[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]]
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Table of Contents
Page
Explanation................................................. v
Title 23:
Chapter I--Federal Highway Administration,
Department of Transportation 3
Chapter II--National Highway Traffic Safety
Administration and Federal Highway Administration,
Department of Transportation 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
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 23 CFR 1.1 refers to
title 23, part 1, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
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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
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LEGAL STATUS
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[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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[[Page vii]]
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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
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Part
chapter i--Federal Highway Administration, Department of
Transportation............................................ 1
chapter ii--National Highway Traffic Safety Administration
and Federal Highway Administration, Department of
Transportation............................................ 1200
chapter iii--National Highway Traffic Safety Administration,
Department of Transportation.............................. 1313
[[Page 3]]
CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
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SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
Part Page
1 General..................................... 7
SUBCHAPTER B--PAYMENT PROCEDURES
140 Reimbursement............................... 12
172 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
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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
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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]
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SUBCHAPTER A_GENERAL MANAGEMENT AND ADMINISTRATION
PART 1_GENERAL--Table of Contents
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Federal-State cooperation; authority of State highway departments.
1.5 Information furnished by State highway departments.
1.7 Urban area boundaries.
1.8 [Reserved]
1.9 Limitation on Federal participation.
1.11 Engineering services.
1.23 Rights-of-way.
1.27 Maintenance.
1.28 Diversion of highway revenues.
1.32 Issuance of directives.
1.33 Conflicts of interest.
1.35 Bonus program.
1.36 Compliance with Federal laws and regulations.
Authority: 23 U.S.C. 315; 49 CFR 1.48(b).
Source: 25 FR 4162, May 11, 1960, unless otherwise noted.
Sec. 1.1 Purpose.
The purpose of the regulations in this part is to implement and
carry out the provisions of Federal law relating to the administration
of Federal aid for highways.
Sec. 1.2 Definitions.
(a) Terms defined in 23 U.S.C. 101(a), shall have the same meaning
where used in the regulations in this part, except as modified herein.
(b) The following terms where used in the regulations in this part
shall have the following meaning:
Administrator. The Federal Highway Administrator.
Advertising policy. The national policy relating to the regulation
of outdoor advertising declared in title 23 U.S.C. 131.
Advertising standards. The ``National Standards for Regulation by
States of Outdoor Advertising Signs, Displays and Devices Adjacent to
the National System of Interstate and Defense Highways'' promulgated by
the Secretary (part 20 of this chapter).
Federal laws. The provisions of title 23 U.S.C., and all other
Federal laws, heretofore or hereafter enacted, relating to Federal aid
for highways.
Latest available Federal census. The latest available Federal
decennial census, except for the establishment of urban area.
Project. An undertaking by a State highway department for highway
construction, including preliminary engineering, acquisition of rights-
of-way and actual construction, or for highway planning and research, or
for any other work or activity to carry out the provisions of the
Federal laws for the administration of Federal aid for highways.
Secondary road plan. A plan for administration of Federal aid for
highways on the Federal-aid secondary highway system pursuant to 23
U.S.C. 117.
Secretary. The Secretary of Transportation.
State. Any State of the United States, the District of Columbia and
Puerto Rico.
Urban area. An area including and adjacent to a municipality or
other urban place having a population of five thousand or more, as
determined by the latest available published official Federal census,
decennial or special, within boundaries to be fixed by a State highway
department, subject to the approval of the Administrator.
[25 FR 4162, May 11, 1960, as amended at 35 FR 18719, Dec. 10, 1970]
Sec. 1.3 Federal-State cooperation; authority of State highway
departments.
The Administrator shall cooperate with the States, through their
respective State highway departments, in the construction of Federal-aid
highways. Each State highway department, maintained in conformity with
23 U.S.C. 302, shall be authorized, by the laws of the State, to make
final decisions for the State in all matters relating to, and to enter
into, on behalf of the State, all contracts and agreements for projects
and to take such other actions on behalf of the State as may be
necessary
[[Page 8]]
to comply with the Federal laws and the regulations in this part.
Sec. 1.5 Information furnished by State highway departments.
At the request of the Administrator the State highway department
shall furnish to him such information as the Administrator shall deem
desirable in administering the Federal-aid highway program.
Sec. 1.7 Urban area boundaries.
Boundaries of an urban area shall be submitted by the State highway
department and be approved by the Administrator prior to the inclusion
in a program of any project wholly or partly in such area involving
funds authorized for and limited to urban areas.
Sec. 1.8 [Reserved]
Sec. 1.9 Limitation on Federal participation.
(a) Federal-aid funds shall not participate in any cost which is not
incurred in conformity with applicable Federal and State law, the
regulations in this title, and policies and procedures prescribed by the
Administrator. Federal funds shall not be paid on account of any cost
incurred prior to authorization by the Administrator to the State
highway department to proceed with the project or part thereof involving
such cost.
(b) Notwithstanding the provisions of paragraph (a) of this section
the Administrator may, upon the request of a State highway department,
approve the participation of Federal-aid funds in a previously incurred
cost if he finds:
(1) That his approval will not adversely affect the public,
(2) That the State highway department has acted in good faith, and
that there has been no willful violation of Federal requirements,
(3) That there has been substantial compliance with all other
requirements prescribed by the Administrator, and full compliance with
requirements mandated by Federal statute,
(4) That the cost to the United States will not be in excess of the
cost which it would have incurred had there been full compliance, and
(5) That the quality of work undertaken has not been impaired.
(c) Any request submitted under paragraph (b) of this section shall
be accompanied by a detailed description of the relevant circumstances
and facts, and shall explain the necessity for incurring the costs in
question.
[38 FR 18368, July 10, 1973]
Sec. 1.11 Engineering services.
(a) Federal participation. Costs of engineering services performed
by the State highway department or any instrumentality or entity
referred to in paragraph (b) of this section may be eligible for Federal
participation only to the extent that such costs are directly
attributable and properly allocable to specific projects.
(b) Governmental engineering organizations. The State highway
department may utilize, under its supervision, the services of well-
qualified and suitably equipped engineering organizations of other
governmental instrumentalities for making surveys, preparing plans,
specifications and estimates, and for supervising the construction of
any project.
(c) Railroad and utility engineering organizations. The State
highway department may utilize, under its supervision, the services of
well-qualified and suitably equipped engineering organizations of the
affected railroad companies for railway-highway crossing projects and of
the affected utility companies for projects involving utility
installations.
(d) [Reserved]
(e) Responsibility of the State highway department. The State
highway department is not relieved of its responsibilities under Federal
law and the regulations in this part in the event it utilizes the
services of any engineering organization under paragraphs (b), (c) or
(d) of this section.
[25 FR 4162, May 11, 1960, as amended at 53 FR 18276, May 23, 1988; 57
FR 60728, Dec. 22, 1992; 66 FR 58666, Nov. 23, 2001]
Sec. 1.23 Rights-of-way.
(a) Interest to be acquired. The State shall acquire rights-of-way
of such nature and extent as are adequate for the
[[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\
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(5) The third party work is performed during the period to which the
matching requirement applies;
(6) The third party in-kind contributions are verifiable from the
records of the State DOT or subrecipient and these records show how the
value placed on third party in-kind contributions was derived; and
(7) If the total amount of third party expenditures at the end of
the program period is not sufficient to match the total expenditure of
Federal funds by the recipient/subrecipient, the recipient/subrecipient
will need to make up any shortfall with its own funds.
(c) In accordance with the provisions of 23 U.S.C. 120(j), toll
revenues that are generated and used by public, quasi-public, and
private agencies to build, improve, or maintain highways, bridges, or
tunnels that serve the public purpose of interstate commerce may be used
as a credit for the non-Federal share of an FHWA planning and research
funded project.
(d) In accordance with 23 U.S.C. 505(c) or 23 U.S.C. 104(f)(3), the
requirement for matching SPR or PL funds may be waived if the FHWA
determines the interests of the Federal-aid highway program would be
best served. Waiver of the matching requirement is intended to encourage
State DOTs and/or MPOs to pool SPR and/or PL funds to address national
or regional high priority planning or RD&T problems that would benefit
multiple States and/or MPOs. Requests for waiver of matching
requirements must be submitted to the FHWA headquarters office for
approval by the Associate Administrator for Planning and Environment
(for planning activities) or the Associate Administrator for Research,
Development, and Technology (for RD&T activities). The matching
requirement may not be waived for NHS, STP, or MG funds.
(e) NHS, STP, or MG funds used for eligible planning and RD&T
purposes must be identified separately from SPR or PL funds in the work
program(s) and must be administered and accounted for separately for
fiscal purposes. In accordance with the statewide and metropolitan
planning process requirements for fiscally constrained transportation
improvement program (TIPs) planning or RD&T activities funded with NHS,
STP, or MG funds must be included in the Statewide and/or metropolitan
TIP(s) unless the State DOT and MPO (for a metropolitan area) agree that
they may be excluded from the TIP.
(f) Payment shall be made in accordance with the provisions of 49
CFR 18.21 or 49 CFR 19.22.
Sec. 420.121 What other requirements apply to the administration
of FHWA planning and research funds?
(a) Audits. Audits of the State DOTs and their subrecipients shall
be performed in accordance with OMB Circular A-133, Audits of States,
Local Governments, and Non-Profit Organizations. \2\ Audits of for-
profit contractors are to be performed in accordance with State DOT or
subrecipient contract administration procedures.
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\2\ See footnote 1.
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(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
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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
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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
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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
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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.
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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
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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,
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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-
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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
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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,
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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
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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;
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(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.
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(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.
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(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
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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
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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
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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
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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).
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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.
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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?
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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
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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);
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(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.
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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
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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).
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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.
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(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.