Federal Register, Volume 81 Issue 244 (Tuesday, December 20, 2016)


[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 93448-93473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30478]



[[Page 93447]]

Vol. 81

Tuesday,

No. 244

December 20, 2016

Part V





Department of Transportation





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Federal Highway Administration





23 CFR Part 450





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Federal Transit Administration

49 CFR Part 613





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Metropolitan Planning Organization Coordination and Planning Area
Reform; Final Rule

Federal Register / Vol. 81 , No. 244 / Tuesday, December 20, 2016 /
Rules and Regulations

[[Page 93448]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 450

Federal Transit Administration

49 CFR Part 613

[Docket No. FHWA-2016-0016]
FHWA RIN 2125-AF68
FTA RIN 2132-AB28


Metropolitan Planning Organization Coordination and Planning Area
Reform

AGENCY: Federal Highway Administration (FHWA), Federal Transit
Administration (FTA); U.S. Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule revises the transportation planning
regulations to promote more effective regional planning by States and
metropolitan planning organizations (MPO). The goal of the revisions is
to better align the planning regulations with statutory provisions
concerning the establishment of metropolitan planning area (MPA)
boundaries and the designation of MPOs.

DATES: This final rule is effective January 19, 2017.

FOR FURTHER INFORMATION CONTACT: For FHWA: Mr. Harlan W. Miller,
Planning Oversight and Stewardship Team (HEPP-10), (202) 366-0847; or
Ms. Janet Myers, Office of the Chief Counsel (HCC-30), (202) 366-2019.
For FTA: Ms. Sherry Riklin, Office of Planning and Environment, (202)
366-5407; Mr. Dwayne Weeks, Office of Planning and Environment, (202)
493-0316; or Mr. Christopher Hall, Office of Chief Counsel, (202) 366-
5218. Both agencies are located at 1200 New Jersey Avenue SE.,
Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m., ET for
FHWA, and 9 a.m. to 5:30 p.m., ET for FTA, Monday through Friday,
except Federal holidays.

SUPPLEMENTARY INFORMATION: This rule clarifies that an MPA must include
an entire urbanized area (UZA) and the contiguous area expected to
become urbanized within a 20-year forecast period for the metropolitan
transportation plan. The MPOs will have several options to achieve
compliance. The MPOs may need to adjust their boundaries, consider
mergers, or, if there are multiple MPOs designated within a single MPA,
coordinate with the other MPOs to create unified planning products for
the MPA. Specifically, the rule requires MPOs within the same MPA to
develop a single metropolitan transportation plan (MTP), a single
transportation improvement program (TIP), and a jointly established set
of performance targets for the MPA (referred to herein as unified
planning products). The rule also clarifies operating procedures, and
it adopts certain coordination and decisionmaking requirements where
more than one MPO serves an MPA. Requiring unified planning products
for an MPA with multiple MPOs will result in planning products that
reflect the regional needs of the entire UZA.
The final rule includes an exception that, if approved by the
Secretary, allows multiple MPOs in an MPA to continue to generate
separate planning products if the affected Governor(s) and all MPOs in
the MPA submit a joint written request and justification to FHWA and
FTA that (1) explains why it is not feasible for the MPOs to produce
unified planning products for the MPA, and (2) demonstrates how each
MPO is already achieving the goals of the rule through an existing
coordination mechanism with all other MPOs in the MPA that achieves
consistency of planning documents.
The final rule phases in implementation of these coordination
requirements and the requirements for MPA boundary and MPO jurisdiction
agreements, with full compliance required not later than 2 years after
the date the Census Bureau releases its notice of Qualifying Urban
Areas following the 2020 census.

I. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this rulemaking is to improve the transportation
planning process by strengthening the coordination of MPOs and States
and promoting the use of regional approaches to planning and
decisionmaking. To achieve this purpose, the rulemaking incorporates
the 23 U.S.C. 134 requirements that the boundaries of MPAs at a minimum
include an urbanized area in its entirety and include the contiguous
area expected to become urbanized within a 20-year forecast period for
the metropolitan transportation plan. The rule emphasizes the
importance of undertaking the planning process from a regional
perspective. The rule includes new coordination and decisionmaking
requirements for MPOs that share an MPA, to better ensure that
transportation investments reflect the needs and priorities of an
entire region. Recognizing the critical role MPOs play in providing for
the well-being of a region, this rule will strengthen the voice of MPOs
in the transportation planning process in a State by promoting unified
decisionmaking within an MPA and better-coordinated regional
decisionmaking so that the affected MPOs speak with ``one voice'' about
the area's transportation needs and priorities.

B. Summary of Major Changes Made to the Regulatory Action in Question

This final rule retains many of the major provisions of the NPRM.
The rule revises the regulatory definition of ``metropolitan planning
area'' to better align with the statutory requirements in 23 U.S.C.
134, specifically to require that the MPA, at a minimum, must include
the entire UZA and the contiguous area expected to become urbanized
within a 20-year forecast period for the metropolitan transportation
plan. Under this final rule, if compliance with the MPA boundary
requirements would result in more than one MPO in the MPA, the
Governor(s) and affected MPOs may decide it is appropriate for multiple
MPOs to serve the MPA because of the size and complexity of the MPA. In
such cases, the MPOs will need to jointly develop unified planning
products (a single MTP and TIP, and jointly established performance
targets). If the Governor(s) and MPOs do not decide to have multiple
MPOs serve the MPA, then the Governor(s) and the MPOs will consolidate
or establish or adjust conforming MPA boundaries for each MPO by
agreement. In response to comments received on the NPRM, FHWA and FTA
are making the following significant changes in the final rule:
1. Adding an exception to the requirements for unified planning
products. Section 450.312(i) allows multiple MPOs in an MPA to continue
to generate separate planning products if the exception is approved by
the Secretary. The exception is discussed in detail under Unified
Planning Products: Requirements and Exception in the ``Discussion of
Major Issues Raised by Comments'' section of this preamble.
2. Changing the time period for adjustment of MPA boundaries
following a decennial census, as required under Sec. 450.312(j) (as
redesignated in this rule) from 180 days to 2 years.
3. Extending the implementation period for MPA boundary and MPO
jurisdiction agreement provisions; documentation of the determination
of the Governor and MPO(s) that the size

[[Page 93449]]

and complexity of the MPA make multiple MPOs appropriate; and MPO
compliance with requirements for unified planning products. Compliance
is not required until the next MTP update occurring on or after the
date 2 years after the date the U.S. Census Bureau releases its notice
of Qualifying Urban Areas following the 2020 census. Historically, the
Census Bureau issues its notice approximately two years after the
census. This extension provides States and MPOs a substantial amount of
time to lay the groundwork for changes necessary to comply with the
rule. The compliance date for all other changes made by this rule is
the effective date of this rule.

C. Costs and Benefits

The FHWA and FTA believe that the benefits of the rule justify the
costs. The total costs for merging 142 MPOs,\1\ the cost of
transportation conformity adjustments, and the one-time cost of
developing a dispute resolution process results in an estimated maximum
average annual cost of this rule of $86.3 million. Since not all MPOs
will choose to merge and some may receive exceptions, this cost
estimate is conservative.
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\1\ The total number of MPOs is 409. The USDOT identified that
142 MPOs would be subject to this rulemaking by comparing current
MPO boundaries with current UZA boundaries. This comparison
identified a number of UZAs that included multiple MPOs as well
areas where a UZA had spread into the boundaries of adjacent MPOs.
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The FHWA and FTA were unable to quantify the benefits for this
rulemaking. The primary benefit of this rulemaking is to ensure that
the MPO(s) is making transportation investment decisions for the entire
metropolitan area as envisioned by the statute. If the MPOs within a
metropolitan area consolidate or develop unified planning products,
FHWA and FTA anticipate that the cost to develop the Metropolitan
Transportation Plan (MTP) for the metropolitan area would decrease. We
also expect this rule will result in some cost savings for State DOTs,
which will benefit from having fewer TIPs to incorporate into their
statewide transportation improvement programs (STIPs). There will also
be benefits to the public if the coordination requirements result in a
planning process in which public participation opportunities are
transparent and unified for the entire region, and if members of the
public have an easier ability to engage in the planning process.

II. Background

MPA and MPO Boundaries

The metropolitan planning statute defines an MPA as ``the
geographic area determined by agreement between the metropolitan
planning organization for the area and the Governor under subsection
[134](e).'' 23 U.S.C. 134(b)(1).\2\ The agreement on the geographic
area is subject to the minimum requirements contained in 23 U.S.C.
134(e)(2)(A), which states that each MPA ``shall encompass at least the
existing urbanized area and the contiguous area expected to become
urbanized within a 20-year forecast period for the transportation
plan.'' The MPA and MPO provisions in 23 U.S.C. 134 make it clear that
the intent for a typical metropolitan planning structure is to have a
single MPO for each UZA. However, the statute creates an exception in
23 U.S.C. 134(d)(7), which provides that more than one MPO may be
designated within an existing MPA if the Governor and the existing
MPO(s) determine that the size and complexity of the existing MPA make
designation of more than one MPO for the area appropriate. Title 23,
U.S.C. 134(d)(7) reinforces the interpretation that the norm envisioned
by the statute is that UZAs not be divided into multiple planning
areas.
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\2\ For simplicity, the remainder of this notice refers only to
the planning provisions codified in Title 23, although corresponding
provisions are codified in Chapter 53 of Title 49.
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In 1991, Congress enacted the Intermodal Surface Transportation
Efficiency Act (ISTEA), which included provisions intended to
strengthen metropolitan planning. In particular, the law gave MPOs
responsibility for coordinated planning to address the challenges of
regional congestion and air quality issues. The 1993 planning
regulation implemented these statutory changes by defining this
enhanced planning role for MPOs. The 1993 planning regulation described
a coordinated planning process for the MPA resulting in an overall MTP
for the MPA. In several locations, the 1993 regulation recognized the
possibility of multiple MPOs serving an MPA, and provided expectations
for coordination that would result in an overall transportation plan
for the entire area. See 58 FR 58040 (October 28, 1993).
The 1993 regulation stated in the former Sec. 450.310(g) that
``where more than one MPO has authority within a metropolitan planning
area or a nonattainment or maintenance area, there shall be an
agreement between the State departments(s) of transportation (State
DOT) and the MPOs describing how the processes will be coordinated to
assure the development of an overall transportation plan for the
metropolitan planning area.'' Further, that regulation stated in former
Sec. 450.312(e) that where ``more than one MPO has authority in a
metropolitan planning area . . . the MPOs and the Governor(s) shall
cooperatively establish the boundaries of the metropolitan planning
area . . . and the respective jurisdictional responsibilities of each
metropolitan planning area.'' In practice, however, many MPOs
interpreted the MPA to be synonymous with the boundaries of their MPO's
jurisdiction, even in those areas where multiple MPOs existed within a
single UZA, resulting in multiple ``MPAs'' within a single urbanized
area.
In 2007, FHWA and FTA updated the regulations to align with changes
made in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU) and its predecessor, the
Transportation Equity Act for the 21st Century (TEA-21). The revised
regulations reflected the practice of having multiple ``MPAs'' within a
single UZA, even though the statute pertaining to this issue had not
changed. The 2007 regulation refers to multiple MPOs within an UZA
rather than multiple MPOs within an MPA, and the term ``metropolitan
planning area'' was used to refer synonymously to the boundaries of an
MPO. The regulations stated ``if more than one MPO has been designated
to serve an urbanized area, there shall be a written agreement among
the MPOs, the State(s), and the public transportation operator(s)
describing how the metropolitan transportation planning processes will
be coordinated to assure the development of consistent metropolitan
transportation plans and TIPs across the MPA boundaries, particularly
in cases in which a transportation investment extends across the
boundaries of more than one MPA.'' 72 FR 7224, February 14, 2007. The
FHWA and FTA adopted that language as Sec. 450.314(d), and
redesignated it in a 2016 rulemaking as Sec. 450.314(e). The 2007 rule
also added Sec. 450.312(h), which explicitly recognizes that, over
time, a UZA may extend across multiple MPAs. The 2007 rulemaking did
not address how to reconcile these regulatory changes with the
statutory minimum requirement that an MPA include the UZA in its
entirety.
As a result, since 2007, the language of the regulation has
supported the possibility of multiple MPOs within a UZA rather than
within an MPA. The FHWA and FTA have concluded that this 2007 change in
the regulatory

[[Page 93450]]

definition has fostered confusion about the statutory requirements and
resulted in less efficient planning outcomes where multiple TIPs and
MTPs are developed within a single UZA. This rule is designed to
correct the problems that have occurred under the 2007 rule and return
to the structure in regulation before the 2007 amendments.

MPO Coordination Within an MPA

The metropolitan planning statute calls for each metropolitan
planning organization to ``prepare and update a transportation plan for
its metropolitan planning area'' and ``develop a TIP for the
metropolitan planning area[.]'' 23 U.S.C. 134(i)(1)(A) and
(j)(1)(A).\3\ As discussed above, the metropolitan planning statute
includes an exception provision in 23 U.S.C. 134(d)(7) that allows more
than one MPO in an MPA under certain conditions. In some instances,
multiple MPOs have been designated not only within a single MPA, but
also within a single UZA in an MPA. Presently, such MPOs typically
create separate MTPs and TIPs for separate parts of the UZA. Currently,
the regulations require that where multiple MPOs exist within the same
UZA, their written agreements must describe how they will coordinate
their planning activities. However, the extent and effectiveness of
coordination varies, and in some cases, effective coordination on
regional needs and interests has proved challenging. It can be
inefficient and confusing to the public if there are two or more
distinct metropolitan transportation planning processes that result in
two or more separate MTPs and TIPs for a single MPA (as defined under
23 U.S.C. 134). Further, a regional approach is needed to ensure that
metropolitan transportation planning maximizes economic opportunities
while also addressing the externalities of growth, such as congestion,
air and water quality impacts, and impacts on resilience.
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\3\ The process for developing plans and TIPs must be
``continuing, cooperative, and comprehensive to the degree
appropriate based on the complexity of the transportation problems
to be addressed.'' 23 U.S.C. 134(c)(3).
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For these reasons, FHWA and FTA have determined that joint
decisionmaking leading to unified planning products is necessary where
there are multiple MPOs in an MPA in order to best ensure effective
regional coordination. Accordingly, this rulemaking addresses
coordination and decisionmaking requirements for MPOs that are subject
to the 23 U.S.C. 134(d)(7) exception to the one-MPO-per-MPA structure
of the metropolitan planning statute.

Coordination Between States and MPOs

The statewide planning statute calls for a continuing, cooperative,
and comprehensive process for developing the long-range statewide
transportation plan and the statewide transportation improvement
program (STIP). 23 U.S.C. 135(a)(3). The statute requires States to
develop the long-range statewide transportation plan and the STIP in
cooperation with MPOs designated under 23 U.S.C. 134. 23 U.S.C.
135(f)(2)(A) and (g)(2)(A). While these statutes require that States
work in cooperation with the MPOs on long-range statewide
transportation plans and STIPs, the extent to which MPO voices are
heard varies significantly. The nature of decisionmaking authority of
MPOs and States varies due to numerous factors, including the extent of
local funding for transportation projects. The MPOs will be
strengthened by having a single coordinated MTP and TIP in order to
create a united position on transportation needs and priorities for
each MPA. Ultimately, each relationship between a State and MPO is
unique, and there may not be a single coordination process that is
appropriate for all areas of the country. However, there must be
adequate cooperation between States and MPOs. Therefore, this rule
requires that States and MPOs demonstrate evidence of cooperation,
including the existence of an agreed upon dispute resolution process.

III. Summary of the NPRM

The FHWA and FTA published the NPRM on June 27, 2016, with a
comment period ending on August 26.\4\ In a notice published on
September 23, 2016, FHWA and FTA reopened the comment period.\5\ The
second comment period ended on October 24, 2016. The NPRM proposed a
revision to the regulatory definition of MPA to better align with the
statutory requirements in 23 U.S.C. 134 and 49 U.S.C. 5303.
Specifically, the NPRM proposed to amend the definition of MPA in 23
CFR 450.104 to include the conditions in 23 U.S.C. 134(e)(2) that
require the MPA, at a minimum, to include the entire UZA and the
contiguous area expected to become urbanized within the 20-year
forecast period for the MTP. The MPA boundary requirements in the
proposed rule would apply even when the MPA, as defined in the rule,
would cross State lines. By aligning the regulatory definition of the
MPA with the statute, the NPRM acknowledged that the MPA is dynamic.
The MPA is the basic geographic unit for metropolitan planning;
therefore, this proposed requirement would ensure that planning
activities consider the entire region of the UZA consistently.
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\4\ 81 FR 41473 (June 27, 2016).
\5\ 81 FR 65592 (September 23, 2016).
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An exception in 23 U.S.C. 134(d)(7) allows multiple MPOs to be
designated within a single MPA if the Governor(s) and MPO(s) determine
that the size and complexity of the area makes multiple MPOs
appropriate. The NPRM proposed certain requirements applicable in such
instances where multiple MPOs serve a single MPA, including instances
in which adjustments to urbanized areas, as a result of a U.S. Census
Bureau decennial census, will result in multiple MPOs serving a single
MPA. First, the NPRM proposed to clarify that MPA boundaries are not
necessarily synonymous with MPO boundaries. Second, the NPRM proposed
to amend Sec. 450.310(e) of the regulation to clarify that, where more
than one MPO serves an MPA, the Governor(s) and affected MPOs must
establish or adjust the jurisdiction for each MPO within the MPA by
agreement. Third, the NPRM proposed additional coordination
requirements for areas where multiple MPOs are designated within the
MPA. Under the NPRM, the Governor(s) and MPOs would determine whether
the size and complexity of the MPA make the designation of multiple
MPOs appropriate; if they were to determine it is not appropriate to
have more than one MPO, then the MPOs would be required to merge or
adjust their jurisdiction such that there would be only one MPO within
the MPA. If they were to determine that designation of multiple MPOs is
appropriate, then the MPOs could remain separate, with separate
jurisdictions of responsibility within the MPA, as established by the
affected MPOs and the Governor(s).
The NPRM proposed to require those multiple separate MPOs in the
same MPA to jointly develop unified planning products: A single long-
range MTP, a single TIP, and a jointly established set of performance
targets for the MPA. These requirements for unified planning products
to accommodate the intended growth of a region would enable individuals
within that region to better engage in the planning process and
facilitate their efforts to ensure that the growth trajectory matches
their visions and goals. In order to support the development of these
unified planning products, the NPRM proposed to require MPOs to
establish procedures for joint decisionmaking, including a process for
resolving disagreements.
Additionally, the NPRM proposed to strengthen the role that MPOs
would

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play in the planning process by requiring States and MPOs to agree to a
process for resolving disagreements. These proposed changes to the
planning regulations were designed to facilitate metropolitan and
statewide transportation planning processes that would be more
efficient, more comprehensible to stakeholders and the public, and more
focused on projects that address critical regional needs. The NPRM was
designed to position MPOs to respond to the growing trend of
urbanization. It would better align the planning processes with the
regional scale envisioned by the performance-based planning framework
established by MAP-21, particularly those measures focused on
congestion and system performance. The NPRM also would help MPOs to
achieve economies of scale in planning by working together and drawing
on a larger pool of human, material, financial, and technological
resources.

IV. Response to Major Issues Raised by Comments

This final rule is based on FHWA's and FTA's review and analysis of
comments received. The FHWA received 660 letters to the docket, which
includes 21 duplicate submissions, 4 submissions to the wrong docket,
and 23 ex parte response letters, for a total of 612 unique letters.
The comments included 197 letters from metropolitan planning
organizations, 39 letters from State departments of transportation, 29
letters from councils of governments, 29 letters from regional planning
associations, 14 letters from transportation management associations,
38 letters from counties, 81 letters from municipalities, 22 letters
from professional and trade associations, 21 letters from associations
of metropolitan planning organizations and regional planning
associations, and 31 letters from individual citizens. The comments
also included 18 letters signed or co-signed by Members of Congress,
including 12 U.S. Senators and 15 U.S. Representatives, and 20 letters
signed or co-signed by State legislators. Given the large number of
comments received, FHWA and FTA have decided to organize the response
to comments in the following manner. This section of the preamble
provides a response to the significant issues raised in the comments
received, organized by summarizing and responding to comments that
raise significant issues applicable to the NPRM.

Need for the Rule

Sixteen commenters expressed support for the NPRM. The FHWA and FTA
received 156 comments in support of the stated purpose of the proposed
rule, which is to improve the transportation planning process by
strengthening the coordination of MPOs and States and promoting the use
of regional approaches to planning and decisionmaking to ensure that
transportation investments reflect the needs and priorities of an
entire region. While these commenters supported the stated purpose of
the rulemaking, they did not support the specific requirements and
procedures articulated in the proposed rule because the commenters
believe the rule will not strengthen coordination efforts beyond
current practices. The FHWA and FTA received 299 comments in opposition
to the NPRM, of which 249 requested that FHWA and FTA withdraw the
rulemaking. Commenters expressed various concerns about the NPRM.
The FHWA and FTA appreciate the substantial response to the NPRM
and have reviewed and carefully considered all of the comments
submitted to the docket. The FHWA and FTA believe the rule addresses
important aspects of the metropolitan transportation planning process.
As such, and as described in the previous section, FHWA and FTA have
amended several parts of the proposed rule in response to comments but
decline to withdraw the rule.
A number of commenters stated that their MPOs are already engaged
in the types of regional coordination activities described in the NPRM,
and they questioned the need for this regulation. Many commenters
expressing opposition to the proposed rule stated that they believe
their current coordination processes are successful; they achieve their
local goals and objectives, involve strong coordination with adjacent
MPOs and States in urbanized areas, and include many of the activities
proposed in the NPRM. A total of 151 commenters stated that they
currently have good working relationships with adjacent MPOs,
coordinate with States and other MPOs and jurisdictions, or have formal
agreements for coordinated planning activities.
Many commenters provided examples from their respective regions,
discussed how their current planning processes achieved goals similar
to those proposed in the proposed rulemaking, and indicated the
proposed changes would disrupt existing coordination efforts. Six
commenters stated their existing working agreements for coordinated
planning with neighboring MPOs and States would be disrupted by the
proposed requirements. Some commenters stated they could not identify a
problem the requirements would resolve. Fifteen commenters stated that
they currently coordinate with adjacent jurisdictions on regional
planning activities, so the proposed requirement for unified, merged
planning documents (MTPs, TIPs) is not necessary. Several commenters
indicated the success of current MPO practices means additional
regulation is not needed to improve MPO coordination. Several
commenters stated that the proposed requirements would require them to
re-do a recently completed merger of MPOs in Connecticut. One commenter
stated that before the MPO is required to merge with another MPO, its
current process and agreements with neighboring MPOs should be
considered as meeting the proposed requirements.
In response, FHWA and FTA agree that many MPOs are coordinating
planning activities with adjacent MPOs and across State and other
jurisdictional boundaries. Many of the examples provided exemplify the
type of coordinated transportation planning activities that FHWA and
FTA are seeking by adopting the final rule. The existence of such
exemplary planning practices in some MPOs, however, does not eliminate
the need for consistency with statutory MPA boundary requirements or
for improvement in the planning practices of other MPOs. This rule adds
clarity to those and other planning requirements that FHWA and FTA
evaluate when carrying out certification reviews for transportation
management areas (TMAs) under 23 U.S.C. 134(k)(5), and when making
planning findings in connection with STIP approvals under 23 U.S.C.
135(g)(7)-(8). In particular, this rule will benefit UZAs that
presently are under the jurisdiction of more than one MPO. This rule
will eliminate the risk of adverse consequences for the UZA that can
arise when the MPOs adopt inconsistent or competing planning decisions.
The FHWA and FTA recognize that some regions have formal agreements
for MPO coordination that may need to be revisited as a result of the
rule, and that the implementation process for this rule could be
disruptive in some cases. The FHWA and FTA considered this burden in
adopting the final rule. Specifically, the final rule addresses
situations where it is not feasible for the multiple MPOs in an MPA to
comply with the unified planning requirements. In such situations, MPOs
may demonstrate to the Secretary that they already have effective
coordination processes that will achieve the purposes of the rule. If
adequately demonstrated,

[[Page 93452]]

then the Secretary may approve an exception, and those MPOs will not
have to produce unified planning products for the MPA. The exception is
permanent, but FHWA and FTA will evaluate whether the MPOs are
sustaining effective coordination processes consistent with the rule
when FHWA and FTA do certification reviews and make planning findings.
This new provision balances commenters' concerns about disruption of
existing arrangements, including recent mergers and other changes,
against the need for the type of holistic MPA planning the statute and
this rule require.
The FHWA and FTA also remain sensitive to, and supportive of, the
principle and value of local decisionmaking. One purpose of this rule
is to support local decisionmaking and involvement in a planning
process that increasingly takes place in a regional context. There is a
need for better coordinated local decisionmaking, however. Issues like
air pollution and traffic congestion do not stop at State boundaries or
MPO jurisdictional lines, but planning often does. Planning in
jurisdictional silos can occur where two or more MPOs plan for the MPA
but do not coordinate effectively and do not produce a single overall
plan and TIP for the MPA. Such a situation can interfere with essential
coordination of regional transportation planning solutions. In turn,
that can lead to project delays, process inconsistencies, and reduced
freight reliability.
This rule places a greater emphasis on regional planning to help
communities maximize economic opportunities while also addressing the
externalities of growth, such as congestion, air and water quality
impacts, and impacts on resilience. The FHWA and FTA have long promoted
regional planning because of the increasing size, economic
interdependence, and quality of life challenges of metropolitan areas.
The elimination of possible confusion about MPA boundary requirements
is one step toward better regional planning. By clarifying the
metropolitan planning regulations implementing the language on
boundaries in 23 U.S.C. 134(e)(2), the MPA will include the entire
urbanized area plus the areas forecasted to become urbanized over the
20-year period of the transportation plan. This clarification will
promote more efficient and effective planning for the MPA as a whole.
Based on experience, FHWA and FTA know that having two or more
separate metropolitan transportation planning processes in a single MPA
(as defined under 23 U.S.C. 134) can make the planning process
confusing and burdensome for the affected public. For example, members
of the public may be affected by projects in multiple MPO
jurisdictions, either because they live in the area of one MPO and work
or regularly travel to another, or because the MPOs' jurisdictional
lines bisect a community. Such members of the public, therefore, can
find it necessary to participate in each MPO's separate planning
process in order to have their regional concerns adequately considered.
Having to participate in the planning processes of multiple MPOs,
however, can be burdensome and discourage public participation. Where
communities have been so bifurcated that they are not able to fully
participate in the greater regional economy, this rule will help weave
those communities together through new opportunities for regional
investments in transportation.
Where regional coordination is already strong, this rule supports
those efforts. Multi-jurisdictional planning encourages stakeholders to
think beyond traditional borders and adopt a coordinated approach to
transportation planning that combines many perspectives to improve
coordination and implement effective planning across wide geographic
areas. In addition, the requirement for the State and MPO to have a
documented dispute resolution process in their metropolitan planning
agreement will help ensure the MPOs have an effective means to be heard
when investment decisions affecting the MPA are made. With the
revisions that FHWA and FTA have made in response to comments received,
this rule will serve as a strong tool for State DOTs, MPOs, and
providers of public transportation to work together to enhance
efficiency and be more responsive to the entire community.
When FHWA and FTA issued the NPRM, the agencies were involved in
ongoing non-regulatory planning initiatives to improve MPO
coordination. The Fiscal Year 2015 and 2016 FHWA and FTA Planning
Emphasis Areas letters from the Administrators of FHWA and FTA to MPO
executive directors and heads of State DOTs discussed three planning
priorities, including Regional Models of Cooperation (RMOC).\6\ The
objective of the RMOC initiative is to improve the effectiveness of
transportation decisionmaking by thinking beyond traditional borders
and adopting a coordinated approach to transportation planning. The
RMOC promotes improved multi-jurisdictional coordination by State DOTs,
MPOs, providers of public transportation, and rural planning
organizations to reduce project delivery times and enhance the
efficient use of resources, particularly in urbanized areas that are
served by multiple MPOs. The RMOC includes technical assistance efforts
to assist MPOs and State DOTs in achieving the RMOC objectives.
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\6\ The Fiscal Year 2016 letter is available at https://www.fhwa.dot.gov/planning/processes/metropolitan/mpo/fy_2016/fy2016pea.pdf.
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The FHWA, as part of its Every Day Counts initiative (EDC),
promotes RMOC and provides a framework and process for State DOTs and
MPOs to develop multi-jurisdictional transportation plans and
agreements to improve communication, collaboration, policy
implementation, technology use, and performance management across
agency boundaries.\7\ The EDC has identified the benefits of multi-
jurisdictional planning as including higher achievement of
transportation goals by working together and the potential creation of
a more economically competitive region through faster construction,
improved freight movement, reduced traffic congestion, and improved
quality of life.
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\7\ See EDC Web site at http://www.fhwa.dot.gov/innovation/everydaycounts/edc-3/regional.cfm.
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Functionality and Effectiveness of the Resulting Metropolitan Planning
Areas

Many commenters stated that the current system fosters an
environment that allows for right-sized collaboration and is working
well. Many contended that their MPOs are properly sized for their
respective regions and that they efficiently program their resources in
a manner that cannot be achieved at a larger scale. Some commenters
expressed concern that, by increasing the size and scope of individual
MPOs, the proposed rule would make the transportation planning process
less accessible and more confusing to stakeholders and the general
public, many of whom are already overwhelmed by the process. Others
commented that the rule would not reduce confusion, increase public
participation, or increase efficiency in regional planning, arguing
that residents who live far away from other residents do not, by
default, have the same transportation planning priorities simply
because they reside in the same MPA. Others expressed concern that a
large MPA with multiple major and minor cities and differing economic
bases would limit the potential for common interests and issues,
potentially diluting the planning process and limiting locally
applicable guidelines. Some commenters asserted

[[Page 93453]]

that the proposed rule would result in disconnecting land use and
transportation planning, negatively affect transit planning, and
undermine congressional intent that an MPO be focused on a UZA's
central city.
Several commenters stated that the proposed rule ignored the
complex nature of existing regional coordination mechanisms and instead
would create an unworkable coordination framework that likely would
present challenges to capital planning and project delivery. Some
commenters also raised concerns that the proposed rule would
significantly change how neighboring communities and States work
together, which could have potentially long-lasting negative
consequences. Commenters also stated that the proposed rule would
weaken the regional planning process by requiring it to be done at such
a large scale that it no longer would be reasonably considered as
regional planning as Congress intended and would result in MPO policy
boards making decisions on transportation investments and policies for
geographic areas with which they are unfamiliar.
Several commenters expressed the view that smaller, contiguous MPOs
in a shared metropolitan region can be as effective, or more effective,
than larger or consolidated MPOs. For instance, smaller organizations
are generally more nimble and responsive to members of the public than
larger, more artificially stitched-together organizations. These
commenters also contended that smaller contiguous MPOs may often be
better able to factor in land use, smaller scale projects such as
pedestrian and bicycle needs, intersections, and transit, while still
maintaining an appropriate focus and cooperation on major system
elements such as the National Highway System and long distance freight.
The FHWA and FTA considered the concerns expressed by these
commenters but disagree with the view that the rule will lead to the
negative results described in their comments. In locations where MPOs
have undertaken efforts to merge and rationalize the planning process
for their regions, the results have been positive.\8\ These examples
illustrate that MPOs can implement changes like those adopted in this
rule. Implementation will require adjustment of processes and creative
thinking about the best ways to conduct successful outreach if the
changes required by the rule result in the need to involve a broader
group of constituents in the MPA. The FHWA and FTA also acknowledge
that the type of decisionmaking the rule requires may force MPOs to
make hard choices about investment priorities because they must agree
on MPA-wide priorities, rather than priorities for a subarea within the
MPA. In the view of FHWA and FTA, this is an appropriate result in the
performance-based planning environment in which FHWA, FTA, States,
MPOs, and providers of public transportation now operate.
---------------------------------------------------------------------------

\8\ See, e.g., ``Current State of the Practice'' discussion on
FHWA's Every Day Counts Web page for Regional Models of Cooperation,
available at https://www.fhwa.dot.gov/innovation/everydaycounts/edc-3/regional.cfm.
---------------------------------------------------------------------------

The vast majority of commenters concluded that the proposed rule
would result in excessively large planning regions that cover extensive
geographic areas, including multiple States and millions of people. The
commenters believed this would cause complex and lengthy negotiations
among MPOs and States. Many commenters raised concerns that the NPRM
would lead to the formation of extremely large MPAs in certain parts of
the country and result in either multiple MPOs merging to form a single
MPO responsible for a very large geographical area or multiple MPOs in
an MPA being required to coordinate to produce unified planning
products. Many of these commenters asserted that transportation
planning at such a large scale likely would be unmanageable. Miami
Valley Regional Planning Commission stated that, if combined, the 10+
MPOs in its region would have a 300+ member MPO policy board, and there
would be ``unmanageable'' results of a ``super MPO'' spanning multiple
(in some cases five to seven) States. A number of other commenters also
suggested the rule would result in ``super MPOs.'' The Connecticut
Councils of Governments, including the Western Connecticut Council of
Governments, Housatonic Valley MPO, and South Western Region MPO,
Naugatuck Valley Council of Governments, and Central Naugatuck Valley
Metropolitan Planning Organization cited the example of the Tri-State
Regional Planning Commission, a particularly large MPO that formerly
served parts of New York, New Jersey, and Connecticut but was deemed
unsuccessful and ultimately dissolved. This comment suggested that the
proposed rule could result in re-creating a large MPO like that,
apparently without learning the lessons of why it failed. The comment
stated that following dissolution of the Tri-State Regional Planning
Commission, Connecticut and its neighbors developed structures and
mechanisms to provide for inter-MPO coordination, and this structure
enables MPOs to maintain vigorous local involvement in the context of
statewide and multistate corridors.
Several commenters also responded to FHWA's and FTA's request for
comments on potential exceptions that should be included in the final
rule and criteria for applying such exceptions.\9\ A number of
commenters recommended providing an exception to boundary requirements
where only a small portion of a UZA crosses into the jurisdiction of a
neighboring MPO, and they proposed several options for applying such an
exception. Twelve commenters proposed using a population threshold for
the portion of a UZA crossing MPO jurisdictional boundaries, below
which the neighboring MPOs would not need to comply with the rule's
requirements, ranging from 5-25 percent of the total population of the
UZA. Eight commenters proposed using a land area threshold of 5-25
percent of the total UZA land area crossing MPO jurisdictional
boundaries, below which an exception would apply. Six commenters
recommended using a threshold of 15-25 percent of the total Federal-aid
lane miles in the portion of a UZA crossing MPO jurisdictional
boundaries, below which an exception would apply. Four commenters
recommended that if a small area of two MPAs were to overlap, ranging
from 10-20 percent of the total combined MPA area, that the MPOs
serving those MPAs should be excepted from the rule's requirements.
Three commenters recommended excepting MPOs that are in nonattainment
for at least one criteria pollutant. The Merced County Association of
Governments recommended giving special consideration to areas that are
predominantly rural.
---------------------------------------------------------------------------

\9\ See FHWA and FTA notice reopening comments at 81 FR 65592,
65593 (September 23, 2016).
---------------------------------------------------------------------------

The FHWA and FTA appreciate the comments submitted and understand
commenters' concerns about the potential for extremely large MPAs. The
FHWA and FTA believe that some of these concerns are based on a
misreading of the proposed rule, particularly relating to UZAs with
common boundaries and MPAs with 20-year forecast areas that may
overlap. The FHWA and FTA do not intend this rule to require the
establishment of extremely large MPAs or to require transportation
planning on such a large scale as to be unworkable. The intent is to
ensure MPAs comply with statutory boundary requirements, and, if there
are multiple MPOs serving an MPA, all such MPOs work together to plan
for the

[[Page 93454]]

MPA's future transportation needs. Because this rule and the underlying
statute require that MPAs include the entire UZA and the surrounding
area forecast to become urbanized within a 20-year forecast period for
the transportation plan, FHWA and FTA cannot provide exceptions to
these requirements based on the population in an MPA, the size of the
part of a UZA that crosses into an adjoining MPO's planning
jurisdiction, the degree to which the MPA includes rural areas, or the
air quality status of the area. Under this rule and the underlying
statute, MPA boundaries cannot overlap. The FHWA and FTA will provide
guidance in the future about how to accomplish such boundary
adjustments.
The NPRM presented MPOs with three compliance options, all of which
the final rule retains. First, MPOs may adjust the boundaries of their
MPAs to encompass the entire urbanized area plus the contiguous area
forecast (by the MPOs) to become urbanized over the 20 years of the
metropolitan transportation plan. While the situations of individual
areas may vary, many MPOs would be able to adjust MPA boundaries in
such a way that they remain separate from contiguous MPOs. For example,
in cases where an MPO's current jurisdiction includes a portion of a
UZA primarily served by another MPO, the two MPOs can work together to
adjust their jurisdictions so each MPO serves an MPA with the
appropriate UZA. If the forecasted growth areas for two MPAs overlap,
the affected Governor(s) and MPOs can work together to determine the
most appropriate way to allocate that growth area between the MPAs.
Although Governors and MPOs are encouraged to consider merging multiple
MPAs into a single MPA under these circumstances, the rule does not
require a merger. Second, multiple MPOs located in a single MPA can
merge. Third, if MPOs and their respective Governor(s) determine that
the size and complexity of the MPA justifies maintaining multiple MPOs
in a single MPA, then they can remain separate MPOs but coordinate to
prepare unified planning products.
To address comments stating that in some areas compliance with the
rule would be infeasible, overly cumbersome, or contrary to the goal of
effective and participatory regional planning, the final rule includes
a new compliance option in Sec. 450.312(i) for MPAs with multiple
MPOs. This option offers, under certain conditions, an exception to the
requirement for unified planning products. The exception is discussed
in detail below, under Unified Planning Products: Requirements and
Exception in ``Discussion of Major Issues Raised by Comments'' section
of this preamble.
Commenters raised similar concerns about the potential for large
MPAs that cross State lines but cited even greater coordination
challenges in that scenario. Commenters expressed concern that if an
MPO serves a larger geographical area, particularly in the case of a
multistate MPA, the planning discussions will inevitably take place at
the State planning level and will not empower MPOs. Commenters stated
the result would remove local constituent voices from identifying and
implementing projects that provide connectivity and access, and spur
economic development initiatives across all areas in the MPA.
Commenters stated that the rule should provide greater flexibility
where MPAs cross State lines to account for significant differences in
transportation planning processes that may exist between two or more
States. Some commenters expressed concern that each Governor in a
multistate MPA would exercise veto power over the TIP and MTP in the
neighboring State, which would delay approval of these products,
jeopardizing access to Federal highway and transit funds. Commenters
also highlighted differences in State transportation planning
processes, planning statutes, budgetary cycles, project prioritization
processes, land use authorities, vastly different relationships and
involvement of State legislatures in the planning process, and various
governance and MPO policy body structures in neighboring States as
factors that would further complicate the production of unified
planning products across State lines.
In response, FHWA and FTA acknowledge that a multistate MPA
typically presents greater coordination challenges than an MPA
contained entirely within a single State. For multistate MPAs where the
Governors and the MPOs agree it is not feasible to comply with the
unified planning products requirements adopted in this rule, the
Governors and MPOs may seek an exception under the provision added in
Sec. 450.312(i) of the final rule.
Several commenters indicated concerns about the use of UZAs, which
are determined by the U.S. Census Bureau, as the basis for establishing
MPA boundaries. Commenters noted that UZAs do not necessarily reflect
transportation realities for regional roadway and transit networks, and
regional travel patterns. Commenters expressed concerns about the UZAs
changing after each decennial census, requiring new configurations
every 10 years. In response, FHWA and FTA note that Congress required
in 23 U.S.C. 134 that UZAs be used to establish MPAs. The MPA
boundaries provision in 23 U.S.C. 134(e)(2)(A) states that each MPA
``shall encompass at least the existing urbanized area,'' and 23 U.S.C.
134(b)(7) provides that urbanized area ``means a geographic area with a
population of 50,000 or more, as determined by the Bureau of the
Census.'' However, FHWA and FTA appreciate the concerns that UZAs may
not reflect regional transportation patterns and systems, and,
therefore, FHWA and FTA intend to engage with the U.S. Census Bureau to
provide input into how UZAs should be delineated following the 2020
decennial census.
Several commenters requested additional guidance on the
responsibilities and methodology for determining 20-year growth
projections; determining the parameters for designating MPA boundaries
when UZAs are contiguous, or when the 20-year forecast growth from two
UZAs overlaps; developing dispute resolution agreements; and
determining when the size and complexity of an MPA warrants the
designation of multiple MPOs. To support efficient and effective
implementation of the rule, FHWA and FTA plan to issue guidance and
will offer technical assistance to help States and MPOs understand
their options for complying with the rule. In addition, not later than
5 years following the compliance dates in Sec. 450.226(g) and Sec.
450.340(h), FHWA and FTA will review how implementation of the new
requirements is working and whether the new requirements are proving
effective in achieving the intended outcomes. The FHWA and FTA are
committed to ensuring the transportation planning process is
successful. Through this review, FHWA and FTA will identify any
necessary changes to the regulation.

Transportation Conformity

Some commenters raised questions about how the proposed rule would
impact existing air quality conformity boundaries and relationships.
Two MPOs, the American Association of State Highway and Transportation
Officials (AASHTO), the National Association of Regional Councils
(NARC), a State health organization and a transit operator noted that
there are separately designated nonattainment and/or maintenance areas
with air quality boundaries that do not coincide with UZA designations
that cross State lines. The concern expressed is that by joining these
separate areas into one MPO, or requiring joint planning

[[Page 93455]]

documents, those regions that are in attainment or maintenance for air
quality would be forced to perform detailed air quality conformity
analyses in line with the nonattainment areas. Commenters voiced
concern that, in complex regions, every new conformity determination
and MTP or TIP amendment involving air quality non-exempt projects
would require a multistate technical, administrative, and public and
interagency analysis that would delay decisionmaking and hinder
progress. In response, FHWA and FTA understand the potential impacts of
the final rule on meeting the transportation conformity regulations.
The FHWA and FTA are cognizant of the challenges that MPOs and States
may face, especially in areas where two or more MPOs in a multistate
area may merge into one MPO or develop unified planning products. These
areas may have to put extra effort into the interagency consultation
and coordination process. They may also have to devote additional
resources to address conformity issues, such as developing a single
travel demand model; conducting an emissions analysis that covers the
new MPA boundary; and aligning the latest planning assumptions,
conformity tests, and analysis/horizon years. In addition, areas with
nonattainment or maintenance area for multiple pollutants may
experience additional complexities. The FHWA and FTA, however, believe
that many MPOs already have experience in addressing conformity issues
in a complex area. These complex areas may include multiple MPOs,
multiple States, multiple pollutants, or a combination of all of these.
The FHWA documented the experience of how these complex areas address
conformity issues in Transportation Conformity Practices in Complex
Areas.\10\ As a result of reviewing comments, FHWA and FTA have removed
the NPRM language in Sec. 450.324(c)(3) and Sec. 450.326(a) that
called for MPOs sharing an MPA to agree on a process for making a
single conformity determination on their plan and TIP. The change was
made to avoid the risk the language would be read as amending
conformity requirements. Instead, during implementation of the final
rule, FHWA and FTA will coordinate with the Environmental Protection
Agency (EPA) on maintaining consistency with EPA's transportation
conformity regulations, seeking to avoid the impact on nonattainment
and maintenance area designations, and on the need for state and local
air quality agencies to revise approved State Implementation Plans
(SIPs), motor vehicle emissions budgets, and conformity procedures. The
FHWA and FTA also will work with EPA to provide technical assistance
and training to help MPOs address conformity issues that may occur.
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\10\ Available as of November 4, 2016, at https://www.fhwa.dot.gov/environment/air_quality/conformity/research/complex_areas/.
---------------------------------------------------------------------------

Furthermore, if it is not feasible for multiple MPOs serving the
same MPA to comply with the unified planning products requirements
because of conformity issues, the affected MPOs and the Governor(s) may
request an exception under Sec. 450.312(i) of the rule. The exception
is discussed in detail under Unified Planning Products: Requirements
and Exception in ``Discussion of Major Issues Raised by Comments''
section of this preamble.

Dispute Resolution Process

The FHWA and FTA received a total of 44 comments on the proposed
requirement in Sec. 450.208(a)(1) that States and MPOs establish
dispute resolution procedures in their metropolitan planning
agreements. Three commenters expressed support for the development of a
written dispute resolution process to provide for fair, objective, and
consistent resolution of disputes. One commenter asserted that because
the FAST Act does not require a dispute resolution process, this is a
matter that should be addressed legislatively rather than through a
rulemaking. Thirteen commenters noted concern that the inflexibility of
a formal dispute resolution process would make it cumbersome and
confusing and would create conflict where none existed previously. Five
commenters suggested a formal dispute resolution process would unfairly
favor States, based on speculation that States would have no incentive
to support local control for separate MPOs and would not enter into the
dispute resolution process in good faith. Two commenters stated that a
formal dispute resolution process would allow for some parties to use
the dispute resolution process to hold up the planning process in order
to leverage particular outcomes.
The FHWA and FTA view the local planning process as a partnership
among the MPOs, the States, and providers of public transportation. The
dispute resolution requirement is a tool that, when used correctly,
fosters this partnership. Dispute resolution establishes the path for
all parties to follow in delivering the planning program, even when
consensus is not readily reached. A well-crafted and well-executed
dispute resolution process allows the parties to work through
disagreements in an objective, fair, and transparent manner that should
expedite delivery of planning products in an effective and inclusive
fashion. The FHWA and FTA agree that if any party to the planning
agreement fails to negotiate in good faith, the result will be
suboptimal and not in accord with the intent of the planning statutes.
The establishment of an objective, fair, and transparent process,
however, will subject all participants to public scrutiny, which is
likely to be a strong disincentive to bad-faith negotiation. Further,
the type of failure described by the commenters would not be consistent
with the ``continuing, cooperative, and comprehensive'' planning
requirements in 23 U.S.C. 134-135. Finally, in response to the comment
suggesting that requiring a dispute resolution process exceeds FHWA's
and FTA's authority, FHWA and FTA believe the requirement is within the
scope of the agencies' discretion to interpret the meaning of the
statutory requirements for coordination among States, MPOs, and
providers of public transportation.
Seven commenters requested that FHWA and FTA provide model dispute
resolution language, best practices, or guidance on how to develop a
formal dispute resolution agreement. Thirteen commenters noted that the
rule is silent on how disputes are to be resolved prior to
establishment of a dispute resolution process between Governor(s) and
MPOs.
The FHWA and FTA appreciate the request for more specific language,
guidance, or best practices. The development of a dispute resolution
process is a local decision that will vary depending on the particular
needs and relationships that exist in each area. The FHWA and FTA are
committed to providing MPOs and States with the technical assistance
they need to effectively meet this requirement while taking local
conditions and needs into account. The rule is purposely not
prescriptive about the contents of a dispute resolution process. The
FHWA and FTA do not believe that establishing a default dispute
resolution process would further the desired collaboration. The FHWA
and FTA understand it will take time to develop the required dispute
resolution process, which is addressed by the final rule's compliance
deadline of the next MTP update occurring on or after the date 2 years
after the date the Census Bureau releases its notice of Qualifying
Urban Areas following the 2020 census. Until the process is developed
and contained in the metropolitan planning agreements, the parties may
continue to use existing practices.

[[Page 93456]]

Unified Planning Products: Requirements and Exception

A number of commenters expressed concern that requiring unified
planning products would increase the complexity of the planning process
because developing unified planning products through coordination among
multiple MPOs in an MPA would be more complicated, take more time, and
extend the timeline for approvals, resulting in delays in project
funding and delivery. Many asserted that this would require a multi-
layered approval process that could jeopardize access to Federal
funding. Some also expressed concern that working across State lines on
TIPs (and STIPs) would be particularly challenging because different
States have different legislative and budget schedules, and different
project ranking and funding mechanisms. They also contended that the
number of STIP/TIP modifications would increase, and that the
multilayered approval process would make it less efficient to make such
modifications. Several commenters stated that the sheer volume of
projects, size, and diversity of geographical area, and the need to
coordinate decisionmaking among multiple jurisdictions, and in some
cases across State lines, will impair the region's ability to develop a
single MTP and TIP, thus jeopardizing their ability to advance projects
and secure FTA grant funds that are critical to maintenance and
expansion of transit networks.
The Southeastern Massachusetts Metropolitan Planning Organization
(SMMPO) expressed concern that a single TIP and MTP for a larger MPA
would require consistent project eligibility and scoring criteria to
ensure that the distribution of Federal funds is equitable. The SMMPO
commented that even if an agreement can be reached among MPOs on the
eligibility for Federal funds, it is unlikely that the MPOs will be
able to agree on the requirements to receive State matching funds,
because the criteria are established by the legislative bodies of each
State and not under the authority of the Governors.
Eight commenters expressed confusion regarding the proposed
amendments to the joint planning rule. One respondent requested
assistance to understand how the proposed rule would affect its UZA.
Two respondents expressed confusion about how the proposed amendments
would improve the planning process, citing the complexity of attempting
to develop unified planning products for an area that could potentially
cover hundreds of municipalities, millions of people, and dozens of
counties. Five respondents stated that implementation of the proposed
amendments would result in more confusion for the public, locally
elected officials, and local units of governments because they would
need to plan for such large areas and attempt to work through a very
complicated, overwhelming, and inefficient process to approve unified
planning products. Several commenters expressed concerns about
unintended consequences of the proposed rule. Some commenters indicated
that the proposed rule would negatively disrupt existing coordination
and collaboration efforts, particularly for transit, economic
development, land use, and local planning. Some commenters believed the
proposed rule would make the existing transportation planning process
more complex, less efficient, and more difficult for MPOs to meet the
requirements of Federal and State laws. Other commenters expressed
concern about States gaining more power in the metropolitan
transportation planning process and the potential increase in
competition for funding and resources. Commenters also questioned the
impacts to MPO staff employment and the participation of MPO members.
One commenter expressed concern about potential conflicts with FHWA's
other performance management rulemakings.
In the notice of the reopening of the comment period for this
rulemaking, FHWA and FTA asked for comments on potential exceptions
that should be included in the final rule and the criteria for applying
such exceptions. Commenters recommended several criteria for exceptions
to the rule's unified planning products requirements. Eighteen
commenters recommended exceptions if multiple MPOs in an MPA can
demonstrate a history of coordination, including the existence of
formal agreements like memoranda of understanding and/or established
processes for neighboring MPOs to consider the content of other MPO's
long-range transportation plans when developing their own long-range
transportation plan that provide for coordination among contiguous
MPOs. Four commenters recommended providing an exception to the rule's
requirement for multiple MPOs in an MPA to develop unified planning
products if all of the MPOs in the MPA agree to opt out of this
requirement. Twelve commenters suggested an exception from this
requirement if the MPA crosses State lines. Seven commenters
recommended that exceptions be made for MPAs with a population over a
certain threshold, with suggested thresholds ranging widely from
300,000 to 2.5 million persons.
In response, FHWA and FTA recognize that many MPOs will have to
make adjustments in their jurisdictional boundaries and their planning
processes under this rule. A multistate MPA typically will face greater
coordination challenges than an MPA contained entirely within a single
State. There likely will be a need for additional coordination, as
described by commenters. The FHWA and FTA considered the potential
impacts cited by commenters when developing this final rule, and
decided the benefits of the rule in terms of comprehensive, unified
decisionmaking in the transportation planning process outweighed such
potential impacts. The FHWA and FTA also carefully considered
commenters' recommendations for exceptions to the rule's requirements
and have revised the rule by adding an exception from the new unified
planning requirements. This exception will not allow multiple MPOs in a
single MPA to simply opt out of the requirement to develop unified
planning products, but it establishes criteria under which MPOs may
seek an exception from this requirement. The exception will address
those cases where it is not feasible for MPOs to prepare unified
planning products due to conditions affecting coordination or other
aspects of the unified planning process. The FHWA and FTA decline to
provide an exception for MPAs that cross State lines because effective
regional coordination requires coordination across a variety of
jurisdictional boundaries, and there are examples of MPOs effectively
coordinating across State lines, such as the Delaware Valley Regional
Planning Commission (Philadelphia and Trenton), the Memphis
Metropolitan Planning Organization (Tennessee and Mississippi), and the
Kentucky-Ohio-West Virginia Interstate Planning Commission. The final
rule, however, provides flexibility where producing unified planning
products is not feasible. The new provision balances the concerns
raised by commenters against the need for unified planning to ensure
the MTP and TIP appropriately address the needs of the MPA as a whole.
The exception is in Sec. 450.312(i) of the rule. To be granted this
exception, all MPOs in the MPA and their Governor(s) must submit, and
the Secretary must approve, a joint written request and justification.
The submittal to the Secretary must: (1) Explain why it is not
feasible, for

[[Page 93457]]

reasons beyond the reasonable control of the Governor(s) and MPOs, for
the multiple MPOs in the MPA to produce unified planning products; and
(2) demonstrate how the multiple MPOs in the MPA are effectively
coordinating with each other and producing consistent MTPs, TIPs and
performance targets, and are, therefore, already achieving the goals of
the rule through an existing coordination mechanism. An approved
exception is permanent. When FHWA and FTA do certification reviews and
make planning findings, FHWA and FTA will evaluate whether the MPOs
covered by the exception are sustaining effective coordination
processes that meet the requirements described in 23 450.312(i)(2)(i)
and (ii).
If the Secretary determines that the request does not meet the
requirements established under Sec. 450.312(i), the Secretary will
send the Governor(s) and MPOs a written notice of the denial of the
exception, including a description of the deficiencies. The Governor(s)
and the MPOs have 90 days from receipt of the notice to address the
deficiencies identified in the notice and submit supplemental
information addressing the identified deficiencies for review and a
final determination by the Secretary. The Secretary may extend the 90-
day period to cure deficiencies upon request.
The FHWA and FTA intend to provide guidance regarding the types of
situations where an exception may be appropriate. Examples in the
guidance may include situations where the Governor(s) and MPOs show
that the number of MPOs in the MPA, the number of political
jurisdictions within separate MPOs serving a single MPA, the
involvement of multiple States with differing interests and legal
requirements, or transportation conformity issues make it infeasible to
develop unified planning products; or they might show there would be
unintended consequences of using unified planning products in the MPA
that would produce results contrary to the purposes of the rule. The
guidance also will address how Governor(s) and MPOs can demonstrate
their current coordination procedures meet the exception requirements,
such as by (1) documenting a history of effective regional coordination
and decisionmaking with other MPOs in the MPA that has resulted in
consistent plans and TIPs across the MPA; (2) submitting procedures
used by the multiple MPOs in the MPA to achieve consistency on regional
priorities and projects of regional impact through plans, TIPs, air
quality conformity analyses, project planning, performance targets, and
other planning processes to address regional transportation and air
quality issues; and (3) demonstrating the technical capacity to support
regional coordination.

Implementation Costs

Many commenters expressed concern about the costs, both in terms of
financial resources and staff time associated with merging MPOs or
coordinating among multiple MPOs in an MPA on unified planning
products. Although many commenters did not cite cost estimates, several
cited a voluntary MPO merger in Connecticut that cost $1.7 million
dollars and took 4 years. Some stated that implementing the proposed
rule would divert both financial and staff resources away from core
transportation responsibilities because no additional funds would be
provided for MPOs to implement the proposed rule. Some commenters cited
an expected increase in the cost of the planning process, including
longer travel distances and time and travel expenses of MPO board and
committee members. The FHWA and FTA address these and other comments on
the costs resulting from this rule in the discussion of Executive Order
12866 (Regulatory Planning and Review).

Impacts on the Local Role in Planning and Programming Decisions

The FHWA and FTA received 217 comments expressing concern that the
proposed rule would decrease local influence and decisionmaking in the
transportation planning processes. Many of these comments included
concern that the proposed rule would increase the size of MPAs and
MPOs, which would diminish the role and influence of local governments
and make the transportation planning and decisionmaking process less
responsive to local input. Commenters noted that a larger planning area
with more jurisdictions would mean that many local governments and
smaller transit systems would not be represented on policy boards or
committees. Some stated the belief that this would lead to a focus on
funding larger, more expensive projects and decrease the amount of
funding available to smaller communities, resulting in local
transportation needs not being fully addressed. Several commenters
expressed concern that the proposed rule would shift power among
jurisdictions, either from rural areas and small towns to urban areas,
or from urban areas to suburbs. Nine commenters said larger MPAs, with
unified MTPs and TIPs would create more, not fewer, conflicts among
neighboring communities and between States, and this would make it more
difficult to build consensus.
The FHWA and FTA acknowledge that the rule could have the effect of
increasing the size of some MPAs, and that complying with MPA boundary
requirements may lead to changes in how the MPOs operate. Commenters
may be correct when they suggest decisionmaking under the rule might
result in different types of investments than in the past; however,
FHWA and FTA believe that this rule will allow MPOs to make more
efficient and effective planning decisions by focusing on the overall
needs of the MPA. Focusing on the overall needs of the MPA also will
support progress towards the national goals described in 23 U.S.C.
150(b). The FHWA and FTA disagree with comments suggesting the rule
will necessarily disenfranchise local governments and small transit
agencies, but FHWA and FTA also emphasize that the rule provides
options for addressing such concerns, including (1) dividing an MPA
that contains multiple UZAs into multiple MPAs, each of which contains
an urbanized area in its entirety; and (2) retaining the multiple MPOs
to serve the MPA. The NPRM provided three compliance options, all of
which the final rule retains. First, many MPOs, including those that
adjoin other MPOs, may be able to adjust their jurisdiction so each
MPO's jurisdiction encompasses an entire MPA--the urbanized area plus
the contiguous area forecast (by the MPOs) to become urbanized over the
next 20 years. If the forecasted growth areas for two MPAs overlap, the
affected Governor(s) and MPOs can work together to determine the most
appropriate way to allocate that growth area between the MPAs. Second,
multiple MPOs located in a single MPA can merge. Third, if MPOs and
their respective Governor(s) determine that the size and complexity of
the MPA justifies maintaining multiple MPOs in a single MPA, then they
can remain as separate MPOs in the MPA but coordinate to prepare
unified planning products. The final rule provides an additional option
in Sec. 450.312(i) under which Governor(s) and MPOs can seek an
exception to the requirement for unified planning products. The
exception is discussed in detail under Unified Planning Products:
Requirements and Exception in ``Discussion of Major Issues Raised by
Comments'' section of this preamble.

[[Page 93458]]

Effects on Public Involvement and Persons Protected by Environmental
Justice and Title VI

Some commenters asserted the proposed rule would result in
significantly larger MPOs and that would negatively impact public
involvement. Fourteen MPOs and local governments, as well as a public
transit agency, State DOT, national association, chamber of commerce,
and a member of Congress noted that large planning entities with
unified MTPs and TIPs would dilute the impact of local public input. A
few commenters stated that the scale of large MPOs would make public
involvement unmanageable and less meaningful. Thirteen MPOs and local
governments as well as two associations and one State DOT said the
large planning areas would create equity issues for populations unable
to travel long distances for public meetings due to time, cost, and
accessibility. A number of these commenters noted that this would
present Title VI and environmental justice (EJ) concerns because it
would be harder to ensure that individuals from low income communities,
individuals from minority communities, individuals with limited English
proficiency, and individuals with transportation limitations are
meaningfully involved in the process.
Twelve commenters suggested the changes proposed in the NPRM would
result in disruption to the public involvement process and confusion
among the public and may increase the cost of public involvement and/or
delay the process. One council of governments commented that the rule
would disproportionately negatively impact central cities with Title VI
and EJ communities as compared to suburban areas. One transit agency
indicated that the changes could cause a mismatch of transit provider
districts and the planning functions tied to current MPO jurisdictional
boundaries, and this would impact Title VI and EJ populations. One
member of Congress said the NPRM did not address the changes that would
be required to public involvement plans if multiple MPOs have to
coordinate on unified planning documents.
In response, as detailed above in ``Impacts on the Local Role in
Planning and Programming Decisions,'' FHWA and FTA believe the rule
provides options for addressing concerns about one MPO being
responsible for too large a geographic area. Even in cases where MPOs
merge, or the decision to have multiple MPOs in an MPA triggers the
requirement for unified planning documents, the size of the MPO's
planning jurisdiction does not determine the effectiveness of its
public involvement. Best practices from existing large MPOs covering
both urban and suburban areas indicate that public involvement,
including meeting the goals of the Title VI process and EJ
requirements, can be effective and can be carried out in a manner that
addresses differences between these communities.
The FHWA and FTA recognize that the rule will require changes to
ensure an effective public involvement process but believe that these
changes are consistent with DOT's encouragement of continuous
improvements in all public involvement efforts. The FHWA and FTA have
addressed the issue of a more effective consensus building process
through Planning Emphasis Areas,\11\ the EDC RMOC initiative,\12\ and
other initiatives. The FHWA and FTA have developed a number of other
resources that may be useful to MPOs and States in conducting effective
public involvement and meeting Title VI and EJ requirements and expect
to continue to provide such technical assistance and share best
practices as part of the implementation of this rule.
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\11\ See https://www.fhwa.dot.gov/planning/processes/metropolitan/mpo/fy_2016/index.cfm.
\12\ See http://www.fhwa.dot.gov/planning/regional_models/.
---------------------------------------------------------------------------

The FHWA and FTA nevertheless recognize that in some cases, large
and complex urban areas may have difficulty effectively addressing
these concerns, and FHWA and FTA modified the proposed rule to allow an
exception to the requirement for unified planning in Sec. 450.312(i).
If applicable, the request for an exception should provide evidence of
public involvement, Title VI, or EJ concerns.

Implementation Timeline

The FHWA and FTA received input from 60 commenters on the proposed
timeframe for the implementation of the proposed requirements in the
NPRM. Many commenters, including 26 MPOs, 11 State DOTs, 9
municipalities, 5 professional associations, 4 COGs, 2 State
legislators, 1 member of Congress, and 1 transit agency, raised
concerns that the NPRM would require extensive and time-consuming
coordination among MPOs and States, and they expressed that it would be
unrealistic to complete this coordination within the 2 years required
under the proposed rule. Many commenters stated that because of the
complex nature of their particular MPA, the requirement to revise MPA
boundaries and negotiate agreements among multi-MPO or multistate
jurisdictions would be difficult to accomplish within 2 years. Many
commenters noted that it would take longer than 2 years to complete new
MTPs and TIPs among geographically-large MPAs, particularly in
multistate areas.
Four MPOs and one member of Congress noted that 2 years is not
enough time for State legislative action and gubernatorial approval
that would be required to refine the MPO jurisdictional boundaries and
member composition. Two MPOs stated that 2 years for compliance was not
sufficient time for MPOs that are organized based upon State
legislation, or are part of a Regional Planning Agency (RPA) or Council
of Governments (COG) that would require re-establishment of roles
through the State legislative process. One State DOT and numerous MPOs
commented that the 2-year timeframe proposed in the NPRM was
insufficient to draft new agreements and receive approval through
multiple agencies. One State DOT commented that if there are disputes
between the State and MPOs, it would significantly lengthen the
timeframe for implementation. Three MPOs stated that a 2-year phase in
period was not sufficient for a large, multistate area to draft new
agreements and develop new structures, new rules and new planning
processes.
Two COGs and eight local governments commented that 2 years was too
aggressive given the extent of the required changes, resignations, and
coordination agreements. They cited the experience of merging MPOs to
form the Lower Connecticut River Valley Council of Governments, which
took 4 years despite being a voluntary merger. Based upon this
experience, they expressed doubt that the 2-year timeframe proposed in
the NPRM would provide adequate time to complete a merger of MPOs to
comply with the proposed rule.
Many commenters cited the complexity of implementing performance-
based planning, and of requirements to prepare a new MTP and TIP, in
concluding that the 2-year phase-in period was not sufficient. One
transit agency noted that the 2-year timeline would be difficult to
meet given the requirement to coordinate performance targets,
particularly where a UZA crosses State boundaries and the MPOs must
reconcile multiple goals and objectives. Two MPOs and one State DOT
stated that if the MPOs are on different MTP cycles and need to develop
a unified MTP and TIP, the proposed 2-year timeframe would be very
tight. One State DOT and one MPO noted that in the case of an expanded

[[Page 93459]]

boundary of the MPA, regional travel models would require updates that
could not be completed within the 2-year timeframe. With regard to the
timeline proposed in the NPRM's Sec. 450.312(i) for MPA boundary
redeterminations after release of the U.S. Bureau of the Census notice
of the Qualifying Urban Areas, two State DOTs stated that 180 days
would not be sufficient for MPOs to determine if they should be merged
or develop unified planning products.
One association noted that the phase-in period of 180 days for the
metropolitan planning agreements and the phase-in period of 2 years for
the coordinated planning products were not aligned, and that the
metropolitan planning agreements could not be updated until the MPO
boundaries are determined. The commenter proposed that the timeframes
for revision of the MPO jurisdictional boundaries and metropolitan
planning agreements need to be aligned. Two MPOs recommended that the
new requirements be phased in to support the air quality attainment
deadlines and requirements that will be established for the phase-in of
the revised 2015 National Ambient Air Quality Standards (NAAQS) for
Ozone, designations which are to occur by October 1, 2017, in
accordance with the Clean Air Act (CAA), recognizing that the
nonattainment areas will have to conform their TIPs and MTPs to the
SIP.
Eleven MPOs, three State DOTs, two COGs, and three associations
requested FHWA and FTA delay the requirement until after the 2020
decennial census to allow more time for implementation and avoid
duplication of effort resulting from undertaking MPO coordination
activities within 2 years after the effective date of the final rule
and another set of MPO coordination activities after the release of the
U.S. Census Bureau notice of new UZA boundaries following the 2020
decennial census.
Two State legislators and one local government commented that if
the MPOs in Connecticut that recently completed a voluntary merger
would be required to do another round of mergers within 2 years as a
result of the proposed rule, and then be required to merge again after
the 2020 census, it would be inefficient and waste staff time used for
the previous MPO merger.
One State DOT commented that the proposed requirement should be
suspended until the dispute resolution process could be fully
developed. One association recommended that the implementation time
should be extended to 4 years.
The FHWA and FTA recognize the challenges involved in defining MPA
boundaries, negotiating new agreements, and implementing new planning
processes in large and complex MPAs. The FHWA and FTA agree that it
would be burdensome for MPOs and local planning partners to reconsider
MPA boundaries 2 years after the date of the final rule, and then
reconsider the boundaries and agreements after the 2020 census.
Therefore, in the final rule FHWA and FTA have changed the compliance
date in Sec. Sec. 450.266(g) and 450.340(h) to the next MTP update
occurring on or after the date that is 2 years after the date the
Census Bureau releases its notice of Qualifying Urban Areas following
the 2020 census. The FHWA and FTA also changed the 180-day deadline,
now in redesignated Sec. 450.312(j), to 2 years after the release of
the U.S. Bureau of the Census notice of the Qualifying Urban Areas for
a decennial census.

Legal Authority

MPA Boundary Requirements
The FHWA and FTA received a number of comments questioning the
proposed requirement that the MPA include the entire urbanized area and
contiguous area expected to become urbanized within a 20-year forecast
period for the transportation plan. Commenters indicated Congress
intended the statute to leave all MPA boundary determinations to
Governors and local governments. The Capital Region Council of
Governments stated that the current planning regulations reflect the
flexibility of MPA boundaries implicit in the statute, and the proposed
rule removed that flexibility. The Sherman-Denison MPO commented that
the statutory language on MPA boundaries has not changed since ISTEA
and suggested new statutory language would be required to support a
change in interpretation by FHWA and FTA. Commenters cited 23 U.S.C.
134(e)(3) \13\ and 23 U.S.C. 135(d) \14\ as evidence that FHWA and FTA
lack authority to dictate MPA boundaries or to require changes in MPA
boundaries. In particular, the Pennsylvania Department of
Transportation cited 23 U.S.C. 134(d)(4) and (5) as barring the changes
in boundary provisions in the proposed rule. A few commenters asked
whether areas designated as nonattainment as of August 10, 2005, would
be allowed to retain their boundaries due to provisions in existing 23
CFR 450.312(b) and whether such MPAs would be subject to the proposed
rule's unified planning products requirements.
---------------------------------------------------------------------------

\13\ 23 U.S.C. 134(e)(3) provides ``[i]dentification of new
urbanized areas within existing planning area boundaries.--The
designation by the Bureau of the Census of new urbanized areas
within an existing metropolitan planning area shall not require the
redesignation of the existing metropolitan planning organization.''
\14\ 23 U.S.C. 134(d) establishes in detail the process for
designation and redesignation of MPOs by the Governor and local
governments, as well as organizational and representation
requirements for MPOs. 23 U.S.C. 134(d)(4) and (d)(5) address the
continuing authority of agencies with multimodal transportation
responsibilities as of December 18, 1991, and continuity of MPO
designations until redesignation occurs. 23 U.S.C. 134(d)(7)
establishes authority for the designation of more than one MPO in an
MPA if the size and complexity of the existing MPA make it
appropriate to do so.
---------------------------------------------------------------------------

In response to these comments, FHWA and FTA point to the statutory
provisions defining MPA boundaries. The statute is explicit with regard
to the minimum required inclusions: The existing urbanized area, as
designated by the Census Bureau, plus the contiguous area expected to
become urbanized within a 20-year forecast period for the
transportation plan. 23 U.S.C. 134(e)(2)(A). While setting the
boundaries of the 20-year forecast area may be subject to some
discretion given the need to make judgments about future events, the
statute leaves no room for interpretation about what constitutes the
Census Bureau-designated urbanized area. The FHWA and FTA acknowledge
their joint metropolitan planning regulations have not been clear with
regard to the treatment of urbanized areas under this statutory
boundary provision. Due to this lack of clarity, FHWA and FTA have been
aware for some time that the practices of some MPOs have not been
consistent with these statutory MPA boundary requirements. This rule is
intended to correct these problems by more closely aligning the
regulatory boundary provisions with 23 U.S.C. 134(e)(2). An agency has
discretion to alter a prior interpretation of a statute it administers
if the agency follows the proper procedures (e.g., notice-and-comment
rulemaking) and engages in reasonable decisionmaking that meets the
requirements of the Administrative Procedure Act.\15\ The FHWA and FTA
believe this rulemaking meets those standards.
---------------------------------------------------------------------------

\15\ See FCC v. Fox Television 556 US 502, 514-16 (2009).
---------------------------------------------------------------------------

The FHWA and FTA do not agree that this rule conflicts with 23
U.S.C. 134(d)(4) and (5). First, if the MPO designation provisions
controlled the determination of MPA boundaries, there would be no need
for the separate boundary-setting provisions in 23 U.S.C. 134(e). As a
matter of statutory interpretation, FHWA and FTA decline

[[Page 93460]]

the commenters' invitation for FHWA and FTA to ignore the boundary
provisions when applying the statute. The statute does not support the
comments. Section 134(d)(4) contains a grandfathering provision that
exempts certain MPOs only from the other requirements of 23 U.S.C.
134(d), and Section 134(d)(5) only states that an MPO designation
remains effective until the MPO is redesignated. The remaining
paragraphs of 23 U.S.C. 134(d) set methods for designating and
redesignating MPOs (paragraphs (1) and (6)), and set a specific
structure and board membership for any MPO serving a transportation
management area (paragraphs (2) and (3)). Paragraph (7) permits the
designation of more than one MPO in an MPA if the MPA is unusually
large and complex, a possibility that is fully incorporated into this
rule. In summary, Section 134(d) defines how MPOs are designated and
the structure of certain MPOs; it does not describe the MPAs that the
MPOs must conduct planning for, which is left to Section 134(e). Thus,
Section 134(d) does not conflict with this rule's MPA boundary
requirements.
Moreover, 23 U.S.C. 134(e)(3) is instructive with respect to the
relationship between the designation/redesignation provisions in 23
U.S.C. 134(d) and the MPA boundary provisions in 23 U.S.C. 134(e). The
inclusion of the redesignation exception in 23 U.S.C. 134(e)(3)
confirms that Congress viewed the MPA boundary provisions to operate
independently of the designation/redesignation provisions. Thus,
questions about the need for designation or redesignation, and how that
would occur, are separate from, and do not alter the effects of, MPA
boundary provisions in 23 U.S.C. 134(e).
This rule also does not conflict with 23 U.S.C. 134(e)(3), which
provides that if the Bureau of the Census designates a new urbanized
area within an existing MPA, a redesignation of the existing MPO is not
required. The rule does not alter provisions pertaining to designation
of new urbanized areas by the Census Bureau, and it retains the
regulatory version found in 23 CFR 450.312(e).
Commenters asked about the effect of 23 CFR 450.312(b)
(implementing 23 U.S.C. 134(e)) concerning boundary retention for MPAs
in urbanized area designated as nonattainment for ozone or carbon
monoxide as of August 10, 2005. The commenters asked what the effect of
the rule would be if UZAs extended into two MPAs and whether, if such
MPAs kept their August 10, 2005, boundaries under the proposed rule,
the MPOs serving such MPAs would be subject to the unified planning
requirements in the proposed rule. In response, FHWA and FTA continue
to give the same meaning to 23 CFR 450.312(b) and 23 U.S.C. 134(e)(4)
as they have since Congress enacted the provision in TEA-21 (1998) and
modified it in SAFETEA-LU (2005). The FHWA and FTA conclude that
Congress intended the provision to be time-limited to address issues
that had arisen at the time these statutes were enacted, not to create
a permanent or global exemption from other boundary requirements under
the statute, including those in 23 U.S.C. 134(e)(2). Their purpose and
effect have lapsed; the exemption found in subsection (e)(4) are
bounded by the life of the nonattainment designations for ozone and
carbon monoxide that were in effect as of August 10, 2005. In 2012, EPA
made new ozone nonattainment designations under the 2008 ozone
standards.\16\ The EPA also revoked the 1997 ozone standards, under
which designations were in effect in 2010.\17\ The EPA terminated all
nonattainment designations for carbon monoxide by September 27, 2010,
when EPA designated all existing nonattainment areas as attainment or
maintenance areas.\18\ Those urbanized areas originally covered by 23
U.S.C. 134(e)(4), but which are subject to these post-2005 EPA
nonattainment designations for ozone and/or carbon monoxide, are now
subject to 23 U.S.C. 134(e)(5). Section 134(e)(5) requires the MPA to
encompass the entire urbanized area plus the 20-year forecast area as
described in 23 U.S.C. 134(e)(2)(A). Similarly, those urbanized areas
originally covered by 23 U.S.C. 134(e)(4) but which are subject to the
post-2005 EPA designations of areas in attainment or maintenance for
ozone or carbon monoxide no longer need the protection that this
provision provided; they, too, are subject to boundary requirements of
23 U.S.C. 134(e)(2)(A). Thus, all of these areas are now subject to the
boundary and unified planning provisions in this rule.
---------------------------------------------------------------------------

\16\ See EPA ozone designation notices at 77 FR 30088 (May 21,
2012) and 77 FR 34221 (June 11, 2012).
\17\ The EPA initially issued a notice revoking the 1997
standards for transportation conformity purposes only. See EPA
notice at 77 FR 30160 (May 21, 2012). As a result of litigation,
that partial revocation was determined invalid and EPA issued a full
revocation. See 80 FR 12264 (March 6, 2015).
\18\ A list of EPA's Federal Register redesignation notices for
carbon monoxide, including redesignations from August 10, 2005,
through September 27, 2010, is available at https://www3.epa.gov/airquality/greenbook/cfrnrpt1.html.
---------------------------------------------------------------------------

Unified Planning Products Requirements
A number of commenters stated that the proposed requirement for
unified planning products is not found in the metropolitan planning
statute and exceeds congressional intent. Some cited language in 23
U.S.C. 134(i)(1)(A) as evidence that the proposed requirement conflicts
with the statute.\19\ Others cited 23 U.S.C. 134(c) \20\ and (j) \21\
for the same purpose. A joint comment letter from the Association of
Metropolitan Planning Organizations, NARC, and the National Association
of Development Organizations stated that the proposal is contrary to
the practical framework and to 23 U.S.C. 134(b), (h)(2), (i), and (j).
The commenters indicated the plain language of 23 U.S.C. 134, when
viewed in the context of the statute, made it evident the proposal
exceeds statutory authority. The commenters further stated that
coordination among multiple MPOs in the same MPA is governed by 23
U.S.C. 134(f)(1) \22\ and 134(g)(1),\23\ and that the NPRM proposal
exceeds those provisions. According to the commenters, had Congress
intended to create such a complicated and intricate

[[Page 93461]]

requirement, it would have explicitly done so. The commenters pointed
to 23 U.S.C. 134(g) as the sole part of the statute where Congress
addresses MTP and TIP coordination among multiple MPOs in an MPA.\24\
The commenters also pointed to the 23 U.S.C. 134(f)(1) provision for
coordination across State lines, as well as 23 U.S.C. 134(i), as
evidence that Congress did not intend to require unified planning
products or to give DOT the authority to do so. The commenters stated
that the performance-based planning provisions in 23 U.S.C. 134(h),
adopted by Congress in MAP-21, reaffirmed the expectation that each MPO
must produce its own planning products because the statute does not
explicitly allow for the possibility of unified planning by multiple
MPOs in a single MPA. The commenters rebutted the discussion in the
NPRM that stated the NPRM proposals represented a return to more
extensive coordination and decisionmaking requirements under the 1993
version of the planning regulations.
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\19\ 23 U.S.C. 134(i)(1)(A) states, in part, ``[e]ach
metropolitan planning organization shall prepare and update a
transportation plan for its metropolitan planning area in accordance
with the requirements of this subsection.''
\20\ 23 U.S.C. 134(c)(1) provides ``[t]o accomplish the
objectives in subsection (a), metropolitan planning organizations
designated under subsection (d), in cooperation with the State and
public transportation operators, shall develop long-range
transportation plans and transportation improvement programs through
a performance-driven, outcome-based approach to planning for
metropolitan areas of the State .'' Section 134(c)(2) states, in
part, ``. . . [t]he plans and TIPs for each metropolitan area shall
provide for [systems and facilities] . . . that will function as an
intermodal transportation system for the metropolitan planning area
. . .''
\21\ 23 U.S.C. 134(j)(1)(A) states, in part, ``. . . the
metropolitan planning organization designated for a metropolitan
area shall develop a TIP for the metropolitan planning area . . .''
Sections 134(j)(1)(B), (j)(1)(C), (j)(1)(D)(ii), (j)(4), (j)(6)(A)-
(b) similarly use the singular reference to MPO in provisions
concerning development, approval, and publication of the TIP and the
selection of projects.
\22\ 23 U.S.C. 134(f)(1) states, in part, ``[t]he Secretary
shall encourage each Governor with responsibility for a portion of a
multistate metropolitan area and the appropriate metropolitan
planning organizations to provide coordinated transportation
planning for the entire metropolitan area.''
\23\ 23 U.S.C. 134(g)(1) reads ``Nonattainment areas.--If more
than 1 metropolitan planning organization has authority within a
metropolitan area or an area which is designated as a nonattainment
area for ozone or carbon monoxide under the Clean Air Act (42 U.S.C.
7401 et seq.), each metropolitan planning organization shall consult
with the other metropolitan planning organizations designated for
such area and the State in the coordination of plans and TIPs
required by this section.''
\24\ In addition to the nonatttainment area provisions in 23
U.S.C. 134(g)(1), the section includes provisions for coordinating
transportation improvements located within the boundaries of more
than one MPA (23 U.S.C. 134(g)(2)), and for consultation and
consideration of other types of planning activities under the
responsibility of other types of entities (23 U.S.C. 134(g)(3)).
---------------------------------------------------------------------------

Several commenters stated that DOT's long-standing interpretation
of the planning statute as allowing separate MTPs and TIPs for MPOs
sharing an urbanized area confirms that the NPRM proposal for unified
planning products is contrary to the existing statute. Commenters
stated that the DOT reauthorization proposal, the Generating Renewal,
Opportunity and Work with Accelerated Mobility, Efficiency, and
Rebuilding of Infrastructure and Communities throughout America Act
(GROW AMERICA Act), contained provisions like those in the NPRM.
According to the commenters, the GROW AMERICA Act provisions serve as
an admission by DOT that new statutory authority is required to support
the NPRM's proposals. Some commenters stated that Congress has had a
number of opportunities over the years to adopt provisions like those
in the NPRM, specifically including enactment of the MAP-21 and the
FAST Act, but has chosen not to do so.
The FHWA and FTA have fully considered the comments stating the
proposals conflict with 23 U.S.C. 134 in general; conflict specifically
with 23 U.S.C. 134(b), (e), (i), (f)(1), (g), (h), and (j); and
conflict with existing metropolitan planning practices. The FHWA and
FTA understand that the commenters believe the statute makes it evident
that: (1) Each MPO is allowed to prepare its own MTP and TIP,
regardless of whether the MPO is the sole MPO in its MPA or is one of
two or more MPOs in the MPA; and (2) where an MPA crosses State lines,
the Secretary's authority is limited to encouraging the affected MPOs
to coordinate for the entire MPA.
The FHWA and FTA do not agree that the statute constrains the
agencies' authority in the manner commenters suggest. Nothing in 23
U.S.C. 134(f)(1) and (g)(1) or any other part of Section 134 clearly
establishes the applicable coordination requirements.
The FHWA and FTA first considered whether 23 U.S.C. 134(f)(1) and
(g)(1) expressly address the question of how multiple MPOs in the same
MPA handle coordination and decisionmaking within the MPA. The answer
rests on whether the use of the term ``metropolitan area'' in the two
provisions means ``metropolitan planning area'' as defined in 23 U.S.C.
134(b)(1). The FHWA and FTA believe that the term ``metropolitan area''
in 23 U.S.C. 134(f)(1) and (g)(1) is ambiguous, thus providing FHWA and
FTA authority to interpret the vague statutory language.\25\
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\25\ Chevron, U.S.A. v. Natural Resources Defense Council, Inc.,
464 U.S. 837, 862-864 (1984).
---------------------------------------------------------------------------

The enactment of ISTEA in 1991 produced the first detailed
metropolitan planning statute, codified in 23 U.S.C. 134. The ISTEA
version of the metropolitan planning statute used the term
``metropolitan area'' in various provisions governing planning area
boundaries, multistate coordination, and coordination among planning
entities.\26\ The statute did not define the term. In the next
reauthorization act, TEA-21 (1998), Congress reenacted the metropolitan
planning statute in its entirety, including substantial amendments to
many parts of the statute. Congress substituted the term ``metropolitan
planning area'' for both ``urbanized area'' and ``metropolitan area''
in several places in the statute. Specifically, Congress replaced
``metropolitan area'' with ``metropolitan planning area'' in the 23
U.S.C. 134(c) (1998) provision on planning boundaries, but Congress
retained ``metropolitan area'' in the multistate coordination provision
in 23 U.S.C. 134(d) (1998) and in the coordination provision in section
134(e) (1998). Neither ``metropolitan area'' nor ``metropolitan
planning area'' was defined in TEA-21.
---------------------------------------------------------------------------

\26\ See, e.g., 23 U.S.C. 134(c), (d)(1), and (e).
---------------------------------------------------------------------------

In SAFETEA-LU (2005), Congress again reenacted the entire
metropolitan planning statute. Congress added a statutory definition
for the term ``metropolitan planning area'' that remains in effect
today. The statutory definition states ``[t]he term metropolitan
planning area means the geographic area determined by agreement between
the metropolitan planning organization for the area and the Governor
under subsection (e).'' 23 U.S.C. 134(b)(1). Subsection (e), which
limits the discretion of the Governor and the MPO in setting MPA
boundaries, defines minimum and optional MPA boundaries. As in TEA-21,
Congress retained the use of ``metropolitan area'' in a number of
provisions, including in (1) the multistate coordination provision,
which was redesignated from section 134(d) to section 134(f); and (2)
the coordination provision, which was redesignated from section 134(e)
to section 134(g). Congress did not adopt a definition of
``metropolitan area'' in SAFETEA-LU or in subsequent legislation.
This history leads FHWA and FTA to conclude that Congress intended
the two terms to have different meanings. Even if FHWA and FTA treat
the statutory history as insufficient evidence of congressional intent,
the conclusion is the same. Under conventions of statutory
interpretation, where congressional intent is unclear, if a word is not
statutorily defined or a term of art, it is typically given its
ordinary meaning.\27\ In 23 U.S.C. 134, the terms ``urbanized area''
and ``metropolitan planning area'' are terms defined by the statute. 23
U.S.C. 134(b)(1) and (7). By contrast, ``metropolitan area'' is not
defined. That leaves the question whether it is a term of art, or a
term that should be given its ordinary meaning. Either result leads
FHWA and FTA to conclude that the multistate provision in 23 U.S.C.
134(f)(1), and the coordination provision in 23 U.S.C. 134(g)(1), as
well as their statutory predecessors, refer not to metropolitan
planning areas as defined in 23 U.S.C. 134(b)(1), but to broader areas
that include both an urban core and adjacent communities. The FHWA and
FTA believe it is reasonable to consider ``metropolitan area'' a term
of art in the context of the metropolitan planning statute, and to look
to the U.S. Census Bureau for a definition just as 23 U.S.C. 134(b)(7)
looks to the Census

[[Page 93462]]

Bureau for the definition of ``urbanized area.''
---------------------------------------------------------------------------

\27\ See 2A Sutherland Statutory Construction Sec. 47:29 (7th
ed.).
---------------------------------------------------------------------------

The Census Bureau describes the term ``metropolitan area'' as
having been adopted in 1990 to collectively refer to the metropolitan
statistical areas, consolidated metropolitan statistical areas, and
primary metropolitan statistical areas.\28\ Metropolitan statistical
areas are core-based statistical areas ``associated with at least one
urbanized area that has a population of at least 50,000; it comprises
the central county or counties or equivalent entities containing the
core, plus adjacent outlying counties having a high degree of social
and economic integration with the central county or counties as
measured through commuting.'' \29\ The metropolitan planning statute
recognizes these larger areas in the 23 U.S.C. 134(e) MPA boundaries
provision, which provides the MPA ``may encompass the entire
metropolitan statistical area or consolidated metropolitan statistical
area, as defined by the Bureau of the Census.'' 23 U.S.C. 134(e)(2)(B).
---------------------------------------------------------------------------

\28\ ``About Metropolitan and Micropolitan Statistical Areas,''
U.S. Census Bureau, available online at http://www.census.gov/population/metro/about/.
\29\ ``Geographic Cores and Concepts--Core-Based Statistical
Areas and Related Statistical Areas'', U.S. Census Bureau, available
at https://www.census.gov/geo/reference/gtc/gtc_cbsa.html.
---------------------------------------------------------------------------

Based on this analysis, FHWA and FTA have concluded that the
coordination provisions of 23 U.S.C. 134(f)(1) and (g)(1) establish the
coordination requirements applicable when there are two or more MPOs in
a general metropolitan area. Neither provision prescribes requirements
that govern coordination among MPOs where more than one MPO has been
designated in the same MPA. This interpretation gives meaning to both
the undefined term ``metropolitan area'' and the statutorily-defined
term ``metropolitan planning area.'' \30\
---------------------------------------------------------------------------

\30\ ``It is the duty of the court to give effect, if possible,
to every clause and word of a statute, avoiding, if it may be, any
construction which implies that the legislature was ignorant of the
meaning of the language it employed.'' Montclair v. Ramsdell, 107
U.S. 147, 152 (1883).
---------------------------------------------------------------------------

The remaining parts of 23 U.S.C. 134 also do not definitively
establish how multiple MPOs in the same MPA are to coordinate their
plans and TIPs. The FHWA and FTA considered both individual provisions
in 23 U.S.C. 134, and the statute as a whole, and considered the
statute in the context of metropolitan transportation planning
practices. Many sections of 23 U.S.C. 134, including those specific to
MTP and TIP preparation, reference the responsibilities of MPOs in the
singular. The language on MTPs and TIPs refers to ``each'' MPO and
``the'' MPO. Commenters state this use of the singular form means that
each MPO has the right to prepare its own plan and TIP, regardless of
the presence of other MPOs in the statutorily-defined MPA.
However, the use of the singular in those statutory provisions is
subject to different interpretations. First, as a matter of statutory
construction, absent clear language to the contrary, the use of the
singular in statutory language includes the plural and vice-versa.\31\
Thus, the provisions cited by commenters could be read in either the
singular or the plural, and the use of the singular is not
determinative. Second, it is evident from a comprehensive reading of
the MPA and MPO provisions in 23 U.S.C. 134 that the statute intends
for a typical MPA to have a single MPO responsible for the entire MPA,
including the urbanized area(s) included in the MPA. E.g., MPA boundary
provisions in 23 U.S.C. 134(e). If Congress had not intended the norm
to be ``one MPO per MPA,'' there would have been no need for the
exception provision in 23 U.S.C. 134(b)(7), which allows the
designation of more than one MPO in an MPA under certain circumstances.
Thus, it is not surprising that statutory provisions addressing the
development and use of plans and TIPs are written to address the norm,
and are cast in the singular.
---------------------------------------------------------------------------

\31\ 1. U.S.C. 1; see also 2A Sutherland Statutory Construction
Sec. 47:34 (7th ed.).
---------------------------------------------------------------------------

The FHWA and FTA have thus determined that Congress did not
directly address the question of how multiple MPOs in the same MPA
ought to coordinate and make planning decisions for the MPA. This
determination includes the situation where the MPA (as defined in 23
U.S.C. 134(b)(1)) crosses State lines. Accordingly, FHWA and FTA are
charged with deciding how such coordination ought to occur. This rule
addresses that question.
The FHWA and FTA disagree with comments stating the proposed rule
exceeds FHWA's and FTA's authority because the rule would change long-
standing FHWA/FTA statutory interpretations of MPA boundary
requirements that Congress has tacitly endorsed. While FHWA and FTA
acknowledge that there is a general presumption that Congress acts with
knowledge of agency regulatory interpretations of a statute,\32\ the
law is clear that an agency has the discretion to alter its
interpretation of a statute so long as the agency follows the proper
procedures (e.g., notice-and-comment rulemaking) and engages in
reasonable decisionmaking that meets the requirements of the
Administrative Procedure Act.\33\ The FHWA and FTA believe this
rulemaking satisfies both of those tests.
---------------------------------------------------------------------------

\32\ See 2A Sutherland Statutory Construction Sec. 47:8 (7th
ed.).
\33\ Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 863-864 (1984), ``[a]n initial agency
interpretation is not instantly carved in stone. On the contrary,
the agency, to engage in informed rulemaking, must consider varying
interpretations and the wisdom of its policy on a continuing basis.
Moreover, the fact that the agency has adopted different definitions
in different contexts adds force to the argument that the definition
itself is flexible, particularly since Congress has never indicated
any disapproval of a flexible reading of the statute.''
---------------------------------------------------------------------------

The FHWA and FTA also disagree with comments stating that the
proposed rule exceeds FHWA's and FTA's authority because Congress
rejected or failed to adopt the same provisions in MAP-21 and the FAST
Act, including not adopting DOT's GROW AMERICA proposals. An agency's
submission of a proposal for legislation does not constitute an
admission that additional statutory authority is needed in order to
accomplish the objectives of the regulatory proposal. An agency submits
legislative proposals for a variety of reasons, including a desire to
have Congress clarify existing authority in order to overcome potential
opposition from the public or other stakeholders to the agency's
exercise of the authority. Similarly, the absence of an agency's
submitted legislative proposal in subsequently enacted legislation does
not constitute affirmative evidence that Congress rejected the proposal
or determined the agency lacked sufficient authority under existing
law. There may be many reasons for the legislative outcome, including a
congressional decision that existing law is sufficient to authorize the
proposal.\34\
---------------------------------------------------------------------------

\34\ See Alexander v. Sandoval, 532 U.S. 275, 292-93 (2001).
---------------------------------------------------------------------------

Finally, FHWA and FTA considered the comments stating that
Congress's enactment of performance-based planning requirements in 23
U.S.C. 134(h) proves the statute requires each MPO to produce its own
planning products. The FHWA and FTA believe Congress crafted the
provisions in 23 U.S.C. 134(h), like those in other parts of the
statute, to establish the process for the typical MPA structure of one
MPO per MPA. For the reasons previously discussed, FHWA and FTA believe
Congress did not explicitly address the question of how MPOs are to
establish targets where there is more

[[Page 93463]]

than one MPO in the same MPA. This rule addresses that question.

V. Summary of Major Changes Made in the Final Rule

The final rule includes the changes proposed in the NPRM, but with
the revisions and additions described below, which FHWA and FTA made in
response to comments.

Subpart B--Statewide and Nonmetropolitan Transportation Planning and
Programming

450.226 Phase-In of New Requirements
Under this final rule, the implementation deadline for the
requirement that States, MPOs and operators of public transportation
have a current metropolitan planning agreement, which will identify
coordination strategies that support cooperative decisionmaking and the
resolution of disagreements, is changed from not later than 2 years
after the date of publication of the rule to not later than 2 years
after the date the Census Bureau releases its notice of Qualifying
Urban Areas following the 2020 census.

Subpart C--Metropolitan Transportation Planning and Programming

450.312 Metropolitan Area Boundaries
Section 450.312(i) (as redesignated)--The final rule creates an
exception, in new Sec. 450.312(i), to the unified planning products
requirements applicable where there are two or more MPOs in the same
MPA. The exception allows the multiple MPOs in an MPA to continue to
generate separate, but coordinated and consistent, planning products if
FHWA and FTA approve a request from the affected Governor(s) and all
MPOs in the MPA that meets the requirements established in Sec.
450.450(i). The exception is discussed in detail under Unified Planning
Products: Requirements and Exception in the ``Discussion of Major
Issues Raised by Comments'' section of this preamble.
Section 450.312(j) (as redesignated)--The final rule changes the
time period MPOs have to adjust MPA boundaries after a U.S. Census
Bureau designation that defines two previously separate UZAs as a
single UZA. The final rule changes the time period for review and
adjustment of MPA boundaries, so that one MPA includes the entire new
UZA area, from 180 days to 2 years after the date the Census Bureau
releases its notice of Qualifying Urban Areas following a decennial
census.
450.340 Phase-In of New Requirements
In the final rule, FHWA and FTA changed the deadline in Sec.
450.340(h) to provide additional time for compliance and to clarify the
scope of the phase-in provision. The deadline for compliance proposed
in the NPRM was the next MTP update occurring on or after 2 years after
the effective date of the rule. The deadline for compliance in the
final rule is the next MTP update occurring on or after the date that
is 2-years after the date the U.S. Census Bureau releases its notice of
Qualifying Urban Areas following the 2020 census. For clarity, the
final rule lists the sections to which this phase-in provision applies.

VI. Section-by-Section Discussion of Changes Made in the Final Rule

Subpart B--Statewide and Nonmetropolitan Transportation Planning and
Programming

Section 450.226--Phase-In of New Requirements
The rule provides a phase-in provision for the requirement in 23
CFR 450.208(a)(1) that metropolitan planning agreement must include
strategies for coordination and the resolution of disagreements. In
Sec. 450.226(h), the rule provides a phase-in period ending 2 years
after the date the Census Bureau releases its notice of Qualifying
Urban Areas following the 2020 census.

Subpart C--Metropolitan Transportation Planning and Programming

Section 450.312--MPA Boundaries
The rule removes the first sentence of Sec. 450.312(b), which is
outdated grandfathering language concerning MPAs with August 10, 2005,
nonattainment designations for ozone and carbon monoxide. Comments
received in response to the NPRM showed the provision causes confusion
about the applicability of other parts of the regulation. The FHWA and
FTA have concluded the statutory provision on which the grandfather
provision was based no longer has any effect. See discussion in Legal
Authority, MPA Boundary Requirements in the Response to Major Issues
Raised by Comments. The FHWA and FTA revised the second sentence to
clarify the reference to designation procedures and add a reference to
MPA boundary provisions.
The rule adds Sec. 450.312(i) as a result of comments received on
the NPRM. The new paragraph creates an exception from the unified
planning products requirements established by the rule. The exception
is discussed in detail under Unified Planning Products: Requirements
and Exception in the ``Discussion of Major Issues Raised by Comments''
section of this preamble.
The rule changes the Sec. 450.312(j) (as redesignated) time period
for review and adjustment of MPA boundaries after a U.S. Census Bureau
designation that defines two previously separate UZAs as a single UZA,
so that one MPA includes the entire new UZA area, from 180 days to 2
years after the date the Census Bureau releases its notice of
Qualifying Urban Areas following a decennial census. The rule also
clarifies that Governor(s) and MPO(s) are responsible for reviewing MPA
boundaries after each census and taking action to adjust MPA boundaries
as needed to comply with boundary requirements.
Section 450.340--Phase-In of New Requirements
The rule adds phase-in provisions to Sec. 450.340 for certain
parts of Subchapter C. In a new paragraph (h), States and MPOs are
given a longer time period than proposed in the NPRM to become fully
compliant with the new MPA boundary and MPO boundaries agreement
provisions, and with the requirements for jointly established
performance targets and a single MTP and TIP for the entire MPA. To
address comments on implementation timelines and the need for greater
clarity in the rule, the phase-in provision lists the specific parts of
Subchapter C subject to delayed compliance. Section 450.340 requires
the Governor(s) and MPOs to document their determination of whether the
size and complexity of the MPA justifies the designation of multiple
MPOs; however, that decision is not subject to approval by FHWA and
FTA. Full compliance for all MPOs within the MPA will be required
before the next regularly scheduled update of an MTP for any MPO within
the MPA, following the date that is 2 years after the date the Census
Bureau releases its notice of Qualifying Urban Areas following the 2020
census.

VII. Regulatory Analyses and Notices

A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures

The FHWA and FTA have determined that this rulemaking is a
significant regulatory action within the meaning of Executive Order
12866 and within the meaning of DOT regulatory policies and procedures
due to significant public interest in the area of MPO reform.

[[Page 93464]]

However, this rule is not estimated to be economically significant
within the meaning of E.O. 12866. This action complies with E.O.s 12866
and 13563 to improve regulation.
This final rule improves the clarity of the joint FHWA and FTA
planning rules by better aligning the regulations with the statute.
Additionally, the MPOs within the same MPA must establish procedures
for joint decisionmaking as well as a process for resolving
disagreements. These changes also are intended to result in better
outcomes for the MPOs, State agencies, providers of public
transportation, and the public by promoting a regional focus for
metropolitan planning, and by unifying MPO processes within an
urbanized area in order to improve the ability of the public to
understand and participate in the transportation planning process.
The unified planning requirements of this rule affect primarily
urbanized areas with multiple MPOs planning for parts of the same UZA,
or 142 of the 409 MPOs in the country. The affected MPOs are: (1) MPOs
that have been designated for an urbanized area for which other MPOs
also have been designated; and/or (2) MPOs where an adjacent urbanized
area has spread into its MPA boundary as a result of the periodic U.S.
Census Bureau redesignation of UZAs. An MPO designated as an MPO in
multiple MPAs, in which one or more other MPOs are also designated,
would be required to participate in the planning processes for each
MPA. Thus, under this rule, MPOs that have jurisdiction in more than
one MPA would be required to participate in multiple separate planning
processes. However, the affected MPOs could exercise several options to
reduce or eliminate these impacts, including adjusting MPA boundaries
to eliminate overlap, or by merging MPOs. In some cases, a Governor (or
Governors in the case of multistate urbanized areas) and MPOs could
determine that the size and complexity of the area make designation of
multiple MPOs in a single MPA appropriate. In that case, the rule
requires those multiple MPOs to jointly develop unified planning
products: A single MTP, a single TIP, and a jointly-established set of
performance targets for the MPA. The final rule includes a new option
for MPAs with multiple MPOs that offers, under certain conditions, an
exception to the requirement for unified planning products. Further,
the final rule requires all MPOs to ensure their agreements with State
DOTs and providers of public transportation include written procedures
for joint decisionmaking and dispute resolution.
The FHWA and FTA have estimated that the maximum annual cost of
implementation of the provisions of this action would be $86.3 million.
This estimate used high cost estimates to avoid any risk of
underestimation. After evaluating the costs and benefits of this final
action, FHWA and FTA conclude that the maximum nationwide impact does
not exceed the $100 million annual threshold that defines a significant
economic impact.
When extending the comment period FHWA and FTA requested additional
comments on the potential costs of the rule, and the analysis conducted
drew upon these submitted comments. One hundred fifty-eight respondents
commented on FHWA's and FTA's evaluation of the costs and benefits of
these proposed amendments. All of the respondents who commented on this
section indicated that the evaluation underestimated the cost to
implement the proposed regulatory provisions. Some respondents noted
the following: The analysis of the costs of the proposed changes seems
simplistic and inadequate; the NPRM provides no calculations or
evidence to justify its assertion that costs will be minimal; the
proposed rule does not fully contemplate the level of additional work
that will be required for State DOTs and MPOs to comply with the
changes; and evidence suggests that the costs will not be minimal.
Others claimed that the increased costs would be considerable or
significant and that merging MPOs is a time-consuming, complex and
costly process. One stated that merging MPOs would require the
involvement of multiple boards, commissions, and councils, as well as
cost time and money, highlighting that the attorney fees alone for the
multiple organizations in the process of any merger would be daunting.
Many claimed that the NPRM would impose immense budgetary and
administrative burdens on their jurisdictions, and that the
administrative effort and expense would be huge. Thirteen respondents
noted that the formation of the Lower Connecticut River Valley Council
of Governments resulting from the voluntary merger of Connecticut River
Estuary Regional Planning Agency and Midstate Regional Planning Agency
cost approximately $1.7 million in staff time and direct costs and took
4 years to complete. The Michigan Department of Transportation noted
that the process to establish a new MPO for the Midland UZA took 18
months and approximately $300,000. The Richmond Regional Transportation
Planning Organization stated that FHWA and FTA should consider the
direct capital costs, lost productivity and opportunity costs for staff
and elected officials, and other indirect costs in analyzing the
financial impact of the proposed rule upon affected MPOs.
The AASHTO noted that the NPRM does not take into account the
additional resources needed to implement the proposed provisions.
Others pointed out that no additional funding is proposed and suggested
that additional Federal funds should be provided to MPOs to offset the
cost of implementing the proposed requirements.
In response, FHWA and FTA note that the total Federal, State, and
local cost in FY 2016 of the planning program is approximately $1.5
billion. Generally, 80 percent of these eligible costs are directly
reimbursable through Federal transportation funds; however, AMPO's 2013
MPO Salary Survey Results \35\ indicated that ``the vast majority of
MPOs received more than 70% of their funding from federal sources''
including Federal transportation funds allocated for metropolitan
planning (23 U.S.C. 104(d) and 49 U.S.C. 5305(f)) and for State
planning and research (23 U.S.C. 505 and 49 U.S.C. 5305(f)). While no
additional funds will be provided to the MPOs to implement the
provisions of the final rule, FHWA and FTA note that MPOs have the
flexibility to use some FHWA capital funds or some FTA formula funds
for transportation planning (23 U.S.C. 133(b)(1), 49 U.S.C.
5307(a)(1)(B) and 5311(b)(1)(A)). The FHWA and FTA also expect there
will be some cost savings for State DOTs, which will benefit from
having fewer TIPs to incorporate into their STIPs.
---------------------------------------------------------------------------

\35\ Association of Metropolitan Planning Organizations, 2013
MPO Salary Survey, published: January 23, 2014, page 2.
---------------------------------------------------------------------------

Multiple respondents emphasized that requiring MPOs to merge and
re-organize or to develop new memoranda of understanding (MOUs),
representation selection processes, and unified planning products
without additional funds would only serve to undermine transportation
planning because it would require them to redirect considerable
resources from core planning functions. Federal funding spent to
implement the proposed rule would reduce the amount of planning funds
now being used by MPOs and States to meet their current
responsibilities. Seven respondents asserted that implementation of the
proposed amendments would increase the cost of the planning process, as
conducting metropolitan planning over

[[Page 93465]]

more expansive areas would lead to less efficient and less effective
planning and decisionmaking. Two respondents noted that larger MPOs
would require MPO members to travel longer distances to attend
meetings, resulting in higher travel costs to MPOs. Two respondents
cited delays and added costs that would result from the need to
coordinate among four State DOTs and Governors and three MPOs, which
would be an unnecessary burden on completing critical transportation
projects in the region. Others noted that such large MPOs would add
significant time, logistical challenges, complexities, effort, and cost
to the project development process, which goes against the intent of
the FAST Act to streamline project delivery. Finally, multiple
respondents asserted that the inefficiency implications of the NPRM far
outweigh the benefits that would be achieved.
In response to these comments, FHWA and FTA have estimated the
maximum average annual costs of the implementation of the provisions of
this final rule using the assumption that all 142 MPOs would choose the
option to merge. While this scenario produces the highest cost
estimates of all the options for compliance with the rule, and it is
considered to be highly unlikely since the final rule provides three
options in addition to a merger: To adjust boundaries, to develop
unified planning products, or to seek an exception from the unified
planning products requirement. The FHWA and FTA have estimated the cost
to merge on the basis of information provided by the Michigan
Transportation Planning Association, the Midland Area Transportation
Study (MATS), the Genesee County Metropolitan Alliance, and the Lower
Connecticut River Valley Council of Governments (River COG) in response
to the NPRM. The total cost to merge is assumed to be equivalent to the
combined annual budget of each agency involved in the merger. As
suggested by MATS in their response to the NPRM, cost of the merger
would include direct, indirect, and opportunity costs, such as merger
process development, merger formal agreements, legal counsel, MPO
structure/organization development, merged MPO administrative issues,
merged MPO committees development, merged MPO task development, loss of
institutional knowledge, funding instability costs, loss of public
participation, and delays and loss of projects.36 37 Any
mergers are assumed to be implemented over a 4-year period, which is
consistent with the experience of the River COG merger and with an
MPO's 4-year cycle to develop its principal planning products: The MTP
and the TIP. The Michigan respondents also suggested that the cost of
using the option to develop unified planning products would be
approximately 45 percent to 50 percent of the cost to merge.
---------------------------------------------------------------------------

\36\ Comments from Midland Area Transportation Study, Posted 10/
24/2016; ID: FHWA-2016-0016-0597.
\37\ The FHWA and FTA do not agree that the rule would result in
the loss of public participation and the delay and/or loss of
projects. However, those costs are embedded in MATS overall cost
estimate. For this reason, the estimates of the costs of the rule
may be overstated.
---------------------------------------------------------------------------

To estimate the annual operating budget for the MPOs subject to
this regulation, FHWA and FTA relied upon the Association of
Metropolitan Planning Organizations' (AMPO) 2013 MPO Salary Survey
Results, published January 23, 2014 (Table 1: MPO Survey Data). The
AMPO Salary Survey included 135 MPOs; however, only 35 of the 142
affected MPOs were included in the survey results. While this survey
represents 25 percent of the affected MPOs, FHWA and FTA determined
that it would provide an adequate indication of MPO operating budgets.

Table 1--MPO Survey Data
----------------------------------------------------------------------------------------------------------------
Number of
MPOs affected MPOs Number of MPOs Sample size
in AMPO sample affected (%)
----------------------------------------------------------------------------------------------------------------
>1,000,000...................................................... 9 31 29
200,000 to 1,000,000............................................ 17 70 24
1,000,000........................ $6,260,000 $6,370,000
200,000 to 1,000,000.............. 1,800,000 1,830,000