; or
    (4) Periodic rotation of members representing units of general-
purpose local government, as established under MPO by-laws.


Sec.  450.312  Metropolitan planning area boundaries.

    (a) The boundaries of a metropolitan planning area (MPA) shall be 
determined by agreement between the MPO and the Governor. At a minimum, 
the MPA boundaries shall encompass the entire existing urbanized area 
(as defined by the Bureau of the Census) plus the contiguous area 
expected to become urbanized within a 20-year forecast period for the 
metropolitan transportation plan. The MPA boundaries may be further 
expanded to encompass the entire metropolitan statistical area or 
combined statistical area, as defined by the Office of Management and 
Budget.
    (b) If any of the urbanized area(s) served by the MPO lie within a 
nonattainment or maintenance area for ozone, carbon monoxide, or 
particulate matter as designated under the Clean Air Act (42 U.S.C. 
7401 et seq.) as of August 10, 2005, the MPA boundaries in existence at 
that time shall be retained. However, the MPA boundaries may be 
adjusted by agreement of the Governor and affected MPOs to encompass 
the entire nonattainment or maintenance area by agreement of the 
Governor.
    (c) An MPA boundary may encompass more than one urbanized area.
    (d) The MPA boundaries may be established to coincide with the 
geography of regional economic development and growth forecasting 
areas.
    (e) Identification of new urbanized areas within an existing 
metropolitan planning area by the Bureau of the Census shall not 
require redesignation of the existing MPO.
    (f) Where the boundaries of the urbanized area or MPA extend across 
two or more States, the Governors with responsibility for a portion of 
the multistate area, MPO(s), and the public transportation operator(s) 
are strongly encouraged to coordinate transportation planning for the 
entire multistate area.
    (g) The MPA boundaries shall not overlap with each other.
    (h) Where part of an urbanized area served by one MPO extends into 
an adjacent MPA, the MPOs shall, at a minimum, establish written 
agreements that clearly identify areas of coordination and the division 
of transportation planning responsibilities among and between the MPOs. 
Alternatively, the MPOs may adjust their existing boundaries so that 
the entire urbanized area lies within only one MPA. Boundary 
adjustments that significantly change the composition of the MPO may 
require redesignation of one or more such MPOs.
    (i) The MPA boundaries shall be reviewed after each Census by the 
MPO (in cooperation with the State and public transportation 
operator(s)) to determine if existing MPA boundaries meet the minimum 
statutory requirements for new and updated urbanized area(s), and shall 
be adjusted as necessary. As appropriate, additional 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.
    (j) Following MPA boundary approval by the MPO and the Governor, 
the MPA boundary descriptions shall be provided for informational 
purposes to the FHWA and the FTA. The MPA boundary descriptions shall 
be submitted either as a geo-spatial database or described in 
sufficient detail to enable the boundaries to be accurately delineated 
on a map.


Sec.  450.314  Metropolitan planning agreements.

    (a) The MPO, the State(s), and the public transportation 
operator(s) shall cooperatively determine their mutual responsibilities 
in carrying out the metropolitan transportation planning process. These 
responsibilities shall be clearly identified in a written agreement 
among the MPO, the State(s), and the public transportation operator(s) 
serving the MPA.
    (1) The written agreement shall include specific provisions for 
cooperatively developing and sharing information related to the 
development of financial plans that support the metropolitan 
transportation plan (see Sec.  450.322) and the metropolitan TIP (see 
Sec.  450.324) and development of the annual listing of obligated 
projects (see Sec.  450.332).
    (2) The written agreement should include provisions for consulting 
with officials responsible for other types of planning affected by 
transportation, including State and local planned growth, economic 
development, environmental protection, airport operations, freight 
movements, safety/security operations, and providers of non-emergency 
transportation services receiving financial assistance from a source 
other than title 49, U.S.C., Chapter 53 that may include (as 
appropriate) transportation planning products or milestones 
representing consultation opportunities and/or periodic review of the 
various consultation mechanisms.
    (b) If the MPA does not include the entire nonattainment or 
maintenance area, there shall be a written 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 MPA within the nonattainment 
or maintenance area. The agreement must also indicate how the total 
transportation-related emissions for the nonattainment or maintenance 
area, including areas outside the MPA, will be treated for the purposes 
of determining conformity in accordance with the EPA's transportation 
conformity rule (40 CFR part 93). The agreement shall address policy 
mechanisms for resolving conflicts concerning transportation-related 
emissions that may arise between the MPA and the portion of the 
nonattainment or maintenance area outside the MPA.
    (c) In nonattainment or maintenance areas, if the MPO is not the 
designated agency for air quality planning under section 174 of the 
Clean Air Act (42 U.S.C. 7504), there shall be a written agreement 
between the MPO and the designated air quality planning agency 
describing their respective roles and responsibilities for air quality 
related transportation planning.
    (d) If more than one MPO has been designated to serve an urbanized 
area, there shall be a written agreement between the MPOs, the 
State(s), and the public transportation operator(s) describing how the 
metropolitan transportation planning processes will be coordinated to 
assure the development of consistent metropolitan transportation plans 
and TIPs across the MPA boundaries, particularly in cases in which a 
proposed transportation investment extends across the boundaries of 
more than one MPA. If any part of the urbanized area is a nonattainment 
or maintenance area, the agreement also shall include State and local 
air quality agencies. The

[[Page 33544]]

metropolitan transportation planning processes for affected MPOs 
should, to the maximum extent possible, reflect coordinated data 
collection, analysis, and planning assumptions across the MPAs. 
Alternatively, a single metropolitan transportation plan and/or TIP for 
the entire urbanized area may be developed jointly by the MPOs in 
cooperation with their respective planning partners. Coordination 
efforts and outcomes shall be documented in subsequent transmittals of 
the UPWP and other planning products, including the metropolitan 
transportation plan and TIP, to the State(s), the FHWA, and the FTA.
    (e) Where the boundaries of the urbanized area or MPA extend across 
two or more States, the Governors with responsibility for a portion of 
the multistate area, the appropriate MPO(s), and the public 
transportation operator(s) shall coordinate transportation planning for 
the entire multistate area. States involved in such multistate 
transportation planning may:
    (1) Enter into agreements or compacts, not in conflict with any law 
of the United States, for cooperative efforts and mutual assistance in 
support of activities authorized under this section as the activities 
pertain to interstate areas and localities within the States; and
    (2) Establish such agencies, joint or otherwise, as the States may 
determine desirable for making the agreements and compacts effective.
    (f) If part of an urbanized area that has been designated as a TMA 
overlaps into an adjacent MPA that does not primarily serve a TMA, the 
entire adjacent urbanized area is not necessarily considered a TMA. 
However, at a minimum, there shall be a written agreement between the 
State(s), the MPOs, and the public transportation operator(s) 
describing how specific TMA requirements (e.g., congestion management 
process, Surface Transportation Program funds suballocated to the 
urbanized area over 200,000 population, and project selection) will be 
met for the overlapping part of the urbanized area contained in the 
TMA.


Sec.  450.316  Interested parties, participation, and consultation.

    (a) The MPO shall develop and use a documented participation plan 
that defines a process for providing citizens, affected public 
agencies, representatives of public transportation employees, freight 
shippers, providers of freight transportation services, private 
providers of transportation, representatives of users of public 
transportation, representatives of users of pedestrian walkways and 
bicycle transportation facilities, representatives of the disabled, 
agencies or entities responsible for safety/security operations, 
providers of non-emergency transportation services receiving financial 
assistance from a source other than title 49, U.S.C, Chapter 53, and 
other interested parties with reasonable opportunities to be involved 
in the metropolitan transportation planning process.
    (1) The participation plan shall be developed by the MPO in 
consultation with all interested parties and shall, at a minimum, 
describe explicit procedures, strategies, and desired outcomes for:
    (i) Providing adequate public notice of public participation 
activities and time for public review and comment at key decision 
points, including but not limited to a reasonable opportunity to 
comment on the proposed metropolitan transportation plan and the TIP;
    (ii) Providing timely notice and reasonable access to information 
about transportation issues and processes;
    (iii) Employing visualization techniques to describe metropolitan 
transportation plans and TIPs;
    (iv) Making public information (technical information and meeting 
notices) available in electronically accessible formats and means, such 
as the World Wide Web;
    (v) Holding any public meetings at convenient and accessible 
locations and times;
    (vi) Demonstrating explicit consideration and response to public 
input received during the development of the metropolitan 
transportation plan and the TIP;
    (vii) Seeking out and considering the needs of those traditionally 
underserved by existing transportation systems, such as low-income and 
minority households, who may face challenges accessing employment and 
other services;
    (viii) Providing an additional opportunity for public comment, if 
the final metropolitan transportation plan or TIP differs significantly 
from the version that was initially made available for public comment;
    (ix) Coordinating with the statewide transportation planning public 
involvement and consultation processes under subpart B of this part; 
and
    (x) Periodically reviewing the effectiveness of the procedures and 
strategies contained in the participation plan to ensure a full and 
open participation process.
    (2) When significant written and oral comments are received on the 
draft metropolitan transportation plan and TIP (including the financial 
plans) as a result of the participation process in this section or the 
interagency consultation process required under the EPA transportation 
conformity regulations (40 CFR part 93), a summary, analysis, and 
report on the disposition of comments shall be made as part of the 
final metropolitan transportation plan and TIP.
    (3) A minimum public comment period of 45 calendar days shall be 
provided before the initial or revised participation plan is adopted by 
the MPO. Copies of the approved participation plan shall be provided to 
the FHWA and the FTA for informational purposes and shall be posted on 
the World Wide Web, to the maximum extent practicable.
    (b) In developing metropolitan transportation plans and TIPs, the 
MPO shall consult, as appropriate, with agencies and officials 
responsible for other planning activities within the MPA that are 
affected by transportation. To coordinate the planning functions to the 
maximum extent practicable, such consultation shall compare 
metropolitan transportation plans and TIPs, as they are developed, with 
the plans, maps, inventories, and planning documents developed by other 
agencies. This consultation shall include, as appropriate, contacts 
with State, local, Indian Tribal, and private agencies responsible for 
planned growth, economic development, environmental protection, airport 
operations, freight movements, land use management, natural resources, 
conservation, and historic preservation. In addition, transportation 
plans and TIPs shall be developed with due consideration of other 
related planning activities within the metropolitan area, and the 
process shall provide for the design and delivery of transportation 
services within the area that are provided by:
    (1) Recipients of assistance under title 49, U.S.C., Chapter 53;
    (2) Governmental agencies and non-profit organizations (including 
representatives of the agencies and organizations) that receive Federal 
assistance from a source other than the U.S. Department of 
Transportation to provide non-emergency transportation services; and
    (3) Recipients of assistance under 23 U.S.C. 204.
    (c) When the MPA includes Indian Tribal lands, the MPO shall 
appropriately involve the Indian Tribal government(s) in the 
development of the metropolitan transportation plan and the TIP.

[[Page 33545]]

    (d) When the MPA includes Federal public lands, the MPO shall 
appropriately involve the Federal land management agencies in the 
development of the metropolitan transportation plan and the TIP.
    (e) The MPOs are encouraged to develop a documented process(es) 
that outlines roles, responsibilities, and key decision points for 
consulting with other governments and agencies, as defined in 
paragraphs (b), (c), and (d) of this section, which may be included in 
the agreement(s) developed under Sec.  450.314.


Sec.  450.318  Transportation planning studies and project development.

    (a) The MPO, State, and/or public transportation operator may 
undertake a corridor or subarea planning study as part of the 
metropolitan transportation planning process. The results of these 
transportation planning studies may be incorporated into the overall 
project development process to the extent that they meet the 
requirements of the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.) and associated implementing regulations (23 
CFR part 771 and 40 CFR parts 1500-1508). Specifically, these corridor 
or subarea studies may be used to produce any of the following for a 
proposed transportation project:
    (1) Purpose and need or goals and objective statement(s);
    (2) General travel corridor and/or general mode(s) definition 
(i.e., highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Description of the affected environment; and/or
    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents produced by, or in support of, the 
transportation planning process described in this subpart may be 
incorporated by reference into subsequent NEPA documents, in accordance 
with 40 CFR 1502.21, to the extent that:
    (1) The NEPA lead agencies agree that such incorporation will aid 
in establishing or evaluating the purpose and need for the Federal 
action, reasonable alternatives, cumulative or other impacts on the 
human and natural environment, or mitigation of these impacts; and
    (2) The corridor or subarea planning study is conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Continual opportunity to comment during the metropolitan 
transportation planning process and development of the corridor or 
subarea planning study;
    (iv) Documentation of relevant decisions in a form that is 
identifiable and available for review during the NEPA scoping process 
and can be appended to or referenced in the NEPA document; and
    (v) The review of the FHWA and the FTA, as appropriate.
    (c) By agreement of the NEPA lead agencies, the above integration 
may be accomplished through incorporating the subarea or corridor 
planning study into the draft Environmental Impact Statement or 
Environmental Assessment and other means of incorporation by reference 
that the NEPA lead agencies deem appropriate. Additional details on 
linkages between the transportation planning and project development/
NEPA processes is contained in Appendix A to this part.


Sec.  450.320  Congestion management process in transportation 
management areas.

    (a) The transportation planning process in a TMA shall address 
congestion management through a process that provides for safe and 
effective integrated management and operation of the multimodal 
transportation system, based on a cooperatively developed and 
implemented metropolitan-wide strategy, of new and existing 
transportation facilities eligible for funding under title 23, U.S.C., 
and title 49, U.S.C., Chapter 53 through the use of travel demand 
reduction and operational management strategies.
    (b) The development of a congestion management process should 
result in multimodal system performance measures and strategies that 
can be reflected in the metropolitan transportation plan and the TIP. 
The level of system performance deemed acceptable by State and local 
transportation officials may vary by type of transportation facility, 
geographic location (metropolitan area or subarea), and/or time of day. 
In addition, consideration should be given to strategies that manage 
demand, reduce single occupant vehicle (SOV) travel, and improve 
transportation system management and operations. Where the addition of 
general purpose lanes is determined to be an appropriate congestion 
management strategy, explicit consideration is to be given to the 
incorporation of appropriate features into the SOV project to 
facilitate future demand management strategies and operational 
improvements that will maintain the functional integrity and safety of 
those lanes.
    (c) The congestion management process shall be developed, 
established, and implemented as part of the metropolitan transportation 
planning process that includes coordination with transportation system 
management and operations activities. The congestion management process 
shall include:
    (1) Methods to monitor and evaluate the performance of the 
multimodal transportation system, identify the causes of recurring and 
non-recurring congestion, identify and evaluate alternative strategies, 
provide information supporting the implementation of actions, and 
evaluate the effectiveness of implemented actions;
    (2) Definition of congestion management objectives and appropriate 
performance measures to assess the extent of congestion and support the 
evaluation of the effectiveness of congestion reduction and mobility 
enhancement strategies for the movement of people and goods. Since 
levels of acceptable system performance may vary among local 
communities, performance measures should be tailored to the specific 
needs of the area and established cooperatively by the State(s), 
affected MPO(s), and local officials in consultation with the operators 
of major modes of transportation in the coverage area;
    (3) Establishment of a coordinated program for data collection and 
system performance monitoring to define the extent and duration of 
congestion, to contribute in determining the causes of congestion, and 
evaluate the efficiency and effectiveness of implemented actions. To 
the extent possible, this data collection program should be coordinated 
with existing data sources (including archived operational/ITS data) 
and coordinated with operations managers in the metropolitan area;
    (4) Identification and evaluation of the anticipated performance 
and expected benefits of appropriate congestion management strategies 
that will contribute to the more effective use and improved safety of 
existing and future transportation systems based on the established 
performance measures. The following categories of strategies, or 
combinations of strategies, are some examples of what should be 
appropriately considered for each area:
    (i) Demand management measures, including growth management and 
congestion pricing;
    (ii) Traffic operational improvements;

[[Page 33546]]

    (iii) Public transportation improvements;
    (iv) ITS technologies as related to the regional ITS architecture; 
and
    (v) Where necessary, additional system capacity;
    (5) Identification of an implementation schedule, implementation 
responsibilities, and possible funding sources for each strategy (or 
combination of strategies) proposed for implementation; and
    (6) Implementation of a process for periodic assessment of the 
effectiveness of implemented strategies, in terms of the area's 
established performance measures. The results of this evaluation shall 
be provided to decisionmakers and the public to provide guidance on 
selection of effective strategies for future implementation.
    (d) In a TMA designated as nonattainment area for ozone or carbon 
monoxide pursuant to the Clean Air Act, Federal funds may not be 
programmed for any project that will result in a significant increase 
in the carrying capacity for SOVs (i.e., 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 is addressed through a congestion management process meeting 
the requirements of this section.
    (e) In nonattainment and maintenance area TMAs, the congestion 
management process shall provide an appropriate analysis of all 
reasonable (including multimodal) travel demand reduction and 
operational management strategies for the corridor in which a project 
that will result in a significant increase in capacity for SOVs (as 
described in paragraph (d) of this section) is proposed. If the 
analysis demonstrates that travel demand reduction and operational 
management strategies cannot fully satisfy the need for additional 
capacity in the corridor and additional SOV capacity is warranted, then 
the congestion management process shall identify all reasonable 
strategies to manage the SOV facility safely and effectively (or to 
facilitate its management in the future). Other travel demand reduction 
and operational management strategies appropriate for the corridor, but 
not appropriate for incorporation into the SOV facility itself, shall 
also be identified through the congestion management process. All 
identified reasonable travel demand reduction and operational 
management strategies shall be incorporated into the SOV project or 
committed to by the State and MPO for implementation.
    (f) State laws, rules, or regulations pertaining to congestion 
management systems or programs may constitute the congestion management 
process, if the FHWA and the FTA find that the State laws, rules, or 
regulations are consistent with, and fulfill the intent of, the 
purposes of 23 U.S.C. 134 and 49 U.S.C. 5303.


Sec.  450.322  Development and content of the metropolitan 
transportation plan.

    (a) The metropolitan transportation planning process shall include 
the development of a transportation plan addressing at least a 20-year 
planning horizon as of the effective date. In nonattainment and 
maintenance areas, the effective date of the transportation plan shall 
be the date of a conformity determination issued by the FHWA and the 
FTA. In attainment areas, the effective date of the transportation plan 
shall be its date of adoption by the MPO.
    (b) The transportation plan shall include both long-range and 
short-range strategies/actions that lead to the development of an 
integrated multimodal transportation system to facilitate the safe and 
efficient movement of people and goods in addressing current and future 
transportation demand.
    (c) The MPO shall review and update the transportation plan at 
least every four years in air quality nonattainment and maintenance 
areas and at least every five years in attainment areas to confirm the 
transportation plan's validity and consistency with current and 
forecasted transportation and land use conditions and trends and to 
extend the forecast period to at least a 20-year planning horizon. In 
addition, the MPO may revise the transportation plan at any time using 
the procedures in this section without a requirement to extend the 
horizon year. The transportation plan (and any revisions) shall be 
approved by the MPO and submitted for information purposes to the 
Governor. Copies of any updated or revised transportation plans must be 
provided to the FHWA and the FTA.
    (d) In metropolitan areas that are in nonattainment for ozone or 
carbon monoxide, the State air quality agency shall coordinate the 
development of the transportation control measures (TCMs) in a State 
Implementation Plan (SIP) with the MPO. For TCM substitutions or 
additions made under section 176(c)(8) of the Clean Air Act (42 U.S.C. 
7506(c)(8)), the MPO, State air quality agency, and the EPA must concur 
on the equivalency of any substitute TCMs and the addition of new TCMs 
to the SIP.
    (e) The transportation plan update process shall include a 
mechanism for ensuring that the MPO, the State(s), and the public 
transportation operator(s) agree that the data utilized in preparing 
other existing modal plans providing input to the transportation plan 
are valid. In updating the transportation plan, the MPO shall base the 
update on the latest available estimates and assumptions for 
population, land use, travel, employment, congestion, and economic 
activity. The MPO shall approve transportation plan contents and 
supporting analyses produced by a transportation plan update.
    (f) The metropolitan transportation plan shall, at a minimum, 
include:
    (1) The projected transportation demand of persons and goods in the 
metropolitan planning area over the period of the transportation plan;
    (2) Existing and proposed transportation facilities (including 
major roadways, transit, multimodal and intermodal facilities, 
pedestrian walkways and bicycle facilities, and intermodal connectors) 
that should function as an integrated metropolitan transportation 
system, giving emphasis to those facilities that serve important 
national and regional transportation functions over the period of the 
transportation plan. In addition, the locally preferred alternative 
selected from an Alternatives Analysis under the FTA's Capital 
Investment Grant program (49 U.S.C. 5309 and 49 CFR part 611) needs to 
be adopted as part of the metropolitan transportation plan as a 
condition for funding under 49 U.S.C. 5309;
    (3) Operational and management strategies to improve the 
performance of existing transportation facilities to relieve vehicular 
congestion and maximize the safety and mobility of people and goods;
    (4) Consideration of the results of the congestion management 
process in TMAs that meet the requirements of this subpart, including 
the identification of SOV projects that result from a congestion 
management process in TMAs that are nonattainment for carbon monoxide 
or ozone;
    (5) Assessment of capital investment and other strategies to 
preserve the existing and projected future metropolitan transportation 
infrastructure and provide for multimodal capacity increases based on 
regional priorities and needs;
    (6) Design concept and design scope descriptions of all existing 
and proposed transportation facilities in sufficient detail, regardless 
of funding source, in nonattainment and maintenance areas for 
conformity

[[Page 33547]]

determinations under the EPA's transportation conformity rule (40 CFR 
part 93). In all areas (regardless of air quality designation), all 
proposed improvements shall be described in sufficient detail to 
develop cost estimates;
    (7) A discussion of potential environmental mitigation activities 
and potential areas to carry out these activities, including activities 
that may have the greatest potential to restore and maintain the 
environmental functions affected by the metropolitan transportation 
plan. The discussion shall be developed in consultation with Federal, 
State, and Tribal land management, wildlife, and regulatory agencies. 
The MPO may establish reasonable timeframes for performing this 
consultation;
    (8) Pedestrian walkway and bicycle transportation facilities in 
accordance with 23 U.S.C. 217(g);
    (9) Transportation and transit enhancement activities, as 
appropriate; and
    (10) A financial plan that demonstrates how the adopted 
transportation plan can be implemented, while operating and maintaining 
existing facilities and services. For the purpose of developing the 
transportation plan, the MPO, public transportation operator(s), and 
State shall cooperatively develop estimates of funds that will be 
available to support metropolitan transportation plan implementation, 
as required under Sec.  450.314(a)(1). All necessary financial 
resources from public and private sources that are reasonably expected 
to be made available to carry out the transportation plan shall be 
identified. The financial plan shall include recommendations on any 
additional financing strategies to fund projects and programs included 
in the metropolitan transportation plan. In the case of new funding 
sources, strategies for ensuring their availability shall be 
identified. In developing the financial plan, the MPO shall take into 
account all projects and strategies proposed for funding under title 
23, U.S.C., title 49, U.S.C., Chapter 53, or with other Federal funds; 
State assistance; local sources; and private participation. For 
nonattainment and maintenance areas, the financial plan shall address 
the specific financial strategies required to ensure the implementation 
of TCMs in the applicable SIP. In addition, the financial plan may 
include, for illustrative purposes, additional projects that would be 
included in the adopted transportation plan if additional resources 
beyond those identified in the financial plan were available. 
Additional criteria and information on financial plans that support 
metropolitan transportation plans are contained in Appendix B to this 
part.
    (g) The MPO shall consult, as appropriate, with State and local 
agencies responsible for land use management, natural resources, 
environmental protection, conservation, and historic preservation 
concerning the development of the transportation plan. The consultation 
shall involve, as appropriate:
    (1) Comparison of transportation plans with State conservation 
plans or maps, if available; or
    (2) Comparison of transportation plans to inventories of natural or 
historic resources, if available.
    (h) The metropolitan transportation plan should include a safety 
element that incorporates or summarizes the priorities, goals, 
countermeasures, or projects for the MPA contained in the Strategic 
Highway Safety Plan required under 23 U.S.C. 148, as well as (as 
appropriate) emergency relief and disaster preparedness plans and 
strategies and policies that support homeland security and safeguard 
the personal security of all motorized and non-motorized users.
    (i) The MPO shall provide citizens, affected public agencies, 
representatives of public transportation employees, freight shippers, 
providers of freight transportation services, private providers of 
transportation, representatives of users of public transportation, 
representatives of users of pedestrian walkways and bicycle 
transportation facilities, representatives of the disabled, and other 
interested parties with a reasonable opportunity to comment on the 
transportation plan using the participation plan developed under Sec.  
450.316(a).
    (j) The metropolitan transportation plan shall be published or 
otherwise made readily available by the MPO for public review, 
including (to the maximum extent practicable) in electronically 
accessible formats and means, such as the World Wide Web.
    (k) A State or MPO shall not be required to select any project from 
the illustrative list of additional projects included in the financial 
plan under paragraph (f)(9) of this section.
    (l) In nonattainment and maintenance areas for transportation-
related pollutants, the MPO, as well as the FHWA and the FTA, must make 
a conformity determination on any updated or amended transportation 
plan in accordance with the Clean Air Act and the EPA transportation 
conformity regulations (40 CFR part 93). During a conformity lapse, 
MPOs can prepare an interim metropolitan transportation plan as a basis 
for advancing projects that are eligible to proceed under a conformity 
lapse. An interim metropolitan transportation plan consisting of 
eligible projects from the most recent conforming transportation plan 
and TIP may proceed immediately without revisiting the requirements of 
this section, subject to interagency consultation. An interim 
metropolitan transportation plan containing eligible projects that are 
not from the most recent conforming transportation plan and TIP must 
meet all the requirements of this section.


Sec.  450.324  Development and content of the transportation 
improvement program (TIP).

    (a) The MPO, in cooperation with the State(s) and any affected 
public transportation operator(s), shall develop a TIP for the 
metropolitan planning area. The TIP shall cover a period of not less 
than four years, be updated at least every four years, and be approved 
by the MPO and the Governor. If the TIP covers more than four years, 
the FHWA and the FTA will consider the projects in the additional years 
as informational. The TIP may be updated more frequently, but the cycle 
for updating the TIP must be compatible with the STIP development and 
approval process. The TIP expires when the FHWA/FTA approval of the 
STIP expires. Copies of any updated or revised TIPs must be provided to 
the FHWA and the FTA. In nonattainment and maintenance areas subject to 
transportation conformity requirements, the FHWA and the FTA, as well 
as the MPO, must make a conformity determination on any updated or 
revised TIP, in accordance with the Clean Air Act requirements and the 
EPA's transportation conformity regulations (40 CFR part 93).
    (b) The MPO shall provide all interested parties with a reasonable 
opportunity to comment on the proposed TIP as required by Sec.  
450.316(a). In addition, in nonattainment area TMAs, the MPO shall 
provide at least one formal public meeting during the TIP development 
process, which should be addressed through the participation plan 
described in Sec.  450.316(a). In addition, the TIP shall be published 
or otherwise made readily available by the MPO for public review, 
including (to the maximum extent practicable) in electronically 
accessible formats and means, such as the World Wide Web, as described 
in Sec.  450.316(a).
    (c) The TIP shall include federally supported capital and non-
capital surface transportation projects (or phases of projects) within 
the

[[Page 33548]]

boundaries of the metropolitan planning area proposed for funding under 
23 U.S.C. and 49, U.S.C., Chapter 53 (including transportation 
enhancements; Federal Lands Highway program projects; safety projects 
included in the State's Strategic Highway Safety Plan; trails projects; 
pedestrian walkways; and bicycle facilities), but excluding:
    (1) Safety projects funded under 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(f), 
49 U.S.C. 5305(d), and 49 U.S.C. 5339;
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) At the discretion of the State and MPO, State planning and 
research projects funded with National Highway System, Surface 
Transportation Program, and/or Equity Bonus funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) National planning and research projects funded under 49 U.S.C. 
5314; and
    (7) Project management oversight projects funded under 49 U.S.C. 
5327.
    (d) The TIP shall contain all regionally significant projects 
requiring an action by the FHWA or the FTA whether or not the projects 
are to be funded under title 23, U.S.C., Chapters 1 and 2 or title 49, 
U.S.C., Chapter 53 (e.g., addition of an interchange to the Interstate 
System with State, local, and/or private funds and congressionally 
designated projects not funded under 23 U.S.C. or 49 U.S.C., Chapter 
53). For public information and conformity purposes, the TIP should 
include all regionally significant projects proposed to be funded with 
Federal funds other than those administered by the FHWA or the FTA, as 
well as all regionally significant projects to be funded with non-
Federal funds.
    (e) The TIP shall include, for each project or phase (e.g., 
preliminary engineering, environment/NEPA, right-of-way, design, or 
construction), the following:
    (1) Sufficient descriptive material (i.e., type of work, termini, 
and length) to identify the project or phase;
    (2) Estimated total project cost, which may extend beyond the four 
years of the TIP;
    (3) The amount of funds proposed to be obligated during each 
program year for the project or phase (by category and source);
    (4) Identification of the agencies responsible for carrying out the 
project or phase;
    (5) In nonattainment and maintenance areas, identification of those 
projects which are identified as TCMs in the applicable SIP;
    (6) In nonattainment and maintenance areas, included projects shall 
be specified in sufficient detail (design concept and scope) for air 
quality analysis in accordance with the EPA transportation conformity 
regulation (40 CFR part 93); and
    (7) In areas with Americans with Disabilities Act required 
paratransit and key station plans, identification of those projects 
that will implement these plans.
    (f) 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 93. 
In nonattainment and maintenance areas, classifications must be 
consistent with the ``exempt project'' classifications contained in the 
EPA transportation conformity regulation (40 CFR part 93). In addition, 
projects proposed for funding under title 23, U.S.C., Chapter 2 that 
are not regionally significant may be grouped in one line item or 
identified individually in the TIP.
    (g) Each project or project phase included in the TIP shall be 
consistent with the approved metropolitan transportation plan.
    (h) The TIP shall include a financial plan that demonstrates how 
the approved TIP can be implemented, indicates resources from public 
and private sources that are reasonably expected to be made available 
to carry out the TIP, and recommends any additional financing 
strategies for needed projects and programs. In developing the TIP, the 
MPO, State(s), and public transportation operator(s) shall 
cooperatively develop estimates of funds that are reasonably expected 
to be available to support TIP implementation, in accordance with Sec.  
450.314(a)(1). Only projects for which construction or 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 plan, the MPO shall 
take into account all projects and strategies funded under title 23, 
U.S.C., title 49, U.S.C., Chapter 53, and other Federal funds; 
regionally significant projects that are not Federally funded; and 
operation and maintenance of the existing system. The financial plan 
may include, for illustrative purposes, additional projects that would 
be included in the adopted transportation plan and TIP if reasonable 
additional resources beyond those identified in the financial plan were 
available. Additional criteria and information on financial plans that 
support the TIP are contained in Appendix B to this part.
    (i) The TIP shall include a project, or a phase of a project, only 
if full funding can reasonably be anticipated to be available for the 
project within the time period contemplated for completion of the 
project. In nonattainment and maintenance areas, projects included in 
the first two years of the TIP shall be limited to those for which 
funds are available or committed. The TIP financial constraint shall be 
demonstrated and maintained by year and shall include sufficient 
financial information to demonstrate which projects are to be 
implemented using current and/or reasonably available revenues, by 
source, and which projects are to be implemented using proposed revenue 
sources while the entire transportation system is being adequately 
operated and maintained. In the case of proposed funding sources, 
strategies for ensuring their availability shall be identified in the 
financial plan consistent with paragraph (h) of this section. 
Additional information on TIP financial constraint and the financial 
plan that supports the TIP are contained in appendix B of this part. In 
nonattainment and maintenance areas, the TIP shall give priority to 
eligible TCMs identified in the approved SIP in accordance with the EPA 
transportation conformity regulation (40 CFR part 93) and shall provide 
for their timely implementation.
    (j) As a management tool for monitoring progress in implementing 
the transportation plan, the TIP should:
    (1) Identify the criteria and process for prioritizing 
implementation of transportation plan elements (including multimodal 
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; and
    (3) In nonattainment and maintenance areas, describe the progress 
in implementing any required TCMs, in accordance with 40 CFR part 93.
    (k) During a conformity lapse, MPOs may prepare an interim TIP as a 
basis for advancing projects that are eligible to proceed under a lapse 
(as defined in 40 CFR part 93). An interim TIP consisting of eligible 
projects from the most recent conforming metropolitan transportation 
plan and TIP may

[[Page 33549]]

proceed immediately without revisiting the requirements of this 
section, subject to interagency consultation defined in 40 CFR part 93. 
An interim TIP containing eligible projects that are not from the most 
recent conforming transportation plan and TIP must meet all the 
requirements of this section.
    (l) Projects in any of the first four years of the TIP may be 
advanced in place of another project in the first four years of the 
TIP, subject to the project selection requirements of Sec.  450.330. In 
addition, the TIP may be revised at any time under procedures agreed to 
by the State, MPO(s), and public transportation operator(s) consistent 
with the TIP development procedures established in this section, as 
well as the procedures for the MPO participation plan (see Sec.  
450.316(a)) and FHWA/FTA actions on the TIP (see Sec.  450.328).


Sec.  450.326  TIP revisions and relationship to the STIP.

    (a) An MPO may revise the TIP at any time under procedures agreed 
to by the cooperating parties 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 non-exempt 
projects (per 40 CFR part 93), or is replaced with an updated TIP, the 
MPO and the FHWA and the FTA must make a new conformity determination. 
In all areas, changes that affect fiscal constraint must take place by 
amendment of the TIP. Public participation procedures consistent with 
Sec.  450.316(b) shall be utilized in revising the TIP, except that 
these procedures are not required for administrative modifications that 
only involve projects of the type covered in Sec.  450.324(f).
    (b) After approval by the MPO and the Governor, the TIP shall be 
included without change, directly or by reference, in the STIP required 
under 23 U.S.C. 135. In nonattainment and maintenance areas, a 
conformity finding on the TIP must be made by the FHWA and the FTA 
before it is included in the STIP. A copy of the approved TIP shall be 
provided to the FHWA and the FTA.
    (c) The State shall notify the MPO and Federal land management 
agencies when a TIP including projects under the jurisdiction of these 
agencies has been included in the STIP.


Sec.  450.328  TIP action by the FHWA and the FTA.

    (a) The FHWA and the FTA shall jointly find that each metropolitan 
TIP, including amendments thereto, is consistent with the metropolitan 
transportation plan produced by the continuing, comprehensive 
transportation process carried on cooperatively by the MPO(s), the 
State(s), and the public transportation operator(s) in accordance with 
23 U.S.C. 134 and 49 U.S.C. 5303. This finding shall be based on the 
self-certification statement submitted by the State and MPO under Sec.  
450.334, a review of the metropolitan transportation plan by the FHWA 
and the FTA, and upon other reviews as deemed necessary by the FHWA and 
the FTA.
    (b) In nonattainment and maintenance areas, the MPO, as well as the 
FHWA and the FTA, shall determine conformity of any updated or amended 
TIP , in accordance with 40 CFR part 93. After the FHWA and the FTA 
issue a conformity determination on the TIP, the TIP shall be 
incorporated, without change, into the STIP, directly or by reference.
    (c) If the metropolitan transportation plan has not been updated in 
accordance with the cycles defined in Sec.  450.322(c), projects may 
only be advanced from a previously approved TIP in attainment areas or 
a previously conforming TIP in nonattainment and maintenance areas. 
Until the MPO approves (in attainment areas) or the FHWA/FTA issues a 
conformity determination on (in nonattainment and maintenance areas) 
the updated metropolitan transportation plan, the TIP may not be 
amended.
    (d) In the case of extenuating circumstances, the FHWA and the FTA 
will consider and take appropriate action on requests to extend the 
STIP approval period for all or part of the TIP in accordance with 
Sec.  450.216(e).
    (e) If an illustrative project is included in the TIP, no Federal 
action may be taken on that project by the FHWA and the FTA until it is 
formally included in the financially constrained and conforming 
metropolitan transportation plan and TIP.
    (f) Where necessary in order to maintain or establish operations, 
the FHWA and/or the FTA may approve transit operating assistance for 
specific projects or programs funded under 49 U.S.C. 5307, 5311, 5316, 
and 5317, even though the projects or programs may not be included in 
an approved TIP/STIP.


Sec.  450.330  Project selection from the TIP.

    (a) Once a TIP that meets the requirements of 23 U.S.C. 134(j), 49 
U.S.C. 5303(j), and 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 or where there are significant shifting of projects 
between years. In this case, a revised ``agreed to'' list of projects 
shall be jointly developed by the MPO, the State, and the public 
transportation operator(s) if requested by the MPO, the State, or the 
public transportation operator(s). If the State or public 
transportation operator(s) wishes to proceed with a project in the 
second, third, or fourth year of the TIP, the specific project 
selection procedures stated in paragraphs (b) and (c) of this section 
must be used unless the MPO, the State, and the public transportation 
operator(s) jointly develop expedited project selection procedures to 
provide for the advancement of projects from the second, third, or 
fourth years of the TIP.
    (b) In metropolitan areas not designated as TMAs, projects to be 
implemented using title 23, U.S.C. funds (other than Federal Lands 
Highway program projects) or funds under title 49, U.S.C., Chapter 53, 
shall be selected by the State and/or the public transportation 
operator(s), in cooperation with the MPO from the approved metropolitan 
TIP. Federal Lands Highway program projects shall be selected in 
accordance with procedures developed pursuant to 23 U.S.C. 204.
    (c) In areas designated as TMAs, all 23 U.S.C. and 49 U.S.C., 
Chapter 53 funded projects (excluding projects on the National Highway 
System (NHS) and projects funded under the Bridge, Interstate 
Maintenance, and Federal Lands Highway programs) shall be selected by 
the MPO in consultation with the State and public transportation 
operator(s) from the approved TIP and in accordance with the priorities 
in the approved 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 TIP. Federal Lands 
Highway program projects shall be selected in accordance with 
procedures developed pursuant to 23 U.S.C. 204.
    (d) Except as provided in Sec.  450.324(c) and Sec.  450.328(f), 
projects not included in the federally approved STIP shall not be 
eligible for funding with funds under title 23, U.S.C., or 49 U.S.C., 
Chapter 53.
    (e) In nonattainment and maintenance areas, priority shall be given 
to the timely implementation of TCMs contained in the applicable SIP in 
accordance with the EPA transportation conformity regulations (40 CFR 
part 93).

[[Page 33550]]

Sec.  450.332  Annual listing of obligated projects.

    (a) In metropolitan planning areas, on an annual basis, no later 
than 90 calendar days following the end of the State program year, the 
State, public transportation operator(s), and the MPO shall 
cooperatively develop a listing of projects (including investments in 
pedestrian walkways and bicycle transportation facilities) for which 
funds under 23 U.S.C. or 49 U.S.C., Chapter 53 were obligated in the 
preceding program year.
    (b) The listing shall be prepared in accordance with Sec.  
450.314(a)(1) and shall include all federally funded projects 
authorized or revised to increase obligations in the preceding program 
year, and shall at a minimum include the TIP information under Sec.  
450.324(e)(1) and (4) and identify, for each project, the amount of 
Federal funds requested in the TIP, the Federal funding that was 
obligated during the preceding year, and the Federal funding remaining 
and available for subsequent years.
    (c) The listing shall be published or otherwise made available in 
accordance with the MPO's public participation criteria for the TIP.


Sec.  450.334  Self-certifications and Federal certifications.

    (a) For all MPAs, concurrent with the submittal of the entire 
proposed TIP to the FHWA and the FTA as part of the STIP approval, the 
State and the MPO shall certify at least every four years that the 
metropolitan transportation planning process is being carried out in 
accordance with all applicable requirements including:
    (1) 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart;
    (2) In 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)) and 40 CFR part 93;
    (3) Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 
2000d-1), 49 CFR part 21, and 23 CFR part 230;
    (4) Section 1101(b) of the SAFETEA-LU (Pub. L. 109-59) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in USDOT funded projects;
    (5) The provisions of the Americans with Disabilities Act of 1990 
(42 U.S.C. 12101 et seq.) and 49 CFR parts 27, 37, and 38;
    (6) The Older Americans Act, as amended (42 U.S.C. 6101), 
prohibiting discrimination on the basis of age in programs or 
activities receiving Federal financial assistance;
    (7) Section 324 of title 23, U.S.C., regarding the prohibition of 
discrimination based on gender; and
    (8) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 35 regarding discrimination against individuals with 
disabilities.
    (b) In TMAs, the FHWA and the FTA jointly shall review and evaluate 
the transportation planning process for each TMA no less than once 
every four years to determine if the process meets the requirements of 
applicable provisions of Federal law and this subpart.
    (1) After review and evaluation of the TMA planning process, the 
FHWA and FTA shall take one of the following actions:
    (i) If the process meets the requirements of this part and a TIP 
has been approved by the MPO and the Governor, jointly certify the 
transportation planning process;
    (ii) If the process substantially meets the requirements of this 
part and a TIP has been approved by the MPO and the Governor, jointly 
certify the transportation planning process subject to certain 
specified corrective actions being taken; or
    (iii) If the process does not meet the requirements of this part, 
jointly certify the planning process as the basis for approval of only 
those categories of programs or projects that the FHWA and the FTA 
jointly determine, subject to certain specified corrective actions 
being taken.
    (2) If, upon the review and evaluation conducted under paragraph 
(b)(1)(iii) of this section, the FHWA and the FTA do not certify the 
transportation planning process in a TMA, the Secretary may withhold up 
to 20 percent of the funds attributable to the metropolitan planning 
area of the MPO for projects funded under title 23, U.S.C., and title 
49, U.S.C., Chapter 53, in addition to corrective actions and funding 
restrictions. The withheld funds shall be restored to the MPA when the 
metropolitan transportation planning process is certified by the FHWA 
and FTA, unless the funds have lapsed.
    (3) A certification of the TMA planning process will remain in 
effect for four years unless a new certification determination is made 
sooner by the FHWA and the FTA or a shorter term is specified in the 
certification report.
    (4) In conducting a certification review, the FHWA and the FTA 
shall provide opportunities for public involvement within the 
metropolitan planning area under review. The FHWA and the FTA shall 
consider the public input received in arriving at a decision on a 
certification action.
    (5) The MPO(s), the State(s), and public transportation operator(s) 
shall be notified of the actions taken under paragraphs (b)(1) and 
(b)(2) of this section. The FHWA and the FTA will update the 
certification status of the TMA when evidence of satisfactory 
completion of a corrective action(s) is provided to the FHWA and the 
FTA.


Sec.  450.336  Applicability of NEPA to metropolitan transportation 
plans and programs.

    Any decision by the FHWA and the FTA concerning a metropolitan 
transportation plan or TIP developed through the processes provided for 
in 23 U.S.C. 134 and 49 U.S.C. 5303 shall not be considered to be a 
Federal action subject to review under NEPA.


Sec.  450.338  Phase-in of new requirements.

    (a) Prior to July 1, 2007, metropolitan transportation plans and 
TIPs under development since August 10, 2005, may be completed under 
TEA-21 requirements. Metropolitan transportation plans and TIPs may 
also reflect the provisions of this part prior to July 1, 2007, but 
cannot take advantage of the extended update cycles (e.g., four years 
for TIPs and four years for metropolitan transportation plans in 
nonattainment and maintenance areas) until all provisions and 
requirements of this part are reflected in the metropolitan 
transportation plan and TIP.
    (b) For metropolitan transportation plans and TIPs that are 
developed under TEA-21 requirements prior to July 1, 2007, the FHWA/FTA 
action (i.e., conformity determinations and STIP approvals) must be 
completed no later than June 30, 2007. For metropolitan transportation 
plans in attainment areas that are developed under TEA-21 requirements 
prior to July 1, 2007, the MPO adoption action must be completed no 
later than June 30, 2007. If these actions are completed on or after 
July 1, 2007, the provisions and requirements of this part shall take 
effect, regardless of when the metropolitan transportation plan or TIP 
were developed.
    (c) In addition, the applicable action (see paragraph (b) of this 
section) on any amendments or updates to metropolitan transportation 
plans and TIPs on or after July 1, 2007, shall address the provisions 
and requirements of this part.
    (d) For new TMAs, the congestion management process described in 
Sec.  450.320 shall be implemented within 18 months of the designation 
of a new TMA.

[[Page 33551]]

Appendix A to Part 450--Linking the Transportation Planning and NEPA 
Processes

Background and Overview

    For 40 years, the Congress has directed that federally-funded 
highway and transit projects must flow from metropolitan and 
statewide transportation planning processes (pursuant to 23 U.S.C. 
134-135 and 49 U.S.C. 5303-5306). Over the years, the Congress has 
refined and strengthened the transportation planning process as the 
foundation for project decisions, emphasizing public involvement, 
consideration of environment and other factors, and a Federal role 
that oversees the transportation planning process but does not 
second-guess the content of transportation plans and programs.
    Despite this statutory emphasis on transportation planning, the 
environmental analyses produced to meet the requirements of the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4231 et 
seq.) have often been conducted de novo, disconnected from the 
analyses used to develop long-range transportation plans, statewide 
and metropolitan Transportation Improvement Programs (STIPs/TIPs), 
planning-level corridor/subarea/feasibility studies, or FTA's 
planning Alternatives Analyses. When the NEPA and transportation 
planning processes are not well coordinated, the NEPA process may 
lead to the development of information that is more appropriately 
developed in the planning process, resulting in duplication of work 
and delays in transportation improvements.
    The purpose of this Appendix is to change this culture, by 
supporting congressional intent that statewide and metropolitan 
transportation planning should be the foundation for highway and 
transit project decisions. This Appendix was crafted to recognize 
that transportation planning processes vary across the country. This 
document provides details on how information, analysis, and products 
from transportation planning can be incorporated into and relied 
upon in NEPA documents under existing laws, regardless of when the 
Notice of Intent has been published. This Appendix presents 
environmental review as a continuum of sequential study, refinement, 
and expansion performed in transportation planning and during 
project development/NEPA, with information developed and conclusions 
drawn in early stages utilized in subsequent (and more detailed) 
review stages.
    The information below is intended for use by State departments 
of transportation (State DOTs), metropolitan planning organizations 
(MPOs), and public transportation operators to clarify the 
circumstances under which transportation planning level choices and 
analyses can be adopted or incorporated into the process required by 
NEPA. Additionally, the FHWA and the FTA will work with Federal 
environmental, regulatory, and resource agencies to incorporate the 
principles of this Appendix in their day-to-day NEPA policies and 
procedures related to their involvement in highway and transit 
projects.
    This Appendix does not extend NEPA requirements to 
transportation plans and programs. The Transportation Efficiency Act 
for the 21st Century (TEA-21) and the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 
specifically exempted transportation plans and programs from NEPA 
review. Therefore, initiating the NEPA process as part of, or 
concurrently with, a transportation planning study does not subject 
transportation plans and programs to NEPA.
    Implementation of this Appendix by States, MPOs, and public 
transportation operators is voluntary. The degree to which studies, 
analyses, or conclusions from the transportation planning process 
can be incorporated into the project development/NEPA processes will 
depend upon how well they meet certain standards established by NEPA 
regulations and guidance. While some transportation planning 
processes already meet these standards, others will need some 
modification.
    The remainder of this Appendix document utilizes a ``Question 
and Answer'' format, organized into three primary categories 
(``Procedural,'' ``Substantive,'' and ``Administrative Issues'').

I. Procedural

1. In what format should the transportation planning information be 
included?

    To be included in the NEPA process, work from the transportation 
planning process must be documented in a form that can be appended 
to the NEPA document or incorporated by reference. Documents may be 
incorporated by reference if they are readily available so as to not 
impede agency or public review of the action. Any document 
incorporated by reference must be ``reasonably available for 
inspection by potentially interested persons within the time allowed 
for comment.'' Incorporated materials must be cited in the NEPA 
document and their contents briefly described, so that the reader 
understands why the document is cited and knows where to look for 
further information. To the extent possible, the documentation 
should be in a form such as official actions by the MPO and/or 
correspondence within and among the organizations involved in the 
transportation planning process.

2. What is a reasonable level of detail for a planning product that is 
intended to be used in a NEPA document? How does this level of detail 
compare to what is considered a full NEPA analysis?

    For purposes of transportation planning alone, a planning-level 
analysis does not need to rise to the level of detail required in 
the NEPA process. Rather, it needs to be accurate and up-to-date, 
and should adequately support recommended improvements in the 
statewide or metropolitan long-range transportation plan. The 
SAFETEA-LU requires transportation planning processes to focus on 
setting a context and following acceptable procedures. For example, 
the SAFETEA-LU requires a ``discussion of the types of potential 
environmental mitigation activities'' and potential areas for their 
implementation, rather than details on specific strategies. The 
SAFETEA-LU also emphasizes consultation with Federal, State, and 
Tribal land management, wildlife, and regulatory agencies.
    However, the Environmental Assessment (EA) or Environmental 
Impact Statement (EIS) ultimately will be judged by the standards 
applicable under the NEPA regulations and guidance from the Council 
on Environmental Quality (CEQ). To the extent the information 
incorporated from the transportation planning process, standing 
alone, does not contain all of the information or analysis required 
by NEPA, then it will need to be supplemented by other information 
contained in the EIS or EA that would, in conjunction with the 
information from the plan, collectively meet the requirements of 
NEPA. The intent is not to require NEPA studies in the 
transportation planning process. As an option, the NEPA analyses 
prepared for project development can be integrated with 
transportation planning studies (see the response to Question 9 for 
additional information).

3. What type and extent of involvement from Federal, Tribal, State, and 
local environmental, regulatory, and resource agencies is needed in the 
transportation planning process in order for planning-level decisions 
to be more readily accepted in the NEPA process?

    Sections 3005, 3006, and 6001 of the SAFETEA-LU established 
formal consultation requirements for MPOs and State DOTs to employ 
with environmental, regulatory, and resource agencies in the 
development of long-range transportation plans. For example, 
metropolitan transportation plans now ``shall include a discussion 
of the types of potential environmental mitigation activities and 
potential areas to carry out these activities, including activities 
that may have the greatest potential to restore and maintain the 
environmental functions affected by the [transportation] plan,'' and 
that these planning-level discussions ``shall be developed in 
consultation with Federal, State, and Tribal land management, 
wildlife, and regulatory agencies.'' In addition, MPOs ``shall 
consult, as appropriate, with State and local agencies responsible 
for land use management, natural resources, environmental 
protection, conservation, and historic preservation concerning the 
development of a long-range transportation plan,'' and that this 
consultation ``shall involve, as appropriate, comparison of 
transportation plans with State conservation plans or maps, if 
available, or comparison of transportation plans to inventories of 
natural or historic resources, if available.'' Similar SAFETEA-LU 
language addresses the development of the long-range statewide 
transportation plan, with the addition of Tribal conservation plans 
or maps to this planning-level ``comparison.''
    In addition, section 6002 of the SAFETEA-LU established several 
mechanisms for increased efficiency in environmental reviews for 
project decision-making. For example, the term ``lead agency'' means 
the U. S. Department of Transportation and, if applicable, any State 
or local government entity serving as a joint lead agency for the

[[Page 33552]]

NEPA process. In addition, the lead agency is responsible for 
inviting and designating ``participating agencies'' (i.e., other 
Federal or non-Federal agencies that may have an interest in the 
proposed project). Any Federal agency that is invited by the lead 
agency to participate in the environmental review process for a 
project shall be designated as a participating agency by the lead 
agency unless the invited agency informs the lead agency, in 
writing, by the deadline specified in the invitation that the 
invited agency: (a) Has no jurisdiction or authority with respect to 
the project; (b) has no expertise or information relevant to the 
project; and (c) does not intend to submit comments on the project.
    Past successful examples of using transportation planning 
products in NEPA analysis are based on early and continuous 
involvement of environmental, regulatory, and resource agencies. 
Without this early coordination, environmental, regulatory, and 
resource agencies are more likely to expect decisions made or 
analyses conducted in the transportation planning process to be 
revisited during the NEPA process. Early participation in 
transportation planning provides environmental, regulatory, and 
resource agencies better insight into the needs and objectives of 
the locality. Additionally, early participation provides an 
important opportunity for environmental, regulatory, and resource 
agency concerns to be identified and addressed early in the process, 
such as those related to permit applications. Moreover, Federal, 
Tribal, and State, and local environmental, regulatory, and resource 
agencies are able to share data on particular resources, which can 
play a critical role in determining the feasibility of a 
transportation solution with respect to environmental impacts. The 
use of other agency planning outputs can result in a transportation 
project that could support multiple goals (transportation, 
environmental, and community). Further, planning decisions by these 
other agencies may have impacts on long-range transportation plans 
and/or the STIP/TIP, thereby providing important input to the 
transportation planning process and advancing integrated decision-
making.
    Transportation planning products can provide watershed and 
landscape-level approaches to mitigation that address indirect and 
cumulative impacts, which must be considered under NEPA. Such broad 
scale approaches focus on the natural resources within a particular 
ecosystem or watershed and look at the most critical or high quality 
resources, rather than focusing narrowly on mitigating at the direct 
location of impact. Techniques have been developed to better avoid, 
minimize, and mitigate these impacts, as well as the impacts of past 
infrastructure projects, on a project-specific basis. However, the 
avoidance, minimization, and mitigation efforts used may not always 
provide the greatest environmental benefit, or may do very little to 
promote ecosystem sustainability. To address concern, the FHWA and 
seven other Federal agencies produced Eco-Logical: An Ecosystem 
Approach to Developing Infrastructure Projects. (See http://
environment.fhwa.dot.gov/ecological/ecological.pdf.) Eco-Logical 
encourages Federal, State, tribal and local partners involved in 
infrastructure planning, design, review, and construction to use 
flexibility in regulatory processes. Employing available planning 
resources such as each State's Comprehensive Wildlife Conservation 
Strategy, Eco-Logical puts forth the conceptual groundwork for 
integrating plans across agency boundaries, and endorses ecosystem-
based mitigation--an innovative method of mitigating infrastructure 
impacts that cannot be avoided.
    The FHWA has emphasized that wetland and natural habitat 
mitigation measures, such as wetland and habitat banks or statewide 
and regional conservation measures, are eligible for Federal-aid 
participation when they are undertaken to create mitigation 
resources for future transportation projects. In its March 10, 2005, 
memorandum on Wetland and Natural Habitat Mitigation, the FHWA 
clarified that, to provide for wetland or other mitigation banks, 
the State DOT and the FHWA Division Office should identify potential 
future wetlands and habitat mitigation needs for a reasonable time 
frame and establish a need for the mitigation credits. The 
transportation planning process should guide the determination of 
future mitigation needs.'' (See http://www.fhwa.dot.gov/environment/
wetland/wethabmitmem.htm.)

4. What is the procedure for using decisions or analyses from the 
transportation planning process?

    The FHWA and the FTA, as the lead Federal agencies, will have 
the final say on what processes and consultation techniques are used 
to determine the transportation planning products that will be 
incorporated into the NEPA process. At a minimum, a robust scoping/
early coordination process (which explains to Federal and State 
environmental, regulatory, and resource agencies and the public the 
information and/or analyses utilized to develop the planning 
products, how the purpose and need was developed and refined, and 
how the design concept and scope were determined) should play a 
critical role in leading to informed FHWA/FTA decisions on the 
suitability of the transportation planning information, analyses, 
documents, and decisions for use in the NEPA process. As part of a 
rigorous scoping/early coordination process, the FHWA and the FTA 
should ensure that the transportation planning results are 
appropriately documented, shared, and used.

5. To what extent can the FHWA/FTA provide up-front assurance that 
decisions and additional investments made in the transportation 
planning process will allow planning-level decisions and analyses to be 
used in the NEPA process?

    There are no guarantees. However, the potential is greatly 
improved for transportation planning processes that address the ``3-
C'' planning principles (comprehensive, cooperative, and 
continuous); incorporate the intent of NEPA through the 
consideration of natural, physical, and social effects; involve 
environmental, regulatory, and resource agencies; thoroughly 
document the transportation planning process information, analysis, 
and decision; and vet the planning results through the applicable 
public involvement processes.

6. What considerations will the FHWA/FTA take into account in their 
review of transportation planning products for acceptance in project 
development/NEPA?

    The FHWA and the FTA will give deference to decisions resulting 
from the transportation planning process if the FHWA and FTA 
determine that the planning process is consistent with the ``3-C'' 
planning principles and when the planning study process, 
alternatives considered, and resulting decisions have a rational 
basis that is thoroughly documented and vetted through the 
applicable public involvement processes. Moreover, any applicable 
program-specific requirements (e.g., the Congestion Mitigation and 
Air Quality Improvement Program or the FTA's Capital Investment 
Grant program) also must be met.
    The NEPA requires that the FHWA and the FTA be able to stand 
behind the overall soundness and credibility of analyses conducted 
and decisions made during the transportation planning process if 
they are incorporated into a NEPA document. For example, if systems-
level or other broad objectives or choices from the transportation 
plan are incorporated into the purpose and need statement for a NEPA 
document, the FHWA and the FTA should not revisit whether these are 
the best objectives or choices among other options. Rather, the FHWA 
and the FTA review would include making sure that objectives or 
choices derived from the transportation plan were: Based on 
transportation planning factors established by Federal law; reflect 
a credible and articulated planning rationale; founded on reliable 
data; and developed through transportation planning processes 
meeting FHWA and FTA statutory and regulatory requirements. In 
addition, the basis for the goals and choices must be documented and 
included in the NEPA document. The FHWA/FTA reviewers do not need to 
review whether assumptions or analytical methods used in the studies 
are the best available, but, instead, need to assure that such 
assumptions or analytical methods are reasonable, scientifically 
acceptable, and consistent with goals, objectives, and policies set 
forth in long-range transportation plans. This review would include 
determining whether: (a) Assumptions have a rational basis and are 
up-to-date and (b) data, analytical methods, and modeling techniques 
are reliable, defensible, reasonably current, and meet data quality 
requirements.

II. Substantive

General Issues To Be Considered

7. What should be considered in order to rely upon transportation 
planning studies in NEPA?

    The following questions should be answered prior to accepting 
studies conducted during the transportation planning process for use 
in NEPA. While not a ``checklist,'' these questions are intended to

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guide the practitioner's analysis of the planning products:
     How much time has passed since the planning studies and 
corresponding decisions were made?
     Were the future year policy assumptions used in the 
NEPA study related to land use, economic development, transportation 
costs, and network expansion consistent with those developed and 
used in the transportation planning process?
     Is the information still relevant/valid?
     What changes have occurred in the area since the study 
was completed?
     Is the information in a format that can be appended to 
an environmental document or reformatted to do so?
     Are the analyses in a planning-level report or document 
based on data, analytical methods, and modeling techniques that are 
reliable, defensible, and consistent with that used in other 
regional transportation studies and project development activities?
     Were the FHWA and FTA, other agencies, and the public 
involved in the relevant planning analysis and the corresponding 
planning decisions?
     Were the planning products available to other agencies 
at NEPA scoping?
     At NEPA scoping, was a clear connection between the 
decisions made in planning and those to be made during the project 
development stage explained to the public and others? What was the 
response?
     Are natural resource and land use plans being informed 
by transportation planning products, and vice versa?

Purpose and Need

8. How can transportation planning be used to shape a project's purpose 
and need in the NEPA process?

    A sound transportation planning process is the primary source of 
the project purpose and need. Through transportation planning, State 
and local governments, with involvement of stakeholders and the 
public, establish a vision for the region's future transportation 
system, define transportation goals and objectives for realizing 
that vision, decide which needs to address, and determine the 
timeframe for addressing these issues. The transportation planning 
process also provides a potential forum to define a project's 
purpose and need by framing the scope of the problem to be addressed 
by a proposed project. This scope may be further refined during the 
transportation planning process as more information about the 
transportation need is collected and consultation with the public 
and other stakeholders clarifies other issues and goals for the 
region.
    Section 6002 of the SAFETEA-LU also provided additional focus 
regarding the definition of the purpose and need and objectives. For 
example, the lead agency, as early as practicable during the 
environmental review process, shall provide an opportunity for 
involvement by participating agencies and the public in defining the 
purpose and need for a project. The statement of purpose and need 
shall include a clear statement of the objectives that the proposed 
action is intended to achieve, which may include: (a) Achieving a 
transportation objective identified in an applicable statewide or 
metropolitan transportation plan; (b) supporting land use, economic 
development, or growth objectives established in applicable Federal, 
State, local, or Tribal plans; and (c) serving national defense, 
national security, or other national objectives, as established in 
Federal laws, plans, or policies.
    The transportation planning process can be utilized to develop 
the purpose and need in the following ways:
    (a) Goals and objectives from the transportation planning 
process may be part of the project's purpose and need statement;
    (b) A general travel corridor or general mode or modes (i.e., 
highway, transit, or a highway/transit combination) resulting from 
planning analyses may be part of the project's purpose and need 
statement;
    (c) If the financial plan for a metropolitan transportation plan 
indicates that funding for a specific project will require special 
funding sources (e.g., tolls or public-private financing), such 
information may be included in the purpose and need statement; or
    (d) The results of analyses from management systems (e.g., 
congestion, pavement, bridge, and/or safety) may shape the purpose 
and need statement.
    The use of these planning-level goals and choices must be 
appropriately explained in the NEPA document.
    Consistent with NEPA, the purpose and need statement should be a 
statement of a transportation problem, not a specific solution. 
However, the purpose and need statement should be specific enough to 
generate alternatives that may potentially yield real solutions to 
the problem at-hand. A purpose and need statement that yields only 
one alternative may indicate a purpose and need that is too narrowly 
defined.
    Short of a fully integrated transportation decisionmaking 
process, many State DOTs develop information for their purpose and 
need statements when implementing interagency NEPA/Section 404 
process merger agreements. These agreements may need to be expanded 
to include commitments to share and utilize transportation planning 
products when developing a project's purpose and need.

9. Under what conditions can the NEPA process be initiated in 
conjunction with transportation planning studies?

    The NEPA process may be initiated in conjunction with 
transportation planning studies in a number of ways. A common method 
is the ``tiered EIS,'' in which general travel corridors, modes, 
and/or packages of projects are evaluated at a planning level of 
detail, leading to the refinement of purpose and need and, ideally, 
selection of the design concept and scope for a subsequent project 
or series of projects. The tiered EIS uses the NEPA process as a 
tool to involve environmental, regulatory, and resource agencies and 
the public in these decisions, as well as to ensure the appropriate 
consideration of environmental factors in these planning-level 
decisions.
    Corridor or subarea analyses/studies are another option when the 
long-range transportation plan leaves open the possibility of 
multiple approaches to fulfill its goals and objectives. In such 
cases, the formal NEPA process could be initiated through 
publication of a NOI in conjunction with a corridor or subarea 
study. Similarly, some public transportation operators developing 
major capital projects perform the planning Alternatives Analysis 
required for funding under FTA's Capital Investment Grant program 
found in 49 U.S.C. 5309(d) and (e) within the NEPA process and 
combine the planning Alternatives Analysis with the draft NEPA 
document.

Alternatives

10. In the context of this Appendix, what is the meaning of the term 
``alternatives?''

    This Appendix uses the term ``alternatives'' as specified in the 
NEPA regulations (40 CFR 1502.14), where it is defined in its 
broadest sense to include everything from major modal alternatives 
and location alternatives to minor design changes that would 
mitigate adverse impacts. This Appendix does not use the term as it 
is used in many other contexts (e.g., ``prudent and feasible 
alternatives'' under Section 4(f) of the Department of 
Transportation Act, the ``Least Environmentally Damaging Practicable 
Alternative'' under the Clean Water Act, or the planning 
Alternatives Analysis in 49 U.S.C. 5309(d) and (e)).
    However, as early as possible in the transportation planning 
stage of any project, a determination should be made as to whether 
the alternatives to be considered will need to be used to satisfy 
multiple statutory and regulatory requirements that will be 
addressed during the subsequent project development process as an 
integral part of the NEPA process. If so, during transportation 
planning, the alternatives chosen for consideration and the analysis 
of those alternatives should reflect the multiple objectives that 
must be addressed. For example, if a potential project would require 
a Section 404 permit, ideally there would be coordination with the 
U. S. Army Corps of Engineers (COE) and some level of agreement from 
the COE that the alternatives considered are broad enough to allow 
for the ultimate development of a Least Environmentally Damaging 
Practicable Alternative. In this case, screening of alternatives for 
the presence of important wetlands based on geographic information 
systems (GIS) or other planning-level data sources would be 
appropriate to support this early determination.

11. Under what circumstances can alternatives be eliminated from 
detailed consideration during the NEPA process based on information and 
analysis from the transportation planning process?

    There are two ways in which the transportation planning process 
can begin limiting the alternative solutions to be evaluated during 
the NEPA process: (a) Shaping the purpose and need for the project; 
or (b) evaluating alternatives during planning studies and 
eliminating some of the alternatives from detailed study in the NEPA 
process prior to the start of the project-level NEPA process. Each 
approach requires careful attention, and is summarized below.
    (a) Shaping the Purpose and Need for the Project: The 
transportation planning process

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should shape the purpose and need and, thereby, the range of 
reasonable alternatives. With proper documentation and public 
involvement, a purpose and need derived from the planning process 
can legitimately narrow the alternatives analyzed in the NEPA 
process. See the response to Question 8 for further discussion on 
how the planning process can shape the purpose and need used in the 
NEPA process.
    For example, the purpose and need may be shaped by the 
transportation planning process in a manner that consequently 
narrows the range of alternatives that must be considered in detail 
in the NEPA document when:
    (1) The transportation planning process has selected a general 
travel corridor as best addressing identified transportation 
problems and the rationale for the determination in the planning 
document is reflected in the purpose and need statement of the 
subsequent NEPA document;
    (2) The transportation planning process has selected a general 
mode (i.e., highway, transit, or a highway/transit combination) that 
accomplishes its goals and objectives, and these documented 
determinations are reflected in the purpose and need statement of 
the subsequent NEPA document; or
    (3) The transportation planning process determines that the 
project needs to be funded by tolls or other non-traditional funding 
sources in order for the long-range transportation plan to be 
fiscally constrained or identifies goals and objectives that can 
only be met by toll roads or other non-traditional funding sources, 
and that determination of those goals and objectives is reflected in 
the purpose and need statement of the subsequent NEPA document.
    (b) Evaluating and Eliminating Alternatives During the 
Transportation Planning Process: The evaluation and elimination of 
alternatives during the transportation planning process can be 
incorporated by reference into a NEPA document under certain 
circumstances. In these cases, the planning study becomes part of 
the NEPA process and provides a basis for screening out 
alternatives. As with any part of the NEPA process, the analysis of 
alternatives to be incorporated from the process must have a 
rational basis that has been thoroughly documented (including 
documentation of the necessary and appropriate vetting through the 
applicable public involvement processes). This record should be made 
available for public review during the NEPA scoping process.
    See responses to Questions 4, 5, 6, and 7 for additional 
elements to consider with respect to acceptance of planning products 
for NEPA documentation and the response to Question 12 on the 
information or analysis from the transportation planning process 
necessary for supporting the elimination of an alternative(s) from 
detailed consideration in the NEPA process.
    For instance, under FTA's Capital Investment Grant program, the 
alternatives considered in the NEPA process may be narrowed in those 
instances that the planning Alternatives Analysis required by 49 
U.S.C. 5309(e) is conducted as a planning study prior to the NEPA 
review. In fact, the FTA may be able to narrow the alternatives 
considered in detail in the NEPA document to the No-Build (No 
Action) alternative and the Locally Preferred Alternative. 
Alternatives must meet the following criteria if they are deemed 
sufficiently considered by a planning Alternatives Analysis under 
FTA's Capital Investment Grant program conducted prior to NEPA 
without a programmatic NEPA analysis and documentation:
     During the planning Alternatives Analysis, all of the 
reasonable alternatives under consideration must be fully evaluated 
in terms of their transportation impacts; capital and operating 
costs; social, economic, and environmental impacts; and technical 
considerations;
     There must be appropriate public involvement in the 
planning Alternatives Analysis;
     The appropriate Federal, State, and local 
environmental, regulatory, and resource agencies must be engaged in 
the planning Alternatives Analysis;
     The results of the planning Alternatives Analysis must 
be documented;
     The NEPA scoping participants must agree on the 
alternatives that will be considered in the NEPA review; and
     The subsequent NEPA document must include the 
evaluation of alternatives from the planning Alternatives Analysis.
    The above criteria apply specifically to FTA's Capital 
Investment Grant process. However, for other transportation 
projects, if the planning process has included the analysis and 
stakeholder involvement that would be undertaken in a first tier 
NEPA process, then the alternatives screening conducted in the 
transportation planning process may be incorporated by reference, 
described, and relied upon in the project-level NEPA document. At 
that point, the project-level NEPA analysis can focus on the 
remaining alternatives.

12. What information or analysis from the transportation planning 
process is needed in an EA or EIS to support the elimination of an 
alternative(s) from detailed consideration?

    The section of the EA or EIS that discusses alternatives 
considered but eliminated from detailed consideration should:
    (a) Identify any alternatives eliminated during the 
transportation planning process (this could include broad categories 
of alternatives, as when a long-range transportation plan selects a 
general travel corridor based on a corridor study, thereby 
eliminating all alternatives along other alignments);
    (b) Briefly summarize the reasons for eliminating the 
alternative; and
    (c) Include a summary of the analysis process that supports the 
elimination of alternatives (the summary should reference the 
relevant sections or pages of the analysis or study) and incorporate 
it by reference or append it to the NEPA document.
    Any analyses or studies used to eliminate alternatives from 
detailed consideration should be made available to the public and 
affected agencies during the NEPA scoping process and should be 
reasonably available during comment periods.
    Alternatives passed over during the transportation planning 
process because they are infeasible or do not meet the NEPA 
``purpose and need'' can be omitted from the detailed analysis of 
alternatives in the NEPA document, as long as the rationale for 
elimination is explained in the NEPA document. Alternatives that 
remain ``reasonable'' after the planning-level analysis must be 
addressed in the EIS, even when they clearly are not the preferred 
alternative. When the proposed action evaluated in an EA involves 
unresolved conflicts concerning alternative uses of available 
resources, NEPA requires that appropriate alternatives be studied, 
developed, and described.

Affected Environment and Environmental Consequences

13. What types of planning products provide analysis of the affected 
environment and environmental consequences that are useful in a 
project-level NEPA analysis and document?

    The following planning products are valuable inputs to the 
discussion of the affected environment and environmental 
consequences (both its current state and future state in the absence 
of the proposed action) in the project-level NEPA analysis and 
document:
     Regional development and growth analyses;
     Local land use, growth management, or development 
plans; and
     Population and employment projections.
    The following are types of information, analysis, and other 
products from the transportation planning process that can be used 
in the discussion of the affected environment and environmental 
consequences in an EA or EIS:
    (a) GIS overlays showing the past, current, or predicted future 
conditions of the natural and built environments;
    (b) Environmental scans that identify environmental resources 
and environmentally sensitive areas;
    (c) Descriptions of airsheds and watersheds;
    (d) Demographic trends and forecasts;
    (e) Projections of future land use, natural resource 
conservation areas, and development; and
    (f) The outputs of natural resource planning efforts, such as 
wildlife conservation plans, watershed plans, and multiple species 
habitat conservation plans.
    However, in most cases, the assessment of the affected 
environment and environmental consequences conducted during the 
transportation planning process will not be detailed enough to meet 
NEPA standards and, thus, the inventory and evaluation of affected 
resources and the analysis of consequences of the alternatives will 
need to be supplemented with more refined analysis and possibly 
site-specific details during the NEPA process.

14. What information from the transportation planning process is useful 
in describing a baseline for the NEPA analysis of indirect and 
cumulative impacts?

    Because the nature of the transportation planning process is to 
look broadly at future

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land use, development, population increases, and other growth 
factors, the planning analysis can provide the basis for the 
assessment of indirect and cumulative impacts required under NEPA. 
The consideration in the transportation planning process of 
development, growth, and consistency with local land use, growth 
management, or development plans, as well as population and 
employment projections, provides an overview of the multitude of 
factors in an area that are creating pressures not only on the 
transportation system, but on the natural ecosystem and important 
environmental and community resources. An analysis of all reasonably 
foreseeable actions in the area also should be a part of the 
transportation planning process. This planning-level information 
should be captured and utilized in the analysis of indirect and 
cumulative impacts during the NEPA process.
    To be used in the analysis of indirect and cumulative impacts, 
such information should:
    (a) Be sufficiently detailed that differences in consequences of 
alternatives can be readily identified;
    (b) Be based on current data (e.g., data from the most recent 
Census) or be updated by additional information;
    (c) Be based on reasonable assumptions that are clearly stated; 
and/or
    (d) Rely on analytical methods and modeling techniques that are 
reliable, defensible, and reasonably current.

Environmental Mitigation

15. How can planning-level efforts best support advanced mitigation, 
banking, and priorities for environmental mitigation investments?

    A lesson learned from efforts to establish mitigation banks and 
advance mitigation agreements and alternative mitigation options is 
the importance of beginning interagency discussions during the 
transportation planning process. Development pressures, habitat 
alteration, complicated real estate transactions, and competition 
for potential mitigation sites by public and private project 
proponents can encumber the already difficult task of mitigating for 
``like'' value and function and reinforce the need to examine 
mitigation strategies as early as possible.
    Robust use of remote sensing, GIS, and decision support systems 
for evaluating conservation strategies are all contributing to the 
advancement of natural resource and environmental planning. The 
outputs from environmental planning can now better inform 
transportation planning processes, including the development of 
mitigation strategies, so that transportation and conservation goals 
can be optimally met. For example, long-range transportation plans 
can be screened to assess the effect of general travel corridors or 
density, on the viability of sensitive plant and animal species or 
habitats. This type of screening provides a basis for early 
collaboration among transportation and environmental staffs, the 
public, and regulatory agencies to explore areas where impacts must 
be avoided and identify areas for mitigation investments. This can 
lead to mitigation strategies that are both more economical and more 
effective from an environmental stewardship perspective than 
traditional project-specific mitigation measures.

III. Administrative Issues

16. Are Federal funds eligible to pay for these additional, or more in 
depth, environmental studies in transportation planning?

    Yes. For example, the following FHWA and FTA funds may be 
utilized for conducting environmental studies and analyses within 
transportation planning:
     FHWA planning and research funds, as defined under 23 
CFR part 420 (e.g., Metropolitan Planning (PL), Statewide Planning 
and Research (SPR), National Highway System (NHS), Surface 
Transportation Program (STP), and Equity Bonus); and
     FTA planning and research funds (49 U.S.C. 5303 and 49 
U.S.C. 5313(b)), urban formula funds (49 U.S.C. 5307), and (in 
limited circumstances) transit capital investment funds (49 U.S.C. 
5309).
    The eligible transportation planning-related uses of these funds 
may include: (a) Conducting feasibility or subarea/corridor needs 
studies and (b) developing system-wide environmental information/
inventories (e.g., wetland banking inventories or standards to 
identify historically significant sites). Particularly in the case 
of PL and SPR funds, the proposed expenditure must be closely 
related to the development of transportation plans and programs 
under 23 U.S.C. 134-135 and 49 U.S.C. 5303-5306.
    For FHWA funding programs, once a general travel corridor or 
specific project has progressed to a point in the preliminary 
engineering/NEPA phase that clearly extends beyond transportation 
planning, additional in-depth environmental studies must be funded 
through the program category for which the ultimate project 
qualifies (e.g., NHS, STP, Interstate Maintenance, and/or Bridge), 
rather than PL or SPR funds.
    Another source of funding is FHWA's Transportation Enhancement 
program, which may be used for activities such as: Conducting 
archeological planning and research; developing inventories such as 
those for historic bridges and highways, and other surface 
transportation-related structures; conducting studies to determine 
the extent of water pollution due to highway runoff; and conducting 
studies to reduce vehicle-caused wildlife mortality while 
maintaining habitat connectivity.
    The FHWA and the FTA encourage State DOTs, MPOs, and public 
transportation operators to seek partners for some of these studies 
from environmental, regulatory, and resource agencies, non-
government organizations, and other government and private sector 
entities with similar data needs, or environmental interests. In 
some cases, these partners may contribute data and expertise to the 
studies, as well as funding.

17. What staffing or organizational arrangements may be helpful in 
allowing planning products to be accepted in the NEPA process?

    Certain organizational and staffing arrangements may support a 
more integrated approach to the planning/NEPA decision-making 
continuum. In many cases, planning organizations do not have 
environmental expertise on staff or readily accessible. Likewise, 
the review and regulatory responsibilities of many environmental, 
regulatory, and resource agencies make involvement in the 
transportation planning process a challenge for staff resources. 
These challenges may be partially met by improved use of the outputs 
of each agency's planning resources and by augmenting their 
capabilities through greater use of GIS and remote sensing 
technologies (see http://www.gis.fhwa.dot.gov/ for additional 
information on the use of GIS). Sharing databases and the planning 
products of local land use decision-makers and State and Federal 
environmental, regulatory, and resource agencies also provide 
efficiencies in acquiring and sharing the data and information 
needed for both transportation planning and NEPA work.
    Additional opportunities such as shared staff, training across 
disciplines, and (in some cases) reorganizing to eliminate 
structural divisions between planning and NEPA practitioners may 
also need to be considered in order to better integrate NEPA 
considerations into transportation planning studies. The answers to 
the following two questions also contain useful information on 
training and staffing opportunities.

18. How have environmental, regulatory, and resource agency liaisons 
(Federally- and State DOT-funded positions) and partnership agreements 
been used to provide the expertise and interagency participation needed 
to enhance the consideration of environmental factors in the planning 
process?

    For several years, States have utilized Federal and State 
transportation funds to support focused and accelerated project 
review by a variety of local, State, Tribal, and Federal agencies. 
While Section 1309(e) of the TEA-21 spoke specifically to 
transportation project streamlining, there are other authorities 
that have been used to fund positions, such as the Intergovernmental 
Cooperation Act (31 U.S.C. 6505). In addition, long-term, on-call 
consultant contracts can provide backfill support for staff that are 
detailed to other parts of an agency for temporary assignments. At 
last count (as of 2003), 246 positions were being funded. Additional 
information on interagency funding agreements is available at: 
http://environment.fhwa.dot.gov/strmlng/igdocs/index.htm.
    Moreover, every State has advanced a variety of stewardship and 
streamlining initiatives that necessitate early involvement of 
environmental, regulatory, and resource agencies in the project 
development process. Such process improvements have: Addressed the 
exchange of data to support avoidance and impact analysis; 
established formal and informal consultation and review schedules; 
advanced mitigation strategies; and resulted in a variety of 
programmatic reviews. Interagency agreements and workplans have 
evolved to describe performance objectives, as well as specific 
roles and responsibilities related to new streamlining initiatives. 
Some States have improved collaboration and

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efficiency by co-locating environmental, regulatory, and resource 
and transportation agency staff.

19.What training opportunities are available to MPOs, State DOTs, 
public transportation operators and environmental, regulatory, and 
resource agencies to assist in their understanding of the 
transportation planning and NEPA processes?

    Both the FHWA and the FTA offer a variety of transportation 
planning, public involvement, and NEPA courses through the National 
Highway Institute and/or the National Transit Institute. Of 
particular note is the Linking Planning and NEPA Workshop, which 
provides a forum and facilitated group discussion among and between 
State DOT; MPO; Federal, Tribal, and State environmental, 
regulatory, and resource agencies; and FHWA/FTA representatives (at 
both the executive and program manager levels) to develop a State-
specific action plan that will provide for strengthened linkages 
between the transportation planning and NEPA processes.
    Moreover, the U. S. Fish and Wildlife Service offers Green 
Infrastructure Workshops that are focused on integrating planning 
for natural resources (``green infrastructure'') with the 
development, economic, and other infrastructure needs of society 
(``gray infrastructure'').
    Robust planning and multi-issue environmental screening requires 
input from a wide variety of disciplines, including information 
technology; transportation planning; the NEPA process; and 
regulatory, permitting, and environmental specialty areas (e.g., 
noise, air quality, and biology). Senior managers at transportation 
and partner agencies can arrange a variety of individual training 
programs to support learning curves and skill development that 
contribute to a strengthened link of the transportation planning and 
NEPA processes. Formal and informal mentoring on an intra-agency 
basis can be arranged. Employee exchanges within and between 
agencies can be periodically scheduled, and persons involved with 
professional leadership programs can seek temporary assignments with 
partner agencies.
    Transportation planning and NEPA courses offered by various 
agencies and private sources have been compiled as part of the 
Executive Order 13274 (Environmental Stewardship and Transportation 
Infrastructure Project Reviews) workgroup efforts. This list is 
posted at http://www.fhwa.dot.gov/stewardshipeo/index.htm.

IV. Additional Information on This Topic

    Valuable sources of information are FHWA's environmental 
streamlining Web site (http://environment.fhwa.dot.gov/strmlng/
index.htm) and FTA's environmental streamlining Web site (http://
www.environment.fta.dot.gov). Another source of information and case 
studies is NCHRP Report 8-38 (Consideration of Environmental Factors 
in Transportation Systems Planning), which is available at http://
www4.trb.org/trb/crp.nsf/All+Projects/NCHRP+8-38. In addition, 
AASHTO's Center for Environmental Excellence Web site is 
continuously updated with news and links to information of interest 
to transportation and environmental professionals (http://
www.transportation.environment.org).

Appendix B to Part 450--Fiscal Constraint of Transportation Plans and 
Programs [Revised]

Background

    For over 40 years, the Congress has directed that federally-
funded highway and transit projects must flow from metropolitan and 
statewide transportation planning processes (pursuant to 23 U.S.C. 
134-135 and 49 U.S.C. 5303-5304). The Congress further refined and 
strengthened the planning process as the foundation for project 
decisions when it first enacted fiscal constraint provisions for 
transportation plans and programs as part of the Intermodal Surface 
Transportation Efficiency Act of 1991 (ISTEA).

    Fiscal constraint requires that revenues (Federal, State, local, 
and private) in transportation planning and programming are 
identified and ``reasonably expected to be available'' to implement 
projects required to be included in the metropolitan transportation 
plan, metropolitan Transportation Improvement Program (TIP), and the 
Statewide Transportation Improvement Program (STIP), while providing 
for the operation and maintenance of the existing highway and 
transit systems. Fiscal constraint has remained a key component of 
transportation plan and program development with the enactment of 
the Transportation Equity Act for the 21st Century (TEA-21) in 1998 
and the Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (SAFETEA-LU) on August 10, 2005.
    The fiscal constraint requirement is intended to ensure that 
metropolitan transportation plans, TIPs, and STIPs reflect realistic 
assumptions about future revenues, rather than extensive lists 
including more projects than could realistically be completed with 
available revenues. Importantly, for the purposes of developing the 
metropolitan transportation plan and TIP, the MPO, State DOT, and 
public transportation operator(s) must cooperatively develop 
estimates of funds that will be available to support plan and 
program implementation [23 U.S.C. 134 (i)(2)(C), 23 U.S.C. 
134(j)(1)(C), 49 U.S.C. 5301(a)(1), 49 U.S.C. 5303(j)(2)(C), and 49 
U.S.C. 5303(j)(2)(C)]. In addition, the Clean Air Act's 
transportation conformity regulations specify that a conformity 
determination can only be made on a fiscally constrained 
metropolitan transportation plan and TIP [40 CFR 93.108]. Given this 
intent, compliance with the fiscal constraint requirement entails an 
analysis of revenues and costs to address the following fundamental 
question:

    ``Will the revenues (Federal, State, local, and private) 
identified in the TIP, STIP, or metropolitan transportation plan 
cover the anticipated costs of the projects included in this TIP, 
STIP, or metropolitan transportation plan, along with operation and 
maintenance of the existing system?''

    If the projected revenues are sufficient to cover the costs, and 
the estimates of both revenues and costs are reasonable, then the 
fiscal constraint requirement has been satisfied. Additionally, 
projects in air quality nonattainment and maintenance areas can be 
included in the first two years of the TIP and STIP only if funds 
are ``available or committed.''
    The FHWA and the FTA also realize the challenges associated with 
forecasting project and program costs and revenues, particularly in 
the ``outer years'' of a metropolitan transportation plan. 
Therefore, the FHWA/FTA provide a great deal of flexibility in 
demonstrating fiscal constraint. For example, in years when a 
Federal transportation authorization bill is not yet enacted, State 
DOTs, MPOs, and public transportation operators may project and 
assume Federal revenues for the ``outer years'' based on a trend 
line projection. Additional information is provided in the following 
sections and the ``Questions and Answers.''

``Reasonably Available'' Future Revenues and ``Available or Committed'' 
Funds

    Revenue forecasts to support projects required to be included in 
a metropolitan transportation plan, TIP, and STIP may take into 
account new funding sources that are ``reasonably expected to be 
available.'' New funding sources are revenues that do not currently 
exist or that may require additional steps before the State DOT, 
MPO, or public transportation operator can commit such funding to 
transportation projects. As first required in ISTEA, these planned 
new revenue sources must be clearly identified.
    Future revenues may be projected based on historic trends, 
including consideration of past legislative or executive actions. 
The level of uncertainty in projections based on historical trends 
is generally greatest for revenues in the ``outer years'' of a 
metropolitan transportation plan (i.e., those beyond the first 10 
years of the metropolitan transportation plan). Additionally, for 
purposes of developing the financial plan to support the 
metropolitan transportation plan, the FHWA and the FTA encourage the 
use of aggregate ``cost ranges/cost bands'' to define costs in the 
outer years of the metropolitan transportation plan, with the caveat 
that the future funding sources must be ``reasonably available.''
    To support air quality planning under the 1990 Clean Air Act 
Amendments, a special requirement has been placed on air quality 
nonattainment and maintenance areas, as designated by the U. S. 
Environmental Protection Agency (EPA). Specifically, projects in air 
quality nonattainment and maintenance areas can be included in the 
first two years of the TIP and STIP only if funds are ``available or 
committed.'' Additionally, EPA's transportation conformity 
regulations specify that an air quality conformity determination can 
only be made on a fiscally constrained metropolitan transportation 
plan and TIP [40 CFR 93.108]. Therefore, nonattainment and 
maintenance areas may not rely upon proposed new taxes or other new 
revenue sources for the first two years of the TIP and STIP. Thus, 
new funding from a proposed gas tax increase, a proposed regional 
sales tax, or a major funding increase still under debate would not 
qualify as

[[Page 33557]]

``available or committed'' until it has been enacted by legislation 
or referendum.

Changes in Revenues or Costs After the Metropolitan Transportation 
Plan, TIP, or STIP are Adopted

    In cases that the FHWA and the FTA find a metropolitan 
transportation plan or TIP/STIP to be fiscally constrained and a 
revenue source is subsequently removed (i.e., by legislative or 
administrative actions), the FHWA and the FTA will not withdraw the 
original determination of fiscal constraint. In such cases, the FHWA 
and the FTA will require the State DOT or MPO to identify 
alternative sources of revenue as soon as possible. Importantly, the 
FHWA and FTA will not act on new or amended metropolitan 
transportation plan, TIP, or STIP unless they reflect the changed 
revenue situation.
    The same policy applies if project costs or operations/
maintenance cost estimates change after a metropolitan 
transportation plan, TIP, or STIP are adopted. Such a change in cost 
estimates does not invalidate the adopted transportation plan or 
program. However, the revised costs must be provided in new or 
amended metropolitan transportation plan, TIP, or STIP. The FHWA and 
the FTA will not approve new or amended STIPs that are based on 
outdated or invalid cost estimates.

System Preservation, Operations, and Maintenance Costs

    Since the enactment of ISTEA in 1991, fiscal constraint has 
encompassed operation and maintenance (O&M) of the system, as well 
as capital projects. On one hand, O&M activities typically do not 
involve Federal funds and are not listed individually in a 
metropolitan transportation plan, TIP, or STIP. However, the 
financial plans that support the metropolitan and statewide 
transportation planning processes must assess the adequacy of all 
sources of capital and O&M investment necessary to ensure the 
preservation of the existing transportation system, including 
provisions 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. To support this assessment, 
the FHWA and the FTA expect that the State DOT, MPO, and public 
transportation operator(s) will provide credible cost estimates.
    However, the FHWA and FTA largely defer to State and local 
governments and public transportation operators to define the 
specific level of systems O&M that is appropriate, since the FHWA 
and the FTA do not mandate a particular, specific level of O&M. 
Instead, the Federal government accepts that State and local 
governments, MPOs, and public transportation operators will adjust 
their O&M from year-to-year and decade-to-decade, based on community 
desires and requirements established through an open transportation 
planning process.
    Outside the transportation planning process, there also is a 
longstanding Federal requirement that States properly maintain, or 
cause to be maintained, any projects constructed under the Federal-
aid Highway Program [23 U.S.C. 116]. However, beyond this basic 
requirement of proper maintenance, the FHWA and the FTA do not 
question State and local government, MPO, or public transportation 
operator decisions on specific uses of funding or question State and 
local priorities that balance the operation and maintenance of the 
existing transportation system with needs for transportation system 
expansion. Instead, the FHWA and the FTA ensure that the process 
used by the State DOT, MPO, and public transportation operator(s) to 
establish priorities is consistent with the transportation planning 
statute and regulations and that the funding sources identified to 
address these priorities are ``reasonably expected to be 
available.'' In addition, consistent with regulations implementing 
the Clean Air Act, the FHWA and the FTA will also continue to assure 
that priority is given to the timely implementation of 
transportation control measures in the air quality State 
Implementation Plan [40 CFR 93.103 and 40 CFR 93.116].
    There is a subtle yet important distinction between projects or 
project phases listed in the TIP/STIP and the financial plan/
financial information that supports the TIP/STIP. It is not required 
that all highway and transit O&M projects be included in the TIP/
STIP, per se. However, these systems-level O&M costs and revenues 
must be reflected in the financial plan that accompanies and 
supports the TIP/STIP. Similarly, the O&M costs reflected in the 
financial plan for the first two years of the TIP/STIP in 
nonattainment and maintenance areas are not subject to the 
``available or committed'' requirement. Rather, they must be 
``reasonably expected to be available.''

Funding Gaps

    Substantial investments have been made in highway and transit 
infrastructure. The short- and long-term needs for system 
preservation, operation, and maintenance can be enormous. Simply 
maintaining the existing system in a State or large metropolitan 
area can demand billions of dollars in investments, while system 
expansion demands investments of a similar scale. At times, the 
combination of these competing demands can cause temporary 
shortfalls in a State's or MPO's budget. To the extent there appear 
to be shortfalls, the MPO or State DOT must identify a strategy to 
address these funding gaps prior to the adoption of an updated 
metropolitan transportation plan, TIP, or STIP (or the amendment of 
an existing metropolitan transportation plan, TIP or STIP). The 
strategy should include a plan of action that describes the steps 
that will be taken to make funding available within the timeframe 
shown in the financial plan needed to implement the projects in the 
metropolitan transportation plan. The strategy may rely upon the 
past history of the State, MPO, or public transportation operator(s) 
to obtain funding. If the strategy relies on new funding sources, 
the MPO, State, public transportation operator(s) must demonstrate 
that these funds are ``reasonably expected to be available.''

Questions and Answers

    Statewide and Metropolitan Transportation Improvement Program 
(STIP and TIP): 
    1. How should Federal and State funding be reflected in the TIP 
and STIP?
    The Federal funding reflected in the TIP and STIP may be based 
on authorization levels for each year of the TIP and/or STIP, 
although obligation authority limitations could be utilized as a 
more conservative approach. In addition, for federally-funded 
projects, the TIP and/or STIP must identify the appropriate 
``matched funds,'' by source. Importantly, because the State DOT 
will be involved in the development of all TIPs (as well as the 
STIP), the cumulative total of the State/Federal funds in the TIPs 
and STIP must not exceed, on an annual basis, the total State/
Federal funds reasonably available to the State.
    Financial forecasts (for revenues and costs) to develop TIPs and 
STIPs (as well as for metropolitan transportation plans) must 
utilize an inflation rate to reflect ``year of expenditure dollars'' 
to account for the time-based value of money. The inflation rate(s) 
should be based on sound, reasonable financial principles and 
information, developed cooperatively by the State DOT, MPOs, and 
public transportation operators. To ensure consistency, similar 
financial forecasting approaches should be utilized for all TIPs and 
STIPs in a given State. In addition, the financial forecast 
approaches, assumptions, and results should be clear and well-
documented.
    2. How should transit O&M activities and costs be treated in the 
TIP and STIP and their supporting financial plans?
    With the exception of federally-supported transit operating 
costs in urbanized areas with populations less than 200,000, transit 
O&M activities are not required to be listed individually in the 
TIP, STIP, and metropolitan transportation plan. However, the 
supporting financial plans for the TIP, STIP, and metropolitan 
transportation plan must demonstrate the ability of operators to 
adequately operate and maintain their existing systems, as well as 
the new projects and strategies listed in the TIP, STIP, and 
metropolitan transportation plan. ``Adequate'' levels of transit 
service and associated O&M costs are determined by local officials, 
who may decide to defer maintenance and/or increase operating 
revenues as a means of balancing their budgets.
    3. How exact should the funding estimates for O&M be for the 
financial plans/information that support the TIP and STIP?
    Revenue and cost estimates for O&M will be more general than 
estimates for individual projects. For the financial plan that must 
accompany the TIP, the MPO may rely on the information contained in 
the financial plan that supports the metropolitan transportation 
plan to develop four-year ``snapshot'' estimates of O&M funding 
sources and costs. Similarly for the STIP, the State DOT may utilize 
other documents (e.g., the long-range statewide transportation plan 
and/or State DOT budget information) to demonstrate sufficient 
resources for the operations and maintenance of the State surface

[[Page 33558]]

transportation system for at least the time period covered by the 
STIP. O&M involving local and/or State funds may be shown as a 
``grouped line item'' in the financial plans for the TIP and STIP.
    The FHWA and the FTA generally rely on the overall O&M 
information and analysis provided in support of the metropolitan and 
statewide transportation plans, including information on substantial 
changes to revenue streams for short-term (i.e., programming-level) 
operations and maintenance expenditures. It is also reasonable to 
rely on supplemental State DOT information for non-metropolitan 
areas if similar information and/or analysis are not contained in a 
financial plan for the long-range statewide transportation plan or 
the TIP and STIP. Additionally, knowledge of local and/or State 
funding levels and previous year expenditures related to operations 
and maintenance compared to systems-level performance measures 
(e.g., pavement and/or bridge conditions) can provide insightful 
information on the reasonableness of future local and/or State 
investments on highway and transit O&M.
    Possible sources of data for O&M revenues and costs for States 
and MPOs to use in collecting this information for the State and 
local highway systems include the Highway Statistics \1\ 
publication, capital improvement programs or budgets, and pavement 
management systems. For transit O&M costs, the best data sources 
likely are the public transportation operators and/or the units of 
government that are responsible for the public transit system(s), as 
well as the information contained in FTA's financial capacity 
reviews conducted for its Section 5307 (Urbanized Formula) and 
Section 5309 (New Starts, Bus, and Rail Modernization) programs.\2\ 
The key is for State DOTs, MPOs, and public transportation operators 
(via the ``3-C'' planning process) to coordinate with the various 
local agencies to determine the best sources of these data.
---------------------------------------------------------------------------

    \1\ The FHWA's Highway Statistics Series consists of annual 
reports containing analyzed statistical data on motor fuel; motor 
vehicles; driver licensing; highway-user taxation; State and local 
government highway finance; highway mileage, and Federal-aid for 
highways. These data are presented in tabular format as well as 
selected charts and have been published each year since 1945. The 
annual Highway Statistics reports are available from the FHWA's 
Office of Highway Policy Information at http://www.fhwa.dot.gov/
policy/ohpi/hss/index.htm.
    \2\ Additional information on FTA's Section 5307 and Section 
5309 programs is available from the FTA at http://www.fta.dot.gov.
---------------------------------------------------------------------------

    As a condition for applying for grants under FTA's Section 5307 
and Section 5309 programs, public transportation operators are 
required to self-certify their financial capacity to pay current 
costs from existing revenues and to meet expansion costs in addition 
to their existing operations from projected revenues. The FTA 
assesses the adequacy of financial capacity self-certifications at 
the TIP/STIP approval stage and for any capital grant approval 
(FTA's Capital Investment Grant program in 49 U.S.C. 5309 includes 
additional financial assessment requirements). Similar to the joint 
FHWA/FTA certification of the metropolitan panning processes in 
Transportation Management Areas, deficiencies are recorded for 
grantees that do not meet financial capacity requirements. The 
requirements, set forth in FTA Circular 7800.1A (Financial Capacity 
Policy),\3\ call for public transportation operators to ``* * 
*maintain and operate current assets, and to operate and maintain 
the new assets on the same basis, providing at least the same level 
of service for at least one replacement cycle, or 20 years, as 
appropriate.'' Public transportation operators could attach their 
financial capacity self-certifications, with appropriate supporting 
information, to the financial plan supporting the TIP/STIP.
---------------------------------------------------------------------------

    \3\ FTA Circular 7800.1A (Financial Capacity Policy) was last 
updated on January 30, 2002, and is available from the FTA at http:/
/www.fta.dot.gov/legal/guidance/circulars/7000/424_1081_ENG_
HTML.htm.
---------------------------------------------------------------------------

    4. Must innovative finance mechanisms be reflected in the TIP/
STIP? To what extent must Advance Construction (AC) be shown in the 
TIP/STIP?
    Yes, innovative financing techniques (e.g., tolls, Grant 
Anticipated Revenue Vehicles (GARVEE bonds), State Infrastructure 
Banks (SIBs), and Transportation Infrastructure Finance and 
Innovation Act (TIFIA)) must be reflected in the TIP and/or STIP. 
Additional information on innovative finance can be obtained via the 
Internet at the following FHWA and FTA Web sites:
     FHWA Innovative Finance Guidance http://
www.fhwa.dot.gov/innovativefinance/ifguidnc.htm
     FTA Innovative Finance Guidance http://www.fta.dot.gov/
1263_ENG_HTML.htm
     FTA Flexible Funds Guidance http://www.fta.dot.gov/
1254_ENG_HTML.htm
    Advance Construction (AC) and partial conversion of advanced 
construction (PCAC) are cash flow management tools that allow States 
to begin projects with their own funds and only later convert these 
projects to Federal assistance. AC allows a State to request and 
receive approval to construct Federal-aid projects in advance of the 
apportionment of authorized Federal-aid funds. Typically, States (at 
their discretion) ``convert'' AC projects to Federal-aid at any time 
sufficient Federal-aid funds and obligation authority are available 
at one time. Under PCAC, a State (at its discretion) partially 
``converts'' AC projects to Federal-aid funds in stages.
    Title 23, U.S.C., section 115(c) specifies that an AC project 
application may be approved ``* * * only if the project is included 
in the STIP.'' Because AC does not constitute a commitment of 
Federal funds to a project, the financial plan and/or funding 
information for the TIP and STIP, respectively, need to demonstrate 
sufficient non-Federal revenues to provide 100 percent funding for 
the projects listed as ``AC'' in the TIP and/or STIP. The total 
amount of allowable AC in the TIP and/or STIP is determined by: (a) 
The State's current unobligated balance of apportionments; and (b) 
the amount of Federal funds anticipated in the subsequent fiscal 
years of an approved STIP.
    In practice, an AC project/project phase essentially is included 
in the TIP and/or STIP at two different points in time: (a) As State 
or local funds prior to the initial authorization of the AC project 
(including an assurance from the State that adequate State funds are 
available to ``front'' the cost of the project/project phase); and 
(b) prior to the authorization of the project/project phase to 
``convert'' it from AC to a Federal-aid funding program (including a 
demonstration from the State that this ``conversion'' maintains 
fiscal constraint with other Federal-aid projects). Therefore, in 
the year of an AC project's ``conversion,'' the project is 
considered as both a State revenue source and a Federal-aid debit. 
Similarly, Federal funding utilized to make payments on debt 
instruments such as GARVEE bonds must be deducted from the amounts 
of Federal funds available for new federally-funded projects. In 
either case, the TIP and/or STIP should show the obligation of 
Federal-aid category funds and the resultant increase in available 
non-Federal funds.
    5. To what extent can future Federal program funds be assumed 
for developing TIPs and STIPs, particularly beyond the current 
authorization or appropriations period?
    When the TIP or STIP period extends beyond the current 
authorization period for Federal program funds, ``available'' funds 
may include an extrapolation based on historic authorizations of 
Federal funds that are distributed by formula. For Federal funds 
that are distributed on a discretionary basis (including FTA Section 
5309, earmarks, and congressionally-designated funding), any funding 
beyond that currently authorized and targeted to the area may be 
considered as reasonably available, if past history supports such 
funding levels.
    Therefore, when determining future year authorizations/
apportionments, the growth rate as determined through the previous 
authorizations can be used to approximate the future annual growth 
rate of Federal authorizations. For example, since the TEA-21 was a 
six-year bill, the growth rate could be determined over the entire 
authorization period (fiscal year (FY) 1998-FY 2003), but excluding 
the Revenue Aligned Budget Authority from the calculations.
    Upon the enactment of new authorizing legislation, State DOTs 
(in conjunction with MPOs and public transportation operators) must 
utilize the actual authorization levels and individual discretionary 
project funding amounts in the development of any updated TIP/STIP 
or amendment of an existing TIP/STIP.

Metropolitan Transportation Plan

    6. How should revenues from ``public-private partnerships'' be 
treated?
    ``Public-private partnerships'' (PPP) are an emerging area 
related to transportation finance that refer to contractual 
agreements formed between a public agency and private sector entity 
that allow for greater private sector participation in the delivery 
of transportation projects. Traditionally, private sector 
participation has been limited to separate planning, design, or 
construction contracts as a fee-for-service arrangement, based on 
the public agency's specifications.

[[Page 33559]]

Expanding the private sector role allows the public agencies to tap 
private sector technical, management, and financial resources in new 
ways to achieve certain public agency objectives (e.g., greater cost 
and schedule certainty, supplementing in-house staff, innovative 
technology applications, specialized expertise, or access to private 
capital). The private partner can expand its business opportunities 
in return for assuming these new or expanded responsibilities and 
risks. Additional information on new PPP approaches to project 
delivery can be obtained via the Internet at http://
www.fhwa.dot.gov/ppp/index.htm.
    The PPP projects often are undertaken to supplement conventional 
procurement practices by taking additional revenue sources and 
mixing a variety of funding sources, thereby reducing demands on 
constrained public budgets. Some of the revenue sources used to 
support PPPs include: (a) Shareholder equity; (b) grant anticipation 
bonds (GARVEEs and Grant Anticipation Notes); (c) general obligation 
bonds; (d) SIB loans; (e) direct user charges (tolls and transit 
fares) leveraged to obtain bonds; and (f) other public agency 
dedicated revenue streams made available to a private franchisee or 
concessionaire (e.g., leases, direct user charges from other tolled 
facilities, and shadow tolls). Additional information on these 
financing approaches and tools is available online from the American 
Association of State and Transportation Officials at http://
www.InnovativeFinance.org.
    Within the financial plan that supports the metropolitan 
transportation plan, a prospective PPP should be addressed on a 
case-by-case basis, reflected as a source that is ``reasonably 
expected to be available.''
    7. How should future costs be estimated and documented?
    Financial forecasts (for revenues and costs) to support the 
metropolitan transportation plan (as well as the TIP and STIP) must 
utilize an inflation rate to reflect ``year of expenditure dollars'' 
to account for the time-based value of money. The inflation rate(s) 
should be based on sound, reasonable financial principles and 
information, developed cooperatively by the MPO, State DOT, and 
public transportation operator(s). To ensure consistency, similar 
financial forecasting approaches should be utilized for the 
metropolitan transportation plan and TIP in a given MPO.
    Cost forecasts can be established in a number of ways. For 
example, O&M can be based on historic data applied on a per-lane 
mile and functional classification basis or an annual lump sum 
basis. Capital costs can be based on historic costs for: (a) An 
interchange; (b) new construction on new rights-of-way; (c) 
structure (number, type, and deck square footage (area) for various 
structure types); (d) transit vehicles for rolling stock 
procurement; or (e) widening and/or reconstruction, based on the 
extent of the project. In addition, capital cost estimates can be 
based on project-specific estimates contained in planning, 
environmental, or engineering studies, and updated as new 
information is prepared as part of project development.
    Transit operating costs can be estimated by general mode type on 
a revenue-mile or passenger-mile basis, in accordance with the 
following principles: (a) Reflect historic operations; (b) 
anticipate future operations; (c) address all functional 
responsibilities of the transit property; (d) focus on major cost 
components; (e) apply consistent level of service data: (f) apply 
peer transit property experience; (g) apply readily available 
information; (h) provide fully-allocated costs for use in cost-
effectiveness analysis; (i) structure for sensitivity analyses; and 
(j) document model theory and application [for additional 
information, see ``Chapter 2: Principles of Operating and 
Maintenance Cost Modeling'' in Estimation of Operating and 
Maintenance Costs for Transit Systems, available on the FTA Web site 
at http://www.fta.dot.gov/transit_data_info/reports_publications/
publications/finance/estimation_operating/1210_2455_ENG_
HTML.htm]. Transit system capital costs involve the estimation of 
capital costs for a broad variety of project components and the 
projection of future construction. Special consideration should be 
given to factors such as design changes, component upgrades, 
lengthened construction schedules, and the effects of general price 
inflation.
    Revenues and related cost estimates for O&M should be based on a 
reasonable, documented process. Some accepted practices include:
     Trend analysis (a functional analysis based on 
expenditures over a given duration, in which costs or revenues are 
increased by inflation, as well as a growth percentage based on 
historic levels). This analysis could be linear or exponential. When 
using this approach, however, it is important to be aware of new 
facilities or improvements to existing facilities. Transit 
operations and maintenance costs will vary with the average age of 
the bus or rail car fleet.
     Cost per unit of service (e.g., lane-mile costs, 
centerline mile costs, traffic signal cost, transit peak vehicles by 
vehicle type, revenue hours, and vehicle-miles by vehicle type).
    Regardless of the methodology employed, the assumptions should 
be adequately documented by the State DOT, the MPO, and the public 
transportation operator, ideally reflected in the State DOT and the 
MPO self-certification statements on the statewide and metropolitan 
transportation planning processes.
    The FHWA and the FTA recognize that estimating current and 
reasonably available new revenues and required operations and 
maintenance costs over a 20-year planning horizon is not an ``exact 
science.'' To provide discipline and rigor, public agencies should 
attempt to be as realistic as possible, as well as ensure that all 
costs assumptions are publicly documented.
    8. Does the financial plan need to include O&M costs for the 
entire transportation system or simply the portion for which the 
State is responsible? How should operations and maintenance be 
reflected in the financial plan?
    Titles 23, U.S.C., Section 134(i)(2)(D) and 49, U.S.C., Section 
5303(i)(2)(D) require development of a metropolitan transportation 
plan that includes capital investment and other strategies to 
preserve the existing and projected future infrastructure needs. It 
also requires operational and management strategies [23 U.S.C. 
134(i)(2)(E) and 49 U.S.C. 5303(i)(2)(E)] to improve the performance 
of existing transportation facilities. The metropolitan 
transportation plan also must contain a financial plan that 
demonstrates how the adopted transportation plan can be implemented, 
indicating resources from public and private sources that are 
reasonable expected to be made available to carry out the 
transportation plan [23 U.S.C. 134(i)(2)(C) and 49 U.S.C. 
5303(i)(2)(C)]. Therefore, the financial plan that supports the 
metropolitan transportation plan must reflect the estimated costs of 
constructing, operating, and maintaining the total (existing plus 
planned) transportation system, including portions of the system 
owned and operated by local governments.

Other Issues

    9. What are some examples of ``reasonable'' and ``not 
reasonable'' revenue forecasting assumptions?
    Whether or not a funding source is reasonable may require a 
judgment call. Illustrative (but not all-inclusive) examples of 
``reasonable'' and ``not reasonable'' assumptions are highlighted in 
the following table. Please note, however, that those described as 
``reasonable'' do not necessarily meet the special test of 
``available or committed'' funds.

Reasonable.......................  A new toll with funds to be dedicated
                                    to a particular project or program
                                    may be reasonable, if supported by
                                    the Governor and there are
                                    indications of other support needed
                                    to enact or institute the toll.
Reasonable.......................  A new local gas or sales tax
                                    requiring State legislation is
                                    reasonable if there are indications
                                    of sufficient support to enact the
                                    new tax.
Not reasonable...................  Funds from an upcoming ballot
                                    initiative would not be reasonable
                                    if polls indicate strong likelihood
                                    of defeat or there is a history of
                                    repeated defeat of similar ballot
                                    initiatives in recent years.
Not reasonable...................  A 25 percent increase in gas tax
                                    revenues over five years is not
                                    reasonable if the increase in the
                                    previous five years was only 15
                                    percent, unless there are special
                                    circumstances to justify and support
                                    a significantly higher increase than
                                    the historic rate.

[[Page 33560]]

 
Not reasonable...................  An assumption that the metropolitan
                                    area will receive 30 percent of a
                                    Federal discretionary program (e.g.,
                                    FTA New Starts) is not reasonable if
                                    the area has never received more
                                    than 10 percent in the past, unless
                                    there are special circumstances to
                                    justify and support such an
                                    assumption.
 

    10. What is the connection (if any) between financial plans that 
support Statewide and metropolitan transportation plans and programs 
and financial/funding information for FHWA major projects and FTA 
Capital Investment Grant projects?
    In general, the financial plans that support statewide and 
metropolitan transportation plans and programs do not need to 
contain the specific cash flow schedule information that typically 
is included for FHWA major projects (projects with an estimated 
total cost of $500 million or more, pursuant to Section 1904 of the 
SAFETEA-LU) or FTA Capital Investment Grant program projects. 
However, because a large-scale transportation project likely will 
have a substantial effect on a Statewide or metropolitan 
transportation plan and program, this project-specific cash flow 
schedule information can serve as a valuable resource on annual 
levels and sources of revenues for developing the financial plans 
that support Statewide and metropolitan transportation plans and 
programs.
    Additional information on financial planning for FHWA major 
projects and FTA New Starts projects can be obtained via the 
Internet at:
     FHWA Financial Plan Guidance (May 23, 2000) http://
www.fhwa.dot.gov/programadmin/ mega/fplans. htm#fpgmemo
     FHWA Major Project Program Cost Estimating Guidance 
(June 4, 2004) http://www.fhwa.dot.gov/programadmin/mega/
cefinal.htm
     Guidance for Transit Financial Plans (June 2000) http:/
/www.fta.dot.gov/documents/gftfp.pdf
     ``Financial Planning for Transit'' in Procedures and 
Technical Methods for Transit Project Planning
    http://www.fta.dot.gov/grant_programs/transportation_
planning/major_investment/technical_guidance/16352_ENG_
HTML.htm
     Estimation of Operating and Maintenance Costs for 
Transit Systems (December 1992) http://www.fta.dot.gov/transit_
data_info/reports_publications/publications/finance/1210_
ENG_HTML.htm

PART 500--MANAGEMENT AND MONITORING SYSTEMS

    2. Revise the authority citation for part 500 to read as follows:

    Authority: 23 U.S.C. 134, 135, 303, and 315; 49 U.S.C. 5303-
5305; 23 CFR 1.32; and 49 CFR 1.48 and 1.51.

    3. Revise Sec.  500.109 to read as follows:


Sec.  500.109  CMS.

    (a) For purposes of this part, congestion means the level at which 
transportation system performance is unacceptable due to excessive 
travel times and delays. Congestion management means the application of 
strategies to improve system performance and reliability by reducing 
the adverse impacts of congestion on the movement of people and goods 
in a region. A congestion management system or process is a systematic 
and regionally accepted approach for managing congestion that provides 
accurate, up-to-date information on transportation system operations 
and performance and assesses alternative strategies for congestion 
management that meet State and local needs.
    (b) The development of a congestion management system or process 
should result in performance measures and strategies that can be 
integrated into transportation plans and programs. The level of system 
performance deemed acceptable by State and local officials may vary by 
type of transportation facility, geographic location (metropolitan area 
or subarea and/or non-metropolitan area), and/or time of day. In both 
metropolitan and non-metropolitan areas, consideration needs to be 
given to strategies that manage demand, reduce single occupant vehicle 
(SOV) travel, and improve transportation system management and 
operations. Where the addition of general purpose lanes is determined 
to be an appropriate congestion management strategy, explicit 
consideration is to be given to the incorporation of appropriate 
features into the SOV project to facilitate future demand management 
strategies and operational improvements that will maintain the 
functional integrity of those lanes.

TITLE 49--TRANSPORTATION

    4. Revise 49 CFR part 613 to read as follows:

PART 613--METROPOLITAN AND STATEWIDE PLANNING

Subpart A--Transportation Planning and Programming Definitions
Sec.
613.100 Definitions.
Subpart B--Statewide Transportation Planning and Programming
613.200 Statewide transportation planning and programming.
Subpart C--Metropolitan Transportation Planning and Programming
450.300 Metropolitan transportation planning and programming.

Subpart A--Transportation Planning and Programming Definitions


Sec.  613.100  Definitions.

    The regulations in 23 CFR 450, subpart A, shall be followed in 
complying with the requirements of this subpart.

Subpart B--Statewide Transportation Planning and Programming


Sec.  613.200  Statewide transportation planning and programming.

    The regulations in 23 CFR 450, subpart B, shall be followed in 
complying with the requirements of this subpart.

Subpart C--Metropolitan Transportation Planning and Programming


Sec.  613.300  Metropolitan transportation planning and programming.

    The regulations in 23 CFR 450, subpart C, shall be followed in 
complying with the requirements of this subpart.

    Issued on: June 1, 2006.

J. Richard Capka,
Administrator, Federal Highway Administration.
Sandra K. Bushue,
Deputy Administrator, Federal Transit Administration.
[FR Doc. 06-5145 Filed 6-2-06; 10:22 am]
BILLING CODE 4910-22-P