MARC Home > Transportation Department > Transportation Studies > Notice of Proposed Rule Making
POSITION STATEMENT: NOTICE OF PROPOSED RULEMAKING
ISSUE: Cooperative Revenue Forecasting
Background
and Concerns:
For
the MPO financially constrained LRTP to be credible, the revenue forecasts
on which it is based must be reasonable. This requires states to assist MPOs in determining
the portion of a state's future federal funding that each region is likely
to receive. The NPRM mirrors the
wording of TEA-21 in this area, calling for states to work with MPOs and
transit operators to establish a cooperative process to estimate revenues
available for each MPO area.
MARC POSITION:
MARC
generally agrees with the NPRM language strengthening the rule to require
the states, transit operators, and MPOs to cooperatively establish a set
of procedures governing the projection of future revenues that will be
allocated to metropolitan areas in each state for both the LRTP and TIP. MARC believes that TEA 21 requires a more specifically defined
process for ensuring revenue forecasts used in financial plans flow from
a truly cooperative process. To this end, MARC believes the final rule must
incorporate the following requirements:
-
An agreed upon distribution of estimated future revenues to each MPO in the state;
-
A set of decision rules outlining the process for allocating funds and the range of certainty regarding estimated funding allocations. Such decision rules for allocation should be needs based, but also reflect the underlying rationale for the federal program;
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A process for resolving any disagreement among the parties regarding the estimating procedures or questions regarding compliance with agreed upon estimates;
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The agreed upon process and decision rules for cooperatively estimating revenues being outlined in a statewide memorandum of understanding between the state, transit operator(s), and the MPOs within each state; and
-
Compliance with the revenue estimation process being an explicit criteria in the regular certification review conducted by FHWA and FTA.
ISSUE:
Annual TIP Obligation Listing of Projects
Background
and Concerns:
TEA-21
requires MPOs to create an annual listing of projects for which federal
funds were obligated in the previous year, but MPOs do not have the authority
to make obligations, and often do not have access to this information.
MARC POSITION:
Production
of an annual obligation listing is an important part of feedback to the
public of the results of the transportation planning process. Language should be added to the NPRM to require project implementing
agencies (state DOTs and transit agencies) to:
-
develop project monitoring systems to track project obligations and status; and
-
provide information to MPOs so that region-wide listings can be made available to the public.
One possible approach would be to require MOUs to be developed among MPOs
and project implementing agencies, with provisions for a collaborative
approach to developing and disseminating the listings, and for a resolution
process for cases where MOUs are not developed or implemented to the satisfaction
of all parties.
ISSUE:
MPO & State Long Range Planning
Background
and Concerns:
LRTPs
are required to have a 20-year horizon; they are updated every five years
in attainment areas and every three years in maintenance and non-attainment
areas. If LRTP amendments (to
add non-exempt projects) or changes made to the STIP/TIP between updates
trigger a federal review of the LRTP, the NPRM requires that the plan
being reviewed still have a twenty-year horizon. The only way MPOs could avoid the possibility
of having to update their long range plan with every new TIP or LRTP amendment
would be to have long range plans with 23-year horizons in non-attainment
areas, and 25-year horizons in attainment areas.
MARC POSITION:
MPO
LRTPs should continue to have 20-year horizons; if TIP or LRTP amendments
trigger federal review, reviews should be done based on the existing long
range plans, even though there may be less than 20-years remaining to
the planning horizon.
ISSUE:
Environmental Justice
Background and Concerns
The
NPRM requires that the content of LRTPs and the plan development process
must be consistent with Title VI of the Civil Rights Act, the Older Americans
Act and the Americans with Disabilities Act. LRTPs must avoid or mitigate disproportionately
high and adverse impacts on low income and minority populations. The plan development process must seek out
and consider input from the transportation disadvantaged. The public involvement process must be evaluated
periodically with specific attention to engaging minorities and low income
persons, and must demonstrate that comments from minority, low income
and elderly communities, and from persons with disabilities, are explicitly
considered.
The NPRM does not give guidance as to how these requirements may be met,
nor do they set performance criteria. This is particularly problematic given the potential created by
the NPRM for MPO (and state) actions and decisions to be subject to legal
challenge under Title VI. Although
the NPRM includes wording to limit this possibility, previous court decisions
suggest that this wording will provide little if any protection from litigation.
In addition, the NPRM creates new definitions, rather than relying
on existing definitions - this, in itself, is likely to create more litigation
as courts seek to establish the meanings of the new definitions. An additional concern is that the lack of specific guidance is
likely to result in different parts of USDOT making different decisions
on environmental justice requirements.
MARC POSITION:
MARC
supports the intent of these changes, and also the specific requirements
with respect to data collection and analysis, and public outreach.
To create certainty and clarity, and to avoid the high potential for litigation
created by the NPRM proposals, the following additions and changes to
the NPRM should be made:
-
MPOs and states should be given explicit guidance on how to meet environmental justice objectives, and/or specific performance measures to meet.
-
Once a long-range plan, and the process followed to develop the plan, has been reviewed by USDOT and found satisfactory, USDOT should certify in writing that the plan meets federal environmental justice requirements.
-
The need for the new definitions found in the NPRM should be reviewed, and, where possible, replaced with definitions that have already been tested in the courts
ISSUE:
Air Quality Conformity
Background and Concerns:
The NPRM includes by reference the EPA conformity regulations as the basis for determining conformity on new LRTPs and TIPs. The current EPA conformity regulations provide a list of circumstances that could trigger new conformity determinations. However, this list does not explicitly address how EPA or USDOT might address several situations that the Kansas City region could experience in the future as a result of actions on the part of EPA. These include:
- a redesignation from maintenance to nonattainment;
- a designation on the basis of a pollutant
standard different than the pollutant standard upon which the approved
emissions budget is based; and
- an expanded air quality boundary.
Each of the cases noted above would require the development of a state implementation plan revision and a new emissions budget. What is not clear is whether or not the "currently conforming" LRTP and TIP would remain a "currently conforming" LRTP and TIP at the onset of these changing conditions and continue as such until a revised plan could be developed and approved. MARC supports the addition of language that would clarify how USDOT would view the standing of currently conforming transportation plans and programs under each of these or similar circumstances.
ISSUE:
MIS Replacement/NEPA
Background
and Concerns:
Under
TEA-21, the stand alone MIS is no longer a requirement of the MPO planning
process, and the planning and environmental processes are linked. The NPRM allows a great amount of local discretion in deciding
how much data and analysis is required at the planning stage, but provides
neither clear guidance on what amount of data and analysis is required
in order to satisfy NEPA demands, nor any assurance that planning studies
will be given sufficient weight in the NEPA process. The NPRM potentially allows a federal agency
to overrule a decision made through the MPO process at the planning stage. The result is that states and MPOs are still
likely to have to duplicate planning analyses at the NEPA level, and thereby
lose time and increase costs on projects, because there is no guidance
on what is acceptable at the NEPA level.
Some MPOs and State DOTs may decide to do very little analysis at the
planning stage, in order to minimize duplication at the NEPA stage. However, it is at the planning stage where many of the most creative
alternatives can be considered and where the public can most readily be
engaged and impact decisions; by the NEPA stage, there is typically significant
commitment to a more narrow range of options. Other MPOs and State DOTs may decide to do extensive analysis at
the planning stage, but this exposes them to substantial additional costs
and delays that may not be necessary, without any guarantee that their
additional work will provide them speedy passage through the NEPA process.
These problems could be avoided if the NPRM gave specific guidance on
the amount of analysis required by NEPA for different types of project. Alternatively, federal permit and resource agencies could commit
to participate in all planning studies to the extent necessary to give
guidance on the amount and type of analysis required to meet NEPA requirements. The NPRM encourages, but does not require early participation of
resource and permit agencies.
The NPRM refers only to cooperation among MPOs, state DOTs and transit
operators in project planning studies, and there is no specific reference
to MPOs as agencies that fully participate through the NEPA stage of a
project.
MARC POSITION:
The
NPRM does not provide much potential for streamlining, avoidance of duplication
and speeding up of projects. In order to minimize unnecessary work and to achieve streamlining
goals, language should be added to:
-
Provide more specifics on the requirements at the NEPA stage for different types of projects
-
Provide more specifics on the role envisioned for MPOs and state DOTs in planning specific types of project
-
Provide specifics on the treatment of secondary and cumulative impacts in the planning process
-
Add MPOs as agencies that are full participants through the NEPA stage of projects
-
Require, or provide greater incentives for, federal resource and permitting agencies to participate in the early planning of projects
ISSUE:
Intelligent Transportation Systems (ITS)
Background
and Concerns:
The
NPRM calls for:
-
development of a regional ITS integration strategy within 2 years, including identification of major ITS projects;
-
regional interagency agreements on interoperability, ITS standards and routine operations;
-
design of a regional ITS architecture that is compatible and interoperable with the national ITS architecture, within 2 years (this could be a state or MPO responsibility); and
-
that all highway and transit projects be consistent with regional ITS architecture.
The NPRM is not specific with regard to:
-
the role of states and MPOs respectively in developing regional architecture;
-
the degree to which relevant private sector organizations need to be involved in ITS integration strategy and regional architecture;
-
the relationship between ITS requirements and the MPO role in Management & Operations; and
-
key definitions, including "interoperability"
MARC POSITION:
MARC
supports a strong role for MPOs in the development of metropolitan ITS
strategies and regional interagency ITS agreements. Consideration should be given to:
-
providing additional funding to MPOs to allow them to fulfill their proposed ITS responsibilities; and
-
providing key definitions, including "interoperability."
ISSUE:
Consistent Public Involvement
Background
and Concerns:
MARC believes public involvement is a cornerstone
of the metropolitan planning process and efforts to expand the public
involvement process should continue. The NPRM includes provisions relating to "empowerment" of various
groups, which may be subject to inconsistent interpretation by the regulated,
the regulators, and the interest groups themselves.
MARC POSITION:
It would be appropriate for the rule to provide guidance on the definition of groups to be included, such as "low-income," and the geographic level of detail required for subsequent analysis. Similarly, "disproportionately high and adverse environmental impacts" should be defined to guide both MPOs and the FTA and FHWA staff who will perform certification reviews on the adequacy of the MPO process.