Author Archives: Transportation for America

NOTICE OF FINAL RULEMAKING:  MPO Coordination and Planning Area Reform  Date Effective: January 19, 2017

[Federal Register Notice, here]

OVERVIEW

FHWA released its final rulemaking on Metropolitan Planning Organization (MPO) Coordination and Planning Area Reform on December 20, 2016. The final rule differs from the proposed rule (see T4America summary here) in two significant ways:

EXTENDED TIMELINE

The final rule phases in implementation of the rule’s requirements. Full compliance is extended from the two-year timeframe proposed under the Notice of Proposed Rulemaking (NPRM) to two years after the 2020 census information on Qualifying Urban Areas data is released.

POSSIBLE EXCEPTIONS

Under a new process multiple MPOs in a single Metropolitan Planning Area (MPA) may be granted an exception to the unified planning products requirement if they can demonstrate that the goals of the rule are being achieved through an existing coordination mechanism. To be granted an exception, the affected governor(s) and all MPOs in the MPA must submit a joint request that must be approved by the U.S. Secretary of Transportation. An approved exception is permanent.

PROVISIONS OF THE FINAL RULE

As in the proposed rule, the final rule requires all MPOs within the same MPA to develop a single metropolitan transportation plan, a single transportation improvement program, and a jointly established set of performance targets for the MPA. A MPA must include an entire urbanized area (UZA) and the contiguous area projected to become urbanized within a 20-year forecast period in the metropolitan transportation plan (MTP).

As in the proposed rule, MPOs have three compliance options under the final rule:

• MPOs 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. Many MPOs may be able to adjust MPA boundaries in such a way that they remain separate from contiguous MPOs.
  • For example, if 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 that each MPO serves an MPA with the appropriate UZA.
  • If the forecasted growth areas for the two MPAs overlap, then the governor(s) and MPOs can work together to determine the most appropriate way to allocate that growth area between the MPAs. governors and MPOs are encouraged, although not required, to consider merging the multiple MPAs into a single MPA under these circumstances.
• Multiple MPOs located in a single MPA merge.
• Multiple MPOs in a single MPA may remain separate if the governor(s) and MPOs determine that the size and complexity of the MPA justifies multiple MPOs. However, these MPOs would still have to coordinate and prepare unified planning products.

The final rule adds a fourth option by establishing criteria under which MPOs may seek an exception from the new unified planning requirements (See ‘Exception Process’ below).

Under the final rule and the underlying statute, MPA boundaries cannot overlap. FHWA and FTA plan to provide future guidance on making MPA boundary adjustments. The agencies also plan to issue guidance and offer technical assistance to help states and MPOs understand options for coming into compliance with the rule.

FHWA and FTA also plan to engage with the U.S. Census Bureau to provide input into how UZAs should be delineated following the 2020 decennial census to help address concerns that UZAs may not reflect regional transportation patterns and systems.

The final rule maintains the provision in the proposed rule that metropolitan planning agreements would be required to identify strategies for cooperative decision-making and a dispute resolution process. The final rule does not establish a default dispute resolution process.

Phase-in period

The final rule extends the implementation period for MPA boundary and MPO jurisdiction agreement provisions, documentation of the determination of the governor and MPO(s) that the size and complexity of the MPA make multiple MPOs appropriate; and MPO compliance with requirements for unified planning products. Compliance must be achieved by the next metropolitan transportation plan update that occurs two years after the U.S. Census Bureau releases its notice of Qualifying Urban Areas after the 2020 census. Since this notice is typically released two years after the census, that effectively pushes compliance out to 2024.

In the proposed rule, states and MPOs only had two years from the date of the final rule to incorporate the required changes.

In addition, the final rule extends the time period for adjusting MPA boundaries after a decennial census from 180 days to two years. This means that if a decennial census results in two previously separate urbanized areas being defined as a single urbanized area, then the governor and MPOs would have two years after the census release to re-determine the affected MPAs as a single MPA that includes the entire new urbanized area plus the contiguous area expected to become urbanized within a 20-year forecast period of the transportation plan. The new single MPA may still be served by multiple MPOs, if the governor and the MPOs determine that the size and complexity of the MPA make the designation of multiple MPOs appropriate.

The compliance date for all other changes made by the rule are effective upon the date of the final rule, January 19, 2017.

Exception process

Nearly a month after the public comment period for the NPRM for this rule closed, USDOT decided to reopen the rule for an additional month of comments. During this comment period, USDOT specifically asked for feedback on establishing potential exceptions, including criteria for those exceptions, in the final rule. (See T4America summary here). The final rule addresses the comments received by establishing a new exception process, under which multiple MPOs in a single Metropolitan Planning Area (MPA) may be granted an exception to the unified planning products requirement

APPLYING FOR AN EXCEPTION

All MPOs in the MPA and the governors of all affected states must submit a joint written request and justification to FHWA and FTA that both:

• explains why it is not feasible, for reasons beyond the reasonable control of the governor(s) and MPOs, for the MPOs to produce unified planning products for the MPA; and
• demonstrates 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.

If the U.S. Secretary of Transportation determines the exception request does not meet established requirements, the Secretary will send the governor(s) and MPOs a written notice of denial of the exception, including a description of the deficiencies. The governor(s) and MPOs have 90 days from the receipt of the notice to address the identified deficiencies and submit supplemental information for review and a final determination by the Secretary. The Secretary may extend the 90-day period upon request.

An approved exception is permanent. FHWA and FTA will evaluate whether the MPOs covered by an exception are sustaining effective coordination processes that meet the requirements described above through their certification reviews and planning findings.

FHWA and FTA plan to develop guidance on how requests should demonstrate that current coordination procedures meet the exception requirements. This may include, for example:

• documenting a history of effective regional coordination and decision-making with other MPOs in the MPA that has resulted in consistent plans;
• submitting procedures used by multiple MPOs in the MPA to achieve consistency on regional priorities and projects of regional impact; and
• demonstrating the technical capacity to support regional coordination.

WHAT QUALIFIES FOR AN EXCEPTION

The exception process is intended to address 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. FHWA and FTA intend to provide guidance regarding the types of situations where an exception may be appropriate.

In the final rule, FHWA and FTA acknowledge that a multistate MPA typically presents greater coordination challenges and governors and MPOs of multistate MPAs may seek exceptions. While an exception will not be granted to MPAs simply because an MPA crosses state lines, exceptions may be granted to ensure that the MTP and TIP appropriately address the needs of the MPA as a whole.

Exceptions may be granted where it is infeasible to develop unified planning products due to 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 air quality conformity issues.

Exceptions may also be granted for cases where using unified planning products in the MPA would produce unintended consequences that run contrary to the purposes of the rule. If applicable, a request for an exception should provide evidence for concerns related to public involvement, Title VI, or environmental justice requirements.

USDOT notes in the final rule that FHWA and FTA cannot provide exceptions 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.

Air quality conformity

The final rule removes language originally included in the NPRM that called for MPOs sharing an MPA to agree on a process for making a single air quality conformity determination on their plan and TIP. Instead, during implementation of the final rule, FHWA and FTA will coordinate with the 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, motor vehicle emissions budgets, and conformity procedures. FHWA and FTA also plan to work with EPA to provide technical assistance and training to help MPOs address conformity issues.

If it is not feasible for multiple MPOs serving the same MPA to comply with unified planning products requirements due to conformity issues, the MPOs and governor(s) may request an exception.