Private Enterprise Participation |
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Carolyn Flowers
Federal Transit Administration
28 November 2016
[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Notices]
[Pages 85676-85678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28479]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
Private Enterprise Participation
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of policy guidance.
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SUMMARY: The Federal Transit Administration (FTA) hereby establishes
policy guidance for documenting compliance with the private enterprise
participation requirements under the Moving Ahead for Progress in the
21st Century Act (MAP-21). It also includes additional clarifications
under the Fixing America's Surface Transportation (FAST) Act. Because
the policy guidance requirement reiterates existing statutes and
regulations and imposes no new requirements on recipients, FTA is not
soliciting public comment on this policy guidance.
DATES: Effective Date: This policy guidance will be effective January
12, 2017.
FOR FURTHER INFORMATION CONTACT: For policy guidance questions,
Kimberly Gayle, Office of Budget and Policy, telephone: 202-366-1429;
or email: Kimberly.Gayle@dot.gov. For legal questions, Dana Nifosi,
Office of Chief Counsel, telephone: 202-366-1936; or email:
Dana.Nifosi@dot.gov.
I. Background
The FTA is issuing this policy guidance pursuant to Section
20013(d) of the Moving Ahead for Progress in the 21st Century Act (MAP-
21) (Pub. L. 112-141). Section 20013(d) requires the Secretary of
Transportation to publish policy guidance regarding how recipients of
Federal financial assistance under 49 U.S.C. chapter 53 can best
document compliance with the requirements for private enterprise
participation in public transportation planning and transportation
improvement programs contained in sections 5303(i)(6), 5306(a), and
5307(b)\1\ of title 49, United States Code.
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\1\ FTA notes that Section 20013(d) of MAP-21 refers to 49
U.S.C. 5307(c); however, the private transportation provider
participation requirement is contained within 5307(b). Section
3010(b) of the Fixing America's Surface Transportation Act makes a
technical correction to reference the correct subsection.
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A. Statutory Requirements for Private Enterprise Participation
Section 5303(i)(6) requires that each metropolitan planning
organization (MPO) provide interested parties, including private
providers of transportation, with a reasonable opportunity to comment
on the metropolitan transportation plan (MTP). The Fixing America's
Surface Transportation (FAST) Act (Pub. L. 114-94) amended this section
to include the following private providers: ``intercity bus operators,
employer-based commuting programs, such as a carpool program, vanpool
program, transit benefit program, parking cash-out program, shuttle
program, or telework program.'' In addition, MPOs must develop a
participation plan that defines
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a process for providing all interested parties, including private
providers of transportation, with reasonable opportunities to be
involved in the metropolitan transportation planning process. The MPO
participation plan must be developed in consultation with all
interested parties.
Section 5306(a) provides that a plan or program required by 49
U.S.C. 5303, 5304, or 5305 must encourage, to the maximum extent
feasible, the participation of private enterprise (Note: 49 U.S.C. 5305
simply provides formula funding for the planning programs and does not
establish procedural requirements.) 49 U.S.C. 5307(b) requires
recipients of Urbanized Area Formula Grants to develop, in consultation
with interested parties, including private transportation providers, a
proposed program of projects (POP) for activities to be financed.
B. Regulatory Requirements for Metropolitan Planning Organizations in
Metropolitan Areas
The FTA and the Federal Highway Administration (FHWA) recently
promulgated a joint final rule (Joint Planning Rule) to update their
regulations governing the development of MTPs and programs for
urbanized areas, long-range statewide transportation plans and
programs, and the congestion management process, as well as revisions
related to the use of and reliance on planning products developed
during the planning process for project development and the
environmental review process. 81 FR 34049 (May 27, 2016), codified at
23 CFR part 450 and 49 CFR part 613. The regulatory changes implement
amendments that MAP-21 and the FAST Act made to the metropolitan
transportation planning and statewide and non-metropolitan planning
processes.
Subpart C of the Joint Planning Rule implements 49 U.S.C. 5303
Metropolitan transportation planning. Each MPO must develop a
Transportation Improvement Program (TIP) for the metropolitan planning
area that provides all interested parties with a reasonable opportunity
to comment on the proposed TIP in accordance with a documented
participation plan that defines a process for providing individuals,
affected public agencies, representatives of public transportation
employees, public ports, freight shippers, providers of freight
transportation services, private providers of transportation (including
intercity bus operators, employer-based commuting programs, such as
carpool programs, vanpool programs, transit benefit programs, parking
cash-out programs, shuttle programs, or telework programs),
representatives of users of public transportation, representatives of
users of pedestrian walkways and bicycle transportation facilities,
representatives of the disabled, and other interested parties with
reasonable opportunities to be involved in the metropolitan
transportation planning process. 23 CFR 450.316(a), 450.326(b). When an
MPO submits a proposed TIP to FTA and FHWA as part of the Statewide
Transportation Improvement Program (STIP) approval process outlined in
23 CFR part 450, subpart B, the MPO must certify that the metropolitan
transportation planning process is being carried out in accordance with
all applicable requirements, including 49 U.S.C. 5303. This self-
certification must be made at least every four years per 23 CFR
450.336.
C. Regulatory Requirements for Statewide and Non-Metropolitan Planning
Subpart B of the Joint Planning Rule implements 49 U.S.C. 5304
Statewide and metropolitan transportation planning. Each state must
undertake a transportation planning process and develop a long-range
statewide transportation plan and STIP, which must be submitted, at
least every four years, to FTA and FHWA for joint approval. When a
state submits a STIP, it must certify that the transportation planning
process is being carried out in accordance with all applicable
requirements.
In implementing the statewide transportation planning process,
States must develop and use a documented public involvement process
that, inter alia, establishes early and continuous public involvement
opportunities that provide timely information about issues and
decision-making processes to individuals, affected public agencies,
representatives of public transportation employees, public ports,
freight shippers, private providers of transportation (including
intercity bus operators), representatives of users of public
transportation, representatives of users of pedestrian walkways and
bicycle transportation facilities, representatives of the disabled,
providers of freight transportation services, and other interested
parties. See, 23 CFR 450.210.
D. Section 5307 Certification
Section 5307(b) requires recipients of urbanized area formula
grants to develop a POP in consultation with interested parties,
including private transportation providers. Recipients must then
publish the proposed POP to provide affected individuals, private
transportation providers and local elected officials an opportunity to
examine and submit comments on the proposed POP and performance of the
recipient. Recipients also must provide an opportunity for a public
hearing. In preparing the final POP, recipients must consider comments
and views received, especially those of private transportation
providers. A recipient of Section 5307 funds must, in each fiscal year
in which it requests such funds, submit a final POP and must certify
that it has complied with Section 5307(b).
FTA Circular 9030.1E, ``Urbanized Area Formula Program: Program
Guidance and Application Instructions (January 16, 2014), includes
guidance that recipients may satisfy the requirements of Section
5307(b) by following the procedures of the public involvement process
outlined in the FTA/FHWA planning regulations. The Circular advises
that a recipient that chooses to integrate the metropolitan planning
process with the development of the POP should coordinate with the MPO
and ensure that the public knows that the recipient is using the public
participation process associated with TIP development to satisfy the
public hearing requirements of Section 5307(b).
II. Policy Guidance
FTA has determined that the best way to document compliance with
the private enterprise participation provisions of 49 U.S.C.
5303(i)(6), 5306(a) and 5307(b) is to comply with the public
participation requirements imposed by the recently promulgated Joint
Planning Rule. FTA's recipients will continue to submit the applicable
certifications required by Subparts B and C of the Joint Planning Rule
and 49 U.S.C. 5307 through the annual certifications and assurances
process. In addition, recipients must retain, and provide to FTA when
requested, documentation of participation by interested parties in the
metropolitan and statewide planning processes, and evidence of
compliance with participation plans and POPs, as applicable, that are
developed as part of the 49 U.S.C. 5303 and 5304 metropolitan and
statewide planning processes and the 49 U.S.C. 5307 Urbanized Area
Formula Grant process.
Accordingly, recipients shall document compliance with the private
sector participation provisions through the existing regulatory process
implementing Federal planning requirements. FTA will verify
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compliance through its current oversight procedures either during the
triennial review, state management review, planning certification
review, the STIP approval process, and the Section 5307 grant
application process. Given that this policy guidance imposes no new
requirements, FTA is not requesting public comment.
Carolyn Flowers,
Acting Administrator.
[FR Doc. 2016-28479 Filed 11-25-16; 8:45 am]
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