[Federal Register Volume 67, Number 183 (Friday, September 20, 2002)]
[Proposed Rules]
[Pages 59219-59225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23699]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 450 and 1410
Federal Transit Administration
23 CFR Part 1410
49 CFR Parts 613 and 621
[FHWA Docket No. FHWA-99-5933]
RIN 2125-AE62; FTA RIN 2132-AA66
Statewide Transportation Planning; Metropolitan Transportation
Planning
AGENCIES: Federal Highway Administration (FHWA), Federal Transit
Administration (FTA), DOT.
ACTION: Partial withdrawal of notice of proposed rulemaking (NPRM).
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SUMMARY: This document partially withdraws the proposed rulemaking in
which the agencies proposed to amend its requirements on statewide and
metropolitan planning (65 FR 33922, May 25, 2000; comment period ended
at 65 FR 41891, July 7, 2000). This partial withdrawal is based on the
level of critical comment received, the development of alternative
means for implementing the topics addressed in the NPRM and the
pendency of reauthorization of the surface transportation program. The
agencies are withdrawing this rulemaking except for those sections that
relate to ``consultation with non-metropolitan local officials'' which
are addressed in the SNPRM published on June 19, 2002, at 67 FR 41648.
FOR FURTHER INFORMATION CONTACT: For the FHWA: Mr. Sheldon M. Edner,
Metropolitan Planning and Policies Team (HEPM), (202) 366-4066
(metropolitan planning), Mr. Dee Spann, Statewide Planning Team (HEPS),
(202) 366-4086 (statewide planning), or Mr. Reid Alsop, Office of the
Chief Counsel (HCC-31), (202) 366-1371. For the FTA: Mr. Charles
Goodman, Metropolitan Planning Division (TPL-12) (metropolitan
planning), (202) 366-1944, Mr. Paul Verchinski, Statewide Planning
Division (TPL-11) (statewide
[[Page 59220]]
planning), (202) 366-1626, or Mr. Scott Biehl, Office of the Chief
Counsel (TCC-30), (202) 366-0952. Both agencies are located at 400
Seventh Street, SW., Washington, D.C. 20590. Office hours for the FHWA
are from 7:45 a.m. to 4:15 p.m., e.t., and for the FTA are from 8:30
a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: Internet users may access all comments
received by the U.S. DOT Dockets, Room PL-401, by using the universal
resource locator (URL): http://dms.dot.gov. It is available 24 hours
each day, 365 days each year. Please follow the instructions online for
more information and help.
An electronic copy of this document may be downloaded using a
computer, modem and suitable communications software from the
Government Printing Office's 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.
Background
Sections 1203, 1204, and 1308 of the Transportation Equity Act for
the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, amended
23 U.S.C. 134 and 135, which require a continuing, comprehensive, and
coordinated transportation planning process in metropolitan areas and
States. Similar changes were made by sections 3004, 3005, and 3006 of
the TEA-21 to 49 U.S.C. 5303-5306 which address the metropolitan
planning process in the context of the FTA's responsibilities. In
addition section 5206(e) of the TEA-21 directed that all intelligent
transportation system (ITS) improvements funded with highway trust fund
monies (including those from the mass transit account) be consistent
with the national ITS architecture.
The FHWA and the FTA published a notice of proposed rulemaking on
May 25, 2000 (65 FR 33922); that detailed proposed revisions to the
existing planning regulations 23 CFR part 450. Comments were solicited
by August 23, 2000 (later extended to September 23, 2000; July 7, 2000
65 FR 41891). We are also terminating a related rulemaking dealing with
revisions to regulations regarding the implementation of the National
Environmental Policy Act (NEPA) for projects funded or approved by the
FHWA or the FTA, which was proposed simultaneously with the planning
NPRM in a separate document, published elsewhere in today's Federal
Register.
A companion NPRM for the Intelligent Transportation System
Architecture (ITS) and Standards, 23 CFR parts 655 and 940 was
published on May 25, 2000, at 65 FR 33994. A final rule was published
on January 8, 2001, at 66 FR 1446. Efforts were made to coordinate
development of the ITS and planning rules, specifically with regard to
the requirement for an ``ITS integration strategy'' as proposed in 23
CFR 1410.322(b)(11) of the planning NPRM.
The comments discussed below indicated a substantial diversity of
opinion from a wide variety of interests, including environmental
groups, transit organizations, the State Departments of Transportation,
and metropolitan planning organizations. In the Fall of 2000, a series
of congressional hearings raised additional issues that we have
reviewed. Based on the comments received, the time elapsed since
publication and the close proximity of reauthorization of the surface
transportation program we have decided to partially withdraw the
proposed rules and rely in the interim on both existing regulatory and
TEA-21 statutory requirements (e.g. Federal certifications of
Transportation Management Areas, Metropolitan/State Federal Planning
Findings, etc.) as well as non-regulatory approaches to implement the
TEA-21 planning provisions, such as reinforcing compliance through
workshops, pilot activities, case studies, information sharing and
selective enforcement of compliance with existing FHWA and FTA
regulations and enforcement tools on a case-by-case basis. However, we
are not withdrawing the portions of the May 2000 planning NPRM as they
pertain to consultation with non-metropolitan local officials. We are
addressing that issue in a separate SNPRM published previously in the
Federal Register.
The Statewide Metropolitan Planning regulation at 23 CFR 450,
continues in force except as modified by Transportation Equity Act for
the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107, June
1998).\1\
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\1\ For guidance on implementing the provisions of the TEA-21
please see the memorandum, dated February 2, 2001, entitled
``Implementing TEA-21 Planning Provisions'' available at the
following URL: http://www.fhwa.dot.gov/hep/tea21mem.htm.
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Discussion of Comments on the NPRM
After reviewing the comments submitted in response to the NPRM, the
FHWA and the FTA have decided to partially withdraw our rulemaking on
this issue. As indicated earlier the extent of controversy, the
divergence of opinion and the close proximity of reauthorization all
suggest withdrawal of the proposed rules except the section that
addresses consultation with non-metropolitan local officials. We will
reconsider the possibility of issuing regulations after reauthorization
of the surface transportation program. During the comment period on the
proposed rules, the FTA and the FHWA held seven public meetings to
present information on the NPRM. Comments were not solicited at those
meetings. Attendees were encouraged to submit all comments to the
docket. However, a summary of questions raised at the meetings and the
general responses of the FHWA and the FTA presenters is included in the
docket.
In addition the FTA and the FHWA responded to requests for
presentations at several meetings during the comment period of the
NPRMs. The agencies made the following presentations: Texas Planning
Conference, Alaska (arranged teleconference), Michigan, Florida, and
the Association of Metropolitan Planning Organizations policy
conference. A summary of all comments by section of the NPRM has been
prepared by the FHWA and the FTA and inserted in the docket. We have
carefully reviewed all comments.
During the comment period (on September 12 and 13, 2000), the
Senate Environment and Public Works and the House Transportation and
Infrastructure Committees held hearings regarding the NPRMs. The FHWA
and the FTA have reviewed the comments and questions raised at the
hearings.
Summary of Comments Received
There were approximately 425 documents (representing just over 300
discrete comments when form letters from multiple groups and
individuals are accounted for) submitted to the docket for the planning
NPRM. The comments were distributed among types of organizations as
indicated below. We received diverse and, even, opposing comments.
General comments concerning the rule are addressed initially, followed
by specific responses to individual sections of the regulatory
proposals. We received comments from the following:
Interest groups and associations--69
Businesses--2
Congressional--1
Federal agencies--7
Local governments--34
Metropolitan Planning Organizations--70
Private individuals--14
Regional Councils--44
State DOTs--52
Other State agencies--17
Transit agency--16
Tribes and tribal organizations--11
[[Page 59221]]
Distribution Table
The NPRM proposed renumbering of 23 CFR part 450 as 23 CFR part
1410 and amending Chapter VI of Title 49 CFR by removing part 613 and
adding part 621. We did not receive any comments on this proposal.
Section-by-Section Discussion of the Comments
The discussion in this section presents comments received on
specific sections.
Section 1410.100 Purpose
No comments were received on this section.
Section 1410.102 Applicability
We did not receive any comments on this section
Section 1410.104 Definitions
We received a comment from a State DOT that the regulations should
define 'transportation control measures (TCM)'' to include only those
projects included in the State implementation plan ( SIP). It was our
intent in the NPRM that TCMs be defined to include only those measures
that are specifically identified and committed to in the applicable
SIP. The definition used in the NPRM was taken from the transportation
conformity rule for consistency.
A State DOT suggested that ``systematic process'' be dropped from
the definition of ``congestion management system (CMS).''
More than twenty discrete comments were received on the proposed
definition of ``consultation;'' opposed and supportive. Representatives
of Indian Tribal Governments proposed revised wording to address the
issue concerning consultation with Indian Tribal Governments. Numerous
comments were received suggesting minor revisions to our proposed
definition of ``coordination.''
Definitions for ``design concept,'' ``design scope,'' ``federally
funded non-emergency transportation services,'' ``financial estimate,''
and ``freight shipper'' were included in the NPRM. One commenter
observed that the definition of design concept was too restrictive for
attainment areas and proposed modification. A suggestion to define
financial estimates in precise detail was offered.
One commenter suggested revising the term ``Governor'' by adding
``or designee'' in the definition. A proposal to clarify ``ITS
Integration Strategy'' was offered by the Intelligent Transportation
Society of Maryland. A similar proposal was made by a State DOT for
``illustrative projects.''
Several commenters, primarily State DOTs and MPOs, observed that
the terminology ``interim plan and TIP'' was either not necessary or
confusing.
One commenter offered the idea that the definition of MPO needed
emphasis on the policy body as the MPO. Approximately five commenters
suggested that the term ``most recent assumptions'' be tied to a
statutory definition or left to the MPO to determine. A few comments
were offered to modify the term ``provider of transportation freight
services.
Several commenters raised questions concerning the prohibition
against extensions in nonattainment areas and limitation in attainment
areas.
The TEA-21 Negotiated Rulemaking Committee--Tribal Caucus suggested
that the definition should allow a tribal government to request
designation as a transportation management area (TMA).
A suggestion to modify the point at which the twenty-year period
commenced was offered by a commenter. A proposal to drop the
terminology ``or special census as appropriate'' from the definition of
urbanized area was offered.
Proposals from State DOTs and MPOs were offered to define the terms
``comprehensive update,'' ``project phase,'' ``planning process
participants,'' and ``conformity freeze.''
The environmental justice elements of the NPRM generated a great
deal of comment. One common thread in these comments was the suggestion
that key terms be defined.
Subpart B--Statewide Transportation Planning and Programming
Section 1410.200 Purpose
One State DOT observed that this section should emphasize ``general
strategies'' to serve operations and management since the statewide
plan can be a policy plan. Another commenter observed that this section
should reference ``multimodal,'' as well as ``intermodal.''
Section 1410.202 Applicability
One commenter asked that this section acknowledge the possibility
of other agencies being designated by the Governor as participants in
the planning process.
Section 1410.204 Definitions
No comments were received on this section.
Section 1410.206 Statewide Transportation Planning Process Basic
Requirements
We received over fifty comments from advocacy groups, professional
groups, State DOTs, State agencies and MPOs on this section. The
comments were split between two clear poles: a general perception that
the NPRM did not go far enough to demonstrate how MPOs and State DOTs
can achieve environmental justice goals and a line of reasoning that
suggests that the proposed requirements were too detailed and
burdensome. In the latter instance, a companion argument was offered
frequently that the NPRM confused the principles of environmental
justice with the principles of Title VI of the Civil Rights Act (42
U.S.C. 2000d-1).
Section 1410.208 Consideration of Statewide Transportation Planning
Factors
Three general themes emerged from the comments submitted on this
section: (1) Guidance on the compliance with the seven planning factors
should be minimal and tied to best practices and good examples; (2) the
term ``planning process participants'' was too vague; and (3) proposed
section 1410.208(b) was unnecessary.
Section 1410.210 Coordination of Planning Process Activities
We received several comments from local government officials, State
DOTs, and advocacy groups regarding this section, generally seeking to
modify key relationships or add entities for coordination. One
commenter suggested that we change coordination to ``consultation'' or
``communication'' where other States or countries are involved. Another
commenter suggested adding Indian Tribal Governments to the entities
involved in coordination and several commenters proposed more
specificity of coordination procedures for clarity.
We also received comments requesting clarification of the proposed
rule as to the application of transportation conformity to the
statewide transportation planning process.
Section 1410.212 Participation by Interested Parties
We received over 150 comments from State DOTs, local governments,
advocacy organizations and others on this section. The bulk of them
focused on the issue of consultation with non-metropolitan local
officials. We have addressed this issue in a separate SNPRM published
previously in the Federal Register as noted above.
One tribal government suggested that we use negotiated rulemaking
procedures for tribal governments in the completion of the rulemaking
process.
[[Page 59222]]
Section 1410.214 Content and Development of Statewide Transportation
Plan
Two new sections were proposed to reflect legislative changes: ITS
and optional financial plan. Approximately twenty-five comments from
State DOTs, MPOs and professional associations were submitted on the
ITS architecture proposal. The comments on the ITS provisions were
generally split between supporting the proposal and opposing it based
on a perceived additional burden. Some commenters felt that the
strategy of main streaming ITS investments in this fashion and dealing
with them as part of the planning process would not permit technology
to be implemented in a timely fashion. Some DOTs observed that the
burden of getting agreements signed with all implementers was too
great.
Comments on the financial plan provisions of this section were
generally focused on understanding how this plan related to the
financial plan required of MPOs. The commenters were looking for
clarification of intent and requirement.
Section 1410.216 Content and Development of Statewide Transportation
Improvement Program (STIP)
Three general comments were raised regarding the requirement for
financial estimates to support the MPO plan and TIP development. State
DOTs questioned the inclusion of the transit operator as a party to the
estimate development as being beyond statutory requirement. At least
two commenters questioned what the time frame should be for developing
estimates. Finally, one commenter questioned the extended authority
given to the State to develop the estimates.
One commenter suggested that the provisions of Sec. 1410.216(b) be
revised to require participation by agencies based on ownership or
degree of environmental impact. It was suggested also that this
involvement be extended to environmental restoration or enhancement
projects. Three general threads of commentary were offered on Sec.
1410.216(c). State DOTs and some MPOs questioned the identification of
ITS projects on several grounds, most notably the burden of clearly
identifying them. The general need for this section was also
questioned. Finally, several commenters wanted clarification of the
term ``project phase.''
Several comments were raised regarding the level of detailed
information required for a TIP, especially with regard to categories of
funding sources for projects. A significant battery of comments was
offered regarding the role of Indian Tribal Governments in the STIP
development process. One Indian tribe suggested the idea that Tribal
Governments should be included with those agencies regularly informed
regarding the STIP development process.
A Tribal Government representative suggested that Indian Tribal
Governments should be included in those cooperating agencies that must
be consulted in STIP modification procedures.
Section 1410.218
This section addressed revisions made as a result of the
replacement of the Major Investment Study requirement. The discussion
of comments received is found under section 1410.318 below.
Section 1410.220 Funding of Planning Process
A tribal government suggested that tribal governments should be
identified among the participants eligible to receive funds.
Section 1410.222 Approvals, Self-Certification and Findings
Three general areas of comment for this section appear in the
docket: (1) The FHWA and the FTA should be able to approve TIP/STIP
extensions; (2) tribal governments should be afforded an expanded role
in TIP/STIP development; and (3) the environmental justice provisions
should be more explicitly spelled out. Many State DOTs and MPOs
requested that STIP/TIP extensions be allowed in nonattainment and
maintenance areas.
Section 1410.224 Project Selection
One set of commenters requested the addition of tribal governments
to those with selection authority. One commenter questioned whether the
language of this section permits the unrestricted movement of projects
across all three years of a STIP. Finally, a commenter felt that this
section continues to remain unclear.
Section 1410.226 Applicability of NEPA to Transportation Planning and
Programming
We did not receive any comments on this section.
Subpart C--Metropolitan Transportation Planning and Programming
Section 1410.300 Purpose of Planning Process
One commenter suggested that this section should recognize that one
purpose of the metropolitan planning process is to plan transportation
systems that will minimize transportation related fuel consumption and
air pollution.
Section 1410.302 Organizations and Processes Affected by Planning
Requirements
One commenter suggested that the preamble does not explain why the
reference to project selection was proposed to be dropped from the
regulation since this is the link between programming and the actual
receipt of Federal funds.
Another commenter wanted us to add the following language: ``the
provisions of this subpart are applicable to agencies responsible for
satisfying the requirements of the transportation planning, programming
and project development processes in metropolitan areas pursuant to 23
U.S.C. 134 and 49 U.S.C. 5303-6.''
Section 1410.304 Definitions
We did not receive any comments on this section.
Section 1410.306 What Is a Metropolitan Planning Organization and How
Is It Created?
Comments on this section tended to focus on MPO policy board
membership issues regarding representation (elected officials and
operators of major modes of transportation) and opposing or favoring
the proposed changes regarding multiple MPOs in a single metropolitan
area. Several MPOs offered the idea that MPO policy board membership
should favor elected officials. These individuals also tended to oppose
providing representation for operators of major modes of
transportation.
The MPO commenters addressing the matter of multiple MPOs tended to
support the NPRM proposal that would reduce the possibility of such
designations.
Section 1410.308 Establishing the Geographic Boundaries for
Metropolitan Transportation Planning Areas
Only one comment was made on this section and it favored the
language as proposed.
[[Page 59223]]
Section 1410.310 Agreements Among Organizations Involved in the
Planning Process
The comments received on this section tended to focus on the
addition of the ITS agreement to the list of agreements already
contained in this section. The concerns ranged from the necessity of
adding an agreement to the need for additional guidance on what should
be addressed in the agreement. Some commenters, typically professional
association and ITS oriented groups, supported the provision, others
(often MPOs and State DOTs) objected to it. Some comments questioned
whether an MPO would have the staff to conduct needed work. Bringing
the operating agencies to the planning process was raised also as a
concern, largely in terms of the potential to add to the burden of
coordination and slow down the planning process.
Several commenters addressed the proposed provisions regarding an
agreement on ITS policy and operational issues. One commenter felt that
the agreement strategy was unrealistic and potentially destructive in
terms of promoting ITS. The comments provided suggested that the U.S.
DOT take a leadership role in promoting approaches to main streaming
ITS, rather than relying on individual localized approaches.
Section 1410.312 Planning Process Organizational Relationships
One commenter suggested that the records of agreements should be
made available to the public. Another comment observed that the transit
agency should not be on equal footing with MPOs and State DOTs in
concluding agreements.
Section 1410.314 Planning Tasks and Unified Work Program
We received less than ten comments on this section. One commenter
suggested that the unified planning work program (UPWP) should be more
of a policy document. Another letter suggested that the States should
be held to the same standard as MPOs. Finally, another commenter said
that the requirement for consultation with the U.S. Environmental
Protection Agency (EPA) in nonattainment areas is inappropriate and
will lead to time delays.
Section 1410.316 Transportation Planning Process and Plan Development
The environmental justice aspect of this section received the bulk
of comments. Over fifty separate commenters submitted suggestions for
change. Few, if any, commenters were content with the proposed wording
as published. The majority of comments, typically from MPOs, and State
DOTs, tended to suggest that the proposal was burdensome, unclear,
insufficient, potentially subject to unending litigation, and confusing
in terms of the relationship between Title VI and environmental
justice.
A second area of major comment was the public involvement
provision. Generally, there was support for these provisions. Some
suggestions, from interest groups and citizens, were offered for
greater precision in requirements, most notably regarding documentation
of response to comments, definitions of key groups afforded opportunity
to participate, and evaluation of processes.
The planning factor provisions attracted a few comments. A couple
of comments supported the development of performance standards for
addressing the factors. One letter asked that we identify the rationale
for the planning process to identify strategies for complying with the
Americans with Disabilities Act (ADA)(42 U.S.C. Chapter 126). Another
letter recommended a two year phase-in for consultation with Indian
tribal governments. Finally, a comment from an MPO wanted to know if
TIP amendments are adopted that trigger a reference to existing plans,
even though less than twenty years remains on its horizon, the plan
should be acceptable as a basis for Federal action.
Section 1410.318 Relation of Planning and Project Development Processes
State DOTs, MPOs, environmental groups and transit agencies
submitted comments on this section, generally reflecting diverse policy
perspectives in favor or against the proposals. The clear intent of
section 1308 of the TEA-21 was to direct the Secretary to eliminate and
propose an alternative to the separate major investment study (MIS)
requirement. The technical structure of the law is such that this
action requires a two step process: (1) Eliminating and (2) proposing
an approach for integrating what remains. In withdrawing portions of
the NPRM, the FHWA and the FTA cannot complete both steps. Hence, the
agencies see the current regulatory language as a place holder that can
be utilized at the discretion of State and local agencies as they see
the need until future action on a rule. Implementation of the
provisions of this section by the FTA and the FHWA will be
appropriately flexible.
Section 1410.320 Congestion Management System and Planning Process
The FHWA and the FTA received no adverse comment on this provision
as discussed in the NPRM. A couple of commenters supported the change.
Section 1410.322 Transportation Plan Content
We received a significant number of comments on this section.
Topics most frequently addressed were the twenty year planning horizon
for plans, most recent planning assumptions, how to address operations
and management, the treatment of illustrative projects, the ITS
integration strategy, interim plans and TIPs, and point of conformity
determination. Each of these topics provoked a variety of comments.
The twenty year planning horizon was both praised and criticized.
The NPRM sought to provide clarification for a conundrum identified in
the course of implementing the 1993 regulation. The TIPs must be
updated on a two year cycle; plans on three and five year cycles.
A number of comments were received on various air quality related
issues. One concern, voiced by State DOTs and MPOs, was the effective
date of the plan, which was tied by the rule to the date of the Federal
air quality conformity determination. Another set of observations
questioned the need for utilizing latest planning assumptions. One
commenter raised concerns about maintaining air quality rather than
just achieving the air quality budget. Some commenters raised questions
concerning air quality issues beyond the time frame for the SIP and
finally, one commenter raised a concern regarding air toxics and fine
particulate matter.
One comment requested that the EPA, the FHWA, and the FTA be
required to adhere to a reasonable time frame for conformity review and
determination. The April 19, 2000, National Memorandum of Understanding
(MOU) between the U.S. DOT and the U.S. EPA \2\ makes provisions for
more efficient and timely review of conformity decisions, including the
establishment of time frames for field office review, as well as a 30-
day dispute resolution process.
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\2\ The memorandum, entitled ``National Memorandum of
Understanding Between the U.S. Environmental Protection Agency and
the U. S. Department of Transportation,'' dated April 19, 2000, is
available at the following URL: http://www.fhwa.dot.gov/environment/cnfmou.htm.
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Some comments were received on the mismatch of the transportation
planning and air quality planning horizons.
[[Page 59224]]
Two comments were received stating that there was no statutory
basis for requiring the use of the most recent planning assumptions.
There is a statutory basis for requiring the use of the most recent
planning assumptions in the Clean Air Act (CAA) (42 U.S.C. 7506) which
requires that the determination of conformity be based on the most
recent estimates of emissions, and that such estimates be determined
from the most recent population, employment, travel and congestion
estimates as determined by the metropolitan planning organization or
other agency authorized to make such estimates.
One commenter stated that in Sec. 1410.322(b)(10) the last
sentence should be revised to read ``* * * implementation of projects
and programs to reach or maintain air quality compliance.''
Two comments were received regarding the role of the MPO in the air
quality planning process. We received one comment requesting that the
rules address health risks from air toxics and fine particulate matter.
One final air quality conformity issue of significance was the need
for an interim plan. Many comments were received questioning the need
for an interim planning process during a conformity lapse or requesting
more flexibility in the process.
One comment requested that the rule allow new submitted, but not
yet approved by the U.S. EPA, TCMs to proceed during a conformity
lapse. The April 19, 2000, National Memorandum of Understanding between
the U.S. DOT and the U.S. EPA details how new TCMs should advance
during a conformity lapse. New TCMs must have identified emission
reduction benefits, be included in an interim plan/TIP and the U.S. EPA
approved SIP, and meet the definition of a TCM in order to advance
during a conformity lapse.
Several commenters, MPOs and State DOTs, solicited additional
clarification on how management and operations would be treated during
the planning process.
The term ``illustrative project'' and its usage in the NPRM
attracted considerable attention and comment. Most commenters wanted
additional clarification of the term and how illustrative projects
would be treated in a plan and TIP. The cooperative development of
estimates of various funds to support plan and TIP development received
several significant comments. Many writers wanted substantial
additional guidance on how such estimates should be developed and the
reconciliation of potential conflicts between the participating
entities. One principal concern of some commenters was the fear that a
single entity might be able to hold all other planning participants
hostage over the development of these estimates.
The ITS integration strategy proposal attracted significant comment
both in character and number. The concerns raised were varied. Some
commenters wanted greater clarification and detail in the regulatory
requirements. Others, often MPOs and State DOTs, thought they were too
restrictive and burdensome. There was some concern about how the ITS
architecture provision would relate to operations and management. A
couple of commenters, associations and groups, expressed the desire to
have the regulations identify the lead agency and many wanted
additional funding to support the development of the ITS integration
strategy. A common concern, expressed by DOTs and MPOs, was the need
for a longer phase-in period for the requirement.
The need to identify ITS investments in TIPs and plans was
questioned by ITS groups and interests.
Section 1410.324 Transportation Improvement Program Content
This section received the largest number of comments. The bulk of
these comments focused on the exemption of 23 U.S.C. 402, Safety and
Motor Carrier Safety Assistance Programs, from inclusion in the TIP,
financial forecasts, air quality issues and the annual listing of
projects. These comments typically came from law enforcement officials
and safety groups.
The planning NPRM proposed to eliminate the exclusion for Section
402 Safety and Motor Carrier Safety Assistance Program (administered by
the Federal Motor Carrier Safety Administration) grants from listing in
the TIP/STIP. The rationale was that these funds could be used to fund
ITS projects and such projects would need to be in TIPs/STIPs for the
purposes of the ITS architecture consistency requirements. Numerous
safety organizations observed that the bulk of the projects funded by
these programs have nothing to do with ITS.
Some MPOs and State DOTs suggested that extensions be permitted for
TIPs in both attainment and nonttainment areas.
A number of comments were received that requested more flexibility
in the application of transportation conformity to TIP amendments. In
accordance with the transportation conformity rule (40 CFR 93.104), a
conformity determination must be made for a TIP amendment and/or a plan
revision.
The provisions governing the financial forecasting requirements of
the TEA-21 received numerous comments. Perspectives ranged from a
request for far more detail in the process specified to far less.
Concerns were raised about guarantees that estimated funds would be
available and that the reliance on a process specification was
inconsistent with the statute. Several commenters wanted the procedures
and estimates governed by some form of documentation, i.e., an MOU,
specification in plan documents or some other means. Requests were made
for additional guidance and some questions were raised as to why
transit operators were accorded equal footing with MPOs and States.
The annual listing of projects provisions was the most heavily
commented upon in this section. Again, the comments were diverse, split
along the lines of whether additional specification of detail was
needed. Most States and MPOs believed that the requirement was not
easily implemented based on the lack of a centralized data base from
which obligations could be identified. Many observed that the Federal
agencies could obtain that information from the FHWA Fiscal Management
Information System (FMIS). A large number of non-governmental
organizations and citizen advocacy groups supported a very detailed and
standardized data collection protocol that in their view would allow
citizens greater access to information, more complete understanding of
what was funded and the ability to do useful comparisons on a national
basis. They also argued that their model would permit more effective
documentation of compliance with environmental justice requirements.
Section 1410.326 Transportation Improvement Program Modification
Several comments were received regarding the need for a new
conformity determination when a project is moved between the first
three years of a TIP, or moved from year four or greater to the first
three years.
Section 1410.328 Metropolitan Transportation Improvement Program
Relationship to Statewide TIP
No comments were received on this section.
Section 1410.330 Transportation Improvement Program Action by FHWA/FTA
One comment was received requesting clarification as to who
[[Page 59225]]
should communicate with the Governor in the event that a conformity
determination cannot be made. A couple of comments were received
suggesting that ``illustrative projects'' should be able to complete
the NEPA process before inclusion in a plan. Some comments were
submitted on this section dealing with the issue of revenue estimation.
Section 1410.332 Selecting Projects From a TIP
No comments were received on this section.
Section 1410.334 Federal Certifications
The majority of comments, mostly from citizens and citizen groups,
received on this section generally favored a more prescriptive approach
to the involvement of the public during certification reviews. Their
proposal included a requirement for a public hearing, sixty-day notice
of when the review would be held, a forty-five day notice before the
public meeting for the certification review, and the maintenance of a
file of comments received by the MPO concerning its performance in the
current and prior two years.
Several commenters raised concerns with the provisions of Sec.
1410.334(a)(8) which directs that reviews be conducted consistent with
all other applicable provisions of Federal law. They requested that
such statutes be identified.
Conclusion
Given the diversity of comments and the disparity among them, the
agencies have concluded that a workable compromise built upon the
proposed planning rule is not identifiable at this time. Further, with
the close proximity of the reauthorization of the surface
transportation program, it is reasonable to wait for the outcome of the
legislative process to see if any further changes are needed. We will
review comments received on the SNPRM on the consultation with non-
metropolitan local officials, published previously in the Federal
Register and determine appropriate next steps on this matter. For these
reasons, the FTA and the FHWA are withdrawing this rulemaking action
except as it pertains to the consultation with non-metropolitan local
officials.
Authority: 23 U.S.C. 134, 135 and 315; 42 U.S.C. 7410 et seq.;
49 U.S.C. 5303-5309; 49 CFR 1.48 and 1.51.
Issued on: September 12, 2002
Jennifer L. Dorn,
Federal Transit Administrator.
Mary E. Peters,
Federal Highway Administrator.
[FR Doc. 02-23699 Filed 9-19-02; 8:45 pm]
BILLING CODE 4910-22-P