Regulatory & Legal Issues |
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[Proposed Rules]
[Page 59219-59225]
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Register Online via GPO
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[DOCID:fr20se02-23]
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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).
--------------------------------------------
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.archives.gov/federal_register/index.html
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\
--------------------------------------------------------
\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/environment/cnfmou.htm.
-------------------------------------------------------
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.
----------------------------------------------------
\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.
----------------------------------------------------------
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