[Federal Register Volume 67, Number 26 (Thursday, February 7, 2002)]
[Notices]
[Pages 5882-5885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2957]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Transit Administration
Revised Guidance for Implementing the March 1999 Circuit Court
Decision Affecting Transportation Conformity
AGENCIES: Federal Highway Administration (FHWA), Federal
TransitAdministration (FTA), DOT.
ACTION: Notice; issuance of revised guidance.
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SUMMARY: The Federal Highway Administration (FHWA) and Federal Transit
Administration (FTA) have issued revised guidance for implementing a
March 1999 Circuit Court decision affecting transportation conformity.
In previous guidance issued on June 18, 1999, the FHWA and FTA
indicated that projects that had received funding commitments for
construction prior to the conformity lapse could proceed during a
lapse. However, project development activities such as right-of-way
(ROW) acquisition and design that had received funding commitments
prior to the conformity lapse could not proceed. After reviewing the
implementation and effectiveness of the previous guidance, the FHWA and
FTA decided to supplant the previous guidance and allow completion of
all project phases during a conformity lapse, if such activities were
approved prior to the lapse. The FHWA and FTA believe the revision is
necessary for consistency and will help in streamlining the
transportation planning and development process.
DATES: This revised guidance was effective on January 2, 2002.
FOR FURTHER INFORMATION CONTACT: For FHWA: Ms. Cecilia Ho, Office of
Natural Environment (HEPN), (202) 366-9862; Mr. Gary Jensen, Office of
Natural Environment (HEPN), (202) 366-2048; or Mr. Reid Alsop, Office
of the Chief Counsel (HCC-30), (202) 366-1371. For FTA: Mr. Abbe
Marner, Office of Planning (TPL-30), (202) 366-4317; or Mr. Scott
Biehl, Office of the Chief Counsel (TCC-30), (202) 366-0748. Both
agencies are located at 400 Seventh Street, SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Office of the Federal Register's home page at
http://www.nara.gov/fedreg and the Government Printing Office's Web
page at http://www.access.gpo.gov/nara. A copy of this guidance can be
obtained by accessing the FHWA Web site at
http://www.fhwa.dot.gov/environment/conformity/con_mdash;guid.htm.
March 2, 1999, Court Decision
Under section 176 of the Clean Air Act (CAA) as amended, the U.S.
Department of Transportation (U.S. DOT) cannot approve or fund any
activity that does not conform to the State implementation plan (SIP)
in nonattainment and maintenance areas. The CAA provides that
conformity to an implementation plan means conformity to a SIP's
purpose of eliminating or reducing the severity and number of
violations of the national ambient air quality standards and achieving
expeditious attainment of such standards. Conformity to an
implementation plan also means that such activities will not cause or
contribute to any new violation of any standard in any area; increase
the frequency or severity of any existing violation of any standard in
any area; or delay timely attainment of any standard or any required
interim emission reductions or other milestones in any area. The FHWA
and FTA funded activities must come from a transportation plan and
transportation improvement program (TIP) that have been found to
conform.
On March 2, 1999, the United States Court of Appeals for the
District of Columbia Circuit issued a decision on the Environmental
Protection Agency's (EPA) August 1997 transportation conformity
amendments in response to a case brought by the Environmental Defense
Fund (EDF) (EDF v. EPA, 167 F.3d 641 (DC Cir. 1999)). The court ruled
that CAA Section 176(c)(2)(C) prohibits the U.S. DOT from approving or
funding new projects in the absence of a conforming plan and TIP. The
decision also held that, among other things, projects that had
previously been found to conform and had completed the National
Environmental Policy Act (NEPA) process (``grandfathered'' projects)
may not be advanced (that is, such projects should not be approved or
funded) in a nonattainment or maintenance area if there is no currently
conforming transportation plan and TIP for the area. The court did not
rule on the issue of how active right-of-way (ROW) acquisition and
design projects
[[Page 5883]]
should be treated during a conformity lapse.
Previous Guidance From the FHWA and FTA Concerning the March 2,
1999, Court Decision
On March 31, 1999, the FHWA and FTA issued interim guidance \1\
implementing this court decision, which was supplemented by additional
guidance \2\ on May 7, 1999. On June 18, 1999, the FHWA and FTA issued
an additional memorandum \3\ that replaced the previously issued
guidance. In the June 18, 1999, guidance, the FHWA and FTA indicated
that projects that received funding commitments for construction prior
to the conformity lapse could proceed during a lapse.
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\1\ The March 31, 1999, interim guidance entitled ``Interim
Guidance for the Implementation of the Circuit Court Decision
Affecting Transportation Conformity'' may be obtained by contacting
Mr. Gary Jensen, Office of Natural Environment (HEPN), Federal
Highway Administration, 400 Seventh Street, SW., Washington, DC
20590, (202) 366-2048.
\2\ The May 7, 1999, supplemental guidance entitled
``Supplemental Guidance for the Implementation of the Circuit Court
Decision Affecting Transportation Conformity'' is available at the
following URL: http://www.fhwa.dot.gov/environment/gdad--int.htm.
\3\ The June 18, 1999, supplemental additional guidance entitled
``Additional Supplemental Guidance for the Implementation of the
Circuit Court Decision Affecting Transportation Conformity'' is
available at the following URL: http://www.fhwa.dot.gov/environment/
gdad--add.htm.
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For the FHWA, a funding commitment means there is a project
agreement, which is a contractual obligation by the Federal Government
to reimburse the Federal share of expenses on a Federal-aid highway
project. A project agreement includes approval of plans,
specifications, and estimates. For the FTA, a funding commitment means
there is a full funding grant agreement (FFGA). For transit projects
not covered by FFGAs, the construction commitment occurs after the FTA
grant is made and a local contract for construction or vehicle purchase
has been approved.
The June 18, 1999, guidance also stated that the FHWA could not
continue to reimburse with Federal funds active highway design and ROW
acquisition activities, except for exempt projects, during a conformity
lapse, even though these activities were approved before the conformity
lapse. Likewise, funding for active transit design and land acquisition
activities, except for exempt projects, which received a grant, other
than a FFGA, could not continue unless: (1) The FTA approved the grant
before the conformity lapse; and (2) the grantee had awarded a contract
for construction or for vehicle acquisition like procurement of rolling
stock before the lapse.
Since the release of the June 18, 1999, guidance, the FHWA and FTA
have had the opportunity to review the implementation and effectiveness
of that guidance. As a result of our review, the FHWA and FTA decided
to revise the guidance concerning the March 2, 1999, court decision to
allow completion of a project development activity during a conformity
lapse, if that activity was approved prior to the lapse (e.g., final
design or ROW acquisition). We consulted with the EPA in the
development of the following revised guidance.
The revised guidance does not allow new ROW acquisition or final
design approvals to occur during a conformity lapse. The revisions only
allow ROW acquisition and design activities that had received approvals
and funding commitments before a lapse to be federally reimbursed
during a lapse. We believe this is a reasonable interpretation that is
consistent with the March 2, 1999, court decision.
Reasons for Revising the June 19, 1999, Guidance
The FHWA and FTA believe that we can and should provide flexibility
and consistency, by allowing Federal reimbursement of previously
authorized ROW acquisition and design activities, as well as previously
authorized construction activities, to proceed during a conformity
lapse. There are several reasons for this revision.
First, our June 18, 1999, guidance provides that when the CAA says
that the U.S. DOT cannot ``fund'' a project unless it conforms,
``fund'' actually means the point at which the U.S. DOT commits to
funding the project. For the FHWA, this point is the project agreement
and for the FTA, it is the FFGA or equivalent authorization.
The June 18, 1999, guidance made a distinction between the
construction phase and ROW acquisition and design activities phases.
According to the June 18, 1999, guidance, projects that received
funding commitments for construction prior to the conformity lapse
could proceed during the conformity lapse. However, reimbursements for
previously authorized ROW acquisition and design activities could not
proceed during a conformity lapse. In other words, the Federal
Government had to suspend its previously authorized commitment to these
activities.
The FHWA and FTA have concluded that guidance concerning Federal
authorizations should be consistent, regardless of whether our
authorization is for construction, ROW acquisition, or design
activities. By treating each phase of a project similarly in the
revised guidance, we consistently apply the principle that ``fund''
actually means the point at which the U.S. DOT commits to funding a
phase of the project, not just the point the U.S. DOT commits to
funding the construction of the project.
Second, streamlining transportation planning and development
processes continues to be a priority of the U.S. DOT. Suspending
Federal reimbursement of active ROW acquisition and design activities
is an onerous process that can be time and resource intensive for the
project sponsor, and, as discussed, was not directly addressed by the
court in its March 2, 1999, decision.
Third, although the FHWA and FTA discouraged it, under the June 18,
1999, guidance these activities could be continued using State or local
funds. Also, projects using design-build contracting could proceed with
all project phases that were included in the design-build contract,
which the FHWA authorized before the lapse.
Finally, ROW acquisition and design activities will not affect
regional motor vehicle emissions until such time as the project is
constructed and completed. The construction of non-exempt projects
utilizing such acquired ROW or designs cannot be authorized until a new
conformity analysis and conforming plan and TIP are adopted and the
conformity lapse has ended. Therefore, this revised guidance will not
lessen the air quality protection afforded by the transportation
conformity provisions of the CAA.
Other Information Regarding Revised Guidance
The June 18, 1999, guidance contained a detailed discussion on how
the court decision affected areas that relied on submitted, but not yet
approved, motor vehicle emission budgets for their most recent
conformity determination. This discussion is no longer needed, as all
areas, except one where conformity has remained suspended, have now
determined conformity based on budgets that have been found adequate or
approved by EPA, or based on the appropriate emissions reductions
test(s). For guidance on the process EPA currently uses to review and
decide whether motor vehicle emissions budgets are adequate and can be
used for conformity, refer to EPA's May 14, 1999, ``Conformity Guidance
on Implementation of March 2, 1999
[[Page 5884]]
Conformity Court Decision'' which is available at the following URL:
http://www.epa.gov/otaq/transp/conform/epaguidf.pdf.
Authority: 23 U.S.C. 106; 23 U.S.C. 134; 42 U.S.C. 7506; 23
U.S.C. 315; and 49 CFR 1.48.
Issued on: January 31, 2002.
Mary E. Peters,
Federal Highway Administrator.
Jennifer L. Dorn,
Federal Transit Administrator.
The text of the revised guidance for implementing the March 1999
Circuit Court decision affecting transportation conformity and dated
January 2, 2002 reads as follows:
Information
Revised Guidance for Implementing the March 1999 Circuit Court Decision
Affecting Transportation Conformity, HEPN-10
Mary E. Peters, Administrator, FHWA
Jennifer L. Dorn, Administrator, FTA
FHWA Division Administrators
Federal Lands Highway Division Engineers
FTA Regional Administrators
On March 2, 1999, the United States Court of Appeals for the
District of Columbia Circuit issued a decision on EPA's August 1997
transportation conformity amendments in response to a case brought by
the Environmental Defense Fund. The EPA will be providing revised
conformity regulations that implement this ruling in the near future.
This memorandum supersedes and replaces all previous FHWA and FTA
guidance implementing this ruling, including the Additional
Supplemental Guidance issued on June 18, 1999. The FHWA and FTA
consulted with EPA on the development of this guidance. This guidance
does not supersede any existing settlement agreements that address this
subject. In addition, guidance on other issues addressed by the March
1999 court decision can be found in EPA's ``Conformity Guidance on
Implementation of March 2, 1999 Conformity Court Decision,'' published
on May 14, 1999 (http://www.epa.gov/otaq/transp/conform/epaguidf.pdf).
Projects That Can Proceed During a Conformity Lapse
The court decision held that projects that had previously been
found to conform and had completed the National Environmental Policy
Act (NEPA) process (``grandfathered'' projects) may not be advanced
(that is, such projects should not be approved) in nonattainment and
maintenance areas which do not have a currently conforming
transportation plan and transportation improvement program (TIP). Thus,
in such areas, no new approvals or grants for further development of
projects (i.e., NEPA, final design, right-of-way acquisition, or
construction) should be made. The only projects which can receive
further approvals or grants during a plan and TIP conformity lapse are:
(1) Projects exempt from the conformity process; and (2) transportation
control measures (TCMs) which are included in an approved State
implementation plan (SIP).
A non-exempt project is any project that is not listed as exempt in
the transportation conformity rule at 40 CFR 93.126 or 93.127, or the
project is not a TCM in an approved SIP.
For FHWA-funded projects, project phases (i.e., design, right-of-
way acquisition, or construction) that received funding commitments or
an equivalent approval or authorization prior to a conformity lapse may
continue during the lapse. The execution of a project agreement (which
includes Federal approval of the plans, specifications, and estimates)
indicates funding commitment.
For FTA, the largest projects are handled with a full funding grant
agreement (FFGA). If the FFGA was executed prior to a conformity lapse,
the project can continue to utilize Federal funding during the lapse.
If the FFGA was not completed by the date of the lapse, the project
sponsor may only complete the current stage of project development
(e.g., final design or land acquisition), but may not use Federal funds
to proceed further. Transit projects not handled with FFGAs may proceed
during a lapse if, prior to the lapse, FTA approved a grant and the
project sponsor awarded a contract for construction or vehicle
acquisition. If a local contract was not approved by the date of the
lapse, the project sponsor may only complete the current stage of
project development with Federal funds.
Subsequent phases of a project for which FHWA or FTA has not taken
an approval action or awarded a grant may not proceed in the absence of
conformity. For transportation project phases not requiring a project
specific project agreement/authorization approval, the State or local
transportation agency should not take any action committing the State
or local agency to proceed with the project phase during a lapse unless
the project phase had already received full approval or authorization
for funding before the lapse.
Preliminary engineering for project development activities that are
necessary to assess social, economic, and environmental effects of the
proposed action or alternatives as part of the NEPA process for a non-
exempt project may continue during the lapse, according to 40 CFR
93.126. However, FHWA or FTA cannot approve a categorical exclusion,
finding of no significant impact, final environmental impact statement,
or a record of decision for a non-exempt project during a conformity
lapse. The NEPA process can be completed for exempt projects and TCMs
in an approved SIP during a conformity lapse.
When a community is facing a conformity lapse within 6 months,
FHWA, FTA, and EPA will meet and jointly evaluate the potential
consequences of the lapse and assess any concerns. The FHWA, FTA, and
EPA will meet at least 90 days before a conformity lapse to determine
which projects could receive funding commitments before the lapse, and
which projects could potentially be delayed, and the actions that would
be necessary to correct the lapse. In preparation for these
discussions, FHWA and FTA offices, in consultation with project
sponsors, should review the current TIP to identify the current status
of development of non-exempt projects being advanced in the
nonattainment or maintenance area. As you know, some nonattainment
areas include more than one metropolitan planning organization (MPO).
When a conformity lapse is imminent, FHWA Division Administrators
and FTA Regional Administrators shall notify the Governor or the
Governor's designee immediately to inform him/her of the consequences,
and potential solutions to minimize disruptions to the transportation
programs in the respective nonattainment and maintenance areas. The
FHWA and FTA will consult with EPA regional offices before notifying
the Governor or the Governor's designee of conformity consequences and
solutions.
Coordination between FHWA, FTA and EPA prior to a conformity lapse
is detailed in the April 19, 2000, National Memorandum of Understanding
(MOU) Between the U.S. DOT and the U.S. EPA (http://www.fhwa.dot.gov/environment/cnfmou.htm). Appendix A of the MOU also discusses how to
meet the transportation planning requirements during a lapse in order
to continue funding exempt projects and TCMs until conformity is
reestablished. Therefore, in the event of a conformity lapse, an MPO
must create an interim plan and TIP for any projects that can be
federally-funded and approved during the lapse, including exempt
projects and
[[Page 5885]]
TCMs in an approved SIP. Please see the MOU for more information
regarding the requirements for including projects in an interim plan
and TIP.
Other Issues
To address other issues related to the Court ruling, on May 14,
1999, EPA issued ``Conformity Guidance on Implementation of March 2,
1999 Conformity Court Decision'' which provides more details about
using submitted budgets, projects requiring Federal approval, non-
Federal projects, SIP disapprovals, and reallocation of a SIPs safety
margin. Areas should reference this guidance for specific information
on these other issues. The EPA, in coordination with DOT, will be
working to formalize the guidance through the rulemaking process to
amend the conformity regulation.
If you have questions on this guidance, please contact Ms. Cecilia
Ho (202) 366-9862 or Mr. Gary Jensen (202) 366-2048 of FHWA, or Mr.
Abbe Marner (202) 366-4317 of FTA.
cc: Directors of Field Services
[FR Doc. 02-2957 Filed 2-6-02; 8:45 am]
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