[Title 23 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 23

Highways

                         Revised as of April 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

          Legal Status and Use of Seals and Logos
          
          
          The seal of the National Archives and Records Administration 
              (NARA) authenticates the Code of Federal Regulations (CFR) as 
              the official codification of Federal regulations established 
              under the Federal Register Act. Under the provisions of 44 
              U.S.C. 1507, the contents of the CFR, a special edition of the 
              Federal Register, shall be judicially noticed. The CFR is 
              prima facie evidence of the original documents published in 
              the Federal Register (44 U.S.C. 1510).

          It is prohibited to use NARA's official seal and the stylized Code 
              of Federal Regulations logo on any republication of this 
              material without the express, written permission of the 
              Archivist of the United States or the Archivist's designee. 
              Any person using NARA's official seals and logos in a manner 
              inconsistent with the provisions of 36 CFR part 1200 is 
              subject to the penalties specified in 18 U.S.C. 506, 701, and 
              1017.

          Use of ISBN Prefix

          This is the Official U.S. Government edition of this publication 
              and is herein identified to certify its authenticity. Use of 
              the 0-16 ISBN prefix is for U.S. Government Publishing Office 
              Official Editions only. The Superintendent of Documents of the 
              U.S. Government Publishing Office requests that any reprinted 
              edition clearly be labeled as a copy of the authentic work 
              with a new ISBN.

              
              
          U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E

          ------------------------------------------------------------------

          U.S. Superintendent of Documents   Washington, DC 20402-
              0001

          http://bookstore.gpo.gov

          Phone: toll-free (866) 512-1800; DC area (202) 512-1800

[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 23:
          Chapter I--Federal Highway Administration, 
          Department of Transportation                               3
          Chapter II--National Highway Traffic Safety 
          Administration and Federal Highway Administration, 
          Department of Transportation                             611
          Chapter III--National Highway Traffic Safety 
          Administration, Department of Transportation             681
  Finding Aids:
      Table of CFR Titles and Chapters........................     747
      Alphabetical List of Agencies Appearing in the CFR......     767
      List of CFR Sections Affected...........................     777

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 23 CFR 1.1 refers to 
                       title 23, part 1, section 
                       1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2017), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected]

SALES

    The Government Publishing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll-free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2104, 24 hours a day. For payment by check, 
write to: US Government Publishing Office - New Orders, P.O. Box 979050, 
St. Louis, MO 63197-9000.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.ofr.gov. For more 
information, contact the GPO Customer Contact Center, U.S. Government 
Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected]
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    April 1, 2017.







[[Page ix]]



                               THIS TITLE

    Title 23--Highways is composed of one volume. The contents of this 
volume represent the current regulations of the National Highway Traffic 
Safety Administration and the Federal Highway Administration, Department 
of Transportation, issued under this title of the CFR as of April 1, 
2017.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                           TITLE 23--HIGHWAYS




  --------------------------------------------------------------------
                                                                    Part

chapter i--Federal Highway Administration, Department of 
  Transportation............................................           1

chapter ii--National Highway Traffic Safety Administration 
  and Federal Highway Administration, Department of 
  Transportation............................................        1200

chapter iii--National Highway Traffic Safety Administration, 
  Department of Transportation..............................        1313

[[Page 3]]



 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION




  --------------------------------------------------------------------

           SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
Part                                                                Page
1               General.....................................           7
                    SUBCHAPTER B--PAYMENT PROCEDURES
140             Reimbursement...............................          12
172             Procurement, management, and administration 
                    of engineering and design related 
                    services................................          19
180             Credit assistance for surface transportation 
                    projects................................          34
190             Incentive payments for controlling outdoor 
                    advertising on the interstate system....          34
192             Drug offender's driver's license suspension.          35
                       SUBCHAPTER C--CIVIL RIGHTS
200             Title VI program and related statutes--
                    implementation and review procedures....          39
230             External programs...........................          42
                SUBCHAPTER D--NATIONAL HIGHWAY INSTITUTE
260             Education and training programs.............          84
                   SUBCHAPTER E--PLANNING AND RESEARCH
420             Planning and research program administration          90
450             Planning assistance and standards...........         101
460             Public road mileage for apportionment of 
                    highway safety funds....................         155
470             Highway systems.............................         156
490             National performance management measures....         162
         SUBCHAPTER F--TRANSPORTATION INFRASTRUCTURE MANAGEMENT
500             Management and monitoring systems...........         211

[[Page 4]]

505             Projects of national and regional 
                    significance evaluation and rating......         217
511             Real-Time System Management Information 
                    Program.................................         220
515             Asset management plans......................         223
            SUBCHAPTER G--ENGINEERING AND TRAFFIC OPERATIONS
620             Engineering.................................         232
625             Design standards for highways...............         234
626             Pavement policy.............................         237
627             Value engineering...........................         237
630             Preconstruction procedures..................         241
633             Required contract provisions................         256
635             Construction and maintenance................         270
636             Design-build contracting....................         301
637             Construction inspection and approval........         317
645             Utilities...................................         320
646             Railroads...................................         337
650             Bridges, structures, and hydraulics.........         346
652             Pedestrian and bicycle accommodations and 
                    projects................................         370
655             Traffic operations..........................         373
656             Carpool and vanpool projects................         379
657             Certification of size and weight enforcement         381
658             Truck size and weight, route designations--
                    length, width and weight limitations....         386
660             Special programs (Direct Federal)...........         446
661             Indian Reservation Road Bridge Program......         453
667             Periodic evaluation of facilities repeatedly 
                    requiring repair and reconstruction due 
                    to emergency events.....................         458
668             Emergency relief program....................         460
669             Enforcement of heavy vehicle use tax........         467
               SUBCHAPTER H--RIGHT-OF-WAY AND ENVIRONMENT
710             Right-of-way and real estate................         471
750             Highway beautification......................         493
751             Junkyard control and acquisition............         511
752             Landscape and roadside development..........         516
771             Environmental impact and related procedures.         519
772             Procedures for abatement of highway traffic 
                    noise and construction noise............         539
773             Surface Transportation Project Delivery 
                    Program application requirements and 
                    termination.............................         547
774             Parks, recreation areas, wildlife and 
                    waterfowl refuges, and historic sites 
                    (Section 4(f))..........................         555

[[Page 5]]

777             Mitigation of impacts to wetlands and 
                    natural habitat.........................         565
                   SUBCHAPTER I--PUBLIC TRANSPORTATION
810             Mass transit and special use highway 
                    projects................................         570
                      SUBCHAPTER J--HIGHWAY SAFETY
924             Highway safety improvement program..........         576
            SUBCHAPTER K--INTELLIGENT TRANSPORTATION SYSTEMS
940             Intelligent transportation system 
                    architecture and standards..............         582
950             Electronic toll collection..................         584
                  SUBCHAPTER L--FEDERAL LANDS HIGHWAYS
970             National Park Service management systems....         587
971             Forest Service management systems...........         592
972             Fish and Wildlife Service management systems         598
973             Management systems pertaining to the Bureau 
                    of Indian Affairs and the Indian 
                    Reservation Roads Program...............         604
974-999         [Reserved]

[[Page 7]]



           SUBCHAPTER A_GENERAL MANAGEMENT AND ADMINISTRATION





PART 1_GENERAL--Table of Contents



Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Federal-State cooperation; authority of State highway departments.
1.5 Information furnished by State highway departments.
1.7 Urban area boundaries.
1.8 [Reserved]
1.9 Limitation on Federal participation.
1.11 Engineering services.
1.23 Rights-of-way.
1.27 Maintenance.
1.28 Diversion of highway revenues.
1.32 Issuance of directives.
1.33 Conflicts of interest.
1.35 Bonus program.
1.36 Compliance with Federal laws and regulations.

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

    Source: 25 FR 4162, May 11, 1960, unless otherwise noted.



Sec. 1.1  Purpose.

    The purpose of the regulations in this part is to implement and 
carry out the provisions of Federal law relating to the administration 
of Federal aid for highways.



Sec. 1.2  Definitions.

    (a) Terms defined in 23 U.S.C. 101(a), shall have the same meaning 
where used in the regulations in this part, except as modified herein.
    (b) The following terms where used in the regulations in this part 
shall have the following meaning:
    Administrator. The Federal Highway Administrator.
    Advertising policy. The national policy relating to the regulation 
of outdoor advertising declared in title 23 U.S.C. 131.
    Advertising standards. The ``National Standards for Regulation by 
States of Outdoor Advertising Signs, Displays and Devices Adjacent to 
the National System of Interstate and Defense Highways'' promulgated by 
the Secretary (part 20 of this chapter).
    Federal laws. The provisions of title 23 U.S.C., and all other 
Federal laws, heretofore or hereafter enacted, relating to Federal aid 
for highways.
    Latest available Federal census. The latest available Federal 
decennial census, except for the establishment of urban area.
    Project. An undertaking by a State highway department for highway 
construction, including preliminary engineering, acquisition of rights-
of-way and actual construction, or for highway planning and research, or 
for any other work or activity to carry out the provisions of the 
Federal laws for the administration of Federal aid for highways.
    Secondary road plan. A plan for administration of Federal aid for 
highways on the Federal-aid secondary highway system pursuant to 23 
U.S.C. 117.
    Secretary. The Secretary of Transportation.
    State. Any State of the United States, the District of Columbia and 
Puerto Rico.
    Urban area. An area including and adjacent to a municipality or 
other urban place having a population of five thousand or more, as 
determined by the latest available published official Federal census, 
decennial or special, within boundaries to be fixed by a State highway 
department, subject to the approval of the Administrator.

[25 FR 4162, May 11, 1960, as amended at 35 FR 18719, Dec. 10, 1970]



Sec. 1.3  Federal-State cooperation; authority of State highway 
departments.

    The Administrator shall cooperate with the States, through their 
respective State highway departments, in the construction of Federal-aid 
highways. Each State highway department, maintained in conformity with 
23 U.S.C. 302, shall be authorized, by the laws of the State, to make 
final decisions for the State in all matters relating to, and to enter 
into, on behalf of the State, all contracts and agreements for projects 
and to take such other actions on behalf of the State as may be 
necessary

[[Page 8]]

to comply with the Federal laws and the regulations in this part.



Sec. 1.5  Information furnished by State highway departments.

    At the request of the Administrator the State highway department 
shall furnish to him such information as the Administrator shall deem 
desirable in administering the Federal-aid highway program.



Sec. 1.7  Urban area boundaries.

    Boundaries of an urban area shall be submitted by the State highway 
department and be approved by the Administrator prior to the inclusion 
in a program of any project wholly or partly in such area involving 
funds authorized for and limited to urban areas.



Sec. 1.8  [Reserved]



Sec. 1.9  Limitation on Federal participation.

    (a) Federal-aid funds shall not participate in any cost which is not 
incurred in conformity with applicable Federal and State law, the 
regulations in this title, and policies and procedures prescribed by the 
Administrator. Federal funds shall not be paid on account of any cost 
incurred prior to authorization by the Administrator to the State 
highway department to proceed with the project or part thereof involving 
such cost.
    (b) Notwithstanding the provisions of paragraph (a) of this section 
the Administrator may, upon the request of a State highway department, 
approve the participation of Federal-aid funds in a previously incurred 
cost if he finds:
    (1) That his approval will not adversely affect the public,
    (2) That the State highway department has acted in good faith, and 
that there has been no willful violation of Federal requirements,
    (3) That there has been substantial compliance with all other 
requirements prescribed by the Administrator, and full compliance with 
requirements mandated by Federal statute,
    (4) That the cost to the United States will not be in excess of the 
cost which it would have incurred had there been full compliance, and
    (5) That the quality of work undertaken has not been impaired.
    (c) Any request submitted under paragraph (b) of this section shall 
be accompanied by a detailed description of the relevant circumstances 
and facts, and shall explain the necessity for incurring the costs in 
question.

[38 FR 18368, July 10, 1973]



Sec. 1.11  Engineering services.

    (a) Federal participation. Costs of engineering services performed 
by the State highway department or any instrumentality or entity 
referred to in paragraph (b) of this section may be eligible for Federal 
participation only to the extent that such costs are directly 
attributable and properly allocable to specific projects.
    (b) Governmental engineering organizations. The State highway 
department may utilize, under its supervision, the services of well-
qualified and suitably equipped engineering organizations of other 
governmental instrumentalities for making surveys, preparing plans, 
specifications and estimates, and for supervising the construction of 
any project.
    (c) Railroad and utility engineering organizations. The State 
highway department may utilize, under its supervision, the services of 
well-qualified and suitably equipped engineering organizations of the 
affected railroad companies for railway-highway crossing projects and of 
the affected utility companies for projects involving utility 
installations.
    (d) [Reserved]
    (e) Responsibility of the State highway department. The State 
highway department is not relieved of its responsibilities under Federal 
law and the regulations in this part in the event it utilizes the 
services of any engineering organization under paragraphs (b), (c) or 
(d) of this section.

[25 FR 4162, May 11, 1960, as amended at 53 FR 18276, May 23, 1988; 57 
FR 60728, Dec. 22, 1992; 66 FR 58666, Nov. 23, 2001]



Sec. 1.23  Rights-of-way.

    (a) Interest to be acquired. The State shall acquire rights-of-way 
of such nature and extent as are adequate for the

[[Page 9]]

construction, operation and maintenance of a project.
    (b) Use for highway purposes. Except as provided under paragraph (c) 
of this section, all real property, including air space, within the 
right-of-way boundaries of a project shall be devoted exclusively to 
public highway purposes. No project shall be accepted as complete until 
this requirement has been satisfied. The State highway department shall 
be responsible for preserving such right-of-way free of all public and 
private installations, facilities or encroachments, except (1) those 
approved under paragraph (c) of this section; (2) those which the 
Administrator approves as constituting a part of a highway or as 
necessary for its operation, use or maintenance for public highway 
purposes and (3) informational sites established and maintained in 
accordance with Sec. 1.35 of the regulations in this part.
    (c) Other use or occupancy. Subject to 23 U.S.C. 111, the temporary 
or permanent occupancy or use of right-of-way, including air space, for 
nonhighway purposes and the reservation of subsurface mineral rights 
within the boundaries of the rights-of-way of Federal-aid highways, may 
be approved by the Administrator, if he determines that such occupancy, 
use or reservation is in the public interest and will not impair the 
highway or interfere with the free and safe flow of traffic thereon.



Sec. 1.27  Maintenance.

    The responsibility imposed upon the State highway department, 
pursuant to 23 U.S.C. 116, for the maintenance of projects shall be 
carried out in accordance with policies and procedures issued by the 
Administrator. The State highway department may provide for such 
maintenance by formal agreement with any adequately equipped county, 
municipality or other governmental instrumentality, but such an 
agreement shall not relieve the State highway department of its 
responsibility for such maintenance.



Sec. 1.28  Diversion of highway revenues.

    (a) Reduction in apportionment. If the Secretary shall find that any 
State has diverted funds contrary to 23 U.S.C. 126, he shall take such 
action as he may deem necessary to comply with said provision of law by 
reducing the first Federal-aid apportionment of primary, secondary and 
urban funds made to the State after the date of such finding. In any 
such reduction, each of these funds shall be reduced in the same 
proportion.
    (b) Furnishing of information. The Administrator may require any 
State to submit to him such information as he may deem necessary to 
assist the Secretary in carrying out the provisions of 23 U.S.C. 126 and 
paragraph (a) of this section.



Sec. 1.32  Issuance of directives.

    (a) The Administrator shall promulgate and require the observance of 
policies and procedures, and may take other action as he deems 
appropriate or necessary for carrying out the provisions and purposes of 
Federal laws, the policies of the Federal Highway Administration, and 
the regulations of this part.
    (b) The Administrator or his delegated representative, as 
appropriate, is authorized to issue the following type of directives:
    (1) Federal Highway Administration Regulations are issued by the 
Administrator or his delegate, as necessary, to implement and carry out 
the provisions of title 23 U.S.C., relating to the administration of 
Federal aid for highways, direct Federal programs and State and 
community safety programs; and title 49 U.S.C., relating to motor 
carrier safety; and other applicable laws and programs under his 
jurisdiction.
    (2) Notices are temporary issuances transmitting one-time or short-
term instructions or information which is expected to remain in effect 
for less than 90 days or for a predetermined period of time normally not 
to exceed one year.
    (3) Orders are directives limited in volume and contain permanent or 
longlasting policy, instructions, and procedures. FHWA Orders are to be 
used primarily as internal FHWA directives.

[[Page 10]]

    (4) Joint Interagency Orders and Notices are used by FHWA and the 
National Highway Traffic Safety Administration (NHTSA) to issue joint 
policies, procedures, and information pertaining to the joint 
administration of the State and Community Highway Safety Program. Where 
necessary, other joint directives may be issued with other modal 
administrations within the Department of Transportation.
    (5) Manuals are generally designed for use in issuing permanent or 
long-lasting detailed policy and procedure. Some of the major manuals 
recognized by the FHWA Directives System follow:
    (i) The Federal-Aid Highway Program Manual has been established to 
assemble and organize program material of the type previously contained 
in the Policy and Procedure and Instructional Memoranda which will 
continue in effect until specifically revoked or published in the new 
manual. Regulatory material is printed in italics in the manual and also 
appears in this code. Nonregulatory material is printed in delegate 
type.
    (ii) The Administrative Manual covers all internal FHWA 
administrative support functions.
    (iii) The Highway Planning Program Manual covers the methods and 
procedures necessary to conduct the highway planning functions.
    (iv) The Research and Development Manual series entitled, ``The 
Federally Coordinated Program of Research and Development in Highway 
Transportation'' describes the FHWA research and development program.
    (v) The External Audit Manual provides guidance to FHWA auditors in 
their review of State programs and processes.
    (vi) The Civil Rights and Equal Opportunity Manual provides guidance 
to FHWA and State Civil Rights and Equal Employment Opportunity 
Officers.
    (vii) The BMCS Operations Manual provides program guidance for all 
field employees assigned to the motor carrier safety program.
    (viii) The Highway Safety Program Manual, issued jointly by FHWA and 
NHTSA, contains volumes relating to the joint administration of the 
program.
    (6) Handbooks are internal operating instructions published in book 
form where, because of the program area covered, it is desirable to 
provide greater detail of administrative and technical instructions.
    (7) Transmittals identify and explain the original issuance or page 
change, provide background information, and provide filing instructions 
for insertion of new pages and removal of changed pages, or both.

(49 U.S.C. 1655)

[39 FR 1512, Jan. 10, 1974]



Sec. 1.33  Conflicts of interest.

    No official or employee of a State or any other governmental 
instrumentality who is authorized in his official capacity to negotiate, 
make, accept or approve, or to take part in negotiating, making, 
accepting or approving any contract or subcontract in connection with a 
project shall have, directly or indirectly, any financial or other 
personal interest in any such contract or subcontract. No engineer, 
attorney, appraiser, inspector or other person performing services for a 
State or a governmental instrumentality in connection with a project 
shall have, directly or indirectly, a financial or other personal 
interest, other than his employment or retention by a State or other 
governmental instrumentality, in any contract or subcontract in 
connection with such project. No officer or employee of such person 
retained by a State or other governmental instrumentality shall have, 
directly or indirectly, any financial or other personal interest in any 
real property acquired for a project unless such interest is openly 
disclosed upon the public records of the State highway department and of 
such other governmental instrumentality, and such officer, employee or 
person has not participated in such acquisition for and in behalf of the 
State. It shall be the responsibility of the State to enforce the 
requirements of this section.

[[Page 11]]



Sec. 1.35  Bonus program.

    (a) Any agreement entered into by a State pursuant to the provisions 
of section 12 of the Federal-Aid Highway Act of 1958, Pub. L. 85-381, 72 
Stat. 95, as amended, shall provide for the control or regulation of 
outdoor advertising, consistent with the advertising policy and 
standards promulgated by the Administrator, in areas adjacent to the 
entire mileage of the Interstate System within that State, except such 
segments as may be excluded from the application of such policy and 
standards by section 12.
    (b) Any such agreement for the control of advertising may provide 
for establishing publicly owned informational sites, whether publicly or 
privately operated, within the limits of or adjacent to the right-of-way 
of the Interstate System on condition that no such site shall be 
established or maintained except at locations and in accordance with 
plans, in furtherance of the advertising policy and standards, submitted 
to and approved by the Administrator.
    (c) No advertising right in the acquisition of which Federal funds 
participated shall be disposed of without the prior approval of the 
Administrator.

[39 FR 28628, Aug. 9, 1974]



Sec. 1.36  Compliance with Federal laws and regulations.

    If the Administrator determines that a State has violated or failed 
to comply with the Federal laws or the regulations in this part with 
respect to a project, he may withhold payment to the State of Federal 
funds on account of such project, withhold approval of further projects 
in the State, and take such other action that he deems appropriate under 
the circumstances, until compliance or remedial action has been 
accomplished by the State to the satisfaction of the Administrator.

[[Page 12]]



                     SUBCHAPTER B_PAYMENT PROCEDURES





PART 140_REIMBURSEMENT--Table of Contents



Subparts A-D [Reserved]

        Subpart E_Administrative Settlement Costs_Contract Claims

Sec.
140.501 Purpose.
140.503 Definition.
140.505 Reimbursable costs.

             Subpart F_Reimbursement for Bond Issue Projects

140.601 Purpose.
140.602 Requirements and conditions.
140.603 Programs.
140.604 Reimbursable schedule.
140.605 Approval actions.
140.606 Project agreements.
140.607 Construction.
140.608 Reimbursable bond interest costs of Interstate projects.
140.609 Progress and final vouchers.
140.610 Conversion from bond issue to funded project status.
140.611 Determination of bond retirement.
140.612 Cash management.

Appendix to Subpart F of Part 140--Reimbursable Schedule for Converted 
          ``E'' (Bond Issue) Projects (Other Than Interstate Projects)

Subpart G [Reserved]

              Subpart H_State Highway Agency Audit Expense

140.801 Purpose.
140.803 Policy.
140.805 Definitions.
140.807 Reimbursable costs.

                Subpart I_Reimbursement for Railroad Work

140.900 Purpose.
140.902 Applicability.
140.904 Reimbursement basis.
140.906 Labor costs.
140.907 Overhead and indirect construction costs.
140.908 Materials and supplies.
140.910 Equipment.
140.912 Transportation.
140.914 Credits for improvements.
140.916 Protection.
140.918 Maintenance and extended construction.
140.920 Lump sum payments.
140.922 Billings.

    Authority: 23 U.S.C. 101(e), 106, 109(e), 114(a), 120(g), 121, 122, 
130, and 315; and 49 CFR 1.48(b).

Subparts A-D [Reserved]



        Subpart E_Administrative Settlement Costs_Contract Claims

    Source: 44 FR 59233, Oct. 15, 1979, unless otherwise noted.



Sec. 140.501  Purpose.

    This regulation establishes the criteria for eligibility for 
reimbursement of administrative settlement costs in defense of contract 
claims on projects performed by a State under Federal-aid procedures.



Sec. 140.503  Definition.

    Administrative settlement costs are costs related to the defense and 
settlement of contract claims including, but not limited to, salaries of 
a contracting officer or his/her authorized representative, attorneys, 
and/or members of State boards of arbitration, appeals boards, or 
similar tribunals, which are allocable to the findings and 
determinations of contract claims, but not including administrative or 
overhead costs.



Sec. 140.505  Reimbursable costs.

    (a) Federal funds may participate in administrative settlement costs 
which are:
    (1) Incurred after notice of claim,
    (2) Properly supported,
    (3) Directly allocable to a specific Federal-aid or Federal project,
    (4) For employment of special counsel for review and defense of 
contract claims, when
    (i) Recommended by the State Attorney General or State Highway 
Agency (SHA) legal counsel and
    (ii) Approved in advance by the FHWA Division Administrator, with 
advice of FHWA Regional Counsel, and
    (5) For travel and transportation expenses, if in accord with 
established policy and practices.

[[Page 13]]

    (b) No reimbursement shall be made if it is determined by FHWA that 
there was negligence or wrongdoing of any kind by SHA officials with 
respect to the claim.



             Subpart F_Reimbursement for Bond Issue Projects

    Source: 48 FR 54971, Dec. 8, 1983, unless otherwise noted.



Sec. 140.601  Purpose.

    To prescribe policies and procedures for the use of Federal funds by 
State highway agencies (SHAs) to aid in the retirement of the principal 
and interest of bonds, pursuant to 23 U.S.C. 122 and the payment of 
interest on bonds of eligible Interstate projects.



Sec. 140.602  Requirements and conditions.

    (a) An SHA that uses the proceeds of bonds issued by the State, a 
county, city or other political subdivision of the State, for the 
construction of projects on the Federal-aid primary or Interstate 
system, or extensions of any of the Federal-aid highway systems in urban 
areas, or for substitute highway projects approved under 23 U.S.C. 
103(e)(4), may claim payment of any portion of such sums apportioned to 
it for expenditures on such system to aid in the retirement of the 
principal of bonds at their maturities, to the extent that the proceeds 
of bonds have actually been expended in the construction of projects.
    (b) Any interest earned and payable on bonds, the proceeds of which 
were expended on Interstate projects after November 6, 1978, is an 
eligible cost of construction. The amount of interest eligible for 
participation will be based on (1) the date the proceeds were expended 
on the project, (2) amount expended, and (3) the date of conversion to a 
regularly funded project. As provided for in section 115(c), Pub. L. 95-
599, November 6, 1978, interest on bonds issued in any fiscal year by a 
State after November 6, 1978, may be paid under the authority of 23 
U.S.C. 122 only if such SHA was eligible to obligate Interstate 
Discretionary funds under the provisions of 23 U.S.C. 118(b) during such 
fiscal year, and the Administrator certifies that such eligible SHA has 
utilized, or will utilize to the fullest extent possible during such 
fiscal year, its authority to obligate funds under 23 U.S.C. 118(b).
    (c) The Federal share payable at the time of conversion, as provided 
for in Sec. 140.610 shall be the legal pro rata in effect at the time 
of execution of the project agreement for the bond issue project.
    (d) The authorization of a bond issue project does not constitute a 
commitment of Federal funds until the project is converted to a regular 
Federal-aid project as provided for in Sec. 140.610.
    (e) Reimbursements for the redemption of bonds may not precede, by 
more than 60 days, the scheduled date of the retirement of the bonds.
    (f) Federal funds are not eligible for payment into sinking funds 
created and maintained for the subsequent retirement of bonds.



Sec. 140.603  Programs.

    Programs covering projects to be financed from the proceeds of bonds 
shall be prepared and submitted to FHWA. Project designations shall be 
the same as for regular Federal-aid projects except that the prefix 
letter ``B'' for bond issue shall be used as the first letter of each 
project designation, e.g., ``BI'' for Bond Issue Projects--Interstate.



Sec. 140.604  Reimbursable schedule.

    Projects to be financed from other than Interstate funds shall be 
subject to a 36-month reimbursable schedule upon conversion to regular 
Federal-aid financing (See appendix). FHWA will consider requests for 
waiver of this provision at the time of conversion action. Waivers are 
subject to the availability of liquidating cash.



Sec. 140.605  Approval actions.

    (a) Authorization to proceed with preliminary engineering and 
acquisition of rights-of-way shall be issued in the same manner as for 
regularly financed Federal-aid projects.
    (b) Authorization of physical construction shall be given in the 
same manner as for regularly financed Federal-aid projects. The total 
cost and

[[Page 14]]

Federal funds required, including interest, shall be indicated in the 
plans, specifications, and estimates.
    (c) Projects subject to the reimbursable schedule shall be 
identified as an ``E'' project when the SHA is authorized to proceed 
with all or any phase of the work.
    (d) Concurrence in the award of contracts shall be given.



Sec. 140.606  Project agreements.

    Project Agreements, Form PR-2, shall be prepared and executed. 
Agreement provision 8 on the reverse side of Form PR-2 \1\ shall apply 
for bond issue projects.
---------------------------------------------------------------------------

    \1\ The text of FHWA Form PR-2 is found in 23 CFR part 630, subpart 
C, appendix A.
---------------------------------------------------------------------------



Sec. 140.607  Construction.

    Construction shall be supervised by the SHA in the same manner as 
for regularly financed Federal-aid projects. The FHWA will make 
construction inspections and reports.



Sec. 140.608  Reimbursable bond interest costs of Interstate projects.

    (a) Bond interest earned on bonds actually retired may be reimbursed 
on the Federal pro rata basis applicable to such projects in accordance 
with Sec. 140.602(b) and (c).
    (b) No interest will be reimbursed for bonds issued after November 
6, 1978, used to retire or otherwise refinance bonds issued prior to 
that date.



Sec. 140.609  Progress and final vouchers.

    (a) Progress vouchers may be submitted for the Federal share of 
bonds retired or about to be retired, including eligible interest on 
Interstate Bond Issue Projects, the proceeds of which have actually been 
expended for the construction of the project.
    (b) Upon completion of a bond issue project, a final voucher shall 
be submitted by the SHA. After final review, the SHA will be advised as 
to the total cost and Federal fund participation for the project.



Sec. 140.610  Conversion from bond issue to funded project status.

    (a) At such time as the SHA elects to apply available apportioned 
Federal-aid funds to the retirement of bonds, including eligible 
interest earned and payable on Interstate Bond Projects, subject to 
available obligational authority, its claim shall be supported by 
appropriate certifications as follows:

    I hereby certify that the following bonds, (list), the proceeds of 
which have been actually expended in the construction of bond issue 
projects authorized by title 23 U.S.C., section 122, (1) have been 
retired on ------, or (2) mature and are scheduled for retirement on --
----, which is ---- days in advance of the maturity date of ------.

    Eligible interest claimed on Interstate Bond Projects shall be shown 
for each bond and the certification shall include the statement:

    I also certify that interest earned and paid or payable for each 
bond listed has been determined from the date on and after which the 
respective bond proceeds were actually expended on the project.

    (b) The SHA's request for full conversion of a completed projects), 
or partial conversion of an active or completed project(s), may be made 
by letter, inclusive of the appropriate certification as described in 
Sec. 140.610(a) making reference to any progress payments received or 
the final voucher(s) previously submitted and approved in accordance 
with Sec. 140.609.
    (c) Approval of the conversion action shall be by the Division 
Administrator.
    (d) The SHA's request for partial conversion of an active or 
completed bond issue project shall provide for: (1) Conversion to funded 
project status of the portion to be financed out of the balance of 
currently available apportioned funds, and (2) retention of the unfunded 
portion of the project in the bond program.
    (e) Where the SHA's request involves the partial conversion of a 
completed bond issue project, payment of the Federal funds made 
available under the conversion action shall be accomplished through use 
of Form PR-20, Voucher for Work Performed under Provisions of the 
Federal-aid and Federal Highway Acts, prepared in the division office 
and appropriately cross-referenced to the Bond Issue Project final 
voucher previously submitted and approved. The final voucher will be 
reduced by the amount of the approved reimbursement.

[[Page 15]]



Sec. 140.611  Determination of bond retirement.

    Division Administrators shall be responsible for the prompt review 
of the SHA's records to determine that bonds issued to finance the 
projects and for which reimbursement has been made, including eligible 
bond interest expense, have been retired pursuant to the State's 
certification required by Sec. 140.610(a), and that such action is 
documented in the project file.



Sec. 140.612  Cash management.

    By July 1 of each year the SHA will provide FHWA with a schedule, 
including the anticipated claims for reimbursement, of bond projects to 
be converted during the next two fiscal years. The data will be used by 
FHWA in determining liquidating cash required to finance such 
conversions.



   Sec. Appendix to Subpart F of Part 140--Reimbursable Schedule for 
 Converted ``E'' (Bond Issue) Projects (other than Interstate Projects)

------------------------------------------------------------------------
                                                             Cumulative
                                                               amount
                                                            reimbursable
   Time in months following conversion from ``E'' (bond      (percent of
             issue) project to regular project                 Federal
                                                                funds
                                                             obligated)
------------------------------------------------------------------------
1.........................................................             1
2.........................................................             2
3.........................................................             5
4.........................................................             9
5.........................................................            13
6.........................................................            18
7.........................................................            23
8.........................................................            29
9.........................................................            34
10........................................................            39
11........................................................            44
12........................................................            49
13........................................................            54
14........................................................            58
15........................................................            61
16........................................................            64
17........................................................            67
18........................................................            70
19........................................................            73
20........................................................            75
21........................................................            77
22........................................................            79
23........................................................            81
24........................................................            83
25........................................................            85
26........................................................            87
27........................................................            89
28........................................................            91
29........................................................            93
30........................................................            94
31........................................................            95
32........................................................            96
34........................................................            97
35........................................................            99
36........................................................           100
------------------------------------------------------------------------

Subpart G [Reserved]



              Subpart H_State Highway Agency Audit Expense

    Source: 49 FR 45578, Nov. 19, 1984, unless otherwise noted.



Sec. 140.801  Purpose.

    To establish the reimbursement criteria for Federal participation in 
project related audit expenses.



Sec. 140.803  Policy.

    Project related audits performed in accordance with generally 
accepted auditing standards (as modified by the Comptroller General of 
the United States) and applicable Federal laws and regulations are 
eligible for Federal participation. The State highway agency (SHA) may 
use other State, local public agency, and Federal audit organizations as 
well as licensed or certified public accounting firms to augment its 
audit force.



Sec. 140.805  Definitions.

    (a) Project related audits. Audits which directly benefit Federal-
aid highway projects. Audits performed in accordance with the 
requirements of 23 CFR part 12, audits of third party contract costs, 
and other audits providing assurance that a recipient has complied with 
FHWA regulations are all considered project related audits. Audits 
benefiting only nonfederal projects, those performed for SHA management 
use only, or those serving similar nonfederal purposes are not 
considered project related.
    (b) Third party contract costs. Project related costs incurred by 
railroads, utilities, consultants, governmental instrumentalities, 
universities, nonprofit

[[Page 16]]

organizations, construction contractors (force account work), and 
organizations engaged in right-of-way studies, planning, research, or 
related activities where the terms of a proposal or contract (including 
lump sum) necessitate an audit. Construction contracts (except force 
account work) are not included in this group.



Sec. 140.807  Reimbursable costs.

    (a) Federal funds may be used to reimburse an SHA for the following 
types of project related audit costs:
    (1) Salaries, wages, and related costs paid to public employees in 
accordance with subpart G of this part,
    (2) Payments by the SHA to any Federal, State, or local public 
agency audit organization, and
    (3) Payments by the SHA to licensed or certified public accounting 
firms.
    (b) Audit costs incurred by an SHA shall be equitably distributed to 
all benefiting parties. The portion of these costs allocated to the 
Federal-Aid Highway Program which are not directly related to a specific 
project or projects shall be equitably distributed, as a minimum, to the 
major FHWA funding categories in that State.



                Subpart I_Reimbursement for Railroad Work

    Source: 40 FR 16057, Apr. 9, 1975, unless otherwise noted.



Sec. 140.900  Purpose.

    The purpose of this subpart is to prescribe policies and procedures 
on reimbursement to the States for railroad work done on projects 
undertaken pursuant to the provisions of 23 CFR part 646, subpart B.



Sec. 140.902  Applicability.

    This subpart, and all references hereinafter made to ``projects,'' 
applies to Federal-aid projects involving railroad facilities, including 
projects for the elimination of hazards of railroad-highway crossings, 
and other projects which use railroad properties or which involve 
adjustments required by highway construction to either railroad 
facilities or facilities that are jointly owned or used by railroad and 
utility companies.



Sec. 140.904  Reimbursement basis.

    (a) General. On projects involving the elimination of hazards of 
railroad-highway crossings, and on other projects where a railroad 
company is not obligated to move or to change its facilities at its own 
expense, reimbursement will be made for the costs incurred by the State 
in making changes to railroad facilities as required in connection with 
a Federal-aid highway project, in accordance with the provisions of this 
subpart.
    (b) Eligibility. To be eligible, the costs must be:
    (1) For work which is included in an approved statewide 
transportation improvement program.
    (2) Incurred subsequent to the date of authorization by the Federal 
Highway Administration (FHWA),
    (3) Incurred in accordance with the provisions of 23 CFR, part 646, 
subpart B, and
    (4) Properly attributable to the project.

[40 FR 16057, Apr. 9, 1975, as amended at 53 FR 18276, May 23, 1988; 62 
FR 45328, Aug. 27, 1997]



Sec. 140.906  Labor costs.

    (a) General. (1) Salaries and wages, at actual or average rates, and 
related expenses paid by a company to individuals, for the time they are 
working on the project, are reimbursable when supported by adequate 
records. This shall include labor costs associated with preliminary 
engineering, construction engineering, right-of-way, and force account 
construction.
    (2) Salaries and expenses paid to individuals who are normally part 
of the overhead organization of the company may be reimbursed for the 
time they are working directly on the project, such as for accounting 
and bill preparation, when supported by adequate records and when the 
work performed by such individuals is essential to the project and could 
not have been accomplished as economically by employees outside the 
overhead organization.
    (3) Amounts paid to engineers, architects and others for services 
directly related to projects may be reimbursed.

[[Page 17]]

    (b) Labor surcharges. (1) Labor surcharges include worker 
compensation insurance, public liability and property damage insurance, 
and such fringe benefits as the company has established for the benefit 
of its employees. The cost of labor surcharges will be reimbursed at 
actual cost to the company or a company may, at its option, use an 
additive rate or other similar technique in lieu of actual costs 
provided that (i) the rate is based on historical cost data of the 
company, (ii) such rate is representative of actual costs incurred, 
(iii) the rate is adjusted at least annually taking into consideration 
known anticipated changes and correcting for any over or under applied 
costs for the preceding period, and (iv) the rate is approved by the SHA 
and FHWA.
    (2) Where the company is a self-insurer there may be reimbursement:
    (i) At experience rates properly developed from actual costs, not to 
exceed the rates of a regular insurance company for the class of 
employment covered, or
    (ii) At the option of the company, a fixed rate of 8 percent of 
direct labor costs for worker compensation and public liability and 
property damage insurance together.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982; 56 
FR 56578, Nov. 6, 1991]



Sec. 140.907  Overhead and indirect construction costs.

    (a) A State may elect to reimburse the railroad company for its 
overhead and indirect construction costs.
    (b) The FHWA will participate in these costs provided that:
    (1) The costs are distributed to all applicable work orders and 
other functions on an equitable and uniform basis in accordance with 
generally accepted accounting principles;
    (2) The costs included in the distribution are limited to costs 
actually incurred by the railroad;
    (3) The costs are eligible in accordance with the Federal 
Acquisition Regulation (48 CFR), part 31, Contract Cost Principles and 
Procedures, relating to contracts with commercial organizations;
    (4) The costs are considered reasonable;
    (5) Records are readily available at a single location which 
adequately support the costs included in the distribution, the method 
used for distributing the costs, and the basis for determining additive 
rates;
    (6) The rates are adjusted at least annually taking into 
consideration any overrecovery or underrecovery of costs; and
    (7) The railroad maintains written procedures which assure proper 
control and distribution of the overhead and indirect construction 
costs.

[53 FR 18276, May 23, 1988]



Sec. 140.908  Materials and supplies.

    (a) Procurement. Materials and supplies, if available, are to be 
furnished from company stock, except they may be obtained from other 
sources near the project site when available at less cost. Where not 
available from company stock, they may be purchased either under 
competitive bids or existing continuing contracts, under which the 
lowest available prices are developed. Minor quantities and proprietary 
products are excluded from these requirements. The company shall not be 
required to change its existing standards for materials used in 
permanent changes to its facilities.
    (b) Costs. (1) Materials and supplies furnished from company stock 
shall be billed at current stock price of such new or used material at 
time of issue.
    (2) Materials and supplies not furnished from company stock shall be 
billed at actual costs to the company delivered to the point of entry on 
the railroad company's line nearest the source of procurement.
    (3) A reasonable cost of plant inspection and testing may be 
included in the costs of materials and supplies where such expense has 
been incurred. The computation of actual costs of materials and supplies 
shall include the deduction of all offered discounts, rebates and 
allowances.
    (c) Materials recovered. (1) Materials recovered from temporary use 
and accepted for reuse by the company shall be credited to the project 
at prices charged to the job, less a consideration for loss in service 
life at 10 percent for

[[Page 18]]

rails, angle bars, tie plates and metal turnout materials and 15 percent 
for all other materials. Materials recovered from the permanent facility 
of the company that are accepted by the company for return to stock 
shall be credited to the project at current stock prices of such used 
material.
    (2) Materials recovered and not accepted for reuse by the company, 
if determined to have a net sale value, shall be sold by the State or 
railroad following an opportunity for State inspection and appropriate 
solicitation for bids, to the highest bidder; or if the company 
practices a system of periodic disposal by sale, credit to the project 
shall be at the going prices supported by the records of the company. 
Where applicable, credit for materials recovered from the permanent 
facility in length or quantities in excess of that being placed should 
be reduced to reflect any increased cost of railroad operation resulting 
from the adjustment.
    (d) Removal costs. Federal participation in the costs of removing, 
salvaging, transporting, and handling recovered materials will be 
limited to the value of materials recovered, except where FHWA approves 
additional measures for restoration of affected areas as required by the 
physical construction or by reason of safety or aesthetics.
    (e) Handling costs. The actual and direct costs of handling and 
loading out of materials and supplies at and from company stores or 
material yards and of unloading and handling of recovered materials 
accepted by the company at its stores or material yards, are 
reimbursable. At the option of the company, 5 percent of the amounts 
billed for the materials and supplies which are issued from company 
stores and material yards will be reimbursable in lieu of actual costs.
    (f) Credit losses. On projects where a company actually suffers loss 
by application of credits, the company shall have the opportunity of 
submitting a detailed statement of such loss as a basis for further 
adjustment.



Sec. 140.910  Equipment.

    (a) Company owned equipment. Cost of company-owned equipment may be 
reimbursed for the average or actual cost of operation, light and 
running repairs, and depreciation, or at industry rates representative 
of actual costs as agreed to by the railroad, SHA, and FHWA. 
Reimbursement for company-owned vehicles may be made at average or 
actual costs or at rates of recorded use per mile which are 
representative of actual costs and agreed to by the company, SHA, and 
FHWA.
    (b) Other equipment. Where company owned equipment is not available, 
reimbursement will be limited to the amount of rental paid (1) to the 
lowest qualified bidder, (2) under existing continuing contracts at 
reasonable cost, or (3) as an exception, by negotiation where (b) (1) 
and (2) are impractical due to project location or schedule.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]



Sec. 140.912  Transportation.

    (a) Employees. The company's cost of necessary employee 
transportation and subsistence directly attributable to the project, 
which is consistent with overall policy of the company, is reimbursable.
    (b) Materials, supplies, and equipment. The most economical movement 
of materials, supplies and equipment to the project and necessary return 
to storage, including the associated costs of loading and unloading 
equipment, is reimbursable. Transportation by a railroad company over 
its own lines in a revenue train is reimbursable at average or actual 
costs, at rates which are representative of actual costs, or at rates 
which the company charges its customers for similar shipments provided 
the rate structure is documented and available to the public. These 
rates are to be agreed to by the company, SHA, and FHWA. No charge will 
be made for transportation by work train other than the operating 
expenses of the work train. When it is more practicable or more 
economical to move equipment on its own wheels, reimbursement may be 
made at average or actual costs or at rates which are representative of 
actual costs and are agreed to by the railroad, SHA, and FHWA.

[40 FR 16057, Apr. 9, 1975, as amended at 47 FR 33955, Aug. 5, 1982]

[[Page 19]]



Sec. 140.914  Credits for improvements.

    (a) Credit shall be made to the project for additions or 
improvements which provide for higher quality or increased service 
capability of the operating facility and which are provided solely for 
the benefit of the company.
    (b) Where buildings and other depreciable structures of a company 
which are integral to operation of rail traffic must be replaced, credit 
shall be made to the project as set forth in 23 CFR 646.216(c)(2).
    (c) No credit is required for additions or improvements which are:
    (1) Necessitated by the requirements of the highway project.
    (2) Replacements which, although not identical, are of equivalent 
standard.
    (3) Replacements of devices or materials no longer regularly 
manufactured and the next highest grade or size is used.
    (4) Required by governmental and appropriate regulatory commission 
requirements.



Sec. 140.916  Protection.

    The cost of essential protective services which, in the opinion of a 
railroad company, are required to ensure safety to railroad operations 
during certain periods of the construction of a project, is reimbursable 
provided an item for such services is incorporated in the State-railroad 
agreement or in a work order issued by the State and approved by FHWA.



Sec. 140.918  Maintenance and extended construction.

    The cost of maintenance and extended construction is reimbursable to 
the extent provided for in 23 CFR 646.216(f)(4), and where included in 
the State-Railroad Agreement or otherwise approved by the State and 
FHWA.



Sec. 140.920  Lump sum payments.

    Where approved by FHWA, pursuant to 23 CFR 646.216(d)(3), 
reimbursement may be made as a lump sum payment, in lieu of actual 
costs.



Sec. 140.922  Billings.

    (a) After the executed State-Railroad Agreement has been approved by 
FHWA, the company may be reimbursed on progress billings of incurred 
costs. Costs for materials stockpiled at the project site or 
specifically purchased and delivered to the company for use on the 
project may be reimbursed on progress billings following approval of the 
executed State-Railroad Agreement or the written agreement under 23 CFR 
646.218(c).
    (b) The company shall provide one final and complete billing of all 
incurred costs, or of the agreed-to lump sum, within one year following 
completion of the reimbursable railroad work. Otherwise, previous 
payments to the company may be considered final, except as agreed to 
between the SHA and the railroad.
    (c) All company cost records and accounts relating to the project 
are subject to audit by representatives of the State and/or the Federal 
Government for a period of three years from the date final payment has 
been received by the company.
    (d) A railroad company must advise the State promptly of any 
outstanding obligation of the State's contractor for services furnished 
by the company such as protective services.

[40 FR 16057, Apr. 9, 1975, as amended at 40 FR 29712, July 15, 1975; 62 
FR 45328, Aug. 27, 1997]



PART 172_PROCUREMENT, MANAGEMENT, AND ADMINISTRATION OF ENGINEERING
AND DESIGN RELATED SERVICES--Table of Contents



Sec.
172.1 Purpose and applicability.
172.3 Definitions.
172.5 Program management and oversight.
172.7 Procurement methods and procedures.
172.9 Contracts and administration.
172.11 Allowable costs and oversight.

    Authority: 23 U.S.C. 106, 112, 114(a), 302, 315, and 402; 40 U.S.C. 
1101 et seq.; 48 CFR part 31; 49 CFR 1.48(b); and 2 CFR part 200.

    Source: 80 FR 29927, May 22, 2015, unless otherwise noted.



Sec. 172.1  Purpose and applicability.

    This part prescribes the requirements for the procurement, 
management, and administration of engineering and design related 
services under 23 U.S.C. 112 and as supplemented by the Uniform

[[Page 20]]

Administrative Requirements For Federal Awards rule. The Uniform 
Administrative Requirements, Cost Principles and Audit Requirements For 
Federal Awards rule (2 CFR part 200) shall apply except where 
inconsistent with the requirements of this part and other laws and 
regulations applicable to the Federal-aid highway program (FAHP). The 
requirements herein apply to federally funded contracts for engineering 
and design related services for projects subject to the provisions of 23 
U.S.C. 112(a) (related to construction) and are issued to ensure that a 
qualified consultant is obtained through an equitable qualifications-
based selection procurement process, that prescribed work is properly 
accomplished in a timely manner, and at fair and reasonable cost. State 
transportation agencies (STA) (or other recipients) shall ensure that 
subrecipients comply with the requirements of this part and the Uniform 
Administrative Requirements, Cost Principles and Audit Requirements For 
Federal Awards rule. Federally funded contracts for services not defined 
as engineering and design related, or for services not in furtherance of 
a highway construction project or activity subject to the provisions of 
23 U.S.C. 112(a), are not subject to the requirements of this part and 
shall be procured and administered under the requirements of the Uniform 
Administrative Requirements, Cost Principles and Audit Requirements For 
Federal Awards rule and procedures applicable to such activities.



Sec. 172.3  Definitions.

    As used in this part:
    Audit means a formal examination, in accordance with professional 
standards, of a consultant's accounting systems, incurred cost records, 
and other cost presentations to test the reasonableness, allowability, 
and allocability of costs in accordance with the Federal cost principles 
(as specified in 48 CFR part 31).
    Cognizant agency means any governmental agency that has performed an 
audit in accordance with generally accepted government auditing 
standards to test compliance with the requirements of the Federal cost 
principles (as specified in 48 CFR part 31) and issued an audit report 
of the consultant's indirect cost rate, or any described agency that has 
conducted a review of an audit report and related workpapers prepared by 
a certified public accountant and issued a letter of concurrence with 
the audited indirect cost rate(s). A cognizant agency may be any of the 
following:
    (1) A Federal agency;
    (2) A State transportation agency of the State where the 
consultant's accounting and financial records are located; or
    (3) A State transportation agency to which cognizance for the 
particular indirect cost rate(s) of a consulting firm has been delegated 
or transferred in writing by the State transportation agency identified 
in paragraph (2) of this definition.
    Competitive negotiation means qualifications-based selection 
procurement procedures complying with 40 U.S.C. 1101-1104, commonly 
referred to as the Brooks Act.
    Consultant means the individual or firm providing engineering and 
design related services as a party to a contract with a recipient or 
subrecipient of Federal assistance (as defined in 2 CFR 200.86 or 2 CFR 
200.93, respectively).
    Contract means a written procurement contract or agreement between a 
contracting agency and consultant reimbursed under a FAHP grant or 
subgrant and includes any procurement subcontract under a contract.
    Contracting agencies means a State transportation agency or a 
procuring agency of the State acting in conjunction with and at the 
direction of the State transportation agency, other recipients, and all 
subrecipients that are responsible for the procurement, management, and 
administration of engineering and design related services.
    Contract modification means an agreement modifying the terms or 
conditions of an original or existing contract.
    Engineering and design related services means:
    (1) Program management, construction management, feasibility 
studies, preliminary engineering, design engineering, surveying, 
mapping, or architectural related services with respect

[[Page 21]]

to a highway construction project subject to 23 U.S.C. 112(a) as defined 
in 23 U.S.C. 112(b)(2)(A); and
    (2) Professional services of an architectural or engineering nature, 
as defined by State law, which are required to or may logically or 
justifiably be performed or approved by a person licensed, registered, 
or certified to provide the services with respect to a highway 
construction project subject to 23 U.S.C. 112(a) and as defined in 40 
U.S.C. 1102(2).
    Federal cost principles means the cost principles contained in 48 
CFR part 31 of the Federal Acquisition Regulation for determination of 
allowable costs of commercial, for-profit entities.
    Fixed fee means a sum expressed in U.S. dollars established to cover 
the consultant's profit and other business expenses not allowable or 
otherwise included as a direct or indirect cost.
    Management support role means performing engineering management 
services or other services acting on the contracting agency's behalf, 
which are subject to review and oversight by agency officials, such as a 
program or project administration role typically performed by the 
contracting agency and necessary to fulfill the duties imposed by title 
23 of the United States Code, other Federal and State laws, and 
applicable regulations.
    Noncompetitive means the method of procurement of engineering and 
design related services when it is not feasible to award the contract 
using competitive negotiation or small purchase procurement methods.
    One-year applicable accounting period means the annual accounting 
period for which financial statements are regularly prepared by the 
consultant.
    Scope of work means all services, work activities, and actions 
required of the consultant by the obligations of the contract.
    Small purchases means the method of procurement of engineering and 
design related services where an adequate number of qualified sources 
are reviewed and the total contract costs do not exceed an established 
simplified acquisition threshold.
    State transportation agency (STA) means that department or agency 
maintained in conformity with 23 U.S.C. 302 and charged under State law 
with the responsibility for highway construction (as defined in 23 
U.S.C. 101); and that is authorized by the laws of the State to make 
final decisions in all matters relating to, and to enter into, all 
contracts and agreements for projects and activities to fulfill the 
duties imposed by title 23 United States Code, title 23 Code of Federal 
Regulations, and other applicable Federal laws and regulations.
    Subconsultant means the individual or firm contracted by a 
consultant to provide engineering and design related or other types of 
services that are part of the services which the consultant is under 
contract to provide to a recipient (as defined in 23 CFR 200.86) or 
subrecipient (as defined in 2 CFR 200.93) of Federal assistance.



Sec. 172.5  Program management and oversight.

    (a) STA responsibilities. STAs or other recipients shall develop and 
sustain organizational capacity and provide the resources necessary for 
the procurement, management, and administration of engineering and 
design related consultant services, reimbursed in whole or in part with 
FAHP funding, as specified in 23 U.S.C. 302(a). Responsibilities shall 
include the following:
    (1) Preparing and maintaining written policies and procedures for 
the procurement, management, and administration of engineering and 
design related consultant services in accordance with paragraph (c) of 
this section;
    (2) Establishing a procedure for estimating the level of effort, 
schedule, and costs of needed consultant services and associated agency 
staffing and resources for management and oversight in support of 
project authorization requests submitted to FHWA for approval, as 
specified in 23 CFR 630.106;
    (3) Procuring, managing, and administering engineering and design 
related consultant services in accordance with applicable Federal and 
State laws, regulations, and approved policies and procedures, as 
specified in 23 CFR 1.9(a); and
    (4) Administering subawards in accordance with State laws and 
procedures as specified in 2 CFR part 1201, and the requirements of 23 
U.S.C.

[[Page 22]]

106(g)(4), and 2 CFR 200.331. Administering subawards includes providing 
oversight of the procurement, management, and administration of 
engineering and design related consultant services by subrecipients to 
ensure compliance with applicable Federal and State laws and 
regulations. Nothing in this part shall be taken as relieving the STA 
(or other recipient) of its responsibility under laws and regulations 
applicable to the FAHP for the work performed under any consultant 
agreement or contract entered into by a subrecipient.
    (b) Subrecipient responsibilities. Subrecipients shall develop and 
sustain organizational capacity and provide the resources necessary for 
the procurement, management, and administration of engineering and 
design related consultant services, reimbursed in whole or in part with 
FAHP funding as specified in 23 U.S.C. 106(g)(4)(A). Responsibilities 
shall include the following:
    (1) Adopting written policies and procedures prescribed by the 
awarding STA or other recipient for the procurement, management, and 
administration of engineering and design related consultant services in 
accordance with applicable Federal and State laws and regulations; or 
when not prescribed, shall include:
    (i) Preparing and maintaining its own written policies and 
procedures in accordance with paragraph (c) of this section; or
    (ii) Submitting documentation associated with each procurement and 
subsequent contract to the awarding STA or other grantee for review to 
assess compliance with applicable Federal and State laws, regulations, 
and the requirements of this part;
    (2) Procuring, managing, and administering engineering and design 
related consultant services in accordance with applicable Federal and 
State laws, regulations, and approved policies and procedures, as 
specified in 23 CFR 1.9(a).
    (c) Written policies and procedures. The contracting agency shall 
prepare and maintain written policies and procedures for the 
procurement, management, and administration of engineering and design 
related consultant services. The FHWA shall approve the written policies 
and procedures, including all revisions to such policies and procedures, 
of the STA or recipient to assess compliance with applicable 
requirements. The STA or other recipient shall approve the written 
policies and procedures, including all revisions to such policies and 
procedures, of a subrecipient to assess compliance with applicable 
requirements. These policies and procedures shall address, as 
appropriate for each method of procurement a contracting agency proposes 
to use, the following items to ensure compliance with Federal and State 
laws, regulations, and the requirements of this part:
    (1) Preparing a scope of work and evaluation factors for the 
ranking/selection of a consultant;
    (2) Soliciting interests, qualifications, or proposals from 
prospective consultants;
    (3) Preventing, identifying, and mitigating conflicts of interest 
for employees of both the contracting agency and consultants and 
promptly disclosing in writing any potential conflict to the STA and 
FHWA, as specified in 2 CFR 200.112 and 23 CFR 1.33, and the 
requirements of this part.
    (4) Verifying suspension and debarment actions and eligibility of 
consultants, as specified in 2 CFR part 1200 and 2 CFR part 180;
    (5) Evaluating interests, qualifications, or proposals and the 
ranking/selection of a consultant;
    (6) Determining, based upon State procedures and the size and 
complexity of a project, the need for additional discussions following 
RFP submission and evaluation;
    (7) Preparing an independent agency estimate for use in negotiation 
with the selected consultant;
    (8) Selecting appropriate contract type, payment method, and terms 
and incorporating required contract provisions, assurances, and 
certifications in accordance with Sec. 172.9;
    (9) Negotiating a contract with the selected consultant including 
instructions for proper disposal of concealed cost proposals of 
unsuccessful bidders;
    (10) Establishing elements of contract costs, accepting indirect 
cost rate(s) for application to contracts, and

[[Page 23]]

assuring consultant compliance with the Federal cost principles in 
accordance with Sec. 172.11;
    (11) Ensuring consultant costs billed are allowable in accordance 
with the Federal cost principles and consistent with the contract terms 
as well as the acceptability and progress of the consultant's work;
    (12) Monitoring the consultant's work and compliance with the terms, 
conditions, and specifications of the contract;
    (13) Preparing a consultant's performance evaluation when services 
are completed and using such performance data in future evaluation and 
ranking of consultant to provide similar services;
    (14) Closing-out a contract;
    (15) Retaining supporting programmatic and contract records, as 
specified in 2 CFR 200.333 and the requirements of this part;
    (16) Determining the extent to which the consultant, which is 
responsible for the professional quality, technical accuracy, and 
coordination of services, may be reasonably liable for costs resulting 
from errors and omissions in the work furnished under its contract;
    (17) Assessing administrative, contractual, or legal remedies in 
instances where consultants violate or breach contract terms and 
conditions, and providing for such sanctions and penalties as may be 
appropriate; and
    (18) Resolving disputes in the procurement, management, and 
administration of engineering and design related consultant services.
    (d) A contracting agency may formally adopt, by statute or within 
approved written policies and procedures as specified in paragraph (c) 
of this section, any direct Federal Government or other contracting 
regulation, standard, or procedure provided its application does not 
conflict with the provisions of 23 U.S.C. 112, the requirements of this 
part, and other laws and regulations applicable to the FAHP.
    (e) Notwithstanding paragraph (d) of this section, a contracting 
agency shall have a reasonable period of time, not to exceed 12 months 
from the effective date of this rule unless an extension is granted for 
unique or extenuating circumstances, to issue or update current written 
policies and procedures for review and approval in accordance with 
paragraph (c) of this section and consistent with the requirements of 
this part.



Sec. 172.7  Procurement methods and procedures.

    (a) Procurement methods. The procurement of engineering and design 
related services funded by FAHP funds and related to a highway 
construction project subject to the provisions of 23 U.S.C. 112(a) shall 
be conducted in accordance with one of three methods: Competitive 
negotiation (qualifications-based selection) procurement, small 
purchases procurement for small dollar value contracts, and 
noncompetitive procurement where specific conditions exist allowing 
solicitation and negotiation to take place with a single consultant.
    (1) Competitive negotiation (qualifications-based selection). Except 
as provided in paragraphs (a)(2) and (3) of this section, contracting 
agencies shall use the competitive negotiation method for the 
procurement of engineering and design related services when FAHP funds 
are involved in the contract, as specified in 23 U.S.C. 112(b)(2)(A). 
The solicitation, evaluation, ranking, selection, and negotiation shall 
comply with the qualifications-based selection procurement procedures 
for architectural and engineering services codified under 40 U.S.C. 
1101-1104, commonly referred to as the Brooks Act. In accordance with 
the requirements of the Brooks Act, the following procedures shall apply 
to the competitive negotiation procurement method:
    (i) Solicitation. The solicitation process shall be by public 
announcement, public advertisement, or any other public forum or method 
that assures qualified in-State and out-of-State consultants are given a 
fair opportunity to be considered for award of the contract. Procurement 
procedures may involve a single step process with issuance of a request 
for proposal (RFP) to all interested consultants or a multiphase process 
with issuance of a request for statements or letters of interest or 
qualifications (RFQ) whereby responding consultants are ranked based on 
qualifications and a RFP is

[[Page 24]]

then provided to three or more of the most highly qualified consultants. 
Minimum qualifications of consultants to perform services under general 
work categories or areas of expertise may also be assessed through a 
prequalification process whereby annual statements of qualifications and 
performance data are encouraged. Regardless of any process utilized for 
prequalification of consultants or for an initial assessment of a 
consultant's qualifications under a RFQ, a RFP specific to the project, 
task, or service is required for evaluation of a consultant's specific 
technical approach and qualifications.
    (ii) Request for proposal (RFP). The RFP shall provide all 
information and requirements necessary for interested consultants to 
provide a response to the RFP and compete for the solicited services. 
The RFP shall:
    (A) Provide a clear, accurate, and detailed description of the scope 
of work, technical requirements, and qualifications of consultants 
necessary for the services to be rendered. To the extent practicable, 
the scope of work should detail the purpose and description of the 
project, services to be performed, deliverables to be provided, 
estimated schedule for performance of the work, and applicable 
standards, specifications, and policies;
    (B) Identify the requirements for any discussions that may be 
conducted with three or more of the most highly qualified consultants 
following submission and evaluation of proposals;
    (C) Identify evaluation factors including their relative weight of 
importance in accordance with paragraph (a)(1)(iii) of this section;
    (D) Specify the contract type and method(s) of payment anticipated 
to contract for the solicited services in accordance with Sec. 172.9;
    (E) Identify any special provisions or contract requirements 
associated with the solicited services;
    (F) Require that submission of any requested cost proposals or 
elements of cost be in a concealed format and separate from technical/
qualifications proposals, since these shall not be considered in the 
evaluation, ranking, and selection phase; and
    (G) Provide an estimated schedule for the procurement process and 
establish a submittal deadline for responses to the RFP that provides 
sufficient time for interested consultants to receive notice, prepare, 
and submit a proposal, which except in unusual circumstances shall be 
not less than 14 calendar days from the date of issuance of the RFP.
    (iii) Evaluation factors. (A) Criteria used for evaluation, ranking, 
and selection of consultants to perform engineering and design related 
services must assess the demonstrated competence and qualifications for 
the type of professional services solicited. These qualifications-based 
factors may include, but are not limited to, technical approach (e.g., 
project understanding, innovative concepts or alternatives, quality 
control procedures), work experience, specialized expertise, 
professional licensure, staff capabilities, workload capacity, and past 
performance.
    (B) Price shall not be used as a factor in the evaluation, ranking, 
and selection phase. All price or cost related items which include, but 
are not limited to, cost proposals, direct salaries/wage rates, indirect 
cost rates, and other direct costs are prohibited from being used as 
evaluation criteria.
    (C) In-State or local preference shall not be used as a factor in 
the evaluation, ranking, and selection phase. State licensing laws are 
not preempted by this provision and professional licensure within a 
jurisdiction may be established as a requirement for the minimum 
qualifications and competence of a consultant to perform the solicited 
services.
    (D) The following nonqualifications-based evaluation criteria are 
permitted under the specified conditions and provided the combined total 
of these criteria do not exceed a nominal value of 10 percent of the 
total evaluation criteria to maintain the integrity of a qualifications-
based selection:
    (1) A local presence may be used as a nominal evaluation factor 
where appropriate. This criteria shall not be based on political or 
jurisdictional boundaries and may be applied on a project-by-project 
basis for contracts where a need has been established for a consultant 
to provide a local presence, a local

[[Page 25]]

presence will add value to the quality and efficiency of the project, 
and application of this criteria leaves an appropriate number of 
qualified consultants, given the nature and size of the project. If a 
consultant from outside of the locality area indicates as part of a 
proposal that it will satisfy the criteria in some manner, such as 
establishing a local project office, that commitment shall be considered 
to have satisfied the local presence criteria.
    (2) The participation of qualified and certified Disadvantaged 
Business Enterprise (DBE) subconsultants may be used as a nominal 
evaluation criterion where appropriate in accordance with 49 CFR part 26 
and a contracting agency's FHWA-approved DBE program.
    (iv) Evaluation, ranking, and selection. (A) The contracting agency 
shall evaluate consultant proposals based on the criteria established 
and published within the public solicitation.
    (B) Although the contract will be with the consultant, proposal 
evaluations shall consider the qualifications of the consultant and any 
subconsultants identified within the proposal with respect to the scope 
of work and established criteria.
    (C) The contracting agency shall specify in the RFP discussion 
requirements that shall follow submission and evaluation of proposals 
and based on the size and complexity of the project or as defined in 
contracting agency written policies and procedures, as specified in 
Sec. 172.5(c). Discussions, as required by the RFP, may be written, by 
telephone, video conference, or by oral presentation/interview and shall 
be with at least three of the most highly qualified consultants to 
clarify the technical approach, qualifications, and capabilities 
provided in response to the RFP.
    (D) From the proposal evaluation and any subsequent discussions 
which may have been conducted, the contracting agency shall rank, in 
order of preference, at least three consultants determined most highly 
qualified to perform the solicited services based on the established and 
published criteria. In instances where only two qualified consultants 
respond to the solicitation, the contracting agency may proceed with 
evaluation and selection if it is determined that the solicitation did 
not contain conditions or requirements that arbitrarily limited 
competition. Alternatively, a contracting agency may pursue procurement 
following the noncompetitive method when competition is determined to be 
inadequate and it is determined to not be feasible or practical to re-
compete under a new solicitation as specified in paragraph 
(a)(3)(iii)(C) of this section.
    (E) Notification must be provided to responding consultants of the 
final ranking of the three most highly qualified consultants.
    (F) The contracting agency shall retain supporting documentation of 
the solicitation, proposal, evaluation, and selection of the consultant 
in accordance with this section and the provisions of 2 CFR 200.333.
    (v) Negotiation. (A) The process for negotiation of the contract 
shall comply with the requirements codified in 40 U.S.C. 1104(b) for the 
order of negotiation.
    (B) Independent estimate. Prior to receipt or review of the most 
highly qualified consultant's cost proposal, the contracting agency 
shall prepare a detailed independent estimate with an appropriate 
breakdown of the work or labor hours, types or classifications of labor 
required, other direct costs, and consultant's fixed fee for the defined 
scope of work. The independent estimate shall serve as the basis for 
negotiation.
    (C) The contracting agency shall establish elements of contract 
costs (e.g., indirect cost rates, direct salary or wage rates, fixed 
fee, and other direct costs) separately in accordance with Sec. 172.11. 
The use of the independent estimate and determination of cost allowance 
in accordance with Sec. 172.11 shall ensure contracts for the 
consultant services are obtained at a fair and reasonable cost, as 
specified in 40 U.S.C. 1104(a).
    (D) If concealed cost proposals were submitted in conjunction with 
technical/qualifications proposals, the contracting agency may consider 
only the cost proposal of the consultant with which negotiations are 
initiated. Due to the confidential nature of this data, as specified in 
23 U.S.C. 112(b)(2)(E),

[[Page 26]]

concealed cost proposals of unsuccessful consultants may be disposed of 
in accordance with written policies and procedures established under 
Sec. 172.5(c).
    (E) The contracting agency shall retain documentation of negotiation 
activities and resources used in the analysis of costs to establish 
elements of the contract in accordance with the provisions of 2 CFR 
200.333. This documentation shall include the consultant cost 
certification and documentation supporting the acceptance of the 
indirect cost rate to be applied to the contract, as specified in Sec. 
172.11(c).
    (2) Small purchases. The contracting agency may use the State's 
small purchase procedures that reflect applicable State laws and 
regulations for the procurement of engineering and design related 
services provided the total contract costs do not exceed the Federal 
simplified acquisition threshold (as defined in 48 CFR 2.101). When a 
lower threshold for use of small purchase procedures is established in 
State law, regulation, or policy, the lower threshold shall apply to the 
use of FAHP funds. The following additional requirements shall apply to 
the small purchase procurement method:
    (i) The scope of work, project phases, and contract requirements 
shall not be broken down into smaller components merely to permit the 
use of small purchase procedures.
    (ii) A minimum of three consultants are required to satisfy the 
adequate number of qualified sources reviewed. In instances where only 
two qualified consultants respond to the solicitation, the contracting 
agency may proceed with evaluation and selection if it is determined 
that the solicitation did not contain conditions or requirements which 
arbitrarily limited competition. Alternatively, a contracting agency may 
pursue procurement following the noncompetitive method when competition 
is determined to be inadequate and it is determined to not be feasible 
or practical to re compete under a new solicitation as specified in 
Sec. 172.7(a)(3)(iii)(C).
    (iii) Contract costs may be negotiated in accordance with State 
small purchase procedures; however, the allowability of costs shall be 
determined in accordance with the Federal cost principles.
    (iv) The full amount of any contract modification or amendment that 
would cause the total contract amount to exceed the established 
simplified acquisition threshold is ineligible for Federal-aid funding. 
The FHWA may withdraw all Federal-aid from a contract if it is modified 
or amended above the applicable established simplified acquisition 
threshold.
    (3) Noncompetitive. The following requirements shall apply to the 
noncompetitive procurement method:
    (i) A contracting agency may use its own noncompetitive procedures 
that reflect applicable State and local laws and regulations and conform 
to applicable Federal requirements.
    (ii) A contracting agency shall establish a process to determine 
when noncompetitive procedures will be used and shall submit 
justification to, and receive approval from FHWA before using this form 
of contracting.
    (iii) A contracting agency may award a contract by noncompetitive 
procedures under the following limited circumstances:
    (A) The service is available only from a single source;
    (B) There is an emergency which will not permit the time necessary 
to conduct competitive negotiations; or
    (C) After solicitation of a number of sources, competition is 
determined to be inadequate.
    (iv) Contract costs may be negotiated in accordance with contracting 
agency noncompetitive procedures; however, the allowability of costs 
shall be determined in accordance with the Federal cost principles.
    (b) Additional procurement requirements--(1) Uniform administrative 
requirements, cost principles and audit requirements for Federal awards. 
(i) STAs or other recipients and their subrecipients shall comply with 
procurement requirements established in State and local laws, 
regulations, policies, and procedures that are not addressed by or are 
not in conflict with applicable Federal laws and regulations, as 
specified in 2 CFR part 1201.
    (ii) When State and local procurement laws, regulations, policies, 
or

[[Page 27]]

procedures are in conflict with applicable Federal laws and regulations, 
a contracting agency shall comply with Federal requirements to be 
eligible for Federal-aid reimbursement of the associated costs of the 
services incurred following FHWA authorization, as specified in 2 CFR 
200.102(c).
    (2) Disadvantaged Business Enterprise (DBE) program. (i) A 
contracting agency shall give consideration to DBE consultants in the 
procurement of engineering and design related service contracts subject 
to 23 U.S.C. 112(b)(2) in accordance with 49 CFR part 26. When DBE 
program participation goals cannot be met through race-neutral measures, 
additional DBE participation on engineering and design related services 
contracts may be achieved in accordance with a contracting agency's FHWA 
approved DBE program through either:
    (A) Use of an evaluation criterion in the qualifications-based 
selection of consultants, as specified in Sec. 172.7(a)(1)(iii)(D); or
    (B) Establishment of a contract participation goal.
    (ii) The use of quotas or exclusive set-asides for DBE consultants 
is prohibited, as specified in 49 CFR 26.43.
    (3) Suspension and debarment. A contracting agency shall verify 
suspension and debarment actions and eligibility status of consultants 
and subconsultants prior to entering into an agreement or contract in 
accordance with 2 CFR part 1200 and 2 CFR part 180.
    (4) Conflicts of interest. (i) A contracting agency shall maintain a 
written code of standards of conduct governing the performance of their 
employees engaged in the award and administration of engineering and 
design related services contracts under this part and governing the 
conduct and roles of consultants in the performance of services under 
such contracts to prevent, identify, and mitigate conflicts of interest 
in accordance with 2 CFR 200.112, 23 CFR 1.33 and the provisions of this 
paragraph (b)(4).
    (ii) No employee, officer, or agent of the contracting agency shall 
participate in selection, or in the award or administration of a 
contract supported by Federal-aid funds if a conflict of interest, real 
or apparent, would be involved. Such a conflict arises when there is a 
financial or other interest in the consultant selected for award by:
    (A) The employee, officer, or agent;
    (B) Any member of his or her immediate family;
    (C) His or her partner; or
    (D) An organization that employs or is about to employ any of the 
above.
    (iii) The contracting agency's officers, employees, or agents shall 
neither solicit nor accept gratuities, favors, or anything of monetary 
value from consultants, potential consultants, or parties to 
subagreements. A contracting agency may establish dollar thresholds 
where the financial interest is not substantial or the gift is an 
unsolicited item of nominal value.
    (iv) A contracting agency may provide additional prohibitions 
relative to real, apparent, or potential conflicts of interest.
    (v) To the extent permitted by State or local law or regulations, 
the standards of conduct required by this paragraph shall provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the contracting agency's officers, employees, or 
agents, or by consultants or their agents.
    (vi) A contracting agency shall promptly disclose in writing any 
potential conflict of interest to FHWA.
    (5) Consultant services in management support roles. (i) When FAHP 
funds participate in a consultant services contract, the contracting 
agency shall receive approval from FHWA, or the recipient as 
appropriate, before utilizing a consultant to act in a management 
support role for the contracting agency; unless an alternate approval 
procedure has been approved. Use of consultants in management support 
roles does not relieve the contracting agency of responsibilities 
associated with the use of FAHP funds, as specified in 23 U.S.C. 302(a) 
and 23 U.S.C. 106(g)(4) and should be limited to large projects or 
circumstances where unusual cost or time constraints exist, unique 
technical or managerial expertise is required, and/or an increase in 
contracting agency staff is not a viable option.
    (ii) Management support roles may include, but are not limited to, 
providing oversight of an element of a

[[Page 28]]

highway program, function, or service on behalf of the contracting 
agency or may involve managing or providing oversight of a project, 
series of projects, or the work of other consultants and contractors on 
behalf of the contracting agency. Contracting agency written policies 
and procedures as specified in Sec. 172.5(c) may further define 
allowable management roles and services a consultant may provide, 
specific approval responsibilities, and associated controls necessary to 
ensure compliance with Federal requirements.
    (iii) Use of consultants or subconsultants in management support 
roles requires appropriate conflicts of interest standards as specified 
in paragraph (b)(4) of this section and adequate contracting agency 
staffing to administer and monitor the management consultant contract, 
as specified in Sec. 172.9(d). A consultant serving in a management 
support role may be precluded from providing additional services on 
projects, activities, or contracts under its oversight due to potential 
conflicts of interest.
    (iv) FAHP funds shall not participate in the costs of a consultant 
serving in a management support role where the consultant was not 
procured in accordance with Federal and State requirements, as specified 
in 23 CFR 1.9(a).
    (v) Where benefiting more than a single Federal-aid project, 
allocability of consultant contract costs for services related to a 
management support role shall be distributed consistent with the cost 
principles applicable to the contracting agency, as specified in 2 CFR 
part 200, subpart E--Cost Principles.



Sec. 172.9  Contracts and administration.

    (a) Contract types. The contracting agency shall use the following 
types of contracts:
    (1) Project-specific. A contract between the contracting agency and 
consultant for the performance of services and defined scope of work 
related to a specific project or projects.
    (2) Multiphase. A project-specific contract where the solicited 
services are divided into phases whereby the specific scope of work and 
associated costs may be negotiated and authorized by phase as the 
project progresses.
    (3) On-call or indefinite delivery/indefinite quantity (IDIQ). A 
contract for the performance of services for a number of projects, under 
task or work orders issued on an as-needed or on-call basis, for an 
established contract period. The procurement of services to be performed 
under on-call or IDIQ contracts shall follow either competitive 
negotiation or small purchase procurement procedures, as specified in 
Sec. 172.7. The solicitation and contract provisions shall address the 
following requirements:
    (i) Specify a reasonable maximum length of contract period, 
including the number and period of any allowable contract extensions, 
which shall not exceed 5 years;
    (ii) Specify a maximum total contract dollar amount that may be 
awarded under a contract;
    (iii) Include a statement of work, requirements, specifications, or 
other description to define the general scope, complexity, and 
professional nature of the services; and
    (iv) If multiple consultants are to be selected and multiple on-call 
or IDIQ contracts awarded through a single solicitation for specific 
services:
    (A) Identify the number of consultants that may be selected or 
contracts that may be awarded from the solicitation; and
    (B) Specify the procedures the contracting agency will use in 
competing and awarding task or work orders among the selected, qualified 
consultants. Task or work orders shall not be competed and awarded among 
the selected, qualified consultants on the basis of costs under on-call 
or IDIQ contracts for services procured with competitive negotiation 
procedures. Under competitive negotiation procurement, each specific 
task or work order shall be awarded to the selected, qualified 
consultants:
    (1) Through an additional qualifications-based selection procedure, 
which may include, but does not require, a formal RFP in accordance with 
Sec. 172.5(a)(1)(ii); or
    (2) On a regional basis whereby the State is divided into regions 
and consultants are selected to provide on-call

[[Page 29]]

or IDIQ services for an assigned region(s) identified within the 
solicitation.
    (b) Payment methods. (1) The method of payment to the consultant 
shall be set forth in the original solicitation, contract, and in any 
contract modification thereto. The methods of payment shall be: Lump 
sum, cost plus fixed fee, cost per unit of work, or specific rates of 
compensation. A single contract may contain different payment methods as 
appropriate for compensation of different elements of work.
    (2) The cost plus a percentage of cost and percentage of 
construction cost methods of payment shall not be used.
    (3) The lump sum payment method shall only be used when the 
contracting agency has established the extent, scope, complexity, 
character, and duration of the work to be required to a degree that fair 
and reasonable compensation, including a fixed fee, can be determined at 
the time of negotiation.
    (4) When the method of payment is other than lump sum, the contract 
shall specify a maximum amount payable which shall not be exceeded 
unless adjusted by a contract modification.
    (5) The specific rates of compensation payment method provides for 
reimbursement on the basis of direct labor hours at specified fixed 
hourly rates, including direct labor costs, indirect costs, and fee or 
profit, plus any other direct expenses or costs, subject to an agreement 
maximum amount. This payment method shall only be used when it is not 
possible at the time of procurement to estimate the extent or duration 
of the work or to estimate costs with any reasonable degree of accuracy. 
This specific rates of compensation payment method should be limited to 
contracts or components of contracts for specialized or support type 
services where the consultant is not in direct control of the number of 
hours worked, such as construction engineering and inspection. When 
using this payment method, the contracting agency shall manage and 
monitor the consultant's level of effort and classification of employees 
used to perform the contracted services.
    (6) A contracting agency may withhold retainage from payments in 
accordance with prompt pay requirements, as specified in 49 CFR 26.29. 
When retainage is used, the terms and conditions of the contract shall 
clearly define agency requirements, including periodic reduction in 
retention and the conditions for release of retention.
    (c) Contract provisions. (1) All contracts and subcontracts shall 
include the following provisions, either by reference or by physical 
incorporation into the language of each contract or subcontract, as 
applicable:
    (i) Administrative, contractual, or legal remedies in instances 
where consultants violate or breach contract terms and conditions, and 
provide for such sanctions and penalties as may be appropriate;
    (ii) Notice of contracting agency requirements and regulations 
pertaining to reporting;
    (iii) Contracting agency requirements and regulations pertaining to 
copyrights and rights in data;
    (iv) Access by recipient, the subrecipient, FHWA, the U.S. 
Department of Transportation's Inspector General, the Comptroller 
General of the United States, or any of their duly authorized 
representatives to any books, documents, papers, and records of the 
consultant which are directly pertinent to that specific contract for 
the purpose of making audit, examination, excerpts, and transcriptions;
    (v) Retention of all required records for not less than 3 years 
after the contracting agency makes final payment and all other pending 
matters are closed;
    (vi) Standard DOT Title VI Assurances (DOT Order 1050.2);
    (vii) Disadvantaged Business Enterprise (DBE) assurance, as 
specified in 49 CFR 26.13(b);
    (viii) Prompt pay requirements, as specified in 49 CFR 26.29;
    (ix) Determination of allowable costs in accordance with the Federal 
cost principles;
    (x) Contracting agency requirements pertaining to consultant errors 
and omissions;
    (xi) Contracting agency requirements pertaining to conflicts of 
interest, as specified in 23 CFR 1.33 and the requirements of this part; 
and
    (xii) A provision for termination for cause and termination for 
convenience

[[Page 30]]

by the contracting agency including the manner by which it will be 
effected and the basis for settlement.
    (2) All contracts and subcontracts exceeding $100,000 shall contain, 
either by reference or by physical incorporation into the language of 
each contract, a provision for lobbying certification and disclosure, as 
specified in 49 CFR part 20.
    (d) Contract administration and monitoring--(1) Responsible charge. 
A full-time, public employee of the contracting agency qualified to 
ensure that the work delivered under contract is complete, accurate, and 
consistent with the terms, conditions, and specifications of the 
contract shall be in responsible charge of each contract or project. 
While an independent consultant may be procured to serve in a program or 
project management support role, as specified in Sec. 172.7(b)(5), or 
to provide technical assistance in review and acceptance of engineering 
and design related services performed and products developed by other 
consultants, the contracting agency shall designate a public employee as 
being in responsible charge. A public employee may serve in responsible 
charge of multiple projects and contracting agencies may use multiple 
public employees to fulfill monitoring responsibilities. The term 
responsible charge is intended to be applied only in the context defined 
within this regulation. It may or may not correspond to its usage in 
State laws regulating the licensure and/or conduct of professional 
engineers. The public employee's responsibilities shall include:
    (i) Administering inherently governmental activities including, but 
not limited to, contract negotiation, contract payment, and evaluation 
of compliance, performance, and quality of services provided by 
consultant;
    (ii) Being familiar with the contract requirements, scope of 
services to be performed, and products to be produced by the consultant;
    (iii) Being familiar with the qualifications and responsibilities of 
the consultant's staff and evaluating any requested changes in key 
personnel;
    (iv) Scheduling and attending progress and project review meetings, 
commensurate with the magnitude, complexity, and type of work, to ensure 
the work is progressing in accordance with established scope of work and 
schedule milestones;
    (v) Ensuring consultant costs billed are allowable in accordance 
with the Federal cost principles and consistent with the contract terms 
as well as the acceptability and progress of the consultant's work;
    (vi) Evaluating and participating in decisions for contract 
modifications; and
    (vii) Documenting contract monitoring activities and maintaining 
supporting contract records, as specified in 2 CFR 200.333.
    (2) Performance evaluation. The contracting agency shall prepare an 
evaluation summarizing the consultant's performance on a contract. The 
performance evaluation should include, but not be limited to, an 
assessment of the timely completion of work, adherence to contract scope 
and budget, and quality of the work conducted. The contracting agency 
shall provide the consultant a copy of the performance evaluation and an 
opportunity to provide written comments to be attached to the 
evaluation. The contracting agency should prepare additional interim 
performance evaluations based on the scope, complexity, and size of the 
contract as a means to provide feedback, foster communication, and 
achieve desired changes or improvements. Completed performance 
evaluations should be archived for consideration as an element of past 
performance in the future evaluation of the consultant to provide 
similar services.
    (e) Contract modification. (1) Contract modifications are required 
for any amendments to the terms of the existing contract that change the 
cost of the contract; significantly change the character, scope, 
complexity, or duration of the work; or significantly change the 
conditions under which the work is required to be performed.
    (2) A contract modification shall clearly define and document the 
changes made to the contract, establish the method of payment for any 
adjustments in contract costs, and be in compliance with the terms and 
conditions of the contract and original procurement.

[[Page 31]]

    (3) A contracting agency shall negotiate contract modifications 
following the same procedures as the negotiation of the original 
contract.
    (4) A contracting agency may add to a contract only the type of 
services and work included within the scope of services of the original 
solicitation from which a qualifications-based selection was made.
    (5) For any additional engineering and design related services 
outside of the scope of work established in the original request for 
proposal, a contracting agency shall:
    (i) Procure the services under a new solicitation;
    (ii) Perform the work itself using contracting agency staff; or
    (iii) Use a different, existing contract under which the services 
would be within the scope of work.
    (6) Overruns in the costs of the work shall not automatically 
warrant an increase in the fixed fee portion of a cost plus fixed fee 
reimbursed contract. Permitted changes to the scope of work or duration 
may warrant consideration for adjustment of the fixed fee portion of 
cost plus fixed fee or lump sum reimbursed contracts.



Sec. 172.11  Allowable costs and oversight.

    (a) Allowable costs. (1) Costs or prices based on estimated costs 
for contracts shall be eligible for Federal-aid reimbursement only to 
the extent that costs incurred or cost estimates included in negotiated 
prices are allowable in accordance with the Federal cost principles.
    (2) Consultants shall be responsible for accounting for costs 
appropriately and for maintaining records, including supporting 
documentation, adequate to demonstrate that costs claimed have been 
incurred, are allocable to the contract, and comply with Federal cost 
principles.
    (b) Elements of contract costs. The following requirements shall 
apply to the establishment of the specified elements of contract costs:
    (1) Indirect cost rates. (i) Indirect cost rates shall be updated on 
an annual basis in accordance with the consultant's annual accounting 
period and in compliance with the Federal cost principles.
    (ii) Contracting agencies shall accept a consultant's or 
subconsultant's indirect cost rate(s) established for a 1-year 
applicable accounting period by a cognizant agency that has:
    (A) Performed an audit in accordance with generally accepted 
government auditing standards to test compliance with the requirements 
of the Federal cost principles and issued an audit report of the 
consultant's indirect cost rate(s); or
    (B) Conducted a review of an audit report and related workpapers 
prepared by a certified public accountant and issued a letter of 
concurrence with the related audited indirect cost rate(s).
    (iii) When the indirect cost rate has not been established by a 
cognizant agency in accordance with paragraph (b)(1)(ii) of this 
section, a STA or other recipient shall perform an evaluation of a 
consultant's or subconsultant's indirect cost rate prior to acceptance 
and application of the rate to contracts administered by the recipient 
or its subrecipients. The evaluation performed by STAs or other 
recipients to establish or accept an indirect cost rate shall provide 
assurance of compliance with the Federal cost principles and may consist 
of one or more of the following:
    (A) Performing an audit in accordance with generally accepted 
government auditing standards and issuing an audit report;
    (B) Reviewing and accepting an audit report and related workpapers 
prepared by a certified public accountant or another STA;
    (C) Establishing a provisional indirect cost rate for the specific 
contract and adjusting contract costs based upon an audited final rate 
at the completion of the contract; or
    (D) Conducting other evaluations in accordance with a risk-based 
oversight process as specified in paragraph (c)(2) of this section and 
within the agency's approved written policies and procedures, as 
specified in Sec. 172.5(c).
    (iv) A lower indirect cost rate may be accepted for use on a 
contract if submitted voluntarily by a consultant; however, the 
consultant's offer of a lower indirect cost rate shall not be a 
condition or qualification to be considered for the work or contract 
award.

[[Page 32]]

    (v) Once accepted in accordance with paragraphs (b)(1)(ii) through 
(iv) of this section, contracting agencies shall apply such indirect 
cost rate for the purposes of contract estimation, negotiation, 
administration, reporting, and contract payment and the indirect cost 
rate shall not be limited by administrative or de facto ceilings of any 
kind.
    (vi) A consultant's accepted indirect cost rate for its 1-year 
applicable accounting period shall be applied to contracts; however, 
once an indirect cost rate is established for a contract, it may be 
extended beyond the 1-year applicable period, through the duration of 
the specific contract, provided all concerned parties agree. Agreement 
to the extension of the 1-year applicable period shall not be a 
condition or qualification to be considered for the work or contract 
award.
    (vii) Disputed rates. If an indirect cost rate established by a 
cognizant agency in paragraph (b)(1)(ii) of this section is in dispute, 
the contracting agency does not have to accept the rate. A contracting 
agency may perform its own audit or other evaluation of the consultant's 
indirect cost rate for application to the specific contract, until or 
unless the dispute is resolved. A contracting agency may alternatively 
negotiate a provisional indirect cost rate for the specific contract and 
adjust contract costs based upon an audited final rate. Only the 
consultant and the parties involved in performing the indirect cost 
audit may dispute the established indirect cost rate. If an error is 
discovered in the established indirect cost rate, the rate may be 
disputed by any prospective contracting agency.
    (2) Direct salary or wage rates. (i) Compensation for each employee 
or classification of employee must be reasonable for the work performed 
in accordance with the Federal cost principles.
    (ii) To provide for fair and reasonable compensation, considering 
the classification, experience, and responsibility of employees 
necessary to provide the desired engineering and design related 
services, contracting agencies may establish consultant direct salary or 
wage rate limitations or ``benchmarks'' based upon an objective 
assessment of the reasonableness of proposed rates performed in 
accordance with the reasonableness provisions of the Federal cost 
principles.
    (iii) When an assessment of reasonableness in accordance with the 
Federal cost principles has not been performed, contracting agencies 
shall use and apply the consultant's actual direct salary or wage rates 
for estimation, negotiation, administration, and payment of contracts 
and contract modifications.
    (3) Fixed fee. (i) The determination of the amount of fixed fee 
shall consider the scope, complexity, contract duration, degree of risk 
borne by the consultant, amount of subcontracting, and professional 
nature of the services as well as the size and type of contract.
    (ii) The establishment of fixed fee shall be contract or task order 
specific.
    (iii) Fixed fees in excess of 15 percent of the total direct labor 
and indirect costs of the contract may be justified only when 
exceptional circumstances exist.
    (4) Other direct costs. A contracting agency shall use the Federal 
cost principles in determining the reasonableness, allowability, and 
allocability of other direct contract costs.
    (c) Oversight--(1) Agency controls. Contracting agencies shall 
provide reasonable assurance that consultant costs on contracts 
reimbursed in whole or in part with FAHP funding are allowable in 
accordance with the Federal cost principles and consistent with the 
contract terms considering the contract type and payment method. 
Contracting agency written policies, procedures, contract documents, and 
other controls, as specified in Sec. Sec. 172.5(c) and 172.9 shall 
address the establishment, acceptance, and administration of contract 
costs to assure compliance with the Federal cost principles and 
requirements of this section.
    (2) Risk-based analysis. The STAs or other recipient may employ a 
risk-based oversight process to provide reasonable assurance of 
consultant compliance with Federal cost principles on FAHP funded 
contracts administered by the recipient or its subrecipients. If 
employed, this risk-based oversight process shall be incorporated into 
STA or other recipient written policies and procedures, as specified in 
Sec. 172.5(c). In

[[Page 33]]

addition to ensuring allowability of direct contract costs, the risk-
based oversight process shall address the evaluation and acceptance of 
consultant and subconsultant indirect cost rates for application to 
contracts. A risk-based oversight process shall consist of the 
following:
    (i) Risk assessments. Conducting and documenting an annual 
assessment of risks of noncompliance with the Federal cost principles 
per consultant doing business with the agency, considering the following 
factors:
    (A) Consultant's contract volume within the State;
    (B) Number of States in which the consultant operates;
    (C) Experience of consultant with FAHP contracts;
    (D) History and professional reputation of consultant;
    (E) Audit history of consultant;
    (F) Type and complexity of consultant accounting system;
    (G) Size (number of employees or annual revenues) of consultant;
    (H) Relevant experience of certified public accountant performing 
audit of consultant;
    (I) Assessment of consultant's internal controls;
    (J) Changes in consultant organizational structure; and
    (K) Other factors as appropriate.
    (ii) Risk mitigation and evaluation procedures. Allocating 
resources, as considered necessary based on the results of the annual 
risk assessment, to provide reasonable assurance of compliance with the 
Federal cost principles through application of the following types of 
risk mitigation and evaluation procedures appropriate to the consultant 
and circumstances:
    (A) Audits performed in accordance with generally accepted 
government audit standards to test compliance with the requirements of 
the Federal cost principles;
    (B) Certified public accountant or other STA workpaper reviews;
    (C) Other analytical procedures;
    (D) Consultant cost certifications in accordance with paragraph 
(c)(3) of this section; and
    (E) Consultant and certified public accountant training on the 
Federal cost principles.
    (iii) Documentation. Maintaining supporting documentation of the 
risk-based analysis procedures performed to support the allowability and 
acceptance of consultant costs on FAHP funded contracts.
    (3) Consultant cost certification. (i) Indirect cost rate proposals 
for the consultant's 1-year applicable accounting period shall not be 
accepted and no agreement shall be made by a contracting agency to 
establish final indirect cost rates, unless the costs have been 
certified by an official of the consultant as being allowable in 
accordance with the Federal cost principles. The certification 
requirement shall apply to all indirect cost rate proposals submitted by 
consultants and subconsultants for acceptance by a STA or other 
recipient. Each consultant or subconsultant is responsible for 
certification of its own indirect cost rate and may not certify the rate 
of another firm.
    (ii) The certifying official shall be an individual executive or 
financial officer of the consultant's organization at a level no lower 
than a Vice President or Chief Financial Officer, or equivalent, who has 
the authority to represent the financial information utilized to 
establish the indirect cost rate proposal submitted for acceptance.
    (iii) The certification of final indirect costs shall read as 
follows:

                   Certificate of Final Indirect Costs

    This is to certify that I have reviewed this proposal to establish 
final indirect cost rates and to the best of my knowledge and belief:
    1. All costs included in this proposal (identify proposal and date) 
to establish final indirect cost rates for (identify period covered by 
rate) are allowable in accordance with the cost principles of the 
Federal Acquisition Regulation (FAR) of title 48, Code of Federal 
Regulations (CFR), part 31; and
    2. This proposal does not include any costs which are expressly 
unallowable under applicable cost principles of the FAR of 48 CFR part 
31.

Firm:___________________________________________________________________

Signature:______________________________________________________________

Name of Certifying Official:____________________________________________

Title:__________________________________________________________________

Date of Execution:______________________________________________________

    (4) Sanctions and penalties. Contracting agency written policies, 
procedures, and contract documents, as

[[Page 34]]

specified in Sec. Sec. 172.5(c) and 172.9(c), shall address the range 
of administrative, contractual, or legal remedies that may be assessed 
in accordance with Federal and State laws and regulations where 
consultants violate or breach contract terms and conditions. Where 
consultants knowingly charge unallowable costs to a FAHP funded 
contract:
    (i) Contracting agencies shall pursue administrative, contractual, 
or legal remedies and provide for such sanctions and penalties as may be 
appropriate; and
    (ii) Consultants are subject to suspension and debarment actions as 
specified in 2 CFR part 1200 and 2 CFR part 180, potential cause of 
action under the False Claims Act as specified in 32 U.S.C. 3729-3733, 
and prosecution for making a false statement as specified in 18 U.S.C. 
1020.
    (d) Prenotification; confidentiality of data. FHWA, recipients, and 
subrecipients of FAHP funds may share audit information in complying 
with the recipient's or subrecipient's acceptance of a consultant's 
indirect cost rates pursuant to 23 U.S.C. 112 and this part provided 
that the consultant is given notice of each use and transfer. Audit 
information shall not be provided to other consultants or any other 
government agency not sharing the cost data, or to any firm or 
government agency for purposes other than complying with the recipient's 
or subrecipient's acceptance of a consultant's indirect cost rates 
pursuant to 23 U.S.C. 112 and this part without the written permission 
of the affected consultants. If prohibited by law, such cost and rate 
data shall not be disclosed under any circumstance; however, should a 
release be required by law or court order, such release shall make note 
of the confidential nature of the data.



PART 180_CREDIT ASSISTANCE FOR SURFACE TRANSPORTATION PROJECTS--
Table of Contents



    Authority: Secs. 1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241, 
as amended; 23 U.S.C. 181-189 and 315; 49 CFR 1.48.

    Source: 64 FR 29750, June 2, 1999, unless otherwise noted.



Sec. 180.1  Cross-reference to credit assistance.

    The regulations in 49 CFR part 80 shall be followed in complying 
with the requirements of this part. Title 49 CFR part 80 implements the 
Transportation Infrastructure Finance and Innovation Act of 1998, secs. 
1501 et seq., Pub. L. 105-178, 112 Stat. 107, 241.



PART 190_INCENTIVE PAYMENTS FOR CONTROLLING OUTDOOR ADVERTISING
ON THE INTERSTATE SYSTEM--Table of Contents



Sec.
190.1 Purpose.
190.3 Agreement to control advertising.
190.5 Bonus project claims.
190.7 Processing of claims.

    Authority: 23 U.S.C. 131(j) and 315; 49 CFR 1.48(b).

    Source: 43 FR 42742, Sept. 21, 1978, unless otherwise noted.



Sec. 190.1  Purpose.

    The purpose of this regulation is to prescribe project procedures 
for making the incentive payments authorized by 23 U.S.C. 131(j).



Sec. 190.3  Agreement to control advertising.

    To qualify for the bonus payment, a State must have entered into an 
agreement with the Secretary to control outdoor advertising. It must 
fulfill, and must continue to fulfill its obligations under such 
agreement consistent with 23 CFR 750.101.



Sec. 190.5  Bonus project claims.

    (a) The State may claim payment by submitting a form PR-20 voucher, 
supported by strip maps which identify advertising control limits and 
areas excluded from the claim and form FHWA-1175, for the one-half 
percent bonus claim.
    (b) The bonus payment computation is based on projects or portions 
thereof for which (1) the section of highway on which the project is 
located has been opened to traffic, and (2) final payment has been made. 
A bonus project may cover an individual project, a part thereof, or a 
combination of projects, on a section of an Interstate route.

[[Page 35]]

    (c) The eligible system mileage to be shown for a bonus project is 
that on which advertising controls are in effect. The eligible system 
mileage reported in subsequent projects on the same Interstate route 
section should cover only the additional system mileage not previously 
reported. Eligible project cost is the total participating cost (State 
and Federal share of approved preliminary engineering (PE), right-of-way 
(R-O-W), and construction) exclusive of any ineligible costs. The amount 
of the bonus payment is to be based on the eligible total costs of the 
supporting projects included in each claim.
    (d) Progress vouchers for route sections on which additional one-
half percent bonus payments are to be claimed are to be so identified, 
and the final claim for each route section is to be identified as the 
final voucher.



Sec. 190.7  Processing of claims.

    Audited and approved PR-20 vouchers with form FHWA-1175 shall be 
forwarded to the regional office for submission to the Finance Division, 
Washington Headquarters, for payment. The associated strip maps shall be 
retained with the division office copies of the PR-20 vouchers.



PART 192_DRUG OFFENDER'S DRIVER'S LICENSE SUSPENSION--Table of Contents



Sec.
192.1 Scope.
192.2 Purpose.
192.3 Definitions.
192.4 Adoption of drug offender's driver's license suspension.
192.5 Certification requirements.
192.6 Period of availability of withheld funds.
192.7 Apportionment of withheld funds after compliance.
192.8 Period of availability of subsequently apportioned funds.
192.9 Effect of noncompliance.
192.10 Procedures affecting States in noncompliance.

    Authority: 23 U.S.C. 159 and 315.

    Source: 57 FR 35999, Aug. 12, 1992, unless otherwise noted. 
Redesignated at 60 FR 50100, Sept. 28, 1995.



Sec. 192.1  Scope.

    This part prescribes the requirements necessary to implement 23 
U.S.C. Sec. 159, which encourages States to enact and enforce drug 
offender's driver's license suspensions.



Sec. 192.2  Purpose.

    The purpose of this part is to specify the steps that States must 
take in order to avoid the withholding of Federal-aid highway funds for 
noncompliance with 23 U.S.C. 159.



Sec. 192.3  Definitions.

    As used in this part:
    (a) Convicted includes adjudicated under juvenile proceedings.
    (b) Driver's license means a license issued by a State to any 
individual that authorizes the individual to operate a motor vehicle on 
highways.
    (c) Drug offense means:
    (1) The possession, distribution, manufacture, cultivation, sale, 
transfer, or the attempt or conspiracy to possess, distribute, 
manufacture, cultivate, sell, or transfer any substance the possession 
of which is prohibited under the Controlled Substances Act, or
    (2) The operation of a motor vehicle under the influence of such a 
substance.
    (d) Substance the possession of which is prohibited under the 
Controlled Substances Act or substance means a controlled or counterfeit 
chemical, as those terms are defined in subsections 102 (6) and (7) of 
the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 
U.S.C. 802 (6) and (7) and listed in 21 CFR 1308.11-.15.

[57 FR 35999, Aug. 12, 1992; 58 FR 62415, Nov. 26, 1993; 59 FR 39256, 
Aug. 2, 1994]



Sec. 192.4  Adoption of drug offender's driver's license suspension.

    (a) The Secretary shall withhold five percent of the amount required 
to be apportioned to any State under each of sections 104(b)(1), 
104(b)(3), and 104(b)(5) of title 23 of the United States Code on the 
first day of fiscal years 1994 and 1995 if the States does not meet the 
requirements of this section on that date.
    (b) The Secretary shall withhold ten percent of the amount required 
to be

[[Page 36]]

apportioned to any State under each of sections 104(b)(1), 104(b)(3), 
and 104(b)(5) of title 23 of the United States Code on the first day of 
fiscal year 1996 and any subsequent fiscal year if the State does not 
meet the requirements of this section on that date.
    (c) A State meets the requirements of this section if:
    (1) The State has enacted and is enforcing a law that requires in 
all circumstances, or requires in the absence of compelling 
circumstances warranting an exception:
    (i) The revocation, or suspension for at least 6 months, of the 
driver's license of any individual who is convicted, after the enactment 
of such law, of
    (A) Any violation of the Controlled Substances Act, or
    (B) Any drug offense, and
    (ii) A delay in the issuance or reinstatement of a driver's license 
to such an individual for at least 6 months after the individual 
otherwise would have been eligible to have a driver's license issued or 
reinstated if the individual does not have a driver's license, or the 
driver's license of the individual is suspended, at the time the 
individual is so convicted, or
    (2) The Governor of the State:
    (i) Submits to the Secretary no earlier than the adjournment sine 
die of the first regularly scheduled session of the State's legislature 
which begins after November 5, 1990, a written certification stating 
that he or she is opposed to the enactment or enforcement in the State 
of a law described in paragraph (c)(1) of this section relating to the 
revocation, suspension, issuance, or reinstatement of driver's licenses 
to convicted drug offenders; and
    (ii) Submits to the Secretary a written certification that the 
legislature (including both Houses where applicable) has adopted a 
resolution expressing its opposition to a law described in paragraph 
(c)(1) of this section.
    (d) A State that makes exceptions for compelling circumstances must 
do so in accordance with a State law, regulation, binding policy 
directive or Statewide published guidelines establishing the conditions 
for making such exceptions and in exceptional circumstances specific to 
the offender.



Sec. 192.5  Certification requirements.

    (a) Each State shall certify to the Secretary of Transportation by 
April 1, 1993 and by January 1 of each subsequent year that it meets the 
requirements of 23 U.S.C. 159 and this regulation.
    (b) If the State believes it meets the requirements of 23 U.S.C. 159 
and this regulation on the basis that it has enacted and is enforcing a 
law that suspends or revokes the driver's license of drug offenders, the 
certification shall contain:
    (1) A statement by the Governor of the State that the State has 
enacted and is enforcing a Drug Offender's Driver's License Suspension 
law that conforms to 23 U.S.C. 159(a)(3)(A). The certifying statement 
may be worded as follows: I, (Name of Governor), Governor of the (State 
or Commonwealth) of ------------, do hereby certify that the (State or 
Commonwealth) of ------------, has enacted is enforcing a Drug 
Offender's Driver's License Suspension law that conforms to section 23 
U.S. C. 159(a)(3)(A).
    (2) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 159 and this regulation, the certification 
shall include also:
    (i) A copy of the State law, regulation, or binding policy directive 
implementing or interpreting such law or regulation relating to the 
suspension, revocation, issuance or reinstatement or driver's licenses 
of drug offenders, and
    (ii) A statement describing the steps the State is taking to enforce 
its law with regard to within State convictions, out-of-State 
convictions, Federal convictions and juvenile adjudications. The 
statement shall demonstrate that, upon receiving notification that a 
State driver has been convicted of a within State, out-of-State or 
Federal conviction or juvenile adjudication, the State is revoking, 
suspending or delaying the issuance of that drug offender's driver's 
license; and that, when the State convicts an individual of a drug 
offense, it is notifying the appropriate State office or, if the 
offender is a non-resident driver, the appropriate office in the 
driver's home State. If the State is not yet making

[[Page 37]]

these notifications, the State may satisfy this element by submitting a 
plan describing the steps it is taking to establish notification 
procedures.
    (c) If the State believes it meets the requirements of 23 U.S.C. 
159(a)(3)(B) on the basis that it opposes a law that requires the 
suspension, revocation or delay in issuance or reinstatement of the 
driver's license of drug offenders that conforms to 23 U.S.C. 
159(a)(3)(A), the certification shall contain:
    (1) A statement by the Governor of the State that he or she is 
opposed to the enactment or enforcement of a law that conforms to 23 
U.S.C. 159(a)(3)(A) and that the State legislature has adopted a 
resolution expressing its opposition to such a law. The certifying 
statement may be worded as follows: I, (Name of Governor), Governor of 
the (State or Commonwealth of ------------, do hereby certify that I am 
opposed to the enactment or enforcement of a law that conforms to 23 
U.S.C. 159(a)(3)(A) and that the legislature of the (State or 
Commonwealth) of ------------, has adopted a resolution expressing its 
opposition to such a law.
    (2) Until a State has been determined to be in compliance with the 
requirements of 23 U.S.C. 159(a)(3)(B) and this regulation, the 
certification shall include a copy of the resolution.
    (d) The Governor each year shall submit the original and three 
copies of the certification to the local FHWA Division Administrator. 
The FHWA Division Administrator shall retain the original and forward 
one copy each to the FHWA Regional Administrator, FHWA Chief Counsel, 
and the Director of the Office of Highway Safety.
    (e) Any changes to the original certification or supplemental 
information necessitated by the review of the certifications as they are 
forwarded, State legislative changes or changes in State enforcement 
activity (including failure to make progress in a plan previously 
submitted) shall be submitted in the same manner as the original.

[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100, 
Sept. 28, 1995]



Sec. 192.6  Period of availability of withheld funds.

    (a) Funds withheld under Sec. 1212.4 from apportionment to any 
State on or before September 30, 1995, will remain available for 
apportionment as follows:
    (1) If the funds would have been apportioned under 23 U.S.C. 
104(b)(5)(A) but for this section, the funds will remain available until 
the end of the fiscal year for which the funds are authorized to be 
appropriated.
    (2) If the funds would have been apportioned under 23 U.S.C. 
104(b)(5)(B) but for this section, the funds will remain available until 
the end of the second fiscal year following the fiscal year for which 
the funds are authorized to be appropriated.
    (3) If the funds would have been apportioned under 23 U.S.C. 
104(b)(1) or 104(b)(3) but for this section, the funds will remain 
available until the end of the third fiscal year following the fiscal 
year for which the funds are authorized to be appropriated.
    (b) Funds withheld under Sec. 1212.4 from apportionment to any 
State after September 30, 1995 will not be available for apportionment 
to the State.



Sec. 192.7  Apportionment of withheld funds after compliance.

    Funds withheld under Sec. 1212.4 from apportionment, which remain 
available for apportionment under Sec. 1212.6(a), will be made 
available to any State that conforms to the requirements of Sec. 1212.4 
before the last day of the period of availability as defined in Sec. 
1212.6(a).

[57 FR 35999, Aug. 12, 1992, as amended at 59 FR 39256, Aug. 2, 1994]



Sec. 192.8  Period of availability of subsequently apportioned funds.

    (a) Funds apportioned pursuant to Sec. 1212.7 will remain available 
for expenditure as follows:
    (1) Funds originally apportioned under 23 U.S.C. 104(b)(5)(A) will 
remain available until the end of the fiscal year succeeding the fiscal 
year in which the funds are apportioned.
    (2) Funds originally apportioned under 23 U.S.C. 104(b)(1), 
104(b)(2), 104(b)(5)(B), or 104(b)(6) will remain available until the 
end of the third fiscal year succeeding the fiscal year in which the 
funds are apportioned.
    (b) Sums apportioned to a State pursuant to Sec. 1212.7 and not 
obligated at the end of the periods defined in Sec. 1212.8(a), shall 
lapse or, in the case of

[[Page 38]]

funds apportioned under 23 U.S.C. 104(b)(5), shall lapse and be made 
available by the Secretary for projects in accordance with 23 U.S.C. 
118(b).



Sec. 192.9  Effect of noncompliance.

    If a State has not met the requirements of 23 U.S.C. 159(a)(3) at 
the end of the period for which funds withheld under Sec. 1212.4 are 
available for apportionment to a State under Sec. 1212.6, then such 
funds shall lapse or, in the case of funds withheld from apportionment 
under 23 U.S.C. 104(b)(5), shall lapse and be made available by the 
Secretary for projects in accordance with 23 U.S.C. 118(b).



Sec. 192.10  Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance 
with 23 U.S.C. 159, based on FHWA's preliminary review of its statutes, 
will be advised of the funds expected to be withheld under Sec. 1212.4 
from apportionment, as part of the advance notice of apportionments 
required under 23 U.S.C. 104(e), normally not later than ninety days 
prior to final apportionment.
    (b) If FHWA determines that the State is not in compliance with 23 
U.S.C. 159 based on the agencies' preliminary review, the State may, 
within 30 days of its receipt of the advance notice of apportionments, 
submit documentation showing why it is in compliance. Documentation 
shall be submitted to the Federal Highway Administration, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
    (c) Each fiscal year, each State determined not to be in compliance 
with 23 U.S.C. 159(a)(3), based on FHWA's final determination, will 
receive notice of the funds being withheld under Sec. 1212.4 from 
apportionment, as part of the certification of apportionments required 
under 23 U.S.C. 104(e), which normally occurs on October 1 of each 
fiscal year.

[57 FR 35999, Aug. 12, 1992. Redesignated and amended at 60 FR 50100, 
Sept. 28, 1995; 74 FR 28442, June 16, 2009]

[[Page 39]]



                        SUBCHAPTER C_CIVIL RIGHTS





PART 200_TITLE VI PROGRAM AND RELATED STATUTES_IMPLEMENTATION AND 
REVIEW PROCEDURES--Table of Contents



Sec.
200.1 Purpose.
200.3 Application of this part.
200.5 Definitions.
200.7 FHWA Title VI policy.
200.9 State highway agency responsibilities.
200.11 Procedures for processing Title VI reviews.

    Authority: Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d 
to 2000d-4; Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3601-
3619; 42 U.S.C. 4601 to 4655; 23 U.S.C. 109(h); 23 U.S.C. 324.

    Source: 41 FR 53982, Dec. 10, 1976, unless otherwise noted.



Sec. 200.1  Purpose.

    To provide guidelines for: (a) Implementing the Federal Highway 
Administration (FHWA) Title VI compliance program under Title VI of the 
Civil Rights Act of 1964 and related civil rights laws and regulations, 
and (b) Conducting Title VI program compliance reviews relative to the 
Federal-aid highway program.



Sec. 200.3  Application of this part.

    The provisions of this part are applicable to all elements of FHWA 
and provide requirements and guidelines for State highway agencies to 
implement the Title VI Program requirements. The related civil rights 
laws and regulations are listed under Sec. 200.5(p) of this part. Title 
VI requirements for 23 U.S.C. 402 will be covered under a joint FHWA/
NHTSA agreement.



Sec. 200.5  Definitions.

    The following definitions shall apply for the purpose of this part:
    (a) Affirmative action. A good faith effort to eliminate past and 
present discrimination in all federally assisted programs, and to ensure 
future nondiscriminatory practices.
    (b) Beneficiary. Any person or group of persons (other than States) 
entitled to receive benefits, directly or indirectly, from any federally 
assisted program, i.e., relocatees, impacted citizens, communities, etc.
    (c) Citizen participation. An open process in which the rights of 
the community to be informed, to provide comments to the Government and 
to receive a response from the Government are met through a full 
opportunity to be involved and to express needs and goals.
    (d) Compliance. That satisfactory condition existing when a 
recipient has effectively implemented all of the Title VI requirements 
or can demonstrate that every good faith effort toward achieving this 
end has been made.
    (e) Deficiency status. The interim period during which the recipient 
State has been notified of deficiencies, has not voluntarily complied 
with Title VI Program guidelines, but has not been declared in 
noncompliance by the Secretary of Transportation.
    (f) Discrimination. That act (or action) whether intentional or 
unintentional, through which a person in the United States, solely 
because of race, color, religion, sex, or national origin, has been 
otherwise subjected to unequal treatment under any program or activity 
receiving financial assistance from the Federal Highway Administration 
under title 23 U.S.C.
    (g) Facility. Includes all, or any part of, structures, equipment or 
other real or personal property, or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alternation or acquisition of facilities.
    (h) Federal assistance. Includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and

[[Page 40]]

    (5) Any Federal agreement, arrangement, or other contract which has, 
as one of its purposes, the provision of assistance.
    (i) Noncompliance. A recipient has failed to meet prescribed 
requirements and has shown an apparent lack of good faith effort in 
implementing all of the Title VI requirements.
    (j) Persons. Where designation of persons by race, color, or 
national origin is required, the following designations ordinarily may 
be used: ``White not of Hispanic origin'', ``Black not of Hispanic 
origin'', ``Hispanic'', ``Asian or Pacific Islander'', ``American Indian 
or Alaskan Native.'' Additional subcategories based on national origin 
or primary language spoken may be used, where appropriate, on either a 
national or a regional basis.
    (k) Program. Includes any highway, project, or activity for the 
provision of services, financial aid, or other benefits to individuals. 
This includes education or training, work opportunities, health, 
welfare, rehabilitation, housing, or other services, whether provided 
directly by the recipient of Federal financial assistance or provided by 
others through contracts or other arrangements with the recipient.
    (l) State highway agency. That department, commission, board, or 
official of any State charged by its laws with the responsibility for 
highway construction. The term State would be considered equivalent to 
State highway agency if the context so implies.
    (m) Program area officials. The officials in FHWA who are 
responsible for carrying out technical program responsibilities.
    (n) Recipient. Any State, territory, possession, the District of 
Columbia, Puerto Rico, or any political subdivision, or instrumentality 
thereof, or any public or private agency, institution, or organization, 
or other entity, or any individual, in any State, territory, possession, 
the District of Columbia, or Puerto Rico, to whom Federal assistance is 
extended, either directly or through another recipient, for any program. 
Recipient includes any successor, assignee, or transferee thereof. The 
term recipient does not include any ultimate beneficiary under any such 
program.
    (o) Secretary. The Secretary of Transportation as set forth in 49 
CFR 21.17(g)(3) or the Federal Highway Administrator to whom the 
Secretary has delegated his authority in specific cases.
    (p) Title VI Program. The system of requirements developed to 
implement Title VI of the Civil Rights Act of 1964. References in this 
part to Title VI requirements and regulations shall not be limited to 
only Title VI of the Civil Rights Act of 1964. Where appropriate, this 
term also refers to the civil rights provisions of other Federal 
statutes to the extent that they prohibit discrimination on the grounds 
of race, color, sex, or national origin in programs receiving Federal 
financial assistance of the type subject to Title VI itself. These 
Federal statutes are:
    (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-d4 (49 
CFR part 21; the standard DOT Title VI assurances signed by each State 
pursuant to DOT Order 1050.2; Executive Order 11764; 28 CFR 50.3);
    (2) Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (42 U.S.C. 4601-4655) (49 CFR part 25; Pub. L. 91-
646);
    (3) Title VIII of the Civil Rights Act of 1968, amended 1974 (42 
U.S.C. 3601-3619);
    (4) 23 U.S.C. 109(h);
    (5) 23 U.S.C. 324;
    (6) Subsequent Federal-Aid Highway Acts and related statutes.



Sec. 200.7  FHWA Title VI policy.

    It is the policy of the FHWA to ensure compliance with Title VI of 
the Civil Rights Act of 1964; 49 CFR part 21; and related statutes and 
regulations.



Sec. 200.9  State highway agency responsibilities.

    (a) State assurances in accordance with Title VI of the Civil Rights 
Act of 1964.
    (1) Title 49, CFR part 21 (Department of Transportation Regulations 
for the implementation of Title VI of the Civil Rights Act of 1964) 
requires assurances from States that no person in the United States 
shall, on the grounds of race, color, or national origin, be excluded 
from participation in, be denied

[[Page 41]]

the benefits of, or be otherwise subjected to discrimination under any 
program or activity for which the recipient receives Federal assistance 
from the Department of Transportation, including the Federal Highway 
Administration.
    (2) Section 162a of the Federal-Aid Highway Act of 1973 (section 
324, title 23 U.S.C.) requires that there be no discrimination on the 
ground of sex. The FHWA considers all assurances heretofore received to 
have been amended to include a prohibition against discrimination on the 
ground of sex. These assurances were signed by the 50 States, the 
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and 
American Samoa. The State highway agency shall submit a certification to 
the FHWA indicating that the requirements of section 162a of the 
Federal-Aid Highway Act of 1973 have been added to its assurances.
    (3) The State highway agency shall take affirmative action to 
correct any deficiencies found by the FHWA within a reasonable time 
period, not to exceed 90 days, in order to implement Title VI compliance 
in accordance with State-signed assurances and required guidelines. The 
head of the State highway agency shall be held responsible for 
implementing Title VI requirements.
    (4) The State program area officials and Title VI Specialist shall 
conduct annual reviews of all pertinent program areas to determine the 
effectiveness of program area activities at all levels.
    (b) State actions. (1) Establish a civil rights unit and designate a 
coordinator who has a responsible position in the organization and easy 
access to the head of the State highway agency. This unit shall contain 
a Title VI Equal Employment Opportunity Coordinator or a Title VI 
Specialist, who shall be responsible for initiating and monitoring Title 
VI activities and preparing required reports.
    (2) Adequately staff the civil rights unit to effectively implement 
the State civil rights requirements.
    (3) Develop procedures for prompt processing and disposition of 
Title VI and Title VIII complaints received directly by the State and 
not by FHWA. Complaints shall be investigated by State civil rights 
personnel trained in compliance investigations. Identify each 
complainant by race, color, sex, or national origin; the recipient; the 
nature of the complaint; the dates the complaint was filed and the 
investigation completed; the disposition; the date of the disposition; 
and other pertinent information. Each recipient (State) processing Title 
VI complaints shall be required to maintain a similar log. A copy of the 
complaint, together with a copy of the State's report of investigation, 
shall be forwarded to the FHWA division office within 60 days of the 
date the complaint was received by the State.
    (4) Develop procedures for the collection of statistical data (race, 
color, religion, sex, and national origin) of participants in, and 
beneficiaries of State highway programs, i.e., relocatees, impacted 
citizens and affected communities.
    (5) Develop a program to conduct Title VI reviews of program areas.
    (6) Conduct annual reviews of special emphasis program areas to 
determine the effectiveness or program area activities at all levels.
    (7) Conduct Title VI reviews of cities, counties, consultant 
contractors, suppliers, universities, colleges, planning agencies, and 
other recipients of Federal-aid highway funds.
    (8) Review State program directives in coordination with State 
program officials and, where applicable, include Title VI and related 
requirements.
    (9) The State highway agency Title VI designee shall be responsible 
for conducting training programs on Title VI and related statutes for 
State program and civil rights officials.
    (10) Prepare a yearly report of Title VI accomplishments for the 
past year and goals for the next year.
    (11) Beginning October 1, 1976, each State highway agency shall 
annually submit an updated Title VI implementing plan to the Regional 
Federal Highway Administrator for approval or disapproval.
    (12) Develop Title VI information for dissemination to the general 
public and, where appropriate, in languages other than English.

[[Page 42]]

    (13) Establishing procedures for pregrant and postgrant approval 
reviews of State programs and applicants for compliance with Title VI 
requirements; i.e., highway location, design and relocation, and persons 
seeking contracts with the State.
    (14) Establish procedures to identify and eliminate discrimination 
when found to exist.
    (15) Establishing procedures for promptly resolving deficiency 
status and reducing to writing the remedial action agreed to be 
necessary, all within a period not to exceed 90 days.



Sec. 200.11  Procedures for processing Title VI reviews.

    (a) If the regional Title VI review report contains deficiencies and 
recommended actions, the report shall be forwarded by the Regional 
Federal Highway Administrator to the Division Administrator, who will 
forward it with a cover letter to the State highway agency for 
corrective action.
    (b) The division office, in coordination with the Regional Civil 
Rights Officer, shall schedule a meeting with the recipient, to be held 
not later than 30 days from receipt of the deficiency report.
    (c) Recipients placed in a deficiency status shall be given a 
reasonable time, not to exceed 90 days after receipt of the deficiency 
letter, to voluntarily correct deficiencies.
    (d) The Division Administrator shall seek the cooperation of the 
recipient in correcting deficiencies found during the review. The FHWA 
officials shall also provide the technical assistance and guidance 
needed to aid the recipient to comply voluntarily.
    (e) When a recipient fails or refuses to voluntarily comply with 
requirements within the time frame allotted, the Division Administrator 
shall submit to the Regional Administrator two copies of the case file 
and a recommendation that the State be found in noncompliance.
    (f) The Office of Civil Rights shall review the case file for a 
determination of concurrence or noncurrence with a recommendation to the 
Federal Highway Administrator. Should the Federal Highway Administrator 
concur with the recommendation, the file is referred to the Department 
of Transportation, Office of the Secretary, for appropriate action in 
accordance with 49 CFR.



PART 230_EXTERNAL PROGRAMS--Table of Contents



   Subpart A_Equal Employment Opportunity on Federal and Federal-Aid 
         Construction Contracts (Including Supportive Services)

Sec.
230.101 Purpose.
230.103 Definitions.
230.105 Applicability.
230.107 Policy.
230.109 Implementation of specific Equal Employment Opportunity 
          requirements.
230.111 Implementation of special requirements for the provision of on-
          the-job training.
230.113 Implementation of supportive services.
230.115 Special contract requirements for ``Hometown'' or ``Imposed'' 
          Plan areas.
230.117 Reimbursement procedures (Federal-aid highway construction 
          projects only).
230.119 Monitoring of supportive services.
230.121 Reports.

Appendix A to Subpart A of Part 230--Special Provisions
Appendix B to Subpart A of Part 230--Training Special Provisions
Appendix C to Subpart A of Part 230--Federal-Aid Highway Contractors 
          Annual EEO Report (Form PR-1391)
Appendix D to Subpart A of Part 230--Federal-Aid Highway Construction 
          Summary of Employment Data (Form PR-1392)
Appendixes E-F to Subpart A of Part 230 [Reserved]
Appendix G to Subpart A of Part 230--Special Reporting Requirements for 
          ``Hometown'' or ``Imposed'' Plan Areas

  Subpart B_Supportive Services for Minority, Disadvantaged, and Women 
                          Business Enterprises

230.201 Purpose.
230.202 Definitions.
230.203 Policy.
230.204 Implementation of supportive services.
230.205 Supportive services funds obligation.
230.206 Monitoring supportive services.
230.207 Sources of assistance.

  Subpart C_State Highway Agency Equal Employment Opportunity Programs

230.301 Purpose.
230.303 Applicability.

[[Page 43]]

230.305 Definitions.
230.307 Policy.
230.309 Program format.
230.311 State responsibilities.
230.313 Approval procedure.

Appendix A to Subpart C of Part 230--State Highway Agency Equal 
          Employment Opportunity Programs

 Subpart D_Construction Contract Equal Opportunity Compliance Procedures

230.401 Purpose.
230.403 Applicability.
230.405 Administrative responsibilities.
230.407 Definitions.
230.409 Contract compliance review procedures.
230.411 Guidance for conducting reviews.
230.413 Review reports.
230.415 Consolidated compliance reviews.

Appendix A to Subpart D of Part 230--Sample Show Cause Notice
Appendix B to Subpart D of Part 230--Sample Corrective Action Plan
Appendix C to Subpart D of Part 230--Sample Show Cause Rescission
Appendix D to Subpart D of Part 230--Equal Opportunity Compliance Review 
          Process Flow Chart

    Authority: 23 U.S.C. 101, 140, and 315; 42 U.S.C. 2000d et seq.; 49 
CFR 1.48 and 60-1.

    Source: 40 FR 28053, July 3, 1975, unless otherwise noted.



   Subpart A_Equal Employment Opportunity on Federal and Federal-Aid 
         Construction Contracts (Including Supportive Services)



Sec. 230.101  Purpose.

    The purpose of the regulations in this subpart is to prescribe the 
policies, procedures, and guides relative to the implementation of an 
equal employment opportunity program on Federal and Federal-aid highway 
construction contracts, except for those contracts awarded under 23 
U.S.C. 117, and to the preparation and submission of reports pursuant 
thereto.



Sec. 230.103  Definitions.

    For purposes of this subpart--
    Administrator means the Federal Highway Administrator.
    Areawide Plan means an affirmative action plan to increase minority 
utilization of crafts in a specified geographical area pursuant to 
Executive Order 11246, and taking the form of either a ``Hometown'' or 
an ``Imposed'' plan.
    Bid conditions means contract requirements which have been issued by 
OFCC for purposes of implementing a Hometown Plan.
    Division Administrator means the chief Federal Highway 
Administration (FHWA) official assigned to conduct FHWA business in a 
particular State, the District of Columbia, or the Commonwealth of 
Puerto Rico.
    Division Equal Opportunity Officer means an individual with staff 
level responsibilities and necessary authority by which to operate as an 
Equal Opportunity Officer in a Division office. Normally the Equal 
Opportunity Officer will be a full-time civil rights specialist serving 
as staff assistant to the Division Administrator.
    Hometown Plan means a voluntary areawide plan which was developed by 
representatives of affected groups (usually labor unions, minority 
organizations, and contractors), and subsequently approved by the Office 
of Federal Contract Compliance (OFCC), for purposes of implementing the 
equal employment opportunity requirements pursuant to Executive Order 
11246, as amended.
    Imposed Plan means an affirmative action requirement for a specified 
geographical area made mandatory by OFCC and, in some areas, by the 
courts.
    Journeyman means a person who is capable of performing all the 
duties within a given job classification or craft.
    State highway agency means that department, commission, board, or 
official of any State charged by its laws with the responsibility for 
highway construction. The term State should be considered equivalent to 
State highway agency.
    Suggested minimum annual training goals means goals which have been 
assigned to each State highway agency annually for the purpose of 
specifying training positions on selected Federal-aid highway 
construction projects.
    Supportive services means those services provided in connection with 
approved on-the-job training programs for highway construction workers 
and

[[Page 44]]

highway contractors which are designed to increase the overall 
effectiveness of training programs through the performance of functions 
determined to be necessary in connection with such programs, but which 
are not generally considered as comprising part of actual on-the-job 
craft training.
    Trainee means a person who received on-the-job training, whether 
through an apprenticeship program or other programs approved or accepted 
by the FHWA.

[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]



Sec. 230.105  Applicability.

    (a) Federal-aid highway construction projects. This subpart applies 
to all Federal-aid highway construction projects and to Appalachian 
highway construction projects and other State supervised cooperative 
highway construction projects except:
    (1) Federal-aided highway construction projects being constructed 
pursuant to 23 U.S.C. 117; and
    (2) Those projects located in areas where the Office of Federal 
Contract Compliance has implemented an ``Imposed'' or a ``Hometown'' 
Plan, except for those requirements pertaining to specific provisions 
involving on-the-job training and those provisions pertaining to 
supportive services and reporting requirements.
    (b) Direct Federal highway construction projects. This subpart 
applies to all direct Federal highway construction projects except:
    (1) For those provisions relating to the special requirements for 
the provision of supportive services; and
    (2) For those provisions relating to implementation of specific 
equal employment opportunity requirements in areas where the Office of 
Federal Contract Compliance has implemented an ``Imposed'' or 
``Hometown'' plan.



Sec. 230.107  Policy.

    (a) Direct Federal and Federal-aid highway construction projects. It 
is the policy of the FHWA to require that all direct Federal and 
Federal-aid highway construction contracts include the same specific 
equal employment opportunity requirements. It is also the policy to 
require that all direct Federal and Federal-aid highway construction 
subcontracts of $10,000 or more (not including contracts for supplying 
materials) include these same requirements.
    (b) Federal-aid highway construction projects. It is the policy of 
the FHWA to require full utilization of all available training and 
skill-improvement opportunities to assure the increased participation of 
minority groups and disadvantaged persons and women in all phases of the 
highway construction industry. Moreover, it is the policy of the Federal 
Highway Administration to encourage the provision of supportive services 
which will increase the effectiveness of approved on-the-job training 
programs conducted in connection with Federal-aid highway construction 
projects.



Sec. 230.109  Implementation of specific Equal Employment Opportunity requirements.

    (a) Federal-aid highway construction projects. The special 
provisions set forth in appendix A shall be included in the advertised 
bidding proposal and made part of the contract for each contract and 
each covered Federal-aid highway construction subcontract.
    (b) Direct Federal highway construction projects. Advertising, award 
and contract administration procedures for direct Federal highway 
construction contracts shall be as set forth in Federal Acquisition 
Regulations (48 CFR, chapter 1, section 22.803(c)). In order to obtain 
information required by 48 CFR, chapter 1, Sec. 22.804-2(c), the 
following requirement shall be included at the end of the bid schedule 
in the proposal and contract assembly:

    I expect to employ the following firms as subcontractors on this 
project: (Naming subcontractors at this time does not constitute a 
binding commitment on the bidder to retain such subcontractors, nor will 
failure to enter names affect the contract award):

Name____________________________________________________________________
Address_________________________________________________________________
Name____________________________________________________________________
Address_________________________________________________________________

[40 FR 28053, July 3, 1975, as amended at 51 FR 22800, June 23, 1986]

[[Page 45]]



Sec. 230.111  Implementation of special requirements for the provision
of on-the-job training.

    (a) The State highway agency shall determine which Federal-aid 
highway construction contracts shall include the ``Training Special 
Provisions'' (appendix B) and the minimum number of trainees to be 
specified therein after giving appropriate consideration to the 
guidelines set forth in Sec. 230.111(c). The ``Training Special 
Provisions'' shall supersede section 7(b) of the Special Provisions 
(appendix A) entitled ``Specific Equal Employment Opportunity 
Responsibilities.'' Minor wording revisions will be required to the 
``Training Special Provisions'' in areas having ``Hometown'' or 
``Imposed Plan'' requirements.
    (b) The Washington Headquarters shall establish and publish annually 
suggested minimum training goals. These goals will be based on the 
Federal-aid apportioned amounts and the minority population. A State 
will have achieved its goal if the total number of training slots on 
selected federally aided highway construction contracts which have been 
awarded during each 12-month period equals or exceeds the State's 
suggested minimum annual goal. In the event a State highway agency does 
not attain its goal during a calendar year, the State highway agency at 
the end of the calendar year shall inform the Administrator of the 
reasons for its inability to meet the suggested minimum number of 
training slots and the steps to be taken to achieve the goal during the 
next calendar year. The information is to be submitted not later than 30 
days from the end of the calendar year and should be factual, and should 
not only indicate the situations occurring during the year but show the 
project conditions at least through the coming year. The final 
determination will be made on what training goals are considered to be 
realistic based on the information submitted by a State.
    (c) The following guidelines shall be utilized by the State highway 
agency in selecting projects and determining the number of trainees to 
be provided training therein:
    (1) Availability of minorities, women, and disadvantaged for 
training.
    (2) The potential for effective training.
    (3) Duration of the contract.
    (4) Dollar value of the contract.
    (5) Total normal work force that the average bidder could be 
expected to use.
    (6) Geographic location.
    (7) Type of work.
    (8) The need for additional journeymen in the area.
    (9) Recognition of the suggested minimum goal for the State.
    (10) A satisfactory ratio of trainees to journeymen expected to be 
on the contractor's work force during normal operations (considered to 
fall between 1:10 and 1:4).
    (d) Training programs which are established shall be approved only 
if they meet the standards set forth in appendix B with regard to:
    (1) The primary objectives of training and upgrading minority group 
workers, women and disadvantaged persons.
    (2) The development of full journeymen.
    (3) The minimum length and type of training.
    (4) The minimum wages of trainees.
    (5) Trainees certifications.
    (6) Keeping records and furnishing reports.
    (e)(1) Training programs considered by a State highway agency to 
meet the standards under this directive shall be submitted to the FHWA 
division Administrator with a recommendation for approval.
    (2) Employment pursuant to training programs approved by the FHWA 
division Administrator will be exempt from the minimum wage rate 
provisions of section 113 of title 23 U.S.C. Approval, however, shall 
not be given to training programs which provide for employment of 
trainees at wages less than those required by the Special Training 
Provisions. (Appendix B.)
    (f)(1) Apprenticeship programs approved by the U.S. Department of 
Labor as of the date of proposed use by a Federal-aid highway contractor 
or subcontractor need not be formally approved by the State highway 
agency or the FHWA division Administrator. Such programs, including 
their minimum wage provisions, are acceptable for use, provided they are 
administered

[[Page 46]]

in a manner reasonably calculated to meet the equal employment 
opportunity obligations of the contractor.
    (2) Other training programs approved by the U.S. Department of Labor 
as of the date of proposed use by a Federal-aid highway contractor or 
subcontractor are also acceptable for use without the formal approval of 
the State highway agency or the division Administrator provided:
    (i) The U.S. Department of Labor has clearly approved the program 
aspects relating to equal employment opportunity and the payment of 
trainee wage rates in lieu of prevailing wage rates.
    (ii) They are reasonably calculated to qualify the average trainees 
for journeyman status in the classification concerned by the end of the 
training period.
    (iii) They are administered in a manner calculated to meet the equal 
employment obligations of the contractors.
    (g) The State highway agencies have the option of permitting 
Federal-aid highway construction contractors to bid on training to be 
given under this directive. The following procedures are to be utilized 
by those State highway agencies that elect to provide a bid item for 
training:
    (1) The number of training positions shall continue to be specified 
in the Special Training Provisions. Furthermore, this number should be 
converted into an estimated number of hours of training which is to be 
used in arriving at the total bid price for the training item. Increases 
and decreases from the estimated amounts would be handled as overruns or 
underruns;
    (2) A section concerning the method of payment should be included in 
the Special Training Provisions. Some offsite training is permissible as 
long as the training is an integral part of an approved training program 
and does not comprise a substantial part of the overall training. 
Furthermore, the trainee must be concurrently employed on a federally 
aided highway construction project subject to the Special Training 
Provisions attached to this directive. Reimbursement for offsite 
training may only be made to the contractor where he does one or more of 
the following: Contributes to the cost of the training, provides the 
instruction to the trainee, or pays the trainee's wages during the 
offsite training period;
    (3) A State highway agency may modify the special provisions to 
specify the numbers to be trained in specific job classifications;
    (4) A State highway agency can specify training standards provided 
any prospective bidder can use them, the training standards are made 
known in the advertised specifications, and such standards are found 
acceptable by FHWA.

[40 FR 28053, July 3, 1975; 40 FR 57358, Dec. 9, 1975, as amended at 41 
FR 3080, Jan. 21, 1976]



Sec. 230.113  Implementation of supportive services.

    (a) The State highway agency shall establish procedures, subject to 
the availability of funds under 23 U.S.C. 140(b), for the provision of 
supportive services in support of training programs approved under this 
directive. Funds made available to implement this paragraph shall not be 
used to finance the training of State highway agency employees or to 
provide services in support of such training. State highway agencies are 
not required to match funds allocated to them under this section.
    (b) In determining the types of supportive services to be provided 
which will increase the effectiveness of approved training programs. 
State highway agencies shall give preference to the following types of 
services in the order listed:
    (1) Services related to recruiting, counseling, transportation, 
physical examinations, remedial training, with special emphasis upon 
increasing training opportunities for members of minority groups and 
women;
    (2) Services in connection with the administration of on-the-job 
training programs being sponsored by individual or groups of contractors 
and/or minority groups and women's groups;
    (3) Services designed to develop the capabilities of prospective 
trainees for undertaking on-the-job training;
    (4) Services in connection with providing a continuation of training 
during periods of seasonal shutdown;

[[Page 47]]

    (5) Followup services to ascertain outcome of training being 
provided.
    (c) State highway agencies which desire to provide or obtain 
supportive services other than those listed above shall submit their 
proposals to the Federal Highway Administration for approval. The 
proposal, together with recommendations of the division and regional 
offices shall be submitted to the Administrator for appropriate action.
    (d) When the State highway agency provides supportive services by 
contract, formal advertising is not required by the FHWA, however, the 
State highway agency shall solicit proposals from such qualified sources 
as will assure the competitive nature of the procurement. The evaluation 
of proposals by the State highway agency must include consideration of 
the proposer's ability to effect a productive relationship with 
contractors, unions (if appropriate), minority and women groups, 
minority and women trainees, and other persons or organizations whose 
cooperation and assistance will contribute to the successful performance 
of the contract work.
    (e) In the selection of contractors to provide supportive services, 
State highway agencies shall make conscientious efforts to search out 
and utilize the services of qualified minority or women organizations, 
or minority or women business enterprises.
    (f) As a minimum, State highway agency contracts to obtain 
supportive services shall include the following provisions:
    (1) A statement that a primary purpose of the supportive services is 
to increase the effectiveness of approved on-the-job training programs, 
particularly their effectiveness in providing meaningful training 
opportunities for minorities, women, and the disadvantaged on Federal-
aid highway projects;
    (2) A clear and complete statement of the services to be provided 
under the contract, such as services to construction contractors, 
subcontractors, and trainees, for recruiting, counseling, remedial 
educational training, assistance in the acquisition of tools, special 
equipment and transportation, followup procedures, etc.;
    (3) The nondiscrimination provisions required by Title VI of the 
Civil Rights Act of 1964 as set forth in FHWA Form PR-1273, and a 
statement of nondiscrimination in employment because of race, color, 
religion, national origin or sex;
    (4) The establishment of a definite perriod of contract performance 
together with, if appropriate, a schedule stating when specific 
supportive services are to be provided;
    (5) Reporting requirements pursuant to which the State highway 
agency will receive monthly or quarterly reports containing sufficient 
statistical data and narrative content to enable evaluation of both 
progress and problems;
    (6) A requirement that the contractor keep track of trainees 
receiving training on Federal-aid highway construction projects for up 
to 6 months during periods when their training is interrupted. Such 
contracts shall also require the contractor to conduct a 6 month 
followup review of the employment status of each graduate who completes 
an on-the-job training program on a Federal-aid highway construction 
project subsequent to the effective date of the contract for supportive 
services.
    (7) The basis of payment;
    (8) An estimated schedule for expenditures;
    (9) The right of access to contractor and subcontractor records and 
the right to audit shall be granted to authorize State highway agency 
and FHWA officials;
    (10) Noncollusion certification;
    (11) A requirement that the contractor provide all information 
necessary to support progress payments if such are provided for in the 
contract;
    (12) A termination clause.
    (g) The State highway agency is to furnish copies of the reports 
received under paragraph (b)(5) of this section, to the division office.

[40 FR 28053, July 3, 1975, as amended at 41 FR 3080, Jan. 21, 1976]



Sec. 230.115  Special contract requirements for ``Hometown'' or 
``Imposed'' Plan areas.

    Direct Federal and Federal-aid contracts to be performed in 
``Hometown''

[[Page 48]]

or ``Imposed'' Plan areas will incorporate the special provision set 
forth in appendix G.



Sec. 230.117  Reimbursement procedures (Federal-aid highway
construction projects only).

    (a) On-the-job special training provisions. State highway agencies 
will be reimbursed on the same pro-rata basis as the construction costs 
of the Federal-aid project.
    (b) Supportive services. (1) The State highway agency must keep a 
separate account of supportive services funds since they cannot be 
interchanged with regular Federal-aid funds. In addition, these funds 
may not be expended in a manner that would provide for duplicate payment 
of Federal or Federal-aid funds for the same service.
    (2) Where a State highway agency does not obligate all its funds 
within the time specified in the particular year's allocation directive, 
the funds shall revert to the FHWA Headquarters Office to be made 
available for use by other State highway agencies, taking into 
consideration each State's need for and ability to use such funds.



Sec. 230.119  Monitoring of supportive services.

    Supportive services procured by a State highway agency shall be 
monitored by both the State highway agency and the division office.



Sec. 230.121  Reports.

    (a) Employment reports on Federal-aid highway construction contracts 
not subject to ``Hometown'' or ``Imposed'' plan requirements.
    (1) Paragraph 10c of the special provisions (appendix A) sets forth 
specific reporting requirements. FHWA Form PR-1391, Federal-Aid Highway 
Construction Contractors Annual EEO Report, (appendix C) and FHWA Form 
PR 1392, Federal-Aid Highway Construction Summary of Employment Data 
(including minority breakdown) for all Federal-Aid Highway Projects for 
month ending July 31st, 19--, (appendix D) are to be used to fulfill 
these reporting requirements.
    (2) Form PR 1391 is to be completed by each contractor and each 
subcontractor subject to this part for every month of July during which 
work is performed, and submitted to the State highway agency. A separate 
report is to be completed for each covered contract or subcontract. The 
employment data entered should reflect the work force on board during 
all or any part of the last payroll period preceding the end of the 
month. The State highway agency is to forward a single copy of each 
report to the FHWA division office.
    (3) Form PR 1392 is to be completed by the State highway agencies, 
summarizing the reports on PR 1391 for the month of July received from 
all active contractors and subcontractors. Three (3) copies of completed 
Forms PR 1392 are to be forwarded to the division office.
    (b) Employment reports on direct Federal highway construction 
contracts not subject to ``Hometown'' or ``Imposed'' plan requirements. 
Forms PR 1391 (appendix C) and PR 1392 (appendix D) shall be used for 
reporting purposes as prescribed in Sec. 230.121(a).
    (c) Employment reports on direct Federal and Federal-aid highway 
construction contracts subject to ``Hometown'' or ``Imposed'' plan 
requirements.
    (1) Reporting requirements for direct Federal and Federal-aid 
highway construction projects located in areas where ``Hometown'' or 
``Imposed'' plans are in effect shall be in accordance with those issued 
by the U.S. Department of Labor, Office of Federal Contract Compliance.
    (2) In order that we may comply with the U.S. Senate Committee on 
Public Works' request that the Federal Highway Administration submit a 
report annually on the status of the equal employment opportunity 
program, Form PR 1391 is to be completed annually by each contractor and 
each subcontractor holding contracts or subcontracts exceeding $10,000 
except as otherwise provided for under 23 U.S.C. 117. The employment 
data entered should reflect the work force on board during all or any 
part of the last payroll period preceding the end of the month of July.
    (d) [Reserved]
    (e) Reports on supportive services contracts. The State highway 
agency is

[[Page 49]]

to furnish copies of the reports received from supportive services 
contractors to the FHWA division office which will furnish a copy to the 
regional office.

[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978; 61 
FR 14616, Apr. 3, 1996]



      Sec. Appendix A to Subpart A of Part 230--Special Provisions

         specific equal employment opportunity responsibilities

    1. General. a. Equal employment opportunity requirements not to 
discriminate and to take affirmative action to assure equal employment 
opportunity as required by Executive Order 11246 and Executive Order 
11375 are set forth in Required Contract, Provisions (Form PR-1273 or 
1316, as appropriate) and these Special Provisions which are imposed 
pursuant to section 140 of title 23 U.S.C., as established by section 22 
of the Federal-Aid Highway Act of 1968. The requirements set forth in 
these Special Provisions shall constitute the specific affirmative 
action requirements for project activities under this contract and 
supplement the equal employment opportunity requirements set forth in 
the Required Contract Provisions.
    b. The contractor will work with the State highway agencies and the 
Federal Government in carrying out equal employment opportunity 
obligations and in their review of his/her activities under the 
contract.
    c. The contractor and all his/her subcontractors holding 
subcontracts not including material suppliers, of $10,000 or more, will 
comply with the following minimum specific requirement activities of 
equal employment opportunity: (The equal employment opportunity 
requirements of Executive Order 11246, as set forth in volume 6, chapter 
4, section 1, subsection 1 of the Federal-Aid Highway Program Manual, 
are applicable to material suppliers as well as contractors and 
subcontractors.) The contractor will include these requirements in every 
subcontract of $10,000 or more with such modification of language as is 
necessary to make them binding on the subcontractor.
    2. Equal Employment Opportunity Policy. The contractor will accept 
as his operating policy the following statement which is designed to 
further the provision of equal employment opportunity to all persons 
without regard to their race, color, religion, sex, or national origin, 
and to promote the full realization of equal employment opportunity 
through a positive continuing program:
    It is the policy of this Company to assure that applicants are 
employed, and that employees are treated during employment, without 
regard to their race, religion, sex, color, or national origin. Such 
action shall include: employment, upgrading, demotion, or transfer; 
recruitment or recruitment advertising; layoff or termination; rates of 
pay or other forms of compensation; and selection for training, 
including apprenticeship, preapprenticeship, and/or on-the-job training.
    3. Equal Employment Opportunity Officer. The contractor will 
designate and make known to the State highway agency contracting 
officers and equal employment opportunity officer (hereinafter referred 
to as the EEO Officer) who will have the responsibility for and must be 
capable of effectively administering and promoting an active contractor 
program of equal employment opportunity and who must be assigned 
adequate authority and responsibility to do so.
    4. Dissemination of Policy. a. All members of the contractor's staff 
who are authorized to hire, supervise, promote, and discharge employees, 
or who recommend such action, or who are substantially involved in such 
action, will be made fully cognizant of, and will implement, the 
contractor's equal employment opportunity policy and contractual 
responsibilities to provide equal employment opportunity in each grade 
and classification of employment. To ensure that the above agreement 
will be met, the following actions will be taken as a minimum:
    (1) Periodic meetings of supervisory and personnel office employees 
will be conducted before the start of work and then not less often than 
once every six months, at which time the contractor's equal employment 
opportunity policy and its implementation will be reviewed and 
explained. The meetings will be conducted by the EEO Officer or other 
knowledgeable company official.
    (2) All new supervisory or personnel office employees will be given 
a thorough indoctrination by the EEO Officer or other knowledgeable 
company official, covering all major aspects of the contractor's equal 
employment opportunity obligations within thirty days following their 
reporting for duty with the contractor.
    (3) All personnel who are engaged in direct recruitment for the 
project will be instructed by the EEO Officer or appropriate company 
official in the contractor's procedures for locating and hiring minority 
group employees.
    b. In order to make the contractor's equal employment opportunity 
policy known to all employees, prospective employees and potential 
sources of employees, i.e., schools, employment agencies, labor unions 
(where appropriate), college placement officers, etc., the contractor 
will take the following actions:
    (1) Notices and posters setting forth the contractor's equal 
employment opportunity

[[Page 50]]

policy will be placed in areas readily accessible to employees, 
applicants for employment and potential employees.
    (2) The contractor's equal employment opportunity policy and the 
procedures to implement such policy will be brought to the attention of 
employees by means of meetings, employee handbooks, or other appropriate 
means.
    5. Recruitment. a. When advertising for employees, the contractor 
will include in all advertisements for employees the notation: ``An 
Equal Opportunity Employer.'' All such advertisements will be published 
in newspapers or other publications having a large circulation among 
minority groups in the area from which the project work force would 
normally be derived.
    b. The contractor will, unless precluded by a valid bargaining 
agreement, conduct systematic and direct recruitment through public and 
private employee referral sources likely to yield qualified minority 
group applicants, including, but not limited to, State employment 
agencies, schools, colleges and minority group organizations. To meet 
this requirement, the contractor will, through his EEO Officer, identify 
sources of potential minority group employees, and establish with such 
identified sources procedures whereby minority group applicants may be 
referred to the contractor for employment consideration.
    In the event the contractor has a valid bargaining agreement 
providing for exclusive hiring hall referrals, he is expected to observe 
the provisions of that agreement to the extent that the system permits 
the contractor's compliance with equal employment opportunity contract 
provisions. (The U.S. Department of Labor has held that where 
implementation of such agreements have the effect of discriminating 
against minorities or women, or obligates the contractor to do the same, 
such implementation violates Executive Order 11246, as amended.)
    c. The contractor will encourage his present employees to refer 
minority group applicants for employment by posting appropriate notices 
or bulletins in areas accessible to all such employees. In addition, 
information and procedures with regard to referring minority group 
applicants will be discussed with employees.
    6. Personnel Actions. Wages, working conditions, and employee 
benefits shall be established and administered, and personnel actions of 
every type, including hiring, upgrading, promotion, transfer, demotion, 
layoff, and termination, shall be taken without regard to race, color, 
religion, sex, or national origin. The following procedures shall be 
followed:
    a. The contractor will conduct periodic inspections of project sites 
to insure that working conditions and employee facilities do not 
indicate discriminatory treatment of project site personnel.
    b. The contractor will periodically evaluate the spread of wages 
paid within each classification to determine any evidence of 
discriminatory wage practices.
    c. The contractor will periodically review selected personnel 
actions in depth to determine whether there is evidence of 
discrimination. Where evidence is found, the contractor will promptly 
take corrective action. If the review indicates that the discrimination 
may extend beyond the actions reviewed, such corrective action shall 
include all affected persons.
    d. The contractor will promptly investigate all complaints of 
alleged discrimination made to the contractor in connection with his 
obligations under this contract, will attempt to resolve such 
complaints, and will take appropriate corrective action within a 
reasonable time. If the investigation indicates that the discrimination 
may affect persons other than the complainant, such corrective action 
shall include such other persons. Upon completion of each investigation, 
the contractor will inform every complainant of all of his avenues of 
appeal.
    7. Training and Promotion. a. The contractor will assist in 
locating, qualifying, and increasing the skills of minority group and 
women employees, and applicants for employment.
    b. Consistent with the contractor's work force requirements and as 
permissible under Federal and State regulations, the contractor shall 
make full use of training programs, i.e., apprenticeship, and on-the-job 
training programs for the geographical area of contract performance. 
Where feasible, 25 percent of apprentices or trainees in each occupation 
shall be in their first year of apprenticeship or training. In the event 
the Training Special Provision is provided under this contract, this 
subparagraph will be superseded as indicated in Attachment 2.
    c. The contractor will advise employees and applicants for 
employment of available training programs and entrance requirements for 
each.
    d. The contractor will periodically review the training and 
promotion potential of minority group and women employees and will 
encourage eligible employees to apply for such training and promotion.
    8. Unions. If the contractor relies in whole or in part upon unions 
as a source of employees, the contractor will use his/her best efforts 
to obtain the cooperation of such unions to increase opportunities for 
minority groups and women within the unions, and to effect referrals by 
such unions of minority and female employees. Actions by the contractor 
either directly or through a contractor's association acting as agent 
will include the procedures set forth below:

[[Page 51]]

    a. The contractor will use best efforts to develop, in cooperation 
with the unions, joint training programs aimed toward qualifying more 
minority group members and women for membership in the unions and 
increasing the skills of minority group employees and women so that they 
may qualify for higher paying employment.
    b. The contractor will use best efforts to incorporate an equal 
employment opportunity clause into each union agreement to the end that 
such union will be contractually bound to refer applicants without 
regard to their race, color, religion, sex, or national origin.
    c. The contractor is to obtain information as to the referral 
practices and policies of the labor union except that to the extent such 
information is within the exclusive possession of the labor union and 
such labor union refuses to furnish such information to the contractor, 
the contractor shall so certify to the State highway department and 
shall set forth what efforts have been made to obtain such information.
    d. In the event the union is unable to provide the contractor with a 
reasonable flow of minority and women referrals within the time limit 
set forth in the collective bargaining agreement, the contractor will, 
through independent recruitment efforts, fill the employment vacancies 
without regard to race, color, religion, sex, or national origin; making 
full efforts to obtain qualified and/or qualifiable minority group 
persons and women. (The U.S. Department of Labor has held that it shall 
be no excuse that the union with which the contractor has a collective 
bargaining agreement providing for exclusive referral failed to refer 
minority employees.) In the event the union referral practice prevents 
the contractor from meeting the obligations pursuant to Executive Order 
11246, as amended, and these special provisions, such contractor shall 
immediately notify the State highway agency.
    9. Subcontracting. a. The contractor will use his best efforts to 
solicit bids from and to utilize minority group subcontractors or 
subcontractors with meaningful minority group and female representation 
among their employees. Contractors shall obtain lists of minority-owned 
construction firms from State highway agency personnel.
    b. The contractor will use his best efforts to ensure subcontractor 
compliance with their equal employment opportunity obligations.
    10. Records and Reports. a. The contractor will keep such records as 
are necessary to determine compliance with the contractor's equal 
employment opportunity obligations. The records kept by the contractor 
will be designed to indicate:
    (1) The number of minority and nonminority group members and women 
employed in each work classification on the project.
    (2) The progress and efforts being made in cooperation with unions 
to increase employment opportunities for minorities and women 
(applicable only to contractors who rely in whole or in part on unions 
as a source of their work force),
    (3) The progress and efforts being made in locating, hiring, 
training, qualifying, and upgrading minority and female employees, and
    (4) The progress and efforts being made in securing the services of 
minority group subcontractors or subcontractors with meaningful minority 
and female representation among their employees.
    b. All such records must be retained for a period of three years 
following completion of the contract work and shall be available at 
reasonable times and places for inspection by authorized representatives 
of the State highway agency and the Federal Highway Administration.
    c. The contractors will submit an annual report to the State highway 
agency each July for the duration of the project, indicating the number 
of minority, women, and non-minority group employees currently engaged 
in each work classification required by the contract work. This 
information is to be reported on Form PR 1391. If on-the-job training is 
being required by ``Training Special Provision'', the contractor will be 
required to furnish Form FHWA 1409.

[40 FR 28053, July 3, 1975, as amended at 43 FR 19386, May 5, 1978. 
Correctly redesignated at 46 FR 21156, Apr. 9, 1981]



  Sec. Appendix B to Subpart A of Part 230--Training Special Provisions

    This Training Special Provision supersedes subparagraph 7b of the 
Special Provision entitled ``Specific Equal Employment Opportunity 
Responsibilities,'' (Attachment 1), and is in implementation of 23 
U.S.C. 140(a).
    As part of the contractor's equal employment opportunity affirmative 
action program training shall be provided as follows:
    The contractor shall provide on-the-job training aimed at developing 
full journeymen in the type of trade or job classification involved.
    The number of trainees to be trained under the special provisions 
will be -------- (amount to be filled in by State highway department).
    In the event that a contractor subcontracts a portion of the 
contract work, he shall determine how many, if any, of the trainees are 
to be trained by the subcontractor, provided, however, that the 
contractor shall retain the primary responsibility for meeting the 
training requirements imposed by this special provision. The contractor 
shall also insure that this training

[[Page 52]]

special provision is made applicable to such subcontract. Where 
feasible, 25 percent of apprentices or trainees in each occupation shall 
be in their first year of apprenticeship or training.
    The number of trainees shall be distributed among the work 
classifications on the basis of the contractor's needs and the 
availability of journeymen in the various classifications within a 
reasonable area of recruitment. Prior to commencing construction, the 
contractor shall submit to the State highway agency for approval the 
number of trainees to be trained in each selected classification and 
training program to be used. Furthermore, the contractor shall specify 
the starting time for training in each of the classifications. The 
contractor will be credited for each trainee employed by him on the 
contract work who is currently enrolled or becomes enrolled in an 
approved program and will be reimbursed for such trainees as provided 
hereinafter.
    Training and upgrading of minorities and women toward journeymen 
status is a primary objective of this Training Special Provision. 
Accordingly, the contractor shall make every effort to enroll minority 
trainees and women (e.g., by conducting systematic and direct 
recruitment through public and private sources likely to yield minority 
and women trainees) to the extent that such persons are available within 
a reasonable area of recruitment. The contractor will be responsible for 
demonstrating the steps that he has taken in pursuance thereof, prior to 
a determination as to whether the contractor is in compliance with this 
Training Special Provision. This training commitment is not intended, 
and shall not be used, to discriminate against any applicant for 
training, whether a member of a minority group or not.
    No employee shall be employed as a trainee in any classification in 
which he has successfully completed a training course leading to 
journeyman status or in which he has been employed as a journeyman. The 
contractor should satisfy this requirement by including appropriate 
questions in the employee application or by other suitable means. 
Regardless of the method used the contractor's records should document 
the findings in each case.
    The minimum length and type of training for each classification will 
be as established in the training program selected by the contractor and 
approved by the State highway agency and the Federal Highway 
Administration. The State highway agency and the Federal Highway 
Administration shall approve a program if it is reasonably calculated to 
meet the equal employment opportunity obligations of the contractor and 
to qualify the average trainee for journeyman status in the 
classification concerned by the end of the training period. Furthermore, 
apprenticeship programs registered with the U.S. Department of Labor, 
Bureau of Apprenticeship and Training, or with a State apprenticeship 
agency recognized by the Bureau and training programs approved but not 
necessarily sponsored by the U.S. Department of Labor, Manpower 
Administration, Bureau of Apprenticeship and Training shall also be 
considered acceptable provided it is being administered in a manner 
consistent with the equal employment obligations of Federal-aid highway 
construction contracts. Approval or acceptance of a training program 
shall be obtained from the State prior to commencing work on the 
classification covered by the program. It is the intention of these 
provisions that training is to be provided in the construction crafts 
rather than clerk-typists or secretarial-type positions. Training is 
permissible in lower level management positions such as office 
engineers, estimators, timekeepers, etc., where the training is oriented 
toward construction applications. Training in the laborer classification 
may be permitted provided that significant and meaningful training is 
provided and approved by the division office. Some offsite training is 
permissible as long as the training is an integral part of an approved 
training program and does not comprise a significant part of the overall 
training.
    Except as otherwise noted below, the contractor will be reimbursed 
80 cents per hour of training given an employee on this contract in 
accordance with an approved training program. As approved by the 
engineer, reimbursement will be made for training persons in excess of 
the number specified herein. This reimbursement will be made even though 
the contractor receives additional training program funds from other 
sources, provided such other does not specifically prohibit the 
contractor from receiving other reimbursement. Reimbursement for offsite 
training indicated above may only be made to the contractor where he 
does one or more of the following and the trainees are concurrently 
employed on a Federal-aid project; contributes to the cost of the 
training, provides the instruction to the trainee or pays the trainee's 
wages during the offsite training period.
    No payment shall be made to the contractor if either the failure to 
provide the required training, or the failure to hire the trainee as a 
journeyman, is caused by the contractor and evidences a lack of good 
faith on the part of the contractor in meeting the requirements of this 
Training Special Provision. It is normally expected that a trainee will 
begin his training on the project as soon as feasible after start of 
work utilizing the skill involved and remain on the project as long as 
training opportunities exist in his work classification or until he has 
completed his training program. It is not required that all trainees be 
on board for the entire length

[[Page 53]]

of the contract. A contractor will have fulfilled his responsibilities 
under this Training Special Provision if he has provided acceptable 
training to the number of trainees specified. The number trained shall 
be determined on the basis of the total number enrolled on the contract 
for a significant period.
    Trainees will be paid at least 60 percent of the appropriate minimum 
journeyman's rate specified in the contract for the first half of the 
training period, 75 percent for the third quarter of the training 
period, and 90 percent for the last quarter of the training period, 
unless apprentices or trainees in an approved existing program are 
enrolled as trainees on this project. In that case, the appropriate 
rates approved by the Departments of Labor or Transportation in 
connection with the existing program shall apply to all trainees being 
trained for the same classification who are covered by this Training 
Special Provision.
    The contractor shall furnish the trainee a copy of the program he 
will follow in providing the training. The contractor shall provide each 
trainee with a certification showing the type and length of training 
satisfactorily completed.
    The contractor will provide for the maintenance of records and 
furnish periodic reports documenting his performance under this Training 
Special Provision.

[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981]

[[Page 54]]

  Appendix C to Subpart A of Part 230--Federal-Aid Highway Contractors 
                    Annual EEO Report (Form PR-1391)
[GRAPHIC] [TIFF OMITTED] TC14OC91.000


[[Page 55]]





     Sec. Appendix D to Subpart A of Part 230--Federal-Aid Highway 
         Construction Summary of Employment Data (Form PR-1392)
[GRAPHIC] [TIFF OMITTED] TC14OC91.001

                  General Information and Instructions

    This form is to be developed from the ``Contractor's Annual EEO 
Report.'' This data is to be compiled by the State and submitted 
annually. It should reflect the total employment on all Federal-Aid 
Highway Projects in the State as of July 31st. The

[[Page 56]]

staffing figures to be reported should represent the project work force 
on board in all or any part of the last payroll period preceding the end 
of July. The staffing figures to be reported in Table A should include 
journey-level men and women, apprentices, and on-the-job trainees. 
Staffing figures to be reported in Table B should include only 
apprentices and on-the-job trainees as indicated.
    Entries made for ``Job Categories'' are to be confined to the 
listing shown. Miscellaneous job classifications are to be incorporated 
in the most appropriate category listed on the form. All employees on 
projects should thus be accounted for.
    This information will be useful in complying with the U.S. Senate 
Committee on Public Works request that the Federal Highway 
Administration submit a report annually on the status of the Equal 
Employment Opportunity Program, its effectiveness, and progress made by 
the States and the Administration in carrying out section 22(A) of the 
Federal-Aid Highway Act of 1968. In addition, the form should be used as 
a valuable tool for States to evaluate their own programs for ensuring 
equal opportunity.
    It is requested that States submit this information annually to the 
FHWA Divisions no later than September 25.
    Line 01--State & Region Code. Enter the 4-digit code from the list 
below.

Alabama.....................     01-04  Montana...............     30-08
Alaska......................     02-10  Nebraska..............     31-07
Arizona.....................     04-09  Nevada................     32-09
Arkansas....................     05-06  New Hampshire.........     33-01
California..................     06-09  New Jersey............     34-01
Colorado....................     08-08  New Mexico............     35-06
Delaware....................     10-03  North Carolina........     37-04
District of Columbia........     11-03  North Dakota..........     38-08
Florida.....................     12-04  Ohio..................     39-05
Georgia.....................     13-04  Oklahoma..............     40-06
Hawaii......................     15-09  Oregon................     41-10
Idaho.......................     16-10  Pennsylvania..........     42-03
Illinois....................     17-05  Puerto Rico...........     43-01
Iowa........................     19-07  South Carolina........     45-04
Kansas......................     20-07  South Dakota..........     46-08
Kentucky....................     21-04  Tennessee.............     47-04
Louisiana...................     22-06  Texas.................     48-06
Maine.......................     23-01  Utah..................     49-08
Maryland....................     24-03  Vermont...............     50-01
Massachusetts...............     25-01  Virginia..............     51-03
Michigan....................     26-05  Washington............     53-10
Minnesota...................     27-05  West Virginia.........     54-03
Mississippi.................     28-04  Wisconsin.............     55-05
Missouri....................     29-07  Wyoming...............     56-08
 


(23 U.S.C. sec. 140(a), 315, 49 CFR 1.48(b))

[44 FR 46832, Aug. 8, 1979. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981, and amended at 56 FR 4721, Feb. 6, 1991]



         Sec. Appendixes E-F to Subpart A of Part 230 [Reserved]



Sec. Appendix G to Subpart A of Part 230--Special Reporting Requirements 
               for ``Hometown'' or ``Imposed'' Plan Areas

    In addition to the reporting requirements set forth elsewhere in 
this contract the contractor and the subcontractors holding 
subcontracts, not including material suppliers, of $10,000 or more, 
shall submit for every month of July during which work is performed, 
employment data as contained under Form PR-1391 (appendix C to 23 CFR 
part 230) and in accordance with the instructions included thereon.

[40 FR 28053, July 3, 1975. Correctly redesignated at 46 FR 21156, Apr. 
9, 1981]



  Subpart B_Supportive Services for Minority, Disadvantaged, and Women 
                          Business Enterprises

    Source: 50 FR 51243, Dec. 16, 1985, unless otherwise noted.



Sec. 230.201  Purpose.

    To prescribe the policies, procedures, and guidance to develop, 
conduct, and administer supportive services assistance programs for 
minority, disadvantaged, and women business enterprises.



Sec. 230.202  Definitions.

    (a) Minority Business Enterprise, as used in this subpart, refers to 
all small

[[Page 57]]

businesses which participate in the Federal-aid highway program as a 
minority business enterprise (MBE), women business enterprise (WBE), or 
disadvantaged business enterprise (DBE), all defined under 49 CFR part 
23. This expanded definition is used only in this subpart as a 
simplified way of defining the firms eligible to benefit from this 
supportive services program.
    (b) Supportive Services means those services and activities provided 
in connection with minority business enterprise programs which are 
designed to increase the total number of minority businesses active in 
the highway program and contribute to the growth and eventual self-
sufficiency of individual minority businesses so that such businesses 
may achieve proficiency to compete, on an equal basis, for contracts and 
subcontracts.
    (c) State highway agency means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction. The term State is considered equivalent to State 
highway agency if the context so implies.



Sec. 230.203  Policy.

    Based on the provisions of Pub. L. 97-424, dated January 6, 1983, it 
is the policy of the Federal Highway Administration (FHWA) to promote 
increased participation of minority business enterprises in Federal-aid 
highway contracts in part through the development and implementation of 
cost effective supportive services programs through the State highway 
agencies.



Sec. 230.204  Implementation of supportive services.

    (a) Subject to the availability of funds under 23 U.S.C. 140(c), the 
State highway agency shall establish procedures to develop, conduct, and 
administer minority business enterprise training and assistance programs 
specifically for the benefit of women and minority businesses. 
Supportive services funds allocated to the States shall not be used to 
finance the training of State highway agency employees or to provide 
services in support of such training. State highway agencies are not 
required to match funds allocated to them under this section. Individual 
States are encouraged to be actively involved in the provision of 
supportive services. Such involvement can take the form of staff, 
funding, and/or direct assistance to augment the supportive services 
efforts financed by Federal-aid funds.
    (b) State highway agencies shall give preference to the following 
types of services:
    (1) Services relating to identification, prequalification, and 
certification assistance, with emphasis on increasing the total number 
of legitimate minority business enterprises participating in the 
Federal-aid highway program;
    (2) Services in connection with estimating, bidding, and technical 
assistance designed to develop and improve the capabilities of minority 
businesses and assist them in achieving proficiency in the technical 
skills involved in highway construction;
    (3) Services designed to develop and improve the immediate and long-
term business management, recordkeeping, and financial accounting 
capabilities;
    (4) Services to assist minority business enterprises to become 
eligible for and to obtain bonding and financial assistance;
    (5) Services relating to verification procedures to ensure that only 
bona fide minority business enterprises are certified as eligible for 
participation in the Federal-aid highway program;
    (6) Follow-up services to ascertain the outcome of training and 
assistance being provided; and
    (7) Other services which contribute to long-term development, 
increased opportunities, and eventual self-sufficiency of minority 
business enterprises.
    (c) A detailed work statement of the supportive services which the 
State highway agency considers to meet the guidance under this 
regulation and a program plan for meeting the requirements of paragraph 
(b) of this section and accomplishing other objectives shall be 
submitted to the FHWA for approval.
    (d) State highway agencies which desire to provide or obtain 
services other than those listed in paragraph (b) of this section shall 
submit their proposals to the FHWA for approval.

[[Page 58]]

    (e) When the State highway agency provides supportive services by 
contract, formal advertising is not required by FHWA; however, the State 
highway agency shall solicit proposals from such qualified sources as 
will assure the competitive nature of the procurement. The evaluation of 
proposals by the State highway agency must include consideration of the 
proposer's ability to effect a productive relationship with majority and 
minority contractors, contractors' associations, minority groups, and 
other persons or organizations whose cooperation and assistance will 
increase the opportunities for minority business enterprises to compete 
for and perform contracts and subcontracts.
    (f) In the selection of contractors to perform supportive services, 
State highway agencies shall make conscientious efforts to search out, 
and utilize the services of qualified minority or women organizations, 
or minority or women enterprises.
    (g) As a minimum, State highway agency contracts to obtain 
supportive services shall include the following provisions:
    (1) A statement that a primary purpose of the supportive services is 
to increase the total number of minority firms participating in the 
Federal-aid highway program and to contribute to the growth and eventual 
self-sufficiency of minority firms;
    (2) A statement that supportive services shall be provided only to 
those minority business enterprises determined to be eligible for 
participation in the Federal-aid highway program in accordance with 49 
CFR part 23 and have a work specialty related to the highway 
construction industry;
    (3) A clear and complete statement of the services to be provided 
under the contract, such as technical assistance, managerial assistance, 
counseling, certification assistance, and follow-up procedures as set 
forth in Sec. 230.204(b) of this part;
    (4) The nondiscrimination provisions required by Title VI of the 
Civil Rights Act of 1964 as set forth in Form FHWA-1273, Required 
Contract Provisions, Federal-Aid Construction Contracts, \1\ and a 
statement of nondiscrimination in employment because of race, color, 
religion, sex, or national origin;
---------------------------------------------------------------------------

    \1\ Form FHWA-1273 is available for inspection and copying at the 
locations given in 49 CFR part 7, appendix D, under Document Inspection 
Facilities, and at all State highway agencies.
---------------------------------------------------------------------------

    (5) The establishment of a definite period of contract performance 
together with, if appropriate, a schedule stating when specific 
supportive services are to be provided;
    (6) Monthly or quarterly reports to the State highway agency 
containing sufficient data and narrative content to enable evaluation of 
both progress and problems;
    (7) The basis of payment;
    (8) An estimated schedule for expenditures;
    (9) The right of access to records and the right to audit shall be 
granted to authorize State highway agency and FHWA officials;
    (10) Noncollusion certification;
    (11) A requirement that the contractor provide all information 
necessary to support progress payments if such are provided for in the 
contract; and
    (12) A termination clause.
    (h) The State highway agency is to furnish copies of the reports 
received under paragraph (g)(6) of this section to the FHWA division 
office.

[50 FR 51243, Dec. 16, 1985, as amended at 52 FR 36922, Oct. 2, 1987]



Sec. 230.205  Supportive services funds obligation.

    Supportive services funds shall be obligated in accordance with the 
procedures set forth in Sec. 230.117(b) of this part. The point of 
obligation is defined as that time when the FHWA has approved a detailed 
work statement for the supportive services.



Sec. 230.206  Monitoring supportive services.

    Supportive services programs shall be continually monitored and 
evaluated by the State highway agency so that needed improvements can be 
identified and instituted. This requires the documentation of valid 
effectiveness

[[Page 59]]

measures by which the results of program efforts may be accurately 
assessed.



Sec. 230.207  Sources of assistance.

    It is the policy of the FHWA that all potential sources of 
assistance to minority business enterprises be utilized. The State 
highway agency shall take actions to ensure that supportive services 
contracts reflect the availability of all sources of assistance in order 
to maximize resource utilization and avoid unnecessary duplication.



  Subpart C_State Highway Agency Equal Employment Opportunity Programs

    Source: 41 FR 28270, July 9, 1976, unless otherwise noted.



Sec. 230.301  Purpose.

    The purpose of the regulations in this subpart is to set forth 
Federal Highway Administration (FHWA) Federal-aid policy and FHWA and 
State responsibilities relative to a State highway agency's internal 
equal employment opportunity program and for assuring compliance with 
the equal employment opportunity requirements of federally-assisted 
highway construction contracts.



Sec. 230.303  Applicability.

    The provisions of this subpart are applicable to all States that 
receive Federal financial assistance in connection with the Federal-aid 
highway program.



Sec. 230.305  Definitions.

    As used in this subpart, the following definitions apply:
    (a) Affirmative Action Plan means:
    (1) With regard to State highway agency work forces, a written 
document detailing the positive action steps the State highway agency 
will take to assure internal equal employment opportunity (internal 
plan).
    (2) With regard to Federal-aid construction contract work forces, 
the Federal equal employment opportunity bid conditions, to be enforced 
by a State highway agency in the plan areas established by the Secretary 
of Labor and FHWA special provisions in nonplan areas (external plan).
    (b) Equal employment opportunity program means the total State 
highway agency program, including the affirmative action plans, for 
ensuring compliance with Federal requirements both in State highway 
agency internal employment and in employment on Federal-aid construction 
projects.
    (c) Minority groups. An employee may be included in the minority 
group to which he or she appears to belong, or is regarded in the 
community as belonging. As defined by U.S. Federal agencies for 
employment purposes, minority group persons in the U.S. are identified 
as Blacks (not of Hispanic origin), Hispanics, Asian or Pacific 
Islanders, and American Indians or Alaskan Natives.
    (d) Racial/ethnic identification. For the purpose of this regulation 
and any accompanying report requirements, an employee may be included in 
the group to which he or she appears to belong, identifies with, or is 
regarded in the community as belonging. However, no person should be 
counted in more than one racial/ethnic category. The following group 
categories will be used:
    (1) The category White (not of Hispanic origin): All persons having 
origins in any of the original peoples of Europe, North Africa, the 
Middle East, or the Indian Subcontinent.
    (2) The category Black (not of Hispanic origin): All persons having 
origins in any of the Black racial groups.
    (3) The category Hispanic: All persons of Mexican, Puerto Rican, 
Cuban, Central or South American, or other Spanish culture or origin, 
regardless of race.
    (4) The category Asian or Pacific Islanders: All persons having 
origins in any of the original peoples of the Far East, Southeast Asia, 
or the Pacific Islands. This area includes, for example, China, Japan, 
Korea, the Philippine Islands, and Samoa.
    (5) The category American Indian or Alaskan Native: All persons 
having origins in any of the original peoples of North America.
    (e) State means any of the 50 States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, American 
Samoa, and the Virgin Islands.

[[Page 60]]

    (f) State highway agency means that department, commission, board, 
or official of any State charged by its laws with the responsibility for 
highway construction. The term State should be considered equivalent to 
State highway agency if the context so implies.

[41 FR 28270, July 9, 1976, as amended at 41 FR 46293, Oct. 20, 1976]



Sec. 230.307  Policy.

    Every employee and representative of State highway agencies shall 
perform all official equal employment opportunity actions in an 
affirmative manner, and in full accord with applicable statutes, 
executive orders, regulations, and policies enunciated thereunder, to 
assure the equality of employment opportunity, without regard to race, 
color, religion, sex, or national origin both in its own work force and 
in the work forces of contractors, subcontractors, and material 
suppliers engaged in the performance of Federal-aid highway construction 
contracts.



Sec. 230.309  Program format.

    It is essential that a standardized Federal approach be taken in 
assisting the States in development and implementation of EEO programs. 
The format set forth in appendix A provides that standardized approach. 
State equal employment opportunity programs that meet or exceed the 
prescribed standards will comply with basic FHWA requirements.



Sec. 230.311  State responsibilities.

    (a) Each State highway agency shall prepare and submit an updated 
equal employment opportunity program, one year from the date of approval 
of the preceding program by the Federal Highway Administrator, over the 
signature of the head of the State highway agency, to the Federal 
Highway Administrator through the FHWA Division Administrator. The 
program shall consist of the following elements:
    (1) The collection and analysis of internal employment data for its 
entire work force in the manner prescribed in part II, paragraph III of 
appendix A; and
    (2) The equal employment opportunity program, including the internal 
affirmative action plan, in the format and manner set forth in appendix 
A.
    (b) In preparation of the program required by Sec. 230.311(a), the 
State highway agency shall consider and respond to written comments from 
FHWA regarding the preceding program.



Sec. 230.313  Approval procedure.

    After reviewing the State highway agency equal employment 
opportunity program and the summary analysis and recommendations from 
the FHWA regional office, the Washington Headquarters Office of Civil 
Rights staff will recommend approval or disapproval of the program to 
the Federal Highway Administrator. The State highway agency will be 
advised of the Administrator's decision. Each program approval is 
effective for a period of one year from date of approval.



  Sec. Appendix A to Subpart C of Part 230--State Highway Agency Equal 
                     Employment Opportunity Programs

    Each State highway agency's (SHA) equal employment opportunity (EEO) 
program shall be in the format set forth herein and shall address 
Contractor Compliance (part I) and SHA Internal Employment (part II), 
including the organizational structure of the SHA total EEO Program 
(internal and external).

                      part i--contractor compliance

    I. Organization and structure. A. Statehighway agency EEO 
Coordinator (External) and staff support. 1. Describe the organizational 
location and responsibilities of the State highway agency EEO 
Coordinator. (Provided organization charts of the State highway agency 
and of the EEO staff.)
    2. Indicate whether full or part-time; if part-time, indicate 
percentage of time devoted to EEO.
    3. Indicate length of time in position, civil rights experience and 
training, and supervision.
    4. Indicate whether compliance program is centralized or 
decentralized.
    5. Identify EEO Coordinator's staff support (full- and part-time) by 
job title and indicate areas of their responsibilities.
    6. Identify any other individuals in the central office having a 
responsibility for the implementation of this program and describe their 
respective roles and training received in program area.
    B. District or division personnel. 1. Describe the responsibilities 
and duties of any district

[[Page 61]]

EEO personnel. Identify to whom they report.
    2. Explain whether district EEO personnel are full-time or have 
other responsibilities such as labor compliance or engineering.
    3. Describe training provided for personnel having EEO compliance 
responsibility.
    C. Project personnel. Describe the EEO role of project personnel.
    II. Compliance procedures. A. Applicable directives. 1. FHWA 
Contract Compliance Procedures.
    2. EEO Special Provisions (FHWA Federal-Aid Highway Program Manual, 
vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 1) \1\
---------------------------------------------------------------------------

    \1\ The Federal-Aid Highway Program Manual is available for 
inspection and copying at the Federal Highway Administration (FHWA), 
1200 New Jersey Avenue, SE., Washington, DC 20590, or at FHWA offices 
listed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    3. Training Special Provisions (FHWA Federal-Aid Highway Program 
Manual, vol. 6, chap. 4, sec. 1, subsec. 2, Attachment 2) \1\
    4. FHWA Federal-Aid Highway Program Manual, vol. 6, chap. 4, sec. 1, 
subsec. 6 (Contract Procedures), and subsec. 8 (Minority Business 
Enterprise). \1\
    B. Implementation. 1. Describe process (methods) of incorporating 
the above FHWA directives into the SHA compliance program.
    2. Describe the methods used by the State to familiarize State 
compliance personnel with all FHWA contract compliance directives. 
Indicate frequency of work shops, training sessions, etc.
    3. Describe the procedure for advising the contractor of the EEO 
contract requirements at any preconstruction conference held in 
connection with a Federal-aid contract.
    III. Accomplishments. Describe accomplishments in the construction 
EEO compliance program during the past fiscal year.
    A. Regular project compliance review program. This number should 
include at least all of the following items:
    1. Number of compliance reviews conducted.
    2. Number of contractors reviewed.
    3. Number of contractors found in compliance.
    4. Number of contractors found in noncompliance.
    5. Number of show cause notices issued.
    6. Number of show cause notices rescinded.
    7. Number of show cause actions still under conciliation and 
unresolved.
    8. Number of followup reviews conducted.

    (Note: In addition to information requested in items 4-8 above, 
include a brief summary of total show cause and followup activities--
findings and achievements.)

    B. Consolidated compliance reviews. 1. Identify the target areas 
that have been reviewed since the inception of the consolidated 
compliance program. Briefly summarize total findings.
    2. Identify any significant impact or effect of this program on 
contractor compliance.
    C. Home office reviews. If the State conducts home office reviews, 
describe briefly the procedures followed by State.
    D. Major problems encountered. Describe major problems encountered 
in connection with any review activities during the past fiscal year.
    E. Major breakthroughs. Comment briefly on any major breakthrough or 
other accomplishment significant to the compliance review program.
    IV. Areawide plans/Hometown and Imposed (if applicable). A. Provide 
overall analysis of the effectiveness of each areawide plan in the 
State.
    B. Indicate by job titles the number of State personnel involved in 
the collection, consolidation, preparation, copying, reviewing, 
analysis, and transmittal of area plan reports (Contracting Activity and 
Post Contract Implementation). Estimate the amount of time (number of 
hours) spent collectively on this activity each month. How does the 
State use the plan report data?
    C. Identify Office of Federal Contract Compliance Programs (OFCCP) 
area plan audits or compliance checks in which State personnel 
participated during the last fiscal year. On the average, how many hours 
have been spent on these audits and/or checks during the past fiscal 
year?
    D. Describe the working relationship of State EEO compliance 
personnel with representatives of plan administrative committee(s).
    E. Provide recommendations for improving the areawide plan program 
and the reporting system.
    V. Contract sanctions. A. Describe the procedures used by the State 
to impose contract sanctions or institute legal proceedings.
    B. Indicate the State or Federal laws which are applicable.
    C. Does the State withhold a contractor's progress payments for 
failure to comply with EEO requirements? If so, identify contractors 
involved in such actions during the past fiscal year. If not, identify 
other actions taken.
    VI. Complaints. A. Describe the State's procedures for handling 
discrimination complaints against contractors.
    B. If complaints are referred to a State fair employment agency or 
similar agency, describe the referral procedure.
    C. Identify the Federal-aid highway contractors that have had 
discrimination complaints filed against them during the past fiscal year 
and provide current status.
    VII. External training programs, including supportive services. A. 
Describe the State's process for reviewing the work classifications of 
trainees to determine that there is a

[[Page 62]]

proper and reasonable distribution among appropriate craft.
    B. Describe the State's procedures for identifying the number of 
minorities and women who have completed training programs.
    C. Describe the extent of participation by women in construction 
training programs.
    D. Describe the efforts made by the State to locate and use the 
services of qualified minority and female supportive service 
consultants. Indicate if the State's supportive service contractor is a 
minority or female owned enterprise.
    E. Describe the extent to which reports from the supportive service 
contractors provide sufficient data to evaluate the status of training 
programs, with particular reference to minorities and women.
    VIII. Minority business enterprise program. FHPM 6-4-1-8 sets forth 
the FHWA policy regarding the minority business enterprise program. The 
implementation of this program should be explained by responding to the 
following:
    A. Describe the method used for listing of minority contractors 
capable of, or interested in, highway construction contracting or 
subcontracting. Describe the process used to circulate names of 
appropriate minority firms and associations to contractors obtaining 
contract proposals.
    B. Describe the State's procedure for insuring that contractors take 
action to affirmatively solicit the interest, capability, and prices of 
potential minority subcontractors.
    C. Describe the State's procedure for insuring that contractors have 
designated liaison officers to administer the minority business 
enterprise program in an effective manner. Specify resource material, 
including contracts, which the State provides to liaison officers.
    D. Describe the action the State has taken to meet its goals for 
prequalification or licensing of minority business. Include dollar goals 
established for the year, and describe what criteria or formula the 
State has adopted for setting such goals. If it is different from the 
previous year, describe in detail.
    E. Outline the State's procedure for evaluating its 
prequalification/licensing requirements.
    F. Identify instances where the State has waived prequalification 
for subcontractors on Federal-aid construction work or for prime 
contractors on Federal-aid contracts with an estimated dollar value 
lower than $100,000.
    G. Describe the State's methods of monitoring the progress and 
results of its minority business enterprise efforts.
    IX. Liaison. Describe the liaison established by the State between 
public (State, county, and municpal) agencies and private organizations 
involved in EEO programs. How is the liaison maintained on a continuing 
basis?
    X. Innovative programs. Identify any innovative EEO programs or 
management procedures initiated by the State and not previously covered.

                part ii--state highway agency employment

    I. General. The State highway agency's (SHA) internal program is an 
integral part of the agency's total activities. It should include the 
involvement, commitment and support of executives, managers, supervisors 
and all other employees. For effective administration and implementation 
of the EEO Program, an affirmative action plan (AAP) is required. The 
scope of an EEO program and an AAP must be comprehensive, covering all 
elements of the agency's personnel management policies and practices. 
The major part of an AAP must be recognition and removal of any barriers 
to equal employment opportunity, identification of problem areas and of 
persons unfairly excluded or held back and action enabling them to 
compete for jobs on an equal basis. An effective AAP not only benefits 
those who have been denied equal employment opportunity but will also 
greatly benefit the organization which often has overlooked, screened 
out or underutilized the great reservoir of untapped human resources and 
skills, especially among women and minority groups.
    Set forth are general guidelines designed to assist the State 
highway agencies in implementing internal programs, including the 
development and implementation of AAP's to ensure fair and equal 
treatment for all persons, regardless of race, color, religion, sex or 
national origin in all employment practices.
    II. Administration and implementation. The head of each State 
highway agency is responsible for the overall administration of the 
internal EEO program, including the total integration of equal 
opportunity into all facets of personnel management. However, specific 
program responsibilities should be assigned for carrying out the program 
at all management levels.
    To ensure effectiveness in the implementation of the internal EEO 
program, a specific and realistic AAP should be developed. It should 
include both short and long-range objectives, with priorities and target 
dates for achieving goals and measuring progress, according to the 
agency's individual need to overcome existing problems.
    A. State Highway Agency Affirmative Action Officer (internal). 1. 
Appointment of Affirmative Action Officer. The head of the SHA should 
appoint a qualified Affirmative Action (AA) Officer (Internal EEO 
Officer) with responsibility and authority to implement the internal EEO 
program. In making the selection, the following factors should be 
considered:

[[Page 63]]

    a. The person appointed should have proven ability to accomplish 
major program goals.
    b. Managing the internal EEO program requires a major time 
commitment; it cannot be added on to an existing full-time job.
    c. Appointing qualified minority and/or female employees to head or 
staff the program may offer good role models for present and potential 
employees and add credibility to the programs involved. However, the 
most essential requirements for such position(s) are sensitivity to 
varied ways in which discrimination limits job opportunities, commitment 
to program goals and sufficient status and ability to work with others 
in the agency to achieve them.
    2. Responsibilities of the Affirmative Action Officer. The 
responsibilities of the AA Officer should include, but not necessarily 
be limited to:
    a. Developing the written AAP.
    b. Publicizing its content internally and externally.
    c. Assisting managers and supervisors in collecting and analyzing 
employment data, identifying problem areas, setting goals and timetables 
and developing programs to achieve goals. Programs should include 
specific remedies to eliminate any discriminatory practices discovered 
in the employment system.
    d. Handling and processing formal discrimination complaints.
    e. Designing, implementing and monitoring internal audit and 
reporting systems to measure program effectiveness and to determine 
where progress has been made and where further action is needed.
    f. Reporting, at least quarterly, to the head of the SHA on progress 
and deficiencies of each unit in relation to agency goals.
    g. In addition, consider the creation of:
    (1) An EEO Advisory Committee, whose membership would include top 
management officials,
    (2) An EEO Employee Committee, whose membership would include rank 
and file employees, with minority and female representatives from 
various job levels and departments to meet regularly with the AA 
officer, and
    (3) An EEO Counseling Program to attempt informal resolution of 
discrimination complaints.
    B. Contents of an affirmative action plan. The Affirmative Action 
Plan (AAP) is an integral part of the SHA's EEO program. Although the 
style and format of AAP's may vary from one SHA to another, the basic 
substance will generally be the same. The essence of the AAP should 
include, but not necessarily be limited to:
    1. Inclusion of a strong agency policy statement of commitment to 
EEO.
    2. Assignment of responsibility and authority for program to a 
qualified individual.
    3. A survey of the labor market area in terms of population makeup, 
skills, and availability for employment.
    4. Analyzing the present work force to identify jobs, departments 
and units where minorities and females are underutilized.
    5. Setting specific, measurable, attainable hiring and promotion 
goals, with target dates, in each area of underutilization.
    6. Making every manager and supervisor responsible and accountable 
for meeting these goals.
    7. Reevaluating job descriptions and hiring criteria to assure that 
they reflect actual job needs.
    8. Finding minorities and females who are qualified or qualifiable 
to fill jobs.
    9. Getting minorities and females into upward mobility and relevant 
training programs where they have not had previous access.
    10. Developing systems to monitor and measure progress regularly. If 
results are not satisfactory to meet goals, determine the reasons and 
make necessary changes.
    11. Developing a procedure whereby employees and applicants may 
process allegations of discrimination to an impartial body without fear 
of reprisal.
    C. Implementation of an affirmative action plan. The written AAP is 
the framework and management tool to be used at all organizational 
levels to actively implement, measure and evaluate program progress on 
the specific action items which represent EEO program problems or 
deficiencies. The presence of a written plan alone does not constitute 
an EEO program, nor is it, in itself, evidence of an ongoing program. As 
a minimum, the following specific actions should be taken.
    1. Issue written equal employment opportunity policy statement and 
affirmative action commitment. To be effective, EEO policy provisions 
must be enforced by top management, and all employees must be made aware 
that EEO is basic agency policy. The head of the SHA (1) should issue a 
firm statement of personal commitment, legal obligation and the 
importance of EEO as an agency goal, and (2) assign specific 
responsibility and accountability to each executive, manager and 
supervisor.
    The statement should include, but not necessarily be limited to, the 
following elements:
    a. EEO for all persons, regardless of race, color, religion, sex or 
national origin as a fundamental agency policy.
    b. Personal commitment to and support of EEO by the head of the SHA.
    c. The requirement that special affirmative action be taken 
throughout the agency to overcome the effects of past discrimination.
    d. The requirement that the EEO program be a goal setting program 
with measurement

[[Page 64]]

and evaluation factors similar to other major agency programs.
    e. Equal opportunity in all employment practices, including (but not 
limited to) recruiting, hiring, transfers, promotions, training, 
compensation, benefits, recognition (awards), layoffs, and other 
terminations.
    f. Responsibility for positive affirmative action in the discharge 
of EEO programs, including performance evaluations of managers and 
supervisors in such functions, will be expected of and shared by all 
management personnel.
    g. Accountability for action or inaction in the area of EEO by 
management personnel.
    2. Publicize the affirmative action plan. a. Internally: (1) 
Distribute written communications from the head of the SHA.
    (2) Include the AAP and the EEO policy statement in agency 
operations manual.
    (3) Hold individual meetings with managers and supervisors to 
discuss the program, their individual responsibilities and to review 
progress.
    (4) Place Federal and State EEO posters on bulletin boards, near 
time clocks and in personnel offices.
    (5) Publicize the AAP in the agency newsletters and other 
publications.
    (6) Present and discuss the AAP as a part of employee orientation 
and all training programs.
    (7) Invite employee organization representatives to cooperate and 
assist in developing and implementing the AAP.
    b. Externally: Distribute the AAP to minority groups and women's 
organizations, community action groups, appropriate State agencies, 
professional organizations, etc.
    3. Develop and implement specific programs to eliminate 
discriminatory barriers and achieve goals. a. Job structuring and upward 
mobility: The AAP should include specific provisions for:
    (1) Periodic classification plan reviews to correct inaccurate 
position descriptions and to ensure that positions are allocated to the 
appropriate classification.
    (2) Plans to ensure that all qualification requirements are closely 
job related.
    (3) Efforts to restructure jobs and establish entry level and 
trainee positions to facilitate progression within occupational areas.
    (4) Career counseling and guidance to employees.
    (5) Creating career development plans for lower grade employees who 
are underutilized or who demonstrate potential for advancement.
    (6) Widely publicizing upward mobility programs and opportunities 
within each work unit and within the total organizational structure.
    b. Recruitment and placement. The AAP should include specific 
provisions for, but not necessarily limited to:
    (1) Active recruitment efforts to support and supplement those of 
the central personnel agency or department, reaching all appropriate 
sources to obtain qualified employees on a nondiscriminatory basis.
    (2) Maintaining contracts with organizations representing minority 
groups, women, professional societies, and other sources of candidates 
for technical, professional and management level positions.
    (3) Ensuring that recruitment literature is relevant to all 
employees, including minority groups and women.
    (4) Reviewing and monitoring recruitment and placement procedures so 
as to assure that no discriminatory practices exist.
    (5) Cooperating with management and the central personnel agency on 
the review and validation of written tests and other selection devices.
    (6) Analyzing the flow of applicants through the selection and 
appointment process, including an analytical review of reasons for 
rejections.
    (7) Monitoring the placement of employees to ensure the assignment 
of work and workplace on a nondiscriminatory basis.
    c. Promotions. The AAP should include specific provisions for, but 
not necessarily limited to:
    1. Establishing an agency-wide merit promotion program, including a 
merit promotion plan, to provide equal opportunity for all persons based 
on merit and without regard to race, color, religion, sex or national 
origin.
    2. Monitoring the operation of the merit promotion program, 
including a review of promotion actions, to assure that requirements 
procedures and practices support EEO program objectives and do not have 
a discriminatory impact in actual operation.
    3. Establishing skills banks to match employee skills with available 
job advancement opportunities.
    4. Evaluating promotion criteria (supervisory evaluations, oral 
interviews, written tests, qualification standards, etc.) and their use 
by selecting officials to identify and eliminate factors which may lead 
to improper ``selection out'' of employees or applicants, particularly 
minorities and women, who traditionally have not had access to better 
jobs. It may be appropriate to require selecting officials to submit a 
written justification when well qualified persons are passed over for 
upgrading or promotion.
    5. Assuring that all job vacancies are posted conspicuously and that 
all employees are encouraged to bid on all jobs for which they feel they 
are qualified.
    6. Publicizing the agency merit promotion program by highlighting 
breakthrough promotions, i.e., advancement of minorities and women to 
key jobs, new career heights, etc.

[[Page 65]]

    d. Training. The AAP should include specific provisions for, but not 
necessarily limited to:
    (1) Requiring managers and supervisors to participate in EEO 
seminars covering the AAP, the overall EEO program and the 
administration of the policies and procedures incorporated therein, and 
on Federal, State and local laws relating to EEO.
    (2) Training in proper interviewing techniques of employees who 
conduct employment selection interviews.
    (3) Training and education programs designed to provide 
opportunities for employees to advance in relation to the present and 
projected manpower needs of the agency and the employees' career goals.
    (4) The review of profiles of training course participants to ensure 
that training opportunities are being offered to all eligible employees 
on an equal basis and to correct any inequities discovered.
    e. Layoffs, recalls, discharges, demotions, and disciplinary 
actions. The standards for deciding when a person shall be terminated, 
demoted, disciplined, laid off or recalled should be the same for all 
employees, including minorities and females. Seemingly neutral practices 
should be reexamined to see if they have a disparate effect on such 
groups. For example, if more minorities and females are being laid off 
because they were the last hired, then, adjustments should be made to 
assure that the minority and female ratios do not decrease because of 
these actions.
    (1) When employees, particularly minorities and females, are 
disciplined, laid off, discharged or downgraded, it is advisable that 
the actions be reviewed by the AA Officer before they become final.
    (2) Any punitive action (i.e., harassment, terminations, demotions), 
taken as a result of employees filing discrimination complaints, is 
illegal.
    (3) The following records should be kept to monitor this area of the 
internal EEO program:
    On all terminations, including layoffs and discharges: indicate 
total number, name, (home address and phone number), employment date, 
termination date, recall rights, sex, racial/ethnic identification (by 
job category), type of termination and reason for termination.
    On all demotions: indicate total number, name, (home address and 
phone number), demotion date, sex, racial/ethnic identification (by job 
category), and reason for demotion.
    On all recalls: indicate total number, name, (home address and phone 
number) recall date, sex, and racial/ethnic identification (by job 
category).
    Exit interviews should be conducted with employees who leave the 
employment of the SHA.
    f. Other personnel actions. The AAP should include specific 
provisions for, but not necessarily limited to:
    (1) Assuring that information on EEO counseling and grievance 
procedures is easily available to all employees.
    (2) A system for processing complaints alleging discrimination 
because of race, color, religion, sex or national origin to an impartial 
body.
    (3) A system for processing grievances and appeals (i.e., 
disciplinary actions, adverse actions, adverse action appeals, etc).
    (4) Including in the performance appraisal system a factor to rate 
manager's and supervisors' performance in discharging the EEO program 
responsibilities assigned to them.
    (5) Reviewing and monitoring the performance appraisal program 
periodically to determine its objectivity and effectiveness.
    (6) Ensuring the equal availability of employee benefits to all 
employees.
    4. Program evaluation. An internal reporting system to continually 
audit, monitor and evaluate programs is essential for a successful AAP. 
Therefore, a system providing for EEO goals, timetables, and periodic 
evaluations needs to be established and implemented. Consideration 
should be given to the following actions:
    a. Defining the major objectives of EEO program evaluation.
    b. The evaluation should be directed toward results accomplished, 
not only at efforts made.
    c. The evaluation should focus attention on assessing the adequacy 
of problem identification in the AAP and the extent to which the 
specific action steps in the plan provide solutions.
    d. The AAP should be reviewed and evaluated at least annually. The 
review and evaluation procedures should include, but not be limited to, 
the following:
    (1) Each bureau, division or other major component of the agency 
should make annual and such other periodic reports as are needed to 
provide an accurate review of the operations of the AAP in that 
component.
    (2) The AA Officer should make an annual report to the head of the 
SHA, containing the overall status of the program, results achieved 
toward established objectives, identity of any particular problems 
encountered and recommendations for corrective actions needed.
    e. Specific, numerical goals and objectives should be established 
for the ensuing year. Goals should be developed for the SHA as a whole, 
as well as for each unit and each job category.
    III. Employment statistical data. A. As a minimum, furnish the most 
recent data on the following:
    1. The total population in the State,

[[Page 66]]

    2. The total labor market in State, with a breakdown by racial/
ethnic identification and sex, and
    3. An analysis of (1) and (2) above, in connection with the 
availability of personnel and jobs within SHA's.
    B. State highway agencies shall use the EEO-4 Form in providing 
current work force data. This data shall reflect only State department 
of transportation/State highway department employment.

[[Page 67]]

[GRAPHIC] [TIFF OMITTED] TC14OC91.002


[[Page 68]]


[GRAPHIC] [TIFF OMITTED] TC14OC91.003


[41 FR 28270, July 9, 1976, as amended at 41 FR 46294, Oct. 20, 1976; 74 
FR 28442, June 16, 2009]

[[Page 69]]



 Subpart D_Construction Contract Equal Opportunity Compliance Procedures

    Source: 41 FR 34239, Aug. 13, 1976, unless otherwise noted.



Sec. 230.401  Purpose.

    The purpose of the regulations in this subpart is to prescribe 
policies and procedures to standardize the implementation of the equal 
opportunity contract compliance program, including compliance reviews, 
consolidated compliance reviews, and the administration of areawide 
plans.



Sec. 230.403  Applicability.

    The procedures set forth hereinafter apply to all nonexempt direct 
Federal and Federal-aid highway construction contracts and subcontracts, 
unless otherwise specified.



Sec. 230.405  Administrative responsibilities.

    (a) Federal Highway Administration (FHWA) responsibilities. (1) The 
FHWA has the responsibility to ensure that contractors meet contractural 
equal opportunity requirements under E.O. 11246, as amended, and title 
23 U.S.C., and to provide guidance and direction to States in the 
development and implementation of a program to assure compliance with 
equal opportunity requirements.
    (2) The Federal Highway Administrator or a designee may inquire into 
the status of any matter affecting the FHWA equal opportunity program 
and, when considered necessary, assume jurisdiction over the matter, 
proceeding in coordination with the State concerned. This is without 
derogation of the authority of the Secretary of Transportation, 
Department of Transportation (DOT), the Director, DOT Departmental 
Office of Civil Rights (OCR) or the Director, Office of Federal Contract 
Compliance Programs (OFCCP), Department of Labor.
    (3) Failure of the State highway agency (SHA) to discharge the 
responsibilities stated in Sec. 230.405(b)(1) may result in DOT's 
taking any or all of the following actions (see appendix A to 23 CFR 
part 630, subpart C ``Federal-aid project agreement''):
    (i) Cancel, terminate, or suspend the Federal-aid project agreement 
in whole or in part;
    (ii) Refrain from extending any further assistance to the SHA under 
the program with respect to which the failure or refusal occurred until 
satisfactory assurance of future compliance has been received from the 
SHA; and
    (iii) Refer the case to an appropriate Federal agency for legal 
proceedings.
    (4) Action by the DOT, with respect to noncompliant contractors, 
shall not relieve a SHA of its responsibilities in connection with these 
same matters; nor is such action by DOT a substitute for corrective 
action utilized by a State under applicable State laws or regulations.
    (b) State responsibilities. (1) The SHA's, as contracting agencies, 
have a responsibility to assure compliance by contractors with the 
requirements of Federal-aid construction contracts, including the equal 
opportunity requirements, and to assist in and cooperate with FHWA 
programs to assure equal opportunity.
    (2) The corrective action procedures outlined herein do not preclude 
normal contract administration procedures by the States to ensure the 
contractor's completion of specific contract equal opportunity 
requirements, as long as such procedures support, and sustain the 
objectives of E.O. 11246, as amended. The State shall inform FHWA of any 
actions taken against a contractor under normal State contract 
administration procedures, if that action is precipitated in whole or in 
part by noncompliance with equal opportunity contract requirements.



Sec. 230.407  Definitions.

    For the purpose of this subpart, the following definitions shall 
apply, unless the context requires otherwise:
    (a) Actions, identified by letter and number, shall refer to those 
items identified in the process flow chart. (Appendix D);
    (b) Affirmative Action Plan means a written positive management tool 
of a total equal opportunity program indicating the action steps for all 
organizational levels of a contractor to initiate

[[Page 70]]

and measure equal opportunity program progress and effectiveness. (The 
Special Provisions [23 CFR part 230 A, appendix A] and areawide plans 
are Affirmative Action Plans.);
    (c) Affirmative Actions means the efforts exerted towards achieving 
equal opportunity through positive, aggressive, and continuous result-
oriented measures to correct past and present discriminatory practices 
and their effects on the conditions and privileges of employment. These 
measures include, but are not limited to, recruitment, hiring, 
promotion, upgrading, demotion, transfer, termination, compensation, and 
training;
    (d) Areawide Plan means an Affirmative Action Plan approved by the 
Department of Labor to increase minority and female utilization in 
crafts of the construction industry in a specified geographical area 
pursuant to E.O. 11246, as amended, and taking the form of either a 
``Hometown'' or an ``Imposed'' Plan.
    (1) Hometown Plan means a voluntary areawide agreement usually 
developed by representatives of labor unions, minority organizations, 
and contractors, and approved by the OFCCP for the purpose of 
implementing the equal employment opportunity requirements pursuant to 
E.O. 11246, as amended;
    (2) Imposed Plan means mandatory affirmative action requirements for 
a specified geographical area issued by OFCCP and, in some areas, by the 
courts;
    (e) Compliance Specialist means a Federal or State employee 
regularly employed and experienced in civil rights policies, practices, 
procedures, and equal opportunity compliance review and evaluation 
functions;
    (f) Consolidated Compliance Review means a review and evaluation of 
all significant construction employment in a specific geographical 
(target) area;
    (g) Construction shall have the meanings set forth in 41 CFR 60-
1.3(e) and 23 U.S.C. 101(a). References in both definitions to expenses 
or functions incidental to construction shall include preliminary 
engineering work in project development or engineering services 
performed by or for a SHA;
    (h) Corrective Action Plan means a contractor's unequivocal written 
and signed commitment outlining actions taken or proposed, with time 
limits and goals, where appropriate to correct, compensate for, and 
remedy each violation of the equal opportunity requirements as specified 
in a list of deficiencies. (Sometimes called a conciliation agreement or 
a letter of commitment.);
    (i) Contractor means, any person, corporation, partnership, or 
unincorporated association that holds a FHWA direct or federally 
assisted construction contract or subcontract regardless of tier;
    (j) Days shall mean calendar days;
    (k) Discrimination means a distinction in treatment based on race, 
color, religion, sex, or national origin;
    (l) Equal Employment Opportunity means the absence of partiality or 
distinction in employment treatment, so that the right of all persons to 
work and advance on the basis of merit, ability, and potential is 
maintained;
    (m) Equal Opportunity Compliance Review means an evaluation and 
determination of a nonexempt direct Federal or Federal-aid contractor's 
or subcontractor's compliance with equal opportunity requirements based 
on:
    (1) Project work force--employees at the physical location of the 
construction activity;
    (2) Area work force--employees at all Federal-aid, Federal, and non-
Federal projects in a specific geographical area as determined under 
Sec. 230.409 (b)(9); or
    (3) Home office work force--employees at the physical location of 
the corporate, company, or other ownership headquarters or regional 
managerial, offices, including ``white collar'' personnel (managers, 
professionals, technicians, and clericals) and any maintenance or 
service personnel connected thereto;
    (n) Equal Opportunity Requirements is a general term used throughout 
this document to mean all contract provisions relative to equal 
employment opportunity (EEO), subcontracting, and training;
    (o) Good Faith Effort means affirmative action measures designed to 
implement the established objectives of an Affirmative Action Plan;
    (p) Show Cause Notice means a written notification to a contractor 
based

[[Page 71]]

on the determination of the reviewer (or in appropriate cases by higher 
level authority) to be in noncompliance with the equal opportunity 
requirements. The notice informs the contractor of the specific basis 
for the determination and provides the opportunity, within 30 days from 
receipt, to present an explanation why sanctions should not be imposed;
    (q) State highway agency (SHA) means that department, commission, 
board, or official of any State charged by its laws with the 
responsibility for highway construction. The term State should be 
considered equivalent to State highway agency. With regard to direct 
Federal contracts, references herein to SHA's shall be considered to 
refer to FHWA regional offices, as appropriate.



Sec. 230.409  Contract compliance review procedures.

    (a) General. A compliance review consists of the following elements:
    (1) Review Scheduling (Actions R-1 and R-2).
    (2) Contractor Notification (Action R-3).
    (3) Preliminary Analysis (Phase I) (Action R-4).
    (4) Onsite Verification and Interviews (Phase II) (Action R-5).
    (5) Exit Conference (Action R-6).
    (6) Compliance Determination and Formal Notification (Actions R-8, 
R-9, R-10, R-11, R-12).

The compliance review procedure, as described herein and in appendix D 
provides for continual monitoring of the employment process. Monitoring 
officials at all levels shall analyze submissions from field offices to 
ensure proper completion of procedural requirements and to ascertain the 
effectiveness of program implementation.
    (b) Review scheduling. (Actions R-1 and R-2). Because construction 
work forces are not constant, particular attention should be paid to the 
proper scheduling of equal opportunity compliance reviews. Priority in 
scheduling equal opportunity compliance reviews shall be given to 
reviewing those contractor's work forces:
    (1) Which hold the greatest potential for employment and promotion 
of minorities and women (particularly in higher skilled crafts or 
occupations);
    (2) Working in areas which have significant minority and female 
labor forces within a reasonable recruitment area;
    (3) Working on projects that include special training provisions; 
and
    (4) Where compliance with equal opportunity requirements is 
questionable. (Based on previous PR-1391's (23 CFR part 230, subpart A, 
appendix C) Review Reports and Hometown Plan Reports).

In addition, the following considerations shall apply:
    (5) Reviews specifically requested by the Washington Headquarters 
shall receive priority scheduling;
    (6) Compliance Reviews in geographical areas covered by areawide 
plans would normally be reviewed under the Consolidated Compliance 
Review Procedures set forth in Sec. 230.415.
    (7) Reviews shall be conducted prior to or during peak employment 
periods.
    (8) No compliance review shall be conducted that is based on a home 
office work force of less than 15 employees unless requested or approved 
by Washington Headquarters; and
    (9) For compliance reviews based on an area work force (outside of 
areawide plan coverage), the Compliance Specialist shall define the 
applicable geographical area by considering:
    (i) Union geographical boundaries;
    (ii) The geographical area from which the contractor recruits 
employees, i.e., reasonable recruitment area;
    (iii) Standard Metropolitan Statistical Area (SMSA) or census 
tracts; and
    (iv) The county in which the Federal or Federal-aid project(s) is 
located and adjacent counties.
    (c) Contractor notification (Action R-3). (1) The Compliance 
Specialist should usually provide written notification to the contractor 
of the pending compliance review at least 2 weeks prior to the onsite 
verification and interviews. This notification shall include the 
scheduled date(s), an outline of the mechanics and basis of the review, 
requisite interviews, and documents required.
    (2) The contractor shall be requested to provide a meeting place on 
the day

[[Page 72]]

of the visit either at the local office of the contractor or at the 
jobsite.
    (3) The contractor shall be requested to supply all of the following 
information to the Compliance Specialist prior to the onsite 
verification and interviews.
    (i) Current Form PR-1391 developed from the most recent payroll;
    (ii) Copies of all current bargaining agreements;
    (iii) Copies of purchase orders and subcontracts containing the EEO 
clause;
    (iv) A list of recruitment sources available and utilized;
    (v) A statement of the status of any action pertaining to employment 
practices taken by the Equal Employment Opportunity Commission (EEOC) or 
other Federal, State, or local agency regarding the contractor or any 
source of employees;
    (vi) A list of promotions made during the past 6 months, to include 
race, national origin, and sex of employee, previous job held, job 
promoted into; and corresponding wage rates;
    (vii) An annotated payroll to show job classification, race, 
national origin and sex;
    (viii) A list of minority- or female-owned companies contacted as 
possible subcontractors, vendors, material suppliers, etc.; and
    (ix) Any other necessary documents or statements requested by the 
Compliance Specialist for review prior to the actual onsite visit.
    (4) For a project review, the prime contractor shall be held 
responsible for ensuring that all active subcontractors are present at 
the meeting and have supplied the documentation listed in Sec. 
230.409(c)(3).
    (d) Preliminary analysis (Phase I) (Action R-4). Before the onsite 
verification and interviews, the Compliance Specialist shall analyze the 
employment patterns, policies, practices, and programs of the contractor 
to determine whether or not problems exist by reviewing information 
relative to:
    (1) The contractor's current work force;
    (2) The contractor's relationship with referral sources, e.g., 
unions, employment agencies, community action agencies, minority and 
female organizations, etc.;
    (3) The minority and female representation of sources;
    (4) The availability of minorities and females with requisite skills 
in a reasonable recruitment area;
    (5) Any pending EEOC or Department of Justice cases or local or 
State Fair Employment Agency cases which are relevant to the contractor 
and/or the referral sources; and
    (6) The related projects (and/or contractor) files of FHWA regional 
or division and State Coordinator's offices to obtain current 
information relating to the status of the contractor's project(s), 
value, scheduled duration, written corrective action plans, PR-1391 or 
Manpower Utilization Reports, training requirements, previous compliance 
reviews, and other pertinent correspondence and/or reports.
    (e) Onsite verification and interviews (Phase II) (Action R-5). (1) 
Phase II of the review consists of the construction or home office site 
visit(s). During the initial meeting with the contractor, the following 
topics shall be discussed:
    (i) Objectives of the visit;
    (ii) The material submitted by the contractor, including the actual 
implementation of the employee referral source system and any 
discrepancies found in the material; and
    (iii) Arrangements for the site tour(s) and employee interviews.
    (2) The Compliance Specialist shall make a physical tour of the 
employment site(s) to determine that:
    (i) EEO posters are displayed in conspicuous places in a legible 
fashion;
    (ii) Facilities are provided on a nonsegregated basis (e.g. work 
areas, washroom, timeclocks, locker rooms, storage areas, parking lots, 
and drinking fountains);
    (iii) Supervisory personnel have been oriented to the contractor's 
EEO commitments;
    (iv) The employee referral source system is being implemented;
    (v) Reported employment data is accurate;
    (vi) Meetings have been held with employees to discuss EEO policy, 
particularly new employees; and

[[Page 73]]

    (vii) Employees are aware of their right to file complaints of 
discrimination.
    (3) The Compliance Specialist should interview at least one 
minority, one nonminority, and one woman in each trade, classification, 
or occupation. The contractor's superintendent or home office manager 
should also be interviewed.
    (4) The Compliance Specialist shall, on a sample basis, determine 
the union membership status of union employees on the site (e.g. whether 
they have permits, membership cards, or books, and in what category they 
are classified [e.g., A, B, or C]).
    (5) The Compliance Specialist shall also determine the method 
utilized to place employees on the job and whether equal opportunity 
requirements have been followed.
    (6) The Compliance Specialist shall determine, and the report shall 
indicate the following:
    (i) Is there reasonable representation and utilization of minorities 
and women in each craft, classification or occupation? If not, what has 
the contractor done to increase recruitment, hiring, upgrading, and 
training of minorities and women?
    (ii) What action is the contractor taking to meet the contractual 
requirement to provide equal employment opportunity?
    (iii) Are the actions taken by the contractor acceptable? Could they 
reasonably be expected to result in increased utilization of minorities 
and women?
    (iv) Is there impartiality in treatment of minorities and women?
    (v) Are affirmative action measures of an isolated nature or are 
they continuing?
    (vi) Have the contractor's efforts produced results?
    (f) Exit conference (Action R-6). (1) During the exit conference 
with the contractor, the following topics shall be discussed:
    (i) Any preliminary findings that, if not corrected immediately or 
not corrected by the adoption of an acceptable voluntary corrective 
action plan, would necessitate a determination of noncompliance;
    (ii) The process and time in which the contractor shall be informed 
of the final determination (15 days following the onsite verification 
and interviews); and
    (iii) Any other matters that would best be resolved before 
concluding the onsite portion of the review.
    (2) Voluntary corrective action plans may be negotiated at the exit 
conference, so that within 15 days following the exit portion of the 
review, the Compliance Specialist shall prepare the review report and 
make a determination of either:
    (i) Compliance, and so notify the contractor; or
    (ii) Noncompliance, and issue a 30-day show cause notice.

The acceptance of a voluntary corrective action plan at the exit 
conference does not preclude a determination of noncompliance, 
particularly if deficiencies not addressed by the plan are uncovered 
during the final analysis and report writing. (Action R-7) A voluntary 
corrective action plan should be accepted with the understanding that it 
only address those problems uncovered prior to the exit conference.
    (g) Compliance determinations (Action R-8). (1) The evidence 
obtained at the compliance review shall constitute a sufficient basis 
for an objective determination by the Compliance Specialist conducting 
the review of the contractor's compliance or noncompliance with 
contractual provisions pursuant to E.O. 11246, as amended, and FHWA EEO 
Special Provisions implementing the Federal-Aid Highway Act of 1968, 
where applicable.
    (2) Compliance determinations on contractors working in a Hometown 
Plan Area shall reflect the status of those crafts covered by part II of 
the plan bid conditions. Findings regarding part I crafts shall be 
transmitted through channels to the Washington Headquarters, Office of 
Civil Rights.
    (3) The compliance status of the contractor will usually be 
reflected by positive efforts in the following areas:
    (i) The contractor's equal employment opportunity (EEO) policy;
    (ii) Dissemination of the policy and education of supervisory 
employees concerning their responsibilities in implementing the EEO 
policy;

[[Page 74]]

    (iii) The authority and responsibilities of the EEO officer;
    (iv) The contractor's recruitment activities, especially 
establishing minority and female recruitment and referral procedures;
    (v) The extent of participation and minority and female utilization 
in FHWA training programs;
    (vi) The contractor's review of personnel actions to ensure equal 
opportunities;
    (vii) The contractor's participation in apprenticeship or other 
training;
    (viii) The contractor's relationship (if any) with unions and 
minority and female union membership;
    (ix) Effective measures to assure nonsegregated facilities, as 
required by contract provisions;
    (x) The contractor's procedures for monitoring subcontractors and 
utilization of minority and female subcontractors and/or subcontractors 
with substantial minority and female employment; and
    (xi) The adequacy of the contractor's records and reports.
    (4) A contractor shall be considered to be in compliance (Action R-
9) when the equal opportunity requirements have been effectively 
implemented, or there is evidence that every good faith effort has been 
made toward achieving this end. Efforts to acheive this goal shall be 
result-oriented, initiated and maintained in good faith, and emphasized 
as any other vital management function.
    (5) A contractor shall be considered to be in noncompliance (Action 
R-10) when:
    (i) The contractor has discriminated against applicants or employees 
with respect to the conditions or privileges of employment; or
    (ii) The contractor fails to provide evidence of every good faith 
effort to provide equal opportunity.
    (h) Show cause procedures--(1) General. Once the onsite verification 
and exit conference (Action R-5) have been completed and a compliance 
determination made, (Action R-8), the contractor shall be notified in 
writing of the compliance determination. (Action R-11 or R-12) This 
written notification shall be sent to the contractor within 15 days 
following the completion of the onsite verification and exit conference. 
If a contractor is found in noncompliance (Action R-10), action efforts 
to bring the contractor into compliance shall be initiated through the 
issuance of a show cause notice (Action R-12). The notice shall advise 
the contractor to show cause within 30 days why sanctions should not be 
imposed.
    (2) When a show cause notice is required. A show cause notice shall 
be issued when a determination of noncompliance is made based upon:
    (i) The findings of a compliance review;
    (ii) The results of an investigation which verifies the existence of 
discrimination; or
    (iii) Areawide plan reports that show an underutilization of 
minorities (based on criteria of U.S. Department of Labor's Optional 
Form 66 ``Manpower Utilization Report'') throughout the contractor's 
work force covered by part II of the plan bid conditions.
    (3) Responsibility for issuance. (i) Show cause notices will 
normally be issued by SHA's to federally assisted contractors when the 
State has made a determination of noncompliance, or when FHWA has made 
such a determination and has requested the State to issue the notice.
    (ii) When circumstances warrant, the Regional Federal Highway 
Administrator or a designee may exercise primary compliance 
responsibility by issuing the notice directly to the contractor.
    (iii) The Regional Federal Highway Administrators in Regions 8, 10, 
and the Regional Engineer in Region 15, shall issue show cause notices 
to direct Federal contractors found in noncompliance.
    (4) Content of show cause notice. The show cause notice must: (See 
sample--appendix A of this subpart)
    (i) Notify the contractor of the determination of noncompliance;
    (ii) Provide the basis for the determination of noncompliance;
    (iii) Notify the contractor of the obligation to show cause within 
30 days why formal proceedings should not be instituted;

[[Page 75]]

    (iv) Schedule (date, time, and place) a compliance conference to be 
held approximately 15 days from the contractor's receipt of the notice;
    (v) Advise the contractor that the conference will be held to 
receive and discuss the acceptability of any proposed corrective action 
plan and/or correction of deficiencies; and
    (vi) Advise the contractor of the availability and willingness of 
the Compliance Specialist to conciliate within the time limits of the 
show cause notice.
    (5) Preparing and processing the show cause notice. (i) The State or 
FHWA official who conducted the investigation or review shall develop 
complete background data for the issuance of the show cause notice and 
submit the recommendation to the head of the SHA or the Regional Federal 
Highway Administrator, as appropriate.
    (ii) The recommendation, background data, and final draft notice 
shall be reviewed by appropriate State or FHWA legal counsel.
    (iii) Show cause notices issued by the SHA shall be issued by the 
head of that agency or a designee.
    (iv) The notice shall be personally served to the contractor or 
delivered by certified mail, return receipt requested, with a 
certificate of service or the return receipt filed with the case record.
    (v) The date of the contractor's receipt of the show cause notice 
shall begin the 30-day show cause period. (Action R-13).
    (vi) The 30-day show cause notice shall be issued directly to the 
noncompliant contractor or subcontractor with an informational copy sent 
to any concerned prime contractors.
    (6) Conciliation efforts during show cause period. (i) The 
Compliance Specialist is required to attempt conciliation with the 
contractor throughout the show cause time period. Conciliation and 
negotiation efforts shall be directed toward correcting contractor 
program deficiencies and initiating corrective action which will 
maintain and assure equal opportunity. Records shall be maintained in 
the State, FHWA division, or FHWA regional office's case files, as 
appropriate, indicating actions and reactions of the contractor, a brief 
synopsis of any meetings with the contractor, notes on verbal 
communication and written correspondence, requests for assistance or 
interpretations, and other relevant matters.
    (ii) In instances where a contractor is determined to be in 
compliance after a show cause notice has been issued, the show cause 
notice will be recinded and the contractor formally notified (Action R-
17). The FHWA Washington Headquarters, Office of Civil Rights, shall 
immediately be notified of any change in status.
    (7) Corrective action plans. (i) When a contractor is required to 
show cause and the deficiencies cannot be corrected within the 30-day 
show cause period, a written corrective action plan may be accepted. The 
written corrective action plan shall specify clear unequivocal action by 
the contractor with time limits for completion. Token actions to correct 
cited deficiencies will not be accepted. (See Sample Corrective Action 
Plan--appendix B of this subpart)
    (ii) When a contractor submits an acceptable written corrective 
action plan, the contractor shall be considered in compliance during the 
plan's effective implementation and submission of required progress 
reports. (Action R-15 and R-17).
    (iii) When an acceptable corrective action plan is not agreed upon 
and the contractor does not otherwise show cause as required, the formal 
hearing process shall be recommended through appropriate channels by the 
compliance specialist immediately upon expiration of the 30-day show 
cause period. (Action R-16, R-18, R-19)
    (iv) When a contractor, after having submitted an acceptable 
corrective action plan and being determined in compliance is 
subsequently determined to be in noncompliance based upon the 
contractor's failure to implement the corrective action plan, the formal 
hearing process must be recommended immediately. There are no provisions 
for reinstituting a show cause notice.
    (v) When, however, a contractor operating under an acceptable 
corrective action plan carries out the provisions of the corrective 
action plan but the actions do not result in the necessary

[[Page 76]]

changes, the corrective action plan shall be immediately amended through 
negotiations. If, at this point, the contractor refuses to appropriately 
amend the corrective action plan, the formal hearing process shall be 
recommended immediately.
    (vi) A contractor operating under an approved voluntary corrective 
action plan (i.e., plan entered into prior to the issuance of a show 
cause) must be issued a 30-day show cause notice in the situations 
referred to in paragraphs (h) (7) (iv) and (v) of this section, i.e., 
failure to implement an approved corrective action plan or failure of 
corrective actions to result in necessary changes.
    (i) Followup reviews. (1) A followup review is an extension of the 
initial review process to verify the contractors performance of 
corrective action and to validate progress report information. 
Therefore, followup reviews shall only be conducted of those contractors 
where the initial review resulted in a finding of noncompliance and a 
show cause notice was issued.
    (2) Followup reviews shall be reported as a narrative summary 
referencing the initial review report.
    (j) Hearing process. (1) When such procedures as show cause issuance 
and conciliation conferences have been unsuccessful in bringing 
contractors into compliance within the prescribed 30 days, the reviewer 
(or other appropriate level) shall immediately recommend, through 
channels, that the Department of Transportation obtain approval from the 
Office of Federal Contract Compliance Programs for a formal hearing 
(Action R-19). The Contractor should be notified of this action.
    (2) Recommendations to the Federal Highway Administrator for hearing 
approval shall be accompanied by full reports of findings and case files 
containing any related correspondence. The following items shall be 
included with the recommendation:
    (i) Copies of all Federal and Federal-aid contracts and/or 
subcontracts to which the contractor is party;
    (ii) Copies of any contractor or subcontractor certifications;
    (iii) Copy of show cause notice;
    (iv) Copies of any corrective action plans; and
    (v) Copies of all pertinent Manpower Utilization Reports, if 
applicable.
    (3) SHA's through FHWA regional and division offices, will be 
advised of decisions and directions affecting contractors by the FHWA 
Washington Headquarters, Office of Civil Rights, for the Department of 
Transportation.
    (k) Responsibility determinations. (1) In instances where requests 
for formal hearings are pending OFCCP approval, the contractor may be 
declared a nonresponsible contractor for inability to comply with the 
equal opportunity requirements.
    (2) SHA's shall refrain from entering into any contract or contract 
modification subject to E.O. 11246, as amended, with a contractor who 
has not demonstrated eligibility for Government contracts and federally 
assisted construction contracts pursuant to E.O. 11246, as amended.



Sec. 230.411  Guidance for conducting reviews.

    (a) Extensions of time. Reasonable extensions of time limits set 
forth in these instructions may be authorized by the SHA's or the FHWA 
regional office, as appropriate. However, all extensions are subject to 
Washington Headquarters approval and should only be granted with this 
understanding. The Federal Highway Administrator shall be notified of 
all time extensions granted and the justification therefor. In sensitive 
or special interest cases, simultaneous transmittal of reports and other 
pertinent documents is authorized.
    (b) Contract completion. Completion of a contract or seasonal 
shutdown shall not preclude completion of the administrative procedures 
outlined herein or the possible imposition of sanctions or debarment.
    (c) Home office reviews outside regions. When contractor's home 
offices are located outside the FHWA region in which the particular 
contract is being performed, and it is determined that the contractors' 
home offices should be reviewed, requests for such reviews with 
accompanying justification shall be forwarded through appropriate

[[Page 77]]

channels to the Washington Headquarters, Office of Civil Rights. After 
approval, the Washington Headquarters, Office of Civil Rights, (OCR) 
shall request the appropriate region to conduct the home office review.
    (d) Employment of women. Executive Order 11246, as amended, 
implementing rules and regulations regarding sex discrimination are 
outlined in 41 CFR part 60-20. It is the responsibility of the 
Compliance Specialist to ensure that contractors provide women full 
participation in their work forces.
    (e) Effect of exclusive referral agreements. (1) The OFCCP has 
established the following criteria for determining compliance when an 
exclusive referral agreement is involved;
    (i) It shall be no excuse that the union, with which the contractor 
has a collective bargaining agreement providing for exclusive referral, 
failed to refer minority or female employees.
    (ii) Discrimination in referral for employment, even if pursuant to 
provisions of a collective bargaining agreement, is prohibited by the 
National Labor Relations Act and Title VII of the Civil Rights Act of 
1964, as amended.
    (iii) Contractors and subcontractors have a responsibility to 
provide equal opportunity if they want to participate in federally 
involved contracts. To the extent they have delegated the responsibility 
for some of their employment practices to some other organization or 
agency which prevents them from meeting their obligations, these 
contractors must be found in noncompliance.
    (2) If the contractor indicates that union action or inaction is a 
proximate cause of the contractor's failure to provide equal 
opportunity, a finding of noncompliance will be made and a show cause 
notice issued, and:
    (i) The contractor will be formally directed to comply with the 
equal opportunity requirements.
    (ii) Reviews of other contractors with projects within the 
jurisdiction of the applicable union locals shall be scheduled.
    (iii) If the reviews indicate a pattern and/or practice of 
discrimination on the part of specific union locals, each contractor in 
the area shall be informed of the criteria outlined in Sec. 
230.411(e)(1) of this section. Furthermore, the FHWA Washington 
Headquarters, OCR, shall be provided with full documentary evidence to 
support the discriminatory pattern indicated.
    (iv) In the event the union referral practices prevent the 
contractor from meeting the equal opportunity requirements pursuant to 
the E.O. 11246, as amended, such contractor shall immediately notify the 
SHA.



Sec. 230.413  Review reports.

    (a) General. (1) The Compliance Specialist shall maintain detailed 
notes from the beginning of the review from which a comprehensive 
compliance review report can be developed.
    (2) The completed compliance review report shall contain documentary 
evidence to support the determination of a contractor's or 
subcontractor's compliance status.
    (3) Findings, conclusions, and recommendations shall be explicitly 
stated and, when necessary, supported by documentary evidence.
    (4) The compliance review report shall contain at least the 
following information. \1\ (Action R-20)
---------------------------------------------------------------------------

    \1\ The Federal Highway Administration will accept completed Form 
FHWA-86 for the purpose. The form is available at the offices listed in 
49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (i) Complete name and address of contractor.
    (ii) Project(s) identification.
    (iii) Basis for the review, i.e., area work force, project work 
force, home office work force, and target area work force.
    (iv) Identification of Federal or Federal-aid contract(s).
    (v) Date of review.
    (vi) Employment data by job craft, classification, or occupation by 
race and sex in accordance with (iii) above. This shall be the data 
verified during the onsite.
    (vii) Identification of local unions involved with contractor, when 
applicable.
    (viii) Determination of compliance status: compliance or 
noncompliance.
    (ix) Copy of show cause notice or compliance notification sent to 
contractor.

[[Page 78]]

    (x) Name of the Compliance Specialist who conducted the review and 
whether that person is a State, division or regional Compliance 
Specialist.
    (xi) Concurrences at appropriate levels.
    (5) Each contractor (joint venture is one contractor) will be 
reported separately. When a project review is conducted, the reports 
should be attached, with the initial report being that of the prime 
contractor followed by the reports of each subcontractor.
    (6) Each review level is responsible for ensuring that required 
information is contained in the report.
    (7) When a project review is conducted, the project work force shall 
be reported. When an areawide review is conducted (all Federal-aid, 
Federal, and non-Federal projects in an area), then areawide work force 
shall be reported. When a home office review is conducted, only home 
office work force shall be reported. Other information required by 
regional offices shall be detached before forwarding the reports to the 
Washington Headquarters, OCR.
    (8) The Washington Headquarters, OCR, shall be provided all of the 
following:
    (i) The compliance review report required by Sec. 230.413(a)(4).
    (ii) Corrective action plans.
    (iii) Show cause notices or compliance notifications.
    (iv) Show cause recissions.

While other data and information should be kept by regional offices 
(including progress reports, correspondence, and similar review backup 
material), it should not be routinely forwarded to the Washington 
Headquarters, OCR.
    (b) Administrative requirements--(1) State conducted reviews. (i) 
Within 15 days from the completion of the onsite verification and exit 
conference, the State Compliance Specialist will:
    (A) Prepare the compliance review report, based on information 
obtained;
    (B) Determine the contractor's compliance status;
    (C) Notify the contractor of the compliance determination, i.e., 
send the contractor either notification of compliance or show cause 
notice; and
    (D) Forward three copies of the compliance review report, and the 
compliance notification or show cause notice to the FHWA division EEO 
Specialist.
    (ii) Within 10 days of receipt, the FHWA division EEO Specialist 
shall:
    (A) Analyze the State's report, ensure that it is complete and 
accurate;
    (B) Resolve nonconcurrence, if any;
    (C) Indicate concurrence, and, where appropriate, prepare comments; 
and
    (D) Forward two copies of the compliance review report, and the 
compliance notification or show cause notice to the Regional Civil 
Rights Director.
    (iii) Within 15 days of receipt, the FHWA Regional Civil Rights 
Director shall:
    (A) Analyze the report, ensure that it is complete and accurate;
    (B) Resolve nonconcurrence, if any;
    (C) Indicate concurrence, and, where appropriate, prepare comments; 
and
    (D) Forward one copy of the compliance review report, and the 
compliance notification or show cause notice to the Washington 
Headquarters, OCR.
    (2) FHWA division conducted reviews. (i) Within 15 days from the 
completion of the onsite verification and exit conference, the division 
EEO Specialist shall:
    (A) Prepare compliance review report, based on information obtained;
    (B) Determine the contractor's compliance status;
    (C) Notify the State to send the contractor the compliance 
determination, i.e., either notification of compliance or show cause 
notice; and
    (D) Forward two copies of the compliance review report and the 
compliance notification or show cause notice to the Regional Civil 
Rights Director.
    (ii) Within 15 days of receipt, the FHWA Regional Civil Rights 
Director will take the steps outlined in Sec. 230.413(b)(1)(iii).
    (3) FHWA region conducted reviews. (i) Within 15 days from the 
completion of the onsite verification and exit conference the regional 
EEO Specialist shall:
    (A) Prepare the compliance review report, based on information 
obtained;
    (B) Determine the contractor's compliance status;
    (C) Inform the appropriate division to notify the State to send the 
contractor

[[Page 79]]

the compliance determination i.e., either notification of compliance or 
show cause notice; and
    (D) Forward one copy of the compliance review report, and the 
compliance notification or show cause notice to the Washington 
Headquarters, OCR.
    (4) Upon receipt of compliance review reports, the Washington 
Headquarters, OCR, shall review, resolve any nonconcurrences, and record 
them for the purpose of:
    (i) Providing ongoing technical assistance to FHWA regional and 
division offices and SHA's;
    (ii) Gathering a sufficient data base for program evaluation;
    (iii) Ensuring uniform standards are being applied in the compliance 
review process;
    (iv) Initiating appropriate changes in FHWA policy and implementing 
regulations; and
    (v) Responding to requests from the General Accounting Office, 
Office of Management and Budget, Senate Subcommittee on Public Roads, 
and other agencies and organizations.



Sec. 230.415  Consolidated compliance reviews.

    (a) General. Consolidated compliance reviews shall be implemented to 
determine employment opportunities on an areawide rather than an 
individual project basis. The consolidated compliance review approach 
shall be adopted and directed by either Headquarters, region, division, 
or SHA, however, consolidated reviews shall at all times remain a 
cooperative effort.
    (b) OFCCP policy requires contracting agencies to ensure compliance, 
in hometown an imposed plan areas, on an areawide rather than a project 
basis. The consolidated compliance review approach facilitates 
implementation of this policy.
    (c) Methodology--(1) Selection of a target area. In identifying the 
target area of a consolidated compliance review (e.g. SMSA, hometown or 
imposed plan area, a multicounty area, or an entire State), 
consideration shall at least be given to the following facts:
    (i) Minority and female work force concentrations;
    (ii) Suspected or alleged discrimination in union membership or 
referral practices by local unions involved in highway construction;
    (iii) Present or potential problem areas;
    (iv) The number of highway projects in the target area; and
    (v) Hometown or imposed plan reports that indicate underutilization 
of minorities or females.
    (2) Determine the review period. After the target area has been 
selected, the dates for the actual onsite reviews shall be established.
    (3) Obtain background information. EEO-3's Local Union Reports, 
should be obtained from regional offices of the EEOC. Target area 
civilian labor force statistics providing percent minorities and percent 
females in the target area shall be obtained from State employment 
security agencies or similar State agencies.
    (4) Identify contractors. Every nonexempt federally assisted or 
direct Federal contractor and subcontractor in the target area shall be 
identified. In order to establish areawide employment patterns in the 
target area, employment data is needed for all contractors and 
subcontractors in the area. However, only those contractors with 
significant work forces (working prior to peak and not recently 
reviewed) may need to be actually reviwed onsite. Accordingly, once all 
contractors are identified, those contractors which will actually be 
reviewed onsite shall be determined. Compliance determinations shall 
only reflect the status of crafts covered by part II of plan bid 
conditions. Employment data of crafts covered by part I of plan bid 
conditions shall be gathered and identified as such in the composite 
report, however, OFCCP has reserved the responsibility for compliance 
determinations on crafts covered by part I of the plan bid conditions.
    (5) Contractor notification. Those contractors selected for onsite 
review shall be sent a notification letter as outlined in Sec. 
230.409(c) along with a request for current workforce data \2\ for 
completion

[[Page 80]]

and submission at the onsite review. Those contractors in the target 
area not selected for onsite review shall also be requested to supply 
current workforce data as of the onsite review period, and shall return 
the data within 15 days following the onsite review period.
---------------------------------------------------------------------------

    \2\ The Consolidated Workforce Questionnaire is convenient for the 
purpose and appears as attachment 4 to volume 2, chapter 2, section 3 of 
the Federal-Aid Highway Program Manual, which is available at the 
offices listed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (6) Onsite reviews. Compliance reviews shall then be conducted in 
accordance with the requirements set forth in Sec. 230.409. Reviewers 
may use Form FHWA-86, Compliance Data Report, if appropriate. It is of 
particular importance during the onsite reviews that the review team 
provide for adequate coordination of activities at every stage of the 
review process.
    (7) Compliance determinations. Upon completion of the consolidated 
reviews, compliance determinations shall be made on each review by the 
reviewer. Individual show cause notices or compliance notifications 
shall be sent (as appropriate) to each reviewed contractor.

The compliance determination shall be based on the contractor's target 
area work force (Federal, Federal-aid and non-Federal), except when the 
target area is coincidental with hometown plan area, compliance 
determinations must not be based on that part of a contractor's work 
force covered by part I of the plan bid conditions, as previously set 
forth in this regulation. For example: ABC Contracting, Inc. employs 
carpenters, operating engineers, and cement masons. Carpenters and 
operating engineers are covered by part II of the plan bid conditions, 
however, cement masons are covered by part I of the plan bid conditions. 
The compliance determination must be based only on the contractor's 
utilization of carpenters and operating engineers.
    (d) Reporting--(1) Composite report. A final composite report shall 
be submitted as a complete package to the Washington Headquarters, OCR, 
within 45 days after the review period and shall consist of the 
following:
    (i) Compliance review report, for each contractor and subcontractor 
with accompanying show cause notice or compliance notification.
    (ii) Work force data to show the aggregate employment of all 
contractors in the target area.
    (iii) A narrative summary of findings and recommendations to include 
the following:
    (A) A summary of highway construction employment in the target area 
by craft, race, and sex. This summary should explore possible patterns 
of discrimination or underutilization and possible causes, and should 
compare the utilization of minorities and females on contractor's work 
forces to the civilian labor force percent for minorities and females in 
the target area.
    (B) If the target area is a plan area, a narrative summary of the 
plan's effectiveness with an identification of part I and part II 
crafts. This summary shall discuss possible differences in minority and 
female utilization between part I and part II crafts, documenting any 
inferences drawn from such comparisons.
    (C) If applicable, discuss local labor unions' membership and/or 
referral practices that impact on the utilization of minorities and 
females in the target area. Complete and current copies of all 
collective bargaining agreements and copies of EEO-3, Local Union 
Reports, for all appropriate unions shall accompany the composite 
report.
    (D) Any other appropriate data, analyses, or information deemed 
necessary for a complete picture of the areawide employment.
    (E) Considering the information compiled from the summaries listed 
above, make concrete recommendations on possible avenues for correcting 
problems uncovered by the analyses.
    (2) Annual planning report. The proper execution of consolidated 
compliance reviews necessitates scheduling, along with other fiscal 
program planning. The Washington Headquarters, OCR, shall be notified of 
all planned consolidated reviews by August 10 of each year and of any 
changes in the target area or review periods, as they become known. The 
annual consolidated planning report shall indicate:
    (i) Selected target areas:

[[Page 81]]

    (ii) The basis for selection of each area; and
    (iii) The anticipated review period (dates) for each target area.



   Sec. Appendix A to Subpart D of Part 230--Sample Show Cause Notice

Certified Mail, Return Receipt Requested
Date
Contractor's Name
Address
City, State, and Zip Code.

    Dear Contractor: As a result of the review of your (Project Number) 
project located at (Project Location) conducted on (Date) by (Reviewing 
Agency), it is our determination that you are not in compliance with 
your equal opportunity requirements and that good faith efforts have not 
been made to meet your equal opportunity requirements in the following 
areas:
    List of Deficiencies
    1.
    2.
    3.

    Your failure to take the contractually required affirmative action 
has contributed to the unacceptable level of minority and female 
employment in your operations, particularly in the semiskilled and 
skilled categories of employees.
    The Department of Labor regulations (41 CFR 60) implementing 
Executive Order 11246, as amended, are applicable to your Federal-aid 
highway construction contract and are controlling in this matter (see 
Required Contract Provisions, Form PR-1273, Clause II). Section 60-
1.20(b) of these regulations provides that when equal opportunity 
deficiencies exist, it is necessary that you make a commitment in 
writing to correct such deficiencies before you may be found in 
compliance. The commitment must include the specific action which you 
propose to take to correct each deficiency and the date of completion of 
such action. The time period allotted shall be no longer than the 
minimum period necessary to effect the necessary correction. In 
accordance with instructions issued by the Office of Federal Contract 
Compliance Programs (OFCCP), U.S. Department of Labor, your written 
commitment must also provide for the submission of monthly progress 
reports which shall include a head count of minority and female 
representation at each level of each trade and a list of minority 
employees.
    You are specifically advised that making the commitment discussed 
above will not preclude a further determination of noncompliance upon a 
finding that the commitment is not sufficient to achieve compliance.
    We will hold a compliance conference at ----------------(Address) at 
---------------- (Time) on ----------------(Date) for you to submit and 
discuss your written commitment. If your written commitment is 
acceptable and if the commitment is sufficient to achieve compliance, 
you will be found in compliance during the effective implementation of 
that commitment. You are cautioned, however, that our determination is 
subject to review by the Federal Highway Administration, the Department 
of Transportation, and OFCCP and may be disapproved if your written 
commitment is not considered sufficient to achieve compliance.
    If you indicate either directly or by inaction that you do not wish 
to participate in the scheduled conference and do not otherwise show 
cause within 30 days from receipt of this notice why enforcement 
proceedings should not be instituted, this agency will commence 
enforcement proceedings under Executive Order 11246, as amended.
    If your written commitment is accepted and it is subsequently found 
that you have failed to comply with its provisions, you will be advised 
of this determination and formal sanction proceedings will be instituted 
immediately.
    In the event formal sanction proceedings are instituted and the 
final determination is that a violation of your equal opportunity 
contract requirements has taken place, any Federal-aid highway 
construction contracts or subcontracts which you hold may be canceled, 
terminated, or suspended, and you may be debarred from further such 
contracts or subcontracts. Such other sanctions as are authorized by 
Executive Order 11246, as amended, may also be imposed.
    We encourage you to take whatever action is necessary to resolve 
this matter and are anxious to assist you in achieving compliance. Any 
questions concerning this notice should be addressed to (Name, Address, 
and Phone).
Sincerely yours,

[41 FR 34245, Aug. 13, 1976]



 Sec. Appendix B to Subpart D of Part 230--Sample Corrective Action Plan

    Deficiency 1: Sources likely to yield minority employees have not 
been contacted for recruitment purposes.
    Commitment: We have developed a system of written job applications 
at our home office which readily identifies minority applicants. In 
addition to this, as a minimum, we will contact the National Association 
for the Advancement of Colored People (NAACP), League of Latin American 
Citizens (LULAC), Urban League, and the Employment Security Office 
within 20 days to establish a referral system for minority group 
applicants and expand our recruitment base. We are in the process of 
identifying other community organizations and associations that may be 
able to provide minority applicants and will

[[Page 82]]

submit an updated listing of recruitment sources and evidence of contact 
by ----------------(Date).
    Deficiency 2: There have been inadequate efforts to locate, qualify, 
and increase skills of minority and female employees and applicants for 
employment.
    Commitment: We will set up an individual file for each apprentice or 
trainee by ------------(Date) in order to carefully screen the progress, 
ensure that they are receiving the necessary training, and being 
promoted promptly upon completion of training requirements. We have 
established a goal of at least 50 percent of our apprentices and 
trainees will be minorities and 15 percent will be female. In addition 
to the commitment made to deficiency number 1, we will conduct a similar 
identification of organizations able to supply female applicants. Based 
on our projected personnel needs, we expect to have reached our 50 
percent goal for apprentices and trainees by --------------(Date).
    Deficiency 3: Very little effort to assure subcontractors have 
meaningful minority group representation among their employees.
    Commitment: In cooperation with the Regional Office of Minority 
Business Enterprise, Department of Commerce, and the local NAACP, we 
have identified seven minority-owned contractors that may be able to 
work on future contracts we may receive. These contractors (identified 
in the attached list) will be contacted prior to our bidding on all 
future contracts. In addition, we have scheduled a meeting with all 
subcontractors currently working on our contracts. This meeting will be 
held to inform the subcontractors of our intention to monitor their 
reports and require meaningful minority representation. This meeting 
will be held on --------------------(Date) and we will summarize the 
discussions and current posture of each subcontractor for your review by 
--------------------(Date) Additionally, as requested, we will submit a 
PR-1391 on --------------------(Date), --------------------------------
--------(Date), --------------------(Date). Finally, we have committed 
ourselves to maintaining at least 20 percent minority and female 
representation in each trade during the time we are carrying out the 
above commitments. We plan to have completely implemented all the 
provisions of these commitments by --------------------(Date).

[41 FR 34245, Aug. 13, 1976]



 Sec. Appendix C to Subpart D of Part 230--Sample Show Cause Rescission

Certified Mail, Return Receipt Requested
Date
Contractor
Address
City, State, and Zip Code

    Dear Contractor: On --------------, (Date) you received a 30-day 
show cause notice from this office for failing to implement the required 
contract requirements pertaining to equal employment opportunity.
    Your corrective action plan, discussed and submitted at the 
compliance conference held on --------------------(Date), has been 
reviewed and determined to be acceptable. Your implementation of your 
corrective action plan shows that you are now taking the required 
affirmative action and can be considered in compliance with Executive 
Order 11246, as amended. If it should later be determined that your 
corrective action plan is not sufficient to achieve compliance, this 
Rescission shall not preclude a subsequent finding of noncompliance.
    In view of the above, this letter is to inform you that the 30-day 
show cause notice of --------------------(Date) is hereby rescinded. You 
are further advised that if it is found that you have failed to comply 
with the provisions of your corrective action plan, formal sanction 
proceedings will be instituted immediately.
Sincerely,

[[Page 83]]

Appendix D to Subpart D of Part 230--Equal Opportunity Compliance Review 
                           Process Flow Chart
[GRAPHIC] [TIFF OMITTED] TC14OC91.004


[41 FR 34245, Aug. 13, 1976]

[[Page 84]]



                 SUBCHAPTER D_NATIONAL HIGHWAY INSTITUTE





PART 260_EDUCATION AND TRAINING PROGRAMS--Table of Contents



               Subpart A_Fellowship and Scholarship Grants

Sec.
260.101 Purpose.
260.103 Definitions.
260.105 Policy.
260.107 Eligibility.
260.109 Selection.
260.111 Responsibilities of educational institutions.
260.113 Responsibilities of employing agencies.
260.115 Equal opportunity.
260.117 Application procedures.

Subparts B-C [Reserved]

             Subpart D_State Education and Training Programs

260.401 Purpose.
260.403 Policy.
260.405 Application and approval procedures.
260.407 Implementation and reimbursement.

Appendix A to Part 260--Request for Use of Federal-Aid Highway Funds for 
          Education or Training (Form FHWA-1422)



               Subpart A_Fellowship and Scholarship Grants

    Authority: 23 U.S.C. 307(a), 315, 321 and 403; and 49 CFR 1.48(b).

    Source: 43 FR 3558, Jan. 26, 1978, unless otherwise noted.



Sec. 260.101  Purpose.

    To establish policy for the Federal Highway Administration (FHWA) 
Fellowship and Scholarship Programs as administered by the National 
Highway Institute (NHI).



Sec. 260.103  Definitions.

    As used in this regulation, the following definitions apply:
    (a) Candidate. One who meets the eligibility criteria set forth in 
Sec. 260.107, and who has completed and submitted the necessary forms 
and documents in order to be considered for selection for a fellowship 
or scholarship.
    (b) Direct educational expenses. Those expenses directly related to 
attending school including tuition, student fees, books, and expendable 
supplies but excluding travel expenses to and from the school.
    (c) Employing agency. The agency for which the candidate works. This 
may be either a State or local highway/transportation agency or the 
FHWA.
    (d) Fellowship. The grant presented to the recipient's school and 
administered by the school to assist the candidate financially during 
the period of graduate study.
    (e) Living stipend. The portion of the fellowship or scholarship 
grant remaining after the direct educational expenses have been 
deducted.
    (f) Local highway/transportation agency. The agency or metropolitan 
planning organization with the responsibility for initiating and 
carrying forward a highway program or public transportation program 
utilizing highways at the local level, usually the city or county level.
    (g) National Highway Institute (NHI). The organization located 
within the FHWA responsible for the administration of the FHWA 
fellowship and scholarship grant programs.
    (h) Recipient. The successful candidate receiving a fellowship or 
scholarship.
    (i) Scholarship. The grant presented to the recipient's school and 
administered by the school to assist the candidate financially during 
the period of post-secondary study.
    (j) State highway/transportation agency. The agency with the 
responsibility for initiating and carrying forward a highway program or 
public transportation program utilizing highways at the State level.



Sec. 260.105  Policy.

    It is the policy of the FHWA to administer, through the NHI, 
fellowship and scholarship grant programs to assist State and local 
agencies and the FHWA in developing the expertise needed for the 
implementation of their highway programs and to assist in the

[[Page 85]]

development of more effective transportation programs at all levels of 
government. These programs shall provide financial support for up to 24 
months of either full-time or part-time study in the field of highway 
transportation. The programs for each year shall be announced by FHWA 
notices. \1\ These notices shall contain an application form and shall 
announce the number of grants to be awarded and their value.
---------------------------------------------------------------------------

    \1\ The Federal Highway Administration notices are available for 
inspection and copying as prescribed in 49 CFR part 7, appendix D.

[43 FR 3558, Jan. 26, 1978, as amended at 45 FR 67091, Oct. 9, 1980]



Sec. 260.107  Eligibility.

    (a) Prior recipients of FHWA scholarships or fellowships are 
eligible if they will have completed all specific work commitments 
before beginining study under the programs for which applications are 
made.
    (b) Candidates for the fellowship program shall have earned 
bachelor's or comparable college-level degrees prior to beginining 
advanced studies under the program.
    (c) Candidates shall submit evidence of acceptance, or probable 
acceptance, for study in programs that will enhance their contributions 
to their employers. Evidence of probable acceptance may be a letter from 
the department chairman or other school official.
    (d) Candidates shall agree to pursue certain minimum study loads as 
determined by the FHWA and designated in the FHWA notices announcing the 
programs each year.
    (e) FHWA employees who receive awards will be required to execute 
continued service agreements, consistent with the Government Employees 
Training Act requirements, which obligate the employees to continue to 
work for the agency for three times the duration of the training 
received.
    (f) Candidates who are students or employees of State or local 
highway/transportation agencies shall agree in writing to work on a 
full-time basis in public service with State or local highway/
transportation agencies for a specified period of time after completing 
study under the program. The FHWA notices announcing the programs each 
year shall specify the time period of the work commitment.
    (g) Candidates shall agree to respond to brief questionnaires 
designed to assist the NHI in program evaluation both during and 
following the study period.
    (h) Recipients of awards for full-time shall agree to limit their 
part-time employment as stipulated in the FHWA notice announcing the 
programs.
    (i) Candidates shall not profit financially from FHWA grants. Where 
acceptance of the living stipend portion of the grant would result in a 
profit to the candidate, as determined by comparing the candidate's 
regular full-time salary with the candidate's part-time salary and 
employer salary support plus living stipend, the grant amount will be 
reduced accordingly. In cases where a candidate must relocate and 
maintain two households, exceptions to this condition will be 
considered.
    (j) Candidates shall be citizens, or shall declare their intent to 
become citizens of the United States.



Sec. 260.109  Selection.

    (a) Candidates shall be rated by a selection panel appointed by the 
Director of the NHI. Members of the panel shall represent the highway 
transportation interests of government, industry, and the academic 
community. The factors considered by the selection panel are weighed in 
accordance with specific program objectives.
    (b) The major factors to be considered by the panel are:
    (1) Candidate's potential to contribute to a public agency's highway 
transportation program,
    (2) Relevance of a candidate's study program to the objectives of 
the fellowship or scholarship program,
    (3) Relevant experience, and
    (4) Academic and professional achievements.
    (c) Using ratings given by the selection panel, the Director of the 
NHI shall select candidates for awards and designate alternates.
    (d) The FHWA may designate in the FHWA notices announcing the 
programs the maximum number of awards

[[Page 86]]

that will be made to employees of any one agency.



Sec. 260.111  Responsibilities of educational institutions.

    (a) The college or university chosen by the grant recipient shall 
enter into an appropriate agreement with the FHWA providing for the 
administration of the grant by the college or university.
    (b) The college or university chosen by the recipient shall 
designate a faculty advisor prior to the commitment of funds by the 
FHWA. The faculty advisor will be requested to submit reports of the 
recipient's study progress following completion of each study period. 
These reports are oriented toward total program evaluation. To assure 
the recipient's rights to privacy, the FHWA will obtain appropriate 
advance concurrences from the recipient.



Sec. 260.113  Responsibilities of employing agencies.

    (a) A candidate's employing agency is responsible for furnishing a 
statement of endorsement and information concerning the relevancy of the 
candidate's study to agency requirements. The agency is encouraged to 
identify educational and training priorities and to provide backup to 
support its priority candidates for these programs.
    (b) Employing agencies are encouraged to give favorable 
consideration to the requests of candidates for educational leave and 
salary support for the study period to facilitate the candidates' 
applications. Agency decisions involving salary support and educational 
leave that will affect the acceptance of awards by recipients should be 
made at the earliest possible date to provide adequate time for the FHWA 
to select alternates to replace candidates that decline their awards.
    (c) Agencies are responsible for negotiations with their candidates 
concerning conditions of reinstatement and the candidates' commitments 
to return to work.
    (d) Employing agencies are encouraged to publicize the availability 
of these grants throughout the agencies, to implement procedures for 
internal evaluation of applications, and to forward the applications to 
the FHWA division office in their State.
    (e) Employing agencies that choose to process their employees' 
applications are responsible for observing the cutoff date for the FHWA 
to receive applications. This date will be stipulated in the Notices 
announcing the program for each academic year.



Sec. 260.115  Equal opportunity.

    (a) Consistent with the provisions of the Civil Rights Act of 1964 
and Title VI, assurances executed by each State, 23 U.S.C. 324, and 29 
U.S.C. 794, no applicant, including otherwise qualified handicapped 
individuals, shall on the grounds of race, color, religion, sex, 
national origin, or handicap, be excluded from participation in, be 
denied benefits of, or be otherwise subjected to discrimination under 
this program.
    (b) In accordance with Executive Order 11141, no individual shall be 
denied benefits of this program because of age.
    (c) Agencies should make information on this program available to 
all eligible employees, including otherwise qualified handicapped 
individuals, so as to assure nondiscrimination on the grounds of race, 
color, religion, sex, national origin, age, or handicap.



Sec. 260.117  Application procedures.

    (a) The FHWA notices announcing each year's programs and containing 
the application form may be obtained from FHWA regional and division 
offices, State highway agencies, metropolitan planning organizations, 
Governors' highway safety representatives, Urban Mass Transportation 
Administration regional directors, major transit authorities and from 
colleges and universities. Forms may also be obtained from the NHI, HHI-
3, FHWA, Washington, DC 20590.
    (b) In order to become a candidate, the applicant shall complete and 
forward the application form according to the instructions in the FHWA 
notice announcing the programs. The cutoff date for submitting the 
application stipulated in the notices should be observed.

Subparts B-C [Reserved]

[[Page 87]]



             Subpart D_State Education and Training Programs

    Authority: 23 U.S.C. 315, 321 (b) and (c); 49 CFR 1.48(b).

    Source: 43 FR 35477, Aug. 10, 1978, unless otherwise noted.



Sec. 260.401  Purpose.

    To prescribe policy and implement procedures for the administration 
of Federal-aid funds for education and training of State and local 
highway department employees.



Sec. 260.403  Policy.

    It is the policy of the Federal Highway Administration (FHWA) to 
provide continuing education of State and local highway agency employees 
engaged or to be engaged in Federal-aid highway work. To carry out this 
policy, States are encouraged to fully utilize the authority contained 
in 23 U.S.C. 321(b) and 321(c).



Sec. 260.405  Application and approval procedures.

    The State may apply for education and training funds by submitting a 
signed agreement designating the desired Federal-aid funds, not to 
exceed the limits in 23 U.S.C. 321(b). The FHWA's approval of the 
agreement will constitute obligation of funds and authorization for work 
to proceed.



Sec. 260.407  Implementation and reimbursement.

    (a) After execution of the fiscal agreement, the State may make 
grants and contracts with public and private agencies, institutions, 
individuals, and the National Highway Institute to provide highway-
related training and education. The principal recipients of this 
training shall be employees who are engaged or likely to be engaged, in 
Federal-aid highway work.
    (b) Claims for Federal-aid reimbursement of costs incurred may be 
submitted following established procedures to cover 75 percent of the 
cost of tuition and direct educational expenses (including incidental 
training, equipment, and program materials) exclusive of travel, 
subsistence, or salary of trainees.
    (c) As provided in 23 U.S.C. 321(c), education and training for 
subject areas that are identified by the FHWA as Federal program 
responsibilities, shall be provided at no cost to State and local 
governments.

[43 FR 35477, Aug. 10, 1978, as amended at 45 FR 6378, Jan. 28, 1980; 53 
FR 3745, Feb. 9, 1988]

[[Page 88]]



  Sec. Appendix A to Part 260--Request for Use of Federal-Aid Highway 
            Funds for Education or Training (Form FHWA-1422)
[GRAPHIC] [TIFF OMITTED] TC14OC91.005


[[Page 89]]


[GRAPHIC] [TIFF OMITTED] TC14OC91.006


[[Page 90]]



                   SUBCHAPTER E_PLANNING AND RESEARCH





PART 420_PLANNING AND RESEARCH PROGRAM ADMINISTRATION--
Table of Contents



      Subpart A_Administration of FHWA Planning and Research Funds

Sec.
420.101 What is the purpose of this part?
420.103 How does the FHWA define the terms used in this part?
420.105 What is the FHWA's policy on use of FHWA planning and research 
          funds?
420.107 What is the minimum required expenditure of State planning and 
          research funds for research development and technology 
          transfer?
420.109 What are the requirements for distribution of metropolitan 
          planning funds?
420.111 What are the documentation requirements for use of FHWA planning 
          and research funds?
420.113 What costs are eligible?
420.115 What are the FHWA approval and authorization requirements?
420.117 What are the program monitoring and reporting requirements?
420.119 What are the fiscal requirements?
420.121 What other requirements apply to the administration of FHWA 
          planning and research funds?

    Subpart B_Research, Development, and Technology Transfer Program 
                               Management

420.201 What is the purpose of this subpart?
420.203 How does the FHWA define the terms used in this subpart?
420.205 What is the FHWA's policy for research, development, and 
          technology transfer funding?
420.207 What are the requirements for research, development, and 
          technology transfer work programs?
420.209 What are the conditions for approval?

    Authority: 23 U.S.C. 103(b)(6), 104(f), 115, 120, 133(b), 134(n), 
303(g), 505, and 315; and 49 CFR 1.48(b).

    Source: 67 FR 47271, July 18, 2002, unless otherwise noted.



      Subpart A_Administration of FHWA Planning and Research Funds



Sec. 420.101  What is the purpose of this part?

    This part prescribes the Federal Highway Administration (FHWA) 
policies and procedures for the administration of activities undertaken 
by State departments of transportation (State DOTs) and their 
subrecipients, including metropolitan planning organizations (MPOs), 
with FHWA planning and research funds. Subpart A identifies the 
administrative requirements that apply to use of FHWA planning and 
research funds both for planning and for research, development, and 
technology transfer (RD&T) activities. Subpart B describes the policies 
and procedures that relate to the approval and authorization of RD&T 
work programs. The requirements in this part supplement those in 49 CFR 
part 18, Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments and 49 CFR part 19, Uniform 
Administrative Requirements for Grants and Cooperative Agreements with 
Institutions of Higher Education, Hospitals and Other Non-Profit 
Organizations.



Sec. 420.103  How does the FHWA define the terms used in this part?

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    FHWA planning and research funds include:
    (1) State planning and research (SPR) funds (the two percent set 
aside of funds apportioned or allocated to a State DOT for activities 
authorized under 23 U.S.C. 505);
    (2) Metropolitan planning (PL) funds (the one percent of funds 
authorized under 23 U.S.C. 104(f) to carry out the provisions of 23 
U.S.C. 134);
    (3) National highway system (NHS) funds authorized under 23 U.S.C. 
104(b)(1) used for transportation planning in accordance with 23 U.S.C. 
134

[[Page 91]]

and 135, highway research and planning in accordance with 23 U.S.C. 505, 
highway-related technology transfer activities, or development and 
establishment of management systems under 23 U.S.C. 303;
    (4) Surface transportation program (STP) funds authorized under 23 
U.S.C. 104(b)(3) used for highway and transit research and development 
and technology transfer programs, surface transportation planning 
programs, or development and establishment of management systems under 
23 U.S.C. 303; and
    (5) Minimum guarantee (MG) funds authorized under 23 U.S.C. 505 used 
for transportation planning and research, development and technology 
transfer activities that are eligible under title 23, U.S.C.
    Grant agreement means a legal instrument reflecting a relationship 
between an awarding agency and a recipient or subrecipient when the 
principal purpose of the relationship is to transfer a thing of value to 
the recipient or subrecipient to carry out a public purpose of support 
or stimulation authorized by a law instead of acquiring (by purchase, 
lease, or barter) property or services for the direct benefit or use of 
the awarding agency.
    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process required by 23 U.S.C. 134 
and 49 U.S.C. 5303-5305 must be carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for a metropolitan planning 
area.
    National Cooperative Highway Research Program (NCHRP) means the 
cooperative RD&T program directed toward solving problems of national or 
regional significance identified by State DOTs and the FHWA, and 
administered by the Transportation Research Board, National Academy of 
Sciences.
    Procurement contract means a legal instrument reflecting a 
relationship between an awarding agency and a recipient or subrecipient 
when the principal purpose of the instrument is to acquire (by purchase, 
lease, or barter) property or services for the direct benefit or use of 
the awarding agency.
    State Department of Transportation (State DOT) means that 
department, commission, board, or official of any State charged by its 
laws with the responsibility for highway construction.
    Transportation management area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
and designated by the Secretary of Transportation or other area when TMA 
designation is requested by the Governor and the MPO (or affected local 
officials), and officially designated by the Secretary of 
Transportation.
    Transportation pooled fund study means a planning, research, 
development, or technology transfer activity administered by the FHWA, a 
lead State DOT, or other organization that is supported by two or more 
participants and that addresses an issue of significant or widespread 
interest related to highway, public, or intermodal transportation. A 
transportation pooled fund study is intended to address a new area or 
provide information that will complement or advance previous 
investigations of the subject matter.
    Work program means a periodic statement of proposed work, covering 
no less than one year, and estimated costs that documents eligible 
activities to be undertaken by State DOTs and/or their subrecipients 
with FHWA planning and research funds.



Sec. 420.105  What is the FHWA's policy on use of FHWA planning and 
research funds?

    (a) If the FHWA determines that planning activities of national 
significance, identified in paragraph (b) of this section, and the 
requirements of 23 U.S.C. 134, 135, 303, and 505 are being adequately 
addressed, the FHWA will allow State DOTs and MPOs:
    (1) Maximum possible flexibility in the use of FHWA planning and 
research funds to meet highway and local public transportation planning 
and RD&T needs at the national, State, and local levels while ensuring 
legal use of such funds and avoiding unnecessary duplication of efforts; 
and
    (2) To determine which eligible planning and RD&T activities they 
desire

[[Page 92]]

to support with FHWA planning and research funds and at what funding 
level.
    (b) The State DOTs must provide data that support the FHWA's 
responsibilities to the Congress and to the public. These data include, 
but are not limited to, information required for: preparing proposed 
legislation and reports to the Congress; evaluating the extent, 
performance, condition, and use of the Nation's transportation systems; 
analyzing existing and proposed Federal-aid funding methods and levels 
and the assignment of user cost responsibility; maintaining a critical 
information base on fuel availability, use, and revenues generated; and 
calculating apportionment factors.
    (c) The policy in paragraph (a) of this section does not remove the 
FHWA's responsibility and authority to determine which activities are 
eligible for funding. Activities proposed to be funded with FHWA 
planning and research funds by the State DOTs and their subrecipients 
shall be documented and submitted for FHWA approval and authorization as 
prescribed in Sec. Sec. 420.111 and 420.113. (The information 
collection requirements in paragraph (b) of Sec. 420.105 have been 
approved by the Office of Management and Budget (OMB) under control 
numbers 2125-0028 and 2125-0032.)



Sec. 420.107  What is the minimum required expenditure of State 
planning and research funds for research development and technology
transfer?

    (a) A State DOT must expend no less than 25 percent of its annual 
SPR funds on RD&T activities relating to highway, public transportation, 
and intermodal transportation systems in accordance with the provisions 
of 23 U.S.C. 505(b), unless a State DOT certifies, and the FHWA accepts 
the State DOT's certification, that total expenditures by the State DOT 
during the fiscal year for transportation planning under 23 U.S.C. 134 
and 135 will exceed 75 percent of the amount apportioned for the fiscal 
year.
    (b) Prior to submitting a request for an exception to the 25 percent 
requirement, the State DOT must ensure that:
    (1) The additional planning activities are essential, and there are 
no other reasonable options available for funding these planning 
activities (including the use of NHS, STP, MG, or FTA State planning and 
research funds (49 U.S.C. 5313(b)) or by deferment of lower priority 
planning activities);
    (2) The planning activities have a higher priority than RD&T 
activities in the overall needs of the State DOT for a given fiscal 
year; and
    (3) The total level of effort by the State DOT in RD&T (using both 
Federal and State funds) is adequate.
    (c) If the State DOT chooses to pursue an exception, it must send 
the request, along with supporting justification, to the FHWA Division 
Administrator for action by the FHWA Associate Administrator for 
Research, Development, and Technology. The Associate Administrator's 
decision will be based upon the following considerations:
    (1) Whether the State DOT has a process for identifying RD&T needs 
and for implementing a viable RD&T program.
    (2) Whether the State DOT is contributing to cooperative RD&T 
programs or activities, such as the National Cooperative Highway 
Research Program, the Transportation Research Board, and transportation 
pooled fund studies.
    (3) Whether the State DOT is using SPR funds for technology transfer 
and for transit or intermodal research and development to help meet the 
25 percent minimum requirement.
    (4) Whether the State DOT can demonstrate that it will meet the 
requirement or substantially increase its RD&T expenditures over a 
multi-year period, if an exception is granted for the fiscal year.
    (5) Whether Federal funds needed for planning exceed the 75 percent 
limit for the fiscal year and whether any unused planning funds are 
available from previous fiscal years.
    (d) If the FHWA Associate Administrator for Research, Development, 
and Technology approves the State DOT's request for an exception, the 
exception is valid only for that fiscal year's funds. A new request must 
be submitted and approved for subsequent fiscal year funds.

[[Page 93]]



Sec. 420.109  What are the requirements for distribution of 
metropolitan planning funds?

    (a) The State DOTs shall make all PL funds authorized by 23 U.S.C. 
104(f) available to the MPOs in accordance with a formula developed by 
the State DOT, in consultation with the MPOs, and approved by the FHWA 
Division Administrator. The formula may allow for a portion of the PL 
funds to be used by the State DOT, or other agency agreed to by the 
State DOT and the MPOs, for activities that benefit all MPOs in the 
State, but State DOTs shall not use any PL funds for grant or subgrant 
administration. The formula may also provide for a portion of the funds 
to be made available for discretionary grants to MPOs to supplement 
their annual amount received under the distribution formula.
    (b) In developing the formula for distributing PL funds, the State 
DOT shall consider population, status of planning, attainment of air 
quality standards, metropolitan area transportation needs, and other 
factors necessary to provide for an appropriate distribution of funds to 
carry out the requirements of 23 U.S.C. 134 and other applicable 
requirements of Federal law.
    (c) The State DOTs shall inform the MPOs and the FHWA Division 
Office of the amounts allocated to each MPO as soon as possible after PL 
funds have been apportioned by the FHWA to the State DOTs.
    (d) If the State DOT, in a State receiving the minimum apportionment 
of PL funds under the provisions of 23 U.S.C. 104(f)(2), determines that 
the share of funds to be allocated to any MPO results in the MPO 
receiving more funds than necessary to carry out the provisions of 23 
U.S.C. 134, the State DOT may, after considering the views of the 
affected MPO(s) and with the approval of the FHWA Division 
Administrator, use those funds for transportation planning outside of 
metropolitan planning areas.
    (e) In accordance with the provisions of 23 U.S.C. 134(n), any PL 
funds not needed for carrying out the metropolitan planning provisions 
of 23 U.S.C. 134 in any State may be made available by the MPO(s) to the 
State DOT for funding statewide planning activities under 23 U.S.C. 135, 
subject to approval by the FHWA Division Administrator.
    (f) Any State PL fund distribution formula that does not meet the 
requirements of paragraphs (a) and (b) of this section shall be brought 
into conformance with those requirements before distribution on any new 
apportionment of PL funds.



Sec. 420.111  What are the documentation requirements for use of
FHWA planning and research funds?

    (a) Proposed use of FHWA planning and research funds must be 
documented by the State DOTs and subrecipients in a work program, or 
other document that describes the work to be accomplished, that is 
acceptable to the FHWA Division Administrator. Statewide, metropolitan, 
other transportation planning activities, and transportation RD&T 
activities may be documented in separate programs, paired in various 
combinations, or brought together as a single work program. The 
expenditure of PL funds for transportation planning outside of 
metropolitan planning areas under Sec. 420.109(d) may be included in 
the work program for statewide transportation planning activities or in 
a separate work program submitted by the State DOT.
    (b)(1) A work program(s) for transportation planning activities must 
include a description of work to be accomplished and cost estimates by 
activity or task. In addition, each work program must include a summary 
that shows:
    (i) Federal share by type of fund;
    (ii) Matching rate by type of fund;
    (iii) State and/or local matching share; and
    (iv) Other State or local funds.
    (2) Additional information on metropolitan planning area work 
programs is contained in 23 CFR part 450. Additional information on RD&T 
work program content and format is contained in subpart B of this part.
    (c) In areas not designated as TMAs, a simplified statement of work 
that describes who will perform the work and the work that will be 
accomplished using Federal funds may be used in lieu of a work program. 
If a simplified statement of work is used, it may be

[[Page 94]]

submitted separately or as part of the Statewide planning work program.
    (d) The State DOTs that use separate Federal-aid projects in 
accordance with paragraph (a) of this section must submit an overall 
summary that identifies the amounts and sources of FHWA planning and 
research funds available, matching funds, and the amounts budgeted for 
each activity (e.g., statewide planning, RD&T, each metropolitan area, 
contributions to NCHRP and transportation pooled fund studies, etc.).
    (e) The State DOTs and MPOs also are encouraged to include cost 
estimates for transportation planning, research, development, and 
technology transfer related activities funded with other Federal or 
State and/or local funds; particularly for producing the FHWA-required 
data specified in paragraph (b) of Sec. 420.105, for planning for other 
transportation modes, and for air quality planning activities in areas 
designated as non-attainment for transportation-related pollutants in 
their work programs. The MPOs in TMAs must include such information in 
their work programs. (The information collection requirements in 
Sec. Sec. 420.111 have been approved by the OMB and assigned control 
numbers 2125-0039 for States and 2132-0529 for MPOs.)



Sec. 420.113  What costs are eligible?

    (a) Costs will be eligible for FHWA participation provided that the 
costs:
    (1) Are for work performed for activities eligible under the section 
of title 23, U.S.C., applicable to the class of funds used for the 
activities;
    (2) Are verifiable from the State DOT's or the subrecipient's 
records;
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project objectives and meet the other criteria for 
allowable costs in the applicable cost principles cited in 49 CFR 18.22;
    (4) Are included in the approved budget, or amendment thereto; and
    (5) Were not incurred prior to FHWA authorization.
    (b) Indirect costs of State DOTs and their subrecipients are 
allowable if supported by a cost allocation plan and indirect cost 
proposal prepared, submitted (if required), and approved by the 
cognizant or oversight agency in accordance with the OMB requirements 
applicable to the State DOT or subrecipient specified in 49 CFR 
18.22(b).



Sec. 420.115  What are the FHWA approval and authorization 
requirements?

    (a) The State DOT and its subrecipients must obtain approval and 
authorization to proceed prior to beginning work on activities to be 
undertaken with FHWA planning and research funds. Such approvals and 
authorizations should be based on final work programs or other documents 
that describe the work to be performed. The State DOT and its 
subrecipients also must obtain prior approval for budget and 
programmatic changes as specified in 49 CFR 18.30 or 49 CFR 19.25 and 
for those items of allowable costs which require approval in accordance 
with the cost principles specified in 49 CFR 18.22(b) applicable to the 
entity expending the funds.
    (b) Authorization to proceed with the FHWA funded work in whole or 
in part is a contractual obligation of the Federal government pursuant 
to 23 U.S.C. 106 and requires that appropriate funds be available for 
the full Federal share of the cost of work authorized. Those State DOTs 
that do not have sufficient FHWA planning and research funds or 
obligation authority available to obligate the full Federal share of a 
work program or project may utilize the advance construction provisions 
of 23 U.S.C. 115(a) in accordance with the requirements of 23 CFR part 
630, subpart G. The State DOTs that do not meet the advance construction 
provisions, or do not wish to utilize them, may request authorization to 
proceed with that portion of the work for which FHWA planning and 
research funds are available. In the latter case, authorization to 
proceed may be given for either selected work activities or for a 
portion of the program period, but such authorization does not 
constitute a commitment by the FHWA to fund the remaining portion of the 
work if additional funds do become available.
    (c) A project agreement must be executed by the State DOT and the 
FHWA Division Office for each statewide transportation planning, 
metropolitan

[[Page 95]]

planning area, or RD&T work program, individual activity or study, or 
any combination administered as a single Federal-aid project. The 
project agreement may be executed concurrent with or after authorization 
has been given by the FHWA Division Administrator to proceed with the 
work in whole or in part. In the event that the project agreement is 
executed for only part of the work, the project agreement must be 
amended when authorization is given to proceed with additional work.

(The information collection requirements in Sec. 420.115(c) have been 
approved by the OMB and assigned control numbers 2125-0529)



Sec. 420.117  What are the program monitoring and reporting 
requirements?

    (a) In accordance with 49 CFR 18.40, the State DOT shall monitor all 
activities performed by its staff or by subrecipients with FHWA planning 
and research funds to assure that the work is being managed and 
performed satisfactorily and that time schedules are being met.
    (b)(1) The State DOT must submit performance and expenditure 
reports, including a report from each subrecipient, that contain as a 
minimum:
    (i) Comparison of actual performance with established goals;
    (ii) Progress in meeting schedules;
    (iii) Status of expenditures in a format compatible with the work 
program, including a comparison of budgeted (approved) amounts and 
actual costs incurred;
    (iv) Cost overruns or underruns;
    (v) Approved work program revisions; and
    (vi) Other pertinent supporting data.
    (2) Additional information on reporting requirements for individual 
RD&T studies is contained in subpart B of this part.
    (c) Reports required by paragraph (b) of this section shall be 
annual unless more frequent reporting is determined to be necessary by 
the FHWA Division Administrator. The FHWA may not require more frequent 
than quarterly reporting unless the criteria in 49 CFR 18.12 or 49 CFR 
19.14 are met. Reports are due 90 days after the end of the reporting 
period for annual and final reports and no later than 30 days after the 
end of the reporting period for other reports.
    (d) Events that have significant impact on the work must be reported 
as soon as they become known. The types of events or conditions that 
require reporting include: problems, delays, or adverse conditions that 
will materially affect the ability to attain program objectives. This 
disclosure must be accompanied by a statement of the action taken, or 
contemplated, and any Federal assistance needed to resolve the 
situation.
    (e) Suitable reports that document the results of activities 
performed with FHWA planning and research funds must be prepared by the 
State DOT or subrecipient and submitted for approval by the FHWA 
Division Administrator prior to publication. The FHWA Division 
Administrator may waive this requirement for prior approval. The FHWA's 
approval of reports constitutes acceptance of such reports as evidence 
of work performed but does not imply endorsement of a report's findings 
or recommendations. Reports prepared for FHWA-funded work must include 
appropriate credit references and disclaimer statements. (The 
information collection requirements in Sec. 420.117 have been approved 
by the OMB and assigned control numbers 2125-0039 for States and 2132-
0529 for MPOs.)



Sec. 420.119  What are the fiscal requirements?

    (a) The maximum rate of Federal participation for FHWA planning and 
research funds shall be as prescribed in title 23, U.S.C., for the 
specific class of funds used (i.e., SPR, PL, NHS, STP, or MG) except as 
specified in paragraph (d) of this section. The provisions of 49 CFR 
18.24 or 49 CFR 19.23 are applicable to any necessary matching of FHWA 
planning and research funds.
    (b) The value of third party in-kind contributions may be accepted 
as the match for FHWA planning and research funds, in accordance with 
the provisions of 49 CFR 18.24(a)(2) or 49 CFR 19.23(a) and may be on 
either a total planning work program basis or for specific line items or 
projects. The use of third party in-kind contributions must be 
identified in the original work program/scope of work and the grant/

[[Page 96]]

subgrant agreement, or amendments thereto. The use of third-party in-
kind contributions must be approved in advance by the FHWA Division 
Administrator and may not be made retroactive prior to approval of the 
work program/scope of work or an amendment thereto. The State DOT or 
subrecipient is responsible for ensuring that the following additional 
criteria are met:
    (1) The third party performing the work agrees to allow the value of 
the work to be used as the match;
    (2) The cost of the third party work is not paid for by other 
Federal funds or used as a match for other federally funded grants/
subgrants;
    (3) The work performed by the third party is an eligible 
transportation planning or RD&T related activity that benefits the 
federally funded work;
    (4) The third party costs (i.e., salaries, fringe benefits, etc.) 
are allowable under the applicable Office of Management and Budget (OMB) 
cost principles (i.e., OMB Circular A-21, A-87, or A-122);\1\
---------------------------------------------------------------------------

    \1\ OMB Circulars are available on the Internet at http://
www.whitehouse.gov/omb/circulars/index.html.
---------------------------------------------------------------------------

    (5) The third party work is performed during the period to which the 
matching requirement applies;
    (6) The third party in-kind contributions are verifiable from the 
records of the State DOT or subrecipient and these records show how the 
value placed on third party in-kind contributions was derived; and
    (7) If the total amount of third party expenditures at the end of 
the program period is not sufficient to match the total expenditure of 
Federal funds by the recipient/subrecipient, the recipient/subrecipient 
will need to make up any shortfall with its own funds.
    (c) In accordance with the provisions of 23 U.S.C. 120(j), toll 
revenues that are generated and used by public, quasi-public, and 
private agencies to build, improve, or maintain highways, bridges, or 
tunnels that serve the public purpose of interstate commerce may be used 
as a credit for the non-Federal share of an FHWA planning and research 
funded project.
    (d) In accordance with 23 U.S.C. 505(c) or 23 U.S.C. 104(f)(3), the 
requirement for matching SPR or PL funds may be waived if the FHWA 
determines the interests of the Federal-aid highway program would be 
best served. Waiver of the matching requirement is intended to encourage 
State DOTs and/or MPOs to pool SPR and/or PL funds to address national 
or regional high priority planning or RD&T problems that would benefit 
multiple States and/or MPOs. Requests for waiver of matching 
requirements must be submitted to the FHWA headquarters office for 
approval by the Associate Administrator for Planning and Environment 
(for planning activities) or the Associate Administrator for Research, 
Development, and Technology (for RD&T activities). The matching 
requirement may not be waived for NHS, STP, or MG funds.
    (e) NHS, STP, or MG funds used for eligible planning and RD&T 
purposes must be identified separately from SPR or PL funds in the work 
program(s) and must be administered and accounted for separately for 
fiscal purposes. In accordance with the statewide and metropolitan 
planning process requirements for fiscally constrained transportation 
improvement program (TIPs) planning or RD&T activities funded with NHS, 
STP, or MG funds must be included in the Statewide and/or metropolitan 
TIP(s) unless the State DOT and MPO (for a metropolitan area) agree that 
they may be excluded from the TIP.
    (f) Payment shall be made in accordance with the provisions of 49 
CFR 18.21 or 49 CFR 19.22.



Sec. 420.121  What other requirements apply to the administration
of FHWA planning and research funds?

    (a) Audits. Audits of the State DOTs and their subrecipients shall 
be performed in accordance with OMB Circular A-133, Audits of States, 
Local Governments, and Non-Profit Organizations. \2\ Audits of for-
profit contractors are to be performed in accordance with State DOT or 
subrecipient contract administration procedures.
---------------------------------------------------------------------------

    \2\ See footnote 1.

---------------------------------------------------------------------------

[[Page 97]]

    (b) Copyrights. The State DOTs and their subrecipients may copyright 
any books, publications, or other copyrightable materials developed in 
the course of the FHWA planning and research funded project. The FHWA 
reserves a royalty-free, nonexclusive and irrevocable right to 
reproduce, publish, or otherwise use, and to authorize others to use, 
the work for Government purposes.
    (c) Disadvantaged business enterprises. The State DOTs must 
administer the transportation planning and RD&T program(s) consistent 
with their overall efforts to implement section 1001(b) of the 
Transportation Equity Act for the 21st Century (Pub. L. 105-178) and 49 
CFR part 26 regarding disadvantaged business enterprises.
    (d) Drug free workplace. In accordance with the provisions of 49 CFR 
part 29, subpart F, State DOTs must certify to the FHWA that they will 
provide a drug free workplace. This requirement may be satisfied through 
the annual certification for the Federal-aid highway program.
    (e) Equipment. Acquisition, use, and disposition of equipment 
purchased with FHWA planning and research funds by the State DOTs must 
be in accordance with 49 CFR 18.32(b). Local government subrecipients of 
State DOTs must follow the procedures specified by the State DOT. 
Universities, hospitals, and other non-profit organizations must follow 
the procedures in 49 CFR 19.34.
    (f) Financial management systems. The financial management systems 
of the State DOTs and their local government subrecipients must be in 
accordance with the provisions of 49 CFR 18.20(a). The financial 
management systems of universities, hospitals, and other non-profit 
organizations must be in accordance with 49 CFR 19.21.
    (g) Lobbying. The provisions of 49 CFR part 20 regarding 
restrictions on influencing certain Federal activities are applicable to 
all tiers of recipients of FHWA planning and research funds.
    (h) Nondiscrimination. The nondiscrimination provisions of 23 CFR 
parts 200 and 230 and 49 CFR part 21, with respect to Title VI of the 
Civil Rights Act of 1964 and the Civil Rights Restoration Act of 1987, 
apply to all programs and activities of recipients, subrecipients, and 
contractors receiving FHWA planning and research funds whether or not 
those programs or activities are federally funded.
    (i) Patents. The State DOTs and their subrecipients are subject to 
the provisions of 37 CFR part 401 governing patents and inventions and 
must include or cite the standard patent rights clause at 37 CFR 401.14, 
except for Sec. 401.14(g), in all subgrants or contracts. In addition, 
State DOTs and their subrecipients must include the following clause, 
suitably modified to identify the parties, in all subgrants or 
contracts, regardless of tier, for experimental, developmental or 
research work: ``The subgrantee or contractor will retain all rights 
provided for the State in this clause, and the State will not, as part 
of the consideration for awarding the subgrant or contract, obtain 
rights in the subgrantee's or contractor's subject inventions.''
    (j) Procurement. Procedures for the procurement of property and 
services with FHWA planning and research funds by the State DOTs must be 
in accordance with 49 CFR 18.36(a) and (i) and, if applicable, 18.36(t). 
Local government subrecipients of State DOTs must follow the procedures 
specified by the State DOT. Universities, hospitals, and other non-
profit organizations must follow the procedures in 49 CFR 19.40 through 
19.48. The State DOTs and their subrecipients must not use FHWA funds 
for procurements from persons (as defined in 49 CFR 29.105) who have 
been debarred or suspended in accordance with the provisions of 49 CFR 
part 29, subparts A through E.
    (k) Program income. Program income, as defined in 49 CFR 18.25(b) or 
49 CFR 19.24, must be shown and deducted from total expenditures to 
determine the Federal share to be reimbursed, unless the FHWA Division 
Administrator has given prior approval to use the program income to 
perform additional eligible work or as the non-Federal match.
    (l) Record retention. Recordkeeping and retention requirements must 
be in accordance with 49 CFR 18.42 or 49 CFR 19.53.
    (m) Subgrants to local governments. The State DOTs and subrecipients 
are

[[Page 98]]

responsible for administering FHWA planning and research funds passed 
through to MPOs and local governments, for ensuring that such funds are 
expended for eligible activities, and for ensuring that the funds are 
administered in accordance with this part, 49 CFR part 18, Uniform 
Administrative Requirements for Grants and Agreements to State and Local 
Governments, and applicable OMB cost principles. The State DOTs shall 
follow State laws and procedures when awarding and administering 
subgrants to MPOs and local governments and must ensure that the 
requirements of 49 CFR 18.37(a) have been satisfied.
    (n) Subgrants to universities, hospitals, and other non-profit 
organizations. The State DOTs and subrecipients are responsible for 
ensuring that FHWA planning and research funds passed through to 
universities, hospitals, and other non-profit organizations are expended 
for eligible activities and for ensuring that the funds are administered 
in accordance with this part, 49 CFR part 19, Uniform Administrative 
Requirements for Grants and Agreements with Institutions of Higher 
Education, Hospitals, and Other Non-Profit Organizations, and applicable 
OMB cost principles.
    (o) Suspension and debarment. (1) The State DOTs and their 
subrecipients shall not award grants or cooperative agreements to 
entities who are debarred or suspended, or otherwise excluded from or 
ineligible for participation in Federal assistance programs under 
Executive Order 12549 of February 18, 1986 (3 CFR, 1986 Comp., p. 189); 
and
    (2) The State DOTs and their subrecipients shall comply with the 
provisions of 49 CFR part 29, subparts A through E, for procurements 
from persons (as defined in 49 CFR 29.105) who have been debarred or 
suspended.
    (p) Supplies. Acquisition and disposition of supplies acquired by 
the State DOTs and their subrecipients with FHWA planning and research 
funds must be in accordance with 49 CFR 18.33 or 49 CFR 19.35.



    Subpart B_Research, Development and Technology Transfer Program 
                               Management



Sec. 420.201  What is the purpose of this subpart?

    The purpose of this subpart is to prescribe requirements for 
research, development, and technology transfer (RD&T) activities, 
programs, and studies undertaken by State DOTs and their subrecipients 
with FHWA planning and research funds.



Sec. 420.203  How does the FHWA define the terms used in this 
subpart?

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and subpart A of this part, are applicable to this 
subpart. As used in this subpart:
    Applied research means the study of phenomena to gain knowledge or 
understanding necessary for determining the means by which a recognized 
need may be met; the primary purpose of this kind of research is to 
answer a question or solve a problem.
    Basic research means the study of phenomena, and of observable 
facts, without specific applications towards processes or products in 
mind; the primary purpose of this kind of research is to increase 
knowledge.
    Development means the systematic use of the knowledge or 
understanding gained from research, directed toward the production of 
useful materials, devices, systems or methods, including design and 
development of prototypes and processes.
    Final report means a report documenting a completed RD&T study or 
activity.
    Intermodal RD&T means research, development, and technology transfer 
activities involving more than one mode of transportation, including 
transfer facilities between modes.
    Peer exchange means a periodic review of a State DOT's RD&T program, 
or portion thereof, by representatives of other State DOT's, for the 
purpose of exchange of information or best practices. The State DOT may 
also invite the participation of the FHWA, and other Federal, State, 
regional or local

[[Page 99]]

transportation agencies, the Transportation Research Board, academic 
institutions, foundations or private firms that support transportation 
research, development or technology transfer activities.
    RD&T activity means a basic or applied research project or study, 
development or technology transfer activity.
    Research means a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. Research can be basic 
or applied.
    Technology transfer means those activities that lead to the adoption 
of a new technique or product by users and involves dissemination, 
demonstration, training, and other activities that lead to eventual 
innovation.
    Transportation Research Information Services (TRIS) means the 
database produced and maintained by the Transportation Research Board 
and available online through the National Transportation Library. TRIS 
includes bibliographic records and abstracts of on-going and completed 
RD&T activities. TRIS Online also includes links to the full text of 
public-domain documents.



Sec. 420.205  What is the FHWA's policy for research, development,
and technology transfer funding?

    (a) It is the FHWA's policy to administer the RD&T program 
activities utilizing FHWA planning and research funds consistent with 
the policy specified in Sec. 420.105 and the following general 
principles in paragraphs (b) through (g) of this section.
    (b) The State DOTs must provide information necessary for peer 
exchanges.
    (c) The State DOTs are encouraged to develop, establish, and 
implement an RD&T program, funded with Federal and State DOT resources 
that anticipates and addresses transportation concerns before they 
become critical problems. Further, the State DOTs are encouraged to 
include in this program development and technology transfer programs to 
share the results of their own research efforts and promote the use of 
new technology.
    (d) To promote effective use of available resources, the State DOTs 
are encouraged to cooperate with other State DOTs, the FHWA, and other 
appropriate agencies to achieve RD&T objectives established at the 
national level and to develop a technology transfer program to promote 
and use those results. This includes contributing to cooperative RD&T 
programs such as the NCHRP, the TRB, and transportation pooled fund 
studies as a means of addressing national and regional issues and as a 
means of leveraging funds.
    (e) The State DOTs will be allowed the authority and flexibility to 
manage and direct their RD&T activities as presented in their work 
programs, and to initiate RD&T activities supported by FHWA planning and 
research funds, subject to the limitation of Federal funds and to 
compliance with program conditions set forth in subpart A of this part 
and Sec. 420.207.
    (f) The State DOTs will have primary responsibility for managing 
RD&T activities supported with FHWA planning and research funds carried 
out by other State agencies and organizations and for ensuring that such 
funds are expended for purposes consistent with this subpart.
    (g) Each State DOT must develop, establish, and implement a 
management process that ensures effective use of available FHWA planning 
and research funds for RD&T activities on a statewide basis. Each State 
DOT is permitted to tailor its management process to meet State or local 
needs; however, the process must comply with the minimum requirements 
and conditions of this subpart.
    (h) The State DOTs are encouraged to make effective use of the FHWA 
Division, Resource Center, and Headquarters office expertise in 
developing and carrying out their RD&T activities. Participation of the 
FHWA on advisory panels and in program exchange meetings is encouraged.



Sec. 420.207  What are the requirements for research, development,
and technology transfer work programs?

    (a) The State DOT's RD&T work program must, as a minimum, consist of 
a description of RD&T activities to be accomplished during the program 
period, estimated costs for each eligible

[[Page 100]]

activity, and a description of any cooperative activities including the 
State DOT's participation in any transportation pooled fund studies and 
the NCHRP. The State DOT's work program should include a list of the 
major items with a cost estimate for each item. The work program should 
also include any study funded under a previous work program until a 
final report has been completed for the study.
    (b) The State DOT's RD&T work program must include financial 
summaries showing the funding levels and share (Federal, State, and 
other sources) for RD&T activities for the program year. State DOTs are 
encouraged to include any activity funded 100 percent with State or 
other funds for information purposes.
    (c) Approval and authorization procedures in Sec. 420.115 are 
applicable to the State DOT's RD&T work program.



Sec. 420.209  What are the conditions for approval?

    (a) As a condition for approval of FHWA planning and research funds 
for RD&T activities, a State DOT must develop, establish, and implement 
a management process that identifies and results in implementation of 
RD&T activities expected to address high priority transportation issues. 
The management process must include:
    (1) An interactive process for identification and prioritization of 
RD&T activities for inclusion in an RD&T work program;
    (2) Use of all FHWA planning and research funds set aside for RD&T 
activities, either internally or for participation in transportation 
pooled fund studies or other cooperative RD&T programs, to the maximum 
extent possible;
    (3) Procedures for tracking program activities, schedules, 
accomplishments, and fiscal commitments;
    (4) Support and use of the TRIS database for program development, 
reporting of active RD&T activities, and input of the final report 
information;
    (5) Procedures to determine the effectiveness of the State DOT's 
management process in implementing the RD&T program, to determine the 
utilization of the State DOT's RD&T outputs, and to facilitate peer 
exchanges of its RD&T Program on a periodic basis;
    (6) Procedures for documenting RD&T activities through the 
preparation of final reports. As a minimum, the documentation must 
include the data collected, analyses performed, conclusions, and 
recommendations. The State DOT must actively implement appropriate 
research findings and should document benefits; and
    (7) Participation in peer exchanges of its RD&T management process 
and of other State DOTs' programs on a periodic basis. To assist peer 
exchange teams in conducting an effective exchange, the State DOT must 
provide to them the information and documentation required to be 
collected and maintained under this subpart. Travel and other costs 
associated with the State DOT's peer exchange may be identified as a 
line item in the State DOT's work program and will be eligible for 100 
percent Federal funding. The peer exchange team must prepare a written 
report of the exchange.
    (b) Documentation that describes the State DOT's management process 
and the procedures for selecting and implementing RD&T activities must 
be developed by the State DOT and submitted to the FHWA Division office 
for approval. Significant changes in the management process also must be 
submitted by the State DOT to the FHWA for approval. The State DOT must 
make the documentation available, as necessary, to facilitate peer 
exchanges.
    (c) The State DOT must include a certification that it is in full 
compliance with the requirements of this subpart in each RD&T work 
program. If the State DOT is unable to certify full compliance, the FHWA 
Division Administrator may grant conditional approval of the State DOT's 
work program. A conditional approval must cite those areas of the State 
DOT's management process that are deficient and require that the 
deficiencies be corrected within 6 months of conditional approval. The 
certification must consist of a statement signed by the Administrator, 
or an official designated by the Administrator, of the State DOT 
certifying as follows: ``I (name of certifying official), (position 
title), of the State (Commonwealth) of --------, do hereby

[[Page 101]]

certify that the State (Commonwealth) is in compliance with all 
requirements of 23 U.S.C. 505 and its implementing regulations with 
respect to the research, development, and technology transfer program, 
and contemplate no changes in statutes, regulations, or administrative 
procedures which would affect such compliance.''
    (d) The FHWA Division Administrator shall periodically review the 
State DOT's management process to determine if the State is in 
compliance with the requirements of this subpart. If the Division 
Administrator determines that a State DOT is not complying with the 
requirements of this subpart, or is not performing in accordance with 
its RD&T management process, the FHWA Division Administrator shall issue 
a written notice of proposed determination of noncompliance to the State 
DOT. The notice will set forth the reasons for the proposed 
determination and inform the State DOT that it may reply in writing 
within 30 calendar days from the date of the notice. The State DOT's 
reply should address the deficiencies cited in the notice and provide 
documentation as necessary. If the State DOT and the Division 
Administrator cannot resolve the differences set forth in the 
determination of nonconformity, the State DOT may appeal to the Federal 
Highway Administrator whose action shall constitute the final decision 
of the FHWA. An adverse decision shall result in immediate withdrawal of 
approval of FHWA planning and research funds for the State DOT's RD&T 
activities until the State DOT is in full compliance.

(The information collection requirements in Sec. 420.209 have been 
approved by the OMB and assigned control number 2125-0039)



PART 450_PLANNING ASSISTANCE AND STANDARDS--Table of Contents



      Subpart A_Transportation Planning and Programming Definitions

Sec.
450.100 Purpose.
450.102 Applicability.
450.104 Definitions.

  Subpart B_Statewide and Nonmetropolitan Transportation Planning and 
                               Programming

450.200 Purpose.
450.202 Applicability.
450.204 Definitions.
450.206 Scope of the statewide and nonmetropolitan 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 of programmatic mitigation plans.
450.216 Development and content of the long-range statewide 
          transportation plan.
450.218 Development and content of the statewide transportation 
          improvement program (STIP).
450.220 Self-certifications, Federal findings, and Federal approvals.
450.222 Project selection from the STIP.
450.224 Applicability of NEPA to statewide transportation plans and 
          programs.
450.226 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.
450.318 Transportation planning studies and project development.
450.320 Development of programmatic mitigation plans.
450.322 Congestion management process in transportation management 
          areas.
450.324 Development and content of the metropolitan transportation plan.
450.326 Development and content of the transportation improvement 
          program (TIP).
450.328 TIP revisions and relationship to the STIP.
450.330 TIP action by the FHWA and the FTA.
450.332 Project selection from the TIP.
450.334 Annual listing of obligated projects.

[[Page 102]]

450.336 Self-certifications and Federal certifications.
450.338 Applicability of NEPA to metropolitan transportation plans and 
          programs.
450.340 Phase-in of new requirements.

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

    Authority: 23 U.S.C. 134 and 135; 42 U.S.C. 7410 et seq.; 49 U.S.C. 
5303 and 5304; 49 CFR 1.85 and 1.90.

    Source: 81 FR 34135, May 27, 2016, unless otherwise noted.



      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 minor revision to a long-range 
statewide or metropolitan transportation plan, Transportation 
Improvement Program (TIP), or Statewide Transportation Improvement 
Program (STIP) that includes minor changes to project/project phase 
costs, minor changes to funding sources of previously included projects, 
and minor changes to project/project phase initiation dates. An 
administrative modification is a revision that does not require public 
review and comment, a redemonstration of fiscal constraint, or a 
conformity determination (in nonattainment and maintenance areas).
    Amendment means a revision to a long-range statewide or metropolitan 
transportation plan, TIP, or STIP that involves a major change to a 
project included in a metropolitan transportation plan, TIP, or STIP, 
including the addition or deletion of a project or a major change in 
project cost, project/project phase initiation dates, or a major change 
in design concept or design scope (e.g., changing project termini or the 
number of through traffic lanes or changing the number of stations in 
the case of fixed guideway transit projects). Changes to projects that 
are included only for illustrative purposes do not require an amendment. 
An amendment is a revision that requires public review and comment and a 
redemonstration of fiscal constraint. If an amendment involves ``non-
exempt'' projects in nonattainment and maintenance areas, a conformity 
determination is required.
    Asset management means a strategic and systematic process of 
operating, maintaining, and improving physical assets, with a focus on 
both engineering and economic analysis based upon quality information, 
to identify a structured sequence of maintenance, preservation, repair, 
rehabilitation, and replacement actions that will achieve and sustain a 
desired state of good repair over the lifecycle of the assets at minimum 
practicable cost.
    Attainment area means any geographic area in which levels of a given 
criteria air pollutant (e.g., ozone, carbon monoxide, PM10, 
PM2.5, and nitrogen dioxide) meet the health-based National 
Ambient Air Quality Standards (NAAQS) for that pollutant. An area may be 
an attainment area for one pollutant and a nonattainment area for 
others. A ``maintenance area'' (see definition in this section) is not 
considered an attainment area for transportation planning purposes.
    Available funds means 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 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

[[Page 103]]

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. For projects involving 49 U.S.C. 5309 funding, 
execution of a Full Funding Grant Agreement (or equivalent) or an 
Expedited Grant Agreement (or equivalent) with the DOT shall be 
considered a multiyear commitment of Federal funds.
    Conformity means a Clean Air Act (42 U.S.C. 7506(c)) requirement 
that ensures that Federal funding and approval are given to 
transportation plans, programs and projects that are consistent with the 
air quality goals established by a State Implementation Plan (SIP). 
Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the NAAQS or any required 
interim emission reductions or other milestones in any nonattainment or 
maintenance area. The transportation conformity regulations (40 CFR part 
93, subpart A) sets forth policy, criteria, and procedures for 
demonstrating and assuring conformity of transportation activities.
    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 travel demand reduction and 
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. This definition does 
not apply to the ``consultation'' performed by the States and the 
Metropolitan Planning Organizations (MPOs) in comparing the long-range 
statewide transportation plan and the metropolitan transportation plan, 
respectively, to State and tribal conservation plans or maps or 
inventories of natural or historic resources (see section 450.216(j) and 
sections 450.324(g)(1) and (g)(2)).
    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 locally developed, coordinated transportation plan that identifies the 
transportation needs of individuals with disabilities, older adults, and 
people with low incomes, provides strategies for meeting those local 
needs, and prioritizes transportation services for funding and 
implementation.
    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 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,

[[Page 104]]

safety features, access control including approximate number and 
location of interchanges, or preferential treatment for high-occupancy 
vehicles).
    Designated recipient means an entity designated, in accordance with 
the planning process under 49 U.S.C. 5303 and 5304, by the Governor of a 
State, responsible local officials, and publicly owned operators of 
public transportation, to receive and apportion amounts under 49 U.S.C. 
5336 that are attributable to urbanized areas of 200,000 or more in 
population, or a State or regional authority if the authority is 
responsible under the laws of a State for a capital project and for 
financing and directly providing public transportation.
    Environmental mitigation activities means strategies, policies, 
programs, and actions that, over time, will serve to avoid, minimize, 
rectify, reduce or eliminate impacts to environmental resources 
associated with the implementation of a long-range statewide 
transportation plan or metropolitan transportation plan.
    Expedited Grant Agreement (EGA) means a contract that defines the 
scope of a Small Starts project, the Federal financial contribution, and 
other terms and conditions, in accordance with 49 U.S.C. 5309(h)(7).
    Federal land management agency means units of the 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.
    Financial plan means documentation required to be included with a 
metropolitan transportation plan and TIP (and optional for the long-
range statewide transportation plan and STIP) that demonstrates the 
consistency between reasonably available and projected sources of 
Federal, State, local, and private revenues and the costs of 
implementing proposed transportation system improvements.
    Financially constrained or Fiscal constraint means that the 
metropolitan transportation plan, TIP, and STIP includes sufficient 
financial information for demonstrating that projects in the 
metropolitan transportation plan, TIP, and STIP can be implemented using 
committed, available, or reasonably available revenue sources, with 
reasonable assurance that the federally supported transportation system 
is being adequately operated and maintained. For the TIP and the STIP, 
financial constraint/fiscal constraint applies to each program year. 
Additionally, projects in air quality nonattainment and maintenance 
areas can be included in the first 2 years of the TIP and STIP only if 
funds are ``available'' or ``committed.''
    Freight shippers means any entity that routinely transport cargo 
from one location to another by providers of freight transportation 
services or by their own operations, involving one or more travel modes.
    Full Funding Grant Agreement (FFGA) means an instrument that defines 
the scope of a project, the Federal financial contribution, and other 
terms and conditions for funding New Starts projects as required by 49 
U.S.C. 5309(k)(2).
    Governor means the Governor of any of the 50 States or the 
Commonwealth of Puerto Rico or the Mayor of the District of Columbia.
    Highway Safety Improvement Program (HSIP) means a State safety 
program with the purpose to reduce fatalities and serious injuries on 
all public roads through the implementation of the provisions of 23 
U.S.C. 130, 148, and 150 including the development of a Strategic 
Highway Safety Plan (SHSP), Railway-Highway Crossings Program, and 
program of highway safety improvement projects.
    Illustrative project means an additional transportation project that 
may be included in a financial plan for a metropolitan transportation 
plan, TIP, or STIP if reasonable additional resources were to become 
available.

[[Page 105]]

    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 Environmental Protection Agency (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 175A of the Clean Air Act, as amended (42 U.S.C. 7505a).
    Management system means a systematic process, designed to assist 
decision makers in selecting cost effective strategies/actions to 
improve the efficiency or safety of, and protect the investment in the 
nation's infrastructure. A management system can include: 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 agreement means a written agreement between 
the MPO(s), the State(s), and the providers of public transportation 
serving the metropolitan planning area that describes how they will work 
cooperatively to meet their mutual responsibilities in carrying out the 
metropolitan transportation planning process.
    Metropolitan planning area (MPA) means the geographic area 
determined by agreement between the MPO(s) for the area and the 
Governor(s), which must at a minimum include the entire urbanized area 
and the contiguous area expected to become urbanized within a 20-year 
forecast period for the metropolitan transportation plan, and may 
include additional areas.
    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 addressing no less than a 20-year planning horizon, 
that is developed, adopted, and updated by the MPO or MPOs through the 
metropolitan transportation planning process for the MPA.
    National Ambient Air Quality Standard (NAAQS) means those standards 
established pursuant to section 109 of the Clean Air Act (42 U.S.C. 
7409).
    Nonattainment area means any geographic region of the United States 
that EPA designates as a nonattainment area under section 107 of the 
Clean Air Act (42 U.S.C. 7407) for any pollutants for which an NAAQS 
exists.
    Nonmetropolitan area means a geographic area outside a designated 
metropolitan planning area.
    Nonmetropolitan local officials means elected and appointed 
officials of general purpose local government in a nonmetropolitan 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 State or 
designated recipient authorized and committed the supporting Federal 
funds in preceding or

[[Page 106]]

current program years, and authorized by the FHWA or awarded as a grant 
by the FTA.
    Operational and management strategies means actions and strategies 
aimed at improving the performance of existing and planned 
transportation facilities to relieve congestion and maximize the safety 
and mobility of people and goods.
    Performance measure refers to ``Measure'' as defined in 23 CFR 
490.101.
    Performance metric refers to ``Metric'' as defined in 23 CFR 
490.101.
    Performance target refers to ``Target'' as defined in 23 CFR 
490.101.
    Project selection means the procedures followed by MPOs, States, and 
public transportation operators to advance projects from the first 4 
years of an approved TIP and/or STIP to implementation, in accordance 
with agreed upon procedures.
    Provider of freight transportation services means any entity that 
transports or otherwise facilitates the movement of cargo from one 
location to another for others or for itself.
    Public transportation agency safety plan means a comprehensive plan 
established by a State or recipient of funds under Title 49, Chapter 53 
and in accordance with 49 U.S.C. 5329(d).
    Public transportation operator means the public entity or 
government-approved authority that participates in the continuing, 
cooperative, and comprehensive transportation planning process in 
accordance with 23 U.S.C. 134 and 135 and 49 U.S.C. 5303 and 5304, and 
is a recipient of Federal funds under title 49 U.S.C. Chapter 53 for 
transportation by a conveyance that provides regular and continuing 
general or special transportation to the public, but does not include 
sightseeing, school bus, charter, certain types of shuttle service, 
intercity bus transportation, or intercity passenger rail transportation 
provided by Amtrak.
    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 TIP and/or STIP or exempt 
projects as defined in EPA's transportation conformity regulations (40 
CFR part 93, subpart A)) that is on a facility that 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 principal arterial highways and all fixed guideway transit 
facilities that offer an alternative to regional highway travel.
    Regional Transportation Planning Organization (RTPO) means a policy 
board of nonmetropolitan local officials or their designees created to 
carry out the regional transportation planning process.
    Revision means a change to a long-range statewide or metropolitan 
transportation plan, TIP, or STIP that occurs between scheduled periodic 
updates. A major revision is an ``amendment'' while a minor revision is 
an ``administrative modification.''
    Scenario planning means a planning process that evaluates the 
effects of alternative policies, plans and/or programs on the future of 
a community or region. This activity should provide information to 
decision makers as they develop the transportation plan.
    State means any one of the 50 States, the District of Columbia, or 
Puerto Rico.
    State Implementation Plan (SIP) means, as defined in section 302(q) 
of the Clean Air Act (CAA) (42 U.S.C. 7602(q)), the portion (or 
portions) of the implementation plan, or most recent revision thereof, 
which has been approved under section 110 of the CAA (42 U.S.C. 7410), 
or promulgated under section 110(c) of the CAA (42 U.S.C. 7410(c)), or 
promulgated or approved pursuant to regulations promulgated under 
section 301(d) of the CAA (42 U.S.C. 7601(d)) and which implements the 
relevant requirements of the CAA.
    Statewide Transportation Improvement Program (STIP) means a 
statewide prioritized listing/program of transportation projects 
covering a period of 4 years that is consistent with the long-

[[Page 107]]

range statewide transportation plan, metropolitan transportation plans, 
and TIPs, and required for projects to be eligible for funding under 
title 23 U.S.C. and title 49 U.S.C. Chapter 53.
    Strategic Highway Safety Plan means a comprehensive, multiyear, 
data-driven plan, developed by a State DOT in accordance with the 23 
U.S.C. 148.
    Transit Asset Management Plan means a plan that includes an 
inventory of capital assets, a condition assessment of inventoried 
assets, a decision support tool, and a prioritization of investments.
    Transit Asset Management System means a strategic and systematic 
process of operating, maintaining, and improving public transportation 
capital assets effectively, throughout the life cycles of those assets.
    Transportation Control Measure (TCM) means any measure that is 
specifically identified and committed to in the applicable SIP, 
including a substitute or additional TCM that is incorporated into the 
applicable SIP through the process established in CAA section 176(c)(8), 
that is either one of the types listed in section 108 of the CAA (42 
U.S.C. 7408) 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 prioritized 
listing/program of transportation projects covering a period of 4 years 
that is developed and formally adopted by an MPO or MPOs as part of the 
metropolitan transportation planning process for the MPA, consistent 
with the metropolitan transportation plan, and required for projects to 
be eligible for funding under title 23 U.S.C. and title 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 making current a long-range statewide transportation 
plan, metropolitan transportation plan, TIP, or STIP through a 
comprehensive review. Updates require public review and comment, a 20-
year horizon for metropolitan transportation plans and long-range 
statewide transportation plans, a 4-year program period for TIPs and 
STIPs, demonstration of fiscal constraint (except for long-range 
statewide transportation plans), and a conformity determination (for 
metropolitan transportation plans and TIPs in nonattainment and 
maintenance areas).
    Urbanized area (UZA) 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 used 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 GIS- or web-based surveys, inventories, 
maps, pictures, and/or displays identifying features such as roadway 
rights of way, transit, intermodal, and non-motorized transportation 
facilities, historic and cultural resources, natural resources, and 
environmentally sensitive areas, to promote improved understanding of 
existing or proposed transportation plans and programs.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93469, Dec. 20, 2016]

[[Page 108]]



  Subpart B_Statewide and Nonmetropolitan Transportation Planning and 
                               Programming



Sec. 450.200  Purpose.

    The purpose of this subpart is to implement the provisions of 23 
U.S.C. 135, 23 U.S.C. 150, and 49 U.S.C. 5304, as amended, which require 
each State to carry out a continuing, cooperative, and comprehensive 
performance-based statewide multimodal transportation planning process, 
including the development of a long-range statewide transportation plan 
and 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, bicycle transportation facilities, and intermodal facilities 
that support intercity transportation, including intercity bus 
facilities and commuter van pool providers) and that fosters economic 
growth and development within and between States and urbanized areas, 
and take into consideration resiliency needs while minimizing 
transportation-related 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., MPOs, RTPOs 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 and nonmetropolitan 
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 nonmetropolitan areas, especially by enabling 
global competitiveness, productivity, and efficiency;
    (2) Increase the safety of the transportation system for motorized 
and non-motorized users;
    (3) Increase the security of the transportation system for 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;
    (8) Emphasize the preservation of the existing transportation 
system;
    (9) Improve the resiliency and reliability of the transportation 
system and reduce or mitigate stormwater impacts of surface 
transportation; and
    (10) Enhance travel and tourism.
    (b) Consideration of the planning factors in paragraph (a) of this 
section shall be reflected, as appropriate, in the statewide 
transportation planning process. The degree of consideration and 
analysis of the factors should be based on the scale and complexity of 
many issues, including transportation systems development, land use, 
employment, economic development, human and natural environment 
(including Section 4(f) properties as defined in 23 CFR 774.17), and 
housing and community development.
    (c) Performance-based approach. (1) The statewide transportation 
planning process shall provide for the establishment and use of a 
performance-based approach to transportation decisionmaking to support 
the national goals

[[Page 109]]

described in 23 U.S.C. 150(b) and the general purposes described in 49 
U.S.C. 5301.
    (2) Each State shall select and establish performance targets in 
coordination with the relevant MPOs to ensure consistency to the maximum 
extent practicable. The targets shall address the performance areas 
described in 23 U.S.C. 150(c), and the measures established under 23 CFR 
part 490, where applicable, to use in tracking progress toward 
attainment of critical outcomes for the State. States shall establish 
performance targets that reflect the measures identified in 23 U.S.C. 
150(c) not later than 1 year after the effective date of the DOT final 
rule on performance measures. Each State shall select and establish 
targets under this paragraph in accordance with the appropriate target 
setting framework established at 23 CFR part 490.
    (3) In areas not represented by an MPO, the selection of public 
transportation performance targets by a State shall be coordinated, to 
the maximum extent practicable, with providers of public transportation 
to ensure consistency with the performance targets that public 
transportation providers establish under 49 U.S.C. 5326(c) and 49 U.S.C. 
5329(d).
    (4) A State shall integrate into the statewide transportation 
planning process, directly or by reference, the goals, objectives, 
performance measures, and targets described in this section, in other 
State transportation plans and transportation processes, as well as any 
plans developed pursuant to chapter 53 of title 49 by providers of 
public transportation in areas not represented by an MPO required as 
part of a performance-based program. Examples of such plans and 
processes include the HSIP, SHSP, the State Asset Management Plan for 
the National Highway System (NHS), the State Freight Plan (if the State 
has one), the Transit Asset Management Plan, and the Public 
Transportation Agency Safety Plan.
    (5) A State shall consider the performance measures and targets 
established under this paragraph when developing policies, programs, and 
investment priorities reflected in the long-range statewide 
transportation plan and statewide transportation improvement program.
    (d) The failure to consider any factor specified in paragraph (a) or 
(c) of this section shall not be subject to review by any court under 
title 23 U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5 U.S.C. 
Chapter 5, or title 5 U.S.C. Chapter 7 in any matter affecting a long-
range statewide transportation plan, STIP, project or strategy, or the 
statewide transportation planning process findings.
    (e) Funds provided under 23 U.S.C. 505 and 49 U.S.C. 5305(e) are 
available to the State to accomplish activities described in this 
subpart. At the State's option, funds provided under 23 U.S.C. 104(b)(2) 
and 49 U.S.C. 5307, 5310, and 5311 may also be used for statewide 
transportation planning. A State shall document statewide transportation 
planning activities performed with funds provided under title 23 U.S.C. 
and title 49 U.S.C. Chapter 53 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, at a minimum:
    (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. When 
carrying out transportation planning activities under this part, the 
State and MPOs shall coordinate on information, studies, or analyses for 
portions of the transportation system located in MPAs. The State(s), the 
MPO(s), and the operators of public transportation must have a current 
metropolitan planning agreement, which will identify coordination 
strategies that support cooperative decisionmaking and the resolution of 
disagreements;
    (2) Coordinate planning carried out under this subpart with 
statewide trade and economic development planning activities and related 
multistate planning efforts;

[[Page 110]]

    (3) Consider the concerns of Federal land management agencies that 
have jurisdiction over land within the boundaries of the State;
    (4) Cooperate with affected local elected and appointed officials 
with responsibilities for transportation, or, if applicable, through 
RTPOs described in section 450.210(d) in nonmetropolitan areas;
    (5) Consider the concerns of Indian Tribal governments that have 
jurisdiction over land within the boundaries of the State;
    (6) Consider related planning activities being conducted outside of 
metropolitan planning areas and between States; and
    (7) Coordinate data collection and analyses with MPOs and public 
transportation operators 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. The right to alter, amend, or repeal interstate 
compacts entered into under this part is expressly reserved.
    (d) States may use any one or more of the management systems (in 
whole or in part) described in 23 CFR part 500.
    (e) In carrying out the statewide transportation planning process, 
States should apply asset management principles and techniques 
consistent with the State Asset Management Plan for the NHS and the 
Transit Asset Management Plan, and Public Transportation Agency Safety 
Plan in establishing planning goals, defining STIP priorities, and 
assessing transportation investment decisions, including transportation 
system safety, operations, preservation, and maintenance.
    (f) For non-NHS highways, States may apply principles and techniques 
consistent with other asset management plans to the transportation 
planning and programming processes, as appropriate.
    (g) The statewide transportation planning process shall (to the 
maximum extent practicable) be consistent with the development of 
applicable regional intelligent transportation systems (ITS) 
architectures, as defined in 23 CFR part 940.
    (h) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, should be 
coordinated and consistent with the statewide transportation planning 
process.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93469, Dec. 20, 2016]



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 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 individuals, affected public agencies, 
representatives of public transportation employees, public ports, 
freight shippers, private providers of transportation (including 
intercity bus operators), 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

[[Page 111]]

time for public review and comment at key decision points, including 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.
    (3) With respect to the setting of targets, nothing in this part 
precludes a State from considering comments made as part of the State's 
public involvement process.
    (b) The State shall provide for nonmetropolitan 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 cooperating with nonmetropolitan 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 cooperative process(es), the State shall 
provide copies of the process document(s) to the FHWA and the FTA for 
informational purposes.
    (1) At least once every 5 years, the State shall review and solicit 
comments from nonmetropolitan local officials and other interested 
parties for a period of not less than 60 calendar days regarding the 
effectiveness of the cooperative process and any proposed changes. The 
State shall direct a specific request for comments to the State 
association of counties, State municipal league, regional planning 
agencies, or directly to nonmetropolitan local officials.
    (2) The State, at its discretion, is responsible for determining 
whether to adopt any proposed changes. If a proposed change is not 
adopted, the State shall make publicly available its reasons for not 
accepting the proposed change, including notification to nonmetropolitan 
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 the Interior. States shall, to the extent 
practicable, develop a documented process(es) that outlines roles, 
responsibilities, and key decision points for consulting with Indian 
Tribal governments and Department of the Interior in the development of 
the long-range statewide transportation plan and the STIP.

[[Page 112]]

    (d) To carry out the transportation planning process required by 
this section, a Governor may establish and designate RTPOs to enhance 
the planning, coordination, and implementation of the long-range 
statewide transportation plan and STIP, with an emphasis on addressing 
the needs of nonmetropolitan areas of the State. In order to be treated 
as an RTPO for purposes of this Part, any existing regional planning 
organization must be established and designated as an RTPO under this 
section.
    (1) Where established, an RTPO shall be a multijurisdictional 
organization of nonmetropolitan local officials or their designees who 
volunteer for such organization and representatives of local 
transportation systems who volunteer for such organization.
    (2) An RTPO shall establish, at a minimum:
    (i) A policy committee, the majority of which shall consist of 
nonmetropolitan local officials, or their designees, and, as 
appropriate, additional representatives from the State, private 
business, transportation service providers, economic development 
practitioners, and the public in the region; and
    (ii) A fiscal and administrative agent, such as an existing regional 
planning and development organization, to provide professional planning, 
management, and administrative support.
    (3) The duties of an RTPO shall include:
    (i) Developing and maintaining, in cooperation with the State, 
regional long-range multimodal transportation plans;
    (ii) Developing a regional TIP for consideration by the State;
    (iii) Fostering the coordination of local planning, land use, and 
economic development plans with State, regional, and local 
transportation plans and programs;
    (iv) Providing technical assistance to local officials;
    (v) Participating in national, multistate, and State policy and 
planning development processes to ensure the regional and local input of 
nonmetropolitan areas;
    (vi) Providing a forum for public participation in the statewide and 
regional transportation planning processes;
    (vii) Considering and sharing plans and programs with neighboring 
RTPOs, MPOs, and, where appropriate, Indian Tribal Governments; and
    (viii) Conducting other duties, as necessary, to support and enhance 
the statewide planning process under Sec. 450.206.
    (4) If a State chooses not to establish or designate an RTPO, the 
State shall consult with affected nonmetropolitan local officials to 
determine projects that may be of regional significance.



Sec. 450.212  Transportation planning studies and project development.

    (a) Pursuant to section 1308 of the Transportation Equity Act for 
the 21st Century, TEA-21 (Pub. L. 105-178), a State(s), MPO(s), or 
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the statewide 
transportation planning process. To the extent practicable, development 
of these transportation planning studies shall involve consultation 
with, or joint efforts among, the State(s), MPO(s), and/or public 
transportation operator(s). The results or decisions of these 
transportation planning studies may be used as part of the overall 
project development process consistent with 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 result in producing 
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 (e.g., 
highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Basic description of the environmental setting; and/or

[[Page 113]]

    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents or other source material produced 
by, or in support of, the transportation planning process described in 
this subpart may be incorporated directly or by reference into 
subsequent NEPA documents, in accordance with 40 CFR 1502.21, if:
    (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 systems-level, corridor, or subarea planning study is 
conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Reasonable opportunity to comment during the statewide 
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 tiering (as described in 40 CFR 1502.20), 
incorporating the subarea or corridor planning study into the draft 
Environmental Impact Statement or Environmental Assessment, or other 
means that the NEPA lead agencies deem appropriate. Additional 
information to further explain the linkages between the transportation 
planning and project development/NEPA processes is contained in Appendix 
A to this part, including an explanation that is non-binding guidance 
material. The guidance in Appendix A applies only to paragraphs (a)-(c) 
in this section.
    (d) In addition to the process for incorporation directly or by 
reference outlined in paragraph (b) of this section, an additional 
authority for integrating planning products into the environmental 
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 168(f):
    (1) The statutory authority in 23 U.S.C. 168 shall not be construed 
to limit in any way the continued use of processes established under 
other parts of this section or under an authority established outside 
this part, and the use of one of the processes in this section does not 
preclude the subsequent use of another process in this section or an 
authority outside of this part.
    (2) The statute does not restrict the initiation of the 
environmental review process during planning.



Sec. 450.214  Development of programmatic mitigation plans.

    (a) A State may utilize the optional framework in this section to 
develop programmatic mitigation plans as part of the statewide 
transportation planning process to address the potential environmental 
impacts of future transportation projects. The State in consultation 
with FHWA and/or FTA and with the agency or agencies with jurisdiction 
and special expertise over the resources being addressed in the plan, 
will determine:
    (1) Scope. (i) A State may develop a programmatic mitigation plan on 
a local, regional, ecosystem, watershed, statewide or similar scale.
    (ii) The plan may encompass multiple environmental resources within 
a defined geographic area(s) or may focus on a specific type(s) of 
resource(s) such as aquatic resources, parkland, or wildlife habitat.
    (iii) The plan may address or consider impacts from all projects in 
a defined geographic area(s) or may focus on a specific type(s) of 
project(s).
    (2) Contents. The programmatic mitigation plan may include:
    (i) An assessment of the existing condition of natural and human 
environmental resources within the area covered by the plan, including 
an assessment of historic and recent trends and/or any potential threats 
to those resources.
    (ii) An identification of economic, social, and natural and human 
environmental resources within the geographic

[[Page 114]]

area that may be impacted and considered for mitigation. Examples of 
these resources include wetlands, streams, rivers, stormwater, 
parklands, cultural resources, historic resources, farmlands, 
archeological resources, threatened or endangered species, and critical 
habitat. This may include the identification of areas of high 
conservation concern or value, and thus worthy of avoidance.
    (iii) An inventory of existing or planned environmental resource 
banks for the impacted resource categories such as wetland, stream, 
stormwater, habitat, species, and an inventory of federally, State, or 
locally approved in-lieu-of-fee programs.
    (iv) An assessment of potential opportunities to improve the overall 
quality of the identified environmental resources through strategic 
mitigation for impacts of transportation projects, which may include the 
prioritization of parcels or areas for acquisition and/or potential 
resource banking sites.
    (v) An adoption or development of standard measures or operating 
procedures for mitigating certain types of impacts; establishment of 
parameters for determining or calculating appropriate mitigation for 
certain types of impacts, such as mitigation ratios, or criteria for 
determining appropriate mitigation sites.
    (vi) Adaptive management procedures, such as protocols or procedures 
that involve monitoring actual impacts against predicted impacts over 
time and adjusting mitigation measures in response to information 
gathered through the monitoring.
    (vii) Acknowledgment of specific statutory or regulatory 
requirements that must be satisfied when determining appropriate 
mitigation for certain types of resources.
    (b) A State may adopt a programmatic mitigation plan developed 
pursuant to paragraph (a), or developed pursuant to an alternative 
process as provided for in paragraph (f) of this section through the 
following process:
    (1) Consult with each agency with jurisdiction over the 
environmental resources considered in the programmatic mitigation plan;
    (2) Make available a draft of the programmatic mitigation plan for 
review and comment by appropriate environmental resource agencies and 
the public;
    (3) Consider comments received from such agencies and the public on 
the draft plan; and
    (4) Address such comments in the final programmatic mitigation plan.
    (c) A State may integrate a programmatic mitigation plan with other 
plans, including, watershed plans, ecosystem plans, species recovery 
plans, growth management plans, State Wildlife Action Plans, and land 
use plans.
    (d) If a programmatic mitigation plan has been adopted pursuant to 
paragraph (b), any Federal agency responsible for environmental reviews, 
permits, or approvals for a transportation project shall give 
substantial weight to the recommendations in the programmatic mitigation 
plan when carrying out its responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) or 
other Federal environmental law.
    (e) Nothing in this section limits the use of programmatic 
approaches for reviews under NEPA.
    (f) Nothing in this section prohibits the development, as part of or 
separate from the transportation planning process, of a programmatic 
mitigation plan independent of the framework described in paragraph (a) 
of this section. Further, nothing in this section prohibits the adoption 
of a programmatic mitigation plan in the statewide and nonmetropolitan 
transportation planning process that was developed under another 
authority, independent of the framework described in paragraph (a).



Sec. 450.216  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 at the time of adoption, 
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,

[[Page 115]]

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 including consideration of the role 
that intercity buses may play in reducing congestion, pollution, and 
energy consumption in a cost-effective manner and strategies and 
investments that preserve and enhance intercity bus systems, including 
systems that are privately owned and operated. The long-range statewide 
transportation plan may consider projects and strategies that address 
areas or corridors where current or projected congestion threatens the 
efficient functioning of key elements of the State's 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), as appropriate, that were relevant to 
the development of the long-range statewide transportation plan.
    (d) The long-range statewide transportation plan should integrate 
the priorities, goals, countermeasures, strategies, or projects 
contained in the HSIP, including the SHSP, required under 23 U.S.C. 148, 
the Public Transportation Agency Safety Plan required under 49 U.S.C. 
5329(d), or an Interim Agency Safety Plan in accordance with 49 CFR part 
659, as in effect until completion of the Public Transportation Agency 
Safety Plan.
    (e) The long-range statewide transportation plan should include a 
security element that incorporates or summarizes the priorities, goals, 
or projects set forth in other transit safety and security planning and 
review processes, plans, and programs, as appropriate.
    (f) The statewide transportation plan shall include:
    (1) A description of the performance measures and performance 
targets used in assessing the performance of the transportation system 
in accordance with Sec. 450.206(c); and
    (2) A system performance report and subsequent updates evaluating 
the condition and performance of the transportation system with respect 
to the performance targets described in Sec. 450.206(c), including 
progress achieved by the MPO(s) in meeting the performance targets in 
comparison with system performance recorded in previous reports.
    (g) Within each metropolitan area of the State, the State shall 
develop the long-range statewide transportation plan in cooperation with 
the affected MPOs.
    (h) For nonmetropolitan areas, the State shall develop the long-
range statewide transportation plan in cooperation with affected 
nonmetropolitan local officials with responsibility for transportation 
or, if applicable, through RTPOs described in Sec. 450.210(d) using the 
State's cooperative process(es) established under Sec. 450.210(b).
    (i) For each area of the State under the jurisdiction of an Indian 
Tribal government, the State shall develop the long-range statewide 
transportation plan in consultation with the Tribal government and the 
Secretary of the Interior consistent with Sec. 450.210(c).
    (j) The State shall develop the long-range statewide transportation 
plan, 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.
    (k) A long-range statewide transportation plan shall include a 
discussion of potential environmental mitigation activities and 
potential areas to carry

[[Page 116]]

out these activities, including activities that may have the greatest 
potential to restore and maintain the environmental functions affected 
by the long-range statewide transportation plan. The discussion may 
focus on policies, programs, or strategies, rather than at the project 
level. The State shall develop the discussion in consultation with 
applicable Federal, State, regional, local and Tribal land management, 
wildlife, and regulatory agencies. The State may establish reasonable 
timeframes for performing this consultation.
    (l) In developing and updating the long-range statewide 
transportation plan, the State shall provide:
    (1) To nonmetropolitan local elected officials, or, if applicable, 
through RTPOs described in Sec. 450.210(d), an opportunity to 
participate in accordance with Sec. 450.216(h); and
    (2) To individuals, affected public agencies, representatives of 
public transportation employees, public ports, freight shippers, private 
providers of transportation (including intercity bus operators, 
employer-based cash-out program, shuttle program, or telework program), 
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 use the public 
involvement process described under Sec. 450.210(a).
    (m) 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. In addition, for illustrative 
purposes, the financial plan may include additional projects that the 
State would include in the adopted long-range statewide transportation 
plan if additional resources beyond those identified in the financial 
plan were to become available. The financial plan may include an 
assessment of the appropriateness of innovative finance techniques (for 
example, tolling, pricing, bonding, public-private partnerships, or 
other strategies) as revenue sources.
    (n) The State is not required to select any project from the 
illustrative list of additional projects included in the financial plan 
described in paragraph (m) of this section.
    (o) The State shall publish or otherwise make available the long-
range statewide transportation plan 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. 450.210(a).
    (p) 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.
    (q) The State shall provide copies of any new or amended long-range 
statewide transportation plan documents to the FHWA and the FTA for 
informational purposes.



Sec. 450.218  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 no less than 4 years and shall be updated at least every 4 years, or 
more frequently if the Governor of the State elects a more frequent 
update cycle. However, if the STIP covers more than 4 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), the State may develop a 
partial STIP covering the rest of the State.
    (b) For each metropolitan area in the State, the State shall develop 
the STIP in cooperation with the MPO(s) designated for the metropolitan 
area. The

[[Page 117]]

State shall include each metropolitan TIP without change in the STIP, 
directly or by reference, after approval of the TIP by the MPO(s) and 
the Governor. A metropolitan TIP in a nonattainment or maintenance area 
is subject to a 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 included in the regional emissions 
analysis that supported the conformity determination of the associated 
metropolitan TIP before they are added to the STIP.
    (c) For each nonmetropolitan area in the State, the State shall 
develop the STIP in cooperation with affected nonmetropolitan local 
officials with responsibility for transportation or, if applicable, 
through RTPOs described in Sec. 450.210(d) using the State's 
consultation process(es) established under Sec. 450.210(b).
    (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) Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access 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. 201(c)(4).
    (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 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 alternatives and associated transit 
improvements; Tribal Transportation Program projects, Federal Lands 
Transportation Program projects, and Federal Lands Access Program 
projects; HSIP projects; trails projects; and accessible pedestrian 
walkways and bicycle facilities), except the following that may be 
included:
    (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(d) and 
49 U.S.C. 5305(d);
    (3) State planning and research projects funded under 23 U.S.C. 505 
and 49 U.S.C. 5305(e);
    (4) State planning and research projects funded with Surface 
Transportation Program funds;
    (5) Emergency relief projects (except those involving substantial 
functional, locational, or capacity changes);
    (6) Research, development, demonstration, and deployment projects 
funded under 49 U.S.C. 5312, and technical assistance and standards 
development projects funded under 49 U.S.C. 5314;
    (7) Project management oversight projects funded under 49 U.S.C. 
5327; and
    (8) State safety oversight programs funded under 49 U.S.C. 5329.
    (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 and conformity purposes, the STIP shall 
include (if appropriate and included in any TIPs) 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.
    (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 4 years of the STIP;

[[Page 118]]

    (3) The amount of Federal funds proposed to be obligated during each 
program year. For the first year, this includes the proposed category of 
Federal funds and source(s) of non-Federal funds. For the second, third, 
and fourth years, this includes the likely category or possible 
categories of Federal funds and sources of 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, project classifications must be 
consistent with the ``exempt project'' classifications contained in the 
EPA's transportation conformity regulations (40 CFR part 93, subpart A). 
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. 450.216 and, in metropolitan planning areas, consistent with 
an approved metropolitan transportation plan developed under Sec. 
450.324.
    (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 available to carry 
out the STIP, and recommends any additional financing strategies for 
needed projects and programs. In addition, for illustrative purposes, 
the financial plan may include additional projects that would be 
included in the adopted STIP if reasonable additional resources beyond 
those identified in the financial plan were to become 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. Revenue and cost estimates for the STIP must use an inflation 
rate to reflect ``year of expenditure dollars,'' based on reasonable 
financial principles and information, developed cooperatively by the 
State, MPOs, and public transportation operators.
    (m) In nonattainment and maintenance areas, projects included in the 
first 2 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, while 
federally supported facilities are 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 (l) of this section. For purposes of 
transportation operations and maintenance, the STIP shall include 
financial information containing system-level estimates of costs and 
revenue sources that are reasonably expected to be available to 
adequately operate and maintain Federal-aid highways (as defined by 23 
U.S.C. 101(a)(5)) and public transportation (as defined by title 49 
U.S.C. 5302).
    (n) Projects in any of the first 4 years of the STIP may be advanced 
in place of another project in the first 4 years of the STIP, subject to 
the project selection requirements of Sec. 450.222. In addition, 
subject to FHWA/FTA approval (see Sec. 450.220), the State may revise 
the STIP at any time under procedures agreed to by the State, MPO(s), 
and public transportation operators 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)). Changes that 
affect fiscal constraint must take place by amendment of the STIP.
    (o) 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.

[[Page 119]]

    (p) In cases where the FHWA and the FTA find a STIP to be fiscally 
constrained, and a revenue source is subsequently removed or 
substantially reduced (i.e., by legislative or administrative actions), 
the FHWA and the FTA will not withdraw the original determination of 
fiscal constraint. However, in such cases, the FHWA and the FTA will not 
act on an updated or amended STIP that does not reflect the changed 
revenue situation.
    (q) A STIP shall include, to the maximum extent practicable, a 
discussion of the anticipated effect of the STIP toward achieving the 
performance targets identified by the State in the statewide 
transportation plan or other State performance-based plan(s), linking 
investment priorities to those performance targets.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016]



Sec. 450.220  Self-certifications, Federal findings, and Federal
approvals.

    (a) At least every 4 years, the State shall submit an updated STIP 
concurrently to the FHWA and the FTA for joint approval. The State must 
also submit STIP amendments to the FHWA and the FTA for joint approval. 
At the time the entire proposed STIP or STIP amendments are 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) and 49 CFR part 21;
    (3) 49 U.S.C. 5332, prohibiting discrimination on the basis of race, 
color, creed, national origin, sex, or age in employment or business 
opportunity;
    (4) Section 1101(b) of the FAST Act (Pub. L. 114-357) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in DOT funded projects;
    (5) 23 CFR part 230, regarding implementation of an equal employment 
opportunity program on Federal and Federal-aid highway construction 
contracts;
    (6) 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;
    (7) 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;
    (8) 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;
    (9) 23 U.S.C. 324, regarding the prohibition of discrimination based 
on gender; and
    (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 27 regarding discrimination against individuals with 
disabilities.
    (b) The FHWA and the FTA shall review the STIP or the amended STIP, 
and make a joint finding on the extent to which the STIP is 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 
is 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 by the 
State; 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 4 
years. If a State demonstrates, in writing, that extenuating 
circumstances will

[[Page 120]]

delay the submittal of a new or amended STIP past its update deadline, 
the FHWA and the FTA will consider and take appropriate action on a 
request to extend the approval beyond 4 years for all or part of the 
STIP for a period not to exceed 180 calendar 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 highway and 
transit operations, the FHWA and the FTA may approve operating 
assistance for specific projects or programs, even though the projects 
or programs may not be included in an approved STIP.



Sec. 450.222  Project selection from the STIP.

    (a) Except as provided in Sec. 450.218(g) and Sec. 450.220(d), 
only projects in a FHWA/FTA approved STIP are 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 STIP in accordance with project selection procedures provided 
in Sec. 450.332.
    (c) In nonmetropolitan areas, with the exclusion of specific 
projects as described in this section, the State shall select projects 
from the approved STIP in cooperation with the affected nonmetropolitan 
local officials, or if applicable, through RTPOs described in Sec. 
450.210(e). The State shall select transportation projects undertaken on 
the NHS, under the Bridge and Interstate Maintenance programs in title 
23 U.S.C. and under sections 5310 and 5311 of title 49 U.S.C. Chapter 53 
from the approved STIP in consultation with the affected nonmetropolitan 
local officials with responsibility for transportation.
    (d) Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program projects shall be selected 
from the approved STIP in accordance with the procedures developed 
pursuant to 23 U.S.C. 201, 202, 203, and 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 is significant shifting of 
projects among years, Sec. 450.332(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. 450.224  Applicability of NEPA to statewide transportation 
plans and programs.

    Any decision by the Secretary concerning a long-range statewide 
transportation plan or STIP developed through the processes provided for 
in 23 U.S.C. 135, 49 U.S.C. 5304, and this subpart shall not be 
considered to be a Federal action subject to review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).



Sec. 450.226  Phase-in of new requirements.

    (a) Prior to May 27, 2018, a State may adopt a long-range statewide 
transportation plan that has been developed using the SAFETEA-LU 
requirements or the provisions and requirements of this part. On or 
after May 27, 2018, a State may only adopt a long-range statewide 
transportation plan that it has developed according to the provisions 
and requirements of this part.

[[Page 121]]

    (b) Prior to May 27, 2018 (2 years after the publication date of 
this rule), FHWA/FTA may approve a STIP update or amendment that has 
been developed using the SAFETEA-LU requirements or the provisions and 
requirements of this part. On or after May 27, 2018, FHWA/FTA may only 
approve a STIP update or amendment that a State has developed according 
to the provisions and requirements of this part, regardless of when the 
State developed the STIP.
    (c) On and after May 27, 2018 (2 years after the publication date of 
this rule), the FHWA and the FTA will take action on an updated or 
amended STIP developed under the provisions of this part, even if the 
State has not yet adopted a new long-range statewide transportation plan 
under the provisions of this part, as long as the underlying 
transportation planning process is consistent with the requirements in 
the MAP-21.
    (d) On or after May 27, 2018, a State may make an administrative 
modification to a STIP that conforms to either the SAFETEA-LU 
requirements or to the provisions and requirements of this part.
    (e) Two years from the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 
U.S.C. 5329, FHWA/FTA will only approve an updated or amended STIP that 
is based on a statewide transportation planning process that meets the 
performance-based planning requirements in this part and in such a rule.
    (f) Prior to 2 years from the effective date of each rule 
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 
5326, or 49 U.S.C. 5329, a State may adopt a long-range statewide 
transportation plan that it has developed using the SAFETEA-LU 
requirements or the performance-based provisions and requirements of 
this part and in such a rule. Two years on or after the effective date 
of each rule establishing performance measures under 23 U.S.C. 150(c), 
49 U.S.C. 5326, or 49 U.S.C. 5329, a State may only adopt a long-range 
statewide transportation plan that it has developed according to the 
performance-based provisions and requirements of this part and in such a 
rule.
    (g) With respect to requirements added in Sec. 450.208(a)(1) on 
January 19, 2017: On and after the date 2 years after the date that the 
U.S. Census Bureau releases its notice of Qualifying Urban Areas 
following the 2020 census, the State(s), the MPO(s) and the operators of 
public transportation must comply with the new requirements, including 
the requirement for a current metropolitan planning agreement that 
identifies coordination strategies that support cooperative decision-
making and the resolution of disagreements.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016]



     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, 23 U.S.C. 150, and 49 U.S.C. 5303, as amended, which:
    (a) Set forth the national policy that the MPO designated for each 
UZA is to carry out a continuing, cooperative, and comprehensive 
performance-based multimodal transportation planning process for its 
MPA, including the development of a metropolitan transportation plan and 
a 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, bicycle transportation facilities, and intermodal facilities 
that support intercity transportation, including intercity buses and 
intercity bus facilities and commuter vanpool providers) and foster 
economic growth and development, and takes into consideration resiliency 
needs, while minimizing transportation-related fuel consumption and air 
pollution; and
    (b) Encourage continued development and improvement of metropolitan 
transportation planning processes guided by the planning factors set

[[Page 122]]

forth in 23 U.S.C. 134(h) and 49 U.S.C. 5303(h).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016]



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) To accomplish the objectives in Sec. 450.300 and Sec. 
450.306(b), metropolitan planning organizations designated under Sec. 
450.310, in cooperation with the State and public transportation 
operators, shall develop long-range transportation plans and TIPs 
through a performance-driven, outcome-based approach to planning for 
metropolitan areas of the State.
    (b) 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 motorized 
and non-motorized users;
    (3) Increase the security of the transportation system for 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;
    (8) Emphasize the preservation of the existing transportation 
system;
    (9) Improve the resiliency and reliability of the transportation 
system and reduce or mitigate stormwater impacts of surface 
transportation; and
    (10) Enhance travel and tourism.
    (c) Consideration of the planning factors in paragraph (b) of this 
section shall be reflected, as appropriate, in the metropolitan 
transportation planning process. The degree of consideration and 
analysis of the factors should be based on the scale and complexity of 
many issues, including transportation system development, land use, 
employment, economic development, human and natural environment 
(including Section 4(f) properties as defined in 23 CFR 774.17), and 
housing and community development.
    (d) Performance-based approach. (1) The metropolitan transportation 
planning process shall provide for the establishment and use of a 
performance-based approach to transportation decisionmaking to support 
the national goals described in 23 U.S.C. 150(b) and the general 
purposes described in 49 U.S.C. 5301(c).
    (2) Establishment of performance targets by metropolitan planning 
organizations. (i) Each metropolitan planning organization shall 
establish performance targets that address the performance measures or 
standards established under 23 CFR part 490 (where applicable), 49 
U.S.C. 5326(c), and 49 U.S.C. 5329(d) to use in tracking progress toward 
attainment of critical outcomes for the region of the metropolitan 
planning organization.
    (ii) The selection of targets that address performance measures 
described in 23 U.S.C. 150(c) shall be in accordance with the 
appropriate target setting framework established at 23 CFR part 490, and 
shall be coordinated with the relevant State(s) to ensure consistency, 
to the maximum extent practicable.
    (iii) The selection of performance targets that address performance 
measures described in 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d) shall be 
coordinated,

[[Page 123]]

to the maximum extent practicable, with public transportation providers 
to ensure consistency with the performance targets that public 
transportation providers establish under 49 U.S.C. 5326(c) and 49 U.S.C. 
5329(d).
    (3) Each MPO shall establish the performance targets under paragraph 
(d)(2) of this section not later than 180 days after the date on which 
the relevant State or provider of public transportation establishes the 
performance targets.
    (4) An MPO shall integrate in the metropolitan transportation 
planning process, directly or by reference, the goals, objectives, 
performance measures, and targets described in other State 
transportation plans and transportation processes, as well as any plans 
developed under 49 U.S.C. chapter 53 by providers of public 
transportation, required as part of a performance-based program 
including:
    (i) The State asset management plan for the NHS, as defined in 23 
U.S.C. 119(e) and the Transit Asset Management Plan, as discussed in 49 
U.S.C. 5326;
    (ii) Applicable portions of the HSIP, including the SHSP, as 
specified in 23 U.S.C. 148;
    (iii) The Public Transportation Agency Safety Plan in 49 U.S.C. 
5329(d);
    (iv) Other safety and security planning and review processes, plans, 
and programs, as appropriate;
    (v) The Congestion Mitigation and Air Quality Improvement Program 
performance plan in 23 U.S.C. 149(l), as applicable;
    (vi) Appropriate (metropolitan) portions of the State Freight Plan 
(MAP-21 section 1118);
    (vii) The congestion management process, as defined in 23 CFR 
450.322, if applicable; and
    (viii) Other State transportation plans and transportation processes 
required as part of a performance-based program.
    (5) In MPAs in which multiple MPOs have been designated, the MPOs 
shall jointly establish, for the MPA, the performance targets that 
address performance measures or standards established under 23 CFR part 
490 (where applicable), 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d).
    (e) The failure to consider any factor specified in paragraph (b) or 
(d) of this section shall not be reviewable by any court under title 23 
U.S.C., 49 U.S.C. Chapter 53, subchapter II of title 5, U.S.C. Chapter 
5, or title 5 U.S.C. Chapter 7 in any matter affecting a metropolitan 
transportation plan, TIP, a project or strategy, or the certification of 
a metropolitan transportation planning process.
    (f) An MPO shall carry out the metropolitan transportation planning 
process in coordination with the statewide transportation planning 
process required by 23 U.S.C. 135 and 49 U.S.C. 5304.
    (g) The metropolitan transportation planning process shall (to the 
maximum extent practicable) be consistent with the development of 
applicable regional intelligent transportation systems (ITS) 
architectures, as defined in 23 CFR part 940.
    (h) Preparation of the coordinated public transit-human services 
transportation plan, as required by 49 U.S.C. 5310, should be 
coordinated and consistent with the metropolitan transportation planning 
process.
    (i) In an UZA 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 this part, taking into account the 
complexity of the transportation problems in the area. The MPO(s) shall 
develop simplified procedures in cooperation with the State(s) and 
public transportation operator(s).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016]



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

    (a) Funds provided under 23 U.S.C. 104(d), 49 U.S.C. 5305(d), and 49 
U.S.C.

[[Page 124]]

5307, are available to MPOs to accomplish activities described in this 
subpart. At the State's option, funds provided under 23 U.S.C. 104(b)(2) 
and 23 U.S.C. 505 may also be provided to MPOs for metropolitan 
transportation planning. At the option of the State and operators of 
public transportation, funds provided under 49 U.S.C. 5305(e) may also 
be provided to MPOs for activities that support 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)(4) for metropolitan transportation planning activities.
    (b) An MPO shall document metropolitan transportation planning 
activities performed with funds provided under title 23 U.S.C. and title 
49 U.S.C. Chapter 53 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 1- or 2-year period by major activity and task (including 
activities that address the planning factors in Sec. 450.306(b)), 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 shall include a description of the major activities to be performed 
during the next 1- or 2-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, as 
amended (Program Guidance for Metropolitan Planning and State Planning 
and Research Program Grants).



Sec. 450.310  Metropolitan planning organization designation and
redesignation.

    (a) To carry out the metropolitan transportation planning process 
under this subpart, an 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) The FHWA and the FTA shall identify as a 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 urbanized 
area as a TMA on the request of the Governor and the MPO designated for 
that area.
    (d) TMA structure:
    (1) Not later than October 1, 2014, each metropolitan planning 
organization that serves a designated TMA shall consist of:
    (i) Local elected officials;
    (ii) Officials of public agencies that administer or operate major 
modes of transportation in the metropolitan

[[Page 125]]

area, including representation by providers of public transportation; 
and
    (iii) Appropriate State officials.
    (2) An MPO may be restructured to meet the requirements of this 
paragraph (d) without undertaking a redesignation.
    (3) Representation. (i) Designation or selection of officials or 
representatives under paragraph (d)(1) of this section shall be 
determined by the MPO according to the bylaws or enabling statute of the 
organization.
    (ii) Subject to the bylaws or enabling statute of the MPO, a 
representative of a provider of public transportation may also serve as 
a representative of a local municipality.
    (iii) An official described in paragraph (d)(1)(ii) shall have 
responsibilities, actions, duties, voting rights, and any other 
authority commensurate with other officials described in paragraph 
(d)(1) of this section.
    (4) Nothing in this section 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--
    (i) To develop the plans and TIPs for adoption by an MPO; and
    (ii) To develop long-range capital plans, coordinate transit 
services and projects, and carry out other activities pursuant to State 
law.
    (e) Except as provided in this paragraph, only one MPO shall be 
designated for each MPA. More than one MPO may be designated to serve an 
MPA only if the Governor(s) and the existing MPO(s), if applicable, 
determine that the size and complexity of the MPA make designation of 
more than one MPO in the MPA appropriate. In those cases where the 
Governor(s) and existing MPO(s) determine that the size and complexity 
of the MPA do make it appropriate that two or more MPOs serve within the 
same MPA, the Governor and affected MPOs by agreement shall jointly 
establish or adjust the boundaries for each MPO within the MPA, and the 
MPOs shall establish official, written agreements that clearly identify 
areas of coordination, the division of transportation planning 
responsibilities within the MPA among and between the MPOs, and 
procedures for joint decisionmaking and the resolution of disagreements. 
If multiple MPOs were designated in a single MPA prior to this rule or 
in multiple MPAs that merged into a single MPA following a Decennial 
Census by the Bureau of the Census, and the Governor(s) and the existing 
MPOs determine that the size and complexity do not make the designation 
of more than one MPO in the MPA appropriate, then those MPOs must merge 
together in accordance with the redesignation procedures in this 
section.
    (f) Nothing in this subpart shall be deemed to prohibit an MPO from 
using the staff resources of other agencies, non-profit organizations, 
or contractors to carry out selected elements of the metropolitan 
transportation planning process.
    (g) An MPO designation shall remain in effect until an official 
redesignation has been made in accordance with this section.
    (h) 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).
    (i) For the purposes of redesignation, units of general purpose 
local government may be defined as elected officials from each unit of 
general purpose local government located within the metropolitan 
planning area served by the existing MPO.
    (j) Redesignation of an MPO (in accordance with the provisions of 
this section) is required whenever the existing MPO proposes to make:
    (1) 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) A substantial change in the decisionmaking authority or 
responsibility of the MPO, or in decisionmaking procedures established 
under MPO by-laws.
    (k) Redesignation of an MPO serving a multistate metropolitan 
planning area requires agreement between the

[[Page 126]]

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).
    (l) The following changes to an MPO do not require a redesignation 
(as long as they do not trigger a substantial change as described in 
paragraph (j) of this section):
    (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 
described in paragraph (d) of this section 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.
    (m) Each Governor with responsibility for a portion of a multistate 
metropolitan area and the appropriate MPOs shall, to the extent 
practicable, provide coordinated transportation planning for the entire 
metropolitan area. The consent of Congress is granted to any two or more 
States to:
    (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 23 U.S.C. 134 and 49 U.S.C. 5303 
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.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93470, Dec. 20, 2016]



Sec. 450.312  Metropolitan Planning Area boundaries.

    (a) At a minimum, the boundaries of an MPA shall encompass the 
entire existing UZA (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.
    (1) Subject to this minimum requirement, the boundaries of an MPA 
shall be determined through an agreement between the MPO and the 
Governor.
    (2) If two or more MPAs otherwise include the same non-urbanized 
area that is expected to become urbanized within a 20-year forecast 
period for the transportation plan, the Governor and the relevant MPOs 
are required to agree on the final boundaries of the MPA or MPAs such 
that the boundaries of the MPAs do not overlap. In such situations, the 
Governor and MPOs are encouraged, but not required, to combine the MPAs 
into a single MPA. Merger into a single MPA also require the MPOs to 
merge in accordance with the redesignation procedures described in Sec. 
450.310(h), unless the Governor and MPO(s) determine that the size and 
complexity of the MPA make multiple MPOs appropriate, as described in 
Sec. 450.310(e).
    (3) 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) The boundaries for an MPA that includes an UZA designated as a 
nonattainment area for ozone or carbon monoxide under the Clean Air Act 
(42 U.S.C. 7401 et seq.) after August 10, 2005, may be established to 
coincide with the designated boundaries of the ozone and/or carbon 
monoxide nonattainment area, in accordance with this section and the 
requirements in Sec. 450.310(b).
    (c) An MPA boundary may encompass more than one UZA, but each UZA 
must be included in its entirety.
    (d) MPA boundaries may be established to coincide with the geography 
of regional economic development and growth forecasting areas.
    (e) Identification of new UZAs within an existing MPA by the Bureau 
of the Census shall not require redesignation of the existing MPO.
    (f) In multistate metropolitan areas, the Governors with 
responsibility for a portion of the multistate metropolitan area, the 
appropriate MPO(s), and the public transportation operator(s) are 
strongly encouraged to coordinate

[[Page 127]]

transportation planning for the entire multistate metropolitan 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.
    (g) The MPA boundaries shall not overlap with each other.
    (h) Subject to paragraph (i) of this section, where the Governor(s) 
and MPO(s) have determined that the size and complexity of the MPA make 
it appropriate to have more than one MPO designated for an MPA, the MPOs 
within the same MPA shall, at a minimum:
    (1) Establish written agreements that clearly identify coordination 
processes, the division of transportation planning responsibilities 
among and between the MPOs, and procedures for joint decisionmaking and 
the resolution of disagreements;
    (2) Through a joint decisionmaking process, develop a single TIP and 
a single metropolitan transportation plan for the entire MPA as required 
under Sec. Sec. 450.324(c) and 450.326(a); and
    (3) Establish the boundaries for each MPO within the MPA, by 
agreement among all affected MPOs and the Governor(s).
    (i) Upon written request from all MPOs in an MPA and the Governor(s) 
of each State in the MPA, the Secretary may approve an exception to the 
requirements for a single metropolitan transportation plan, a single 
TIP, and jointly-established targets if the request satisfies the 
following requirements.
    (1) The written request must include documentation showing 
compliance with the requirements in paragraph (h)(2) of this section is 
not feasible for reasons beyond the reasonable control of the 
Governor(s) and MPOs, such as clear and convincing evidence that
    (i) The MPOs cannot meet paragraph (h)(2) requirements because of 
the extraordinary size of the MPA, the large number of MPOs or State/
local governmental jurisdictions required to participate, and/or because 
of Clean Air Act planning requirements; or
    (ii) Complying with paragraph (h)(2) requirements would produce 
adverse results that contravene the effective regional planning purposes 
of paragraph (h)(2).
    (2) The request must include documentation demonstrating that:
    (i) The MPOs already use coordinated planning procedures that result 
in consistent plans, TIPs, performance targets, and air quality 
conformity analyses and other planning products that effectively address 
regional transportation and air quality issues;
    (ii) The MPOs have jointly adopted a formal written agreement with 
adequate procedures for coordination among the MPOs to achieve the 
effective regional planning purposes of paragraph (h)(2) of this 
section; and
    (iii) Coordination and decisionmaking during at least the two most 
recent STIP update cycles that produced results consistent with the 
effective planning purposes of paragraph (h)(2) of this section.
    (3) Based on the documentation provided with the request, the 
Secretary will determine whether to approve an exception to the 
requirements of paragraph (h)(2) of this section. If the Secretary 
determines that the request does not meet the requirements established 
under this paragraph, the Secretary will send the MPOs and Governor(s) a 
written notice of the denial of the exception, including a description 
of the deficiencies. The Governor(s) and MPOs shall have 90 days from 
receipt of the notice to address the deficiencies identified in the 
notice and submit supplemental information addressing the identified 
deficiencies to the Secretary for review and a final determination. The 
Secretary may extend the 90-day period to cure deficiencies upon 
request.
    (4) An approved exception is permanent. When FHWA and FTA do 
certification reviews and make planning findings, FHWA and FTA will 
evaluate

[[Page 128]]

whether the MPOs covered by the exception are sustaining effective 
coordination processes that meet the requirements in paragraphs 
(i)(2)(i) and (ii) of this section.
    (j) The Governor(s) and MPO(s) (in cooperation with the State and 
public transportation operator(s)) shall review the MPA boundaries after 
each Census to determine if existing MPA boundaries meet the minimum 
statutory requirements for new and updated UZA(s), and the Governor(s) 
and MPOs shall adjust them as necessary in order to encompass the entire 
existing UZA(s) plus the contiguous area expected to become urbanized 
within the 20-year forecast period of the metropolitan transportation 
plan. If after a Census, two previously separate UZAs are defined as a 
single UZA, not later than 2 years after the release of the U.S. Bureau 
of the Census notice of the Qualifying Urban Areas for a decennial 
census, the Governor(s) and MPO(s) shall redetermine the affected MPAs 
as a single MPA that includes the entire new UZA plus the contiguous 
area expected to become urbanized within the 20-year forecast period of 
the metropolitan transportation plan. As appropriate, additional 
adjustments should be made to reflect the most comprehensive boundary to 
foster an effective planning process that ensures connectivity between 
modes, improves access to modal systems, and promotes efficient overall 
transportation investment strategies. If more than one MPO is designated 
for UZAs that are merged following a Decennial Census by the Bureau of 
the Census, the Governor(s) and the MPOs shall comply with the MPA 
boundary and MPO boundaries agreement provisions in Sec. Sec. 450.310 
and 450.312, and the Governor(s) and MPOs shall determine whether the 
size and complexity of the MPA make it appropriate for there to be more 
than one MPO designated within the MPA. If the size and complexity of 
the MPA do not make it appropriate to have multiple MPOs, the MPOs shall 
merge, in accordance with the redesignation procedures in Sec. 
450.310(h). If the size and complexity do warrant the designation of 
multiple MPOs within the MPA, the MPOs shall comply with the 
requirements for jointly established performance targets, and a single 
metropolitan transportation plan and TIP for the entire MPA, before the 
next metropolitan transportation plan update that occurs on or after 2 
years after the release of the Qualifying Urban Areas for the Decennial 
Census by the Bureau of the Census.
    (k) The Governor and MPOs are encouraged to consider merging 
multiple MPAs into a single MPA when:
    (1) Two or more UZAs are adjacent to each other;
    (2) Two or more UZAs are expected to expand and become adjacent 
within a 20-year forecast period for the transportation plan; or
    (3) Two or more neighboring MPAs otherwise both include the same 
non-UZA that is expected to become urbanized within a 20-year forecast 
period for the metropolitan transportation plan.
    (l) Following MPA boundary approval by the MPO(s) 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.

[81 FR 93470, Dec. 20, 2016]



Sec. 450.314  Metropolitan planning agreements.

    (a) The MPO(s), the State(s), and the providers of public 
transportation shall cooperatively determine their mutual 
responsibilities in carrying out the metropolitan transportation 
planning process. These responsibilities shall be clearly identified in 
written agreements among the MPO(s), the State(s), and the providers of 
public transportation serving the MPA. To the extent possible, a single 
agreement among all responsible parties should be developed. The written 
agreement(s) shall include specific provisions for the development of 
financial plans that support the metropolitan transportation plan (see 
Sec. 450.324) and the metropolitan TIP (see Sec. 450.326), and 
development of the annual listing of obligated projects (see Sec. 
450.334).
    (b) The MPO(s), the State(s), and the providers of public 
transportation should periodically review and update

[[Page 129]]

the agreement, as appropriate, to reflect effective changes.
    (c) 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(s) 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 regulations (40 CFR part 93, subpart A). 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.
    (d) 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.
    (e) If more than one MPO has been designated to serve an MPA, there 
shall be a written agreement among 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 a single metropolitan transportation plan and TIP for the 
MPA. In cases in which a transportation investment extends across the 
boundaries of more than one MPA, the MPOs shall coordinate to assure the 
development of consistent metropolitan transportation plans and TIPs 
with respect to that transportation improvement. If any part of the UZA 
is a nonattainment or maintenance area, the agreement also shall include 
State and local air quality agencies. If more than one MPO has been 
designated to serve an MPA, the metropolitan transportation planning 
processes for affected MPOs must reflect coordinated data collection, 
analysis, and planning assumptions across the MPA. Coordination of data 
collection, analysis, and planning assumptions is also strongly 
encouraged for neighboring MPOs that are not within the same MPA. 
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.
    (f) Where the boundaries of the MPA extend across two or more 
States, the Governors with responsibility for a portion of the 
multistate MPA, the appropriate MPO(s), and the public transportation 
operator(s) shall coordinate transportation planning for the entire 
multistate MPA, including jointly developing planning products for the 
MPA. 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.
    (g) If an MPA includes a UZA that has been designated as a TMA in 
addition to an UZA that is not designated as a TMA, the non-TMA UZA 
shall not be treated as a TMA. However, if more than one MPO serves the 
MPA, a written agreement shall be established between the MPOs within 
the MPA boundaries, which clearly identifies the roles and 
responsibilities of each MPO in meeting specific TMA requirements (e.g., 
congestion management process, Surface Transportation Program funds 
suballocated to the UZA over 200,000 population, and project selection).
    (h) The MPO(s), State(s), and the providers of public transportation 
shall jointly agree upon and develop specific written provisions for 
cooperatively

[[Page 130]]

developing and sharing information related to transportation performance 
data, the selection of performance targets, the reporting of performance 
targets, the reporting of performance to be used in tracking progress 
toward attainment of critical outcomes for the region of the MPO (see 
Sec. 450.306(d)), and the collection of data for the State asset 
management plans for the NHS for each of the following circumstances: 
When one MPO serves an UZA, when more than one MPO serves an UZA, and 
when an MPA includes an UZA that has been designated as a TMA as well as 
a UZA that is not a TMA. These provisions shall be documented either as 
part of the metropolitan planning agreements required under paragraphs 
(a), (e), and (g) of this section, or documented it in some other means 
outside of the metropolitan planning agreements as determined 
cooperatively by the MPO(s), State(s), and providers of public 
transportation.

[81 FR 93472, Dec. 20, 2016]



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 individuals, affected public 
agencies, representatives of public transportation employees, public 
ports, freight shippers, providers of freight transportation services, 
private providers of transportation (including intercity bus operators, 
employer-based commuting programs, such as carpool program, vanpool 
program, transit benefit program, parking cash-out program, shuttle 
program, or telework program), 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 reasonable opportunities to be involved in 
the metropolitan transportation planning process.
    (1) The MPO shall develop the participation plan 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 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 made available for public comment by the MPO 
and raises new material issues that interested parties could not 
reasonably have foreseen from the public involvement efforts;
    (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, subpart A), a summary, analysis, 
and report on the

[[Page 131]]

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 should consult with agencies and officials responsible for other 
planning activities within the MPA that are affected by transportation 
(including State and local planned growth, economic development, 
tourism, natural disaster risk reduction, environmental protection, 
airport operations, or freight movements) or coordinate its planning 
process (to the maximum extent practicable) with such planning 
activities. In addition, the MPO(s) shall develop the metropolitan 
transportation plans and TIPs 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. 201-204.
    (c) When the MPA includes Indian Tribal lands, the MPO(s) shall 
appropriately involve the Indian Tribal government(s) in the development 
of the metropolitan transportation plan and the TIP.
    (d) When the MPA includes Federal public lands, the MPO(s) shall 
appropriately involve the Federal land management agencies in the 
development of the metropolitan transportation plan and the TIP.
    (e) MPOs shall, to the extent practicable, 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.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.318  Transportation planning studies and project development.

    (a) Pursuant to section 1308 of the Transportation Equity Act for 
the 21st Century, TEA-21 (Pub. L. 105-178), an MPO(s), State(s), or 
public transportation operator(s) may undertake a multimodal, systems-
level corridor or subarea planning study as part of the metropolitan 
transportation planning process. To the extent practicable, development 
of these transportation planning studies shall involve consultation 
with, or joint efforts among, the MPO(s), State(s), and/or public 
transportation operator(s). The results or decisions of these 
transportation planning studies may be used as part of the overall 
project development process consistent with 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 result in producing 
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 (e.g., 
highway, transit, or a highway/transit combination);
    (3) Preliminary screening of alternatives and elimination of 
unreasonable alternatives;
    (4) Basic description of the environmental setting; and/or
    (5) Preliminary identification of environmental impacts and 
environmental mitigation.
    (b) Publicly available documents or other source material produced 
by, or in support of, the transportation planning process described in 
this subpart

[[Page 132]]

may be incorporated directly or by reference into subsequent NEPA 
documents, in accordance with 40 CFR 1502.21, if:
    (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 systems-level, corridor, or subarea planning study is 
conducted with:
    (i) Involvement of interested State, local, Tribal, and Federal 
agencies;
    (ii) Public review;
    (iii) Reasonable 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 tiering (as described in 40 CFR 1502.20), 
incorporating the subarea or corridor planning study into the draft 
Environmental Impact Statement (EIS) or Environmental Assessment, or 
other means that the NEPA lead agencies deem appropriate.
    (d) Additional information to further explain the linkages between 
the transportation planning and project development/NEPA processes is 
contained in Appendix A to this part, including an explanation that it 
is non-binding guidance material. The guidance in Appendix A applies 
only to paragraphs (a)-(c) in this section.
    (e) In addition to the process for incorporation directly or by 
reference outlined in paragraph (b) of this section, an additional 
authority for integrating planning products into the environmental 
review process exists in 23 U.S.C. 168. As provided in 23 U.S.C. 168(f):
    (1) The statutory authority in 23 U.S.C. 168 shall not be construed 
to limit in any way the continued use of processes established under 
other parts of this section or under an authority established outside of 
this part, and the use of one of the processes in this section does not 
preclude the subsequent use of another process in this section or an 
authority outside of this part.
    (2) The statute does not restrict the initiation of the 
environmental review process during planning.



Sec. 450.320  Development of programmatic mitigation plans.

    (a) An MPO may utilize the optional framework in this section to 
develop programmatic mitigation plans as part of the metropolitan 
transportation planning process to address the potential environmental 
impacts of future transportation projects. The MPO, in consultation with 
the FHWA and/or the FTA and with the agency or agencies with 
jurisdiction and special expertise over the resources being addressed in 
the plan, will determine:
    (1) Scope. (i) An MPO may develop a programmatic mitigation plan on 
a local, regional, ecosystem, watershed, statewide or similar scale.
    (ii) The plan may encompass multiple environmental resources within 
a defined geographic area(s) or may focus on a specific type(s) of 
resource(s) such as aquatic resources, parkland, or wildlife habitat.
    (iii) The plan may address or consider impacts from all projects in 
a defined geographic area(s) or may focus on a specific type(s) of 
project(s).
    (2) Contents. The programmatic mitigation plan may include:
    (i) An assessment of the existing condition of natural and human 
environmental resources within the area covered by the plan, including 
an assessment of historic and recent trends and/or any potential threats 
to those resources.
    (ii) An identification of economic, social, and natural and human 
environmental resources within the geographic area that may be impacted 
and considered for mitigation. Examples of these resources include 
wetlands, streams, rivers, stormwater, parklands, cultural

[[Page 133]]

resources, historic resources, farmlands, archeological resources, 
threatened or endangered species, and critical habitat. This may include 
the identification of areas of high conservation concern or value and 
thus worthy of avoidance.
    (iii) An inventory of existing or planned environmental resource 
banks for the impacted resource categories such as wetland, stream, 
stormwater, habitat, species, and an inventory of federally, State, or 
locally approved in-lieu-of-fee programs.
    (iv) An assessment of potential opportunities to improve the overall 
quality of the identified environmental resources through strategic 
mitigation for impacts of transportation projects which may include the 
prioritization of parcels or areas for acquisition and/or potential 
resource banking sites.
    (v) An adoption or development of standard measures or operating 
procedures for mitigating certain types of impacts; establishment of 
parameters for determining or calculating appropriate mitigation for 
certain types of impacts, such as mitigation ratios, or criteria for 
determining appropriate mitigation sites.
    (vi) Adaptive management procedures, such as protocols or procedures 
that involve monitoring actual impacts against predicted impacts over 
time and adjusting mitigation measures in response to information 
gathered through the monitoring.
    (vii) Acknowledgement of specific statutory or regulatory 
requirements that must be satisfied when determining appropriate 
mitigation for certain types of resources.
    (b) A MPO may adopt a programmatic mitigation plan developed 
pursuant to paragraph (a), or developed pursuant to an alternative 
process as provided for in paragraph (f) of this section through the 
following process:
    (1) Consult with each agency with jurisdiction over the 
environmental resources considered in the programmatic mitigation plan;
    (2) Make available a draft of the programmatic mitigation plan for 
review and comment by appropriate environmental resource agencies and 
the public;
    (3) Consider comments received from such agencies and the public on 
the draft plan; and
    (4) Address such comments in the final programmatic mitigation plan.
    (c) A programmatic mitigation plan may be integrated with other 
plans, including watershed plans, ecosystem plans, species recovery 
plans, growth management plans, State Wildlife Action Plans, and land 
use plans.
    (d) If a programmatic mitigation plan has been adopted pursuant to 
paragraph (b), any Federal agency responsible for environmental reviews, 
permits, or approvals for a transportation project shall give 
substantial weight to the recommendations in the programmatic mitigation 
plan when carrying out its responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) or 
other Federal environmental law.
    (e) Nothing in this section limits the use of programmatic 
approaches for reviews under NEPA.
    (f) Nothing in this section prohibits the development, as part of or 
separate from the transportation planning process, of a programmatic 
mitigation plan independent of the framework described in paragraph (a) 
of this section. Further, nothing in this section prohibits the adoption 
of a programmatic mitigation plan in the metropolitan planning process 
that was developed under another authority, independent of the framework 
described in paragraph (a).



Sec. 450.322  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 
(including intercity bus operators, employer-based commuting programs 
such as a carpool program, vanpool program, transit benefit program,

[[Page 134]]

parking cash-out program, shuttle program, or telework program), job 
access projects, 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.
    (c) 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, improve 
transportation system management and operations, and improve efficient 
service integration within and across modes, including highway, transit, 
passenger and freight rail operations, and non-motorized transport. 
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.
    (d) 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 underlying 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, including 
providers of public transportation;
    (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;
    (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

[[Page 135]]

evaluation shall be provided to decision makers and the public to 
provide guidance on selection of effective strategies for future 
implementation.
    (e) 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.
    (f) In TMAs designated as nonattainment for ozone or carbon 
monoxide, the congestion management process shall provide an appropriate 
analysis of 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 to be 
advanced with Federal funds. 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.
    (g) 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.
    (h) Congestion management plan. A MPO serving a TMA may develop a 
plan that includes projects and strategies that will be considered in 
the TIP of such MPO.
    (1) Such plan shall:
    (i) Develop regional goals to reduce vehicle miles traveled during 
peak commuting hours and improve transportation connections between 
areas with high job concentration and areas with high concentrations of 
low-income households;
    (ii) Identify existing public transportation services, employer 
based commuter programs, and other existing transportation services that 
support access to jobs in the region; and
    (iii) Identify proposed projects and programs to reduce congestion 
and increase job access opportunities.
    (2) In developing the congestion management plan, an MPO shall 
consult with employers, private and nonprofit providers of public 
transportation, transportation management organizations, and 
organizations that provide job access reverse commute projects or job-
related services to low-income individuals.



Sec. 450.324  Development and content of the metropolitan 
transportation plan.

    (a) The metropolitan transportation planning process shall include 
the development of a transportation plan addressing no less than a 20-
year planning horizon as of the effective date. In formulating the 
transportation plan, the MPO(s) shall consider factors described in 
Sec. 450.306 as the factors relate to a minimum 20-year forecast 
period. 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(s).
    (b) The transportation plan shall include both long-range and short-
range strategies/actions that provide for the development of an 
integrated

[[Page 136]]

multimodal transportation system (including accessible pedestrian 
walkways and bicycle transportation facilities) to facilitate the safe 
and efficient movement of people and goods in addressing current and 
future transportation demand.
    (c) If more than one MPO has been designated to serve an MPA, those 
MPOs within the MPA shall:
    (1) Jointly develop a single metropolitan transportation plan for 
the MPA; and
    (2) Jointly establish, for the MPA, the performance targets that 
address the performance measures described in 23 CFR part 490 (where 
applicable), 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d).
    (d) The MPO(s) shall review and update the transportation plan at 
least every 4 years in air quality nonattainment and maintenance areas 
and at least every 5 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(s) may revise the transportation plan at any time 
using the procedures in this section without a requirement to extend the 
horizon year. The MPO(s) shall approve the transportation plan (and any 
revisions) and submit it for information purposes to the Governor. 
Copies of any updated or revised transportation plans must be provided 
to the FHWA and the FTA.
    (e) In metropolitan areas that are in nonattainment for ozone or 
carbon monoxide, the MPO(s) shall coordinate the development of the 
metropolitan transportation plan with the process for developing 
transportation control measures (TCMs) in a State Implementation Plan 
(SIP).
    (f) The MPO(s), the State(s), and the public transportation 
operator(s) shall validate data used in preparing other existing modal 
plans for providing input to the transportation plan. In updating the 
transportation plan, the MPO(s) shall base the update on the latest 
available estimates and assumptions for population, land use, travel, 
employment, congestion, and economic activity. The MPO(s) shall approve 
transportation plan contents and supporting analyses produced by a 
transportation plan update.
    (g) The metropolitan transportation plan shall, at a minimum, 
include:
    (1) The current and 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, public transportation facilities, intercity bus facilities, 
multimodal and intermodal facilities, nonmotorized transportation 
facilities (e.g., 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.
    (3) A description of the performance measures and performance 
targets used in assessing the performance of the transportation system 
in accordance with Sec. 450.306(d).
    (4) A system performance report and subsequent updates evaluating 
the condition and performance of the transportation system with respect 
to the performance targets described in Sec. 450.306(d), including--
    (i) Progress achieved by the metropolitan planning organization in 
meeting the performance targets in comparison with system performance 
recorded in previous reports, including baseline data; and
    (ii) For metropolitan planning organizations that voluntarily elect 
to develop multiple scenarios, an analysis of how the preferred scenario 
has improved the conditions and performance of the transportation system 
and how changes in local policies and investments have impacted the 
costs necessary to achieve the identified performance targets.
    (5) 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;
    (6) Consideration of the results of the congestion management 
process in TMAs that meet the requirements of

[[Page 137]]

this subpart, including the identification of SOV projects that result 
from a congestion management process in TMAs that are nonattainment for 
ozone or carbon monoxide.
    (7) Assessment of capital investment and other strategies to 
preserve the existing and projected future metropolitan transportation 
infrastructure, provide for multimodal capacity increases based on 
regional priorities and needs, and reduce the vulnerability of the 
existing transportation infrastructure to natural disasters. The 
metropolitan transportation plan may consider projects and strategies 
that address areas or corridors where current or projected congestion 
threatens the efficient functioning of key elements of the metropolitan 
area's transportation system.
    (8) Transportation and transit enhancement activities, including 
consideration of the role that intercity buses may play in reducing 
congestion, pollution, and energy consumption in a cost-effective manner 
and strategies and investments that preserve and enhance intercity bus 
systems, including systems that are privately owned and operated, and 
including transportation alternatives, as defined in 23 U.S.C. 101(a), 
and associated transit improvements, as described in 49 U.S.C. 5302(a), 
as appropriate;
    (9) 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 
determinations under the EPA's transportation conformity regulations (40 
CFR part 93, subpart A). In all areas (regardless of air quality 
designation), all proposed improvements shall be described in sufficient 
detail to develop cost estimates;
    (10) A discussion of 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 metropolitan transportation 
plan. The discussion may focus on policies, programs, or strategies, 
rather than at the project level. The MPO(s) shall develop the 
discussion in consultation with applicable Federal, State, and Tribal 
land management, wildlife, and regulatory agencies. The MPO(s) may 
establish reasonable timeframes for performing this consultation;
    (11) A financial plan that demonstrates how the adopted 
transportation plan can be implemented.
    (i) For purposes of transportation system operations and 
maintenance, the financial plan shall contain system-level estimates of 
costs and revenue sources that are reasonably expected to be available 
to adequately operate and maintain the Federal-aid highways (as defined 
by 23 U.S.C. 101(a)(5)) and public transportation (as defined by title 
49 U.S.C. Chapter 53).
    (ii) For the purpose of developing the metropolitan transportation 
plan, the MPO(s), 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). 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.
    (iii) 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. 
The financial plan may include an assessment of the appropriateness of 
innovative finance techniques (for example, tolling, pricing, bonding, 
public private partnerships, or other strategies) as revenue sources for 
projects in the plan.
    (iv) In developing the financial plan, the MPO(s) 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. Revenue and cost 
estimates that support the metropolitan transportation plan must use an 
inflation rate(s) to reflect ``year of expenditure dollars,'' based on 
reasonable financial principles and information, developed cooperatively 
by the

[[Page 138]]

MPO(s), State(s), and public transportation operator(s).
    (v) For the outer years of the metropolitan transportation plan 
(i.e., beyond the first 10 years), the financial plan may reflect 
aggregate cost ranges/cost bands, as long as the future funding 
source(s) is reasonably expected to be available to support the 
projected cost ranges/cost bands.
    (vi) 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.
    (vii) For illustrative purposes, the financial plan may include 
additional projects that would be included in the adopted transportation 
plan if additional resources beyond those identified in the financial 
plan were to become available.
    (viii) In cases that the FHWA and the FTA find a metropolitan 
transportation plan to be fiscally constrained and a revenue source is 
subsequently removed or substantially reduced (i.e., by legislative or 
administrative actions), the FHWA and the FTA will not withdraw the 
original determination of fiscal constraint; however, in such cases, the 
FHWA and the FTA will not act on an updated or amended metropolitan 
transportation plan that does not reflect the changed revenue situation.
    (12) Pedestrian walkway and bicycle transportation facilities in 
accordance with 23 U.S.C. 217(g).
    (h) The MPO(s) 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.
    (i) The metropolitan transportation plan should integrate the 
priorities, goals, countermeasures, strategies, or projects for the 
metropolitan planning area contained in the HSIP, including the SHSP 
required under 23 U.S.C. 148, the Public Transportation Agency Safety 
Plan required under 49 U.S.C. 5329(d), or an Interim Agency Safety Plan 
in accordance with 49 CFR part 659, as in effect until completion of the 
Public Transportation Agency Safety Plan, and may incorporate or 
reference applicable emergency relief and disaster preparedness plans 
and strategies and policies that support homeland security, as 
appropriate, to safeguard the personal security of all motorized and 
non-motorized users.
    (j) An MPO may, while fitting the needs and complexity of its 
community, voluntarily elect to develop multiple scenarios for 
consideration as part of the development of the metropolitan 
transportation plan.
    (1) An MPO that chooses to develop multiple scenarios under this 
paragraph (i) is encouraged to consider:
    (i) Potential regional investment strategies for the planning 
horizon;
    (ii) Assumed distribution of population and employment;
    (iii) A scenario that, to the maximum extent practicable, maintains 
baseline conditions for the performance areas identified in Sec. 
450.306(d) and measures established under 23 CFR part 490;
    (iv) A scenario that improves the baseline conditions for as many of 
the performance measures identified in Sec. 450.306(d) as possible;
    (v) Revenue constrained scenarios based on the total revenues 
expected to be available over the forecast period of the plan; and
    (vi) Estimated costs and potential revenues available to support 
each scenario.
    (2) In addition to the performance areas identified in 23 U.S.C. 
150(c), 49 U.S.C. 5326(c), and 5329(d), and the measures established 
under 23 CFR part 490, MPOs may evaluate scenarios developed under this 
paragraph using locally developed measures.
    (k) The MPO(s) shall provide individuals, affected public agencies, 
representatives of public transportation employees, public ports, 
freight shippers, providers of freight transportation services, private 
providers of transportation (including intercity bus operators, 
employer-based commuting programs, such as carpool program,

[[Page 139]]

vanpool program, transit benefit program, parking cashout program, 
shuttle program, or telework program), 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).
    (l) The MPO(s) shall publish or otherwise make readily available the 
metropolitan transportation plan for public review, including (to the 
maximum extent practicable) in electronically accessible formats and 
means, such as the World Wide Web.
    (m) A State or MPO is not required to select any project from the 
illustrative list of additional projects included in the financial plan 
under paragraph (f)(11) of this section.
    (n) In nonattainment and maintenance areas for transportation-
related pollutants, the MPO(s), 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, subpart A). A 12-month 
conformity lapse grace period will be implemented when an area misses an 
applicable deadline, in accordance with the Clean Air Act and the 
transportation conformity regulations (40 CFR part 93, subpart A). At 
the end of this 12-month grace period, the existing conformity 
determination will lapse. 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, or consistent with, the most recent conforming transportation plan 
and TIP may proceed immediately without revisiting the requirements of 
this section, subject to interagency consultation defined in 40 CFR part 
93, subpart A. An interim metropolitan transportation plan containing 
eligible projects that are not from, or consistent with, the most recent 
conforming transportation plan and TIP must meet all the requirements of 
this section.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.326  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 MPA. If 
more than one MPO has been designated to serve an MPA, those MPOs within 
the MPA shall jointly develop a single TIP for the MPA. The TIP shall 
reflect the investment priorities established in the current 
metropolitan transportation plan and shall cover a period of no less 
than 4 years, be updated at least every 4 years, and be approved by the 
MPO(s) and the Governor(s). However, if the TIP covers more than 4 
years, the FHWA and the FTA will consider the projects in the additional 
years as informational. The MPO(s) may update the TIP 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(s), must make a conformity determination on 
any updated or amended TIP, in accordance with the Clean Air Act 
requirements and the EPA's transportation conformity regulations (40 CFR 
part 93, subpart A).
    (b) The MPO(s) 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(s) 
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 MPO(s) shall 
publish or otherwise make readily available the TIP for public review, 
including (to the maximum extent practicable) in electronically 
accessible formats and means,

[[Page 140]]

such as the World Wide Web, as described in Sec. 450.316(a).
    (c) The TIP shall be designed such that once implemented, it makes 
progress toward achieving the performance targets established under 
Sec. 450.306(d).
    (d) The TIP shall include, to the maximum extent practicable, a 
description of the anticipated effect of the TIP toward achieving the 
performance targets identified in the metropolitan transportation plan, 
linking investment priorities to those performance targets.
    (e) The TIP shall include capital and non-capital surface 
transportation projects (or phases of projects) within the boundaries of 
the metropolitan planning area proposed for funding under 23 U.S.C. and 
49 U.S.C. Chapter 53 (including transportation alternatives; associated 
transit improvements; Tribal Transportation Program, Federal Lands 
Transportation Program, and Federal Lands Access Program projects; HSIP 
projects; trails projects; accessible pedestrian walkways; and bicycle 
facilities), except the following that may be included:
    (1) Safety projects funded under 23 U.S.C. 402 and 49 U.S.C. 31102;
    (2) Metropolitan planning projects funded under 23 U.S.C. 104(d), 
and 49 U.S.C. 5305(d);
    (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, metropolitan planning 
projects funded with Surface Transportation Program 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.
    (f) 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 shall 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.
    (g) 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 4 
years of the TIP;
    (3) The amount of Federal funds proposed to be obligated during each 
program year for the project or phase (for the first year, this includes 
the proposed category of Federal funds and source(s) of non-Federal 
funds. For the second, third, and fourth years, this includes the likely 
category or possible categories of Federal funds and sources of non-
Federal funds);
    (4) Identification of the agencies responsible for carrying out the 
project or phase;
    (5) In nonattainment and maintenance areas, identification of those 
projects that 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 
regulations (40 CFR part 93, subpart A); and
    (7) In areas with Americans with Disabilities Act required 
paratransit and key station plans, identification of those projects that 
will implement these plans.
    (h) 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, project classifications must be

[[Page 141]]

consistent with the ``exempt project'' classifications contained in the 
EPA transportation conformity regulations (40 CFR part 93, subpart A). 
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.
    (i) Each project or project phase included in the TIP shall be 
consistent with the approved metropolitan transportation plan.
    (j) 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(s), 
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). 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(s) 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; and regionally significant projects 
that are not federally funded. For purposes of transportation operations 
and maintenance, the financial plan shall contain system-level estimates 
of costs and revenue sources that are reasonably expected to be 
available to adequately operate and maintain Federal-aid highways (as 
defined by 23 U.S.C. 101(a)(6)) and public transportation (as defined by 
title 49 U.S.C. Chapter 53). In addition, for illustrative purposes, the 
financial plan may include additional projects that would be included in 
the TIP if reasonable additional resources beyond those identified in 
the financial plan were to become available. Revenue and cost estimates 
for the TIP must use an inflation rate(s) to reflect ``year of 
expenditure dollars,'' based on reasonable financial principles and 
information, developed cooperatively by the MPO(s), State(s), and public 
transportation operator(s).
    (k) 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 2 years of the TIP shall be limited to those for which funds 
are available or committed. For 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, while 
federally supported facilities are 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. 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 regulations (40 CFR part 93, subpart A) and shall provide for 
their timely implementation.
    (l) In cases that the FHWA and the FTA find a TIP to be fiscally 
constrained and a revenue source is subsequently removed or 
substantially reduced (i.e., by legislative or administrative actions), 
the FHWA and the FTA will not withdraw the original determination of 
fiscal constraint. However, in such cases, the FHWA and the FTA will not 
act on an updated or amended TIP that does not reflect the changed 
revenue situation.
    (m) Procedures or agreements that distribute suballocated Surface 
Transportation Program funds to individual jurisdictions or modes within 
the MPA by pre-determined percentages or formulas are inconsistent with 
the legislative provisions that require the MPO, in cooperation with the 
State and the public transportation operator, to develop a prioritized 
and financially constrained TIP and shall not be used unless they can be 
clearly shown to be based on considerations required to be

[[Page 142]]

addressed as part of the metropolitan transportation planning process.
    (n) 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.
    (o) In metropolitan nonattainment and maintenance areas, a 12-month 
conformity lapse grace period will be implemented when an area misses an 
applicable deadline, according to the Clean Air Act and the 
transportation conformity regulations (40 CFR part 93, subpart A). At 
the end of this 12-month grace period, the existing conformity 
determination will lapse. During a conformity lapse, MPOs may prepare an 
interim TIP as a basis for advancing projects that are eligible to 
proceed under a conformity lapse. An interim TIP consisting of eligible 
projects from, or consistent with, the most recent conforming 
metropolitan transportation plan and TIP may 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, or consistent with, the most recent 
conforming transportation plan and TIP must meet all the requirements of 
this section.
    (p) Projects in any of the first 4 years of the TIP may be advanced 
in place of another project in the first 4 years of the TIP, subject to 
the project selection requirements of Sec. 450.332. In addition, the 
MPO(s) may revise the TIP 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(s) participation plan (see Sec. 450.316(a)) and 
FHWA/FTA actions on the TIP (see Sec. 450.330).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.328  TIP revisions and relationship to the STIP.

    (a) An MPO(s) 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 a TIP 
amendment involves non-exempt projects (per 40 CFR part 93), or is 
replaced with an updated TIP, the MPO(s) 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. The MPO(s) 
shall use public participation procedures consistent with Sec. 
450.316(a) in revising the TIP, except that these procedures are not 
required for administrative modifications.
    (b) After approval by the MPO(s) and the Governor, the State shall 
include the TIP without change, directly or by reference, in the STIP 
required under 23 U.S.C. 135. In nonattainment and maintenance areas, 
the FHWA and the FTA must make a conformity finding on the TIP 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(s) and Federal land management 
agencies when it has included a TIP including projects under the 
jurisdiction of these agencies in the STIP.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.330  TIP action by the FHWA and the FTA.

    (a) The FHWA and the FTA shall jointly find that each metropolitan 
TIP is consistent with the metropolitan transportation plan produced by 
the continuing and 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

[[Page 143]]

MPO(s) under Sec. 450.336, 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 an MPO(s) has not updated the metropolitan transportation 
plan in accordance with the cycles defined in Sec. 450.324(c), projects 
may only be advanced from a TIP that was approved and found to conform 
(in nonattainment and maintenance areas) prior to expiration of the 
metropolitan transportation plan and meets the TIP update requirements 
of Sec. 450.326(a). Until the MPO(s) approves (in attainment areas) or 
the FHWA and the FTA issue a conformity determination on (in 
nonattainment and maintenance areas) the updated metropolitan 
transportation plan, the MPO(s) may not amend the TIP.
    (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. 
450.220(b).
    (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 the FTA may approve highway and transit operating 
assistance for specific projects or programs, even though the projects 
or programs may not be included in an approved TIP.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.332  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. 450.326 has been developed and approved, the 
first year of the TIP will 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, the MPO, the State, and the public transportation operator(s) if 
requested by the MPO, the State, or the public transportation 
operator(s) shall jointly develop a revised ``agreed to'' list of 
projects. 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, the State and/or 
the public transportation operator(s), in cooperation with the MPO(s) 
shall select projects to be implemented using title 23 U.S.C. funds 
(other than Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program projects) or funds under title 
49 U.S.C. Chapter 53, from the approved metropolitan TIP. Tribal 
Transportation Program, Federal Lands Transportation Program, and 
Federal Lands Access Program projects shall be selected in accordance 
with procedures developed pursuant to 23 U.S.C. 201, 202, 203, and 204.
    (c) In areas designated as TMAs, the MPO(s) shall select all 23 
U.S.C. and 49 U.S.C. Chapter 53 funded projects (excluding projects on 
the NHS and Tribal Transportation Program, Federal Lands Transportation 
Program, and Federal Lands Access Program) in consultation with the 
State and public transportation operator(s) from the approved TIP and in 
accordance with the priorities in the approved TIP. The

[[Page 144]]

State shall select projects on the NHS in cooperation with the MPO(s), 
from the approved TIP. Tribal Transportation Program, Federal Lands 
Transportation Program, and Federal Lands Access Program projects shall 
be selected in accordance with procedures developed pursuant to 23 
U.S.C. 201, 202, 203, and 204.
    (d) Except as provided in Sec. 450.326(e) and Sec. 450.330(f), 
projects not included in the federally approved STIP are not 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, subpart A).

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.334  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 program year, the State, 
public transportation operator(s), and the MPO(s) 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) 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. 450.326(g)(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.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.336  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 4 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) and 49 CFR part 21;
    (4) 49 U.S.C. 5332, prohibiting discrimination on the basis of race, 
color, creed, national origin, sex, or age in employment or business 
opportunity;
    (5) Section 1101(b) of the FAST Act (Pub. L. 114-357) and 49 CFR 
part 26 regarding the involvement of disadvantaged business enterprises 
in DOT funded projects;
    (6) 23 CFR part 230, regarding the implementation of an equal 
employment opportunity program on Federal and Federal-aid highway 
construction contracts;
    (7) 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;
    (8) 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;
    (9) Section 324 of title 23 U.S.C. regarding the prohibition of 
discrimination based on gender; and
    (10) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) 
and 49 CFR part 27 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 
4 years to determine if the process meets the requirements of applicable 
provisions of Federal law and this subpart.

[[Page 145]]

    (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 the 
MPO(s) and the Governor have approved a TIP, jointly certify the 
transportation planning process;
    (ii) If the process substantially meets the requirements of this 
part and the MPO(s) and the Governor have approved a TIP, 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(s) 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 4 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 FHWA and the FTA shall notify the MPO(s), the State(s), and 
public transportation operator(s) 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.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



Sec. 450.338  Applicability of NEPA to metropolitan transportation
plans and programs.

    Any decision by the Secretary concerning a metropolitan 
transportation plan or TIP developed through the processes provided for 
in 23 U.S.C. 134, 49 U.S.C. 5303, and this subpart shall not be 
considered to be a Federal action subject to review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).



Sec. 450.340  Phase-in of new requirements.

    (a) Prior to May 27, 2018, an MPO or MPOs may adopt a metropolitan 
transportation plan that has been developed using the SAFETEA-LU 
requirements or the provisions and requirements of this part. On or 
after May 27, 2018, an MPO or MPOs may not adopt a metropolitan 
transportation plan that has not been developed according to the 
provisions and requirements of this part.
    (b) Prior to May 27, 2018 (2 years after the publication date of 
this rule), FHWA/FTA may determine the conformity of, or approve as part 
of a STIP, a TIP that has been developed using SAFETEA-LU requirements 
or the provisions and requirements of this part. On or after May 27, 
2018 (2 years after the publication date of this rule), FHWA/FTA may 
only determine the conformity of, or approve as part of a STIP, a TIP 
that has been developed according to the provisions and requirements of 
this part, regardless of when the MPO developed the TIP.
    (c) On and after May 27, 2018 (2 years after the issuance date of 
this rule), the FHWA and the FTA will take action (i.e., conformity 
determinations and STIP approvals) on an updated or amended TIP 
developed under the provisions of this part, even if the MPO

[[Page 146]]

has not yet adopted a new metropolitan transportation plan under the 
provisions of this part, as long as the underlying transportation 
planning process is consistent with the requirements in the MAP-21.
    (d) On or after May 27, 2018 (2 years after the publication date of 
this rule), an MPO may make an administrative modification to a TIP that 
conforms to either the SAFETEA-LU or to the provisions and requirements 
of this part.
    (e) Two years from the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, and 49 
U.S.C. 5329 FHWA/FTA will only determine the conformity of, or approve 
as part of a STIP, a TIP that is based on a metropolitan transportation 
planning process that meets the performance based planning requirements 
in this part and in such a rule.
    (f) Prior to 2 years from the effective date of each rule 
establishing performance measures under 23 U.S.C. 150(c), 49 U.S.C. 
5326, or 49 U.S.C. 5329, an MPO may adopt a metropolitan transportation 
plan that has been developed using the SAFETEA-LU requirements or the 
performance-based planning requirements of this part and in such a rule. 
Two years on or after the effective date of each rule establishing 
performance measures under 23 U.S.C. 150(c), 49 U.S.C. 5326, or 49 
U.S.C. 5329, an MPO may only adopt a metropolitan transportation plan 
that has been developed according to the performance-based provisions 
and requirements of this part and in such a rule.
    (g) A newly designated TMA shall implement the congestion management 
process described in Sec. 450.322 within 18 months of designation.
    (h) With respect to requirements added in Sec. Sec. 450.306(d)(5); 
450.310(e); 450.312(a), (h), (i), and (j); 450.314(e), (f), (g), and 
(h); 450.324(c), (d), (e), (f), (h), (k), (l), and (n); 450.326; 
450.330; 450.332(c); 450.334(a); and 450.336(b) on January 19, 2017: 
States and MPOs shall comply with the MPA boundary and MPO boundaries 
agreement provisions, shall document the determination of the Governor 
and MPO(s) whether the size and complexity of the MPA make multiple MPOs 
appropriate, and the MPOs shall comply with the requirements for jointly 
established performance targets, and a single metropolitan 
transportation plan and TIP for the entire MPA, prior to the next 
metropolitan transportation plan update occurring on or after the date 
that is 2 years after the date the U.S. Census Bureau releases its 
notice of Qualifying Urban Areas following the 2020 census.

[81 FR 34135, May 27, 2016, as amended at 81 FR 93473, Dec. 20, 2016]



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

                         Background and Overview

    This Appendix provides additional information to explain the linkage 
between the transportation planning and project development/National 
Environmental Policy Act (NEPA) processes. It is intended to be non-
binding and should not be construed as a rule of general applicability.
    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 
environmental 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 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), or planning-level corridor/subarea/feasibility studies. 
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

[[Page 147]]

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 
Issues,'' ``Substantive Issues,'' and ``Administrative Issues'').

                          I. Procedural Issues

  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, State DOT, or public transportation 
operator 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).

[[Page 148]]

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'' collectively 
means the U.S. Department of Transportation and a State or local 
governmental entity serving as a joint lead agency for the 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, 
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.

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

    The lead agencies jointly decide, and must agree, 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 decisions by the lead agencies 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.

[[Page 149]]

   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., those of 
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 Issues

                     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 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 
transportation planning process related to land use, economic 
development, transportation costs, and network expansion consistent with 
those to be used in the NEPA 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 those 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 and 
the public during NEPA scoping?
      During 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?

[[Page 150]]

                            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.
    23 U.S.C. 139(f), as amended by the SAFETEA-LU Section 6002, 
provides 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 (e.g., 
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 during NEPA scoping and 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 decision-making 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 the first-tier EIS evaluates general travel corridors, 
modes, and/or packages of projects 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 project or series of projects. 
Subsequently, second-tier NEPA review(s) of the resulting projects would 
be performed in the usual way. The first-tier EIS uses the NEPA process 
as a tool to involve environmental, regulatory, and resource agencies 
and the public in the planning decisions, as well as to ensure the 
appropriate consideration of environmental factors in these planning 
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 planning study.

                              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

[[Page 151]]

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 or the ``Least Environmentally Damaging Practicable 
Alternative'' under the Clean Water Act.

    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 its 
start. Each approach requires careful attention, and is summarized 
below.
    (a) Shaping the Purpose and Need for the Project: The transportation 
planning process 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 
(e.g., 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.
    Development of planning Alternatives Analysis studies, required 
prior to MAP-21 for projects seeking funds through FTA's Capital 
Investment Grant program, are now optional, but may still be used to 
narrow the alternatives prior to the NEPA review, just as other planning 
studies may be used. In fact, through planning studies, 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. 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);

[[Page 152]]

    (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 participating 
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 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) Geographic information system (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, special area management 
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 or current 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 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.

[[Page 153]]

                        Environmental Mitigation

  15. How can planning-level efforts best support advance mitigation, 
    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), STP, and Equity Bonus); 
and
      FTA planning and research funds (49 U.S.C. 5303), 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

[[Page 154]]

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 and its successor in SAFETEA-LU section 
6002 speak 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 2015), over 200 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 work plans have evolved to describe 
performance objectives, as well as specific roles and responsibilities 
related to new streamlining initiatives. Some States have improved 
collaboration and 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.

                IV. Additional Information on This Topic

    Valuable sources of information are FHWA's environment Web site 
(http://www.fhwa.dot.gov/environment/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??????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 
(www.transportation.environment.org).

[[Page 155]]



PART 460_PUBLIC ROAD MILEAGE FOR APPORTIONMENT OF HIGHWAY SAFETY FUNDS
--Table of Contents



Sec.
460.1 Purpose.
460.2 Definitions.
460.3 Procedures.

    Authority: 23 U.S.C. 315, 402(c); 49 CFR 1.48.

    Source: 40 FR 44322, Sept. 26, 1975, unless otherwise noted.



Sec. 460.1  Purpose.

    The purpose of this part is to prescribe the policies and procedures 
followed in identifying and reporting public road mileage for 
utilization in the statutory formula for the apportionment of highway 
safety funds under 23 U.S.C. 402(c).



Sec. 460.2  Definitions.

    As used in this part:
    (a) Public road means any road under the jurisdiction of and 
maintained by a public authority and open to public travel.
    (b) Public authority means a Federal, State, county, town, or 
township, Indian tribe, municipal or other local government or 
instrumentality thereof, with authority to finance, build, operate or 
maintain toll or toll-free highway facilities.
    (c) Open to public travel means that the road section is available, 
except during scheduled periods, extreme weather or emergency 
conditions, passable by four-wheel standard passenger cars, and open to 
the general public for use without restrictive gates, prohibitive signs, 
or regulation other than restrictions based on size, weight, or class of 
registration. Toll plazas of public toll roads are not considered 
restrictive gates.
    (d) Maintenance means the preservation of the entire highway, 
including surfaces, shoulders, roadsides, structures, and such traffic 
control devices as are necessary for its safe and efficient utilization.
    (e) State means any one of the 50 States, the District of Columbia, 
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands. For the purpose of the 
application of 23 U.S.C. 402 on Indian reservations, State and Governor 
of a State include the Secretary of the Interior.

[40 FR 44322, Sept. 26, 1975, as amended at 76 FR 12849, Mar. 9, 2011]



Sec. 460.3  Procedures.

    (a) General requirements. 23 U.S.C. 402(c) provides that funds 
authorized to carry out section 402 shall be apportioned according to a 
formula based on population and public road mileage of each State. 
Public road mileage shall be determined as of the end of the calendar 
year preceding the year in which the funds are apportioned and shall be 
certified to by the Governor of the State or his designee and subject to 
the approval of the Federal Highway Administrator.
    (b) State public road mileage. Each State must annually submit a 
certification of public road mileage within the State to the Federal 
Highway Administration Division Administrator by the date specified by 
the Division Administrator. Public road mileage on Indian reservations 
within the State shall be identified and included in the State mileage 
and in computing the State's apportionment.
    (c) Indian reservation public road mileage. The Secretary of the 
Interior or his designee will submit a certification of public road 
mileage within Indian reservations to the Federal Highway Administrator 
by June 1 of each year.
    (d) Action by the Federal Highway Administrator. (1) The 
certification of Indian reservation public road mileage, and the State 
certifications of public road mileage together with comments thereon, 
will be reviewed by the Federal Highway Administrator. He will make a 
final determination of the public road mileage to be used as the basis 
for apportionment of funds under 23 U.S.C. 402(c). In any instance in 
which the Administrator's final determination differs from the public 
road mileage certified by a State or the Secretary of the Interior, the 
Administrator will advise the State or the Secretary of the Interior of 
his final determination and the reasons therefor.

[[Page 156]]

    (2) If a State fails to submit a certification of public road 
mileage as required by this part, the Federal Highway Administrator may 
make a determination of the State's public road mileage for the purpose 
of apportioning funds under 23 U.S.C. 402(c). The State's public road 
mileage determined by the Administrator under this subparagraph may not 
exceed 90 percent of the State's public road mileage utilized in 
determining the most recent apportionment of funds under 23 U.S.C. 
402(c).



PART 470_HIGHWAY SYSTEMS--Table of Contents



                  Subpart A_Federal-aid Highway Systems

Sec.
470.101 Purpose.
470.103 Definitions.
470.105 Urban area boundaries and highway functional classification.
470.107 Federal-aid highway systems.
470.109 System procedures--General.
470.111 Interstate System procedures.
470.113 National Highway System procedures.
470.115 Approval authority.

Appendix A to Subpart A of Part 470--Guidance Criteria for Evaluating 
          Requests for Interstate System Designations under 23 U.S.C. 
          103(c)(4)(A) and (B)
Appendix B to Subpart A of Part 470--Designation of Segments of Section 
          332(a)(2) Corridors as Parts of the Interstate System
Appendix C to Subpart A of Part 470--Policy for the Signing and 
          Numbering of Future Interstate Corridors Designated by Section 
          332 of the NHS Designation Act of 1995 or Designated Under 23 
          U.S.C. 103(c)(4)(B)
Appendix D to Subpart A of Part 470--Guidance Criteria for Evaluating 
          Requests for Modifications to the National Highway System

Subparts B-C [Reserved]

    Authority: 23 U.S.C. 103(b)(2), 103(c), 134, 135, and 315; and 49 
CFR 1.48(b).

    Source: 40 FR 42344, Sept. 12, 1975, unless otherwise noted. 
Redesignated at 41 FR 51396, Nov. 22, 1976.



                  Subpart A_Federal-aid Highway Systems

    Source: 62 FR 33355, June 19, 1997, unless otherwise noted.



Sec. 470.101  Purpose.

    This part sets forth policies and procedures relating to the 
identification of Federal-aid highways, the functional classification of 
roads and streets, the designation of urban area boundaries, and the 
designation of routes on the Federal-aid highway systems.



Sec. 470.103  Definitions.

    Except as otherwise provided in this part, terms defined in 23 
U.S.C. 101(a) are used in this part as so defined.
    Consultation means that one party confers with another identified 
party and, prior to taking action(s), considers that party's views.
    Cooperation means that the parties involved in carrying out the 
planning, programming and management systems processes work together to 
achieve a common goal or objective.
    Coordination means the comparison of the transportation plans, 
programs, and schedules of one agency with related plans, programs, and 
schedules of other agencies or entities with legal standing, and 
adjustment of plans, programs, and schedules to achieve general 
consistency.
    Federal-aid highway systems means the National Highway System and 
the Dwight D. Eisenhower National System of Interstate and Defense 
Highways (the ``Interstate System'').
    Federal-aid highways means highways on the Federal-aid highway 
systems and all other public roads not classified as local roads or 
rural minor collectors.
    Governor means the chief executive of the State and includes the 
Mayor of the District of Columbia.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for the metropolitan planning 
area in which the metropolitan transportation planning process required 
by 23 U.S.C. 134 and 49 U.S.C. 5303-5305 must be carried out.
    Responsible local officials means--
    (1) In urbanized areas, principal elected officials of general 
purpose local governments acting through the Metropolitan Planning 
Organization designated by the Governor, or
    (2) In rural areas and urban areas not within any urbanized area, 
principal

[[Page 157]]

elected officials of general purpose local governments.
    State means any one of the fifty States, the District of Columbia, 
Puerto Rico, or, for purposes of functional classification of highways, 
the Virgin Islands, American Samoa, Guam, or the Commonwealth of the 
Northern Marianas.



Sec. 470.105  Urban area boundaries and highway functional 
classification.

    (a) Urban area boundaries. Routes on the Federal-aid highway systems 
may be designated in both rural and urban areas. Guidance for 
determining the boundaries of urbanized and nonurbanized urban areas is 
provided in the FHWA's Functional Classification Guidelines. \1\
---------------------------------------------------------------------------

    \1\ The Functional Classification Guidelines can be viewed at http:/
/www.fhwa.dot.gov/planning/fctoc.htm.
---------------------------------------------------------------------------

    (b) Highway functional classification. (1) The State transportation 
agency shall have the primary responsibility for developing and updating 
a statewide highway functional classification in rural and urban areas 
to determine functional usage of the existing roads and streets. 
Guidance criteria and procedures are provided in the FHWA's Functional 
Classification Guidelines. The State shall cooperate with responsible 
local officials, or appropriate Federal agency in the case of areas 
under Federal jurisdiction, in developing and updating the functional 
classification.
    (2) The results of the functional classification shall be mapped and 
submitted to the Federal Highway Administration (FHWA) for approval and 
when approved shall serve as the official record for Federal-aid 
highways and the basis for designation of the National Highway System.

[62 FR 33355, June 19, 1997, as amended at 76 FR 6691, Feb. 8, 2011]



Sec. 470.107  Federal-aid highway systems.

    (a) Interstate System. (1) The Dwight D. Eisenhower National System 
of Interstate and Defense Highways (Interstate System) shall consist of 
routes of highest importance to the Nation, built to the uniform 
geometric and construction standards of 23 U.S.C. 109(h), which connect, 
as directly as practicable, the principal metropolitan areas, cities, 
and industrial centers, including important routes into, through, and 
around urban areas, serve the national defense and, to the greatest 
extent possible, connect at suitable border points with routes of 
continental importance in Canada and Mexico.
    (2) The portion of the Interstate System designated under 23 U.S.C. 
103(c)(1)(D)(2) shall not exceed 69,230 kilometers (43,000 miles). 
Additional Interstate System segments are permitted under the provisions 
of 23 U.S.C. 103(c)(4) and section 1105(e)(5)(A) of the Intermodal 
Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 
105 Stat. 1914, as amended.
    (b) National Highway System. (1) The National Highway System shall 
consist of interconnected urban and rural principal arterials and 
highways (including toll facilities) which serve major population 
centers, international border crossings, ports, airports, public 
transportation facilities, other intermodal transportation facilities 
and other major travel destinations; meet national defense requirements; 
and serve interstate and interregional travel. All routes on the 
Interstate System are a part of the National Highway System.
    (2) The National Highway System shall not exceed 286,983 kilometers 
(178,250 miles).
    (3) The National Highway System shall include the Strategic Highway 
Corridor Network (STRAHNET) and its highway connectors to major military 
installations, as designated by the Administrator in consultation with 
appropriate Federal agencies and the States. The STRAHNET includes 
highways which are important to the United States strategic defense 
policy and which provide defense access, continuity, and emergency 
capabilities for the movement of personnel, materials, and equipment in 
both peace time and war time.
    (4) The National Highway System shall include all high priority 
corridors identified in section 1105(c) of the ISTEA.

[62 FR 33355, June 19, 1997, as amended at 76 FR 6691, Feb. 8, 2011]

[[Page 158]]



Sec. 470.109  System procedures--General.

    (a) The State transportation agency, in consultation with 
responsible local officials, shall have the responsibility for proposing 
to the Federal Highway Administration all official actions regarding the 
designation, or revision, of the Federal-aid highway systems.
    (b) The routes of the Federal-aid highway systems shall be proposed 
by coordinated action of the State transportation agencies where the 
routes involve State-line connections.
    (c) The designation of routes on the Federal-aid highway systems 
shall be in accordance with the planning process required, pursuant to 
the provisions at 23 U.S.C. 135, and, in urbanized areas, the provisions 
at 23 U.S.C. 134(a). The State shall cooperate with local and regional 
officials. In urbanized areas, the local officials shall act through the 
metropolitan planning organizations designated for such areas under 23 
U.S.C. 134.
    (d) In areas under Federal jurisdiction, the designation of routes 
on the Federal-aid highway systems shall be coordinated with the 
appropriate Federal agency.



Sec. 470.111  Interstate System procedures.

    (a) Proposals for system actions on the Interstate System shall 
include a route description and a statement of justification. Proposals 
shall also include statements regarding coordination with adjoining 
States on State-line connections, with responsible local officials, and 
with officials of areas under Federal jurisdiction.
    (b) Proposals for Interstate or future Interstate designation under 
23 U.S.C. 103(c)(4)(A) or (B), as logical additions or connections, 
shall consider the criteria contained in appendix A of this subpart. For 
designation as a part of the Interstate system, 23 U.S.C. 103(c)(4)(A) 
requires that a highway meet all the standards of a highway on the 
Interstate System, be a logical addition or connection to the Interstate 
System, and have the affirmative recommendation of the State or States 
involved. For designation as a future part of the Interstate System, 23 
U.S.C. 103(c)(4)(B) requires that a highway be a logical addition or 
connection to the Interstate System, have the affirmative recommendation 
of the State or States involved, and have the written agreement of the 
State or States involved that such highway will be constructed to meet 
all the standards of a highway on the Interstate System within twenty-
five years of the date of the agreement between the FHWA Administrator 
and the State or States involved. Such highways must also be on the 
National Highway System.
    (c) Routes proposed for Interstate designation under section 
332(a)(2) of the NHS Designation Act of 1995 (NHS Act) shall be 
constructed to Interstate standards and connect to the Interstate 
System. Proposals shall consider the criteria contained in appendix B of 
this subpart.
    (d) Proposals for Interstate route numbering shall be submitted by 
the State transportation agency to the Route Numbering Committee of the 
American Association of State Highway and Transportation Officials.
    (e) Signing of corridors federally designated as future Interstate 
routes can follow the criteria contained in appendix C of this subpart. 
No law, rule, regulation, map, document, or other record of the United 
States, or of any State or political subdivision thereof, shall refer to 
any highway under 23 U.S.C. 103(c), nor shall any such highway be signed 
or marked, as a highway on the Interstate System until such time as such 
highway is constructed to the geometric and construction standards for 
the Interstate System and has been designated as a part of the 
Interstate System.

[62 FR 33355, June 19, 1997, as amended at 76 FR 6691, Feb. 8, 2011]



Sec. 470.113  National Highway System procedures.

    (a) Proposals for system actions on the National Highway System 
shall include a route description, a statement of justification, and 
statements of coordination with adjoining States on State-line 
connections, with responsible local officials, and with officials of 
areas under Federal jurisdiction.
    (b) Proposed modifications to the National Highway System shall 
enhance the national transportation characteristics of the National 
Highway System

[[Page 159]]

and shall follow the criteria listed in Sec. 470.107. Proposals shall 
also consider the criteria contained in appendix D of this subpart.



Sec. 470.115  Approval authority.

    (a) The Federal Highway Administrator will approve Federal-aid 
highway system actions involving the designation, or revision, of routes 
on the Interstate System, including route numbers, future Interstate 
routes, and routes on the National Highway System.
    (b) The Federal Highway Administrator will approve functional 
classification actions.



    Sec. Appendix A to Subpart A of Part 470--Guidance Criteria for 
 Evaluating Requests for Interstate System Designations under 23 U.S.C. 
                          103(c)(4)(A) and (B)

    Section 103(c)(4)(A) and (B), of title 23, U.S.C., permits States to 
request the designation of National Highway System routes as parts or 
future parts of the Interstate System. The FHWA Administrator may 
approve such a request if the route is a logical addition or connection 
to the Interstate System and has been, or will be, constructed to meet 
Interstate standards. The following are the general criteria to be used 
to evaluate 23 U.S.C. 103(c) requests for Interstate System 
designations.
    1. The proposed route should be of sufficient length to serve long-
distance Interstate travel, such as connecting routes between principal 
metropolitan cities or industrial centers important to national defense 
and economic development.
    2. The proposed route should not duplicate other Interstate routes. 
It should serve Interstate traffic movement not provided by another 
Interstate route.
    3. The proposed route should directly serve major highway traffic 
generators. The term ``major highway traffic generator'' means either an 
urbanized area with a population over 100,000 or a similar major 
concentrated land use activity that produces and attracts long-distance 
Interstate and statewide travel of persons and goods. Typical examples 
of similar major concentrated land use activities would include a 
principal industrial complex, government center, military installation, 
or transportation terminal.
    4. The proposed route should connect to the Interstate System at 
each end, with the exception of Interstate routes that connect with 
continental routes at an international border, or terminate in a ``major 
highway traffic generator'' that is not served by another Interstate 
route. In the latter case, the terminus of the Interstate route should 
connect to routes of the National Highway System that will adequately 
handle the traffic. The proposed route also must be functionally 
classified as a principal arterial and be a part of the National Highway 
System system.
    5. The proposed route must meet all the current geometric and safety 
standards criteria as set forth in 23 CFR part 625 for highways on the 
Interstate System, or a formal agreement to construct the route to such 
standards within 25 years must be executed between the State(s) and the 
Federal Highway Administration. Any proposed exceptions to the standards 
shall be approved at the time of designation.
    6. A route being proposed for designation under 23 U.S.C. 
103(c)(4)(B) must have an approved final environmental document 
(including, if required, a 49 U.S.C. 303(c) [Section 4(f)] approval) 
covering the route and project action must be ready to proceed with 
design at the time of designation. Routes constructed to Interstate 
standards are not necessarily logical additions to the Interstate System 
unless they clearly meet all of the above criteria.

[40 FR 42344, Sept. 12, 1975. Redesignated at 41 FR 51396, Nov. 22, 
1976, as amended at 76 FR 6692, Feb. 8, 2011]



  Sec. Appendix B to Subpart A of Part 470--Designation of Segments of 
      Section 332(a)(2) Corridors as Parts of the Interstate System

    The following guidance is comparable to current procedures for 
Interstate System designation requests under 23 U.S.C. 103(c)(4)(A). All 
Interstate System additions must be approved by the Federal Highway 
Administrator. The provisions of section 332(a)(2) of the NHS Act have 
also been incorporated into the ISTEA as section 1105(e)(5)(A).
    1. The request must be submitted through the appropriate FHWA 
Division Office to the Associate Administrator for Program Development 
(HEP-10). Comments and recommendations by the division and regional 
offices are requested.
    2. The State DOT secretary (or equivalent) must request that the 
route segment be added to the Interstate System. The exact location and 
termini must be specified. If the route segment involves more than one 
State, each affected State must submit a separate request.
    3. The request must provide information to support findings that the 
segment (a) is built to Interstate design standards and (b) connects to 
the existing Interstate System. The segment should be of sufficient 
length to

[[Page 160]]

provide substantial service to the travelling public.
    4. The request must also identify and justify any design exceptions 
for which approval is requested.
    5. Proposed Interstate route numbering for the segment must be 
submitted to FHWA and the American Association of State Highway and 
Transportation Officials Route Numbering.

[40 FR 42344, Sept. 12, 1975. Redesignated at 41 FR 51396, Nov. 22, 
1976, as amended at 76 FR 6692, Feb. 8, 2011]



  Sec. Appendix C to Subpart A of Part 470--Policy for the Signing and 
 Numbering of Future Interstate Corridors Designated by Section 332 of 
     the NHS Designation Act of 1995 or Designated Under 23 U.S.C. 
                              103(c)(4)(B)

                                 Policy

    State transportation agencies are permitted to erect informational 
Interstate signs along a federally designated future Interstate corridor 
only after the specific route location has been established for the 
route to be constructed to Interstate design standards.

                               Conditions

    1. The corridor must have been designated a future part of the 
Interstate System under section 332(a)(2) of the NHS Designation Act of 
1995 or 23 U.S.C. 103(c)(4)(B).
    2. The specific route location to appropriate termini must have 
received Federal Highway (FHWA) environmental clearance. Where FHWA 
environmental clearance is not required or Interstate standards have 
been met, the route location must have been publicly announced by the 
State.
    3. Numbering of future Interstate route segments must be coordinated 
with affected States and be approved by the American Association of 
State Highway and Transportation Officials and the FHWA at Headquarters. 
Short portions of a multistate corridor may require use of an interim 3-
digit number.
    4. The State shall coordinate the location and content of signing 
near the State line with the adjacent State.
    5. Signing and other identification of a future Interstate route 
segment must not indicate, nor imply, that the route is on the 
Interstate System.
    6. The FHWA Division Office must confirm in advance that the above 
conditions have been met and approve the general locations of signs.

                              Sign Details

    1. Signs may not be used to give directions and should be away from 
directional signs, particularly at interchanges.
    2. An Interstate shield may be located on a green informational sign 
of a few words. For example: Future Interstate Corridor or Future I-00 
Corridor.
    3. The Interstate shield may not include the word ``Interstate.''
    4. The FHWA Division Office must approve the signs as to design, 
wording, and detailed location.

[40 FR 42344, Sept. 12, 1975. Redesignated at 41 FR 51396, Nov. 22, 
1976, as amended at 76 FR 6692, Feb. 8, 2011]



    Sec. Appendix D to Subpart A of Part 470--Guidance Criteria for 
  Evaluating Requests for Modifications to the National Highway System

    Section 103(b), of title 23, U.S.C., allows the States to propose 
modifications to the National Highway System (NHS) and authorizes the 
Secretary to approve such modifications provided that they meet the 
criteria established for the NHS and enhance the characteristics of the 
NHS. In proposing modifications under 23 U.S.C. 103(b), the States must 
cooperate with local and regional officials. In urbanized areas, the 
local officials must act through the metropolitan planning organization 
(MPO) designated for such areas under 23 U.S.C. 134. The following 
guidance criteria should be used by the States to develop proposed 
modifications to the NHS.
    1. Proposed additions to the NHS should be included in either an 
adopted State or metropolitan transportation plan or program.
    2. Proposed additions should connect at each end with other routes 
on the NHS or serve a major traffic generator.
    3. Proposals should be developed in consultation with local and 
regional officials.
    4. Proposals to add routes to the NHS should include information on 
the type of traffic served (i.e., percent of trucks, average trip 
length, local, commuter, interregional, interstate) by the route, the 
population centers or major traffic generators served by the route, and 
how this service compares with existing NHS routes.
    5. Proposals should include information on existing and anticipated 
needs and any planned improvements to the route.
    6. Proposals should include information concerning the possible 
effects of adding or deleting a route to or from the NHS might have on 
other existing NHS routes that are in close proximity.
    7. Proposals to add routes to the NHS should include an assessment 
of whether modifications (adjustments or deletions) to

[[Page 161]]

existing NHS routes, which provide similar service, may be appropriate.
    8. Proposed modifications that might affect adjoining States should 
be developed in cooperation with those States.
    9. Proposed modifications consisting of connections to major 
intermodal facilities should be developed using the criteria set forth 
below. These criteria were used for identifying initial NHS connections 
to major intermodal terminals. The primary criteria are based on annual 
passenger volumes, annual freight volumes, or daily vehicular traffic on 
one or more principal routes that serve the intermodal facility. The 
secondary criteria include factors which underscore the importance of an 
intermodal facility within a specific State.

                            Primary Criteria

                      Commercial Aviation Airports

    1. Passengers--scheduled commercial service with more than 250,000 
annual enplanements.
    2. Cargo--100 trucks per day in each direction on the principal 
connecting route, or 100,000 tons per year arriving or departing by 
highway mode.

                                  Ports

    1. Terminals that handle more than 50,000 TEUs (a volumetric measure 
of containerized cargo which stands for twenty-foot equivalent units) 
per year, or other units measured that would convert to more than 100 
trucks per day in each direction. (Trucks are defined as large single-
unit trucks or combination vehicles handling freight.)
    2. Bulk commodity terminals that handle more than 500,000 tons per 
year by highway or 100 trucks per day in each direction on the principal 
connecting route. (If no individual terminal handles this amount of 
freight, but a cluster of terminals in close proximity to each other 
does, then the cluster of terminals could be considered in meeting the 
criteria. In such cases, the connecting route might terminate at a point 
where the traffic to several terminals begins to separate.)
    3. Passengers--terminals that handle more than 250,000 passengers 
per year or 1,000 passengers per day for at least 90 days during the 
year.

                               Truck/Rail

    1. 50,000 TEUs per year, or 100 trucks per day, in each direction on 
the principal connecting route, or other units measured that would 
convert to more than 100 trucks per day in each direction. (Trucks are 
defined as large single-unit trucks or combination vehicles carrying 
freight.)

                                Pipelines

    1. 100 trucks per day in each direction on the principal connecting 
route.

                                 Amtrak

    1. 100,000 passengers per year (entrainments and detrainments). 
Joint Amtrak, intercity bus and public transit terminals should be 
considered based on the combined passenger volumes. Likewise, two or 
more separate facilities in close proximity should be considered based 
on combined passenger volumes.

                              Intercity Bus

    1. 100,000 passengers per year (boardings and deboardings).

                             Public Transit

    1. Stations with park and ride lots with more than 500 vehicle 
parking spaces, or 5,000 daily bus or rail passengers, with significant 
highway access (i.e., a high percentage of the passengers arrive by cars 
and buses using a route that connects to another NHS route), or a major 
hub terminal that provides for the transfer of passengers among several 
bus routes. (These hubs should have a significant number of buses using 
a principal route connecting with the NHS.)

                                 Ferries

    1. Interstate/international--1,000 passengers per day for at least 
90 days during the year. (A ferry which connects two terminals within 
the same metropolitan area should be considered as local, not 
interstate.)
    2. Local--see public transit criteria above.

                           Secondary Criteria

    Any of the following criteria could be used to justify an NHS 
connection to an intermodal terminal where there is a significant 
highway interface:
    1. Intermodal terminals that handle more than 20 percent of 
passenger or freight volumes by mode within a State;
    2. Intermodal terminals identified either in the Intermodal 
Management System or the State and metropolitan transportation plans as 
a major facility;
    3. Significant investment in, or expansion of, an intermodal 
terminal; or
    4. Connecting routes targeted by the State, MPO, or others for 
investment to address an existing, or anticipated, deficiency as a 
result of increased traffic.

                          Proximate Connections

    Intermodal terminals, identified under the secondary criteria noted 
above, may not have sufficient highway traffic volumes to justify an NHS 
connection to the terminal. States and MPOs should fully consider

[[Page 162]]

whether a direct connection should be identified for such terminals, or 
whether being in the proximity (2 to 3 miles) of an NHS route is 
sufficient.

Subparts B-C [Reserved]



PART 490_NATIONAL PERFORMANCE MANAGEMENT MEASURES--Table of Contents



                      Subpart A_General Information

Sec.
490.101 Definitions.
490.103--490.109 [Reserved]
490.111 Incorporation by reference.

   Subpart B_National Performance Management Measures for the Highway 
                       Safety Improvement Program

490.201 Purpose.
490.203 Applicability.
490.205 Definitions.
490.207 National performance management measures for the Highway Safety 
          Improvement Program.
490.209 Establishment of performance targets.
490.211 Determining whether a State department of transportation has met 
          or made significant progress toward meeting performance 
          targets.
490.213 Reporting of targets for the Highway Safety Improvement Program.

  Subpart C_National Performance Management Measures for the Assessing 
                           Pavement Condition

490.301 Purpose.
490.303 Applicability.
490.305 Definitions.
490.307 National performance management measures for assessing pavement 
          condition.
490.309 Data requirements.
490.311 Calculation of pavement metrics.
490.313 Calculation of performance management measures.
490.315 Establishment of minimum level for condition of pavements.
490.317 Penalties for not maintaining minimum Interstate System pavement 
          condition.
490.319 Other requirements.

Subpart D_National Performance Management Measures for Assessing Bridge 
                                Condition

490.401 Purpose.
490.403 Applicability.
490.405 Definitions.
490.407 National performance management measures for assessing bridge 
          condition.
490.409 Calculation of National performance management measures for 
          assessing bridge condition.
490.411 Establishment of minimum level for condition for bridges.
490.413 Penalties for not maintaining bridge condition.

Subpart E_National Performance Management Measures To Assess Performance 
                     of the National Highway System

490.501 Purpose.
490.503 Applicability.
490.505 Definitions.
490.507 National performance management measures for system performance.
490.509 Data requirements.
490.511 Calculation of National Highway System performance metrics.
490.513 Calculation of National Highway System performance measures.

  Subpart F_National Performance Management Measures To Assess Freight 
                    Movement on the Interstate System

490.601 Purpose.
490.603 Applicability.
490.605 Definitions.
490.607 National performance management measures to assess freight 
          movement on the Interstate System.
490.609 Data requirements.
490.611 Calculation of Truck Travel Time Reliability metrics.
490.613 Calculation of Freight Reliability measure.

  Subpart G_National Performance Management Measure for Assessing the 
   Congestion Mitigation and Air Quality Improvement Program_Traffic 
                               Congestion

490.701 Purpose.
490.703 Applicability.
490.705 Definitions.
490.707 National performance management measure for traffic congestion.
490.709 Data requirements.
490.711 Calculation of Peak Hour Excessive Delay metric.
490.713 Calculation of Traffic Congestion measures.

    Subpart H_National Performance Management Measures to Assess the 
Congestion Mitigation and Air Quality Improvement Program_On-Road Mobile 
                            Source Emissions

490.801 Purpose.
490.803 Applicability.
490.805 Definitions.

[[Page 163]]

490.807 National performance management measure for assessing on-road 
          mobile source emissions for the purposes of the Congestion 
          Mitigation and Air Quality Improvement Program.
490.809 Data requirements.
490.811 Calculation of Total Emissions Reduction measure.

    Authority: 23 U.S.C. 134, 135, 148(i) and 150; 49 CFR 1.85.

    Source: 81 FR 13913, Mar. 15, 2016, unless otherwise noted.



                      Subpart A_General Information



Sec. 490.101  Definitions.

    Unless otherwise specified, the following definitions apply to this 
part:
    Highway Performance Monitoring System (HPMS) is a national level 
highway information system that includes data on the extent, condition, 
performance, use, and operating characteristics of the Nation's 
highways.
    Measure means an expression based on a metric that is used to 
establish targets and to assess progress toward meeting the established 
targets (e.g., a measure for flight on-time performance is percent of 
flights that arrive on time, and a corresponding metric is an arithmetic 
difference between scheduled and actual arrival time for each flight).
    Metric means a quantifiable indicator of performance or condition.
    Non-urbanized area means a single geographic area that comprises all 
of the areas in the State that are not ``urbanized areas'' under 23 
U.S.C. 101(a)(34).
    Target means a quantifiable level of performance or condition, 
expressed as a value for the measure, to be achieved within a time 
period required by the Federal Highway Administration (FHWA).



Sec. Sec. 490.103-490.109  [Reserved]



Sec. 490.111  Incorporation by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, FHWA must publish a notice of change in the 
Federal Register and the material must be available to the public. All 
approved material is available for inspection at the Federal Highway 
Administration, Office of Highway Policy Information (202-366-4631) and 
is available from the sources listed below. It is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html.
    (b)-(c) [Reserved]
    (d) American National Standards Institute, Inc., 1899 L Street NW., 
11th Floor, Washington, DC 20036, (202) 293-8020, www.ansi.org.
    (1) ANSI D16.1-2007, Manual on Classification of Motor Vehicle 
Traffic Accidents. 7th Edition, approved August 2, 2007 (also available 
from National Safety Council, 1121 Spring Lake Drive, Itasca, Illinois 
60143-3201, (http://www-nrd.nhtsa.dot.gov/Pubs/07D16.pdf) IBR approved 
for Sec. 490.205.
    (2) [Reserved]
    (e) The U.S. Department of Transportation, 1200 New Jersey Avenue 
SE., Washington, DC 20590, www.dot.gov.
    (1) DOT HS 811 631, Model Minimum Uniform Crash Criteria (MMUCC) 
Guideline, 4th Edition, July 2012 (also available at http://mmucc.us/
sites/default/files/MMUCC--4th--Ed.pdf) IBR approved for Sec. Sec. 
490.205 and 490.207(c).
    (2) [Reserved]

    Effective Date Note: At 82 FR 6031, Jan. 18, 2017, subpart A was 
revised, effective Feb. 17, 2017. At 82 FR 10441, Feb. 13, 2017, the 
effective date was delayed to Mar. 21, 2017. At 14438, Mar. 21, 2017, 
the effective date was further delayed until May 20, 2017. For the 
convenience of the user, the revised text is set forth as follows:



                      Subpart A_General Information



Sec. 490.101  Definitions.

    Unless otherwise specified, the following definitions apply to this 
part:
    American Community Survey (ACS) is a national level ongoing survey 
from the U.S. Census Bureau that includes data on jobs, occupations, 
educational attainment, transportations patterns, and other topics of 
the Nation's population.
    Attainment area as used in this part is defined in Sec. 450.104 of 
this chapter, Transportation Planning and Programming Definitions.

[[Page 164]]

    Bridge as used in this part is defined in Sec. 650.305 of this 
chapter, the National Bridge Inspection Standards.
    Criteria pollutant is any pollutant for which there is established a 
NAAQS at 40 CFR part 50. The transportation related criteria pollutants 
per 40 CFR 93.102(b)(1) are carbon monoxide, nitrogen dioxide, ozone, 
and particulate matter (PM10 and PM2.5).
    Full extent means continuous collection and evaluation of pavement 
condition data over the entire length of the roadway.
    Highway Performance Monitoring System (HPMS) is a national level 
highway information system that includes data on the extent, condition, 
performance, use, and operating characteristics of the Nation's 
highways.
    Mainline highways means the through travel lanes of any highway. 
Mainline highways specifically exclude ramps, shoulders, turn lanes, 
crossovers, rest areas, and other pavement surfaces that are not part of 
the roadway normally traveled by through traffic.
    Maintenance area as used in this part is defined in Sec. 450.104 of 
this chapter, Transportation Planning and Programming Definitions. For 
the purposes of this part, areas that have reached the end of their 20-
year maintenance period \1\ are not considered as maintenance areas.
---------------------------------------------------------------------------

    \1\ The maintenance period in CAA Section 175A (42 U.S.C. 7505a) 
requires the submittal of two maintenance plans totaling 20 years, 
unless the applicable implementation plan specifics a longer maintenance 
period. The end of the maintenance period is 20-years from the effective 
date of the re-designation to attainment and approval of the first 10-
year maintenance plan.
---------------------------------------------------------------------------

    Measure means an expression based on a metric that is used to 
establish targets and to assess progress toward achieving the 
established targets (e.g., a measure for flight on-time performance is 
percent of flights that arrive on time, and a corresponding metric is an 
arithmetic difference between scheduled and actual arrival time for each 
flight).
    Metric means a quantifiable indicator of performance or condition.
    Metropolitan Planning Organization (MPO) as used in this part is 
defined in Sec. 450.104 of this chapter, Transportation Planning and 
Programming Definitions.
    Metropolitan Planning Area as used in this part is defined in Sec. 
450.104 of this chapter, Transportation Planning and Programming 
Definitions.
    National Ambient Air Quality Standards (NAAQS) as used in this part 
is defined in Sec. 450.104 of this chapter, Transportation Planning and 
Programming Definitions.
    National Bridge Inventory (NBI) is an FHWA database containing 
bridge information and inspection data for all highway bridges on public 
roads, on and off Federal-aid highways, including tribally owned and 
federally owned bridges, that are subject to the National Bridge 
Inspection Standards (NBIS).
    National Performance Management Research Data Set (NPMRDS) means a 
data set derived from vehicle/passenger probe data (sourced from Global 
Positioning Station (GPS), navigation units, cell phones) that includes 
average travel times representative of all traffic on each mainline 
highway segment of the National Highway System (NHS), and additional 
travel times representative of freight trucks for those segments that 
are on the Interstate System. The data set includes records that contain 
average travel times for every 15 minutes of every day (24 hours) of the 
year recorded and calculated for every travel time segment where probe 
data are available. The NPMRDS does not include any imputed travel time 
data.
    Nonattainment area as used in this part is defined in Sec. 450.104 
of this chapter, Transportation Planning and Programming Definitions.
    Non-SOV travel is defined as any travel mode other than driving 
alone in a motorized vehicle (i.e., single occupancy vehicle or SOV 
travel), including travel avoided by telecommuting.
    Non-urbanized area means a single geographic area that comprises all 
of the areas in the State that are not ``urbanized areas'' under 23 
U.S.C. 101(a)(34).
    Performance period means a determined time period during which 
condition/performance is measured and evaluated to: Assess condition/
performance with respect to baseline condition/performance; and track 
progress toward the achievement of the targets that represent the 
intended condition/performance level at the midpoint and at the end of 
that time period. The term ``performance period'' applies to all 
measures in this part, except the measures for the Highway Safety 
Improvement Program (HSIP) in subpart B of this part. Each performance 
period covers a 4-year duration beginning on a specified date (provided 
in Sec. 490.105).
    Reporting segment means the length of roadway that the State 
Department of Transportation (DOT) and MPOs define for metric 
calculation and reporting and is comprised of one or more travel time 
segments.
    Target means a quantifiable level of performance or condition, 
expressed as a value for the measure, to be achieved within a time 
period required by the Federal Highway Administration (FHWA).
    Transportation Management Area (TMA) as used in this part is defined 
in Sec. 450.104 of this chapter, Transportation Planning and 
Programming Definitions.
    Travel time data set means either the NPMRDS or an equivalent data 
set that is used by State DOTs and MPOs as approved

[[Page 165]]

by FHWA, to carry out the requirements in subparts E, F, and G of this 
part.
    Travel time reliability means the consistency or dependability of 
travel times from day to day or across different times of the day.
    Travel time segment means a contiguous stretch of the NHS for which 
average travel time data are summarized in the travel time data set.
    Truck freight bottleneck, as used in this part, is defined as a 
segment of roadway identified by the State DOT as having constraints 
that cause a significant impact on freight mobility and reliability. 
Bottlenecks may include highway sections that do not meet thresholds for 
freight reliability identified in Sec. 490.613 or other locations 
identified by the State DOT. Causes may include recurring congestion, 
causing delays in freight movement, or roadway features that impact 
truck movements, such as steep grades, substandard vertical or 
horizontal clearances, weight restrictions, delays at border crossings 
or terminals, or truck operating restrictions.



Sec. 490.103  Data requirements.

    (a) In general. Unless otherwise noted in paragraphs (b) through (g) 
of this section, the data requirements in this section apply to the 
measures identified in subparts C through H of this part. Additional 
data requirements for specific performance management measures are 
identified in 23 CFR sections--
    (1) 490.309 for the condition of pavements on the Interstate System;
    (2) 490.309 for the condition of pavements on the non-Interstate 
NHS;
    (3) 490.409 for the condition of bridges on the NHS;
    (4) 490.509 for the performance of the Interstate System;
    (5) 490.509 for the performance of the non-Interstate NHS;
    (6) 490.609 for the freight movement on the Interstate System;
    (7) 490.709 for traffic congestion; and
    (8) 490.809 for on-road mobile source emissions.
    (b) Urbanized area data. The State DOTs shall submit urbanized area 
data, including boundaries of urbanized areas, in accordance with the 
HPMS Field Manual for the purpose of the additional targets for 
urbanized and non-urbanized areas in Sec. 490.105(e) and establishing 
and reporting on targets for the CMAQ Traffic Congestion measures in 
Sec. 490.707. The boundaries of urbanized areas shall be identified 
based on the most recent U.S. Decennial Census, unless FHWA approves 
adjustments to the urbanized area as provided by 23 U.S.C. 101(a)(34) 
and these adjustments are submitted to HPMS.
    (c) Nonattainment and maintenance areas data. The State DOTs shall 
use the nonattainment and maintenance areas boundaries based on the 
effective date of U.S. Environmental Protection Agency (EPA) 
designations in 40 CFR part 81.
    (d) National Highway System data. The State DOTs shall document and 
submit the extent of the NHS in accordance with the HPMS Field Manual.
    (e) Travel time data set. Travel time data needed to calculate the 
measures in subparts E, F, and G of this part will come from the NPMRDS, 
unless the State DOT requests, and FHWA approves, the use of an 
equivalent data source(s) that meets the requirements of this section. 
The State DOT shall establish, in coordination with applicable MPOs, a 
single travel time data set (i.e., NPMRDS or equivalent data set) that 
will be used to calculate the annual metrics in subparts E, F, and G of 
this part. The same data source shall be used for each calendar year. A 
State DOT and MPO(s) must use the same travel time data set for each 
reporting segment for the purposes of calculating the metrics and 
measures. The use of equivalent data source(s) shall comply with the 
following:
    (1) State DOTs and MPOs shall use the same equivalent data source(s) 
for a calendar year;
    (2) The State DOT shall request FHWA approval for the use of such 
equivalent data source(s) no later than October 1st before the beginning 
of the calendar year in which the data source would be used to calculate 
metrics and FHWA must approve the use of that data source prior to a 
State DOT and MPO(s)'s implementation and use of that data source;
    (3) The State DOT shall make the equivalent data source(s) available 
to FHWA, on request;
    (4) The State DOT shall maintain and use a documented data quality 
plan to routinely check the quality and accuracy of data contained 
within the equivalent data source(s); and
    (5) If approved by FHWA, the equivalent data source(s) shall:
    (i) Be used by both the State DOT and all MPOs within the State for 
all applicable travel time segments and be referenced by HPMS location 
referencing standards; and
    (ii) In combination with or in place of NPMRDS data, include:
    (A) Contiguous segments that cover the mainline highways full NHS, 
as defined in 23 U.S.C. 103, within the State and MPO boundary; and
    (B) Average travel times for at least the same number of 15 minute 
intervals and the same locations that would be available in the NPMRDS;
    (iii) Be populated with observed measured vehicle travel times and 
shall not be populated with travel times derived from imputed (historic 
travel times or other estimates) methods. Segment travel times may be 
derived from travel times reported over a

[[Page 166]]

longer time period of measurement (path processing or equivalent);
    (iv) Include, for each segment at 15 minute intervals throughout the 
time periods specified in paragraphs (e)(5)(iv)(A) and (B) of this 
section for each day of the year, the average travel time, recorded to 
the nearest second, representative of at least one of the following:
    (A) All traffic on each segment of the NHS (24 hours on Interstate; 
6 a.m. to 8 p.m. for non-Interstate NHS); or
    (B) Freight vehicle traffic on each segment of the Interstate System 
(24 hours);
    (v) Include, for each segment, a recording of the time and date of 
each 15 minute travel time record;
    (vi) Include the location (route, functional class, direction, 
State), length and begin and end points of each segment; and
    (vii) Be available within 60 days of measurement.
    (f) Reporting segments. State DOTs, in coordination with MPOs, shall 
define a single set of reporting segments of the Interstate System and 
non-Interstate NHS for the purpose of calculating the travel time-based 
measures specified in Sec. Sec. 490.507, 490.607, and 490.707 in 
accordance with the following:
    (1) Reporting segments shall be comprised of one or more contiguous 
Travel Time Segments of same travel direction. State DOTs have the 
option to accept the Travel Time Segments in the NPMRDS as the reporting 
segments;
    (2) Reporting segments shall not exceed 1 mile in length in 
urbanized areas unless an individual Travel Time Segment is longer and 
10 miles in length in non-urbanized areas unless an individual Travel 
Time Segment is longer;
    (3) All reporting segments collectively shall be contiguous and 
cover the full extent of the directional mainline highways of the 
Interstate System and non-Interstate NHS required for reporting the 
measure; and
    (4) The State DOT and applicable MPOs shall document, in manner that 
mutually agreed upon by all relevant parties, the coordination and 
agreement on the travel time data set and the defined reporting 
segments.
    (g) Posted speed limit. State DOTs are encouraged to report the 
posted speed limits for the full extent of the NHS in their State via 
HPMS (HPMS Data Item ``Speed--Limit'').



Sec. 490.105  Establishment of performance targets.

    (a) In general. State DOTs shall establish performance targets for 
all measures specified in paragraph (c) of this section for the 
respective target scope identified in paragraph (d) of this section with 
the requirements specified in paragraph (e) of this section. The MPOs 
shall establish performance targets for all measures specified in 
paragraph (c) of this section for respective target scope identified in 
paragraph (d) of this section with the requirements specified in 
paragraph (f) of this section.
    (b) Highway Safety Improvement Program measures. State DOTs and MPOs 
shall establish performance targets for the Highway Safety Improvement 
Program (HSIP) measures in accordance with Sec. 490.209.
    (c) Applicable measures. State DOTs and MPOs that include, within 
their respective geographic boundaries, any portion of the applicable 
transportation network or area shall establish performance targets for 
the performance measures identified in 23 CFR sections--
    (1) 490.307(a)(1) and (2) for the condition of pavements on the 
Interstate System;
    (2) 490.307(a)(3) and (4) for the condition of pavements on the NHS 
(excluding the Interstate);
    (3) 490.407(c)(1) and (2) for the condition of bridges on the NHS;
    (4) 490.507(a)(1) and (2) for the NHS Travel Time Reliability;
    (5) 490.507(b) for the greenhouse gas (GHG) performance for the NHS;
    (6) 490.607 for the freight movement on the Interstate System;
    (7) 490.707(a) and (b) for traffic congestion; and
    (8) 490.807 for on-road mobile source emissions.
    (d) Target scope. Targets established by State DOTs and MPOs shall, 
regardless of ownership, represent the transportation network or 
geographic area, including bridges that cross State borders, that are 
applicable to the measures as specified in paragraphs (d)(1) and (2) of 
this section.
    (1) State DOTs and MPOs shall establish statewide and metropolitan 
planning area wide targets, respectively, that represent the condition/
performance of the transportation network or geographic area that are 
applicable to the measures, as specified in 23 CFR sections--
    (i) 490.303 for the condition of pavements on the Interstate System 
measures specified in Sec. 490.307(a)(1) and (2);
    (ii) 490.303 for the condition of pavements on the NHS (excluding 
the Interstate) measures specified in Sec. 490.307(a)(3) and (4);
    (iii) 490.403 for the condition of bridges on the NHS measures 
specified in Sec. 490.407(c)(1) and (2);
    (iv) 490.503(a)(1) for the Travel Time Reliability measures 
specified in Sec. 490.507(a)(1) and (2);
    (v) 490.503(b) for the GHG measure for the NHS specified in Sec. 
490.507(b);
    (vi) 490.603 for the Freight Reliability measure specified in Sec. 
490.607; and
    (vii) 490.803 for the Total Emissions Reduction measure identified 
in Sec. 490.807.
    (2) State DOTs and MPOs shall establish a single urbanized area 
target that represents

[[Page 167]]

the performance of the transportation network in each applicable area 
for the CMAQ Traffic Congestion measures, as specified in Sec. 490.703.
    (3) For the purpose of target establishment in this section and 
reporting targets and progress evaluation in Sec. 490.107, State DOTs 
shall describe the urbanized area boundaries within the State boundary 
in the Baseline Performance Period Report required by Sec. 
490.107(b)(1).
    (e) Establishment. State DOTs shall establish targets for each of 
the performance measures identified in paragraph (c) of this section for 
respective target scope identified in paragraph (d) of this section as 
follows:
    (1) Schedule. State DOTs shall establish targets not later than 
February 20, 2018, and for each performance period thereafter, in a 
manner that allows for the time needed to meet the requirements 
specified in this section and so that the final targets are submitted to 
FHWA by the due date provided in Sec. 490.107(b).
    (2) Coordination. State DOTs shall coordinate with relevant MPOs on 
the selection of targets in accordance with 23 U.S.C. 
135(d)(2)(B)(i)(II) to ensure consistency, to the maximum extent 
practicable.
    (3) Additional targets for urbanized and non-urbanized areas. In 
addition to statewide targets, described in paragraph (d)(1) of this 
section, State DOTs may, as appropriate, for each statewide target 
establish additional targets for portions of the State.
    (i) State DOTs shall describe in the Baseline Performance Period 
Report required by Sec. 490.107(b)(1) the boundaries used to establish 
each additional target.
    (ii) State DOTs may select any number and combination of urbanized 
area boundaries and may also select a non-urbanized area boundary for 
the establishment of additional targets.
    (iii) The boundaries used by the State DOT for additional targets 
shall be contained within the geographic boundary of the State.
    (iv) State DOTs shall evaluate separately the progress of each 
additional target and report that progress as required under Sec. 
490.107(b)(2)(ii)(B) and (b)(3)(ii)(B).
    (v) Additional targets for urbanized areas and the non-urbanized 
area are not applicable to the CMAQ Traffic Congestion measures and the 
Total Emissions Reduction measure in paragraphs (c)(7) and (8) of this 
section, respectively.
    (4) Time horizon for targets. State DOTs shall establish targets for 
a performance period as follows:
    (i) The performance period will begin on:
    (A) January 1st of the year in which the Baseline Performance Period 
Report is due to FHWA and will extend for a duration of 4 years for the 
measures in paragraphs (c)(1) through (7) of this section; and
    (B) October 1st of the year prior to which the Baseline Performance 
Report is due to FHWA and will extend for a duration of 4 years for the 
measure in paragraph (c)(8) of this section.
    (ii) The midpoint of a performance period will occur 2 years after 
the beginning of a performance period described in paragraph (e)(4)(i) 
of this section.
    (iii) Except as provided in paragraphs (e)(7) and (e)(8)(v) of this 
section, State DOTs shall establish 2-year targets that reflect the 
anticipated condition/performance level at the midpoint of each 
performance period for the measures in paragraphs (c)(1) through (7) of 
this section, and the anticipated cumulative emissions reduction to be 
reported for the first 2 years of a performance period by applicable 
criteria pollutant and precursor for the measure in paragraph (c)(8) of 
this section.
    (iv) State DOTs shall establish 4-year targets that reflect the 
anticipated condition/performance level at the end of each performance 
period for the measures in paragraphs (c)(1) through (7) of this 
section, and the anticipated cumulative emissions reduction to be 
reported for the entire performance period by applicable criteria 
pollutant and precursor for the measure in paragraph (c)(8) of this 
section.
    (5) Reporting. State DOTs shall report 2-year targets, 4-year 
targets, the basis for each established target, progress made toward the 
achievement of targets, and other requirements to FHWA in accordance 
with Sec. 490.107. State DOTs shall provide relevant MPO(s) targets to 
FHWA, upon request, each time the relevant MPOs establish or adjust MPO 
targets, as described in paragraph (f) of this section.
    (6) Target adjustment. State DOTs may adjust an established 4-year 
target in the Mid Performance Period Progress Report, as described in 
Sec. 490.107(b)(2). State DOTs shall coordinate with relevant MPOs when 
adjusting their 4-year target(s). Any adjustments made to 4-year targets 
established for the CMAQ Traffic Congestion measures in paragraph (c)(7) 
of this section shall be agreed upon and made collectively by all State 
DOTs and MPOs that include any portion of the NHS in the respective 
urbanized area applicable to the measures.
    (7) Phase-in of new requirements for Interstate System pavement 
condition measures and the non-Interstate NHS Travel Time Reliability 
measures. The following requirements apply only to the first performance 
period and to the measures in Sec. Sec. 490.307(a)(1) and (2) and 
490.507(a)(2):
    (i) State DOTs shall establish their 4-year targets, required under 
paragraph (e)(4)(iv) of this section, and report these targets in their 
Baseline Performance Period Report, required under Sec. 490.107(b)(1);

[[Page 168]]

    (ii) State DOTs shall not report 2-year targets, described in 
paragraph (e)(4)(iii) of this section, and baseline condition/
performance in their Baseline Performance Period Report; and
    (iii) State DOTs shall use the 2-year condition/performance in their 
Mid Performance Period Progress Report, described in Sec. 
490.107(b)(2)(ii)(A) as the baseline condition/performance. State DOTs 
may also adjust their 4-year targets, as appropriate.
    (8) Urbanized area specific targets. The following requirements 
apply to establishing targets for the CMAQ Traffic Congestion measures 
in paragraph (c)(7) of this section, as their target scope provided in 
paragraph (d)(2) of this section:
    (i) For the performance period that begins on January 1, 2018, State 
DOTs, with mainline highways on the NHS that cross any part of an 
urbanized area with a population more than 1 million within its 
geographic State boundary and that urbanized area contains any part of a 
nonattainment or maintenance area for any one of the criteria 
pollutants, as specified in Sec. 490.703, shall establish targets for 
the CMAQ Traffic Congestion measures specified in Sec. 490.707(a) and 
(b).
    (ii) Beginning with the performance period that begins on January 1, 
2022, and all subsequent performance periods thereafter, State DOTs, 
with mainline highways on the NHS that cross any part of an urbanized 
area with a population more than 200,000 within its geographic State 
boundary and that urbanized area contains any part of a nonattainment or 
maintenance area for any one of the criteria pollutants, as specified in 
Sec. 490.703, shall establish targets for the CMAQ Traffic Congestion 
measures specified in Sec. 490.707(a) and (b).
    (iii) If required to establish targets for the CMAQ Traffic 
Congestion measures, as described in paragraphs (e)(8)(i) and/or (ii) of 
this section, State DOTs shall comply with the following:
    (A) For each urbanized area, only one 2-year target and one 4-year 
target for the entire urbanized area shall be established regardless of 
roadway ownership.
    (B) For each urbanized area, all State DOTs and MPOs that contain, 
within their respective boundaries, any portion of the NHS network in 
that urbanized area shall agree on one 2-year and one 4-year target for 
that urbanized area. In accordance with paragraphs (e)(5) and (f)(9) of 
this section, the targets reported by the State DOTs and MPOs for that 
urbanized area shall be identical.
    (C) Except as provided in paragraphs (e)(8)(iii)(F) and (e)(8)(v) of 
this section, State DOTs shall meet all reporting requirements in Sec. 
490.107 for the entire performance period even if there is a change of 
population, NHS designation, or nonattainment/maintenance area 
designation during that performance period.
    (D) The 1 million and 200,000 population thresholds, in paragraphs 
(e)(8)(i) and (ii) of this section, shall be determined based on the 
most recent annual population estimates published by the U.S. Census 
available 1 year before when the State DOT Baseline Performance Period 
Report is due to FHWA.
    (E) NHS designations and urbanized areas, in paragraphs (e)(8)(i) 
and (ii) of this section, shall be determined from the data, contained 
in HPMS, 1 year before when the State DOT Baseline Performance Period 
Report is due to FHWA.
    (F) The designation of nonattainment or maintenance areas, in 
paragraphs (e)(8)(i) and (ii) of this section, shall be determined based 
on the effective date of U.S. EPA's designation under the NAAQS in 40 
CFR part 81, as of the date 1 year before the State DOT Baseline 
Performance Period Report is due to FHWA. The nonattainment and 
maintenance areas shall be revised if, on the date 1 year before the 
State DOT Mid Performance Period Progress Report in Sec. 
490.107(b)(2)(ii) is due to FHWA, the area is no longer in nonattainment 
or maintenance for a criteria pollutant included in Sec. 490.703.
    (iv) If a State DOT does not meet the criteria specified in 
paragraph (e)(8)(i) or (ii) of this section 1 year before when the State 
DOT Baseline Performance Period Report is due to FHWA, then that State 
DOT is not required to establish targets for the CMAQ Traffic Congestion 
measures for that performance period.
    (v) If the urbanized area, in paragraph (e)(8)(i) or (ii) of this 
section, does not contain any part of a nonattainment or maintenance 
area for the applicable criteria pollutants, as specified in Sec. 
490.703, 1 year before the State DOT Mid Performance Period Progress 
Report is due to FHWA, as described in paragraph (e)(8)(iii)(F) of this 
section, then that State DOT is not required to meet the requirements in 
Sec. 490.107 for the CMAQ Traffic Congestion measures for that 
urbanized area for the remainder of that performance period.
    (vi) The following requirements apply only the Peak Hour Excessive 
Delay (PHED) measure in Sec. 490.707(a) to assess CMAQ Traffic 
Congestion in to the first performance period:
    (A) State DOTs shall establish their 4-year targets, required under 
paragraph (e)(4)(iv) of this section, and report these targets in their 
Baseline Performance Period Report, required under Sec. 490.107(b)(1).
    (B) State DOTs shall not report 2-year targets, described in 
paragraph (e)(4)(ii) of this section, and baseline condition/performance 
in their Baseline Performance Period Report.
    (C) State DOTs shall use the 2-year condition/performance in their 
Mid Performance

[[Page 169]]

Period Progress Report, described in Sec. 490.107(b)(2)(ii)(A) as the 
baseline condition/performance. The established baseline condition/
performance shall be collectively developed and agreed upon with 
relevant MPOs.
    (D) State DOTs may, as appropriate, adjust their 4-year target(s) in 
their Mid Performance Period Progress Report, described in Sec. 
490.107(b)(2)(ii)(A). Adjusted 4-year target(s) shall be developed and 
collectively agreed upon with relevant MPO(s), as described in paragraph 
(e)(6) of this section.
    (E) State DOTs shall annually report metrics for all mainline 
highways on the NHS for all applicable urbanized area(s) throughout the 
performance period, as required in Sec. 490.711(f).
    (9) Targets for Total Emissions Reduction measure. The following 
requirements apply to establishing targets for the measures specified in 
paragraph (c)(8) of this section:
    (i) The State DOTs shall establish statewide targets for the Total 
Emissions Reduction measure for all nonattainment and maintenance areas 
for all applicable criteria pollutants and precursors specified in Sec. 
490.803.
    (ii) For all nonattainment and maintenance areas within the State 
geographic boundary, the State DOT shall establish separate statewide 
targets for each of the applicable criteria pollutants and precursors 
specified in Sec. 490.803.
    (iii) The established targets, as specified in paragraph (e)(4) of 
this section, shall reflect the anticipated cumulative emissions 
reduction to be reported in the CMAQ Public Access System required in 
Sec. 490.809(a).
    (iv) In addition to the statewide targets in paragraph (e)(9)(i) of 
this section, State DOTs may, as appropriate, establish additional 
targets for any number and combination of nonattainment and maintenance 
areas by applicable criteria pollutant within the geographic boundary of 
the State. If a State DOT establishes additional targets for 
nonattainment and maintenance areas, it shall report the targets in the 
Baseline Performance Period Report required by Sec. 490.107(b)(1). 
State DOTs shall evaluate separately the progress of each of these 
additional targets and report that progress as required under Sec. 
490.107(b)(2)(ii)(B) and (b)(3)(ii)(B).
    (v) The designation of nonattainment or maintenance areas shall be 
determined based on the effective date of U.S. EPA's designation under 
the NAAQS in 40 CFR part 81, as of the date 1 year before the State DOT 
Baseline Performance Period Report is due to FHWA. The nonattainment and 
maintenance areas shall be revised if, on the date 1 year before the 
State DOT Mid Performance Period Progress Report in Sec. 
490.107(b)(2)(ii) is due to FHWA, the area is no longer in nonattainment 
or maintenance for a criteria pollutant included in Sec. 490.803.
    (vi) Except as provided in paragraphs (e)(9)(vii) and (viii) of this 
section, the State DOT shall meet all reporting requirements in Sec. 
490.107 for the entire performance period even if there is a change of 
nonattainment or maintenance area during that performance period.
    (vii) If a State geographic boundary does not contain any part of 
nonattainment or maintenance areas for applicable criteria pollutants 
and precursors, as specified in Sec. 490.803, 1 year before the State 
DOT Baseline Performance Period Report is due to FHWA, then that State 
DOT is not required to establish targets for Total Emissions Reduction 
measures for that performance period.
    (viii) If the State geographic boundary, in paragraph (e)(9)(ii) of 
this section, does not contain any part of the nonattainment or 
maintenance area for an applicable criteria pollutant or precursor, as 
specified in Sec. 490.803, 1 year before the State DOT Mid Performance 
Period Progress Report is due to FHWA as described in paragraph 
(e)(9)(v) of this section, then that State DOT is not required to meet 
the requirements in Sec. 490.107 for the Total Emissions Reduction 
measure for that applicable criteria pollutant or precursor for the 
remainder of that performance period.
    (f) MPO establishment. The MPOs shall establish targets for each of 
the performance measures identified in paragraph (c) of this section for 
the respective target scope identified in paragraph (d) of this section 
as follows:
    (1) Schedule. The MPOs shall establish targets no later than 180 
days after the respective State DOT(s) establishes their targets, as 
provided in paragraph (e)(1) of this section.
    (i) The MPOs shall establish 4-year targets, described in paragraph 
(e)(4)(iv) of this section, for all applicable measures, described in 
paragraphs (c) and (d) of this section.
    (ii) Except as provided in paragraph (f)(5)(vi) of this section, the 
MPOs shall establish 2-year targets, described in paragraph (e)(4)(iii) 
of this section for the CMAQ Traffic Congestion and Total Emissions 
Reduction measures, described in paragraphs (c) and (d) of this section 
as their applicability criteria described in paragraphs (f)(5)(i) and 
(ii) and (f)(6)(iii) of this section, respectively.
    (iii) If an MPO does not meet the criteria described in paragraph 
(f)(5)(i), (f)(5)(ii), or (f)(6)(iii) of this section, the MPO is not 
required to establish 2-year target(s) for the corresponding measure(s).
    (2) Coordination. The MPOs shall coordinate with relevant State 
DOT(s) on the selection of targets in accordance with 23 U.S.C. 
134(h)(2)(B)(i)(II) to ensure consistency, to the maximum extent 
practicable.

[[Page 170]]

    (3) Target establishment options. For each performance measure 
identified in paragraph (c) of this section, except the CMAQ Traffic 
Congestion measures in paragraph (f)(5) of this section, and MPOs 
meeting the criteria under paragraph (f)(6)(iii) of this section for 
Total Emissions Reduction measure, the MPOs shall establish targets by 
either:
    (i) Agreeing to plan and program projects so that they contribute 
toward the accomplishment of the relevant State DOT target for that 
performance measure; or
    (ii) Committing to a quantifiable target for that performance 
measure for their metropolitan planning area.
    (4) MPOs serving a multistate planning area. Except as provided in 
the CMAQ Traffic Congestion measures in paragraph (f)(5) of this 
section, and MPOs meeting the criteria under paragraph (f)(6)(iii) of 
this section, for Total Emissions Reduction measure, MPOs with planning 
areas extending across State boundaries shall follow these requirements 
for each performance measure identified in paragraph (c) of this 
section:
    (i) For each measure, MPOs may choose different target establishment 
options, provided in paragraph (f)(3) of this section, for the portion 
of the planning area within each State.
    (ii) If MPOs choose the option to agree to plan and program projects 
to contribute toward State DOT targets, in accordance with paragraph 
(f)(3)(i) of this section, for a measure, then they shall plan and 
program projects in support of State DOT targets for the portion of the 
planning area within each State.
    (5) Urbanized area specific targets. The following requirements 
apply to establishing targets for the CMAQ Traffic Congestion measures 
in paragraph (c)(7) of this section, as their target scope provided in 
paragraph (d)(2) of this section:
    (i) For the performance period that begins on January 1, 2018, MPOs 
shall establish targets for the CMAQ Traffic Congestion measures 
specified in Sec. 490.707(a) and (b) when mainline highways on the NHS 
within their metropolitan planning area boundary cross any part of an 
urbanized area with a population more than 1 million, and that portion 
of their metropolitan planning area boundary also contains any portion 
of a nonattainment or maintenance area for any one of the criteria 
pollutants, as specified in Sec. 490.703. If an MPO with mainline 
highways on the NHS within their metropolitan planning area boundary 
cross any part of an urbanized area with a population more than 1 
million and that urbanized area contains any part of a nonattainment or 
maintenance area, for any one of the criteria pollutant as specified in 
Sec. 490.703, outside of its metropolitan planning area boundary, then 
that MPO should coordinate with relevant State DOT(s) and MPO(s) in the 
target establishment process for the CMAQ Traffic Congestion measures 
specified in Sec. 490.707.
    (ii) Beginning with the performance period that begins on January 1, 
2022, and all subsequent performance periods thereafter, MPOs shall 
establish targets for the CMAQ Traffic Congestion measures specified in 
Sec. 490.707(a) and (b) when mainline highways on the NHS within their 
metropolitan planning area boundary cross any part of an urbanized area 
with a population more than 200,000, and that portion of their 
metropolitan planning area boundary also contains any portion of a 
nonattainment or maintenance area for any one of the criteria 
pollutants, as specified in Sec. 490.703. If an MPO with mainline 
highways on the NHS within their metropolitan planning area boundary 
cross any part of an urbanized area with a population more than 200,000 
and that urbanized area contains any part of a nonattainment or 
maintenance area, for any one of the criteria pollutant as specified in 
Sec. 490.703, outside of its metropolitan planning area boundary, then 
that MPO should coordinate with relevant State DOT(s) and MPO(s) in the 
target establishment process for the CMAQ Traffic Congestion measures 
specified in Sec. 490.707.
    (iii) If required to establish a target for the CMAQ Traffic 
Congestion measures, as described in paragraphs (f)(5)(i) and/or (ii) of 
this section, MPOs shall comply with the following:
    (A) For each urbanized area, only one 2-year target and one 4-year 
target for the entire urbanized area shall be established regardless of 
roadway ownership.
    (B) For each urbanized area, all State DOTs and MPOs that contain, 
within their respective boundaries, any portion of the NHS network in 
that urbanized area shall agree on one 2-year and one 4-year target for 
that urbanized area. The targets reported, in accordance with paragraphs 
(e)(5) and (f)(9) of this section, by the State DOTs and MPOs for that 
urbanized area shall be identical.
    (C) Except as provided in paragraphs (f)(5)(iii)(F) and (f)(5)(v) of 
this section, MPOs shall meet all reporting requirements in Sec. 
490.107(c) for the entire performance period even if there is a change 
of population, NHS designation, or nonattainment/maintenance area during 
that performance period.
    (D) The 1 million and 200,000 population thresholds, in paragraph 
(f)(5)(i) and (ii) of this section, shall be determined based on the 
most recent annual population estimates published by the U.S. Census 
available 1 year before the State DOT Baseline Performance Period Report 
is due to FHWA.
    (E) NHS designations and urbanized areas, in paragraphs (f)(5)(i) 
and (ii) of this section, shall be determined from the data, contained 
in HPMS, 1 year before State DOT Baseline Performance Period Report is 
due to FHWA.
    (F) The designation of nonattainment or maintenance areas, in 
paragraph (f)(5)(i) and

[[Page 171]]

(ii) of this section, shall be determined based on the effective date of 
U.S. EPA's designation under the NAAQS in 40 CFR part 81, as of the date 
1 year before the State DOT Baseline Performance Period Report is due to 
FHWA. The nonattainment and maintenance areas shall be revised if, on 
the date 1 year before the State DOT Mid Performance Period Progress 
Report in Sec. 490.107(b)(2)(ii) is due to FHWA, the area is no longer 
in nonattainment or maintenance for a criteria pollutant included in 
Sec. 490.703.
    (iv) If an MPO does not meet the criteria specified in paragraph 
(f)(5)(i) or (ii) of this section at the time that is 1 year before when 
the State DOT Baseline Performance Period Report is due to FHWA, then 
that MPO is not required to establish targets for the CMAQ Traffic 
Congestion measure for that performance period.
    (v) If the portion of the metropolitan planning area boundary within 
the urbanized area, in paragraph (f)(5)(i) or (ii) of this section, does 
not contain any part of a nonattainment or maintenance area for the 
applicable criteria pollutants, as specified in Sec. 490.703, at the 
time that is 1 year before when the State DOT Mid Performance Period 
Progress Report is due to FHWA, as described in paragraph (f)(5)(iii)(F) 
of this section, then that MPO is not required to meet the requirements 
in Sec. 490.107 for the CMAQ Traffic Congestion measures for that 
urbanized area for the remainder of that performance period.
    (vi) The following requirements apply only to the first performance 
period and the PHED measure to assess traffic congestion in Sec. 
490.707(a):
    (A) The MPOs shall not report 2-year targets, described in paragraph 
(f)(5)(iii)(A) of this section;
    (B) The MPOs shall use the 2-year condition/performance in the State 
DOT Mid Performance Period Progress Report, described in Sec. 
490.107(b)(2)(ii)(A) as baseline condition/performance. The established 
baseline condition/performance shall be agreed upon and made 
collectively with relevant State DOTs; and
    (C) The MPOs may, as appropriate, adjust their 4-year target(s). 
Adjusted 4-year target(s) shall be collectively developed and agreed 
upon with all relevant State DOT(s), as described in paragraph (f)(8) of 
this section.
    (6) Targets for the Total Emissions Reduction measure. The following 
requirements apply to establishing targets for the measure in paragraph 
(c)(8) of this section:
    (i) The MPO shall establish targets for each of the applicable 
criteria pollutants and precursors, specified in Sec. 490.803, for 
which it is in nonattainment or maintenance, within its metropolitan 
planning area boundary.
    (ii) The established targets, as specified in paragraph (e)(4) of 
this section, shall reflect the anticipated cumulative emissions 
reduction to be reported in the CMAQ Public Access System required in 
Sec. 490.809(a).
    (iii) If any part of a designated nonattainment and maintenance area 
within the metropolitan planning area overlaps the boundary of an 
urbanized area with a population more than 1 million in population, as 
of 1 year before the State DOT Baseline Performance Period Report is due 
to FHWA, then that MPO shall establish both 2-year and 4-year targets 
for their metropolitan planning area. The population threshold shall be 
determined based on the most recent annual population estimates 
published by the U.S. Census available 1 year before the State DOT 
Baseline Performance Period Report is due to FHWA.
    (iv) For the nonattainment and maintenance areas within the 
metropolitan planning area that do not meet the criteria in paragraph 
(f)(6)(iii) of this section, MPOs shall establish 4-year targets for 
their metropolitan planning area, as described in paragraph (f)(3) of 
this section.
    (v) The designation of nonattainment or maintenance areas shall be 
determined based on the effective date of U.S. EPA's designation under 
the NAAQS in 40 CFR part 81, as of the date 1 year before the State DOT 
Baseline Performance Period Report is due to FHWA. The nonattainment and 
maintenance areas shall be revised if, on the date 1 year before the 
State DOT Mid Performance Period Progress Report in Sec. 
490.107(b)(2)(ii) is due to FHWA, the area is no longer in nonattainment 
or maintenance for a criteria pollutant included in Sec. 490.803.
    (vi) Except as provided in paragraphs (f)(6)(v) and (viii) of this 
section, MPOs shall meet all reporting requirements in Sec. 490.107(c) 
for the entire performance period even if there is a change of 
nonattainment or maintenance area or population during that performance 
period.
    (vii) If a metropolitan planning area boundary does not contain any 
part of nonattainment or maintenance areas for applicable criteria 
pollutants 1 year before when the State DOT Baseline Performance Period 
Report is due to FHWA, then that MPO is not required to establish 
targets for the Total Emissions Reduction measure for that performance 
period.
    (viii) If the metropolitan planning area boundary, in paragraph 
(f)(6)(i) of this section, does not contain any part of a nonattainment 
or maintenance area for the applicable criteria pollutants, as specified 
in Sec. 490.803, 1 year before the State DOT Mid Performance Period 
Progress Report is due to FHWA, as described in paragraph (f)(6)(v) of 
this section, then that MPO is not required to meet the requirements in 
Sec. 490.107 for the Total Emissions Reduction measure

[[Page 172]]

for that applicable criteria pollutant or precursor for the remainder of 
that performance period.
    (7) MPO response to State DOT target adjustment. For the established 
targets in paragraph (f)(3) of this section, if the State DOT adjusts a 
4-year target in the State DOT's Mid Performance Period Progress Report 
and if, for that respective target, the MPO established a target by 
supporting the State DOT target as allowed under paragraph (f)(3)(i) of 
this section, then the MPO shall, within 180 days, report to the State 
DOT whether it will either:
    (i) Agree to plan a program of projects so that they contribute to 
the adjusted State DOT target for that performance measure; or
    (ii) Commit to a new quantifiable target for that performance 
measure for its metropolitan planning area.
    (8) Target adjustment. If the MPO establishes its target by 
committing to a quantifiable target, described in paragraph (f)(3)(ii) 
of this section or establishes target(s) for the Total Emissions 
Reduction measure required in paragraph (f)(6)(iii) of this section, 
then the MPOs may adjust its target(s) in a manner that is collectively 
developed, documented, and mutually agreed upon by the State DOT and 
MPO. Any adjustments made to 4-year targets, established for CMAQ 
Traffic Congestion measures in paragraph (f)(5)(i) or (ii) of this 
section, shall be collectively developed and agreed upon by all State 
DOTs and MPOs that include any portion of the NHS in the respective 
urbanized area applicable to the measure.
    (9) Reporting. The MPOs shall report targets and progress toward the 
achievement of their targets as specified in Sec. 490.107(c). After the 
MPOs establish or adjust their targets, the relevant State DOT(s) must 
be able to provide these targets to FHWA upon request.



Sec. 490.107  Reporting on performance targets.

    (a) In general. All State DOTs and MPOs shall report the information 
specified in this section for the targets required in Sec. 490.105.
    (1) All State DOTs and MPOs shall report in accordance with the 
schedule and content requirements under paragraphs (b) and (c) of this 
section, respectively.
    (2) For the measures identified in Sec. 490.207(a), all State DOTs 
and MPO shall report on performance in accordance with Sec. 490.213.
    (3) State DOTs shall report using an electronic template provided by 
FHWA.
    (b) State Biennial Performance Report. State DOTs shall report to 
FHWA baseline condition/performance at the beginning of a performance 
period and progress achievement at both the midpoint and end of a 
performance period. State DOTs shall report at an ongoing 2-year 
frequency as specified in paragraphs (b)(1) through (3) of this section.
    (1) Baseline Performance Period Report--(i) Schedule. State DOTs 
shall submit a Baseline Performance Period Report to FHWA by October 1st 
of the first year in a performance period. State DOTs shall submit their 
first Baseline Performance Period Report to FHWA by October 1, 2018, and 
subsequent Baseline Performance Period Reports to FHWA by October 1st 
every 4 years thereafter.
    (ii) Content. The State DOT shall report the following information 
in each Baseline Performance Period Report:
    (A) Targets. 2-year and 4-year targets for the performance period, 
as required in Sec. 490.105(e), and a discussion, to the maximum extent 
practicable, of the basis for each established target;
    (B) Baseline condition/performance. Baseline condition/performance 
derived from the latest data collected through the beginning date of the 
performance period specified in Sec. 490.105(e)(4)(i) for each target, 
required under paragraph (b)(1)(ii)(A) of this section;
    (C) Relationship with other performance expectations. A discussion, 
to the maximum extent practicable, on how the established targets in 
paragraph (b)(1)(ii)(A) of this section support expectations documented 
in longer range plans, such as the State asset management plan required 
by 23 U.S.C. 119(e) and the long-range statewide transportation plan 
provided in part 450 of this chapter;
    (D) Urbanized area boundaries and population data for targets. For 
the purpose of establishing additional targets for urbanized and non-
urbanized areas in Sec. 490.105(e)(3) and the urbanized area specific 
targets in Sec. 490.105(e)(8), State DOTs shall document the boundary 
extent for all applicable urbanized areas based on information in HPMS;
    (E) Congestion at truck freight bottlenecks. The State DOT shall 
document the location of truck freight bottlenecks within the State, 
including those identified in the National Freight Strategic Plan. If a 
State has prepared a State Freight Plan under 49 U.S.C. 70202, within 
the last 2 years, then the State Freight Plan may serve as the basis for 
identifying truck freight bottlenecks;
    (F) Nonattainment and maintenance area for targets. Where 
applicable, for the purpose of determining target scope in Sec. 
490.105(d) and any additional targets under Sec. 490.105(e)(9)(iv), 
State DOTs shall describe the boundaries of U.S. EPA's designated 
nonattainment and maintenance areas, as described in Sec. Sec. 
490.103(c) and 490.105(e)(9)(v);
    (G) MPO CMAQ Performance Plan. Where applicable, State DOTs shall 
include as an attachment the MPO CMAQ Performance Plan, described in 
paragraph (c)(3) of this section;
    (H) GHG metrics for the GHG measure. Total tailpipe CO2 
emissions for the calendar year 2017, as described in Sec. 
490.511(f)(1) and total tailpipe CO2 emissions for the 2 
preceding

[[Page 173]]

calendar years of the year in which Baseline Performance Period Report 
is due to FHWA, as described in Sec. 490.511(f)(2) for the GHG measure 
in Sec. 490.507(b); and
    (I) Data collection method for the Percent of Non-SOV Travel 
measure. Where applicable, State DOTs shall report the data collection 
method that is used to determine the Percent of Non-SOV Travel measure, 
in Sec. 490.707(b), for each applicable urbanized area in the State, as 
provided in Sec. 490.709(f)(2).
    (2) Mid Performance Period Progress Report--(i) Schedule. State DOTs 
shall submit a Mid Performance Period Progress Report to FHWA by October 
1st of the third year in a performance period. State DOTs shall submit 
their first Mid Performance Period Progress Report to FHWA by October 1, 
2020, and subsequent Mid Performance Period Progress Reports to FHWA by 
October 1st every 4 years thereafter.
    (ii) Content. The State DOT shall report the following information 
in each Mid Performance Period Progress Report:
    (A) 2-year condition/performance. The actual condition/performance 
derived from the latest data collected through the midpoint of the 
performance period, specified in Sec. 490.105(e)(4), for each State DOT 
reported target required in paragraph (b)(1)(ii)(A) of this section;
    (B) 2-year progress in achieving performance targets. A discussion 
of the State DOT's progress toward achieving each established 2-year 
target in paragraph (b)(1)(ii)(A) of this section. The State DOT shall 
compare the actual 2-year condition/performance in paragraph 
(b)(2)(ii)(A) of this section, within the boundaries and limits 
documented in paragraphs (b)(1)(ii)(D) and (E) of this section, with the 
respective 2-year target and document in the discussion any reasons for 
differences in the actual and target values;
    (C) Investment strategy discussion. A discussion on the 
effectiveness of the investment strategies developed and documented in 
the State asset management plan for the NHS required under 23 U.S.C. 
119(e);
    (D) Congestion at truck freight bottlenecks. Discussion on progress 
of the State DOT's efforts in addressing congestion at truck freight 
bottlenecks within the State, as described in paragraph (b)(1)(ii)(F) of 
this section, through comprehensive freight improvement efforts of State 
Freight Plan or MPO freight plans; the Statewide Transportation 
Improvement Program and Transportation Improvement Program; regional or 
corridor level efforts; other related planning efforts; and operational 
and capital activities targeted to improve freight movement on the 
Interstate System. If a State has prepared a State Freight Plan under 49 
U.S.C. 70202 within the previous 2 years, then the State Freight Plan 
may serve as the basis for addressing congestion at truck freight 
bottlenecks. If the State Freight Plan has not been updated since the 
previous State Biennial Performance Report, then an updated analysis of 
congestion at truck freight bottlenecks must be completed;
    (E) Target adjustment discussion. When applicable, a State DOT may 
submit an adjusted 4-year target to replace an established 4-year target 
in paragraph (b)(1)(ii)(A) of this section. If the State DOT adjusts its 
target, it shall include a discussion on the basis for the adjustment 
and how the adjusted target supports expectations documented in longer 
range plans, such as the State asset management plan and the long-range 
statewide transportation plan. The State DOT may only adjust a 4-year 
target at the midpoint and by reporting the change in the Mid 
Performance Period Progress Report;
    (F) 2-year significant progress discussion for the National Highway 
Performance Program (NHPP) targets and the National Highway Freight 
Program (NHFP) target. State DOTs shall discuss the progress they have 
made toward the achievement of all 2-year targets established for the 
NHPP measures in Sec. 490.105(c)(1) through (5) and the Freight 
Reliability measure in Sec. 490.105(c)(6). This discussion should 
document a summary of prior accomplishments and planned activities that 
will be conducted during the remainder of the performance period to make 
significant progress toward that achievement of 4-year targets for 
applicable measures;
    (G) Extenuating circumstances discussion on 2-year Targets. When 
applicable, for 2-year targets for the NHPP or NHFP, a State DOT may 
include a discussion on the extenuating circumstance(s), described in 
Sec. 490.109(e)(5), beyond the State DOT's control that prevented the 
State DOT from making 2-year significant progress toward achieving NHPP 
or NHFP target(s) in paragraph (b)(2)(ii)(F) of this section;
    (H) Applicable target achievement discussion. If FHWA determined 
that a State DOT has not made significant progress toward the 
achievement of any 4-year NHPP or NHFP targets in the FHWA determination 
made after the State DOT submits the Full Performance Period Progress 
Report for the immediate prior performance period, then the State DOT 
shall include a description of the actions they will undertake to better 
achieve those targets as required under Sec. 490.109(f). If FHWA 
determined under Sec. 490.109(e) that the State DOT has made 
significant progress for immediate prior performance period's 4-year 
NHPP or NHFP targets, then the State DOT does not need to include this 
description for those targets;
    (I) MPO CMAQ Performance Plan. Where applicable, State DOTs shall 
include as an attachment the MPO CMAQ Performance Plan, described in 
paragraph (c)(3) of this section; and

[[Page 174]]

    (J) GHG metrics for the GHG measure. Total tailpipe CO2 
emissions for 2 preceding calendars years of the year in which the Mid 
Performance Period Progress Report is due to FHWA, as described in Sec. 
490.511(f)(2), for the GHG measure in Sec. 490.507(b).
    (3) Full Performance Period Progress Report--(i) Schedule. State 
DOTs shall submit a progress report on the full performance period to 
FHWA by October 1st of the first year following the reference 
performance period. State DOTs shall submit their first Full Performance 
Period Progress Report to FHWA by October 1, 2022, and subsequent Full 
Performance Period Progress Reports to FHWA by October 1st every 4 years 
thereafter.
    (ii) Content. The State DOT shall report the following information 
for each Full Performance Period Progress Report:
    (A) 4-year condition/performance. The actual condition/performance 
derived from the latest data collected through the end of the 
performance period, specified in Sec. 490.105(e)(4), for each State DOT 
reported target required in paragraph (b)(1)(ii)(A) of this section;
    (B) 4-year progress in achieving performance targets. A discussion 
of the State DOT's progress made toward achieving each established 4-
year target in paragraph (b)(1)(ii)(A) or (b)(2)(ii)(E) of this section, 
when applicable. The State DOT shall compare the actual 4-year 
condition/performance in paragraph (b)(3)(ii)(A) of this section, within 
the boundaries and limits documented in paragraphs (b)(1)(ii)(D) and (E) 
of this section, with the respective 4-year target and document in the 
discussion any reasons for differences in the actual and target values;
    (C) Investment strategy discussion. A discussion on the 
effectiveness of the investment strategies developed and documented in 
the State asset management plan for the NHS required under 23 U.S.C. 
119(e);
    (D) Congestion at truck freight bottlenecks. Discussion on progress 
of the State DOT's efforts in addressing congestion at truck freight 
bottlenecks within the State, as described in paragraphs (b)(1)(ii)(F) 
and (b)(2)(ii)(D) of this section;
    (E) 4-year significant progress evaluation for applicable targets. 
State DOTs shall discuss the progress they have made toward the 
achievement of all 4-year targets established for the NHPP measures in 
Sec. 490.105(c)(1) through (5) and the Freight Reliability measure in 
Sec. 490.105(c)(6). This discussion shall include a summary of 
accomplishments achieved during the performance period to demonstrate 
whether the State DOT has made significant progress toward achievement 
of 4-year targets for those measures;
    (F) Extenuating circumstances discussion on applicable targets. When 
applicable, a State DOT may include discussion on the extenuating 
circumstance(s), described in Sec. 490.109(e)(5), beyond the State 
DOT's control that prevented the State DOT from making a 4-year 
significant progress toward achieving NHPP or NHFP targets, described in 
paragraph (b)(3)(ii)(E) of this section;
    (G) Applicable target achievement discussion. If FHWA determined 
that a State DOT has not made significant progress toward the 
achievement of any 2-year NHPP or NHFP targets in the biennial FHWA 
determination made after the State DOT submits the Mid Performance 
Period Progress Report for the performance period, then the State DOT 
shall include a description of the actions they will undertake to better 
achieve those targets as required under Sec. 490.109(f). If FHWA 
determined in Sec. 490.109(e) that the State DOT has made significant 
progress for the 2-year NHPP or NHFP targets for the performance period, 
then the State DOT does not need to include this description for those 
targets;
    (H) MPO CMAQ Performance Plan. Where applicable, State DOTs shall 
include as an attachment the MPO CMAQ Performance Plan, described in 
paragraph (c)(3) of this section; and
    (I) GHG metrics for the GHG measure. Total tailpipe CO2 
emissions for 2 preceding calendars years of the year in which the Full 
Performance Period Progress Report is due to FHWA, as described in Sec. 
490.511(f)(2), for the GHG measure in Sec. 490.507(b).
    (c) MPO Report. The MPOs shall establish targets in accordance with 
Sec. 490.105 and report targets and progress toward the achievement of 
their targets in a manner that is consistent with the following:
    (1) The MPOs shall report their established targets to their 
respective State DOT in a manner that is documented and mutually agreed 
upon by both parties.
    (2) The MPOs shall report baseline condition/performance and 
progress toward the achievement of their targets in the system 
performance report in the metropolitan transportation plan in accordance 
with part 450 of this chapter.
    (3) The MPOs serving a TMA and meeting criteria, specified in Sec. 
490.105(f)(6)(iii), shall develop a CMAQ performance plan as required by 
23 U.S.C. 149(l). The CMAQ performance plan is not required when the MPO 
meets the criteria specified in Sec. 490.105(f)(6)(vii) or (viii).
    (i) The CMAQ performance plan shall be submitted to FHWA by the 
State DOT, and be updated biennially on the same schedule as the State 
Biennial Performance Reports.
    (ii) For the CMAQ Traffic Congestion and Total Emissions Reduction 
measures in subparts G and H of this part, the CMAQ performance plan 
submitted with the State DOT's Baseline Performance Period Report to 
FHWA shall include:
    (A) The 2-year and 4-year targets for the CMAQ Traffic Congestion 
measures, identical to the relevant State DOT(s) reported

[[Page 175]]

target under paragraph (b)(1)(ii)(A) of this section, for each 
applicable urbanized area;
    (B) The 2-year and 4-year targets for the Total Emissions Reduction 
measure for the performance period;
    (C) Baseline condition/performance for each MPO reported CMAQ 
Traffic Congestion targets, identical to the relevant State DOT(s) 
reported baseline condition/performance under paragraph (b)(1)(ii)(B) of 
this section;
    (D) Baseline condition/performance derived from the latest estimated 
cumulative emissions reductions from CMAQ projects for each MPO reported 
Total Emissions Reduction target; and
    (E) A description of projects identified for CMAQ funding and how 
such projects will contribute to achieving the performance targets for 
these measures.
    (iii) For the CMAQ Traffic Congestion and Total Emissions Reduction 
measures in subparts G and H of this part, the CMAQ performance plan 
submitted with the State DOT's Mid Performance Period Progress Report to 
FHWA shall include:
    (A) 2-year condition/performance for the CMAQ Traffic Congestion 
measures, identical to the relevant State DOT(s) reported condition/
performance under paragraph (b)(2)(ii)(A) of this section, for each 
applicable urbanized area;
    (B) 2-year condition/performance derived from the latest estimated 
cumulative emissions reductions from CMAQ projects for each MPO reported 
Total Emissions Reduction target;
    (C) An assessment of the progress of the projects identified in the 
CMAQ performance plan submitted with the Baseline Performance Period 
Report toward achieving the 2-year targets for these measures;
    (D) When applicable, an adjusted 4-year target to replace an 
established 4-year target; and
    (E) An update to the description of projects identified for CMAQ 
funding and how those updates will contribute to achieving the 4-year 
performance targets for these measures.
    (iv) For the CMAQ Traffic Congestion and Total Emissions Reduction 
measures in subparts G and H of this part, the CMAQ performance plan 
submitted with the State DOT's Full Performance Period Progress Report 
to FHWA shall include:
    (A) 4-year condition/performance for the CMAQ Traffic Congestion 
measures, identical to the relevant State DOT(s) reported condition/
performance reported under paragraph (b)(3)(ii)(A) of this section, for 
each applicable urbanized area;
    (B) 4-year condition/performance derived from the latest estimated 
cumulative emissions reductions from CMAQ projects for each MPO reported 
Total Emissions Reduction target; and
    (C) An assessment of the progress of the projects identified in both 
paragraphs (c)(3)(ii)(C) and (c)(3)(iii)(D) of this section toward 
achieving the 4-year targets for these measures.
    (4) If an MPO elected to establish a quantifiable target, as 
provided in Sec. 490.105(f)(3)(ii), for the GHG measure in Sec. 
490.507(b), then that MPO shall report a description of its measure 
calculation method to its State DOT in a manner that is documented and 
mutually agreed upon by both the State DOT and the MPO.



Sec. 490.109  Assessing significant progress toward achieving the 
          performance targets for the National Highway Performance 
          Program and the National Highway Freight Program.

    (a) In general. The FHWA will assess each of the State DOT targets 
separately for the NHPP measures specified in Sec. 490.105(c)(1) 
through (5) and the Freight Reliability measure specified in Sec. 
490.105(c)(6) to determine the significant progress made toward the 
achievement of those targets.
    (b) Frequency. The FHWA will determine whether a State DOT has or 
has not made significant progress toward the achievement of applicable 
targets as described in paragraph (e) of this section at the midpoint 
and the end of each performance period.
    (c) Schedule. The FHWA will determine significant progress toward 
the achievement of a State DOT's NHPP and NHFP targets after the State 
DOT submits the Mid Performance Period Progress Report for progress 
toward the achievement of 2-year targets, and again after the State DOT 
submits the Full Performance Period Progress Report for progress toward 
the achievement of 4-year targets. The FHWA will notify State DOTs of 
the outcome of the determination of the State DOT's ability to make 
significant progress toward the achievement of its NHPP and NHFP 
targets.
    (d) Source of data/information. (1) The FHWA will use the following 
sources of information to assess NHPP target achievement and condition/
performance progress:
    (i) Data contained within the HPMS on June 15th of the year in which 
the significant progress determination is made that represents 
conditions from the prior year for targets established for Interstate 
System pavement condition measures, as specified in Sec. 490.105(c)(1);
    (ii) Data contained within the HPMS on August 15th of the year in 
which the significant progress determination is made that represents 
conditions from the prior year for targets established for non-
Interstate NHS pavement condition measures, as specified in Sec. 
490.105(c)(2);
    (iii) The most recently available data contained within the NBI as 
of June 15th of the

[[Page 176]]

year in which the significant progress determination is made for targets 
established for NHS bridge condition measures, as specified in Sec. 
490.105(c)(3);
    (iv) Data contained within the HPMS on August 15th of the year in 
which the significant progress determination is made that represents 
performance from the prior year for targets established for the Travel 
Time Reliability measures, as specified in Sec. 490.105(c)(4);
    (v) On October 1st of the year in which the significant progress 
determination is made, the reported total tailpipe CO2 
emissions for the calendar year 2017 in the Baseline Performance Period 
Report, as described in Sec. 490.107(b)(1)(ii)(I), and the reported 
total tailpipe CO2 emissions in the State Biennial 
Performance Report, as described in Sec. 490.107(b)(2)(ii)(J) or 
(b)(3)(ii)(I), in the year in which the significant progress 
determination is made for GHG measure in Sec. 490.105(c)(5); and
    (vi) Baseline condition/performance data contained in HPMS and NBI 
of the year in which the Baseline Period Performance Report is due to 
FHWA that represents baseline conditions/performances for the 
performance period for the measures in Sec. 490.105(c)(1) through (4), 
and the HPMS data reported in the year in which Baseline Period 
Performance Report is due to FHWA and the total tailpipe CO2 
emissions reported in the Baseline Period Performance Report, as 
provided in Sec. 490.107(b)(1)(ii)(I), for the GHG measure in Sec. 
490.105(c)(5).
    (2) The FHWA will use the following sources of information to assess 
NHFP target achievement and condition/performance progress:
    (i) Data contained within the HPMS on August 15th of the year in 
which the significant progress determination is made that represents 
performance from the prior year for targets established for the Freight 
Reliability measure, as specified in Sec. 490.105(c)(6); and
    (ii) Baseline condition/performance data contained in HPMS of the 
year in which the Baseline Period Performance Report is due to FHWA that 
represents baseline condition/performance for the performance period.
    (e) Significant progress determination for individual NHPP and NHFP 
targets--(1) In general. The FHWA will biennially assess whether the 
State DOT has achieved or made significant progress toward each target 
established by the State DOT for the NHPP measures described in Sec. 
490.105(c)(1) through (5) and the Freight Reliability measure described 
in Sec. 490.105(c)(6). The FHWA will assess the significant progress of 
each statewide target separately using the condition/performance data/
information sources described in paragraph (d) of this section. The FHWA 
will not assess the progress achieved for any additional targets a State 
DOT may establish under Sec. 490.105(e)(3).
    (2) Significant progress toward individual NHPP and NHFP targets. 
The FHWA will determine that a State DOT has made significant progress 
toward the achievement of each 2-year or 4-year applicable target if 
either:
    (i) The actual condition/performance level is better than the 
baseline condition/performance; or
    (ii) The actual condition/performance level is equal to or better 
than the established target.
    (3) Phase-in of new requirements. The following requirements shall 
only apply to the first performance period and only to the Interstate 
System pavement condition targets and non-Interstate NHS Travel Time 
Reliability targets, described in Sec. 490.105(e)(7):
    (i) At the midpoint of the first performance period, FHWA will not 
make a determination of significant progress toward the achievement of 
2-year targets for Interstate System pavement condition measures:
    (ii) The FHWA will classify the assessment of progress toward the 
achievement of targets in paragraph (e)(3)(i) of this section as 
``progress not determined'' so that they will be excluded from the 
requirement under paragraph (e)(2) of this section; and
    (iii) The FHWA will not make a determination of significant progress 
toward the achievement of 2-year targets for the Non-Interstate NHS 
Travel Time Reliability measure.
    (4) Insufficient data and/or information. The FHWA will determine 
that a State DOT has not made significant progress toward the 
achievement of an individual NHPP or NHFP target if:
    (i) A State DOT does not submit a required report, individual 
target, or other information as specified in Sec. 490.107 for the each 
of the measures in Sec. 490.105(c)(1) through (6);
    (ii) The data contained in HPMS do not meet the requirements under 
Sec. 490.313(b)(4)(i) by the data extraction date specified in 
paragraph (d)(1) of this section for the each of the Interstate System 
pavement condition measures in Sec. 490.105(c)(1);
    (iii) The data contained in HPMS do not meet the requirements under 
Sec. 490.313(b)(4)(i) by the data extraction date specified in 
paragraph (d)(2) of this section for the each of the non-Interstate NHS 
pavement condition measures in Sec. 490.105(c)(2);
    (iv) A State DOT reported data are not cleared in the NBI by the 
data extraction date specified in paragraph (d)(3) of this section for 
the each of the NHS bridge condition measures in Sec. 490.105(c)(3); or
    (v) The data were determined insufficient, as described in 
paragraphs (e)(4)(ii) through (iv) of this section, in the year in which 
the Baseline Period Performance Report is due

[[Page 177]]

to FHWA for the measures in Sec. 490.105(c)(1) through (3).
    (5) Extenuating circumstances. The FHWA will consider extenuating 
circumstances documented by the State DOT in the assessment of progress 
toward the achievement of NHPP and NHFP targets in the relevant State 
Biennial Performance Report, provided in Sec. 490.107.
    (i) The FHWA will classify the assessment of progress toward the 
achievement of an individual 2-year or 4-year target as ``progress not 
determined'' if the State DOT has provided an explanation of the 
extenuating circumstances beyond the control of the State DOT that 
prevented it from making significant progress toward the achievement of 
a 2-year or 4-year target and the State DOT has quantified the impacts 
on the condition/performance that resulted from the circumstances, which 
are:
    (A) Natural or man-made disasters that caused delay in NHPP or NHFP 
project delivery, extenuating delay in data collection, and/or damage/
loss of data system;
    (B) Sudden discontinuation of Federal government furnished data due 
to natural and man-made disasters or sudden discontinuation of Federal 
government furnished data due to lack of funding; and/or
    (C) New law and/or regulation directing State DOTs to change metric 
and/or measure calculation.
    (ii) If the State DOT's explanation, described in paragraph 
(e)(5)(i) of this section, is accepted by FHWA, FHWA will classify the 
progress toward achieving the relevant target(s) as ``progress not 
determined,'' and those targets will be excluded from the requirement in 
paragraph (e)(2) of this section.
    (f) Performance achievement. (1) If FHWA determines that a State DOT 
has not made significant progress toward the achieving of NHPP targets, 
then the State DOT shall include as part of the next performance target 
report under 23 U.S.C. 150(e) [the Biennial Performance Report] a 
description of the actions the State DOT will undertake to achieve the 
targets related to the measure in which significant progress was not 
achieved as follows:
    (i) If significant progress is not made for either target 
established for the Interstate System pavement condition measures, Sec. 
490.307(a)(1) and (2), then the State DOT shall document the actions it 
will take to achieve Interstate Pavement condition targets;
    (ii) If significant progress is not made for either target 
established for the Non-Interstate System pavement condition measures, 
Sec. 490.307(a)(3) and (4), then the State DOT shall document the 
actions it will take to to achieve Non-Interstate Pavement condition 
target;
    (iii) If significant progress is not made for either target 
established for the NHS bridge condition measures, Sec. 490.407(c)(1) 
and (2), then the State DOT shall document the actions it will take to 
to achieve NHS bridge condition target;
    (iv) If significant progress is not made for either target 
established for the Travel Time Reliability measures, Sec. 
490.507(a)(1) and(2), then the State DOT shall document the actions it 
will take to achieve the NHS travel time targets; and
    (v) If significant progress is not made for the target established 
for the GHG measure described in Sec. 490.507(b), then the State DOT 
shall document the actions it will take to achieve the target for the 
GHG measure.
    (2) If FHWA determines that a State DOT has not made significant 
progress toward achieving the target established for the Freight 
Reliability measure in Sec. 490.607, then the State DOT shall include 
as part of the next performance target report under 23 U.S.C. 150(e) 
[the Biennial Performance Report] the following:
    (i) An identification of significant freight system trends, needs, 
and issues within the State.
    (ii) A description of the freight policies and strategies that will 
guide the freight-related transportation investments of the State.
    (iii) An inventory of truck freight bottlenecks within the State and 
a description of the ways in which the State DOT is allocating funding 
under title 23 U.S.C. to improve those bottlenecks.
    (A) The inventory of truck freight bottlenecks shall include the 
route and milepost location for each identified bottleneck, roadway 
section inventory data reported in HPMS, Average Annual Daily Traffic 
(AADT), Average Annual Daily Truck Traffic (AADTT), Travel-time data and 
measure of delay, such as travel time reliability, or Average Truck 
Speeds, capacity feature causing the bottleneck or any other constraints 
applicable to trucks, such as geometric constrains, weight limits or 
steep grades.
    (B) For those facilities that are State-owned or operated, the 
description of the ways in which the State DOT is improving those 
bottlenecks shall include an identification of methods to address each 
bottleneck and improvement efforts planned or programed through the 
State Freight Plan or MPO freight plans; the Statewide Transportation 
Improvement Program and Transportation Improvement Program; regional or 
corridor level efforts; other related planning efforts; and operational 
and capital activities.
    (iv) A description of the actions the State DOT will undertake to 
achieve the target established for the Freight Reliability measure in 
Sec. 490.607.
    (3) The State DOT should, within 6 months of the significant 
progress determination, amend its Biennial Performance Report to 
document the information specified in this

[[Page 178]]

paragraph to ensure actions are being taken to achieve targets.



Sec. 490.111  Incorporation by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, FHWA must publish a notice of change in the 
Federal Register and the material must be available to the public. All 
approved material is available for inspection at the Federal Highway 
Administration, Office of Highway Policy Information (202-366-4631) 1200 
New Jersey Avenue SE., Washington, DC 20590, www.fhwa.dot.gov and is 
available from the sources listed below. It is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html.
    (b) The Federal Highway Administration, 1200 New Jersey Avenue SE., 
Washington, DC 20590, www.fhwa.dot.gov.
    (1) Highway Performance Monitoring System (HPMS) Field Manual, IBR 
approved for Sec. Sec. 490.103, 490.309, 490.311, and 490.319.
    (2) Recording and Coding Guide for the Structure Inventory and 
Appraisal of the Nation's Bridges, includes: Errata Sheet for Coding 
Guide 06/2011, Report No. FHWA-PD-96-001, December 1995, IBR approved 
for Sec. Sec. 490.409 and 490.411.
    (c) The American Association of State Highway and Transportation 
Officials, 444 North Capitol Street NW., Suite 249, Washington, DC 
20001, (202) 624-5800, www.transportation.org.
    (1) AASHTO Standard M328-14, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Inertial 
Profiler, 2014, 34th/2014 Edition, IBR approved for Sec. 490.309.
    (2) AASHTO Standard R57-14, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Operating Inertial Profiling Systems, 2014, 34th/2014 
Edition, IBR approved for Sec. 490.309.
    (3) AASHTO Standard R48-10 (2013), Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Determining Rut Depth in Pavements, 2014, 34th/2014 
Edition, IBR approved for Sec. 490.309.
    (4) AASHTO Standard R36-13, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Evaluating Faulting of Concrete Pavements, 2014, 34th/2014 
Edition, IBR approved for Sec. 490.309.
    (5) AASHTO Standard R43-13, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Quantifying Roughness of Pavement, 2014, 34th/2014 Edition, 
IBR approved for Sec. 490.311.



   Subpart B_National Performance Management Measures for the Highway 
                       Safety Improvement Program



Sec. 490.201  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(4), which requires the Secretary of Transportation to 
establish performance measures for the purpose of carrying out the 
Highway Safety Improvement Program (HSIP) and for State departments of 
transportation (State DOTs) to use in assessing:
    (a) Serious injuries and fatalities per vehicle miles traveled 
(VMT); and
    (b) Number of serious injuries and fatalities.



Sec. 490.203  Applicability.

    The performance measures are applicable to all public roads covered 
by the HSIP carried out under 23 U.S.C. 130 and 148.



Sec. 490.205  Definitions.

    Unless otherwise specified, the following definitions apply in this 
subpart:
    5-year rolling average means the average of 5 individual, 
consecutive annual points of data (e.g., the 5-year rolling average of 
the annual fatality rate).
    Annual Report File (ARF) means FARS data that are published 
annually, but prior to Final FARS data.
    Fatality Analysis Reporting System (FARS) means a nationwide census 
providing public yearly data regarding fatal injuries suffered in motor 
vehicle traffic crashes.
    Final FARS means the FARS data that replace the ARF file and contain 
additional cases or updates to cases that became available after the ARF 
was released, and which are no longer subject to future changes.
    KABCO means the coding convention system for injury classification 
established by the National Safety Council.
    Number of fatalities means the total number of persons suffering 
fatal injuries in a motor vehicle traffic crash

[[Page 179]]

during a calendar year, based on the data reported by the FARS database.
    Number of non-motorized fatalities means the total number of 
fatalities (as defined in this section) with the FARS person attribute 
codes: (5) Pedestrian, (6) Bicyclist, (7) Other Cyclist, and (8) Person 
on Personal Conveyance.
    Number of non-motorized serious injuries means the total number of 
serious injuries (as defined in this section) where the injured person 
is, or is equivalent to, a pedestrian (2.2.36) or a pedalcylcist 
(2.2.39) as defined in the ANSI D16.1-2007 (incorporated by reference, 
see Sec. 490.111).
    Number of serious injuries means the total number of persons 
suffering at least one serious injury for each separate motor vehicle 
traffic crash during a calendar year, as reported by the State, where 
the crash involves a motor vehicle traveling on a public road, and the 
injury status is ``suspected serious injury (A)'' as described in MMUCC, 
(incorporated by reference, see Sec. 490.111). For serious injury 
classifications that are not MMUCC compliant, the number of serious 
injuries means serious injuries that are converted to KABCO by use of 
conversion tables developed by the NHTSA.
    Public road is as defined in 23 CFR 924.3.
    Rate of fatalities means the ratio of the total number of fatalities 
(as defined in this section) to the number of vehicle miles traveled 
(VMT) (expressed in 100 million VMT) in a calendar year.
    Rate of serious injuries means the ratio of the total number of 
serious injuries (as defined in this section) to the number of VMT 
(expressed in 100 million vehicle miles of travel) in a calendar year.
    Serious injuries means:
    (1) From April 14, 2016 to April 15, 2019, injuries classified as 
``A'' on the KABCO scale through use of the conversion tables developed 
by NHTSA; and
    (2) After April 15, 2019, ``suspected serious injury (A)'' as 
defined in the MMUCC.



Sec. 490.207  National performance management measures for the Highway
Safety Improvement Program.

    (a) There are five performance measures for the purpose of carrying 
out the HSIP. They are:
    (1) Number of fatalities;
    (2) Rate of fatalities;
    (3) Number of serious injuries;
    (4) Rate of serious injuries; and,
    (5) Number of non-motorized fatalities and non-motorized serious 
injuries.
    (b) Each performance measure is based on a 5-year rolling average. 
The performance measures are calculated as follows:
    (1) The performance measure for the number of fatalities is the 5-
year rolling average of the total number of fatalities for each State 
and shall be calculated by adding the number of fatalities for each of 
the most recent 5 consecutive years ending in the year for which the 
targets are established, dividing by 5, and rounding to the tenth 
decimal place. FARS ARF may be used if Final FARS is not available.
    (2) The performance measure for the rate of fatalities is the 5-year 
rolling average of the State's fatality rate per VMT and shall be 
calculated by first calculating the number of fatalities per 100 million 
VMT for each of the most recent 5 consecutive years ending in the year 
for which the targets are established, adding the results, dividing by 
5, and rounding to the thousandth decimal place. The FARS ARF may be 
used if Final FARS is not available. State VMT data are derived from the 
HPMS. The Metropolitan Planning Organizations (MPO) VMT is estimated by 
the MPO. The sum of the fatality rates is divided by five and then 
rounded to the thousandth decimal place.
    (3) The performance measure for the number of serious injuries is 
the 5-year rolling average of the total number of serious injuries for 
each State and shall be calculated by adding the number of serious 
injuries for each of the most recent 5 consecutive years ending in the 
year for which the targets are established, dividing by five, and 
rounding to the tenth decimal place.
    (4) The performance measure for the rate of serious injuries is the 
5-year rolling average of the State's serious

[[Page 180]]

injuries rate per VMT and shall be calculated by first calculating the 
number of serious injuries per 100 million VMT for each of the most 
recent 5 consecutive years ending in the year for which the targets are 
established, adding the results, dividing by five, and rounding to the 
thousandth decimal place. State VMT data are derived from the HPMS. The 
MPO VMT is estimated by the MPO.
    (5) The performance measure for the number of Non-motorized 
Fatalities and Non-motorized Serious Injuries is the 5-year rolling 
average of the total number of non-motorized fatalities and non-
motorized serious injuries for each State and shall be calculated by 
adding the number of non-motorized fatalities to the number non-
motorized serious injuries for each of the most recent 5 consecutive 
years ending in the year for which the targets are established, dividing 
by five, and rounding to the tenth decimal place. FARS ARF may be used 
if Final FARS is not available.
    (c) For purposes of calculating serious injuries in paragraphs 
(b)(3), (4), and (5) of this section:
    (1) Before April 15, 2019, serious injuries may be determined by 
either of the following:
    (i) Serious injuries coded (A) in the KABCO injury classification 
scale through use of the NHTSA serious injuries conversion tables; or
    (ii) Using MMUCC (incorporated by reference, see Sec. 490.111).
    (2) By April 15, 2019, serious injuries shall be determined using 
MMUCC.



Sec. 490.209  Establishment of performance targets.

    (a) State DOTs shall establish targets annually for each performance 
measure identified in Sec. 490.207(a) in a manner that is consistent 
with the following:
    (1) State DOT targets shall be identical to the targets established 
by the State Highway Safety Office for common performance measures 
reported in the State's Highway Safety Plan, subject to the requirements 
of 23 U.S.C. 402(k)(4), and as coordinated through the State Strategic 
Highway Safety Plan.
    (2) State DOT targets shall represent performance outcomes 
anticipated for the calendar year following the HSIP annual report date, 
as provided in 23 CFR 924.15.
    (3) State DOT performance targets shall represent the anticipated 
performance outcome for all public roadways within the State regardless 
of ownership or functional class.
    (4) State DOT targets shall be reported in the HSIP annual report 
that is due after April 14, 2017, and in each subsequent HSIP annual 
report thereafter.
    (5) The State DOT shall include, in the HSIP Report (see 23 CFR part 
924), at a minimum, the most recent 5 years of serious injury data and 
non-motorized serious injury data. The serious injury data shall be 
either MMUCC compliant or converted to the KABCO system (A) for injury 
classification through use of the NHTSA conversion tables as required by 
Sec. 490.207(c).
    (6) Unless approved by FHWA and subject to Sec. 490.209(a)(1), a 
State DOT shall not change one or more of its targets for a given year 
once it is submitted in the HSIP annual report.
    (b) In addition to targets described in paragraph (a) of this 
section, State DOTs may, as appropriate, for each target in paragraph 
(a) establish additional targets for portions of the State.
    (1) A State DOT shall declare and describe in the State HSIP annual 
report required by Sec. 490.213 the boundaries used to establish each 
additional target.
    (2) State DOTs may select any number and combination of urbanized 
area boundaries and may also select a single non-urbanized area boundary 
for the establishment of additional targets.
    (3) The boundaries used by the State DOT for additional targets 
shall be contained within the geographic boundary of the State.
    (4) State DOTs shall evaluate separately the progress of each 
additional target and report that progress in the State HSIP annual 
report (see 23 CFR part 924).
    (c) The Metropolitan Planning Organizations (MPO) shall establish 
performance targets for each of the measures identified in Sec. 
490.207(a), where applicable, in a manner that is consistent with the 
following:

[[Page 181]]

    (1) The MPOs shall establish targets not later than 180 days after 
the respective State DOT establishes and reports targets in the State 
HSIP annual report.
    (2) The MPO target shall represent performance outcomes anticipated 
for the same calendar year as the State target.
    (3) After the MPOs within each State establish the targets, the 
State DOT must be able to provide those targets to FHWA, upon request.
    (4) For each performance measure, the MPOs shall establish a target 
by either:
    (i) Agreeing to plan and program projects so that they contribute 
toward the accomplishment of the State DOT safety target for that 
performance measure; or
    (ii) Committing to a quantifiable target for that performance 
measure for their metropolitan planning area.
    (5) The MPOs that establish quantifiable fatality rate or serious 
injury rate targets shall report the VMT estimate used for such targets 
and the methodology used to develop the estimate. The methodology should 
be consistent with other Federal reporting requirements, if applicable.
    (6) The MPO targets established under paragraph (c)(4) of this 
section specific to the metropolitan planning area shall represent the 
anticipated performance outcome for all public roadways within the 
metropolitan planning boundary regardless of ownership or functional 
class.
    (d)(1) The State DOT and relevant MPOs shall coordinate on the 
establishment of targets in accordance with 23 CFR part 450 to ensure 
consistency, to the maximum extent practicable.
    (2) The MPOs with multi-State boundaries that agree to plan and 
program projects to contribute toward State targets in accordance with 
paragraph (c)(4)(i) of this section shall plan and program safety 
projects in support of the State DOT targets for each area within each 
State (e.g., MPOs that extend into two States shall agree to plan and 
program projects to contribute toward two separate sets of targets (one 
set for each State)).



Sec. 490.211  Determining whether a State department of transportation
has met or made significant progress toward meeting performance 
targets.

    (a) The determination for having met or made significant progress 
toward meeting the performance targets under 23 U.S.C. 148(i) will be 
determined based on:
    (1) The most recent available Final FARS data for the fatality 
number. The FARS ARF may be used if Final FARS is not available;
    (2) The most recent available Final FARS and HPMS data for the 
fatality rate. The FARS ARF may be used if Final FARS is not available;
    (3) The most recent available Final FARS data for the non-motorized 
fatality number. The FARS ARF may be used if Final FARS is not 
available;
    (4) State reported data for the serious injuries number;
    (5) State reported data and HPMS data for the serious injuries rate; 
and
    (6) State reported data for the non-motorized serious injuries 
number.
    (b) The State-reported serious injury data and non-motorized serious 
injury data will be taken from the HSIP report in accordance with 23 CFR 
part 924.
    (c) The FHWA will evaluate whether a State DOT has met or made 
significant progress toward meeting performance targets.
    (1) The FHWA will not evaluate any additional targets a State DOT 
may establish under Sec. 490.209(b).
    (2) A State DOT is determined to have met or made significant 
progress toward meeting its targets when at least four of the 
performance targets established under Sec. 490.207(a) are:
    (i) Met; or
    (ii) The outcome for a performance measure is less than the 5-year 
rolling average data for the performance measure for the year prior to 
the establishment of the State's target. For example, of the State DOT's 
five performance targets, the State DOT is determined to have met or 
made significant progress toward meeting its targets if it met two 
targets and the outcome is less than the measure for the year prior to 
the establishment of the target for two other targets.

[[Page 182]]

    (d) If a State DOT has not met or made significant progress toward 
meeting performance targets in accordance with paragraph (c) of this 
section, the State DOT must comply with 23 U.S.C. 148(i) for the 
subsequent fiscal year.
    (e) The FHWA will first evaluate whether a State DOT has met or made 
significant progress toward meeting performance targets after the 
calendar year following the year for which the first targets are 
established, and then annually thereafter.



Sec. 490.213  Reporting of targets for the Highway Safety Improvement
Program.

    (a) The targets established by the State DOT shall be reported to 
FHWA in the State's HSIP annual report in accordance with 23 CFR part 
924.
    (b) The MPOs shall annually report their established safety targets 
to their respective State DOT, in a manner that is documented and 
mutually agreed upon by both parties.
    (c) The MPOs shall report baseline safety performance, VMT estimate 
and methodology if a quantifiable rate target was established, and 
progress toward the achievement of their targets in the system 
performance report in the metropolitan transportation plan in accordance 
with 23 CFR part 450. Safety performance and progress shall be reported 
based on the following data sources:
    (1) The most recent available Final FARS data for the fatality 
number. The FARS ARF may be used if Final FARS is not available;
    (2) The most recent available Final FARS and MPO VMT estimate for 
the fatality rate. The FARS ARF may be used if Final FARS is not 
available;
    (3) The most recent available Final FARS data for the non-motorized 
fatality number. The FARS ARF may be used if Final FARS is not 
available;
    (4) State reported data for the serious injuries number;
    (5) State reported data and MPO VMT estimate for the serious 
injuries rate; and
    (6) State reported data for the non-motorized serious injuries 
number.



  Subpart C_National Performance Management Measures for the Assessing 
                           Pavement Condition

    Effective Date Note: At 82 FR 5962, Jan. 18, 2017, subpart C was 
added, effective Feb. 17, 2017. At 82 FR 10441, Feb. 13, 2017, the 
effective date was delayed until Mar. 21, 2017. At 82 FR 14438, Mar. 21, 
2017, the effective date was further delayed until May 20, 2017.



Sec. 490.301  Purpose.

    The purpose of this subpart is to implement the following statutory 
requirements of 23 U.S.C. 150(c)(3) to:
    (a) Establish measures for State DOTs and MPOs to assess the 
condition of pavements on the Interstate System;
    (b) Establish measures for State DOTs and MPOs to assess the 
condition of pavements on the NHS (excluding the Interstate);
    (c) Establish minimum levels for pavement condition on the 
Interstate System, only for purposes of carrying out 23 U.S.C. 
119(f)(1);
    (d) Establish data elements that are necessary to collect and 
maintain standardized data to carry out a performance-based approach; 
and
    (e) Consider regional differences in establishing the minimum levels 
for pavement conditions on the Interstate System.



Sec. 490.303  Applicability.

    The performance measures in this subpart are applicable to the 
mainline highways on the Interstate System and on the non-Interstate 
NHS.



Sec. 490.305  Definitions.

    The following definitions are only applicable to this subpart, 
unless otherwise provided:
    Asphalt pavements means pavements where the top-most surface is 
constructed with asphalt materials. These pavements are coded in the 
HPMS as having any one of the following Surface Types:

------------------------------------------------------------------------
           Code                            Surface--type
------------------------------------------------------------------------
2........................  Bituminous.

[[Page 183]]

 
6........................  Asphalt-Concrete (AC) Overlay over Existing
                            AC Pavement.
7........................  AC Overlay over Existing Jointed Concrete
                            Pavement.
8........................  AC (Bituminous Overlay over Existing CRCP).
------------------------------------------------------------------------

    Continuously Reinforced Concrete Pavements (CRCP) means pavements 
where the top-most surface is constructed of reinforced Portland cement 
concrete with no joints. These pavements are coded in the HPMS as having 
the following Surface Type:

------------------------------------------------------------------------
           Code                            Surface--type
------------------------------------------------------------------------
5........................  CRCP--Continuously Reinforced Concrete
                            Pavement.
------------------------------------------------------------------------

    Cracking means an unintentional break in the continuous surface of a 
pavement.
    Cracking Percent means the percentage of pavement surface exhibiting 
cracking as follows:
    (1) For asphalt pavements, Cracking Percent is the percentage of the 
area of the pavement section, exhibiting visible cracking.
    (2) For jointed concrete pavements, Cracking Percent is the 
percentage of concrete slabs exhibiting cracking.
    (3) For CRCP, the Cracking Percent is the percentage of pavement 
surface with longitudinal cracking and/or punchouts, spalling or other 
visible defects.
    Faulting means a vertical misalignment of pavement joints in 
Portland Cement Concrete Pavements.
    International Roughness Index (IRI) means a statistic used to 
estimate the amount of roughness in a measured longitudinal profile. The 
IRI is computed from a single longitudinal profile using a quarter-car 
simulation, as described in the report: ``On the Calculation of IRI from 
Longitudinal Road Profile'' (Sayers, M.W., Transportation Research Board 
1501, Transportation Research Board, Washington, DC 1995).
    Jointed concrete pavements means pavements where the top-most 
surface is constructed of Portland cement concrete with joints. It may 
be constructed of either reinforced or unreinforced (plain) concrete. It 
is coded in the HPMS as having any one of the following Surface Types:

------------------------------------------------------------------------
              Code                             Surface--type
------------------------------------------------------------------------
3...............................  Jointed Plain Concrete Pavement
                                   (includes whitetopping).
4...............................  Jointed Reinforced Concrete Pavement
                                   (includes whitetopping).
9...............................  Unbonded Jointed Concrete Overlay on
                                   PCC Pavement.
10..............................  Bonded PCC Overlay on PCC Pavement.
------------------------------------------------------------------------

    Pavement means any hard surfaced travel lanes of any highway.
    Pavement section means a nominally 0.1 mile-long reported segment 
that defines the limits of pavement condition metrics required by FHWA.
    Present Serviceability Rating (PSR) means an observation based 
system used to rate pavements.
    Punchout means a distress specific to CRCP described as the area 
between two closely spaced transverse cracks and between a short 
longitudinal crack and the edge of the pavement (or a longitudinal 
joint) that is breaking up, spalling, or faulting.
    Rutting means longitudinal surface depressions in the pavement 
derived from measurements of a profile transverse to the path of travel 
on a highway lane. It may have associated transverse displacement.
    Sampling as applied to pavements, means measuring pavement 
conditions on a short section of pavement as a statistical 
representation for the entire section. Sampling is not to be used to 
measure or rate NHS pavement conditions.

[[Page 184]]



Sec. 490.307  National performance management measures for assessing
pavement condition.

    (a) To carry out the NHPP, the performance measures for State DOTs 
to assess pavement condition are:
    (1) Percentage of pavements of the Interstate System in Good 
condition;
    (2) Percentage of pavements of the Interstate System in Poor 
condition;
    (3) Percentage of pavements of the non-Interstate NHS in Good 
condition; and
    (4) Percentage of pavements of the non-Interstate NHS in Poor 
condition.
    (b) State DOTs will collect data using the methods described in 
Sec. 490.309 and will process this data to calculate individual 
pavement metrics for each section of pavement that will be reported to 
FHWA as described in Sec. 490.311. State DOTs and FHWA will use the 
reported pavement metrics to compute an overall performance of Good, 
Fair, or Poor, for each section of pavement as described in Sec. 
490.313.



Sec. 490.309  Data requirements.

    (a) The performance measures identified in Sec. 490.307 are to be 
computed using methods in Sec. 490.313 from the four condition metrics 
and three inventory data elements contained within the HPMS that shall 
be collected and reported following the HPMS Field Manual, which is 
incorporated by reference into this subpart (see Sec. 490.111). State 
DOTs shall report four condition metrics for each pavement section: IRI, 
rutting, faulting, and Cracking--Percent. State DOTs shall also report 
three inventory data elements as directed in the HPMS Field Manual: 
Through Lanes, Surface Type, and Structure Type. All pavement data 
collected after January 1, 2018 for Interstate highways and January 1, 
2020 for non-Interstate National Highway System routes shall meet the 
requirements of this section.
    (b) State DOTs shall collect data in accordance with the following 
relevant HPMS requirements to report IRI, rutting (asphalt pavements), 
faulting (jointed concrete pavements), and Cracking percent. State DOTs 
will be permitted to report present serviceability rating (PSR) for 
specific locations in accordance with the HPMS requirements as an 
alternative where posted speed limits are less than 40 miles per hour.
    (1) For the Interstate System the following shall apply for all the 
pavement condition metrics:
    (i) State DOTs shall collect data--
    (A) From the full extent of the mainline highway;
    (B) In the rightmost travel lane or one consistent lane for all data 
if the rightmost travel lane carries traffic that is not representative 
of the remainder of the lanes or is not readily accessible due to 
closure, excessive congestion, or other events impacting access;
    (C) Continuously collected in a manner that will allow for reporting 
in nominally uniform pavement section lengths of 0.10 mile (528 feet); 
shorter pavement sections are permitted only at the beginning of a 
route, end of a route, at bridges, at locations where surface type 
changes or other locations where a pavement section length of 0.10 mile 
is not achievable; the maximum length of pavement sections shall not 
exceed 0.11 mile (580.8 feet);
    (D) In at least one direction of travel; and
    (E) On an annual frequency.
    (ii) Estimating conditions from data samples of the full extent of 
the mainline highway is not permitted.
    (iii) State DOTs may collect and report pavement condition data 
separately for each direction of divided highways on the Interstate 
System. Averaging across directions is not permitted. When pavement 
condition data is collected in one direction only, the measured 
conditions shall apply to all lanes in both directions for that pavement 
section for purposes of this part.
    (iv) For the portions of the Interstate mainline highway pavements 
where posted speed limits are less than 40 MPH (e.g., border crossings, 
toll plazas), State DOTs may collect and report the Present 
Serviceability Rating (PSR) as an alternative to the IRI, Cracking--
Percent, rutting, and faulting in this pavement section and shall follow 
the following requirements:
    (A) The PSR shall be determined as a value from 0 to 5 per the 
procedures prescribed in the HPMS Field Manual;

[[Page 185]]

    (B) Alternative pavement condition methods may be allowed to 
estimate a PSR with prior approval from FHWA of the method of 
correlation between their condition determination and PSR as required in 
the HPMS Field Manual;
    (C) The PSR data shall be continuously collected in a manner that 
will allow for reporting in uniform pavement section lengths of 0.10 
mile (528 feet); shorter pavement sections are permitted only at the 
beginning of a route, end of a route, at bridges, at locations where 
surface type changes or other locations where a pavement section length 
of 0.10 mile is not achievable; the maximum length of pavement sections 
shall not exceed 0.11 mile (580.8 feet);
    (D) The PSR data shall be collected in at least one direction of 
travel; and
    (E) The PSR data shall be collected on an annual frequency.
    (2) For the non-Interstate NHS the following shall apply:
    (i) For the IRI metric, State DOTs shall collect and report data:
    (A) From the full extent of the mainline highway;
    (B) In the rightmost travel lane or one consistent lane for all data 
if the rightmost travel lane is not accessible;
    (C) Continuously collected in a manner that will allow for reporting 
in uniform pavement section lengths of 0.10 mile (528 feet); shorter 
pavement sections are permitted only at the beginning of a route, end of 
a route, at bridges, at locations where surface type changes or other 
locations where a pavement section length of 0.10 mile is not 
achievable; the maximum length of pavement sections shall not exceed 
0.11 mile (580.8 feet)
    (D) In one direction of travel; and
    (E) On a biennial frequency.
    (F) Estimating IRI metrics from data samples of the full extent of 
the mainline will not be permitted.
    (ii) For the Cracking percent, rutting and faulting metrics, State 
DOTs shall collect data--
    (A) On the full extent (no sampling) of the mainline highway;
    (B) In the rightmost travel lane or one consistent lane for all data 
if the rightmost travel lane is not accessible;
    (C) Continuously collected in a manner that will allow for reporting 
in uniform pavement section lengths of 0.10 mile (528 feet); shorter 
pavement sections are permitted only at the beginning of a route, end of 
a route, at bridges, at locations where surface type changes or other 
locations where a pavement section length of 0.10 mile is not 
achievable; the maximum length of pavement sections shall not exceed 
0.11 mile (580.8 feet)
    (D) In one direction of travel; and
    (E) On at least a biennial frequency.
    (F) Estimating conditions from data samples of the full extent of 
the mainline highway will not be permitted.
    (iii) For the portions of mainline highways where posted speed 
limits of less than 40 MPH, State DOTs may collect the Present 
Serviceability Rating (PSR) as an alternative to the IRI, Cracking--
Percent, rutting, and faulting pavement condition metrics, in paragraphs 
(b)(2)(i) and (ii) of this section, and shall follow the following 
requirements:
    (A) The PSR shall be determined as a 0 to 5 value per the procedures 
prescribed in the HPMS Field Manual;
    (B) Alternative pavement condition methods may be allowed to 
estimate a PSR with prior approval from FHWA of the method of 
correlation between their condition determination and PSR as required in 
the HPMS Field Manual;
    (C) The PSR data shall be continuously collected in a manner that 
will allow for reporting in uniform pavement section lengths of 0.10 
mile (528 feet); shorter pavement sections are permitted only at the 
beginning of a route, end of a route, at bridges, at locations where 
surface type changes or other locations where a pavement section length 
of 0.10 mile is not achievable; the maximum length of pavement sections 
shall not exceed 0.11 mile (580.8 feet);
    (D) The PSR data shall be collected in one direction of travel; and
    (E) The PSR data shall be collected on at least a biennial 
frequency.
    (3) Data collection methods for each of the condition metrics shall 
conform to the following:
    (i) The device to collect data needed to calculate the IRI metric 
shall be in accordance with American Association of State Highway 
Transportation Officials (AASHTO) Standard M328-14,

[[Page 186]]

Standard Specification for Transportation Materials and Methods of 
Sampling and Testing, Standard Equipment Specification for Inertial 
Profiler (incorporated by reference, see Sec. 490.111).
    (ii) The method to collect data needed to calculate the IRI metric 
shall be in accordance with AASHTO Standard R57-14, Standard 
Specification for Transportation Materials and Methods of Sampling and 
Testing, Standard Practice for Operating Inertial Profiling Systems 
(incorporated by reference, see Sec. 490.111).
    (iii) For highways with a posted speed limit less than 40 miles per 
hour, an alternate method for estimation of IRI is permitted as 
described in Sec. 490.309(b)(1)(iv) or Sec. 490.309(b)(2)(iii) may be 
used in lieu of measuring IRI, cracking, rutting and faulting.
    (iv) The method to collect data needed to determine the Cracking--
Percent metric for all pavement types except CRCP shall be manual, semi-
automated, or fully automated in accordance with the HPMS Field Manual 
(incorporated by reference, see 490.111).
    (v) For CRCP the method to collect the data needed to determine the 
Cracking--Percent metric is described in the HPMS Field Manual 
(incorporated by reference, see Sec. 490.111) and includes longitudinal 
cracking and/or punchouts, spalling, or other visible defects.
    (vi) For asphalt pavements, the method to collect data needed to 
determine the rutting metric shall either be:
    (A) A 5-Point Collection of Rutting Data method in accordance with 
AASHTO Standard R48-10, Standard Specification for Transportation 
Materials and Methods of Sampling and Testing, Standard Practice for 
Determining Rut Depth in Pavements (incorporated by reference, see Sec. 
490.111); or
    (B) An Automated Transverse Profile Data method in accordance with 
the HPMS Field Manual (incorporated by reference, see Sec. 490.111).
    (vii) For jointed concrete pavements, the method to collect data 
needed to determine the faulting metric shall be in accordance with 
AASHTO Standard R36-13, Standard Specification for Transportation 
Materials and Methods of Sampling and Testing, Standard Practice for 
Evaluating Faulting of Concrete Pavements (incorporated by reference, 
see Sec. 490.111).
    (c) State DOTs shall collect data in accordance with the following 
relevant HPMS requirements to report Through Lanes, Surface Type, and 
Structure Type.
    (1) State DOTs shall collect data:
    (i) For the full extent of the mainline highway of the NHS;
    (ii) In at least one direction of travel for the Interstate System 
and in one direction of travel for the non-Interstate NHS; and
    (iii) On an annual frequency on the Interstate routes and on at 
least a biennial frequency on non-Interstate NHS routes.
    (2) Estimating data elements from samples of the full extent of the 
mainline highway is not permitted.



Sec. 490.311  Calculation of pavement metrics.

    (a) The condition metrics and inventory data elements needed to 
calculate the pavement performance measures shall be calculated in 
accordance with the HPMS Field Manual (incorporated by reference, see 
Sec. 490.111), except as noted below.
    (b) State DOTs shall calculate metrics in accordance with the 
following relevant HPMS requirements.
    (1) For all pavements, the IRI metric:
    (i) Shall be computed from pavement profile data in accordance with 
AASHTO Standard R43-13, Standard Specification for Transportation 
Materials and Methods of Sampling and Testing, Standard Practice for 
Quantifying Roughness of Pavement, 2014, 34th/2014 Edition, AASHTO, 1-
56051-606-4 (incorporated by reference, see Sec. 490.111);
    (ii) Shall be reported for all pavements as the average value in 
inches per mile for each section; and
    (iii) Shall not be estimated from a PSR or other observation-based 
method except where permitted in Sec. 490.309(b)(3)(iii).
    (2) For asphalt pavements--
    (i) The Cracking--Percent metric shall be computed as the percentage 
of the total area containing visible cracks to the nearest whole percent 
in each section; and

[[Page 187]]

    (ii) The rutting metric shall be computed as the average depth of 
rutting, in inches to the nearest 0.01 inches, for the section.
    (3) For CRCP, the Cracking--Percent metric shall be computed as the 
percentage of the area of the section to the nearest whole percent 
exhibiting longitudinal cracking, punchouts, spalling, or other visible 
defects. Transverse cracking shall not be considered in the Cracking--
Percent metric.
    (4) For jointed concrete pavements--
    (i) The Cracking--Percent metric shall be computed as the percentage 
of slabs to the nearest whole percent within the section that exhibit 
cracking;
    (ii) Partial slabs shall contribute to the section that contains the 
majority of the slab length; and
    (iii) The faulting metric shall be computed as the average height, 
in inches to the nearest 0.01 inch, of faulting between pavement slabs 
for the section.
    (5) For the mainline highways on the non-Interstate NHS with posted 
speed limits of less than 40 MPH--
    (i) The present serviceability rating (PSR) may be used as an 
alternative to the IRI, Cracking--Percent, rutting, and faulting 
pavement condition metrics.
    (ii) The PSR shall be determined as a 0 to 5 value per the 
procedures prescribed in the HPMS Field Manual.
    (iii) Alternative pavement condition methods may be allowed to 
estimate a PSR with prior approval from FHWA of the method of 
correlation between their condition determination and PSR as required in 
the HPMS Field Manual.
    (c) State DOTs shall report the four pavement metrics listed in 
Sec. 490.309(a) as calculated following the requirements in paragraphs 
(a) and (b) of this section in accordance with the following relevant 
HPMS requirements:
    (1) Pavement condition metrics shall be reported to the HPMS in 
uniform section lengths of 0.1 mile (528 feet); shorter sections are 
permitted only at the beginning of a route, the end of a route, at 
bridges, or other locations where a section length of 0.1 mile is not 
achievable; and the maximum length of sections shall not exceed 0.11 
mile (580.8 feet)
    (2) Each measured section shall have a single value for each of the 
relevant condition metrics. Sections where condition is estimated from 
PSR will have one value for the overall condition.
    (3) The time and location reference shall be reported for each 
section as follows:
    (i) The State--Code, Route--ID, Begin--Point, and End--Point shall 
be reported as specified in the HPMS field manual (incorporated by 
reference, see Sec. 490.111) for each of the four condition metrics.
    (ii) The Year--Record shall be reported as the four digit year for 
which the data represents for each of the four condition metrics; and
    (iii) The Value--Date shall be reported as the month and year of 
data collection for each of the four condition metrics.
    (4) Sections for the four condition metrics shall be reported to the 
HPMS for the Interstate System by April 15 of each year for the data 
collected during the previous calendar year.
    (5) Sections for the four condition metrics shall be reported to the 
HPMS for the non-Interstate NHS by June 15 of each year for the data 
collected during the previous calendar year(s).
    (d) The three inventory data elements, Through--Lanes, Surface--
Type, and Structure Type shall be reported to the HPMS as directed in 
Chapter 4 of the HPMS Field Manual for the entire extent of the NHS.
    (1) Section Lengths for the three inventory data items are not 
required to meet the 0.1 mile nominal length but may be any logical 
length as defined in the HPMS Field Manual.
    (2) The three inventory data elements shall be reported to the HPMS 
for the Interstate System by April 15 of each year.
    (3) The three inventory data elements shall be reported to the HPMS 
for the non-Interstate NHS by June 15 of the each year that data 
reporting is required.

[[Page 188]]



Sec. 490.313  Calculation of performance management measures.

    (a) The pavement measures in Sec. 490.307 shall be calculated in 
accordance with this section and used by State DOTs and MPOs to carry 
out the pavement condition related requirements of this part, and by 
FHWA to make the significant progress and minimum condition 
determinations specified in Sec. Sec. 490.109 and 490.317, 
respectively.
    (b) The performance measure for pavements shall be calculated based 
on the data collected in Sec. 490.309 and pavement condition metrics 
computed in Sec. 490.311. The performance measure for pavements shall 
be based on three condition ratings of Good, Fair, and Poor calculated 
for each pavement section. The ratings are determined as follows:
    (1) IRI rating shall be determined for all pavement types using the 
following criteria. If an IRI value of a pavement section is:--
    (i) Less than 95, the IRI rating for the pavement section is Good;
    (ii) Between 95 and 170, the IRI rating for the pavement section is 
Fair; and
    (iii) Greater than 170, the IRI rating for the pavement section is 
Poor.
    (2) Cracking condition shall be determined using the following 
criteria:
    (i) For asphalt pavement sections--
    (A) If the Cracking--Percent value of a section is less than 5 
percent, the cracking rating for the pavement section is Good;
    (B) If the Cracking--Percent value of a section is equal to or 
greater than 5 percent and less than or equal to 20 percent the cracking 
rating for the pavement section is Fair; and
    (C) If the Cracking--Percent value of a section is greater than 20 
percent the cracking rating for the pavement section is Poor.
    (ii) For jointed concrete pavement sections--
    (A) If the Cracking--Percent value of a section is less than 5 
percent, the cracking rating for the pavement section is Good;
    (B) If the Cracking--Percent value of a section is equal to or 
greater than 5 percent and less than or equal to 15 percent the cracking 
rating for the pavement section is Fair; and
    (C) If the Cracking--Percent value of a section is greater than 15 
percent the cracking rating for the pavement section is Poor.
    (iii) For CRCP sections:
    (A) If the Cracking--Percent value of a section is less than 5 
percent, the cracking rating for the pavement section is Good;
    (B) If the Cracking--Percent value of a section is equal to or 
greater than 5 percent and less than or equal to 10 percent, the 
cracking rating for the pavement section is Fair; and
    (C) If the Cracking--Percent value of a section is greater than 10 
percent, the cracking rating for the pavement section is Poor.
    (3) Rutting or faulting rating shall be determined using the 
following criteria.
    (i) For asphalt pavement:
    (A) If the rutting value of a section is less than 0.20 inches, the 
rutting rating for the pavement section is Good;
    (B) If the rutting value of a section is equal to or greater than 
0.20 inches and less than or equal to 0.40 inches, the rutting rating 
for the pavement section is Fair; and
    (C) If the rutting value of a section in is greater than 0.40 
inches, the rutting rating for the pavement section is Poor.
    (ii) For jointed concrete pavement:
    (A) If the faulting value of a section is less than 0.10 inches, the 
faulting rating for the pavement section is Good;
    (B) If the faulting value of a section is equal to or greater than 
0.10 inches and less than or equal to 0.15 inches, the faulting rating 
for the pavement section is Fair; and
    (C) If the faulting value of a section is greater than 0.15 inches, 
the faulting rating for the pavement section is Poor.
    (4) The FHWA will determine that a reported section in HPMS has a 
missing, invalid or unresolved data on the dates specified in Sec. 
490.317(b) for Interstate System and Sec. 490.109(d)(2) and (d)(4) for 
non-Interstate NHS, if a reported section does not meet any one of the 
data requirements specified in Sec. Sec. 490.309 and 490.311(c) or that 
reported section does not provide sufficient data to determine its 
Overall Condition

[[Page 189]]

specified in paragraphs (c) through (f) of this section:
    (i) Total mainline lane-miles of missing, invalid, or unresolved 
sections for Interstate System and non-Interstate NHS shall be limited 
to no more than 5 percent of the total lane miles less the sections 
excluded in Sec. 490.313(f)(1). For each pavement section without 
collected its condition metrics and inventory data, State DOTs shall 
note in the HPMS submittal with a specific code identified in the HPMS 
Field Manual (incorporated by reference, see Sec. 490.111) noting the 
reason it was not collected.
    (ii) Calculation of overall pavement conditions in any State meeting 
the requirements of Sec. 490.309(b) shall be based only on sections 
containing data reported in the HPMS Submittal as of the submission 
dates required in Sec. 490.311(c)(4) and (5). State DOTs not meeting 
the requirements of Sec. 490.309(b) will be considered as not in 
compliance with Sec. 420.105(b) requiring State DOTs to submit data to 
the HPMS and not in compliance with Sec. 490.107 requiring reporting on 
performance targets. Failure to report data meeting the requirements of 
Sec. 490.309(b) by the submission dates for the Interstate System will 
be considered as not meeting the minimum requirements for pavement 
conditions on the Interstate System and that State DOT is subject to the 
penalties in Sec. 490.315.
    (c) The Overall condition for asphalt and jointed concrete pavement 
sections shall be determined based on the ratings for IRI, Cracking--
Percent, rutting and faulting, as described in paragraphs (b)(1), 
(b)(2), (b)(3) and (b)(4) of this section, respectively, for each 
section as follows:
    (1) A pavement section shall be rated an overall condition of Good 
only if the section is exhibiting Good ratings for all three conditions 
(IRI, Cracking--Percent, and rutting or faulting);
    (2) A pavement section shall be rated an overall condition of Poor 
if two or more of the three conditions are exhibiting Poor ratings (at 
least two ratings of Poor for IRI, Cracking--Percent, and rutting or 
faulting).
    (3) A pavement section shall be rated an overall condition of Fair 
if it does not meet the criteria in paragraphs (c)(1) or (c)(2) of this 
section.
    (4) For sections on roadways where the posted speed limit is less 
than 40 MPH and where the State DOT has reported PSR in lieu of the IRI, 
Cracking--Percent, rutting, and faulting metrics the PSR condition level 
shall be determined using the following criteria:
    (i) If the PSR of a section is equal to or greater than 4.0 the PSR 
rating for the pavement section is Good;
    (ii) If the PSR of a section is less than 4.0 and greater than 2.0 
the PSR rating for the pavement section is Fair; and
    (iii) If the PSR of a section is less than or equal to 2.0 the PSR 
rating for the pavement section is Poor.
    (d) The Overall condition for CRCP sections shall be determined 
based on two ratings of IRI and Cracking--Percent, as described in 
paragraphs (b)(1) and (b)(2) of this section or based on PSR where 
appropriate as described in paragraph (c)(4) of this section, 
respectively, for each section as follows:
    (1) A pavement section shall be rated an overall condition of Good 
only if the section is exhibiting Good ratings for both conditions (IRI 
and Cracking--Percent);
    (2) A pavement section shall be rated an overall condition of Poor 
if it exhibits Poor ratings for both conditions (IRI and Cracking--
Percent);
    (3) A pavement section shall be rated an overall condition of Fair 
if it does not meet the criteria in paragraphs (d)(1) or (d)(2) of this 
section.
    (4) For pavement sections that are on roadways with a posted speed 
limit of less than 40 MPH where the State DOT reported the PSR metric in 
lieu of the IRI, Cracking--Percent, faulting, and rutting metrics the 
pavement section shall be rated an overall condition equal to the PSR 
condition rating as described in section (c)(4) above
    (e) State DOTs shall not be subject to paragraphs (c) and (d) of 
this section for Pavements on the until after the data collection cycle 
ending December 31, 2018, for Interstate highways and

[[Page 190]]

December 31, 2021, for the non-Interstate NHS. During this transition 
period, the Overall condition for all pavement types will be based on 
IRI rating, as described in paragraph (b)(1) of this section, or on PSR 
as described in paragraphs (c)(4) or (d)(4) of this section.
    (f) The pavement condition measures in Sec. 490.307 shall be 
computed as described below. The measures shall be used for establishing 
targets in accordance with Sec. 490.105 and reporting the conditions of 
the pavements in the biennial performance reporting required in Sec. 
490.107 as follows:
    (1) Bridges shall be excluded prior to computing all pavement 
condition measures by removing the sections where the Structure--Type 
data item in the HPMS is coded as 1. Sections that have an unpaved 
surface or an ``other'' surface type (such as cobblestone, planks, 
brick) shall be excluded prior to computing all pavement condition 
measures by removing the sections where the Surface Type data item in 
the HPMS is coded as 1 or as 11.
    (2) For Sec. 490.307(a)(1) the measure for percentage of lane-miles 
of the Interstate System in Good condition shall be computed to the one 
tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.019

Where:

Good = total number of mainline highway Interstate System sections where 
          the overall condition is Good;
g = a section's overall condition is determined Good per paragraphs (b) 
          or (c) of this section;
t = an Interstate System section;
Total = total number of mainline highway Interstate System sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section.
Begin--Point = Begin Milepost of each section g or t;
End Point = End Milepost of each section g or t; and
Through--lanes = the number of lanes designated for through-traffic 
          represented by a section g or t.

    (3) For Sec. 490.307(a)(2) the measure for percentage of lane-miles 
of the Interstate System in Poor condition shall be computed to the one 
tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.020

Where:

Poor = total number of mainline highway Interstate System sections where 
          the overall condition is Poor;
p = a section's overall condition is determined Poor per paragraphs (b) 
          or (c) of this section;
t = an Interstate System section;
Total = total number of mainline highway Interstate System sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section;
Begin--Point = Begin Milepost of each section p or t;
End Point = End Milepost of each section p or t; and
Through--lanes = the number of lanes designated for through-traffic 
          represented by a section p or t.

    (4) For Sec. 490.307(a)(3) the measure for percentage of lane-miles 
of the non-Interstate NHS in Good condition in Sec. 490.307(a)(3) shall 
be computed to the one tenth of a percent as follows:

[[Page 191]]

[GRAPHIC] [TIFF OMITTED] TR18JA17.021

Where:

Good = total number of mainline highway non-Interstate NHS sections 
          where the overall condition is Good;
g = a section's overall condition is determined Good per paragraphs (b), 
          (c) or (d) of this section;
t = a non-Interstate NHS section;
Total = total number of mainline highway non-Interstate NHS sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section;
Begin--Point = Begin Milepost of each section g or t;
End Point = End Milepost of each section g or t; and
Through--lanes = the number of lanes designated for through-traffic 
          represented by a section g or t.
    (5) For Sec. 490.307(a)(4) the measure for percentage of lane-miles 
of the non-Interstate NHS in Poor condition in Sec. 490.307(a)(4) shall 
be computed to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.022

Where:

Poor = total number of mainline highway non-Interstate NHS sections 
          where the overall condition is Poor;
p = a section's overall condition is determined Poor per paragraphs (b), 
          (c) or (d) of this section;
t = a non-Interstate NHS section;
Total = total number of mainline highway non-Interstate NHS sections 
          excluding bridges, unpaved surface and ``other'' surface 
          types, and missing data sections, described in paragraph 
          (f)(1) and (b)(4)(i) of this section;
Begin--Point = Begin Milepost of each section p or t;
End Point = End Milepost of each section p or t; and
Through--lanes = the number of lanes designated for through-traffic 
          represented by a section p or t.



Sec. 490.315  Establishment of minimum level for condition of 
pavements.

    (a) For the purposes of carrying out the requirements of 23 U.S.C. 
119(f)(1), the percentage of lane-miles of Interstate System in Poor 
condition, as computed per Sec. 490.313(e)(3), shall not exceed 5.0 
percent except as noted in paragraph (b) of this section.
    (b) For the purposes of carrying out the requirements of 23 U.S.C. 
119(f)(1), the percentage of lane-miles of Interstate System in Poor 
condition within the State of Alaska, as computed per Sec. 
490.313(e)(3), shall not exceed 10.0 percent.



Sec. 490.317  Penalties for not maintaining minimum Interstate System 
pavement condition.

    (a) The FHWA shall compute the Percentage of lane-miles of the 
Interstate System, excluding sections on bridges, in Poor Condition, in 
accordance with Sec. 490.313(e)(3), for each State annually.
    (b) Each year, FHWA shall extract data contained within the HPMS on 
June 15 that represents conditions from the prior calendar year for 
Interstate System pavement conditions to carry out paragraph (a) of this 
section, beginning with data collected during the 2018 calendar year.
    (c) The FHWA shall determine if a State DOT is in compliance with 
Sec. 490.315(a) or Sec. 490.315(b) and 23 U.S.C. 119(f)(1) after the 
first full year of data collection for the Interstate System and each 
year thereafter.
    (d) The FHWA will notify State DOTs of their compliance with 23 
U.S.C. 119(f)(1) prior to October 1 of the year in which the 
determination was made.
    (e) If FHWA determines through conduct of paragraph (d) of this 
section a State DOT to be out of compliance

[[Page 192]]

with 23 U.S.C. 119(f)(1) then the State DOT shall, during the following 
fiscal year:
    (1) Obligate, from the amounts apportioned to the State DOT under 23 
U.S.C. 104(b)(1) (for the NHPP), an amount that is not less than the 
amount of funds apportioned to the State for Federal fiscal year 2009 
under the Interstate Maintenance program for the purposes described in 
23 U.S.C. 119 (as in effect on the day before the date of enactment of 
the MAP-21), except that for each year after Federal fiscal year 2013, 
the amount required to be obligated under this clause shall be increased 
by 2 percent over the amount required to be obligated in the previous 
fiscal year; and
    (2) Transfer, from the amounts apportioned to the State DOT under 23 
U.S.C. 104(b)(2) (for the Surface Transportation Program) (other than 
amounts sub-allocated to metropolitan areas and other areas of the State 
under 23 U.S.C. 133(d)) to the apportionment of the State under 23 
U.S.C. 104(b)(1), an amount equal to 10 percent of the amount of funds 
apportioned to the State for fiscal year 2009 under the Interstate 
Maintenance program for the purposes described in 23 U.S.C. 119 (as in 
effect on the day before the date of enactment of the MAP-21).



Sec. 490.319  Other requirements.

    (a) In accordance with the HPMS Field Manual (incorporated by 
reference, see Sec. 490.111), each State DOT shall report the following 
to the HPMS no later than April 15 each year:
    (1) The pavement condition metrics specified in Sec. 490.311 that 
are necessary to calculate the Interstate System condition measures 
identified in Sec. Sec. 490.307(a)(1) and (a)(2) and;
    (2) The data elements specified in Sec. 490.309(c) for the 
Interstate System
    (b) In accordance with the HPMS Field Manual (incorporated by 
reference, see Sec. 490.111), each State DOT shall report to the HPMS 
no later than June 15 each year the pavement condition metrics specified 
in Sec. 490.311 that are necessary to calculate the non-Interstate NHS 
condition measures in Sec. Sec. 490.307(a)(3) and (a)(4).
    (c) Each State DOT shall develop and utilize a Data Quality 
Management Program, approved by FHWA that addresses the quality of all 
data collected, regardless of the method of acquisition, to report the 
pavement condition metrics, discussed in Sec. 490.311, and data 
elements discussed in Sec. 490.309(c).
    (1) In a Data Quality Management Programs, State DOTs shall include, 
at a minimum, methods and processes for:
    (i) Data collection equipment calibration and certification;
    (ii) Certification process for persons performing manual data 
collection;
    (iii) Data quality control measures to be conducted before data 
collection begins and periodically during the data collection program;
    (iv) Data sampling, review and checking processes; and
    (v) Error resolution procedures and data acceptance criteria.
    (2) Not later than 1 year after the effective date of this 
regulation, State DOTs shall submit their Data Quality Management 
Program to FHWA for approval. Once FHWA approves a State DOT's Data 
Quality Management Program, the State DOT shall use that Program to 
collect and report data required by Sec. Sec. 490.309 to 490.311. State 
DOTs also shall submit any proposed significant change to the Data 
Quality Management Program to FHWA for approval prior to implementing 
the change.



Subpart D_National Performance Management Measures for Assessing Bridge 
                                Condition

    Effective Date Note: At 82 FR 5968, Jan. 18, 2017, subpart D was 
added, effective Feb. 17, 2017. At 82 FR 10441, Feb. 13, 2017, the 
effective date was delayed until Mar. 21, 2017. At 82 FR 14438, Mar. 21, 
2017, the effective date was further delayed until May 20, 2017.



Sec. 490.401  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(3)(A)(ii)(III), which requires the Secretary of 
Transportation to establish performance measures for the purpose of 
carrying out the NHPP and for State DOTs and MPOs to use in assessing 
the condition of bridges carrying the NHS which includes on- and off-
ramps connected to the NHS.

[[Page 193]]



Sec. 490.403  Applicability.

    The section is only applicable to bridges carrying the NHS, which 
includes on- and off-ramps connected to the NHS.



Sec. 490.405  Definitions.

    The following definitions are only applicable to this subpart, 
unless otherwise provided:
    Structurally deficient as used in Sec. Sec. 490.411 and 490.413 is 
a classification given to a bridge which has any component in Poor or 
worse condition or the adequacy of the waterway opening provided by the 
bridge is determined to be insufficient to the point of causing 
overtopping with intolerable traffic interruptions. Beginning with 
calendar year 2018 and thereafter, structurally deficient as used in 
Sec. Sec. 490.411 and 490.413 is a classification given to a bridge 
which has any component in Poor or worse condition.



Sec. 490.407  National performance management measures for assessing
bridge condition.

    (a) There are three classifications for the purpose of assessing 
bridge condition. They are:
    (1) Percentage of NHS bridges classified as in Good condition;
    (2) Percentage of NHS bridges classified as in Fair condition; and
    (3) Percentage of NHS bridges classified as in Poor condition.
    (b) [Reserved]
    (c) To carry out the NHPP, two of the three classifications are 
performance measures for State DOTs to use to assess bridge condition on 
the NHS. They are:
    (1) Percentage of NHS bridges classified as in Good condition; and
    (2) Percentage of NHS bridges classified as in Poor condition.
    (d) Determination of Good and Poor conditions are described in Sec. 
490.409.



Sec. 490.409  Calculation of National performance management measures 
for assessing bridge condition.

    (a) The bridge measures in Sec. 490.407 shall be calculated in 
accordance with this section and used by State DOTs and MPOs to carry 
out the bridge condition related requirements of this part and by FHWA 
to make the significant progress determination specified in Sec. 
490.109.
    (b) The condition of bridges carrying the NHS, which includes on- 
and off-ramps connected to the NHS, shall be classified as Good, Fair, 
or Poor following the criteria specified in this paragraph. The 
assignment of a classification of Good, Fair, or Poor shall be based on 
the bridge's condition ratings for NBI Items 58--Deck, 59--
Superstructure, 60--Substructure, and 62--Culverts. For the purposes of 
national performance measures under the NHPP, the method of assessment 
to determine the classification of a bridge will be the minimum of 
condition rating method (i.e., the condition ratings for lowest rating 
of a bridge's 3 NBI Items, 58--Deck, 59--Superstructure, and 60--
Substructure). For culverts, the rating of its NBI Item, 62--Culverts, 
will determine its classification. The bridges carrying the NHS which 
includes on- and off-ramps connected to the NHS will be classified as 
Good, Fair, or Poor based on the following criteria:
    (1) Good: When the lowest rating of the 3 NBI items for a bridge 
(Items 58--Deck, 59--Superstructure, 60--Substructure) is 7, 8, or 9, 
the bridge will be classified as Good. When the rating of NBI item for a 
culvert (Item 62--Culverts) is 7, 8, or 9, the culvert will be 
classified as Good.
    (2) Fair: When the lowest rating of the 3 NBI items for a bridge is 
5 or 6, the bridge will be classified as Fair. When the rating of NBI 
item for a culvert is 5 or 6, the culvert will be classified as Fair.
    (3) Poor: When the lowest rating of the 3 NBI items for a bridge is 
4, 3, 2, 1, or 0, the bridge will be classified as Poor. When the rating 
of NBI item for a culvert is 4, 3, 2, 1, or 0, the culvert will be 
classified as Poor.
    (c) The bridge measures specified in Sec. 490.407(c) shall be 
calculated for the applicable bridges per paragraph (a) that pertain to 
each target established by the State DOT or MPO in Sec. Sec. 490.105(e) 
and 490.105(f), respectively, as follows:
    (1) For Sec. 490.407(c)(1), the measure for the percentage of 
bridges classified as in Good condition shall be computed

[[Page 194]]

and reported to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.023

Where:

GOOD = total number of the applicable bridges, where their condition is 
          Good per paragraph (b)(1) of this section;
g = a bridge determined to be in Good condition per paragraph (b)(1) of 
          this section;
Length = corresponding value of NBI Item 49--Structure Length for every 
          applicable bridge;
Width = corresponding value of NBI Item 52--Deck Width or value of Item 
          32 Approach Roadway Width for culverts where the roadway is on 
          a fill [i.e., traffic does not directly run on the top slab 
          (or wearing surface) of the culvert] and the headwalls do not 
          affect the flow of traffic for every applicable bridge.
s = an applicable bridge per paragraph (b) of this section; and
TOTAL = total number of the applicable bridges specified in paragraph 
          (b) of this section.

    (2) For Sec. 490.407(c)(2), the measure for the percentage of 
bridges classified as in Poor condition shall be computed and reported 
to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.024

Where:

POOR = total number of the applicable bridges, where their condition is 
          Poor per paragraph (b)(3) of this section;
p = a bridge determined to be in Poor condition per paragraph (b)(3) of 
          this section;
Length = corresponding value of NBI Item 49--Structure Length for every 
          applicable bridge;
Width = corresponding value of NBI Item 52--Deck Width or value of Item 
          32 Approach Roadway Width for culverts where the roadway is on 
          a fill [i.e., traffic does not directly run on the top slab 
          (or wearing surface) of the culvert] and the headwalls do not 
          affect the flow of traffic for every applicable bridge.
s = an applicable bridge per paragraph (b) of this section; and
    TOTAL = total number of the applicable bridges specified in 
paragraph (b) of this section.

    (d) The measures identified in Sec. 490.407(c) shall be used to 
establish targets in accordance with Sec. 490.105 and report targets 
and conditions described in Sec. 490.107.
    (e) The NBI Items included in this section are found in the 
Recording and Coding Guide for the Structure Inventory and Appraisal of 
the Nation's Bridges, which is incorporated by reference (see Sec. 
490.111).



Sec. 490.411  Establishment of minimum level for condition for 
bridges.

    (a) State DOTs will maintain bridges so that the percentage of the 
deck area of bridges classified as Structurally Deficient does not 
exceed 10.0 percent. This minimum condition level is applicable to 
bridges carrying the NHS, which includes on- and off-ramps connected to 
the NHS within a State, and bridges carrying the NHS that cross a State 
border.
    (b) For the purposes of carrying out this section and Sec. 490.413, 
a bridge will be classified as Structurally Deficient when one of its 
NBI Items, 58--Deck, 59--Superstructure, 60--Substructure, or 62--
Culverts, is 4 or less, or when one of its NBI Items, 67--Structural 
Evaluation or 71--Waterway Adequacy, is 2 or less. Beginning with 
calendar year 2018 and thereafter, a bridge will be classified as 
Structurally Deficient

[[Page 195]]

when one of its NBI Items, 58--Deck, 59--Superstructure, 60--
Substructure, or 62--Culverts, is 4 or less.
    (c) For all bridges carrying the NHS, which includes on- and off-
ramps connected to the NHS and bridges carrying the NHS that cross a 
State border, FHWA shall calculate a ratio of the total deck area of all 
bridges classified as Structurally Deficient to the total deck area of 
all applicable bridges for each State. The percentage of deck area of 
bridges classified as Structurally Deficient shall be computed by FHWA 
to the one tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.025

Where:

Structurally Deficient = total number of the applicable bridges, where 
          their classification is Structurally Deficient per this 
          section and Sec. 490.413;
SD = a bridge classified as Structurally Deficient per this section and 
          Sec. 490.413;
Length = corresponding value of NBI Item 49--Structure Length for every 
          applicable bridge;
Width = corresponding value of NBI Item 52--Deck Width
Beginning with calendar year 2018 and thereafter, Width = corresponding 
          value of NBI Item 52--Deck Width or value of Item 32 Approach 
          Roadway Width for culverts where the roadway is on a fill 
          [i.e., traffic does not directly run on the top slab (or 
          wearing surface) of the culvert] and the headwalls do not 
          affect the flow of traffic for every applicable bridge.
s = an applicable bridge per this section and Sec. 490.413; and
TOTAL = total number of the applicable bridges specified in this section 
          and Sec. 490.413.

    (d) The FHWA will annually determine the percentage of the deck area 
of NHS bridges classified as Structurally Deficient for each State DOT 
and identify State DOTs that do not meet the minimum level of condition 
for NHS bridges based on data cleared in the NBI as of June 15 of each 
year. The FHWA will notify State DOTs of their compliance with 23 U.S.C. 
119(f)(2) prior to October 1 of the year in which the determination was 
made.
    (e) For the purposes of carrying out this section, State DOTs will 
annually submit their most current NBI data on highway bridges to FHWA 
no later than March 15 of each year.
    (f) The NBI Items included in this section are found in the 
Recording and Coding Guide for the Structure Inventory and Appraisal of 
the Nation's Bridges, which is incorporated by reference (see Sec. 
490.111).



Sec. 490.413  Penalties for not maintaining bridge condition.

    (a) If FHWA determines for the 3-year period preceding the date of 
the determination, that more than 10.0 percent of the total deck area of 
bridges in the State on the NHS is located on bridges that have been 
classified as Structurally Deficient, the following requirements will 
apply.
    (1) During the fiscal year following the determination, the State 
DOT shall obligate and set aside in an amount equal to 50 percent of 
funds apportioned to such State for fiscal year 2009 to carry out 23 
U.S.C. 144 (as in effect the day before enactment of MAP-21) from 
amounts apportioned to a State for a fiscal year under 23 U.S.C. 
104(b)(1) only for eligible projects on bridges on the NHS.
    (2) The set-aside and obligation requirement for bridges on the NHS 
in a State in paragraph (a) of this section for a fiscal year shall 
remain in effect for each subsequent fiscal year until such time as less 
than 10 percent of the total deck area of bridges in the State on the 
NHS is located on bridges that have been classified as Structurally 
Deficient as determined by FHWA.
    (b) The FHWA will make the first determination by October 1, 2016, 
and each fiscal year thereafter.

[[Page 196]]



Subpart E_National Performance Management Measures To Assess Performance 
                     of the National Highway System

    Effective Date Note: At 82 FR 6042, Jan. 18, 2017, subpart E, 
consisting of Sec. Sec. 490.501 to 490.513, was added, effective Feb. 
17, 2017. At 82 FR 10441, Feb. 13, 2017, the effective date was delayed 
until Mar. 21, 2017. At 82 FR 14438, Mar. 21, 2017, the effective date 
was further delayed until May 20, 2017.



Sec. 490.501  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(3)(A)(ii)(IV) and (V) to establish performance measures 
for State Departments of Transportation (State DOTs) and Metropolitan 
Planning Organizations (MPOs) to use to assess:
    (a) Performance of the Interstate System; and
    (b) Performance of the non-Interstate National Highway System (NHS).



Sec. 490.503  Applicability.

    (a) The performance measures are applicable to those portions of the 
mainline highways on the NHS as provided in paragraphs (a)(1) and (2) of 
this section (and in more detail in Sec. 490.507):
    (1) The Travel Time Reliability measures in Sec. 490.507(a) are 
applicable to all directional mainline highways on the Interstate System 
and non-Interstate NHS.
    (2) The Greenhouse Gas (GHG) measure in Sec. 490.507(b) is 
applicable to all mainline highways on the Interstate and non-Interstate 
NHS.
    (b) [Reserved]



Sec. 490.505  Definitions.

    All definitions in Sec. 490.101 apply to this subpart. Unless 
otherwise specified in this subpart, the following definitions apply to 
this subpart:
    Greenhouse gas (GHG) is any gas that absorbs infrared radiation 
(traps heat) in the atmosphere. Ninety-five percent of transportation 
GHG emissions are carbon dioxide (CO2) from burning fossil 
fuel. Other transportation GHGs are methane (CH4), nitrous 
oxide (N2O), and hydrofluorocarbons (HFCs).
    Level of Travel Time Reliability is a comparison, expressed as a 
ratio, of the 80th percentile travel time of a reporting segment to the 
``normal'' (50th percentile) travel time of a reporting segment 
occurring throughout a full calendar year.
    Normal Travel Time (or 50th percentile travel time) is the time of 
travel to traverse the full extent of a reporting segment which is 
greater than the time for 50 percent of the travel in a calendar year to 
traverse the same reporting segment.
    Travel time cumulative probability distribution means a 
representation of all the travel times for a road segment during a 
defined reporting period (such as annually) presented in a percentile 
ranked order as provided in the travel time data set. The normal (50th 
percentile) and 80th percentile travel times used to compute the Travel 
Time Reliability measures may be identified by the travel time 
cumulative probability distribution.



Sec. 490.507  National performance management measures for system
performance.

    There are three performance measures to assess the performance of 
the Interstate System and the performance of the non-Interstate NHS for 
the purpose of carrying out the National Highway Performance Program 
(referred to collectively as the NHS Performance measures).
    (a) Two measures are used to assess reliability (referred to 
collectively as the Travel Time Reliability measures). They are:
    (1) Percent of the person-miles traveled on the Interstate that are 
reliable (referred to as the Interstate Travel Time Reliability 
measure); and
    (2) Percent of person-miles traveled on the non-Interstate NHS that 
are reliable (referred to as the Non-Interstate Travel Time Reliability 
measure).
    (b) One measure is used to assess GHG emissions, which is the 
percent change in tailpipe CO2 emissions on the NHS compared 
to the calendar year 2017 level (referred to as the GHG measure).



Sec. 490.509  Data requirements.

    (a) Travel time data needed to calculate the Travel Time Reliability 
measures in Sec. 490.507(a) shall come from

[[Page 197]]

the travel time data set, as specified in Sec. 490.103(e).
    (1) State DOTs, in coordination with MPOs, shall define reporting 
segments in accordance with Sec. 490.103(f). Reporting segments must be 
contiguous so that they cover the full extent of the mainline highways 
of the NHS in the State.
    (2) [Reserved]
    (b) State DOTs shall not replace missing travel times when data are 
not available in the travel time data set (data not reported, or 
reported as ``0'' or null) as specified in Sec. 490.511(b)(1)(v).
    (c) AADT needed to calculate the Travel Time Reliability measures 
will be used, as reported to HPMS in June of the reporting year, to 
assign an annual volume to each reporting segment. Annual volume will be 
calculated as:

Annual Volume = AADT x 365 days

    (d) The average occupancy factors for the State and/or metropolitan 
area (as applicable) needed to calculate Travel Time Reliability 
measures shall come from the most recently available data tables 
published by FHWA unless using other allowed data source(s).
    (e) If an NHS roadway is closed, the State DOT is not required to 
include those time periods for those segments of road in the 
calculations required for the Level of Travel Time Reliability (LOTTR) 
metric (see Sec. 490.511(a)(1)).
    (f) The FHWA will post on the FHWA Web site the tailpipe 
CO2 emissions factors State DOTs and MPOs shall use in the 
calculation.
    (g) Fuel sales information needed to calculate the GHG measure in 
Sec. 490.507(b) shall come from either of the following two sources:
    (1) The most recent final annual fuel sales data posted on the Web 
site by FHWA in Highway Statistics under ``Motor Fuel Use (MF-21)'' as 
of August 15th of the HPMS reporting year (https://www.fhwa.dot.gov/
policyinformation/statistics.cfm); or
    (2) The State DOT's fuel sales data used to create the summary data 
included in FHWA's MF-21, if it allows for a greater level of detail by 
fuel type. State DOTs shall make this data available to FHWA, upon 
request.
    (h) Final annual vehicle miles traveled (VMT) needed to calculate 
the GHG measure in Sec. 490.507(b) shall come from the most recently 
available data posted by FHWA in Highway Statistics in Table VM-3, 
``Federal-Aid Highway Travel'' as of August 15th of the HPMS reporting 
year.



Sec. 490.511  Calculation of National Highway System performance 
metrics.

    (a) Two performance metrics are required for the NHS Performance 
measures specified in Sec. 490.507. These are:
    (1) Level of Travel Time Reliability (LOTTR) for the Travel Time 
Reliability measures in Sec. 490.507(a) (referred to as the LOTTR 
metric).
    (2) Annual Total Tailpipe CO2 Emissions on the NHS for 
the GHG measure in Sec. 490.507(b) (referred to as the GHG metric).
    (b) The State DOT shall calculate the LOTTR metrics for each NHS 
reporting segment in accordance with the following:
    (1) Data sets shall be created from the travel time data set to be 
used to calculate the LOTTR metrics. This data set shall include, for 
each reporting segment, a ranked list of average travel times for all 
traffic (``all vehicles'' in NPMRDS nomenclature), to the nearest 
second, for 15 minute periods of a population that:
    (i) Includes travel times occurring between the hours of 6 a.m. and 
10 a.m. for every weekday (Monday-Friday) from January 1st through 
December 31st of the same year;
    (ii) Includes travel times occurring between the hours of 10 a.m. 
and 4 p.m. for every weekday (Monday-Friday) from January 1st through 
December 31st of the same year;
    (iii) Includes travel times occurring between the hours of 4 p.m. 
and 8 p.m. for every weekday (Monday-Friday) from January 1st through 
December 31st of the same year; and
    (iv) Includes travel times occurring between the hours of 6: a.m. 
and 8: p.m. for every weekend day (Saturday-Sunday) from January 1st 
through December 31st of the same year.
    (2) The Normal Travel Time (50th percentile) shall be determined 
from each data set defined under paragraph (b)(1) of this section as the 
time in which 50 percent of the times in the data set are shorter in 
duration and 50

[[Page 198]]

percent are longer in duration. The 80th percentile travel time shall be 
determined for each data set defined under paragraph (b)(1) of this 
section as the time in which 80 percent of the times in the data set are 
shorter in duration and 20 percent are longer in duration. Both the 
Normal and 80th percentile travel times can be determined by plotting 
the data on a travel time cumulative probability distribution graph or 
using the percentile functions available in spreadsheet and other 
analytical tools.
    (3) Four LOTTR metrics shall be calculated for each reporting 
segment; one for each data set defined under paragraph (b)(1) of this 
section as the 80th percentile travel time divided by the 50th 
percentile travel time and rounded to the nearest hundredth.
    (c) Tailpipe CO2 emissions on the NHS for a given year 
are calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.026

Where:

(Tailpipe CO2 Emissions on NHS)CY = Total tailpipe 
          CO2 emissions on the NHS in a calendar year (to the 
          nearest thousand tons);
T = the total number of on-road fuel types;
t = an on-road fuel type;
(Fuel Consumed)t = the quantity of total annual fuel consumed for on-
          road fuel type ``t'' (to the nearest thousand gallons);
(CO2 Factor)t = is the amount of CO2 released per 
          unit of fuel consumed for on-road fuel type ``t'';
NHS VMT = annual total vehicle-miles traveled on NHS (to the nearest one 
          million vehicle-miles); and
Total VMT = annual total vehicle-miles traveled on all public roads (to 
          the nearest one million vehicle-miles).

    (d) For the GHG measure listed in Sec. 490.507(b), MPOs are granted 
additional flexibility in how they calculate the GHG metric. MPOs may 
use the MPO share of the State's VMT as a proxy for the MPO share of 
CO2 emissions, VMT estimates along with MOVES \2\ emissions 
factors, FHWA's Energy and Emissions Reduction Policy Analysis Tool 
(EERPAT) model, or other method the MPO can demonstrate has valid and 
useful results for CO2 measurement.
---------------------------------------------------------------------------

    \2\ MOVES (Motor Vehicle Emission Simulator) is EPA's emission 
modeling system that estimates emissions for mobile sources at the 
national, county, and project level for criteria air pollutants, 
greenhouse gases, and air toxics. See https://www.epa.gov/moves.
---------------------------------------------------------------------------

    (e) Starting in 2018 and annually thereafter, State DOTs shall 
report the LOTTR metrics, defined in paragraph (b) of this section, in 
accordance with HPMS Field Manual by June 15th of each year for the 
previous year's measures.
    (1) Metrics are reported to HPMS by reporting segment. All reporting 
segments where the NPMRDS is used shall be referenced by NPMRDS TMC(s) 
or HPMS section(s). If a State DOT elects to use, in part or in whole, 
the equivalent data set, all reporting segment shall be referenced by 
HPMS section(s); and
    (2) The LOTTR metric (to the nearest hundredths) for each of the 
four time periods identified in paragraphs (b)(1)(i) through (iv) of 
this section: the corresponding 80th percentile travel times (to the 
nearest second), the corresponding Normal (50th percentile) Travel Times 
(to the nearest second), and directional AADTs. If a State DOT does not 
elect to use FHWA supplied occupancy factor, as provided in Sec. 
490.507(d), that State DOT shall report vehicle occupancy factor (to the 
nearest tenth) to HPMS.
    (f) Starting in 2018 and biennially thereafter, State DOTs shall 
report, as required in Sec. 490.107, the GHG metrics, defined in 
paragraph (c) of this section. Specifically, the following GHG metric 
shall be reported in the State Biennial Performance Reports, as required 
in Sec. 490.107:
    (1) Total tailpipe CO2 emissions, as specified in 
paragraph (c) of this section, generated by on-road sources travelling 
on the NHS (the GHG metric), and total on-road CO2 emissions

[[Page 199]]

(the step in the calculation prior to computing the GHG metric), in each 
of the following calendar years:
    (i) 2017 (reported in 2018, unless FHWA states on its Web site, 
noted in Sec. 490.509 (f), that there has been a change sufficient to 
warrant recalculation of the 2017 value); and
    (ii) The 2 years preceding the reporting years.
    (2) [Reserved]



Sec. 490.513  Calculation of National Highway System performance 
measures.

    (a) The NHS Performance measures in Sec. 490.507 shall be 
calculated in accordance with this section by State DOTs and MPOs to 
carry out the Interstate System and non-Interstate NHS performance-
related requirements of this part, and by FHWA to make the significant 
progress determinations specified in Sec. 490.109 and to report on 
system performance.
    (b) The Interstate Travel Time Reliability measure specified in 
Sec. 490.507(a)(1) shall be computed to the nearest tenth of a percent 
as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.027

Where:

R = total number of Interstate System reporting segments that are 
          exhibiting an LOTTR below 1.50 during all of the time periods 
          identified in Sec. 490.511(b)(1)(i) through (iv);
I = Interstate System reporting segment ``i'';
SLi = length, to the nearest thousandth of a mile, of 
          Interstate System reporting segment ``i'';
AVi = total annual traffic volume to the nearest single 
          vehicle, of the Interstate System reporting segment ``i'';
J = geographic area in which the reporting segment ``i'' is located 
          where a unique occupancy factor has been determined;
OFi = occupancy factor for vehicles on the NHS within a 
          specified geographic area within the State/Metropolitan 
          planning area; and
T = total number of Interstate System reporting segments.
(c) The Non-Interstate Travel Time Reliability measure specified in 
Sec. 490.507(a)(2) shall be computed to the nearest tenth of a percent 
as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.028

Where:

R = total number of non-Interstate NHS reporting segments that are 
          exhibiting an LOTTR below 1.50 during all of the time periods 
          identified in Sec. 490.511(b)(1)(i) through (iv);
i = non-Interstate NHS reporting segment ``i'';
SLi = length, to the nearest thousandth of a mile, of non-
          Interstate NHS reporting segment ``i'';
AVi = total annual traffic volume to the nearest 1 vehicle, 
          of the Interstate System reporting segment ``i'';
j = geographic area in which the reporting segment ``i'' is located 
          where a unique occupancy factor has been determined;
OFj = occupancy factor for vehicles on the NHS within a 
          specified geographic area within the State/Metropolitan 
          planning area; and
T = total number of non-Interstate NHS reporting segments.

(d) The GHG measure specified in Sec. 490.507(b) shall be computed to 
the nearest tenth of a percent as follows:

[[Page 200]]

[GRAPHIC] [TIFF OMITTED] TR18JA17.029

Where:

(Tailpipe CO2 Emissions on NHS) CY = total 
          tailpipe CO2 emissions on the NHS in a calendar 
          year (to the nearest thousand tons); and
(Tailpipe CO2 Emissions on NHS) 2017 = total 
          tailpipe CO2 emissions on the NHS in the calendar 
          year 2017 (to the nearest thousand tons).



  Subpart F_National Performance Management Measures To Assess Freight 
                    Movement on the Interstate System

    Effective Date Note: At 82 FR 6044, Jan. 18, 2017, subpart F, 
consisting of Sec. Sec. 490.601 to 490.613, was added, effective Feb. 
17, 2017. At 82 FR 10441, Feb. 13, 2017, the effective date was delayed 
until Mar. 21, 2017. At 82 FR 14438, Mar. 21, 2017, the effective date 
was further delayed until May 20, 2017.



Sec. 490.601  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(6) to establish performance measures for State Departments 
of Transportation (State DOTs) and the Metropolitan Planning 
Organizations (MPOs) to use to assess the national freight movement on 
the Interstate System.



Sec. 490.603  Applicability.

    The performance measures to assess the national freight movement are 
applicable to the Interstate System.



Sec. 490.605  Definitions.

    The definitions in Sec. 490.101 apply to this subpart.



Sec. 490.607  National performance management measures to assess 
freight movement on the Interstate System.

    The performance measure to assess freight movement on the Interstate 
System is the: Truck Travel Time Reliability (TTTR) Index (referred to 
as the Freight Reliability measure).



Sec. 490.609  Data requirements.

    (a) Travel time data needed to calculate the Freight Reliability 
measure in Sec. 490.607 shall come from the travel time data set, as 
specified in Sec. 490.103(e).
    (b) State DOTs, in coordination with MPOs, shall define reporting 
segments in accordance with Sec. 490.103(f). Reporting segments must be 
contiguous so that they cover the full extent of the directional 
mainline highways of the Interstate in the State.
    (c) When truck travel times are not available in the travel time 
data set (data not reported, or reported as ``0'' or null) as specified 
in Sec. 490.611(a)(1)(ii) for a given 15 minute interval, State DOTs 
shall replace the missing travel time with an observed travel time that 
represents all traffic on the roadway during the same 15 minute interval 
(``all vehicles'' in NPMRDS nomenclature).
    (d) If an NHS roadway is closed, the State DOT is not required to 
include those time periods for those segments of road in the 
calculations required for the Freight Reliability metric/measure.



Sec. 490.611  Calculation of Truck Travel Time Reliability metrics.

    (a) The State DOT shall calculate the TTTR Index metric (referred to 
as the TTTR metric) for each Interstate System reporting segment in 
accordance with the following:
    (1) A truck travel time data set shall be created from the travel 
time data set to be used to calculate the TTTR metric. This data set 
shall include, for each reporting segment, a ranked list of average 
truck travel times, to the nearest second, for 15 minute periods of a 
24-hour period for an entire calendar year that:
    (i) Includes ``AM Peak'' travel times occurring between the hours of 
6 a.m. and 10 a.m. for every weekday (Monday -Friday) from January 1st 
through December 31st of the same year;

[[Page 201]]

    (ii) Includes ``Mid Day'' travel times occurring between the hours 
of 10 a.m. and 4 p.m. for every weekday (Monday-Friday) from January 1st 
through December 31st of the same year;
    (iii) Includes ``PM Peak'' travel times occurring between the hours 
of 4 p.m. and 8 p.m. for every weekday (Monday-Friday) from January 1st 
through December 31st of the same year;
    (iv) Includes ``Overnight'' travel times occurring between the hours 
of 8 p.m. and 6 a.m. for every day (Sunday-Saturday) from January 1st 
through December 31st of the same year; and
    (v) Includes ``Weekend'' travel times occurring between the hours of 
6 a.m. and 8 p.m. for every weekend day (Saturday-Sunday) from January 
1st through December 31st of the same year.
    (2) The Normal Truck Travel Time (50th percentile) shall be 
determined from each of the truck travel time data sets defined under 
paragraph (a)(1) of this section as the time in which 50 percent of the 
times in the data set are shorter in duration and 50 percent are longer 
in duration. The 95th percentile truck travel time shall be determined 
from each of the truck travel time data sets defined under paragraph 
(a)(1) of this section as the time in which 95 percent of the times in 
the data set are shorter in duration. Both the Normal and 95th 
percentile truck travel times can be determined by plotting the data on 
a travel time cumulative probability distribution graph or using the 
percentile functions available in spreadsheet and other analytical 
tools.
    (3) Five TTTR metrics shall be calculated for each reporting 
segment; one for each data set defined under paragraph (a)(1) of this 
section as the 95th percentile travel time divided by the Normal Truck 
Travel Time and rounded to the nearest hundredth.
    (b) Starting in 2018 and annually thereafter, State DOTs shall 
report the TTTR metrics, as defined in this section, in accordance with 
the HPMS Field Manual by June 15th of each year for the previous year's 
Freight Reliability measures.
    (1) All metrics shall be reported to HPMS by reporting segments. 
When the NPMRDS is used metrics shall be referenced by NPMRDS TMC(s) or 
HPMS section(s). If a State DOT elects to use, in part or in whole, the 
equivalent data set, all reporting segment shall be referenced by HPMS 
section(s).
    (2) The TTTR metric shall be reported to HPMS for each reporting 
segment (to the nearest hundredths) for each of the five time periods 
identified in paragraphs (a)(1)(i) through (v) of this section; the 
corresponding 95th percentile travel times (to the nearest second) and 
the corresponding normal (50th percentile) travel times (to the nearest 
second).



Sec. 490.613  Calculation of Freight Reliability measure.

    (a) The performance for freight movement on the Interstate in Sec. 
490.607 (the Freight Reliability measure) shall be calculated in 
accordance with this section by State DOTs and MPOs to carry out the 
freight movement on the Interstate System related requirements of this 
part, and by FHWA to make the significant progress determinations 
specified in Sec. 490.109 and to report on freight performance of the 
Interstate System.
    (b) The Freight Reliability measure shall be computed to the nearest 
hundredth as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.030

Where:

i = An Interstate System reporting segment;
maxTTTRi = The maximum TTTR of the five time periods in 
          paragraphs (a)(1)(i) through (v) of Sec. 490.611, to the 
          nearest hundredth, of Interstate System reporting segment 
          ``i'';
SLi = Segment length, to the nearest thousandth of a mile, of Interstate 
          System reporting segment ``i''; and

[[Page 202]]

T= A total number of Interstate System reporting segments.



  Subpart G_National Performance Management Measure for Assessing the 
   Congestion Mitigation and Air Quality Improvement Program_Traffic 
                               Congestion

    Effective Date Note: At 82 FR 6045, Jan. 18, 2017, subpart G, 
consisting of Sec. Sec. 490.701 to 490.713, was added, effective Feb. 
17, 2017. At 82 FR 10441, Feb. 13, 2017, the effective date was delayed 
until Mar. 21, 2017. At 82 FR 14438, Mar. 21, 2017, the effective date 
was further delayed until May 20, 2017.



Sec. 490.701  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(5)(A) to establish performance measures for State DOTs and 
the MPOs to use in assessing CMAQ Traffic Congestion for the purpose of 
carrying out the CMAQ program.



Sec. 490.703  Applicability.

    The CMAQ Traffic Congestion performance measures are applicable to 
all urbanized areas that include NHS mileage and with a population over 
1 million for the first performance period and in urbanized areas with a 
population over 200,000 for the second and all other performance 
periods, that are, in all or part, designated as nonattainment or 
maintenance areas for ozone (O3), carbon monoxide (CO), or 
particulate matter (PM10 and PM2.5) National 
Ambient Air Quality Standards (NAAQS).



Sec. 490.705  Definitions.

    All definitions in Sec. 490.101 apply to this subpart. Unless 
otherwise specified, the following definitions apply in this subpart:
    Excessive delay means the extra amount of time spent in congested 
conditions defined by speed thresholds that are lower than a normal 
delay threshold. For the purposes of this rule, the speed threshold is 
20 miles per hour (mph) or 60 percent of the posted speed limit, 
whichever is greater.
    Peak Period is defined as weekdays from 6 a.m. to 10 a.m. and either 
3 p.m. to 7 p.m. or 4 p.m. to 8 p.m. State DOTs and MPOs may choose 
whether to use 3 p.m. to 7 p.m. or 4 p.m. to 8 p.m.



Sec. 490.707  National performance management measures for traffic
congestion.

    There are two performance measures to assess traffic congestion for 
the purpose of carrying out the CMAQ program (referred to collectively 
as the CMAQ Traffic Congestion measures. They are:
    (a) Annual Hours of Peak Hour Excessive Delay (PHED) Per Capita 
(referred to as the PHED measure); and
    (b) Percent of Non-SOV Travel.



Sec. 490.709  Data requirements.

    (a) Travel time data needed to calculate the PHED measure in Sec. 
490.707(a) shall come from the travel time data set, as specified in 
Sec. 490.103(e).
    (b) State DOTs, in coordination with MPOs, shall define reporting 
segments in accordance with Sec. 490.103(f). Reporting segments must be 
contiguous so that they cover the full extent of the directional 
mainline highways of the NHS in the urbanized area(s).
    (c) State DOTs shall develop hourly traffic volume data for each 
reporting segment as follows:
    (1) State DOTs shall measure or estimate hourly traffic volumes for 
Peak Periods on each weekday of the reporting year by using either 
paragraph (c)(1)(i) or (ii) of this section.
    (i) State DOTs may use hourly traffic volume counts collected by 
continuous count stations and apply them to multiple reporting segments; 
or
    (ii) State DOTs may use Annual Average Daily Traffic (AADT) reported 
to the HPMS to estimate hourly traffic volumes when no hourly volume 
counts exist. In these cases the AADT data used should be the most 
recently available, but not more than 2 years older than the reporting 
period (e.g., if reporting for calendar year 2018, AADT should be from 
2016 or 2017) and should be split to represent the appropriate direction 
of travel of the reporting segment.
    (2) State DOTs shall assign hourly traffic volumes to each reporting 
segment by hour (e.g., between 8 a.m. and 8:59 a.m.).

[[Page 203]]

    (3) State DOTs shall report the methodology they use to develop 
hourly traffic volume estimates to FHWA no later than 60 days before the 
submittal of the first Baseline Performance Period Report.
    (4) If a State DOT elects to change the methodology it reported 
under paragraph (c)(3) of this section, then the State DOT shall submit 
the changed methodology no later than 60 days before the submittal of 
next State Biennial Performance Report required in Sec. 490.107(b).
    (5) If an NHS roadway is closed, the State DOT is not required to 
include those time periods for the segment of road in the calculation 
required for this metric and measure.
    (d) State DOTs shall develop annual vehicle classification data for 
each reporting segment using data as follows:
    (1) State DOTs shall measure or estimate the percentage of cars, 
buses, and trucks, relative to total AADT for each segment using either 
paragraph (d)(1)(i) or (ii) of this section.
    (i) State DOTs may use annual traffic volume counts collected by 
continuous count stations to estimate the annual percent share of 
traffic volumes for cars, buses, and trucks for each segment; or
    (ii) State DOTs may use AADT reported to the HPMS to estimate the 
annual percent share of traffic volumes for cars, buses, and trucks, 
where:
    (A) Buses = value in HPMS Data Item ``AADT--Single--Unit'';
    (B) Trucks = value in HPMS Data Item ``AADT--Combination''; and
    (C) Cars = subtract values for Buses and Trucks from the value in 
HPMS Data Item ``AADT''.
    (iii) If a State DOT uses the data reported to the HPMS in paragraph 
(d)(1)(ii) of this section, then the data values should be split to 
represent the appropriate direction of travel of the reporting segment.
    (2) State DOTs shall report the methodology they use to develop 
annual percent share of traffic volume by vehicle class to FHWA no later 
than 60 days before the submittal of the first Baseline Performance 
Period Report.
    (3) If a State DOT elects to change the methodology it reported 
under paragraph (d)(2) of this section, then the State DOT shall submit 
the changed methodology no later than 60 days before the submittal of 
next State Biennial Performance Report required in Sec. 490.107(b).
    (e) State DOTs shall develop annual average vehicle occupancy (AVO) 
factors for cars, buses, and trucks in applicable urbanized areas using 
either method under paragraph (e)(1)(i) or (ii) of this section.
    (1) State DOTs shall measure or estimate annual vehicle occupancy 
factors for cars, buses, and trucks in applicable urbanized areas.
    (i) State DOTs shall use estimated annual vehicle occupancy factors 
for cars, buses, and trucks in urbanized areas provided by FHWA; and/or
    (ii) State DOTs may use an alternative estimate of annual vehicle 
occupancy factors for a specific reporting segment(s) for cars, buses, 
and trucks in urbanized areas, provided that it is more specific than 
the data provided by FHWA.
    (f) All State DOTs and MPOs contributing to the unified target for 
the applicable area as specified in Sec. 490.105(d)(2) shall agree to 
using one of the methods specified in paragraph (f)(1)(i), (ii), or 
(iii) of this section to identify the data that will be used to 
determine the Percent of Non-SOV Travel for the applicable urbanized 
area.
    (1) The data to determine the Percent of Non-SOV Travel measure 
shall be developed using any one of the following methods.
    (i) Method A--American Community Survey. Populations by predominant 
travel to commute to work may be identified from Table DP03 of the 
American Community Survey using the totals by transportation mode listed 
within the ``Commuting to Work'' subject heading under the ``Estimate'' 
column of the table. The ``5 Year Estimate'' DP03 table using a 
geographic filter that represents the applicable ``Urban Area'' shall be 
used to identify these populations. The Percent of Non-SOV Travel 
measure shall be developed from the most recent data as of August 15th 
of the year in which the State Biennial Performance Report is due to 
FHWA.

[[Page 204]]

    (ii) Method B--local survey. The Percent of Non-SOV Travel may be 
estimated from a local survey focused on either work travel or household 
travel for the area and conducted as recently as 2 years before the 
beginning of the performance period. The survey method shall estimate 
travel mode choice for the full urbanized area using industry accepted 
methodologies and approaches resulting in a margin of error that is 
acceptable to industry standards, allow for updates on at least a 
biennial frequency, and distinguish non-SOV travel occurring in the area 
as a percent of all work or household travel.
    (iii) Method C--system use measurement. The volume of travel using 
surface modes of transportation may be estimated from measurements of 
actual use of each transportation mode. Sample or continuous 
measurements may be used to count the number of travelers using 
different surface modes of transportation. The method used to count 
travelers shall estimate the total volume of annual travel for the full 
urbanized area within a margin of error that is acceptable to industry 
standards and allows for updates on at least a biennial frequency. The 
method shall include sufficient information to calculate the amount of 
non-SOV travel occurring in the area as a percentage of all surface 
transportation travel. State DOTs are encouraged to report use counts to 
FHWA that are not included in currently available national data sources.
    (2) State DOTs shall report the data collection method that is used 
to determine the Percent of Non-SOV Travel measure for each applicable 
urbanized area in the State to FHWA in their first Baseline Performance 
Period Report required in Sec. 490.107(b)(1). The State DOT shall 
include sufficient detail to understand how the data are collected if 
either Method B or Method C are used for the urbanized area. This method 
shall be used for the full performance period for each applicable 
urbanized area.
    (3) If State DOTs and MPOs that contribute to an applicable 
urbanized area elect to change the data collection method reported under 
paragraph (f)(2) of this section, then each respective State DOT shall 
report this change in their next Baseline Performance Report required in 
Sec. 490.107(b)(1). The new method reported as a requirement of this 
paragraph shall not be used until the beginning of the next performance 
period for the Baseline Performance Report in which the method was 
reported to be changed.
    (g) Populations of urbanized areas shall be as identified based on 
the most recent annual estimates published by the U.S. Census available 
1 year before the State DOT Baseline Performance Period Report is due to 
FHWA to identify applicability of the CMAQ Traffic Congestion measures 
in Sec. 490.707(a) and (b) for each performance period, as described in 
Sec. 490.105(e)(8)(iii)(D) and (f)(5)(iii)(D). For computing the PHED 
measure in Sec. 490.713(b), the most recent annual population estimate 
published by the U.S. Census, at the time when the State DOT Biennial 
Performance Period Report is due to FHWA shall be used.
    (h) Nonattainment and maintenance area determinations for the CMAQ 
Traffic Congestion measures:
    (1) The CMAQ Traffic Congestion measures apply to nonattainment and 
maintenance areas. Such areas shall be identified based on the effective 
date of U.S. EPA's designations under the NAAQS in 40 CFR part 81, as of 
the date 1 year before the State DOT Baseline Performance Period Report 
is due to FHWA.
    (2) The nonattainment and maintenance areas to which the CMAQ 
Traffic Congestion measures applies shall be revised if, on the date 1 
year before the State DOT Mid Performance Period Progress Report is due 
to FHWA, the area is no longer in nonattainment or maintenance for a 
criteria pollutant included in Sec. 490.703.



Sec. 490.711  Calculation of Peak Hour Excessive Delay metric.

    (a) The performance metric required to calculate the measure 
specified in Sec. 490.707(a) is Total Peak Hour Excessive Delay 
(person-hours)(referred to as the PHED metric). The following paragraphs 
explain how to calculate this PHED metric.
    (b) State DOTs shall use the following data to calculate the PHED 
metric:

[[Page 205]]

    (1) Travel times of all traffic (``all vehicles'' in NPMRDS 
nomenclature) during each 15 minute interval for all applicable 
reporting segments in the travel time data set occurring for peak 
periods from January 1st through December 31st of the same year;
    (2) The length of each applicable reporting segment, reported as 
required under Sec. 490.709(b);
    (3) Hourly volume estimation for all days and for all reporting 
segments where excessive delay is measured, as specified in Sec. 
490.709(c);
    (4) Annual vehicle classification data for all days and for all 
reporting segments where excessive delay is measured, as specified in 
Sec. 490.709(d); and
    (5) Annual vehicle occupancy factors for cars, buses, and trucks for 
all days and for all reporting segments where excessive delay is 
measured, as specified in Sec. 490.709(e).
    (c) The State DOT shall calculate the ``excessive delay threshold 
travel time'' for all applicable travel time segments as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.031

Where:

Excessive Delay Threshold Travel Times = the time of travel, 
          to the nearest whole second, to traverse the Travel Time 
          Segment at which any longer measured travel times would result 
          in excessive delay for the travel time segment ``'';
Travel Time Segment Lengths = total length of travel time 
          segment to the nearest thousandth of a mile for travel time 
          reporting segment ``''; and
Threshold Speeds = the speed of travel at which any slower 
          measured speeds would result in excessive delay for travel 
          time reporting segment ``.'' As defined in Sec. 490.705, the 
          speed threshold is 20 miles per hour (mph) or 60 percent of 
          the posted speed limit travel time reporting segment ``s,'' 
          whichever is greater.

    (d) State DOTs shall determine the ``excessive delay'' for each 15 
minute bin of each reporting segment for every hour and every day in a 
calendar year as follows:
    (1) The travel time segment delay (RSD) shall be calculated to the 
nearest whole second as follow:

RSDs,b - Excessive Delay Threshold Travel Times and RSDs,b <= 900 
seconds
Where:

RSDs,b = travel time segment delay, calculated to the nearest 
          whole second, for a 15-minute bin ``b'' of travel time 
          reporting segment ``s'' for in a day in a calendar year. 
          RSD(s)b not to exceed 900 seconds;
Travel times,b = a measured travel time, to the nearest 
          second, for 15-minute time bin ``b'' recorded for travel time 
          reporting segment ``s'';
Excessive Delay Threshold Travel Times = The maximum amount of time, to 
          the nearest second, for a vehicle to traverse through travel 
          time segment ``s'' before excessive delay would occur, as 
          specified in paragraph (c) of this section;
b = a 15-minute bin of a travel time reporting segment ``s''; and
s = a travel time reporting segment.

    (2) Excessive delay, the additional amount of time to traverse a 
travel time segment in a 15-minute bin as compared to the time needed to 
traverse the travel time segment when traveling at the excessive delay 
travel speed threshold, shall be calculated to the nearest thousandths 
of an hour as follows:

[[Page 206]]

[GRAPHIC] [TIFF OMITTED] TR18JA17.032

Where:

Excessive Delays,b = excessive delay, calculated to the 
          nearest thousandths of an hour, for 15-minute bin ``b'' of 
          travel time reporting segment ``s'';
RSDs,b = the calculated travel time reporting segment delay 
          for fifteen minute bin ``b'' of a travel time reporting 
          segment ``s,'' as described in paragraph (d)(1) of this 
          section;
b = a fifteen minute bin of a travel time reporting segment ``s''; and
s = a travel time reporting segment.

    (e) State DOTs shall use the hourly traffic volumes as described in 
Sec. 490.709(c) to calculate the PHED metric for each reporting segment 
as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.033

Where:

Total Excessive Delays (in person-hours) = the sum of the 
          excessive delay, to the nearest thousandths, for all traffic 
          traveling through single travel time reporting segment ``s'' 
          on NHS within an urbanized area, specified in Sec. 490.703, 
          accumulated over the full reporting year;
AVO = Average Vehicle Occupancy;
s = a travel time reporting segment;
d = a day of the reporting year;
TD = total number of days in the reporting year;
h = single hour interval of the day where the first hour interval is 12 
a.m. to 12:59 a.m.;
TH = total number of hour intervals in day ``h'';
b = 15-minute bin for hour interval ``h'';
TB = total number of 15-minute bins where travel times are recorded in 
the travel time data set for hour interval ``h'';
Excessive Delays,b,h,d = calculated excessive travel time, in 
hundredths of an hour, for 15 minute bin (), hour interval (h), day (d), 
and travel time segment (s), as described in paragraph (d)(2) of this 
section; and
[GRAPHIC] [TIFF OMITTED] TR18JA17.034


[[Page 207]]


Where the equation equals hourly traffic volume, to the nearest tenth, 
for hour interval ``h'' and day ``d'' that corresponds to 15-minute bin 
``b'' and travel time reporting segment ``s'' divided by 4. For example, 
the 9 a.m. to 9:15 a.m. minute bin would be assigned one fourth of the 
hourly traffic volume for the 9 a.m. to 9:59 a.m. hour on the roadway in 
which travel time segment is included;
    AVO = (PC x AVOC) + (PB x 
AVOB) + (PT x AVOT)

Where:

PC = the percent of cars as a share of total AADT on the 
          segment as specified in Sec. 490.709(d);
PB = the percent of buses as a share of total AADT on the 
          segment as specified in Sec. 490.709(d);
PT = the percent of trucks as a share of total AADT on the 
          segment as specified in Sec. 490.709(d);
AVOC = the average vehicle occupancy of cars as specified in 
          Sec. 490.709(e);
AVOB = the average vehicle occupancy of buses as specified in 
          Sec. 490.709(e); and
AVOT = the average vehicle occupancy of trucks as specified 
          in Sec. 490.709(e).

    (f) Starting in 2018 and annually thereafter, State DOTs shall 
report the PHED metric (to the nearest one hundredth hour) in accordance 
with HPMS Field Manual by June 15th of each year for the previous year's 
PHED measures. The PHED metric shall be reported for each reporting 
segment. All reporting segments of the NPMRDS shall be referenced by 
NPMRDS TMC or HPMS section(s). If a State DOT elects to use, in part or 
in whole, the equivalent data set, all reporting segments shall be 
referenced by HPMS sections.



Sec. 490.713  Calculation of Traffic Congestion measures.

    (a) The performance measures in Sec. 490.707 shall be computed in 
accordance with this section by State DOTs and MPOs to carry out CMAQ 
traffic congestion performance-related requirements of this part and by 
FHWA to report on traffic congestion performance.
    (b) The performance measure for CMAQ traffic congestion specified in 
Sec. 490.707, Annual Hours of Peak Hour Excessive Delay Per Capita (the 
PHED measure), shall be computed to the nearest tenth, and by summing 
the PHED metrics of all reporting segments in each of the urbanized 
area, specified in Sec. 490.703, and dividing it by the population of 
the urbanized area to produce the PHED measure. The equation for 
calculating the PHED measure is as follows:
[GRAPHIC] [TIFF OMITTED] TR18JA17.035

Where:

Annual Hours of Peak Hour Excessive Delay per Capita = the cumulative 
          hours of excessive delay, to the nearest tenth, experienced by 
          all people traveling through all reporting segments during 
          peak hours in the applicable urbanized area for the full 
          reporting calendar year;
s = travel time reporting segment within an urbanized area, specified in 
          Sec. 490.703;
T = total number of travel time reporting segments in the applicable 
          urbanized area;
Total Population = total hours of excessive delay in Sec. 490.711(e) 
          for all people traveling through travel time reporting segment 
          ``s'' during a calendar year (as defined in Sec. 490.711(f)); 
          and
Total Population = the total population in the applicable urbanized area 
          from the most recent annual population published by the U.S. 
          Census at the time that the State Biennial Performance Period 
          Report is due to FHWA.

    (c) Calculation for the PHED measure, described in paragraph (b) of 
this section, and target establishment for the measure shall be phased-
in under

[[Page 208]]

the requirements in Sec. 490.105(e)(8)(vi) and (f)(5)(vi).
    (d) The performance measure for CMAQ traffic congestion specified in 
Sec. 490.707(b), Percent of Non-SOV Travel, shall be computed as 
specified in paragraphs (d)(1) through (3) of this section corresponding 
to the method reported by the State DOT to collect travel data for the 
applicable area under Sec. 490.709(f)(2).
    (1) Method A--American Community Survey. The Percent of Non-SOV 
Travel shall be calculated to the nearest tenth of a percent using the 
following formula:

    Percent of Non-SOV Travel = 100% - % SOV

Where:

Percent of Non-SOV Travel = percent of commuting working population, to 
          the nearest tenth of a percent, that predominantly do not 
          commute by driving alone in a car, van, or truck, including 
          travel avoided by telecommuting; and
% SOV = percent estimate for ``Car, truck, or van--drive alone''.
    (2) Method B--local survey. The Percent of Non-SOV Travel shall be 
calculated using the data derived from local survey results as specified 
in Sec. 490.709(f)(1)(ii). The Percent of Non-SOV Travel measure shall 
be calculated to represent travel that is not occurring by driving alone 
in a motorized vehicle, including travel avoided by telecommuting, as a 
percentage of all surface transportation occurring in the applicable 
area. The Percent of Non-SOV Travel measure shall be calculated to the 
nearest tenth of a percent.
    (3) Method C--system use measurement. The Percent of Non-SOV Travel 
shall be calculated to the nearest tenth of a percent from the data 
collected from system use measurements as specified in Sec. 
490.709(f)(1)(iii) using the general form of the following formula:
[GRAPHIC] [TIFF OMITTED] TR18JA17.036


Where:
Percent of Non-SOV Travel = percentage of travel, to the nearest tenth 
          of a percent, that is not occurring by driving alone in a 
          motorized vehicle, including travel avoided by telecommuting
Volumenon-SOVVolume = Annual volume of person travel 
          occurring while driving alone in a motorized vehicle; and
VolumeSOV = Annual volume of person travel occurring on modes 
          other than driving alone in a motorized vehicle, calculated 
          as:
          [GRAPHIC] [TIFF OMITTED] TR18JA17.037
          

Where:
m = travel mode (modes other than driving alone in a motorized vehicle, 
          including travel avoided by telecommuting);
Volume m = annual volume of person travel for each mode, 
          ``m''; and
t = total number of modes that are not driving alone in a motorized 
          vehicle.



    Subpart H_National Performance Management Measures to Assess the 
Congestion Mitigation and Air Quality Improvement Program_On-Road Mobile 
                            Source Emissions

    Effective Date Note: At 82 FR 6049, Jan. 18, 2017, subpart H, 
consisting of Sec. Sec. 490.801 to 490.811, was added, effective Feb. 
17, 2017. At 82 FR 10441, Feb. 13, 2017, the effective date was delayed 
until Mar. 21, 2017. At 82 FR 14438, Mar. 21, 2017, the effective date 
was further delayed until May 20, 2017.



Sec. 490.801  Purpose.

    The purpose of this subpart is to implement the requirements of 23 
U.S.C. 150(c)(5)(B) to establish performance measures for State DOTs and 
the MPOs to use in assessing on-road mobile source emissions.



Sec. 490.803  Applicability.

    (a) The on-road mobile source emissions performance measure (called 
the

[[Page 209]]

Total Emissions Reduction- see Sec. 490.807) is applicable to all 
States and MPOs with projects financed with funds from the 23 U.S.C. 149 
CMAQ program apportioned to State DOTs for areas designated as 
nonattainment or maintenance for ozone (O3), carbon monoxide 
(CO), or particulate matter (PM10 and PM2.5) 
National Ambient Air Quality Standards (NAAQS).
    (b) This performance measure does not apply to States and MPOs that 
do not contain any portions of nonattainment or maintenance areas for 
the criteria pollutants identified in paragraph (a) of this section.



Sec. 490.805  Definitions.

    All definitions in Sec. 490.101 apply to this subpart. Unless 
otherwise specified in this subpart, the following definitions apply in 
this subpart:
    On-road mobile source means, within this part, emissions created by 
all projects and sources financed with funds from the 23 U.S.C. 149 CMAQ 
program.



Sec. 490.807  National performance management measure for assessing
on-road mobile source emissions for the purposes of the Congestion 
Mitigation and Air Quality Improvement Program.

    The performance measure for the purpose of carrying out the CMAQ 
Program and for State DOTs to use to assess on-road mobile source 
emissions is ``Total Emissions Reduction,'' which is the 2-year and 4-
year cumulative reported emission reductions, for all projects funded by 
CMAQ funds, of each criteria pollutant and applicable precursors 
(PM2.5, PM10, CO, VOC, and NOx) under the CMAQ 
program for which the area is designated nonattainment or maintenance.



Sec. 490.809  Data requirements.

    (a) The data needed to calculate the Total Emission Reduction 
measure shall come from the CMAQ Public Access System and includes:
    (1) The applicable nonattainment or maintenance area;
    (2) The applicable MPO; and
    (3) The emissions reduction estimated for each CMAQ funded project 
for each of the applicable criteria pollutants and their precursors for 
which the area is nonattainment or maintenance.
    (b) The State DOT shall:
    (1) Enter project information into the CMAQ project tracking system 
for each CMAQ project funded in the previous fiscal year by March 1st of 
the following fiscal year; and
    (2) Extract the data necessary to calculate the Total Emissions 
Reduction measures as it appears in the CMAQ Public Access System on 
July 1st for projects obligated in the prior fiscal year.
    (c) Nonattainment and maintenance area determinations for the CMAQ 
Total Emissions Reduction measure:
    (1) The CMAQ Total Emissions Reduction measure applies to 
nonattainment and maintenance areas. Such areas shall be identified 
based on the effective date of U.S. EPA's designations under the NAAQS 
in 40 CFR part 81, as of the date 1 year before the State DOT Baseline 
Performance Period Report is due to FHWA.
    (2) The nonattainment and maintenance areas to which the Total 
Emissions Reduction measure applies shall be revised if, on the date 1 
year before the State DOT Mid Performance Period Progress Report is due 
to FHWA, the area is no longer in nonattainment or maintenance for a 
pollutant included in Sec. 490.803.



Sec. 490.811  Calculation of Total Emissions Reduction measure.

    (a) The Total Emission Reductions performance measure specified in 
Sec. 490.807 shall be calculated in accordance with this section by 
State DOTs and MPOs to carry out CMAQ on-road mobile source emissions 
performance-related requirements of this part.
    (b) The Total Emission Reductions measure for each of the criteria 
pollutant or applicable precursor for all projects reported to the CMAQ 
Public Access System shall be calculated to the nearest one thousandths, 
as follows:

[[Page 210]]

[GRAPHIC] [TIFF OMITTED] TR18JA17.038


Where:
i = applicable projects reported in the CMAQ Public Access System for 
          the first 2 Federal fiscal years of a performance period and 
          for the entire performance period, as described in in Sec. 
          490.105(e)(4)(i)(B);
p = criteria pollutant or applicable precursor: PM2.5, 
          PM10, CO, VOC, or NOx;
Daily Kilograms of Emission Reductionsp,i = total daily 
          kilograms, to the nearest one thousandths, of reduced 
          emissions for a criteria pollutant or an applicable precursor 
          ``p'' in the in the first year the project is obligated;
T = total number of applicable projects reported to the CMAQ Public 
          Access System for the first 2 Federal fiscal years of a 
          performance period and for the entire performance period, as 
          described in Sec. 490.105(e)(4)(i)(B); and
Total Emission Reductionp = cumulative reductions in 
          emissions over 2 and 4 Federal fiscal years, total daily 
          kilograms, to the nearest one thousandths, of reduced 
          emissions for criteria pollutant or precursor ``p.''

[[Page 211]]



          SUBCHAPTER F_TRANSPORTATION INFRASTRUCTURE MANAGEMENT





PART 500_MANAGEMENT AND MONITORING SYSTEMS--Table of Contents



                      Subpart A_Management systems

Sec.
500.101 Purpose.
500.102 Policy.
500.103 Definitions.
500.104 State option.
500.105 Requirements.
500.106 PMS.
500.107 BMS.
500.108 SMS.
500.109 CMS.
500.110 PTMS.
500.111 IMS.

                   Subpart B_Traffic Monitoring System

500.201 Purpose.
500.202 TMS definitions.
500.203 TMS general requirements.
500.204 TMS components for highway traffic data.

    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.

    Source: 61 FR 67170, Dec. 19, 1996, unless otherwise noted.



                      Subpart A_Management Systems



Sec. 500.101  Purpose.

    The purpose of this part is to implement the requirements of 23 
U.S.C. 303(a) which directs the Secretary of Transportation (the 
Secretary) to issue regulations for State development, establishment, 
and implementation of systems for managing highway pavement of Federal-
aid highways (PMS), bridges on and off Federal-aid highways (BMS), 
highway safety (SMS), traffic congestion (CMS), public transportation 
facilities and equipment (PTMS), and intermodal transportation 
facilities and systems (IMS). This regulation also implements 23 U.S.C. 
303(b) which directs the Secretary to issue guidelines and requirements 
for State development, establishment, and implementation of a traffic 
monitoring system for highways and public transportation facilities and 
equipment (TMS).



Sec. 500.102  Policy.

    (a) Federal, State, and local governments are under increasing 
pressure to balance their budgets and, at the same time, respond to 
public demands for quality services. Along with the need to invest in 
America's future, this leaves transportation agencies with the task of 
trying to manage current transportation systems as cost-effectively as 
possible to meet evolving, as well as backlog needs. The use of existing 
or new transportation management systems provides a framework for cost-
effective decision making that emphasizes enhanced service at reduced 
public and private life-cycle cost. The primary outcome of 
transportation management systems is improved system performance and 
safety. The Federal Highway Administration (FHWA) and the Federal 
Transit Administration (FTA) strongly encourage implementation of 
transportation management systems consistent with State, metropolitan 
planning organization, transit operator, or local government needs.
    (b) Whether the systems are developed under the provisions of this 
part or under a State's own procedures, the following categories of FHWA 
administered funds may be used for development, establishment, and 
implementation of any of the management systems and the traffic 
monitoring system: National highway system; surface transportation 
program; State planning and research and metropolitan planning funds 
(including the optional use of minimum allocation funds authorized under 
23 U.S.C. 157(c) and restoration funds authorized under Sec. 202(f) of 
the National Highway System Designation Act of 1995 (Pub.L. 104-59) for 
carrying out the provisions of 23 U.S.C. 307(c)(1) and 23 U.S.C. 
134(a)); congestion mitigation and air quality improvement program funds 
for those management systems that can be shown to contribute to the 
attainment of a national ambient air quality standard; and apportioned 
bridge funds for development

[[Page 212]]

and establishment of the bridge management system. The following 
categories of FTA administered funds may be used for development, 
establishment, and implementation of the CMS, PTMS, IMS, and TMS: 
Metropolitan planning; State planning and research, and formula transit 
funds.



Sec. 500.103  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Federal-aid highways means those highways eligible for assistance 
under title 23, U.S.C., except those functionally classified as local or 
rural minor collectors.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decision making for a metropolitan planning 
area.
    National Highway System (NHS) means the system of highways 
designated and approved in accordance with the provisions of 23 U.S.C. 
103(b).
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation management area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials), and officially designated by the 
Administrators of the FHWA and the FTA. The TMA designation applies to 
the entire metropolitan planning area(s).



Sec. 500.104  State option.

    Except as specified in Sec. 500.105 (a) and (b), a State may elect 
at any time not to implement any one or more of the management systems 
required under 23 U.S.C. 303, in whole or in part.



Sec. 500.105  Requirements.

    (a) The metropolitan transportation planning process (23 U.S.C. 134 
and 49 U.S.C. 5303-5005) in TMAs shall include a CMS that meets the 
requirements of Sec. 500.109 of this regulation.
    (b) States shall develop, establish, and implement a TMS that meets 
the requirements of subpart B of this regulation.
    (c) Any of the management systems that the State chooses to 
implement under 23 U.S.C. 303 and this regulation shall be developed in 
cooperation with MPOs in metropolitan areas, affected agencies receiving 
assistance under the Federal Transit Act (49 U.S.C., Chapter 53), and 
other agencies (including private owners and operators) that have 
responsibility for operation of the affected transportation systems or 
facilities.
    (d) The results (e.g., policies, programs, projects, etc.) of any of 
the management systems that a State chooses to develop under 23 U.S.C. 
303 and this regulation shall be considered in the development of 
metropolitan and statewide transportation plans and improvement programs 
and in making project selection decisions under title 23, U.S.C., and 
under the Federal Transit Act. Plans and programs adopted after 
September 30, 1997, shall demonstrate compliance with this requirement.



Sec. 500.106  PMS.

    An effective PMS for Federal-aid highways is a systematic process 
that provides information for use in implementing cost-effective 
pavement reconstruction, rehabilitation, and preventative maintenance 
programs and that results in pavements designed to accommodate current 
and forecasted traffic in a safe, durable, and cost-effective manner. 
The PMS should be based on the ``AASHTO Guidelines for Pavement 
Management Systems.'' \1\
---------------------------------------------------------------------------

    \1\ AASHTO Guidelines for Pavement Management Systems, July 1990, 
can be purchased from the American Association of State Highway and 
Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------



Sec. 500.107  BMS.

    An effective BMS for bridges on and off Federal-aid highways that 
should be based on the ``AASHTO Guidelines for Bridge Management 
Systems'' \2\ and

[[Page 213]]

that supplies analyses and summaries of data, uses mathematical models 
to make forecasts and recommendations, and provides the means by which 
alternative policies and programs may be efficiently considered. An 
effective BMS should include, as a minimum, formal procedures for:
---------------------------------------------------------------------------

    \2\ AASHTO Guidelines for Bridge Management Systems, 1992, can be 
purchased from the American Association of State Highway and 
Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
---------------------------------------------------------------------------

    (a) Collecting, processing, and updating data;
    (b) Predicting deterioration;
    (c) Identifying alternative actions;
    (d) Predicting costs;
    (e) Determining optimal policies;
    (f) Performing short- and long-term budget forecasting; and
    (g) Recommending programs and schedules for implementation within 
policy and budget constraints.



Sec. 500.108  SMS.

    An SMS is a systematic process with the goal of reducing the number 
and severity of traffic crashes by ensuring that all opportunities to 
improve highway safety are identified, considered, implemented as 
appropriate, and evaluated in all phases of highway planning, design, 
construction, maintenance, and operation and by providing information 
for selecting and implementing effective highway safety strategies and 
projects. The development of the SMS may be based on the guidance in 
``Safety Management Systems: Good Practices for Development and 
Implementation.'' \3\ An effective SMS should include, at a minimum:
---------------------------------------------------------------------------

    \3\ Safety Management Systems: Good Practices for Development and 
Implementation, FHWA and NHTSA, May 1996. Available for inspection and 
copying as prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (a) Communication, coordination, and cooperation among the 
organizations responsible for the roadway, human, and vehicle safety 
elements;
    (b) A focal point for coordination of the development, 
establishment, and implementation of the SMS among the agencies 
responsible for these major safety elements;
    (c) Establishment of short- and long-term highway safety goals to 
address identified safety problems;
    (d) Collection, analysis, and linkage of highway safety data;
    (e) Identification of the safety responsibilities of units and 
positions;
    (f) Public information and education activities; and
    (g) Identification of skills, resources, and training needs to 
implement highway safety programs.



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.

[72 FR 7285, Feb. 14, 2007]

[[Page 214]]



Sec. 500.110  PTMS.

    An effective PTMS for public transportation facilities (e.g., 
maintenance facilities, stations, terminals, transit related 
structures), equipment, and rolling stock is a systematic process that 
collects and analyzes information on the condition and cost of transit 
assets on a continual basis, identifies needs, and enables decision 
makers to select cost-effective strategies for providing and maintaining 
transit assets in serviceable condition. The PTMS should cover public 
transportation systems operated by the State, local jurisdictions, 
public transportation agencies and authorities, and private (for profit 
and non-profit) transit operators receiving funds under the Federal 
Transit Act and include, at a minimum:
    (a) Development of transit asset condition measures and standards;
    (b) An inventory of the transit assets including age, condition, 
remaining useful life, and replacement cost; and
    (c) Identification, evaluation, and implementation of appropriate 
strategies and projects.



Sec. 500.111  IMS.

    An effective IMS for intermodal facilities and systems provides 
efficient, safe, and convenient movement of people and goods through 
integration of transportation facilities and systems and improvement in 
the coordination in planning, and implementation of air, water, and the 
various land-based transportation facilities and systems. An IMS should 
include, at a minimum:
    (a) Establishment of performance measures;
    (b) Identification of key linkages between one or more modes of 
transportation, where the performance or use of one mode will affect 
another;
    (c) Definition of strategies for improving the effectiveness of 
these modal interactions; and
    (d) Evaluation and implementation of these strategies to enhance the 
overall performance of the transportation system.



                   Subpart B_Traffic Monitoring System



Sec. 500.201  Purpose.

    The purpose of this subpart is to set forth requirements for 
development, establishment, implementation, and continued operation of a 
traffic monitoring system for highways and public transportation 
facilities and equipment (TMS) in each State in accordance with the 
provisions of 23 U.S.C. 303 and subpart A of this part.



Sec. 500.202  TMS definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) and Sec. 500.103 are applicable to this subpart. As used 
in this part:
    Highway traffic data means data used to develop estimates of the 
amount of person or vehicular travel, vehicle usage, or vehicle 
characteristics associated with a system of highways or with a 
particular location on a highway. These types of data support the 
estimation of the number of vehicles traversing a section of highway or 
system of highways during a prescribed time period (traffic volume), the 
portion of such vehicles that may be of a particular type (vehicle 
classification), the weights of such vehicles including the weight of 
each axle and associated distances between axles on a vehicle (vehicle 
weight), or the average number of persons being transported in a vehicle 
(vehicle occupancy).
    Traffic monitoring system means a systematic process for the 
collection, analysis, summary, and retention of highway and transit 
related person and vehicular traffic data.
    Transit traffic data means person and vehicular data for public 
transportation on public highways and streets and the number of vehicles 
and ridership for dedicated transit rights-of-way (e.g., rail and 
busways), at the maximum load points for the peak period in the peak 
direction and for the daily time period.



Sec. 500.203  TMS general requirements.

    (a) Each State shall develop, establish, and implement, on a 
continuing basis, a TMS to be used for obtaining highway traffic data 
when:

[[Page 215]]

    (1) The data are supplied to the U.S. Department of Transportation 
(U.S. DOT);
    (2) The data are used in support of transportation management 
systems;
    (3) The data are used in support of studies or systems which are the 
responsibility of the U.S. DOT;
    (4) The collection of the data is supported by the use of Federal 
funds provided from programs of the U.S. DOT;
    (5) The data are used in the apportionment or allocation of Federal 
funds by the U.S. DOT;
    (6) The data are used in the design or construction of an FHWA 
funded project; or
    (7) The data are required as part of a federally mandated program of 
the U.S. DOT.
    (b) The TMS for highway traffic data should be based on the concepts 
described in the American Association of State Highway and 
Transportation Officials (AASHTO) ``AASHTO Guidelines for Traffic Data 
Programs'' \4\ and the FHWA ``Traffic Monitoring Guide (TMG),'' \5\ and 
shall be consistent with the FHWA ``Highway Performance Monitoring 
System Field Manual.'' \6\
---------------------------------------------------------------------------

    \4\ AASHTO Guidelines for Traffic Data Programs, 1992, ISBN 1-56051-
054-4, can be purchased from the American Association of State Highway 
and Transportation Officials, 444 N. Capitol Street, NW., Suite 249, 
Washington, D.C. 20001. Available for inspection as prescribed in 49 CFR 
part 7, appendix D.
    \5\ Traffic Monitoring Guide, DOT/FHWA, publication No. FHWA-PL-95-
031, February 1995. Available for inspection and copying as prescribed 
in 49 CFR part 7, appendix D.
    \6\ Highway Performance Monitoring System (HPMS) Field Manual for 
the Continuing Analytical and Statistical Data Base, DOT/FHWA, August 
30, 1993 (FHWA Order M5600.1B). Available for inspection and copying as 
prescribed in 49 CFR part 7, appendix D.
---------------------------------------------------------------------------

    (c) The TMS shall cover all public roads except those functionally 
classified as local or rural minor collector or those that are federally 
owned. Coverage of federally owned public roads shall be determined 
cooperatively by the State, the FHWA, and the agencies that own the 
roads.
    (d) The State's TMS shall apply to the activities of local 
governments and other public or private non-State government entities 
collecting highway traffic data within the State if the collected data 
are to be used for any of the purposes enumerated in Sec. 500.203(a) of 
this subpart.
    (e) Procedures other than those referenced in this subpart may be 
used if the alternative procedures are documented by the State to 
furnish the precision levels as defined for the various purposes 
enumerated in Sec. 500.203(a) of this subpart and are found acceptable 
by the FHWA.
    (f) Nothing in this subpart shall prohibit the collection of 
additional highway traffic data if such data are needed in the 
administration or management of a highway activity or are needed in the 
design of a highway project.
    (g) Transit traffic data shall be collected in cooperation with MPOs 
and transit operators.
    (h) The TMS for highways and public transportation facilities and 
equipment shall be fully operational and in use by October 1, 1997.



Sec. 500.204  TMS components for highway traffic data.

    (a) General. Each State's TMS, including those using alternative 
procedures, shall address the components in paragraphs (b) through (h) 
of this section.
    (b) Precision of reported data. Traffic data supplied for the 
purposes identified in Sec. 500.203(a) of this subpart shall be to the 
statistical precision applicable at the time of the data's collection as 
specified by the data users at various levels of government. A State's 
TMS shall meet the statistical precisions established by FHWA for the 
HPMS.
    (c) Continuous counter operations. Within each State, there shall be 
sufficient continuous counters of traffic volumes, vehicle 
classification, and vehicle weight to provide estimates of changes in 
highway travel patterns and to provide for the development of day-of-
week, seasonal, axle correction, growth factors, or other comparable 
factors approved by the FHWA that support the development of traffic 
estimates to meet the statistical precision requirements of the data 
uses identified in Sec. 500.203(a) of this subpart. As appropriate, 
sufficient continuous

[[Page 216]]

counts of vehicle classification and vehicle weight should be available 
to address traffic data program needs.
    (d) Short term traffic monitoring. (1) Count data for traffic 
volumes collected in the field shall be adjusted to reflect annual 
average conditions. The estimation of annual average daily traffic will 
be through the appropriate application of only the following: Seasonal 
factors, day-of-week factors, and, when necessary, axle correction and 
growth factors or other comparable factors approved by the FHWA. Count 
data that have not been adjusted to represent annual average conditions 
will be noted as being unadjusted when they are reported. The duration 
and frequency of such monitoring shall comply to the data needs 
identified in Sec. 500.203(a) of this subpart.
    (2) Vehicle classification activities on the National Highway System 
(NHS), shall be sufficient to assure that, on a cycle of no greater than 
three years, every major system segment (i.e., segments between 
interchanges or intersections of principal arterials of the NHS with 
other principal arterials of the NHS) will be monitored to provide 
information on the numbers of single-trailer combination trucks, 
multiple-trailer combination trucks, two-axle four-tire vehicles, buses 
and the total number of vehicles operating on an average day. If it is 
determined that two or more continuous major system segments have both 
similar traffic volumes and distributions of the vehicle types 
identified above, a single monitoring session will be sufficient to 
monitor these segments.
    (e) Vehicle occupancy monitoring. As deemed appropriate to support 
the data uses identified in Sec. 500.203(a) of this subpart, data will 
be collected on the average number of persons per automobile, light two-
axle truck, and bus. The duration, geographic extent, and level of 
detail shall be consistent with the intended use of the data, as 
cooperatively agreed to by the organizations that will use the data and 
the organizations that will collect the data. Such vehicle occupancy 
data shall be reviewed at least every three years and updated as 
necessary. Acceptable data collection methods include roadside 
monitoring, traveler surveys, the use of administrative records (e.g., 
accident reports or reports developed in support of public 
transportation programs), or any other method mutually acceptable to the 
responsible organizations and the FHWA.
    (f) Field operations. (1) Each State's TMS for highway traffic data 
shall include the testing of equipment used in the collection of the 
data. This testing shall be based on documented procedures developed by 
the State. This documentation will describe the test procedure as well 
as the frequency of testing. Standards of the American Society for 
Testing and Materials or guidance from the AASHTO may be used. Only 
equipment passing the test procedures will be used for the collection of 
data for the purposes identified in Sec. 500.203(a) of this subpart.
    (2) Documentation of field operations shall include the number of 
counts, the period of monitoring, the cycle of monitoring, and the 
spatial and temporal distribution of count sites. Copies of the State's 
documentation shall be provided to the FHWA Division Administrator when 
it is initially developed and after each revision.
    (g) Source data retention. For estimates of traffic or travel, the 
value or values collected during a monitoring session, as well as 
information on the date(s) and hour(s) of monitoring, will remain 
available until the traffic or travel estimates based on the count 
session are updated. Data shall be available in formats that conform to 
those in the version of the TMG current at the time of data collection 
or as then amended by the FHWA.
    (h) Office factoring procedures. (1) Factors to adjust data from 
short term monitoring sessions to estimates of average daily conditions 
shall be used to adjust for month, day of week, axle correction, and 
growth or other comparable factors approved by the FHWA. These factors 
will be reviewed annually and updated at least every three years.
    (2) The procedures used by a State to edit and adjust highway 
traffic data collected from short term counts at field locations to 
estimates of average traffic volume shall be documented. The 
documentation shall include the factors discussed in paragraph (d)(1) of 
this section. The documentation shall remain available as long as the 
traffic

[[Page 217]]

or travel estimates discussed in paragraph (g) of this section remain 
current. Copies of the State's documentation shall be provided to the 
FHWA Division Administrator when it is initially developed and after 
each revision.



PART 505_PROJECTS OF NATIONAL AND REGIONAL SIGNIFICANCE EVALUATION
AND RATING--Table of Contents



Sec.
505.1 Purpose.
505.3 Policy.
505.5 Definitions.
505.7 Eligibility.
505.9 Criteria for grants.
505.11 Project evaluation and rating.
505.13 Federal Government's share of project cost.
505.15 Full funding grant agreement.
505.17 Applicability of Title 23, U.S. Code.

    Authority: Section 1301 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59; 
119 Stat. 1144); 23 U.S.C. 315; 49 CFR 1.48.

    Source: 73 FR 63370, Oct. 24, 2008, unless otherwise noted.



Sec. 505.1  Purpose.

    The purpose of this part is to establish evaluation, rating, and 
selection guidelines for funding proposed Projects of National and 
Regional Significance (PNRS).



Sec. 505.3  Policy.

    A Project of National and Regional Significance should 
quantitatively improve the throughput or provide long term congestion 
relief for passenger or freight movement for a part of the 
transportation network and clearly connect this improvement to 
sustainable economic productivity for the nation or the region in which 
it is located.



Sec. 505.5  Definitions.

    Unless otherwise specified in this part, the definitions contained 
in 23 U.S.C. 101(a) are applicable to this part. In addition, the 
following definitions apply:
    Applicant means either:
    (1) A State Transportation Department, or
    (2) A group of State Transportation Departments, with one State 
acting as the project lead.
    Eligible project means any surface transportation project or set of 
integrated surface transportation projects closely related in the 
function they perform eligible for Federal assistance under title 23, 
United States Code, including public or private rail facilities 
providing benefits to highway users, surface transportation 
infrastructure modifications to facilitate intermodal interchange, 
transfer, and access into and out of ports and other activities eligible 
under such title.
    Eligible project costs means the costs pertaining to an eligible 
project for:
    (1) Development phase activities, including planning, feasibility 
analysis, revenue forecasting, environmental review, preliminary 
engineering and design work, and other preconstruction activities;
    (2) Construction, reconstruction, rehabilitation, and acquisition of 
real property (including land related to the project and improvements to 
land), environmental mitigation, construction contingencies, acquisition 
of equipment, and operational improvements; and
    (3) all debt financing costs authorized by 23 U.S.C. 122.
    Full Funding Grant Agreement (FFGA) means the agreement used to 
provide Federal financial assistance under title 23, United States Code, 
for Projects of National and Regional Significance. An FFGA defines the 
scope of the project, establishes the maximum amount of Government 
financial assistance for the project, covers the period of time for 
completion of the project, facilitates the efficient management of the 
project in accordance with applicable Federal statutes, regulations, and 
policy, including oversight roles and responsibilities, and other terms 
and conditions.



Sec. 505.7  Eligibility.

    To be eligible for assistance under this program:
    (a) A project meeting the definition of an eligible project under 
505.5 of this section located fully within one State shall have eligible 
project costs that

[[Page 218]]

are quantified in the project proposal as equal to or exceeding the 
lesser of:
    (1) $500,000,000; or
    (2) 75 percent of the amount of Federal highway assistance funds 
apportioned for the most recently completed fiscal year to the State in 
which the project is located.
    (b) A multi-State project meeting the definition of an eligible 
project under 505.5 of this section shall have eligible project costs 
that are quantified in the project proposal as equal to or exceeding the 
lesser of:
    (1) $500,000,000; or
    (2) 75 percent of the amount of Federal highway assistance funds 
apportioned for the most recently completed fiscal year to the State in 
which the project is located that has the largest apportionment.



Sec. 505.9  Criteria for grants.

    (a) The Secretary will approve a grant for a Project of National and 
Regional Significance project only if the Secretary determines, based 
upon information submitted by the applicant, that the project:
    (1) Is based on the results of preliminary engineering;
    (2) Is supported by an acceptable degree of non-Federal financial 
commitments, including evidence of stable and dependable financing 
sources to construct, maintain, and operate the infrastructure facility. 
In evaluating a non-Federal financial commitment, the Secretary shall 
require that:
    (i) The proposed project plan provides for the availability of 
contingency amounts that the Secretary determines to be reasonable to 
cover unanticipated cost increases; and
    (ii) Each proposed non-Federal source of capital and operating 
financing is stable, reliable, and available within the proposed project 
timetable. In assessing the stability, reliability, and availability of 
proposed sources of non-Federal financing, the Secretary will consider:
    (A) Existing financial commitments;
    (B) The degree to which financing sources are dedicated to the 
purposes proposed;
    (C) Any debt obligation that exists or is proposed by the recipient 
for the proposed project; and
    (D) The extent to which the project has a non-Federal financial 
commitment that exceeds the required non-Federal share of the cost of 
the project.
    (3) Emerges from the metropolitan and Statewide planning process, 
consistent with 23 CFR Part 450;
    (4) Is justified based on the ability of the project:
    (i) To generate national and/or regional economic benefits, as 
evidenced by, but not limited to:
    (A) The creation of jobs, expansion of business opportunities, and 
impacts to the gross domestic product due to quantitatively increased 
throughput;
    (B) The amount and importance of freight and passenger travel 
served; and
    (C) The demographic and economic characteristics of the area served.
    (ii) To allocate public and private costs commensurate with the 
share of public and private benefits and risks;
    (iii) To generate long-term congestion relief that impacts the 
State, the region, and the Nation, as evidenced by, but not limited to:
    (A) Congestion levels, delay and consequences of delay;
    (B) Efficiency and effectiveness of congestion mitigation; and
    (C) Travel time reliability.
    (iv) To improve transportation safety, including reducing 
transportation accidents, injuries, and fatalities, as evidenced by, but 
not limited to, number, rate and consequences of crashes, injuries and 
fatalities in the affected region and corridor;
    (v) To otherwise enhance the national transportation system by 
improving throughput; and
    (vi) To garner support for non-Federal financial commitments and 
provide evidence of stable and dependable financing sources to 
construct, maintain, and operate the infrastructure facility.
    (b) In selecting projects under this section, the Secretary will 
consider the extent to which the project:
    (1) Leverages Federal investment by encouraging non-Federal 
contributions to the project, including contributions from public-
private partnerships;
    (2) Uses new technologies, including intelligent transportation 
systems,

[[Page 219]]

that enhance the efficiency of the project;
    (3) Helps maintain or protect the environment; and
    (4) Demonstrates that the proposed project cannot be readily and 
efficiently realized without Federal support and participation.
    (c) All information submitted as part of or in support of an 
application shall use publicly available data or data that can be made 
public and methodologies that are accepted by industry practice and 
standards.
    (d) Measures for the selection criteria shall include projections 
for both the build and no-build scenarios.
    (e) PNRS solicitations or guidance documents will contain, as 
needed, additional specific information regarding measures, weighting, 
and use of these criteria.
    (f) All proposed PNRS projects are required to comply with the 
requirements of 23 U.S.C. 106(h) regardless of whether the project meets 
project cost threshold for classification as a major project.



Sec. 505.11  Project evaluation and rating.

    (a) The Secretary shall evaluate and rate each proposed project as 
``highly recommended,'' ``recommended,'' or ``not recommended'' based on 
the criteria in section 505.9 of this part. Individual ratings of 
``highly recommended,'' ``recommended,'' or ``not recommended'' will be 
conducted for each of the selection criteria.
    (b) In response to a PNRS project solicitation a State may submit a 
project for a non-binding preliminary rating and evaluation at any point 
in the project development after the project's concept plan is 
developed.
    (c) Non-binding preliminary rating and evaluation will be reported 
in the appendix of the Secretary's Annual Report on PNRS.
    (d) A rating and evaluation will be considered complete and listed 
in the Secretary's Annual Report on PNRS only after preliminary 
engineering is completed.
    (e) The rating and evaluation for a proposed project will remain 
valid until the closing date of the next PNRS solicitation.



Sec. 505.13  Federal Government's share of project cost.

    (a) Based on engineering studies, studies of economic feasibility, 
and information on the expected use of equipment or facilities, the 
Secretary shall estimate the project's eligible costs.
    (b) A FFGA for the project shall not exceed 80 percent of the 
eligible project cost. A refund or reduction of the remainder may only 
be made if a refund of a proportional amount of the grant of the Federal 
Government is made at the same time.



Sec. 505.15  Full funding grant agreement.

    (a) A proposed project may not be funded under this program unless 
the Secretary finds that the project meets the requirements of this part 
and there is a reasonable likelihood that the project will continue to 
meet such requirements.
    (b) A project financed under this section shall be carried out 
through a FFGA. The Secretary shall enter into a FFGA based on the 
evaluations and ratings required herein, and in accordance with the 
terms specified in section 1301(g)(2) of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users, (Pub. 
L. 109-59; 119 Stat. 1144).
    (c) A FFGA will be entered into only after the project has 
commitments for non-Federal funding in place and all other requirements 
are met.
    (d) A State may request the use of Advanced Construction for the 
project and subsequently convert those funds to an eligible Federal-aid 
funding category or to PNRS funding as part of the FFGA.



Sec. 505.17  Applicability of Title 23, U.S. Code.

    Funds made available to carry out this section shall be available 
for obligation in the same manner as if such funds were apportioned 
under chapter 1 of title 23, United States Code; except that such funds 
shall not be transferable to other agencies and shall remain available 
until expended and the Federal share of the cost of a Project of 
National and Regional Significance shall be as provided in section 
505.13.

[[Page 220]]



PART 511_REAL-TIME SYSTEM MANAGEMENT INFORMATION PROGRAM--
Table of Contents



Subparts A-B [Reserved]

        Subpart C_Real-Time System Management Information Program

Sec.
511.301 Purpose.
511.303 Definitions.
511.305 Policy.
511.307 Eligibility for Federal funding.
511.309 Provisions for traffic and travel conditions reporting.
511.311 Real-time information program establishment.
511.313 Metropolitan Area real-time information program supplement.
511.315 Program administration.

    Authority: Section 1201, Pub. L. 109-59; 23 U.S.C. 315; 23 U.S.C. 
120; 49 CFR 1.48.

    Source: 75 FR 68427, Nov. 8, 2010, unless otherwise noted.

Subparts A-B [Reserved]



        Subpart C_Real-Time System Management Information Program



Sec. 511.301  Purpose.

    The purpose of this part is to establish the provisions and 
parameters for the Real-Time System Management Information Program. 
These provisions implement Subsections 1201(a)(1), (a)(2), and (c)(1) of 
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59; 119 Stat. 1144), 
pertaining to Congestion Relief.



Sec. 511.303  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this subpart. As used in this part:
    Accuracy means the measure or degree of agreement between a data 
value or set of values and a source assumed to be correct.
    Availability means the degree to which data values are present in 
the attributes (e.g., speed and travel time are attributes of traffic) 
that require them. Availability is typically described in terms of 
percentages or number of data values.
    Congestion means the level at which transportation system 
performance is unacceptable due to excessive travel times and delays.
    Data quality means the fitness of data for all purposes that require 
such data.
    Full construction activities mean roadway construction or 
maintenance activities that affect travel conditions by closing and 
reopening roadways or lanes.
    Metropolitan areas means the geographic areas designated as 
Metropolitan Statistical Areas by the Office of Management and Budget in 
the Executive Office of the President with a population exceeding 
1,000,000 inhabitants.
    Real-time information program means the program by which States 
gather and make available the data for traffic and travel conditions. 
Such means may involve State-only activity (including cooperative 
activities engaging multiple State agencies), State partnership with 
commercial providers of value-added information products, or other 
effective means that enable the State to satisfy the provisions for 
traffic and travel time conditions reporting stated in this section.
    Routes of significance are non-Interstate roadways in metropolitan 
areas that are designated by States as meriting the collection and 
provision of information related to traffic and travel conditions. 
Factors to be considered in designating routes of significance include 
roadway safety (e.g., crash rate, routes affected by environmental 
events), public safety (e.g., routes used for evacuations), economic 
productivity, severity and frequency of congestion, and utility of the 
highway to serve as a diversion route for congestion locations. All 
public roadways including arterial highways, toll facilities and other 
facilities that apply end user pricing mechanisms shall be considered 
when designating routes of significance. In identifying these routes, 
States shall apply the collaborative practices and procedures that are 
used for compliance with 23 CFR part 940 and 23 CFR part 420.

[[Page 221]]

    Statewide incident reporting system means a statewide system for 
facilitating the real-time electronic reporting of surface 
transportation incidents to a central location for use in monitoring the 
event, providing accurate traveler information, and responding to the 
incident as appropriate. This definition is consistent with Public Law 
109-59; 119 Stat. 1144, Section 1201(f).
    Timeliness means the degree to which data values or a set of values 
are provided at the time required or specified.
    Traffic and travel conditions means the characteristics that the 
traveling public experiences. Traffic and travel conditions include, but 
are not limited to, the following characteristics:
    (1) Road or lane closures because of construction, traffic 
incidents, or other events;
    (2) Roadway weather or other environmental conditions restricting or 
adversely affecting travel; and
    (3) Travel times or speeds on limited access roadways in 
metropolitan areas that experience recurring congestion.
    Validity means the degree to which data values fall within the 
respective domain of acceptable values.
    Value-added information products means crafted products intended for 
commercial use, for sale to a customer base, or for other commercial 
enterprise purposes. These products may be derived from information 
gathered by States and may be created from other party or proprietary 
sources. These products may be created using the unique means of the 
value-added information provider.



Sec. 511.305  Policy.

    This part establishes the provisions and parameters for the Real-
Time System Management Information Program for State DOTs, other 
responsible agencies, and partnerships with other commercial entities in 
establishing real-time information programs that provide accessibility 
to traffic and travel conditions information by other public agencies, 
the traveling public, and by other parties who may deliver value-added 
information products.



Sec. 511.307  Eligibility for Federal funding.

    (a) Subject to project approval by the Secretary, a State may 
obligate funds apportioned to the State under Title 23 U.S.C. sections 
104(b)(1), also known as National Highway System funds, 104(b)(2), also 
known as CMAQ Improvement funds, and 104(b)(3), also known as STP funds, 
for activities relating to the planning, deployment and operation, 
including preventative maintenance, of real-time monitoring elements 
that advance the goals and purposes of the Real-Time System Management 
Information Program. The SPC funds, apportioned according to 23 U.S.C. 
505(a), may be applied to the development and implementation of a real-
time information program.
    (b) Those project applications to establish a real-time information 
program solely for Interstate System highways are entitled to a Federal 
share of 90 percent of the total project cost, pursuant to 23 U.S.C. 
120(a). Those project applications to establish a real-time information 
program for non-Interstate highways are entitled to a Federal share of 
80 percent of the total project cost, as per 23 U.S.C. 120(b).



Sec. 511.309  Provisions for traffic and travel conditions reporting.

    (a) Minimum requirements for traffic and travel conditions made 
available by real-time information programs are:
    (1) Construction activities. The timeliness for the availability of 
information about full construction activities that close or reopen 
roadways or lanes will be 20 minutes or less from the time of the 
closure for highways outside of Metropolitan Areas. For roadways within 
Metropolitan Areas, the timeliness for the availability of information 
about full construction activities that close or reopen roadways or 
lanes will be 10 minutes or less from the time of the closure or 
reopening. Short-term or intermittent lane closures of limited duration 
that are less than the required reporting times are not included as a 
minimum requirement under this section.
    (2) Roadway or lane blocking incidents. The timeliness for the 
availability of information related to roadway or lane blocking traffic 
incidents will be 20

[[Page 222]]

minutes or less from the time that the incident is verified for highways 
outside of Metropolitan Areas. For roadways within Metropolitan Areas, 
the timeliness for the availability of information related to roadway or 
lane blocking traffic incidents will be 10 minutes or less from the time 
that the incident is verified.
    (3) Roadway weather observations. The timeliness for the 
availability of information about hazardous driving conditions and 
roadway or lane closures or blockages because of adverse weather 
conditions will be 20 minutes or less from the time the hazardous 
conditions, blockage, or closure is observed.
    (4) Travel time information. The timeliness for the availability of 
travel time information along limited access roadway segments within 
Metropolitan Areas, as defined under this subpart, will be 10 minutes or 
less from the time that the travel time calculation is completed.
    (5) Information accuracy. The designed accuracy for a real-time 
information program shall be 85 percent accurate at a minimum, or have a 
maximum error rate of 15 percent.
    (6) Information availability. The designed availability for a real-
time information program shall be 90 percent available at a minimum.
    (b) Real-time information programs may be established using legacy 
monitoring mechanisms applied to the highways, using a statewide 
incident reporting system, using new monitoring mechanisms applied to 
the highways, using value-added information products, or using a 
combination of monitoring mechanisms and value-added information 
products.



Sec. 511.311  Real-time information program establishment.

    (a) Requirement. States shall establish real-time information 
programs that are consistent with the parameters defined under Sec. 
511.309. The real-time information program shall be established to take 
advantage of the existing traffic and travel condition monitoring 
capabilities, and build upon them where applicable. The real-time 
information program shall include traffic and travel condition 
information for, as a minimum, all the Interstate highways operated by 
the State. In addition, the real-time information program shall 
complement current transportation performance reporting systems by 
making it easier to gather or enhance required information.
    (b) Data quality. States shall develop the methods by which data 
quality can be ensured to the data consumers. The criteria for defining 
the validity of traffic and travel conditions made available from real-
time information programs shall be established by the States in 
collaboration with their partners for establishing the programs. States 
shall receive FHWA's concurrence that the selected methods provide 
reasonable checks of the quality of the information made available by 
the real-time information program. In requesting FHWA's concurrence, the 
State shall demonstrate to FHWA how the selected methods gauge the 
accuracy and availability of the real-time information and the remedial 
actions if the information quality falls below the levels described in 
Sec. 511.309(a)(5) and Sec. 511.309(a)(6).
    (c) Participation. The establishment, or the enhancement, of a real-
time information program should include participation from the following 
agencies: Highway agencies; public safety agencies (e.g., police, fire, 
emergency/medical); transit operators; and other operating agencies 
necessary to sustain mobility through the region and/or the metropolitan 
area. Nothing in this subpart is intended to alter the existing 
relationships among State, regional, and local agencies.
    (d) Update of Regional ITS Architecture. All States and regions that 
have created a Regional ITS Architecture in accordance with Section 940 
in Title 23 CFR shall evaluate their Regional ITS Architectures to 
determine whether the Regional ITS Architectures explicitly address 
real-time highway and transit information needs and the methods needed 
to meet such needs. Traffic and travel conditions monitoring needs for 
all Interstate system highways shall be considered. If necessary, the 
Regional ITS Architectures shall be updated to address coverage, 
monitoring systems, data fusion and archiving, and accessibility to 
highway and transit information for other

[[Page 223]]

States and for value added information product providers. The Regional 
ITS Architecture shall feature the components and functionality of the 
real-time information program.
    (e) Effective date. Establishment of the real-time information 
program for traffic and travel conditions on the Interstate system 
highways shall be completed no later than November 8, 2014.



Sec. 511.313  Metropolitan Area real-time information program supplement.

    (a) Applicability. Metropolitan Areas as defined under this subpart.
    (b) Requirement. Metropolitan Areas shall establish a real-time 
information program for traffic and travel conditions reporting with the 
same provisions described in Sec. 511.311.
    (c) Routes of significance. States shall designate metropolitan 
areas, non-Interstate highways that are routes of significance as 
defined under this subpart. In identifying the metropolitan routes of 
significance, States shall collaborate with local or regional agencies 
using existing coordination methods. Nothing in this subpart is intended 
to alter the existing relationships among State, regional, and local 
agencies.
    (d) Effective date. Establishment of the real-time information 
program for traffic and travel conditions reporting along the 
Metropolitan Area Interstate system highways shall be completed no later 
than November 8, 2014. Establishment of the real-time information 
program for traffic and travel conditions reporting along the State-
designated metropolitan area routes of significance shall be completed 
no later than November 8, 2016.



Sec. 511.315  Program administration.

    Compliance with this subpart will be monitored under Federal-aid 
oversight procedures as provided under 23 U.S.C. 106 and 133, 23 CFR 
1.36, and 23 CFR 940.13.



PART 515_ASSET MANAGEMENT PLANS--Table of Contents



Sec.
515.1 Purpose.
515.3 Applicability and effective date.
515.5 Definitions.
515.7 Process for establishing the asset management plan.
515.9 Asset management plan requirements.
515.11 Deadlines and phase-in of asset management plan development.
515.13 Process certification and recertification, and annual plan 
          consistency review.
515.15 Penalties.
515.17 Minimum standards for developing and operating bridge and 
          pavement management systems.
515.19 Organizational integration of asset management.

    Authority: Sec. 1106 and 1203 of Pub. L. 112-141, 126 Stat. 405; 23 
U.S.C. 109, 119(e), 144, 150(c), and 315; 49 CFR 1.85(a).

    Source: 81 FR 73263, Oct. 24, 2016, unless otherwise noted.

    Effective Date Note: At 81 FR 73263, Oct. 24, 2016, part 515 was 
added, effective Oct. 2, 2017.



Sec. 515.1  Purpose.

    The purpose of this part is to:
    (a) Establish the processes that a State transportation department 
(State DOT) must use to develop its asset management plan, as required 
under 23 U.S.C. 119(e)(8);
    (b) Establish the minimum requirements that apply to the development 
of an asset management plan;
    (c) Describe the penalties for a State DOT's failure to develop and 
implement an asset management plan in accordance with 23 U.S.C. 119 and 
this part;
    (d) Set forth the minimum standards for a State DOT to use in 
developing and operating highway bridge and pavement management systems 
under 23 U.S.C. 150(c)(3)(A)(i).



Sec. 515.3  Applicability and effective date.

    This part applies to all State DOTs. The effective date for the 
requirements in this part is October 2, 2017.



Sec. 515.5  Definitions.

    As used in this part:

    Asset means all physical highway infrastructure located within the 
right-of-way corridor of a highway. The term asset includes all 
components necessary for the operation of a highway including pavements, 
highway bridges, tunnels, signs, ancillary structures, and other 
physical components of a highway.

[[Page 224]]

    Asset class means assets with the same characteristics and function 
(e.g., bridges, culverts, tunnels, pavements, or guardrail) that are a 
subset of a group or collection of assets that serve a common function 
(e.g., roadway system, safety, Intelligent Transportation (IT), signs, 
or lighting).
    Asset condition means the actual physical condition of an asset.
    Asset management means a strategic and systematic process of 
operating, maintaining, and improving physical assets, with a focus on 
both engineering and economic analysis based upon quality information, 
to identify a structured sequence of maintenance, preservation, repair, 
rehabilitation, and replacement actions that will achieve and sustain a 
desired state of good repair over the life cycle of the assets at 
minimum practicable cost.
    Asset management plan means a document that describes how a State 
DOT will carry out asset management as defined in this section. This 
includes how the State DOT will make risk-based decisions from a long-
term assessment of the National Highway System (NHS), and other public 
roads included in the plan at the option of the State DOT, as it relates 
to managing its physical assets and laying out a set of investment 
strategies to address the condition and system performance gaps. This 
document describes how the highway network system will be managed to 
achieve State DOT targets for asset condition and system performance 
effectiveness while managing the risks, in a financially responsible 
manner, at a minimum practicable cost over the life cycle of its assets. 
The term asset management plan under this part is the risk-based asset 
management plan that is required under 23 U.S.C. 119(e) and is intended 
to carry out asset management as defined in 23 U.S.C. 101(a)(2).
    Asset sub-group means a specialized group of assets within an asset 
class with the same characteristics and function (e.g., concrete 
pavements or asphalt pavements.)
    Bridge as used in this part, is defined in 23 CFR 650.305, the 
National Bridge Inspection Standards.
    Critical infrastructure means those facilities the incapacity or 
failure of which would have a debilitating impact on national or 
regional economic security, national or regional energy security, 
national or regional public health or safety, or any combination of 
those matters.
    Financial plan means a long-term plan spanning 10 years or longer, 
presenting a State DOT's estimates of projected available financial 
resources and predicted expenditures in major asset categories that can 
be used to achieve State DOT targets for asset condition during the plan 
period, and highlighting how resources are expected to be allocated 
based on asset strategies, needs, shortfalls, and agency policies.
    Investment strategy means a set of strategies that result from 
evaluating various levels of funding to achieve State DOT targets for 
asset condition and system performance effectiveness at a minimum 
practicable cost while managing risks.
    Life-cycle cost means the cost of managing an asset class or asset 
sub-group for its whole life, from initial construction to its 
replacement.
    Life-cycle planning means a process to estimate the cost of managing 
an asset class, or asset sub-group over its whole life with 
consideration for minimizing cost while preserving or improving the 
condition.
    Minimum practicable cost means lowest feasible cost to achieve the 
objective.
    NHS pavements and bridges and NHS pavement and bridge assets mean 
Interstate System pavements (inclusion of ramps that are not part of the 
roadway normally traveled by through traffic is optional); NHS pavements 
(excluding the Interstate System) (inclusion of ramps that are not part 
of the roadway normally traveled by through traffic is optional); and 
NHS bridges carrying the NHS (including bridges that are part of the 
ramps connecting to the NHS).
    Performance of the NHS refers to the effectiveness of the NHS in 
providing for the safe and efficient movement of people and goods where 
that performance can be affected by physical assets. This term does not 
include the performance measures established for performance of the 
Interstate System and performance of the NHS (excluding the Interstate 
System) under 23 U.S.C. 150(c)(3)(ii)(A)(IV)-(V).
    Performance gap means the gaps between the current asset condition 
and State DOT targets for asset condition, and the gaps in system 
performance effectiveness that are best addressed by improving the 
physical assets.
    Risk means the positive or negative effects of uncertainty or 
variability upon agency objectives.
    Risk management means the processes and framework for managing 
potential risks, including identifying, analyzing, evaluating, and 
addressing the risks to assets and system performance.
    Statewide Transportation Improvement Program (STIP) has the same 
meaning as defined in Sec. 450.104 of this title.
    Work type means initial construction, maintenance, preservation, 
rehabilitation, and reconstruction.



Sec. 515.7  Process for establishing the asset management plan.

    A State shall develop a risk-based asset management plan that 
describes how the NHS will be managed to achieve system performance 
effectiveness and State DOT targets for asset

[[Page 225]]

condition, while managing the risks, in a financially responsible 
manner, at a minimum practicable cost over the life cycle of its assets. 
The State DOT shall develop and use, at a minimum the following 
processes to prepare its asset management plan:
    (a) A State DOT shall establish a process for conducting performance 
gap analysis to identify deficiencies hindering progress toward 
improving or preserving the NHS and achieving and sustaining the desired 
state of good repair. At a minimum, the State DOT's process shall 
address the following in the gap analysis:
    (1) The State DOT targets for asset condition of NHS pavements and 
bridges as established by the State DOT under 23 U.S.C. 150(d) once 
promulgated.
    (2) The gaps, if any, in the performance-of the NHS that affect NHS 
pavements and bridges regardless of their physical condition; and
    (3) Alternative strategies to close or address the identified gaps.
    (b) A State DOT shall establish a process for conducting life-cycle 
planning for an asset class or asset sub-group at the network level 
(network to be defined by the State DOT). As a State DOT develops its 
life-cycle planning process, the State DOT should include future changes 
in demand; information on current and future environmental conditions 
including extreme weather events, climate change, and seismic activity; 
and other factors that could impact whole of life costs of assets. The 
State DOT may propose excluding one or more asset sub-groups from its 
life-cycle planning if the State DOT can demonstrate to FHWA the 
exclusion of the asset sub-group would have no material adverse effect 
on the development of sound investment strategies due to the limited 
number of assets in the asset sub-group, the low level of cost 
associated with managing the assets in that asset sub-group, or other 
justifiable reasons. A life-cycle planning process shall, at a minimum, 
include the following:
    (1) The State DOT targets for asset condition for each asset class 
or asset sub-group;
    (2) Identification of deterioration models for each asset class or 
asset sub-group, provided that identification of deterioration models 
for assets other than NHS pavements and bridges is optional;
    (3) Potential work types across the whole life of each asset class 
or asset sub-group with their relative unit cost; and
    (4) A strategy for managing each asset class or asset sub-group by 
minimizing its life-cycle costs, while achieving the State DOT targets 
for asset condition for NHS pavements and bridges under 23 U.S.C. 
150(d).
    (c) A State DOT shall establish a process for developing a risk 
management plan. This process shall, at a minimum, produce the following 
information:
    (1) Identification of risks that can affect condition of NHS 
pavements and bridges and the performance of the NHS, including risks 
associated with current and future environmental conditions, such as 
extreme weather events, climate change, seismic activity, and risks 
related to recurring damage and costs as identified through the 
evaluation of facilities repeated damaged by emergency events carried 
out under part 667 of this title. Examples of other risk categories 
include financial risks such as budget uncertainty; operational risks 
such as asset failure; and strategic risks such as environmental 
compliance.
    (2) An assessment of the identified risks in terms of the likelihood 
of their occurrence and their impact and consequence if they do occur;
    (3) An evaluation and prioritization of the identified risks;
    (4) A mitigation plan for addressing the top priority risks;
    (5) An approach for monitoring the top priority risks; and
    (6) A summary of the evaluations of facilities repeatedly damaged by 
emergency events carried out under part 667 of this title that 
discusses, at a minimum, the results relating to the State's NHS 
pavements and bridges.
    (d) A State DOT shall establish a process for the development of a 
financial plan that identifies annual costs over a minimum period of 10 
years. The financial plan process shall, at a minimum, produce:

[[Page 226]]

    (1) The estimated cost of expected future work to implement 
investment strategies contained in the asset management plan, by State 
fiscal year and work type;
    (2) The estimated funding levels that are expected to be reasonably 
available, by fiscal year, to address the costs of future work types. 
State DOTs may estimate the amount of available future funding using 
historical values where the future funding amount is uncertain;
    (3) Identification of anticipated funding sources; and
    (4) An estimate of the value of the agency's NHS pavement and bridge 
assets and the needed investment on an annual basis to maintain the 
value of these assets.
    (e) A State DOT shall establish a process for developing investment 
strategies meeting the requirements in Sec. 515.9(f). This process must 
result in a description of how the investment strategies are influenced, 
at a minimum, by the following:
    (1) Performance gap analysis required under paragraph (a) of this 
section;
    (2) Life-cycle planning for asset classes or asset sub-groups 
resulting from the process required under paragraph (b) of this section;
    (3) Risk management analysis resulting from the process required 
under paragraph (c) of this section; and
    (4) Anticipated available funding and estimated cost of expected 
future work types associated with various candidate strategies based on 
the financial plan required by paragraph (d) of this section.
    (f) The processes established by State DOTs shall include a 
provision for the State DOT to obtain necessary data from other NHS 
owners in a collaborative and coordinated effort.
    (g) States DOTs shall use the best available data to develop their 
asset management plans. Pursuant to 23 U.S.C. 150(c)(3)(A)(i), each 
State DOT shall use bridge and pavement management systems meeting the 
requirements of Sec. 515.17 to analyze the condition of NHS pavements 
and bridges for the purpose of developing and implementing the asset 
management plan required under this part. The use of these or other 
management systems for other assets that the State DOT elects to include 
in the asset management plan is optional (e.g., Sign Management Systems, 
etc.).



Sec. 515.9  Asset management plan requirements.

    (a) A State DOT shall develop and implement an asset management plan 
to improve or preserve the condition of the assets and improve the 
performance of the NHS in accordance with the requirements of this part. 
Asset management plans must describe how the State DOT will carry out 
asset management as defined in Sec. 515.5.
    (b) An asset management plan shall include, at a minimum, a summary 
listing of NHS pavement and bridge assets, regardless of ownership.
    (c) In addition to the assets specified in paragraph (b) of this 
section, State DOTs are encouraged, but not required, to include all 
other NHS infrastructure assets within the right-of-way corridor and 
assets on other public roads. Examples of other NHS infrastructure 
assets include tunnels, ancillary structures, and signs. Examples of 
other public roads include non-NHS Federal-aid highways. If a State DOT 
decides to include other NHS assets in its asset management plan, or to 
include assets on other public roads, the State DOT, at a minimum, shall 
evaluate and manage those assets consistent with paragraph (l) of this 
section.
    (d) The minimum content for an asset management plan under this part 
includes a discussion of each element in this paragraph (d).
    (1) Asset management objectives. The objectives should align with 
the State DOT's mission. The objectives must be consistent with the 
purpose of asset management, which is to achieve and sustain the desired 
state of good repair over the life cycle of the assets at a minimum 
practicable cost.
    (2) Asset management measures and State DOT targets for asset 
condition, including those established pursuant to 23 U.S.C. 150, for 
NHS pavements and bridges. The plan must include measures and associated 
targets the State DOT can use in assessing the condition of the assets 
and performance of the highway system as it relates to those assets. The 
measures and targets must

[[Page 227]]

be consistent with the State DOT's asset management objectives. The 
State DOT must include the measures established under 23 U.S.C. 
150(c)(3)(A)(ii)(I)-(III), once promulgated in 23 CFR part 490, for the 
condition of NHS pavements and bridges. The State DOT also must include 
the targets the State DOT has established for the measures required by 
23 U.S.C. 150(c)(3)(A)(ii)(I)-(III), once promulgated, and report on 
such targets in accordance with 23 CFR part 490. The State DOT may 
include measures and targets for NHS pavements and bridges that the 
State DOT established through pre-existing management efforts or 
develops through new efforts if the State DOT wishes to use such 
additional measures and targets to supplement information derived from 
the pavement and bridge measures and targets required under 23 U.S.C. 
150.
    (3) A summary description of the condition of NHS pavements and 
bridges, regardless of ownership. The summary must include a description 
of the condition of those assets based on the performance measures 
established under 23 U.S.C. 150(c)(3)(A)(ii) for condition, once 
promulgated. The description of condition should be informed by 
evaluations required under part 667 of this title of facilities repeated 
damaged by emergency events.
    (4) Performance gap identification.
    (5) Life-cycle planning.
    (6) Risk management analysis, including the results for NHS 
pavements and bridges, of the periodic evaluations under part 667 of 
this title of facilities repeated damaged by emergency event.
    (7) Financial plan.
    (8) Investment strategies.
    (e) An asset management plan shall cover, at a minimum, a 10-year 
period.
    (f) An asset management plan shall discuss how the plan's investment 
strategies collectively would make or support progress toward:
    (1) Achieving and sustaining a desired state of good repair over the 
life cycle of the assets,
    (2) Improving or preserving the condition of the assets and the 
performance of the NHS relating to physical assets,
    (3) Achieving the State DOT targets for asset condition and 
performance of the NHS in accordance with 23 U.S.C. 150(d), and
    (4) Achieving the national goals identified in 23 U.S.C. 150(b).
    (g) A State DOT must include in its plan a description of how the 
analyses required by State processes developed in accordance with Sec. 
515.7 (such as analyses pertaining to life cycle planning, risk 
management, and performance gaps) support the State DOT's asset 
management plan investment strategies.
    (h) A State DOT shall integrate its asset management plan into its 
transportation planning processes that lead to the STIP, to support its 
efforts to achieve the goals in paragraphs (f)(1) through (4) of this 
section.
    (i) A State DOT is required to make its asset management plan 
available to the public, and is encouraged to do so in a format that is 
easily accessible.
    (j) Inclusion of performance measures and State DOT targets for NHS 
pavements and bridges established pursuant to 23 U.S.C. 150 in the asset 
management plan does not relieve the State DOT of any performance 
management requirements, including 23 U.S.C. 150(e) reporting, 
established in other parts of this title.
    (k) The head of the State DOT shall approve the asset management 
plan.
    (l) If the State DOT elects to include other NHS infrastructure 
assets or other public roads assets in its asset management plan, the 
State at a minimum shall address the following, using a level of effort 
consistent with the State DOT's needs and resources:
    (1) Summary listing of assets, including a description of asset 
condition;
    (2) Asset management measures and State DOT targets for asset 
condition;
    (3) Performance gap analysis;
    (4) Life-cycle planning;
    (5) Risk analysis, including summaries of evaluations carried out 
under part 667 of this title for the assets, if available, and 
consideration of those evaluations;
    (6) Financial plan; and
    (7) Investment strategies.
    (m) The asset management plan of a State may include consideration 
of critical infrastructure from among those facilities in the State that 
are eligible under 23 U.S.C. 119(c).

[[Page 228]]



Sec. 515.11  Deadlines and phase-in of asset management plan
development.

    (a) Deadlines. (1) Not later than April 30, 2018, the State DOT 
shall submit to FHWA a State-approved initial asset management plan 
meeting the requirements in paragraph (b) of this section. The FHWA will 
review the processes described in the initial plan and make a process 
certification decision as provided in Sec. 515.13(a).
    (2) Not later than June 30, 2019, the State DOT shall submit a 
State-approved asset management plan meeting all the requirements of 23 
U.S.C. 119 and this part, including paragraph (c) of this section, 
together with documentation demonstrating implementation of the asset 
management plan. The FWHA will determine whether the State DOT's plan 
and implementation meet the requirements of 23 U.S.C. 119 and this part 
as provided in Sec. 515.13(b).
    (b) The initial plan shall describe the State DOT's processes for 
developing its risk-based asset management plan, including the policies, 
procedures, documentation, and implementation approach that satisfy the 
requirements of this part. The plan also must contain measures and 
targets for assets covered by the plan. The investment strategies 
required by Sec. 515.7(e) and 515.9((d)(8) must support progress toward 
the achievement of the national goals identified in 23 U.S.C. 150(b). 
The initial plan must include and address the State DOT's 23 U.S.C. 
150(d) targets for NHS pavements and bridges only if the first target-
setting deadline established in 23 CFR part 490 for NHS pavements and 
bridges is a date more than 6 months before the initial plan submission 
deadline in paragraph (a)(1). The initial asset management plan may 
exclude one or more of the necessary analyses with respect to the 
following required asset management processes:
    (1) Life-cycle planning required under Sec. 515.7(a)(2);
    (2) The risk management analysis required under Sec. 515.7(a)(3); 
and
    (3) Financial plan under Sec. 515.7(a)(4).
    (c) The State-approved asset management plan submitted not later 
than June 30, 2019, shall include all required analyses, performed using 
FHWA-certified processes, and the section 150 measures and State DOT 
targets for the NHS pavements and bridges. The plan must meet all 
requirements in Sec. Sec. 515.7 and 515.9. This includes investment 
strategies that are developed based on the analyses from all processes 
required under Sec. 515.7, and meet the requirements in 23 U.S.C. 
119(e)(2).



Sec. 515.13  Process certification and recertification, and annual
plan consistency review.

    (a) Process certification and recertification under 23 U.S.C. 
119(e)(6). Not later than 90 days after the date on which the FHWA 
receives a State DOT's processes and request for certification or 
recertification, the FHWA shall decide whether the State DOT's processes 
for developing its asset management plan meet the requirements of this 
part. The FHWA will treat the State DOT's submission of an initial 
State-approved asset management plan under Sec. 515.11(b) as the State 
DOT's request for the first certification of the State's DOT's plan 
development processes under 23 U.S.C. 119(e)(6). As provided in 
paragraph (c) of this section, State DOT shall update and resubmit its 
asset management plan development processes to the FHWA for a new 
process certification at least every 4 years.
    (1) If FHWA determines that the processes used by a State DOT to 
develop and maintain the asset management plan do not meet the 
requirements established under this part, FHWA will send the State DOT a 
written notice of the denial of certification or recertification, 
including a listing of the specific requirement deficiencies.
    (2) Upon receiving a notice of denial of certification or 
recertification, the State DOT shall have 90 days from receipt of the 
notice to address the deficiencies identified in the notice and resubmit 
the State DOT's processes to FHWA for review and certification. The FHWA 
may extend the State DOT's 90-day period to cure deficiencies upon 
request. During the cure period established, all penalties and other 
legal impacts of a denial of certification shall be stayed as provided 
in 23 U.S.C. 119(e)(6)(C)(i).

[[Page 229]]

    (3) If FHWA finds that a State DOT's asset management processes 
substantially meet the requirements of this part except for minor 
deficiencies, FHWA may certify or recertify the State DOT's processes as 
being in compliance, but the State DOT must take actions to correct the 
minor deficiencies within 90 days of receipt of the notification of 
certification. The State shall notify FHWA, in writing, when corrective 
actions are completed.
    (b) Annual determination of consistency under 23 U.S.C. 119(e)(5). 
Not later than August 31, 2019, and not later than July 31 in each year 
thereafter, FHWA will notify the State DOT whether the State DOT has 
developed and implemented an asset management plan consistent with 23 
U.S.C. 119. The notice will be in writing and, in the case of a negative 
determination, will specify the deficiencies the State DOT needs to 
address. In making the annual consistency determination, the FHWA will 
consider the most recent asset management plan submitted by the State 
DOT, as well as any documentation submitted by the State DOT to 
demonstrate implementation of the plan. The FHWA determination is only 
as to the consistency of the State DOT asset management plan and State 
DOT implementation of that plan with applicable requirements, and is not 
an approval or disapproval of strategies or other decisions contained in 
the plan. With respect to any assets the State DOT may elect to include 
in its plan in addition to NHS pavement and bridge assets, the FHWA 
consistency determination will consider only whether the State DOT has 
complied with Sec. 515.9(l) with respect to such discretionary assets.
    (1) Plan development. The FHWA will review the State DOT's asset 
management plan to ensure that it was developed with certified 
processes, includes the required content, and is consistent with other 
applicable requirements in this part.
    (2) Plan implementation. The State DOT must demonstrate 
implementation of an asset management plan that meets the requirements 
of 23 U.S.C. 119 and this part. Each State DOT may determine the most 
suitable approach for demonstrating implementation of its asset 
management plan, so long as the information is current, documented, and 
verifiable. The submission must show the State DOT is using the 
investment strategies in its plan to make progress toward achievement of 
its targets for asset condition and performance of the NHS and to 
support progress toward the national goals identified in 23 U.S.C. 
150(b). The State DOT must submit its implementation documentation not 
less than 30 days prior to the deadline for the FHWA consistency 
determination.
    (i) FHWA considers the best evidence of plan implementation to be 
that, for the 12 months preceding the consistency determination, the 
State DOT funding allocations are reasonably consistent with the 
investment strategies in the State DOT's asset management plan. This 
demonstration takes into account the alignment between the actual and 
planned levels of investment for various work types (i.e., initial 
construction, maintenance, preservation, rehabilitation and 
reconstruction).
    (ii) FHWA may find a State DOT has implemented its asset management 
plan even if the State has deviated from the investment strategies 
included in the asset management plan, if the State DOT shows the 
deviation was necessary due to extenuating circumstances beyond the 
State DOT's reasonable control.
    (3) Opportunity to cure deficiencies. In the event FHWA notifies a 
State DOT of a negative consistency determination, the State DOT has 30 
days to address the deficiencies. The State DOT may submit additional 
information showing the FHWA negative determination was in error, or to 
demonstrate the State DOT has taken corrective action that resolves the 
deficiencies specified in FHWA's negative determination.
    (c) Updates and other amendments to plans and development processes. 
A State DOT must update its asset management plan and asset management 
plan development processes at least every 4 years, beginning on the date 
of the initial FHWA certification of the State DOT's processes under 
paragraph (a) of this section. Whenever the State DOT updates or 
otherwise amends its asset

[[Page 230]]

management plan or its asset management plan development processes, the 
State DOT must submit the amended plan or processes to the FHWA for a 
new process certification and consistency determination at least 30 days 
prior to the deadline for the next FHWA consistency determination under 
paragraph (b) of this section. Minor technical corrections and revisions 
with no foreseeable material impact on the accuracy and validity of the 
processes, analyses, or investment strategies in the plan do not 
constitute amendments and do not require submission to FHWA.



Sec. 515.15  Penalties

    (a) Beginning on October 1, 2019, and in each fiscal year 
thereafter, if a State DOT has not developed and implemented an asset 
management plan consistent with the requirements of 23 U.S.C. 119 and 
this part, the maximum Federal share for National Highway Performance 
Program projects and activities carried out by the State in that fiscal 
year shall be reduced to 65 percent for that fiscal year.
    (b)(1) Except as provided in paragraph (b)(2) of this section, if 
the State DOT has not developed and implemented an asset management plan 
that is consistent with the requirements of 23 U.S.C. 119 and this part 
and established the performance targets for NHS pavements and bridges 
required under 23 U.S.C. 150(d) by the date that is 18 months after the 
effective date of the 23 U.S.C. 150(c) final rule for NHS pavements and 
bridges, the FHWA will not approve any further projects using National 
Highway Performance Program funds. Such suspension of funding approvals 
will terminate once the State DOT has developed and implemented an asset 
management plan that is consistent with the requirements of 23 U.S.C. 
119 and this part and established its performance targets for NHS 
pavements and bridges required under 23 U.S.C. 150(d).
    (2) The FHWA may extend this deadline if FHWA determines that the 
State DOT has made a good faith effort to develop and implement an asset 
management plan and establish the performance targets for NHS pavements 
and bridges required under 23 U.S.C. 150(d).



Sec. 515.17  Minimum standards for developing and operating bridge
and pavement management systems

    Pursuant to 23 U.S.C.150(c)(3)(A)(i), this section establishes the 
minimum standards States must use for developing and operating bridge 
and pavement management systems. State DOT bridge and pavement 
management systems are not subject to FHWA certification under Sec. 
515.13. Bridge and pavement management systems shall include, at a 
minimum, documented procedures for:
    (a) Collecting, processing, storing, and updating inventory and 
condition data for all NHS pavement and bridge assets.
    (b) Forecasting deterioration for all NHS pavement and bridge 
assets;
    (c) Determining the benefit-cost over the life cycle of assets to 
evaluate alternative actions (including no action decisions), for 
managing the condition of NHS pavement and bridge assets;
    (d) Identifying short- and long-term budget needs for managing the 
condition of all NHS pavement and bridge assets;
    (e) Determining the strategies for identifying potential NHS 
pavement and bridge projects that maximize overall program benefits 
within the financial constraints.; and
    (f) Recommending programs and implementation schedules to manage the 
condition of NHS pavement and bridge assets within policy and budget 
constraints.



Sec. 515.19  Organizational integration of asset management.

    (a) The purpose of this section is to describe how a State DOT may 
integrate asset management into its organizational mission, culture and 
capabilities at all levels. The activities described in paragraphs (b) 
through (d) of this section are not requirements.
    (b) A State DOT should establish organizational strategic goals and 
include the goals in its organizational strategic implementation plans 
with an explanation as to how asset management will help it to achieve 
those goals.

[[Page 231]]

    (c) A State DOT should conduct a periodic self-assessment of the 
agency's capabilities to conduct asset management, as well as its 
current efforts in implementing an asset management plan. The self-
assessment should consider, at a minimum, the adequacy of the State 
DOT's strategic goals and policies with respect to asset management, 
whether asset management is considered in the agency's planning and 
programming of resources, including development of the STIP; whether the 
agency is implementing appropriate program delivery processes, such as 
consideration of alternative project delivery mechanisms, effective 
program management, and cost tracking and estimating; and whether the 
agency is implementing adequate data collection and analysis policies to 
support an effective asset management program.
    (d) Based on the results of the self-assessment, the State DOT 
should conduct a gap analysis to determine which areas of its asset 
management process require improvement. In conducting a gap analysis, 
the State DOT should:
    (1) Determine the level of organizational performance effort needed 
to achieve the objectives of asset management;
    (2) Determine the performance gaps between the existing level of 
performance effort and the needed level of performance effort; and
    (3) Develop strategies to close the identified organizational 
performance gaps and define the period of time over which the gap is to 
be closed.

[[Page 232]]



             SUBCHAPTER G_ENGINEERING AND TRAFFIC OPERATIONS





PART 620_ENGINEERING--Table of Contents



       Subpart A_Highway Improvements in the Vicinity of Airports

Sec.
620.101 Purpose.
620.102 Applicability.
620.103 Policy.
620.104 Standards.

             Subpart B_Relinquishment of Highway Facilities

620.201 Purpose.
620.202 Applicability.
620.203 Procedures.

    Authority: 23 U.S.C. 315 and 318; 49 CFR 1.48, 23 CFR 1.32.

    Source: 39 FR 33311, Sept. 17, 1974, unless otherwise noted.



       Subpart A_Highway Improvements in the Vicinity of Airports

    Source: 39 FR 35145, Sept. 30, 1974, unless otherwise noted.



Sec. 620.101  Purpose.

    The purpose of this section is to implement title 23 U.S.C., section 
318 which requires coordination of airport and highway developments to 
insure (a) that airway-highway clearances are adequate for the safe 
movement of air and highway traffic, and (b) that the expenditure of 
public funds for airport and highway improvements is in the public 
interest.



Sec. 620.102  Applicability.

    The requirements of this section apply to all projects on which 
Federal-aid highway funds are to be expended and to both civil and 
military airports.



Sec. 620.103  Policy.

    (a) Federal-aid highway funds shall not participate in the costs of 
reconstruction or relocation of any highway to which this section 
applies unless the Federal Highway Administration (FHWA) and State 
officials, in cooperation with the Federal Aviation Administration (FAA) 
or appropriate military authority, or in the case of privately owned 
airports, the owner of that airport, determine that the location or 
extension of the airport in question and the consequent relocation or 
reconstruction of the highway is in the public interest.
    (b) In addition to complying with 23 U.S.C. 318 and insuring the 
prudent use of public funds, it is the policy of FHWA to provide a high 
degree of safety in the location, design, construction and operation of 
highways and airports.
    (c) Federal-aid funds shall not participate in projects where 
substandard clearances are created or will continue to exist.



Sec. 620.104  Standards.

    A finding of public interest by FHWA will be based on compliance 
with airway-highway clearances which conform to FAA standards for 
aeronautical safety.



             Subpart B_Relinquishment of Highway Facilities

    Source: 39 FR 33311, Sept. 17, 1974, unless otherwise noted.



Sec. 620.201  Purpose.

    To prescribe Federal Highway Administration (FHWA) procedures 
relating to relinquishment of highway facilities.



Sec. 620.202  Applicability.

    The provisions of this subpart apply to highway facilities where 
Federal-aid funds have participated in either right-of-way or physical 
construction costs of a project. The provisions of this subpart apply 
only to relinquishment of facilities for continued highway purposes. 
Other real property disposals and modifications or disposal of access 
rights are governed by the requirements of 23 CFR part 710.

[64 FR 71289, Dec. 21, 1999]



Sec. 620.203  Procedures.

    (a) After final acceptance of a project on the Federal-aid primary, 
urban, or

[[Page 233]]

secondary system or after the date that the plans, specifications and 
estimates (PS&E) for the physical construction on the right-of-way for a 
Federal-aid Interstate project have been approved by the FHWA, 
relinquishment of the right-of-way or any change made in control of 
access shall be in accordance with the provisions of this section. For 
the purposes of this section, final acceptance for a project involving 
physical construction is the date of the acceptance of the physical 
construction by the FHWA and for right-of-way projects, the date the 
division engineer determines to be the date of the completion of the 
acquisition of the right-of-way shown on the final plans.
    (b) Other than a conveyance made as part of a concession agreement 
as defined in section 710.703, for purposes of this section, 
relinquishment is defined as the conveyance of a portion of a highway 
right-of-way or facility by a State highway agency (SHA) to another 
Government agency for highway use.
    (c) The following facilities may be relinquished in accordance with 
paragraph 203(f):
    (1) Sections of a State highway which have been superseded by 
construction on new location and removed from the Federal-aid system and 
the replaced section thereof is approved by the FHWA as the new location 
of the Federal-aid route. Federal-aid funds may not participate in 
rehabilitation work performed for the purpose of placing the superseded 
section of the highway in a condition acceptable to the local authority. 
The relinquishment of any Interstate mileage shall be submitted to the 
Federal Highway Administrator as a special case for prior approval.
    (2) Sections of reconstructed local facilities that are located 
outside the control of access lines, such as turn-arounds of severed 
local roads or streets adjacent to the Federal-aid project's right-of-
way, and local roads and streets crossing over or under said project 
that have been adjusted in grade and/or alignment, including new right-
of-way required for adjustments. Eligibility for Federal-aid 
participation in the costs of the foregoing adjustments is as determined 
at the time of PS&E approval under policies of the FHWA.
    (3) Frontage roads or portions thereof that are constructed 
generally parallel to and outside the control of access lines of a 
Federal-aid project for the purpose of permitting access to private 
properties rather than to serve as extensions of ramps to connect said 
Federal-aid project with the nearest crossroad or street.
    (d) The following facilities may be relinquished only with the 
approval of the Federal Highway Administrator in accordance with 
paragraph 203(g).
    (1) Frontage roads or portions thereof located outside the access 
control lines of a Federal-aid project that are constructed to service 
(in lieu of or in addition to the purposes outlined under paragraph 
(c)(3) of this section) as connections between ramps to or from the 
Federal-aid project and existing public roads or streets.
    (2) Ramps constructed to serve as connections for interchange of 
traffic between the Federal-aid project and local roads or streets.
    (e) Where a frontage road is not on an approved Federal-aid system 
title to the right-of-way may be acquired initially in the name of the 
political subdivision which is to assume control thus eliminating the 
necessity of a formal transfer later. Such procedure would be subject to 
prior FHWA approval and would be limited to those facilities which meet 
the criteria set forth in paragraphs (c) (2) and (3) of this section.
    (f) Upon presentation by a State that it intends to relinquish 
facilities such as described in paragraph (c) (1), (2) or (3) of this 
section to local authorities, the division engineer of the FHWA shall 
have appropriate field and office examination made thereof to assure 
that such relinquishments are in accordance with the provisions of the 
cited paragraphs. Relinquishments of the types described in paragraph 
(c) (1), (2) or (3) of this section may be made on an individual basis 
or on a project or route basis subject to the following conditions and 
understandings:
    (1) Immediately following action by the State in approving a 
relinquishment, it shall furnish to the Division Administrator for 
record purposes a

[[Page 234]]

copy of a suitable map or maps identified by the Federal-aid project 
number, with the facilities to be relinquished and the date of such 
relinquishment action clearly delineated thereon.
    (2) If it is found at any time after relinquishment that a 
relinquished facility is in fact required for the safe and proper 
operation of the Federal-aid highway, the State shall take immediate 
action to restore such facility to its jurisdiction without cost to 
Federal-aid highway funds.
    (3) If it is found at any time that a relinquished frontage road or 
portion thereof or any part of the right-of-way therefor has been 
abandoned by local governmental authority and a showing cannot be made 
that such abandoned facility is no longer required as a public road, it 
is to be understood that the Federal Highway Administrator may cause to 
be withheld from Federal-aid highway funds due to the State an amount 
equal to the Federal-aid participation in the abandoned facility.
    (4) In no case shall any relinquishment include any portion of the 
right-of-way within the access control lines as shown on the plans for a 
Federal-aid project approved by the FHWA, without the prior approval of 
the Federal Highway Administrator.
    (5) There cannot be additional Federal-aid participation in future 
construction or reconstruction on any relinquished ``off the Federal-aid 
system'' facility unless the underlying reason for such future work is 
caused by future improvement of the associated Federal-aid highway.
    (g) In the event that a State desires to apply for approval by the 
Federal Highway Administrator for the relinquishment of a facility such 
as described in paragraph (d) (1) and (2) of this section, the facts 
pertinent to such proposal are to be presented to the division engineer 
of the FHWA. The division engineer shall have appropriate review made of 
such presentation and forward the material presented by the State 
together with his findings thereon through the Regional Federal Highway 
Administrator for consideration by the Federal Highway Administrator and 
determination of action to be taken.
    (h) No change may be made in control of access, without the joint 
determination and approval of the SHA and FHWA. This would not prevent 
the relinquishment of title, without prior approval of the FHWA, of a 
segment of the right-of-way provided there is an abandonment of a 
section of highway inclusive of such segment.
    (i) Relinquishments must be justified by the State's finding 
concurred in by the FHWA, that:
    (1) The subject land will not be needed for Federal-aid highway 
purposes in the foreseeable future;
    (2) That the right-of-way being retained is adequate under present 
day standards for the facility involved;
    (3) That the release will not adversely affect the Federal-aid 
highway facility or the traffic thereon;
    (4) That the lands to be relinquished are not suitable for retention 
in order to restore, preserve, or improve the scenic beauty adjacent to 
the highway consonant with the intent of 23 U.S.C. 319 and Pub. L. 89-
285, Title III, sections 302-305 (Highway Beautification Act of 1965).
    (j) If a relinquishment is to a Federal, State, or local government 
agency for highway purposes, there need not be a charge to the said 
agency, nor in such event any credit to Federal funds. If for any reason 
there is a charge, the STD may retain the Federal share of the proceeds 
if used for projects eligible under title 23 of the United States Code.

[39 FR 33311, Sept. 17, 1974, as amended at 64 FR 71289, Dec. 21, 1999; 
73 FR 77502, Dec. 19, 2008]



PART 625_DESIGN STANDARDS FOR HIGHWAYS--Table of Contents



Sec.
625.1 Purpose.
625.2 Policy.
625.3 Application.
625.4 Standards, policies, and standard specifications.

    Authority: 23 U.S.C. 109, 315, and 402; Sec. 1073 of Pub. L. 102-
240, 105 Stat. 1914, 2012; 49 CFR 1.48(b) and (n).

    Source: 62 FR 15397, Apr. 1, 1997, unless otherwise noted.

[[Page 235]]



Sec. 625.1  Purpose.

    To designate those standards, policies, and standard specifications 
that are acceptable to the Federal Highway Administration (FHWA) for 
application in the geometric and structural design of highways.



Sec. 625.2  Policy.

    (a) Plans and specifications for proposed National Highway System 
(NHS) projects shall provide for a facility that will--
    (1) Adequately serve the existing and planned future traffic of the 
highway in a manner that is conducive to safety, durability, and economy 
of maintenance; and
    (2) Be designed and constructed in accordance with criteria best 
suited to accomplish the objectives described in paragraph (a)(1) of 
this section and to conform to the particular needs of each locality.
    (b) Resurfacing, restoration, and rehabilitation (RRR) projects, 
other than those on the Interstate system and other freeways, shall be 
constructed in accordance with standards which preserve and extend the 
service life of highways and enhance highway safety. Resurfacing, 
restoration, and rehabilitation work includes placement of additional 
surface material and/or other work necessary to return an existing 
roadway, including shoulders, bridges, the roadside, and appurtenances 
to a condition of structural or functional adequacy.
    (c) An important goal of the FHWA is to provide the highest 
practical and feasible level of safety for people and property 
associated with the Nation's highway transportation systems and to 
reduce highway hazards and the resulting number and severity of 
accidents on all the Nation's highways.



Sec. 625.3  Application.

    (a) Applicable Standards. (1) Design and construction standards for 
new construction, reconstruction, resurfacing (except for maintenance 
resurfacing), restoration, or rehabilitation of a highway on the NHS 
(other than a highway also on the Interstate System or other freeway) 
shall be those approved by the Secretary in cooperation with the State 
highway departments. These standards may take into account, in addition 
to the criteria described in Sec. 625.2(a), the following:
    (i) The constructed and natural environment of the area;
    (ii) The environmental, scenic, aesthetic, historic, community, and 
preservation impacts of the activity; and
    (iii) Access for other modes of transportation.
    (2) Federal-aid projects not on the NHS are to be designed, 
constructed, operated, and maintained in accordance with State laws, 
regulations, directives, safety standards, design standards, and 
construction standards.
    (b) The standards, policies, and standard specifications cited in 
Sec. 625.4 of this part contain specific criteria and controls for the 
design of NHS projects. Deviations from specific minimum values therein 
are to be handled in accordance with procedures in paragraph (f) of this 
section. If there is a conflict between criteria in the documents 
enumerated in Sec. 625.4 of this part, the latest listed standard, 
policy, or standard specification will govern.
    (c) Application of FHWA regulations, although cited in Sec. 625.4 
of this part as standards, policies, and standard specifications, shall 
be as set forth therein.
    (d) This regulation establishes Federal standards for work on the 
NHS regardless of funding source.
    (e) The Division Administrator shall determine the applicability of 
the roadway geometric design standards to traffic engineering, safety, 
and preventive maintenance projects which include very minor or no 
roadway work. Formal findings of applicability are expected only as 
needed to resolve controversies.
    (f) Exceptions. (1) Approval within the delegated authority provided 
by FHWA Order M1100.1A may be given on a project basis to designs which 
do not conform to the minimum criteria as set forth in the standards, 
policies, and standard specifications for:
    (i) Experimental features on projects; and
    (ii) Projects where conditions warrant that exceptions be made.
    (2) The determination to approve a project design that does not 
conform to the minimum criteria is to be made only after due 
consideration is given to

[[Page 236]]

all project conditions such as maximum service and safety benefits for 
the dollar invested, compatibility with adjacent sections of roadway and 
the probable time before reconstruction of the section due to increased 
traffic demands or changed conditions.



Sec. 625.4  Standards, policies, and standard specifications.

    The documents listed in this section are incorporated by reference 
with the approval of the Director of the Federal Register in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51 and are on file at the Office of 
the Federal Register in Washington, DC. They are available as noted in 
paragraph (d) of this section. The other CFR references listed in this 
section are included for cross-reference purposes only.
    (a) Roadway and appurtenances. (1) A Policy on Geometric Design of 
Highways and Streets, AASHTO, 2011 (incorporated by reference; see Sec. 
625.4(d)).
    (2) A Policy on Design Standards Interstate System, AASHTO, January 
2005 (incorporated by reference; see Sec. 625.4(d)).
    (3) The geometric design standards for resurfacing, restoration, and 
rehabilitation (RRR) projects on NHS highways other than freeways shall 
be the procedures and the design or design criteria established for 
individual projects, groups of projects, or all non-freeway RRR projects 
in a State, and as approved by the FHWA. The other geometric design 
standards in this section do not apply to RRR projects on NHS highways 
other than freeways, except as adopted on an individual State basis. The 
RRR design standards shall reflect the consideration of the traffic, 
safety, economic, physical, community, and environmental needs of the 
projects.
    (4) Location and Hydraulic Design of Encroachments on Flood Plains, 
refer to 23 CFR part 650, subpart A.
    (5) Procedures for Abatement of Highway Traffic Noise and 
Construction Noise, refer to 23 CFR part 772.
    (6) Accommodation of Utilities, refer to 23 CFR part 645, subpart B.
    (7) Pavement Design, refer to 23 CFR part 626.
    (b) Bridges and structures. (1) For existing bridges originally 
designed to any edition of the AASHTO Standard Specifications for 
Highway Bridges, modifications may be designed to the Standard 
Specifications for Highway Bridges, 17th Edition, AASHTO, 2002 
(incorporated by reference; see Sec. 625.4(d)), or to the standards and 
specifications that are listed in Sec. 625.4(b).
    (2) AASHTO LRFD Bridge Construction Specifications, 3rd Edition, 
AASHTO, 2010, with 2010, 2011, 2012, and 2014 Interim Revisions 
(incorporated by reference; see Sec. 625.4(d)).
    (3) AASHTO LRFD Bridge Design Specifications, 7th Edition, AASHTO, 
2014, with 2015 Interim Revisions (incorporated by reference; see Sec. 
625.4(d)).
    (4) AASHTO LRFD Movable Highway Bridge Design Specifications, 2nd 
Edition, AASHTO, 2007, including 2008, 2010, 2011, 2012, 2014, and 2015 
Interim Revisions (incorporated by reference; see Sec. 625.4(d)).
    (5) AASHTO/AWS D1.5M/D1.5: 2010 Bridge Welding Code, 6th Edition, 
AASHTO, 2011, with 2011 and 2012 Interim Revisions (incorporated by 
reference; see Sec. 625.4(d)).
    (6) D1.4/D1.4M: 2011Structural Welding Code-Reinforcing Steel, 
American Welding Society, 2011 (incorporated by reference; see Sec. 
625.4(d)).
    (7) Standard Specifications for Structural Supports for Highway 
Signs, Luminaires and Traffic Signals, 6th Edition, AASHTO, 2013 
(incorporated by reference; see Sec. 625.4(d)).
    (8) Navigational Clearances for Bridges, refer to 23 CFR part 650, 
subpart H.
    (c) Materials. (1) General Materials Requirements, refer to 23 CFR 
part 635, subpart D.
    (2) Standard Specifications for Transportation Materials and Methods 
of Sampling and Testing, parts I and II, AASHTO 1995. [See Sec. 
625.4(d)(1)]
    (3) Sampling and Testing of Materials and Construction, refer to 23 
CFR part 637, subpart B.
    (d) Documents incorporated by reference. The Director of the Federal 
Register approves the incorporation by reference of the documents listed 
in this section in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
The documents listed in this paragraph are incorporated by reference and 
available for inspection at the U.S. Department

[[Page 237]]

of Transportation's National Transportation Library at 1200 New Jersey 
Avenue SE., Washington, DC 20590; (800) 853-1351. The documents also are 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html. 
Copies of these documents may be obtained from the following 
organizations:
    (1) American Association of State Highway and Transportation 
Officials (AASHTO), Suite 249, 444 North Capitol Street NW., Washington, 
DC 20001; www.transportation.org; or (202) 624-5800.
    (i) A Policy on Geometric Design of Highways and Streets, 6th 
Edition, 2011.
    (ii) A Policy on Design Standards Interstate System, January 2005.
    (iii) Standard Specifications for Highway Bridges, 17th Edition, 
2002
    (iv) AASHTO LRFD Bridge Construction Specifications, 3rd Edition, 
2010; with:
    (A) Interim Revisions, 2010,
    (B) Interim Revisions, 2011,
    (C) Interim Revisions, 2012, and
    (D) Interim Revisions, 2014.
    (v) AASHTO LRFD Bridge Design Specifications, 7th Edition, 2014, 
with:
    (A) 2015 Interim Revisions.
    (B) [Reserved]
    (vi) AASHTO LRFD Movable Highway Bridge Design Specifications, 2nd 
Edition, 2007, with:
    (A) Interim Revisions, 2008,
    (B) Interim Revisions, 2010,
    (C) Interim Revisions, 2011,
    (D) Interim Revisions, 2012,
    (E) Interim Revisions, 2014, and
    (F) Interim Revisions, 2015.
    (vii) AASHTO/AWS D1.5M/D1.5: 2010 Bridge Welding Code, 6th Edition, 
2010, with:
    (A) Interim Revisions, 2011, and
    (B) Interim Revisions, 2012.
    (viii) Standard Specifications for Structural Supports for Highway 
Signs, Luminaires and Traffic Signals, 6th Edition, AASHTO 2013.
    (2) American Welding Society (AWS), 8869 NW 36 Street, 130 Miami, 
FL 33166-6672; www.aws.org; or (800) 443-9353 or (305) 443-9353.
    (i) D1.4/D1.4M: 2011 Structural Welding Code--Reinforcing Steel, 
2011.
    (ii) [Reserved]
    (e) The FHWA supports using, as design resources to achieve context 
sensitive designs, guides that national organizations develop from peer-
reviewed research, or equivalent guides that are developed in 
cooperation with State or local officials, when such guides are not in 
conflict with Federal laws and regulations.

[62 FR 15397, Apr. 1, 1997, as amended at 67 FR 6395, Feb. 12, 2002; 69 
FR 18803, Apr. 9, 2004; 71 FR 26414, May 5, 2006; 74 FR 28442, June 16, 
2009; 80 FR 61307, Oct. 13, 2015]



PART 626_PAVEMENT POLICY--Table of Contents



Sec.
626.1 Purpose.
626.2 Definitions.
626.3 Policy.

    Authority: 23 U.S.C. 101(e), 109, and 315; 49 CFR 1.48(b)

    Source: 61 FR 67174, Dec. 19, 1996, unless otherwise noted.



Sec. 626.1  Purpose.

    To set forth pavement design policy for Federal-aid highway 
projects.



Sec. 626.2  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Pavement design means a project level activity where detailed 
engineering and economic considerations are given to alternative 
combinations of subbase, base, and surface materials which will provide 
adequate load carrying capacity. Factors which are considered include: 
Materials, traffic, climate, maintenance, drainage, and life-cycle 
costs.



Sec. 626.3  Policy.

    Pavement shall be designed to accommodate current and predicted 
traffic needs in a safe, durable, and cost effective manner.



PART 627_VALUE ENGINEERING--Table of Contents



Sec.
627.1 Purpose and applicability.
627.3 Definitions.

[[Page 238]]

627.5 Applicable projects.
627.7 VE programs.
627.9 Conducting a VE analysis.

    Authority: 23 U.S.C. 106(e), 106(g), 106(h), 112(a) and (b), 302, 
315; and 49 CFR part 18.

    Source: 79 FR 52975, Sept. 5, 2014, unless otherwise noted.



Sec. 627.1  Purpose and applicability.

    (a) The purpose of this part is to prescribe the programs, policies 
and procedures for the integration of value engineering (VE) into the 
planning and development of all applicable Federal-aid highway projects.
    (b) Each State transportation agency (STA) shall establish and 
sustain a VE program. This program shall establish the policies and 
procedures under which VE analyses are identified, conducted and 
approved VE recommendations implemented on applicable projects (as 
defined in Sec. 627.5 of this part). These policies and procedures 
should also identify when a VE analysis is encouraged on all other 
projects where there is a high potential to realize the benefits of a VE 
analysis.
    (c) The STAs shall establish the policies, procedures, functions, 
and capacity to monitor, assess, and report on the performance of the VE 
program, along with the VE analyses that are conducted and Value 
Engineering Change Proposals (VECP) that are accepted. The STAs shall 
ensure that its sub-recipients conduct VE analyses in compliance with 
this part.



Sec. 627.3  Definitions.

    The following terms used in this part are defined as follows:
    (a) Bridge project. A bridge project shall include any project where 
the primary purpose is to construct, reconstruct, rehabilitate, 
resurface, or restore a bridge.
    (b) Final design. Any design activities following preliminary design 
and expressly includes the preparation of final construction plans and 
detailed specifications for the performance of construction work.
    (c) Project. The term ``project'' means any undertaking eligible for 
assistance under title 23 of the United States Code. The limits of a 
project are defined as the logical termini in the environmental document 
and may consist of several contracts, or phases of a project or 
contract, which may be implemented over several years.
    (d) Total project costs. The estimated costs of all work to be 
conducted on a project including the environment, design, right-of-way, 
utilities and construction phases.
    (e) Value Engineering (VE) analysis. The systematic process of 
reviewing and assessing a project by a multidisciplinary team not 
directly involved in the planning and development phases of a specific 
project that follows the VE Job Plan and is conducted to provide 
recommendations for:
    (1) Providing the needed functions, considering community and 
environmental commitments, safety, reliability, efficiency, and overall 
life-cycle cost (as defined in 23 U.S.C. 106(f)(2));
    (2) Optimizing the value and quality of the project; and
    (3) Reducing the time to develop and deliver the project.
    (f) Value Engineering (VE) Job Plan. A systematic and structured 
action plan for conducting and documenting the results of the VE 
analysis. While each VE analysis shall address each phase in the VE Job 
Plan, the level of analysis conducted and effort expended for each phase 
may be scaled to meet the needs of each individual project. The VE Job 
Plan shall include and document the following seven phases:
    (1) Information Phase: Gather project information including project 
commitments and constraints.
    (2) Function Analysis Phase: Analyze the project to understand the 
required functions.
    (3) Creative Phase: Generate ideas on ways to accomplish the 
required functions which improve the project's performance, enhance its 
quality, and lower project costs.
    (4) Evaluation Phase: Evaluate and select feasible ideas for 
development.
    (5) Development Phase: Develop the selected alternatives into fully 
supported recommendations.
    (6) Presentation Phase: Present the VE recommendation to the project 
stakeholders.
    (7) Resolution Phase: Evaluate, resolve, document and implement all 
approved recommendations.

[[Page 239]]

    (g) Value Engineering Change Proposal (VECP). A construction 
contract change proposal submitted by the construction contractor based 
on a VECP provision in the contract. These proposals may improve the 
project's performance, value and/or quality, lower construction costs, 
or shorten the delivery time, while considering their impacts on the 
project's overall life-cycle cost and other applicable factors.



Sec. 627.5  Applicable projects.

    (a) A VE analysis shall be conducted prior to the completion of 
final design on each applicable project that utilizes Federal-aid 
highway funding, and all approved recommendations shall be included in 
the project's plans, specifications and estimates prior to authorizing 
the project for construction (as specified in 23 CFR 630.205).
    (b) Applicable projects requiring a VE analysis shall include the 
following:
    (1) Each project located on the National Highway System (NHS) (as 
specified in 23 U.S.C. 103) with an estimated total project cost of $50 
million or more that utilizes Federal-aid highway funding;
    (2) Each bridge project located on the NHS with an estimated total 
project cost of $40 million or more that utilizes Federal-aid highway 
funding;
    (3) Any major project (as defined in 23 U.S.C. 106(h)), located on 
or off of the NHS, that utilizes Federal-aid highway funding in any 
contract or phase comprising the major project;
    (4) Any project where a VE analysis has not been conducted and a 
change is made to the project's scope or design between the final design 
and the construction letting which results in an increase in the 
project's total cost exceeding the thresholds identified in paragraphs 
(b)(1), (2) or (3) of this section; and
    (5) Any other project FHWA determines to be appropriate that 
utilizes Federal-aid highway program funding.
    (c) An additional VE analysis is not required if, after conducting a 
VE analysis required under this part, the project is subsequently split 
into smaller projects in the design phase or the project is programmed 
to be completed by the letting of multiple construction projects. 
However, the STA may not avoid the requirement to conduct a VE analysis 
on an applicable project by splitting the project into smaller projects, 
or programming multiple design or construction projects.
    (d) The STA's VE Program's policies and procedures should identify 
when VE analyses are to be considered or conducted for projects falling 
below the required thresholds identified in paragraph (b) of this 
section in the planning and development of transportation projects where 
there is a high potential for the project to benefit from a VE analysis. 
While not required, FHWA encourages STAs to consider the following 
projects that may benefit from a VE analysis:
    (1) Complex projects on or off the NHS that have a total project 
cost of $25 million or more;
    (2) Complex Bridge Projects on or off the NHS with an estimated 
total project cost of $20 million or more;
    (3) Design-build projects on or off the NHS with an estimated cost 
of $25 million or more; and
    (4) Any other complex, difficult or high cost project as determined 
by the STA.
    (e) A VE analysis is not required for projects delivered using the 
design-build method of construction. While not required, FHWA encourages 
STAs and local public authorities to conduct a VE analysis on design-
build projects that meet the requirements identified in paragraph (b) of 
this section.
    (f) A VE analysis is required on projects delivered using the 
Construction Manager/General Contractor (CM/GC) method of contracting, 
if the project meets the requirements identified in paragraph (b) of 
this section.



Sec. 627.7  VE programs.

    (a) The STA shall establish and sustain a VE program under which VE 
analyses are identified, conducted and approved VE recommendations 
implemented on all applicable projects (as defined in Sec. 627.5). The 
STA's VE program shall:
    (1) Establish and document VE program policies and procedures that 
ensure the required VE analysis is conducted on all applicable projects, 
and encourage conducting VE analyses on

[[Page 240]]

other projects that have the potential to benefit from this analysis;
    (2) Ensure the VE analysis is conducted and all approved 
recommendations are implemented and documented in a final VE report 
prior to the project being authorized to proceed to a construction 
letting;
    (3) Monitor and assess the VE Program, and disseminate an annual 
report to the FHWA consisting of a summary of all approved 
recommendations implemented on applicable projects requiring a VE 
analysis, the accepted VECPs, and VE program functions and activities;
    (4) Establish and document policies, procedures, and contract 
provisions that identify when VECP's may be used; identify the analysis, 
documentation, basis, and process for evaluating and accepting a VECP; 
and determine how the net savings of each VECP may be shared between the 
agency and contractor;
    (5) Establish and document policies, procedures, and controls to 
ensure a VE analysis is conducted and all approved recommendations are 
implemented for all applicable projects administered by local public 
agencies; and ensure the results of these analyses are included in the 
VE program monitoring and reporting; and
    (6) Provide for the review of any project where a delay occurs 
between when the final plans are completed and the project advances to a 
letting for construction to determine if a change has occurred to the 
project's scope or design where a VE analysis would be required to be 
conducted (as specified in Sec. 625.5(b)).
    (b) STAs shall ensure the required VE analysis has been performed on 
each applicable project including those administered by subrecipients, 
and shall ensure approved recommendations are implemented into the 
project's plans, specifications, and estimates prior to the project 
being authorized for construction (as specified in 23 CFR 630.205).
    (c) STAs shall designate a VE Program Coordinator to promote and 
advance VE program activities and functions. The VE Coordinator's 
responsibilities should include establishing and maintaining the STA's 
VE policies and procedures; facilitating VE training; ensuring VE 
analyses are conducted on applicable projects; monitoring, assessing, 
and reporting on the VE analyses conducted and VE program; participating 
in periodic VE program and project reviews; submitting the required 
annual VE report to the FHWA; and supporting the other elements of the 
VE program.



Sec. 627.9  Conducting a VE analysis.

    (a) A VE analysis should be conducted as early as practicable in the 
planning or development of a project, preferably before the completion 
of the project's preliminary design. At a minimum, the VE analysis shall 
be conducted prior to completing the project's final design.
    (b) The VE analysis should be closely coordinated with other project 
development activities to minimize the impact approved recommendations 
might have on previous agency, community, or environmental commitments; 
the project's scope or schedule; and the use of innovative technologies, 
materials, methods, plans or construction provisions.
    (c) When the STA or local public agency chooses to conduct a VE 
analysis for a project utilizing the design-build project delivery 
method, the VE analysis should be performed prior to the release of the 
final Request for Proposals or other applicable solicitation documents.
    (d) For projects delivered using the CM/GC contracting method, a VE 
analysis is not required prior to the preparation and release of the RFP 
for the CM/GC contract. The VE analysis is required to be completed and 
approved recommendations incorporated into the project plans prior to 
requesting a construction price proposal from the CM/GC contractor.
    (e) STAs shall ensure the VE analysis meets the following 
requirements:
    (1) Uses a multidisciplinary team not directly involved in the 
planning or design of the project, with at least one individual who has 
training and experience with leading VE analyses;
    (2) Develops and implements the VE Job Plan;
    (3) Produces a formal written report outlining, at a minimum:

[[Page 241]]

    (i) Project information;
    (ii) Identification of the VE analysis team;
    (iii) Background and supporting documentation, such as information 
obtained from other analyses conducted on the project (e.g., 
environmental, safety, traffic operations, constructability);
    (iv) Documentation of the stages of the VE Job Plan which would 
include documentation of the life-cycle costs that were analyzed;
    (v) Summarization of the analysis conducted;
    (vi) Documentation of the proposed recommendations and approvals 
received at the time the report is finalized; and
    (vii) The formal written report shall be retained for at least 3 
years after the completion of the project.
    (f) For bridge projects, in addition to the requirements in 
subsection (e), the VE analyses shall:
    (1) Include bridge substructure and superstructure requirements that 
consider alternative construction materials; and
    (2) Be conducted based on:
    (i) An engineering and economic assessment, taking into 
consideration acceptable designs for bridges; and
    (ii) An analysis of life-cycle costs and duration of project 
construction.
    (g) STAs and local public agencies may employ qualified consultants 
(as defined in 23 CFR 172.3) to conduct a VE analysis. The consultant 
shall possess training and experience with leading VE analyses. A 
consulting firm or individual shall not be used to conduct or support a 
VE analysis if they have a conflict of interest (as specified in 23 CFR 
1.33).
    (h) STAs, and local public agencies are encouraged to use a VECP 
clause (or other such clauses under a different name) in an applicable 
project's contract, allowing the construction contractor to propose 
changes to the project's plans, specifications, or other contract 
documents. Whenever such clauses are used, the STA and local authority 
will consider changes that could improve the project's performance, 
value and quality, shorten the delivery time, or lower construction 
costs, while considering impacts on the project's overall life-cycle 
cost and other applicable factors. The basis for a STA or local 
authority to consider a VECP is the analysis and documentation 
supporting the proposed benefits that would result from implementing the 
proposed change in the project's contract or project plans.
    (i) Proposals to accelerate construction after the award of the 
contract will not be considered a VECP and will not be eligible for 
Federal-aid highway program funding participation. Where it is necessary 
to accelerate construction, STAs and local public agencies are 
encouraged to use the appropriate incentive or disincentive clauses so 
that all proposers will take this into account when preparing their bids 
or price proposals.



PART 630_PRECONSTRUCTION PROCEDURES--Table of Contents



             Subpart A_Project Authorization and Agreements

Sec.
630.102 Purpose.
630.104 Applicability.
630.106 Authorization to proceed.
630.108 Preparation of agreement.
630.110 Modification of original agreement.
630.112 Agreement provisions.

             Subpart B_Plans, Specifications, and Estimates

630.201 Purpose.
630.203 Applicability.
630.205 Preparation, submission, and approval.

Subpart C [Reserved]

                       Subpart D_Geodetic Markers

630.401 Purpose.
630.402 Policy.
630.403 Initiation of projects.
630.404 Standards.

Subparts E-F [Reserved]

         Subpart G_Advance Construction of Federal-Aid Projects

630.701 Purpose.
630.703 Eligibility.
630.705 Procedures.
630.707 [Reserved]
630.709 Conversion to a regular Federal-aid project.

[[Page 242]]

                    Subpart H_Bridges on Federal Dams

630.801 Purpose.
630.802 Applicability.
630.803 Procedures.

Subpart I [Reserved]

                 Subpart J_Work Zone Safety and Mobility

630.1002 Purpose.
630.1004 Definitions and explanation of terms.
630.1006 Work zone safety and mobility policy.
630.1008 State-level processes and procedures.
630.1010 Significant projects.
630.1012 Project-level procedures.
630.1014 Implementation.
630.1016 Compliance date.

               Subpart K_Temporary Traffic Control Devices

630.1102 Purpose.
630.1104 Definitions.
630.1106 Policy and procedures for work zone safety management.
630.1108 Work zone safety management measures and strategies.
630.1110 Maintenance of temporary traffic control devices.

    Authority: 23 U.S.C. 106, 109, 112, 115, 315, 320, and 402(a); Sec. 
1501 and 1503 of Pub. L. 109-59, 119 Stat. 1144; Pub. L. 105-178, 112 
Stat. 193; Pub. L. 104-59, 109 Stat. 582; Pub. L. 97-424, 96 Stat. 2106; 
Pub. L. 90-495, 82 Stat. 828; Pub. L. 85-767, 72 Stat. 896; Pub. L. 84-
627, 70 Stat. 380; 23 CFR 1.32 and 49 CFR 1.48(b), and Pub. L. 112-141, 
126 Stat. 405, section 1303.



             Subpart A_Project Authorization and Agreements

    Source: 66 FR 23847, May 10, 2001, unless otherwise noted.



Sec. 630.102  Purpose.

    The purpose of this subpart is to prescribe policies for authorizing 
Federal-aid projects through execution of the project agreement required 
by 23 U.S.C. 106(a)(2).



Sec. 630.104  Applicability.

    (a) This subpart is applicable to all Federal-aid projects unless 
specifically exempted.
    (b) Other projects which involve special procedures are to be 
approved, or authorized as set out in the implementing instructions or 
regulations for those projects.



Sec. 630.106  Authorization to proceed.

    (a)(1) The State transportation department (STD) must obtain an 
authorization to proceed from the FHWA before beginning work on any 
Federal-aid project. The STD may request an authorization to proceed in 
writing or by electronic mail for a project or a group of projects.
    (2) The FHWA will issue the authorization to proceed either through 
or after the execution of a formal project agreement with the State. The 
agreement can be executed only after applicable prerequisite 
requirements of Federal laws and implementing regulations and directives 
are satisfied. Except as provided in paragraphs (c)(1) through (c)(4) of 
this section, the FHWA will obligate Federal funds in the project or 
group of projects upon execution of the project agreement.
    (3) The State's request that Federal funds be obligated shall be 
supported by a documented cost estimate that is based on the State's 
best estimate of costs.
    (4) The State shall maintain a process to adjust project cost 
estimates. For example, the process would require a review of the 
project cost estimate when the bid is approved, a project phase is 
completed, a design change is approved, etc. Specifically, the State 
shall revise the Federal funds obligated within 90 days after it has 
determined that the estimated Federal share of project costs has 
decreased by $250,000 or more.
    (5) The State shall review, on a quarterly basis, inactive projects 
(for the purposes of this subpart an ``inactive project'' means a 
project for which no expenditures have been charged against Federal 
funds for the past 12 months) with unexpended Federal obligations and 
shall revise the Federal funds obligated for a project within 90 days to 
reflect the current cost estimate, based on the following criteria:
    (i) Projects inactive for the past 12 months with unexpended 
balances more than $500,000,
    (ii) Projects inactive for the past 24 months with unexpended 
balances of $50,000 to $500,000, and

[[Page 243]]

    (iii) Projects inactive for the past 36 months with unexpended 
balances less than $50,000.
    (6) If the State fails to comply with the requirements of paragraphs 
(a)(3), (4), or (5) of this section, then the FHWA shall revise the 
obligations or take such other action as authorized by 23 CFR 1.36. The 
FHWA shall advise the State of its proposed actions and provide the 
State with the opportunity to respond before actions are taken. The FHWA 
shall not adjust obligations without a State's consent during the August 
redistribution process, August 1 to September 30.
    (7) For design-build projects, the execution or modification of the 
project agreement for final design and physical construction, and 
authorization to proceed, shall not occur until after the completion of 
the NEPA process. However, preliminary design (as defined in 23 CFR 
636.103) and preliminary engineering may be authorized in accordance 
with this section.
    (8) For Construction Manager/General Contractor projects, the 
execution or modification of the project agreement for preconstruction 
services associated with final design and for construction services, and 
authorization to proceed with such services, shall not occur until after 
the completion of the NEPA process. However, preconstruction services 
associated with preliminary design may be authorized in accordance with 
this section.
    (b) Federal funds shall not participate in costs incurred prior to 
the date of a project agreement except as provided by 23 CFR 1.9(b).
    (c) The execution of the project agreement shall be deemed a 
contractual obligation of the Federal government under 23 U.S.C. 106 and 
shall require that appropriate funds be available at the time of 
authorization for the agreed Federal share, either pro rata or lump sum, 
of the cost of eligible work to be incurred by the State except as 
follows:
    (1) Advance construction projects authorized under 23 U.S.C. 115.
    (2) Projects for preliminary studies for the portion of the 
preliminary engineering and right-of-way (ROW) phase(s) through the 
selection of a location.
    (3) Projects for ROW acquisition in hardship and protective buying 
situations through the selection of a particular location. This includes 
ROW acquisition within a potential highway corridor under consideration 
where necessary to preserve the corridor for future highway purposes. 
Authorization of work under this paragraph shall be in accord with the 
provisions of 23 CFR part 710.
    (4) In special cases where the Federal Highway Administrator 
determines it to be in the best interest of the Federal-aid highway 
program.
    (d) For projects authorized to proceed under paragraphs (c)(1) 
through (c)(4) of this section, the executed project agreement shall 
contain the following statement: ``Authorization to proceed is not a 
commitment or obligation to provide Federal funds for that portion of 
the undertaking not fully funded herein.''
    (e) For projects authorized under paragraphs (c)(2) and (c)(3) of 
this section, subsequent authorizations beyond the location stage shall 
not be given until appropriate available funds have been obligated to 
cover eligible costs of the work covered by the previous authorization.
    (f)(1) The Federal-aid share of eligible project costs shall be 
established at the time the project agreement is executed in one of the 
following manners:
    (i) Pro rata, with the agreement stating the Federal share as a 
specified percentage; or
    (ii) Lump sum, with the agreement stating that Federal funds are 
limited to a specified dollar amount not to exceed the legal pro rata.
    (2) The pro-rata or lump sum share may be adjusted before or shortly 
after contract award to reflect any substantive change in the bids 
received as compared to the STD's estimated cost of the project at the 
time of FHWA authorization, provided that Federal funds are available.
    (3) Federal participation is limited to the agreed Federal share of 
eligible costs actually incurred by the State, not to exceed the maximum 
permitted by enabling legislation.

[[Page 244]]

    (g) The State may contribute more than the normal non-Federal share 
of title 23, U.S.C. projects. In general, financing proposals that 
result in only minimal amounts of Federal funds in projects should be 
avoided unless they are based on sound project management decisions.
    (h)(1) Donations of cash, land, material or services may be credited 
to the State's non-Federal share of the participating project work in 
accordance with title 23, U.S.C., and implementing regulations.
    (2) Contributions may not exceed the total costs incurred by the 
State on the project. Cash contributions from all sources plus the 
Federal funds may not exceed the total cost of the project.

[66 FR 23847, May 10, 2001, as amended at 71 FR 4995, Jan. 31, 2006; 72 
FR 45336, Aug. 14, 2007; 81 FR 86942, Dec. 2, 2016]



Sec. 630.108  Preparation of agreement.

    (a) The STD shall prepare a project agreement for each Federal-aid 
project.
    (b) The STD may develop the project agreement in a format acceptable 
to both the STD and the FHWA provided the following are included:
    (1) A description of each project location including State and 
project termini;
    (2) The Federal-aid project number;
    (3) The work covered by the agreement;
    (4) The total project cost and amount of Federal funds under 
agreement;
    (5) The Federal-aid share of eligible project costs expressed as 
either a pro rata percentage or a lump sum as set forth in Sec. 
630.106(f)(1);
    (6) A statement that the State accepts and will comply with the 
agreement provisions set forth in Sec. 630.112;
    (7) A statement that the State stipulates that its signature on the 
project agreement constitutes the making of the certifications set for 
in Sec. 630.112; and
    (8) Signatures of officials from both the State and the FHWA, and 
the date executed.
    (c) The project agreement should also document, by comment, 
instances where:
    (1) The State is applying amounts of credits from special accounts 
(such as the 23 U.S.C. 120(j) toll credits, 23 U.S.C. 144(n) off-system 
bridge credits and 23 U.S.C. 323 land value credits) to cover all or a 
portion of the normal percent non-Federal share of the project;
    (2) The project involves other arrangements affecting Federal 
funding or non-Federal matching provisions, including tapered match, 
donations, or use of other Federal agency funds, if known at the time 
the project agreement is executed; and
    (3) The State is claiming finance related costs for bond and other 
debt instrument financing (such as payments to States under 23 U.S.C. 
122).
    (d) The STD may use an electronic version of the agreement as 
provided by the FHWA.

(Approved by the Office of Management and Budget under control number 
2125-0529)



Sec. 630.110  Modification of original agreement.

    (a) When changes are needed to the original project agreement, a 
modification of agreement shall be prepared. Agreements should not be 
modified to replace one Federal fund category with another unless 
specifically authorized by statute.
    (b) The STD may develop the modification of project agreement in a 
format acceptable to both the STD and the FHWA provided the following 
are included:
    (1) The Federal-aid project number and State;
    (2) A sequential number identifying the modification;
    (3) A reference to the date of the original project agreement to be 
modified;
    (4) The original total project cost and the original amount of 
Federal funds under agreement;
    (5) The revised total project cost and the revised amount of Federal 
funds under agreement;
    (6) The reason for the modifications; and,
    (7) Signatures of officials from both the State and the FHWA and 
date executed.
    (c) The STD may use an electronic version of the modification of 
project agreement as provided by the FHWA.

[[Page 245]]



Sec. 630.112  Agreement provisions.

    (a) The State, through its transportation department, accepts and 
agrees to comply with the applicable terms and conditions set forth in 
title 23, U.S.C., the regulations issued pursuant thereto, the policies 
and procedures promulgated by the FHWA relative to the designated 
project covered by the agreement, and all other applicable Federal laws 
and regulations.
    (b) Federal funds obligated for the project must not exceed the 
amount agreed to on the project agreement, the balance of the estimated 
total cost being an obligation of the State. Such obligation of Federal 
funds extends only to project costs incurred by the State after the 
execution of a formal project agreement with the FHWA.
    (c) The State must stipulate that as a condition to payment of the 
Federal funds obligated, it accepts and will comply with the following 
applicable provisions:
    (1) Project for acquisition of rights-of-way. In the event that 
actual construction of a road on this right-of-way is not undertaken by 
the close of the twentieth fiscal year following the fiscal year in 
which the project is authorized, the STD will repay to the FHWA the sum 
or sums of Federal funds paid to the transportation department under the 
terms of the agreement. The State may request a time extension beyond 
the 20-year limit with no repayment of Federal funds, and the FHWA may 
approve this request if it is considered reasonable.
    (2) Preliminary engineering project. In the event that right-of-way 
acquisition for, or actual construction of, the road for which this 
preliminary engineering is undertaken is not started by the close of the 
tenth fiscal year following the fiscal year in which the project is 
authorized, the STD will repay to the FHWA the sum or sums of Federal 
funds paid to the transportation department under the terms of the 
agreement. The State may request a time extension for any preliminary 
engineering project beyond the 10-year limit with no repayment of 
Federal funds, and the FHWA may approve this request if it is considered 
reasonable.
    (3) Drug-free workplace certification. By signing the project 
agreement, the STD agrees to provide a drug-free workplace as required 
by 49 CFR part 29, subpart F. In signing the project agreement, the 
State is providing the certification required in appendix C to 49 CFR 
part 29, unless the State provides an annual certification.
    (4) Suspension and debarment certification. By signing the project 
agreement, the STD agrees to fulfill the responsibility imposed by 49 
CFR 29.510 regarding debarment, suspension, and other responsibility 
matters. In signing the project agreement, the State is providing the 
certification for its principals required in appendix A to 49 CFR part 
29.
    (5) Lobbying certification. By signing the project agreement, the 
STD agrees to abide by the lobbying restrictions set forth in 49 CFR 
part 20. In signing the project agreement, the State is providing the 
certification required in appendix A to 49 CFR part 20.



             Subpart B_Plans, Specifications, and Estimates

    Source: 43 FR 58564, Dec. 15, 1978, unless otherwise noted.



Sec. 630.201  Purpose.

    The purpose of this subpart is to prescribe Federal Highway 
Administration (FHWA) procedures relating to the preparation, 
submission, and approval of plans, specifications and estimates (PS&E), 
and supporting documents for Federal-aid projects.



Sec. 630.203  Applicability.

    The provisions of this regulation apply to all highway construction 
projects financed in whole or in part with Federal-aid highway funds and 
to be undertaken by a State or political subdivision.

[69 FR 7118, Feb. 13, 2004]



Sec. 630.205  Preparation, submission, and approval.

    (a) The contents and number of copies of the PS&E assembly shall be 
determined by the FHWA.
    (b) Plans and specifications shall describe the location and design 
features and the construction requirements in

[[Page 246]]

sufficient detail to facilitate the construction, the contract control 
and the estimation of construction costs of the project. The estimate 
shall reflect the anticipated cost of the project in sufficient detail 
to provide an initial prediction of the financial obligations to be 
incurred by the State and FHWA and to permit an effectice review and 
comparison of the bids received.
    (c) PS&E assemblies for Federal-aid highway projects shall be 
submitted to the FHWA for approval.
    (d) The State highway agency (SHA) shall be advised of approval of 
the PS&E by the FHWA.
    (e) No project or part thereof for actual construction shall be 
advertised for contract nor work commenced by force account until the 
PS&E has been approved by the FHWA and the SHA has been so notified.

Subpart C [Reserved]



                       Subpart D_Geodetic Markers

    Source: 39 FR 26414, July 19, 1974, unless otherwise noted.



Sec. 630.401  Purpose.

    The purpose of this subpart is to prescribe procedures for 
conducting geodetic control surveys when participation with Federal-aid 
highway funds in the cost thereof is proposed and to encourage inter-
agency cooperation in setting station markers, surveying to measure 
their position, and preserving the control so established.



Sec. 630.402  Policy.

    (a) Geodetic surveys along Federal-aid highway routes may be 
programmed as Federal-aid highway projects.
    (b) All geodetic survey work performed as a Federal-aid highway 
project will conform to National Ocean Survey (NOS) specifications. NOS 
will, as the representative of FHWA, be responsible for the inspection 
and verification of the work to ascertain that the specifications for 
the work have been met. Final project acceptance by FHWA will be 
predicated on a finding of acceptability by NOS.



Sec. 630.403  Initiation of projects.

    All projects shall be coordinated by the FHWA Division 
Administrator, the State highway department and the National Ocean 
Survey.



Sec. 630.404  Standards.

    (a) Highway purposes may best be served by the establishment of 
station markings for horizontal control along Federal-aid highway routes 
at spacings of three to eight kilometers (about 2 to 5 miles) and 
station markers for vertical control of spacings no closer than one 
kilometer. These requirements may be waived only with the approval of 
the Administrator.
    (b) Projects should be of sufficient scope to permit efficient use 
of field parties. Projects should extend at least 30 kilometers. 
Projects may be coordinated with adjoining States to attain greater 
efficiency.
    (c) Where geodetic station markers cannot be established inititally 
at points readily accessible from the Federal-aid route, or where 
unavoidable circumstances result in their being established within 
construction limits, supplemental projects may later be approved to set 
and survey markers at satisfactory permanent points, preferably within 
the right-of-way but at points where their use does not introduce 
traffic hazards.

Subparts E-F [Reserved]



         Subpart G_Advance Construction of Federal-Aid Projects

    Source: 60 FR 36993, July 19, 1995, unless otherwise noted.



Sec. 630.701  Purpose.

    The purpose of this subpart is to prescribe procedures for advancing 
the construction of Federal-aid highway projects without obligating 
Federal funds apportioned or allocated to the State.



Sec. 630.703  Eligibility.

    (a) The State Department of Transportation (DOT) may proceed with a 
project authorized in accordance with title 23, United States Code:

[[Page 247]]

    (1) Without the use of Federal funds; and
    (2) In accordance with all procedures and requirements applicable to 
the project other than those procedures and requirements that limit the 
State to implementation of a project--
    (i) With the aid of Federal funds previously apportioned or 
allocated to the State; or
    (ii) With obligation authority previously allocated to the State.
    (b) The FHWA, on the request of a State and execution of a project 
agreement, may obligate all or a portion of the Federal share of a 
project authorized to proceed under this section from any category of 
funds for which the project is eligible.

[73 FR 50196, Aug. 26, 2008]



Sec. 630.705  Procedures.

    (a) An advance construction project shall meet the same requirements 
and be processed in the same manner as a regular Federal-aid project, 
except,
    (1) The FHWA authorization does not constitute any commitment of 
Federal funds on the project, and
    (2) The FHWA shall not reimburse the State until the project is 
converted under Sec. 630.709.
    (b) Project numbers shall be identified by the letters ``AC'' 
preceding the regular project number prefix.

[60 FR 36993, July 19, 1995, as amended at 68 FR 60033, Oct. 21, 2003]



Sec. 630.707  [Reserved]



Sec. 630.709  Conversion to a regular Federal-aid project.

    (a) The State Department of Transportation may submit a written 
request to the FHWA that a project be converted to a regular Federal-aid 
project at any time provided that sufficient Federal-aid funds and 
obligation authority are available.
    (b) Subsequent to FHWA approval the State Department of 
Transportation may claim reimbursement for the Federal share of project 
costs incurred, provided the project agreement has been executed. If the 
State Department of Transportation has previously submitted a final 
voucher, the FHWA will process the voucher for payment.

[60 FR 36993, July 19, 1995, as amended at 73 FR 50196, Aug. 26, 2008]



                    Subpart H_Bridges on Federal Dams

    Source: 39 FR 36474, Oct. 10, 1974, unless otherwise noted.



Sec. 630.801  Purpose.

    The purpose of this subpart is to prescribe procedures for the 
construction and financing, by an agency of the Federal Government, of 
public highway bridges over dams constructed and owned by or for the 
United States.



Sec. 630.802  Applicability.

    A proposed bridge over a dam, together with the approach roads to 
connect the bridge with existing public highways, must be eligible for 
inclusion in the Federal-aid highway system, if not already a part 
thereof.



Sec. 630.803  Procedures.

    A State's application to qualify a project under this subpart will 
include:
    (a) A certification that the bridge is economically desirable and 
needed as a link in the Federal-aid highway system.
    (b) A statement showing the source and availability of funds to be 
used in construction of the roadway approaches.
    (c) A statement of any obligation on the part of the agency 
constructing the dam to provide such bridge or approach roads to satisfy 
a legal liability incurred independently of this subpart.

Subpart I [Reserved]



                 Subpart J_Work Zone Safety and Mobility

    Source: 69 FR 54569, Sept. 9, 2004, unless otherwise noted.



Sec. 630.1002  Purpose.

    Work zones directly impact the safety and mobility of road users and 
highway workers. These safety and mobility impacts are exacerbated by an

[[Page 248]]

aging highway infrastructure and growing congestion in many locations. 
Addressing these safety and mobility issues requires considerations that 
start early in project development and continue through project 
completion. Part 6 of the Manual On Uniform Traffic Control Devices 
(MUTCD) \1\ sets forth basic principles and prescribes standards for the 
design, application, installation, and maintenance of traffic control 
devices for highway and street construction, maintenance operation, and 
utility work. In addition to the provisions in the MUTCD, there are 
other actions that could be taken to further help mitigate the safety 
and mobility impacts of work zones. This subpart establishes 
requirements and provides guidance for systematically addressing the 
safety and mobility impacts of work zones, and developing strategies to 
help manage these impacts on all Federal-aid highway projects.
---------------------------------------------------------------------------

    \1\ The MUTCD is approved by the FHWA and recognized as the national 
standard for traffic control on all public roads. It is incorporated by 
reference into the Code of Federal Regulations at 23 CFR part 655. It is 
available on the FHWA's Web site at http://mutcd.fhwa.dot.gov and is 
available for inspection and copying at the FHWA Washington, DC 
Headquarters and all FHWA Division Offices as prescribed at 49 CFR part 
7.
---------------------------------------------------------------------------



Sec. 630.1004  Definitions and explanation of terms.

    As used in this subpart:
    Highway workers include, but are not limited to, personnel of the 
contractor, subcontractor, DOT, utilities, and law enforcement, 
performing work within the right-of-way of a transportation facility.
    Mobility is the ability to move from place to place and is 
significantly dependent on the availability of transportation facilities 
and on system operating conditions. With specific reference to work 
zones, mobility pertains to moving road users efficiently through or 
around a work zone area with a minimum delay compared to baseline travel 
when no work zone is present, while not compromising the safety of 
highway workers or road users. The commonly used performance measures 
for the assessment of mobility include delay, speed, travel time and 
queue lengths.
    Safety is a representation of the level of exposure to potential 
hazards for users of transportation facilities and highway workers. With 
specific reference to work zones, safety refers to minimizing potential 
hazards to road users in the vicinity of a work zone and highway workers 
at the work zone interface with traffic. The commonly used measures for 
highway safety are the number of crashes or the consequences of crashes 
(fatalities and injuries) at a given location or along a section of 
highway during a period of time. Highway worker safety in work zones 
refers to the safety of workers at the work zone interface with traffic 
and the impacts of the work zone design on worker safety. The number of 
worker fatalities and injuries at a given location or along a section of 
highway, during a period of time are commonly used measures for highway 
worker safety.
    Work zone \2\ is an area of a highway with construction, 
maintenance, or utility work activities. A work zone is typically marked 
by signs, channelizing devices, barriers, pavement markings, and/or work 
vehicles. It extends from the first warning sign or high-intensity 
rotating, flashing, oscillating, or strobe lights on a vehicle to the 
END ROAD WORK sign or the last temporary traffic control (TTC) device.
---------------------------------------------------------------------------

    \2\ MUTCD, Part 6, ``Temporary Traffic Control,'' Section 6C.02, 
``Temporary Traffic Control Zones.''
---------------------------------------------------------------------------

    Work zone crash \3\ means a traffic crash in which the first harmful 
event

[[Page 249]]

occurs within the boundaries of a work zone or on an approach to or exit 
from a work zone, resulting from an activity, behavior, or control 
related to the movement of the traffic units through the work zone. This 
includes crashes occurring on approach to, exiting from or adjacent to 
work zones that are related to the work zone.
---------------------------------------------------------------------------

    \3\ ``Model Minimum Uniform Crash Criteria Guideline'' (MMUCC), 2d 
Ed. (Electronic), 2003, produced by National Center for Statistics and 
Analysis, National Highway Traffic Safety Administration (NHTSA). 
Telephone 1-(800)-934-8517. Available at the URL: http://www-
nrd.nhtsa.dot.gov. The NHTSA, the FHWA, the Federal Motor Carrier Safety 
Administration (FMCSA), and the Governors Highway Safety Association 
(GHSA) sponsored the development of the MMUCC Guideline which recommends 
voluntary implementation of the 111 MMUCC data elements and serves as a 
reporting threshold that includes all persons (injured and uninjured) in 
crashes statewide involving death, personal injury, or property damage 
of $1,000 or more. The Guideline is a tool to strengthen existing State 
crash data systems.
---------------------------------------------------------------------------

    Work zone impacts refer to work zone-induced deviations from the 
normal range of transportation system safety and mobility. The extent of 
the work zone impacts may vary based on factors such as, road 
classification, area type (urban, suburban, and rural), traffic and 
travel characteristics, type of work being performed, time of day/night, 
and complexity of the project. These impacts may extend beyond the 
physical location of the work zone itself, and may occur on the roadway 
on which the work is being performed, as well as other highway 
corridors, other modes of transportation, and/or the regional 
transportation network.



Sec. 630.1006  Work zone safety and mobility policy.

    Each State shall implement a policy for the systematic consideration 
and management of work zone impacts on all Federal-aid highway projects. 
This policy shall address work zone impacts throughout the various 
stages of the project development and implementation process. This 
policy may take the form of processes, procedures, and/or guidance, and 
may vary based on the characteristics and expected work zone impacts of 
individual projects or classes of projects. The States should institute 
this policy using a multi-disciplinary team and in partnership with the 
FHWA. The States are encouraged to implement this policy for non-
Federal-aid projects as well.



Sec. 630.1008  State-level processes and procedures.

    (a) This section consists of State-level processes and procedures 
for States to implement and sustain their respective work zone safety 
and mobility policies. State-level processes and procedures, data and 
information resources, training, and periodic evaluation enable a 
systematic approach for addressing and managing the safety and mobility 
impacts of work zones.
    (b) Work zone assessment and management procedures. States should 
develop and implement systematic procedures to assess work zone impacts 
in project development, and to manage safety and mobility during project 
implementation. The scope of these procedures shall be based on the 
project characteristics.
    (c) Work zone data. States shall use field observations, available 
work zone crash data, and operational information to manage work zone 
impacts for specific projects during implementation. States shall 
continually pursue improvement of work zone safety and mobility by 
analyzing work zone crash and operational data from multiple projects to 
improve State processes and procedures. States should maintain elements 
of the data and information resources that are necessary to support 
these activities.
    (d) Training. States shall require that personnel involved in the 
development, design, implementation, operation, inspection, and 
enforcement of work zone related transportation management and traffic 
control be trained, appropriate to the job decisions each individual is 
required to make. States shall require periodic training updates that 
reflect changing industry practices and State processes and procedures.
    (e) Process review. In order to assess the effectiveness of work 
zone safety and mobility procedures, the States shall perform a process 
review at least every two years. This review may include the evaluation 
of work zone data at the State level, and/or review of randomly selected 
projects throughout their jurisdictions. Appropriate personnel who 
represent the project development stages and the different offices 
within the State, and the FHWA should participate in this review. Other 
non-State stakeholders may also be included in this review, as 
appropriate. The results of the review are intended to lead to 
improvements in work zone

[[Page 250]]

processes and procedures, data and information resources, and training 
programs so as to enhance efforts to address safety and mobility on 
current and future projects.



Sec. 630.1010  Significant projects.

    (a) A significant project is one that, alone or in combination with 
other concurrent projects nearby is anticipated to cause sustained work 
zone impacts (as defined in Sec. 630.1004) that are greater than what 
is considered tolerable based on State policy and/or engineering 
judgment.
    (b) The applicability of the provisions in Sec. Sec. 630.1012(b)(2) 
and 630.1012(b)(3) is dependent upon whether a project is determined to 
be significant. The State shall identify upcoming projects that are 
expected to be significant. This identification of significant projects 
should be done as early as possible in the project delivery and 
development process, and in cooperation with the FHWA. The State's work 
zone policy provisions, the project's characteristics, and the magnitude 
and extent of the anticipated work zone impacts should be considered 
when determining if a project is significant or not.
    (c) All Interstate system projects within the boundaries of a 
designated Transportation Management Area (TMA) that occupy a location 
for more than three days with either intermittent or continuous lane 
closures shall be considered as significant projects.
    (d) For an Interstate system project or categories of Interstate 
system projects that are classified as significant through the 
application of the provisions in Sec. 630.1010(c), but in the judgment 
of the State they do not cause sustained work zone impacts, the State 
may request from the FHWA, an exception to Sec. Sec. 630.1012(b)(2) and 
630.1012(b)(3). Exceptions to these provisions may be granted by the 
FHWA based on the State's ability to show that the specific Interstate 
system project or categories of Interstate system projects do not have 
sustained work zone impacts.



Sec. 630.1012  Project-level procedures.

    (a) This section provides guidance and establishes procedures for 
States to manage the work zone impacts of individual projects.
    (b) Transportation Management Plan (TMP). A TMP consists of 
strategies to manage the work zone impacts of a project. Its scope, 
content, and degree of detail may vary based upon the State's work zone 
policy, and the State's understanding of the expected work zone impacts 
of the project. For significant projects (as defined in Sec. 630.1010), 
the State shall develop a TMP that consists of a Temporary Traffic 
Control (TTC) plan and addresses both Transportation Operations (TO) and 
Public Information (PI) components. For individual projects or classes 
of projects that the State determines to have less than significant work 
zone impacts, the TMP may consist only of a TTC plan. States are 
encouraged to consider TO and PI issues for all projects.
    (1) A TTC plan describes TTC measures to be used for facilitating 
road users through a work zone or an incident area. The TTC plan plays a 
vital role in providing continuity of reasonably safe and efficient road 
user flow and highway worker safety when a work zone, incident, or other 
event temporarily disrupts normal road user flow. The TTC plan shall be 
consistent with the provisions under Part 6 of the MUTCD and with the 
work zone hardware recommendations in Chapter 9 of the American 
Association of State Highway and Transportation Officials (AASHTO) 
Roadside Design Guide. Chapter 9 of the AASHTO Roadside Design Guide: 
``Traffic Barriers, Traffic Control Devices, and Other Safety Features 
for Work Zones'' 2002, is incorporated by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51 and is on file at the National Archives 
and Record Administration (NARA). For information on the availability of 
this material at NARA call (202) 741-6030, or go to http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html. The entire document is available for purchase from the 
American Association of State Highway and Transportation Officials 
(AASHTO), 444 North Capitol Street, NW., Suite 249, Washington, DC 20001 
or

[[Page 251]]

at the URL: http://www.aashto.org/bookstore. It is available for 
inspection from the FHWA Washington Headquarters and all Division 
Offices as listed in 49 CFR part 7. In developing and implementing the 
TTC plan, pre-existing roadside safety hardware shall be maintained at 
an equivalent or better level than existed prior to project 
implementation. The scope of the TTC plan is determined by the project 
characteristics, and the traffic safety and control requirements 
identified by the State for that project. The TTC plan shall either be a 
reference to specific TTC elements in the MUTCD, approved standard TTC 
plans, State transportation department TTC manual, or be designed 
specifically for the project.
    (2) The TO component of the TMP shall include the identification of 
strategies that will be used to mitigate impacts of the work zone on the 
operation and management of the transportation system within the work 
zone impact area. Typical TO strategies may include, but are not limited 
to, demand management, corridor/network management, safety management 
and enforcement, and work zone traffic management. The scope of the TO 
component should be determined by the project characteristics, and the 
transportation operations and safety strategies identified by the State.
    (3) The PI component of the TMP shall include communications 
strategies that seek to inform affected road users, the general public, 
area residences and businesses, and appropriate public entities about 
the project, the expected work zone impacts, and the changing conditions 
on the project. This may include traveler information strategies. The 
scope of the PI component should be determined by the project 
characteristics and the public information and outreach strategies 
identified by the State. Public information should be provided through 
methods best suited for the project, and may include, but not be limited 
to, information on the project characteristics, expected impacts, 
closure details, and commuter alternatives.
    (4) States should develop and implement the TMP in sustained 
consultation with stakeholders (e.g., other transportation agencies, 
railroad agencies/operators, transit providers, freight movers, utility 
suppliers, police, fire, emergency medical services, schools, business 
communities, and regional transportation management centers).
    (c) The Plans, Specifications, and Estimates (PS&Es) shall include 
either a TMP or provisions for contractors to develop a TMP at the most 
appropriate project phase as applicable to the State's chosen 
contracting methodology for the project. A contractor developed TMP 
shall be subject to the approval of the State, and shall not be 
implemented before it is approved by the State.
    (d) The PS&Es shall include appropriate pay item provisions for 
implementing the TMP, either through method or performance based 
specifications.
    (1) For method-based specifications individual pay items, lump sum 
payment, or a combination thereof may be used.
    (2) For performance based specifications, applicable performance 
criteria and standards may be used (e.g., safety performance criteria 
such as number of crashes within the work zone; mobility performance 
criteria such as travel time through the work zone, delay, queue length, 
traffic volume; incident response and clearance criteria; work duration 
criteria).
    (e) Responsible persons. The State and the contractor shall each 
designate a trained person, as specified in Sec. 630.1008(d), at the 
project level who has the primary responsibility and sufficient 
authority for implementing the TMP and other safety and mobility aspects 
of the project.



Sec. 630.1014  Implementation.

    Each State shall work in partnership with the FHWA in the 
implementation of its policies and procedures to improve work zone 
safety and mobility. At a minimum, this shall involve an FHWA review of 
conformance of the State's policies and procedures with this regulation 
and reassessment of the State's implementation of its procedures at 
appropriate intervals. Each State is encouraged to address 
implementation of this regulation in its

[[Page 252]]

stewardship agreement with the FHWA.



Sec. 630.1016  Compliance date.

    States shall comply with all the provisions of this rule no later 
than October 12, 2007. For projects that are in the later stages of 
development at or about the compliance date, and if it is determined 
that the delivery of those projects would be significantly impacted as a 
result of this rule's provisions, States may request variances for those 
projects from the FHWA, on a project-by-project basis.



               Subpart K_Temporary Traffic Control Devices

    Authority: 23 U.S.C. 109(c) and 112; Sec. 1110 of Pub. L. 109-59; 23 
CFR 1.32; and 49 CFR 1.48(b).

    Source: 72 FR 68489, Dec. 5, 2007, unless otherwise noted.



Sec. 630.1102  Purpose.

    To decrease the likelihood of highway work zone fatalities and 
injuries to workers and road users by establishing minimum requirements 
and providing guidance for the use of positive protection devices 
between the work space and motorized traffic, installation and 
maintenance of temporary traffic control devices, and use of uniformed 
law enforcement officers during construction, utility, and maintenance 
operations, and by requiring contract pay items to ensure the 
availability of funds for these provisions. This subpart is applicable 
to all Federal-aid highway projects, and its application is encouraged 
on other highway projects as well.



Sec. 630.1104  Definitions.

    For the purposes of this subpart, the following definitions apply:
    Agency means a State or local highway agency or authority that 
receives Federal-aid highway funding.
    Exposure Control Measures means traffic management strategies to 
avoid work zone crashes involving workers and motorized traffic by 
eliminating or reducing traffic through the work zone, or diverting 
traffic away from the work space.
    Federal-aid Highway Project means highway construction, maintenance, 
and utility projects funded in whole or in part with Federal-aid funds.
    Motorized Traffic means the motorized traveling public. This term 
does not include motorized construction or maintenance vehicles and 
equipment within the work space.
    Other Traffic Control Measures means all strategies and temporary 
traffic controls other than Positive Protection Devices and Exposure 
Control Measures, but including uniformed law enforcement officers, used 
to reduce the risk of work zone crashes involving motorized traffic.
    Positive Protection Devices means devices that contain and/or 
redirect vehicles and meet the crashworthiness evaluation criteria 
contained in National Cooperative Highway Research Program (NCHRP) 
Report 350, Recommended Procedures for the Safety Performance Evaluation 
of Highway Features, 1993, Transportation Research Board, National 
Research Council. The Director of the Federal Register approves this 
incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. This document is available for inspection and copying at FHWA, 
1200 New Jersey Avenue, SE., Washington, DC 20590, as provided in 49 CFR 
part 7. You may also inspect a copy at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call (202) 741 6030, or go to: http://
www.archives.gov/federal--register/code--of--federal--regulations/ibr--
locations.html.
    Work Zone Safety Management means the entire range of traffic 
management and control and highway safety strategies and devices used to 
avoid crashes in work zones that can lead to worker and road user 
injuries and fatalities, including Positive Protection Devices, Exposure 
Control Measures, and Other Traffic Control Measures.



Sec. 630.1106  Policy and procedures for work zone safety management.

    (a) Each agency's policy and processes, procedures, and/or guidance 
for the systematic consideration and management of work zone impacts, to 
be

[[Page 253]]

established in accordance with 23 CFR 630.1006, shall include the 
consideration and management of road user and worker safety on Federal-
aid highway projects. These processes, procedures, and/or guidance, to 
be developed in partnership with the FHWA, shall address the use of 
Positive Protection Devices to prevent the intrusion of motorized 
traffic into the work space and other potentially hazardous areas in the 
work zone; Exposure Control Measures to avoid or minimize worker 
exposure to motorized traffic and road user exposure to work activities; 
Other Traffic Control Measures including uniformed law enforcement 
officers to minimize work zone crashes; and the safe entry/exit of work 
vehicles onto/from the travel lanes. Each of these strategies should be 
used to the extent that they are possible, practical, and adequate to 
manage work zone exposure and reduce the risks of crashes resulting in 
fatalities or injuries to workers and road users.
    (b) Agency processes, procedures, and/or guidance should be based on 
consideration of standards and/or guidance contained in the Manual on 
Uniform Traffic Control Devices (MUTCD) and the AASHTO Roadside Design 
Guide, as well as project characteristics and factors. The strategies 
and devices to be used may be determined by a project-specific 
engineering study, or determined from agency guidelines that define 
strategies and approaches to be used based on project and highway 
characteristics and factors. The types of measures and strategies to be 
used are not mutually exclusive, and should be considered in combination 
as appropriate based on characteristics and factors such as those listed 
below:
    (1) Project scope and duration;
    (2) Anticipated traffic speeds through the work zone;
    (3) Anticipated traffic volume;
    (4) Vehicle mix;
    (5) Type of work (as related to worker exposure and crash risks);
    (6) Distance between traffic and workers, and extent of worker 
exposure;
    (7) Escape paths available for workers to avoid a vehicle intrusion 
into the work space;
    (8) Time of day (e.g., night work);
    (9) Work area restrictions (including impact on worker exposure);
    (10) Consequences from/to road users resulting from roadway 
departure;
    (11) Potential hazard to workers and road users presented by device 
itself and during device placement and removal;
    (12) Geometrics that may increase crash risks (e.g., poor sight 
distance, sharp curves);
    (13) Access to/from work space;
    (14) Roadway classification; and
    (15) Impacts on project cost and duration.
    (c) Uniformed Law Enforcement Policy. Each agency, in partnership 
with the FHWA, shall develop a policy addressing the use of uniformed 
law enforcement on Federal-aid highway projects. The policy may consist 
of processes, procedures, and/or guidance. The processes, procedures, 
and/or guidance should address the following:
    (1) Basic interagency agreements between the highway agency and 
appropriate law enforcement agencies to address work zone enforcement 
needs;
    (2) Interaction between highway and law-enforcement agency during 
project planning and development;
    (3) Conditions where law enforcement involvement in work zone 
traffic control may be needed or beneficial, and criteria to determine 
the project-specific need for law enforcement;
    (4) General nature of law enforcement services to be provided, and 
procedures to determine project-specific services;
    (5) Appropriate work zone safety and mobility training for the 
officers, consistent with the training requirements in 23 CFR 
630.1008(d);
    (6) Procedures for interagency and project-level communications 
between highway agency and law enforcement personnel; and
    (7) Reimbursement agreements for law enforcement service.



Sec. 630.1108  Work zone safety management measures and strategies.

    (a) Positive Protection Devices. The need for longitudinal traffic 
barrier and other positive protection devices shall be based on an 
engineering study. The engineering study may be used to develop positive 
protection guidelines

[[Page 254]]

for the agency, or to determine the measures to be applied on an 
individual project. The engineering study should be based on 
consideration of the factors and characteristics described in section 
630.1106(b). At a minimum, positive protection devices shall be 
considered in work zone situations that place workers at increased risk 
from motorized traffic, and where positive protection devices offer the 
highest potential for increased safety for workers and road users, such 
as:
    (1) Work zones that provide workers no means of escape from 
motorized traffic (e.g., tunnels, bridges, etc.);
    (2) Long duration work zones (e.g., two weeks or more) resulting in 
substantial worker exposure to motorized traffic;
    (3) Projects with high anticipated operating speeds (e.g., 45 mph or 
greater), especially when combined with high traffic volumes;
    (4) Work operations that place workers close to travel lanes open to 
traffic; and
    (5) Roadside hazards, such as drop-offs or unfinished bridge decks, 
that will remain in place overnight or longer.
    (b) Exposure Control Measures. Exposure Control Measures should be 
considered where appropriate to avoid or minimize worker exposure to 
motorized traffic and exposure of road users to work activities, while 
also providing adequate consideration to the potential impacts on 
mobility. A wide range of measures may be appropriate for use on 
individual projects, such as:
    (1) Full road closures;
    (2) Ramp closures;
    (3) Median crossovers;
    (4) Full or partial detours or diversions;
    (5) Protection of work zone setup and removal operations using 
rolling road blocks;
    (6) Performing work at night or during off-peak periods when traffic 
volumes are lower; and
    (7) Accelerated construction techniques.
    (c) Other Traffic Control Measures. Other Traffic Control Measures 
should be given appropriate consideration for use in work zones to 
reduce work zone crashes and risks and consequences of motorized traffic 
intrusion into the work space. These measures, which are not mutually 
exclusive and should be considered in combination as appropriate, 
include a wide range of other traffic control measures such as:
    (1) Effective, credible signing;
    (2) Changeable message signs;
    (3) Arrow panels;
    (4) Warning flags and lights on signs;
    (5) Longitudinal and lateral buffer space;
    (6) Trained flaggers and spotters;
    (7) Enhanced flagger station setups;
    (8) Intrusion alarms;
    (9) Rumble strips;
    (10) Pace or pilot vehicle;
    (11) High quality work zone pavement markings and removal of 
misleading markings;
    (12) Channelizing device spacing reduction;
    (13) Longitudinal channelizing barricades;
    (14) Work zone speed management (including changes to the regulatory 
speed and/or variable speed limits);
    (15) Law enforcement;
    (16) Automated speed enforcement (where permitted by State/local 
laws);
    (17) Drone radar;
    (18) Worker and work vehicle/equipment visibility;
    (19) Worker training;
    (20) Public information and traveler information; and
    (21) Temporary traffic signals.
    (d) Uniformed Law Enforcement Officers. (1) A number of conditions 
may indicate the need for or benefit of uniformed law enforcement in 
work zones. The presence of a uniformed law enforcement officer and 
marked law enforcement vehicle in view of motorized traffic on a highway 
project can affect driver behavior, helping to maintain appropriate 
speeds and improve driver alertness through the work zone. However, such 
law enforcement presence is not a substitute for the temporary traffic 
control devices required by Part 6 of the MUTCD. In general, the need 
for law enforcement is greatest on projects with high traffic speeds and 
volumes, and where the work zone is expected to result in substantial 
disruption to or changes in normal traffic flow patterns. Specific 
project conditions should be examined to determine

[[Page 255]]

the need for or potential benefit of law enforcement, such as the 
following:
    (i) Frequent worker presence adjacent to high-speed traffic without 
positive protection devices;
    (ii) Traffic control setup or removal that presents significant 
risks to workers and road users;
    (iii) Complex or very short term changes in traffic patterns with 
significant potential for road user confusion or worker risk from 
traffic exposure;
    (iv) Night work operations that create substantial traffic safety 
risks for workers and road users;
    (v) Existing traffic conditions and crash histories that indicate a 
potential for substantial safety and congestion impacts related to the 
work zone activity, and that may be mitigated by improved driver 
behavior and awareness of the work zone;
    (vi) Work zone operations that require brief stoppage of all traffic 
in one or both directions;
    (vii) High-speed roadways where unexpected or sudden traffic queuing 
is anticipated, especially if the queue forms a considerable distance in 
advance of the work zone or immediately adjacent to the work space; and
    (viii) Other work site conditions where traffic presents a high risk 
for workers and road users, such that the risk may be reduced by 
improving road user behavior and awareness.
    (2) Costs associated with the provision of uniformed law enforcement 
to help protect workers and road users, and to maintain safe and 
efficient travel through highway work zones, are eligible for Federal-
aid participation. Federal-aid eligibility excludes law enforcement 
activities that would normally be expected in and around highway problem 
areas requiring routine or ongoing law enforcement traffic control and 
enforcement activities. Payment for the services of uniformed law 
enforcement in work zones may be included in the construction contract, 
or be provided by direct reimbursement from the highway agency to the 
law enforcement agency. When payment is included through the 
construction contract, the contractor will be responsible for 
reimbursing the law enforcement agency, and in turn will recover those 
costs through contract pay items. Direct interagency reimbursement may 
be made on a project-specific basis, or on a program-wide basis that 
considers the overall level of services to be provided by the law 
enforcement agency. Contract pay items for law enforcement service may 
be either unit price or lump sum items. Unit price items should be 
utilized when the highway agency can estimate and control the quantity 
of law enforcement services required on the project. The use of lump sum 
payment should be limited to situations where the quantity of services 
is directly affected by the contractor's choice of project scheduling 
and chosen manner of staging and performing the work. Innovative payment 
items may also be considered when they offer an advantage to both the 
highway agency and the contractor. When reimbursement to the law 
enforcement agency is made by interagency transfer of funds, the highway 
agency should establish a program-level or project-level budget that is 
adequate to meet anticipated program or project needs, and include 
provisions to address unplanned needs and other contingencies.
    (e) Work Vehicles and Equipment. In addition to addressing risks to 
workers and road users from motorized traffic, the agency processes, 
procedures, and/or guidance established in accordance with 23 CFR 
630.1006 should also address safe means for work vehicles and equipment 
to enter and exit traffic lanes and for delivery of construction 
materials to the work space, based on individual project characteristics 
and factors.
    (f) Payment for Traffic Control. Consistent with the requirements of 
23 CFR 630.1012, Project-level Procedures, project plans, specifications 
and estimates (PS&Es) shall include appropriate pay item provisions for 
implementing the project Transportation Management Plan (TMP), which 
includes a Temporary Traffic Control (TTC) plan, either through method 
or performance based specifications. Pay item provisions include, but 
are not limited to, the following:
    (1) Payment for work zone traffic control features and operations 
shall not be incidental to the contract, or included in payment for 
other items of

[[Page 256]]

work not related to traffic control and safety;
    (2) As a minimum, separate pay items shall be provided for major 
categories of traffic control devices, safety features, and work zone 
safety activities, including but not limited to positive protection 
devices, and uniformed law enforcement activities when funded through 
the project;
    (3) For method based specifications, the specifications and other 
PS&E documents should provide sufficient details such that the quantity 
and types of devices and the overall effort required to implement and 
maintain the TMP can be determined;
    (4) For method-based specifications, unit price pay items, lump sum 
pay items, or a combination thereof may be used;
    (5) Lump sum payment should be limited to items for which an 
estimate of the actual quantity required is provided in the PS&E or for 
items where the actual quantity required is dependent upon the 
contractor's choice of work scheduling and methodology;
    (6) For Lump Sum items, a contingency provision should be included 
such that additional payment is provided if the quantity or nature of 
the required work changes, either an increase or decrease, due to 
circumstances beyond the control of the contractor;
    (7) Unit price payment should be provided for those items over which 
the contractor has little or no control over the quantity, and no firm 
estimate of quantities is provided in the PS&Es, but over which the 
highway agency has control of the actual quantity to be required during 
the project;
    (8) Specifications should clearly indicate how placement, movement/
relocation, and maintenance of traffic control devices and safety 
features will be compensated; and
    (9) The specifications should include provisions to require and 
enforce contractor compliance with the contract provisions relative to 
implementation and maintenance of the project TMP and related traffic 
control items. Enforcement provisions may include remedies such as 
liquidated damages, work suspensions, or withholding payment for 
noncompliance.



Sec. 630.1110  Maintenance of temporary traffic control devices.

    To provide for the continued effectiveness of temporary traffic 
control devices, each agency shall develop and implement quality 
guidelines to help maintain the quality and adequacy of the temporary 
traffic control devices for the duration of the project. Agencies may 
choose to adopt existing quality guidelines such as those developed by 
the American Traffic Safety Services Association (ATSSA) or other state 
highway agencies. \1\ A level of inspection necessary to provide ongoing 
compliance with the quality guidelines shall be provided.
---------------------------------------------------------------------------

    \1\ The American Traffic Safety Services Association's (ATSSA) 
Quality Guidelines for Work Zone Traffic Control Devices uses photos and 
written descriptions to help judge when a traffic control device has 
outlived its usefulness. These guidelines are available for purchase 
from ATSSA through the following URL: http://www.atssa.com/store/bc--
item--detail.jsp?productId=1. Similar guidelines are available from 
various State highway agencies. The Illinois Department of 
Transportation ``Quality Standards for Work Zone Traffic Control 
Devices'' is available online at http://dot.state.il.us/workzone/
wztcd2004r.pdf. The Minnesota Department of Transportation ``Quality 
Standards--Methods to determine whether the various traffic control 
devices are Acceptable, Marginal, or Unacceptable'' is available online 
at http://www.dot.state.mn.us/trafficeng/otepubl/fieldmanual2007/FM-
2007-QualityStandards.pdf.
---------------------------------------------------------------------------



PART 633_REQUIRED CONTRACT PROVISIONS--Table of Contents



  Subpart A_Federal-Aid Construction Contracts (Other Than Appalachian 
                               Contracts)

Sec.
633.101 Purpose.
633.102 Applicability.
633.103 Regulatory authority.
633.104 Availability.

         Subpart B_Federal-Aid Contracts (Appalachian Contracts)

633.201 Purpose.
633.202 Definitions.
633.203 Applicability of existing laws, regulations, and directives.
633.204 Fiscal allocation and obligations.
633.205 Prefinancing.

[[Page 257]]

633.206 Project agreements.
633.207 Construction labor and materials.
633.208 Maintenance.
633.209 Notices to prospective Federal-aid construction contractors.
633.210 Termination of contract.
633.211 Implementation of the Clean Air Act and the Federal Water 
          Pollution Control Act.

Appendix A to Subpart B of Part 633--Types of Contracts to Which the 
          Civil Rights Act of 1964 Is Applicable
Appendix B to Subpart B of Part 633--Required Contract Provisions, 
          Appalachian Development Highway System and Local Access Roads 
          Construction Contracts
Appendix C to Subpart B of Part 633--Additional Required Contract 
          Provisions, Appalachian Development Highway System and Local 
          Access Roads Contracts Other Than Construction Contracts
Appendix D to Subpart B of Part 633--Federal-Aid Proposal Notices



  Subpart A_Federal-Aid Construction Contracts (Other Than Appalachian 
                               Contracts)

    Authority: 23 U.S.C. 114 and 315; 49 CFR 1.48.

    Source: 52 FR 36920, Oct. 2, 1987, unless otherwise noted.



Sec. 633.101  Purpose.

    To prescribe for Federal-aid highway proposals and construction 
contracts the method for inclusion of required contract provisions of 
existing regulations which cover employment, nonsegregated facilities, 
record of materials and supplies, subletting or assigning the contract, 
safety, false statements concerning highway projects, termination of a 
contract, and implementation of the Clean Air Act and the Federal Water 
Pollution Control Act, and other provisions as shall from time-to-time 
be required by law and regulation as conditions of Federal assistance.



Sec. 633.102  Applicability.

    (a) The required contract provisions and the required proposal 
notices apply to all Federal-aid construction contracts other than 
Appalachian construction contracts.
    (b) Form FHWA-1273, ``Required Contract Provisions, Federal-aid 
Construction Contracts,'' contains required contract provisions and 
required proposal notices that are required by regulations promulgated 
by the FHWA or other Federal agencies. The required contract provisions 
of Form FHWA-1273 shall be physically incorporated in each Federal-aid 
highway construction contract other than Appalachian construction 
contracts (see Sec. 633.104 for availability of form).
    (c) [Reserved]
    (d) The required contract provisions contained in Form FHWA-1273 
shall apply to all work performed on the contract by the contractor's 
own organization and to all work performed on the contract by piecework, 
station work, or by subcontract.
    (e) The contractor shall insert in each subcontract, except as 
excluded by law or regulation, the required contract provisions 
contained in Form FHWA-1273 and further require their inclusion in any 
lower tier subcontract that may in turn be made. The required contract 
provisions of Form FHWA-1273 shall not be incorporated by reference in 
any case. The prime contractor shall be responsible for compliance by 
any subcontractor or lower tier subcontractor with the requirements 
contained in the provisions of Form FHWA-1273.
    (f) The State highway agency (SHA) shall include the notices 
concerning certification of nonsegregated facilities and implementation 
of the Clean Air Act and Federal Water Pollution Control Act, pursuant 
to 40 CFR part 15, in all bidding proposals for Federal-aid highway 
construction projects. As the notices are reproduced in Form FHWA-1273, 
the SHA may include Form FHWA-1273 in its entirety to meet this 
requirement.

[52 FR 36920, Oct. 2, 1987, as amended at 69 FR 7118, Feb. 13, 2004]



Sec. 633.103  Regulatory authority.

    All required contract provisions contained in Form FHWA-1273 are 
requirements of regulations promulgated by the FHWA or other Federal 
agencies. The authority for each provision will be cited in the text of 
Form FHWA-1273.

[[Page 258]]



Sec. 633.104  Availability.

    (a) Form FHWA-1273 will b