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Private Enterprise Participation

American Government Special Collections Reference Desk

American Government

Private Enterprise Participation

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

[[Page 85677]]

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

[[Page 85678]]

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]
 BILLING CODE P

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