[Federal Register Volume 60, Number 126 (Friday, June 30, 1995)]
[Notices]
[Pages 34315-34320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16103]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. 94-29]
Exemption Criteria for Highway Sanctions
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed policy statement; request for comments.
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SUMMARY: The purpose of this document is to propose a policy which
would: govern the exemption criteria that would be used to determine
which projects could advance if the Environmental Protection Agency
(EPA) imposes highway sanctions in accordance with section 179(a) or
section 110(m) of the CAA, in conjunction with EPA regulations
published in the Federal Register on January 11, 1994, and August 4,
1994; define the requirements which establish the basis for project
exemptions; and describe and clarify the types of projects and programs
which are exempt. The FHWA requests comments on the proposed policy.
DATES: Comments should be received by August 29, 1995.
ADDRESSES: Submit written, signed comments to FHWA Docket 94-29,
Federal Highway Administration, Room 4232, HCC-10, Office of Chief
Counsel, 400 Seventh Street, SW., Washington DC 20590. All comments
received will be available for examination at the above address between
8:30 a.m. and 4:15 p.m., e.t., Monday through Friday, except Federal
holidays. Those desiring notification of receipt of comments must
include a self-addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Ms. Lucy Garliauskas, Office of
Environment and Planning, (202) 366-2068, or Mr. Reid Alsop, Office of
Chief Counsel, (202) 366-1372, FHWA. Office hours are from 7:45 a.m. to
4:15 p.m., e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: This policy statement proposes criteria and
offers clarification on the types of projects (``exempt projects'')
listed in section 179(b)(1) of the Clean Air Act (CAA) as amended in
1990 (42 U.S.C. 7509(b)(1)), that may continue to advance while an area
is subject to highway funding sanctions. Under section 179(b) and
section 110(m) of the CAA, the EPA Administrator may impose a
prohibition on project approvals and grants made under title 23, United
States Code, by the Secretary of Transportation (``highway
sanctions''). The descriptions of exempt projects contained within this
document would apply equally to sanctions applied under section 179(a)
(``mandatory sanctions'') or section 110(m) (``discretionary
sanctions''). Section 110(m) contemplates circumstances under which EPA
may extend highway sanctions to areas not designated as
``nonattainment''. Hence,
[[Page 34316]]
the information contained in this notice applies to attainment,
nonattainment, and unclassifiable areas.
As of this date EPA has published two final rules related to
sanctions. A final rule was published in the Federal Register on
January 11, 1994, entitled, ``Criteria for Exercising Discretionary
Sanctions under Title I of the Clean Air Act'' (59 FR 1476). It
establishes criteria to guide EPA's decision on whether, in a specific
circumstance, to impose discretionary sanctions on a statewide basis
under section 110(m).
A second regulation, ``Selection of Sequence of Mandatory Sanctions
for Findings Made Pursuant to Section 179 of the Clean Air Act,'' was
published on August 4, 1994 (59 FR 39832). This regulation establishes
that, following section 179(a) findings, the 2-to-1 offset sanction on
new or modified major stationary sources applies first, 18 months after
the finding (except where EPA reverses the order through a separate
rulemaking), unless EPA has determined that the State corrected the
deficiency that prompted the finding. Highway sanctions apply second,
six months after application of the offset sanction, unless EPA has
determined that the State corrected the deficiency that prompted the
finding.
Those two final rules (and this proposed policy statement, if made
final) effectively supersede the joint DOT/EPA Federal Register notice
of April 10, 1980 (45 FR 24692), ``Federal Assistance Limitation
Required by section 176(a) of the Clean Air Act.'' The EPA also expects
to publish another regulation that would establish the sequence of
sanctions applied under section 502(d)(2)(B) of the Clean Air Act
relating to the EPA's permit program.
The proposed policy seeks to clarify the types of projects which
are exempt from sanctions and to establish criteria that are uniformly
applied when determining which programs and projects are exempt from
highway sanctions. The proposed policy gives recognition to the
respective roles and responsibilities of the FHWA and the EPA in
applying funding and program/project approval limitations under section
179(b)(1), when the highway sanction is imposed under section 179(a) or
section 110(m) of the CAA of 1990.
The policy would be nationally applicable. Although FHWA would
consult with EPA to determine whether projects meet the exemption
criteria set forth in this proposed policy, the final authority to
determine whether a project is exempt from highway sanctions under the
safety exemption criteria and seven congressionally authorized
activities is the responsibility of the Secretary of Transportation, as
delegated to the FHWA. Other transportation related projects, not
covered under the aforementioned exemptions, are not exempt unless the
EPA Administrator, in consultation with the Secretary of
Transportation, finds that they will improve air quality and not
contribute to increased single occupancy vehicle (SOV) capacity.
A number of stand-alone projects which do not affect air quality
but have other environmentally beneficial impacts are not specifically
exempt from sanctions by the CAA. These projects may improve water
quality, mitigate wetland impacts, provide landscaping, preserve
historic structures, reduce noise, and have other aesthetic benefits.
While the proposed policy statement would not exempt these projects,
FHWA requests comments as to whether the following types of projects
should be exempt from highway sanctions because of their de minimis
impact on air quality. These activities are generally exempted from the
CAA transportation conformity requirements (see 40 CFR Secs. 51.460 and
93.134). Comments should include a discussion of the basis for the
commentor's position in favor of, or against, such an exemption. FHWA
would consult further with EPA before granting such an exemption.
The projects for which exemption status is being considered
include:
1. Wetland mitigation;
2. Planting trees, shrubs, wildflowers;
3. Landscaping;
4. Purchase of scenic easements;
5. Billboard and other sign removal;
6. Historic preservation;
7. Transportation enhancements; and
8. Noise abatement.
Requirements which Establish the Basis for Highway Sanctions
Exemptions
The Secretary of Transportation may make certain project approvals
and award grants, even while the nonattainment area or State is under
highway sanctions. As stated in section 179(b)(1) of the CAA, safety
projects could go forward provided the Secretary of Transportation
determines that, based on accident or other data, the principal purpose
of the project is an improvement in safety to resolve a demonstrated
safety problem and will likely result in a significant reduction in or
avoidance of accidents.
In addition to safety projects, section 179(b)(1) specifically
exempted seven activities from highway sanctions. Projects that the EPA
Administrator, in consultation with the Secretary of Transportation,
determines would contribute to air quality improvement and would not
encourage SOV capacity are also exempted. Programs and projects which
are allowed to go forward under section 179(b)(1) should strive to
avoid increasing or relocating emissions and congestion rather than
simply reducing them.
Safety Program/Project Requirements Under 23 U.S.C.
Several programs have been established under title 23, U.S.C.,
expressly for the purpose of addressing safety objectives, either
through programs targeted at driver behavior or safety projects
intended to remediate structures, facilities, or prevent loss of human
life. These programs include the:
(1) Highway Safety Improvement Program as defined under 23 CFR
Part 924;
(2) the Highway Bridge Replacement and Rehabilitation Program as
defined under 23 CFR Part 650, Subpart D; and
(3) grant programs whose principal purpose is to improve safety
and which do not include any capital improvements, including all
programs established in Chapter I or IV or 23 U.S.C. that are
administered by the National Highway Traffic Safety Administration
(NHTSA).
Additionally, the Transportation Management and Monitoring Systems
defined under 23 CFR Part 500 (58 FR 63475, December 1, 1993), defined
data requirements for six management systems and the Traffic Monitoring
System. The requirements set forth in the management systems are being
phased in and, with the exception of the pavement and bridge management
systems, will be fully operational by October 1, 1996. The pavement and
bridge management systems are required to be fully operational by
October 1, 1997, and October 1, 1998, respectively. These requirements,
as applied to the safety and bridge management systems, will yield
additional information and data needed to support highway sanction
exemptions as specified in section 179(b)(1) of the CAA. This
information may be used to supplement existing data or, as it is
developed, may improve existing data or information currently
available.
Programs or projects stemming from the following provisions could
be exempt on the basis of an established safety-related project need
meeting section 179(b) requirements. Title 23 of the Code of Federal
Regulations (April 1, 1994) sets forth the requirements for eligibility
for Federal funding for projects under the Highway Safety Improvement
Program (23 CFR Part 924) and the Highway Bridge Replacement and
Rehabilitation Program (23 CFR Part
[[Page 34317]]
650, Subpart D) and programs administered by NHTSA (Chapters II and III
of 23 CFR). These programs have been established with the purpose of
addressing safety objectives and may be used to establish justification
for the safety exemptions under the CAA if the section 179(b)
requirements and those of this policy are fully met.
1. Highway Safety Improvement Program (23 CFR Part 924).
The Highway Safety Improvement Program requires each State to
develop and implement a program which has as its goal reducing the
number and severity of accidents and decreasing the potential for
accidents on all highways. The program is to be continuous and its
components consist of planning, implementation, and evaluation of
safety programs and projects.
The implementation of the highway safety improvement program is
subject to procedures set forth in 23 CFR Part 630, Subpart A, Federal-
aid Programs Approval and Project Authorization, and the priorities
developed in conjunction with 23 CFR Part 924, section 924.9-Planning.
The planning components of the program shall incorporate a process
for collecting and maintaining a record of accident data; a process for
analyzing available data to identify hazardous locations on the basis
of accident experience or accident potential; a process for conducting
engineering studies to develop highway safety improvements; and
projects considering the potential reduction in the number and severity
of accidents.
2. The Highway Bridge Replacement and Rehabilitation Program.
This program is administered in accordance with 23 U.S.C. 144.
Eligible work under this program includes the total replacement of a
structurally deficient or functionally obsolete bridge, a nominal
amount of approach work sufficient to connect the bridge to the roadway
or major work required to restore the structural integrity of a bridge
as well as work necessary to correct major safety defects. Bridge
projects eligible for funding under the bridge replacement and
rehabilitation program must be supported by bridge inventory data and
evaluation of the bridge inventory.
Projects are submitted by the State to the FHWA in accordance with
23 CFR part 630, Subpart A, Federal-aid Programs Approval and
Authorization. Priority considerations will be given to those projects
which will remove from service those highway bridges most in danger of
failure.
3. Highway Safety Programs Administered by NHSTA.
The National Highway Traffic Safety Administration (NHTSA)
administers (independently, jointly, or cooperatively with other
Federal agencies) programs whose principal purpose is to improve
highway safety and which do not include any capital improvements. Under
these programs, the agency awards either grants, contracts, or
cooperative agreements. These programs include, but are not limited to,
programs authorized under chapter IV of title 23, U.S.C., such as:
Section 402, Highway Safety Programs, under which the agency
promulgates guidelines and awards grants to States having approved
highway safety programs designed to reduce traffic accidents and
deaths, injuries and property damage;
Section 403, Highway Safety Research and Development, under which
the agency engages in research on all phases of highway safety and
traffic conditions and other related research and development
activities which will promote highway safety;
Section 408, Alcohol Traffic Safety Programs, and section 410,
Alcohol Impaired Driving Countermeasures, under which the agency makes
grants to States which adopt and implement effective programs to reduce
traffic safety problems resulting from persons driving while under the
influence of alcohol or a controlled substance.
NHTSA programs also include, but are not limited to, programs
authorized under Chapter I of title 23, U.S.C., such as:
Section 153, Use of Safety Belts and Motorcycle Helmets, under
which the agency has made grants to States with effective safety belt
and motorcycle helmet use laws and under which States are subject to
the transfer of certain highway construction funds to section 402
programs for not having such laws in effect;
Section 154, National Maximum Speed Limit, under which States are
subject to the transfer of certain highway construction funds to
section 402 programs for noncompliance with the National Maximum Speed
Limit requirements.
4. ISTEA Management Systems
Section 1034 of the ISTEA amended title 23, United States Code, by
adding section 303, Management Systems. Section 303 requires State
development, establishment, and implementation of a system for managing
each of the following: highway pavement of Federal-aid highways (PMS);
bridges on and off Federal-aid highways (BMS); highway safety (SMS);
traffic congestion (CMS); public transportation facilities and
equipment (PTMS); and intermodal transportation facilities and systems
(IMS). An interim final rule (IFR) for these systems was published on
December 1, 1993, as 23 CFR part 500. The IFR allows for a phase-in of
the management systems ranging over the next several years.
While each of the systems may result in the identification of
strategies that benefit attainment of the NAAQS, the data available
from the BMS and SMS would significantly contribute to the
justification for project exemption for bridge and safety strategies
identified by these systems.
The BMS (23 CFR part 500, subpart C), which must be fully
operational by October 1, 1998, must include a bridge inventory
database, a procedure for predicting the deterioration of bridge
elements with or without intervening action, and identification of
feasible actions to improve bridge condition, safety, and
serviceability.
The SMS (23 CFR part 500, subpart D), which must be fully
operational by October 1, 1996, is to provide information for selecting
and implementing effective highway safety strategies and projects and
must include identification of highway safety strategies, actions,
projects or programs for consideration in development of highway safety
plans, State enforcement plans, and metropolitan and statewide
transportation plans and improvement programs.
The proposed policy for exemption criteria for highway sanctions
follows:
HIGHWAY SANCTION EXEMPTION CRITERIA POLICY
SUBJECT: Policy for Exemption Criteria to be Used to Determine Which
Projects Can Advance if the Environmental Protection Agency Imposes the
Highway Funding Sanction Under section 179(a) or 110(m) of the CAA, as
Amended in 1990.
FROM: Rodney E. Slater, Federal Highway Administrator U. S. Department
of Transportation.
MEMO TO: Regional Administrators, Federal Lands Highway Program
Administrator
The purpose of this memorandum is to define the exemption criteria
that will be used to determine which projects can go forward and which
grants can be awarded in the event the Environmental Protection (EPA)
Agency imposes highway sanctions under section 179(a) or section 110(m)
of the Clean Air Act (CAA) of 1990. This policy contains a
[[Page 34318]]
description of the criteria for exemptions and clarification of the
types of projects and programs that are exempt. Projects for which
exemptions can not be granted are also included in this policy
memorandum.
A. General Description
Highway sanctions, when applied, halt the approval of projects and
the award of any grants funded under title 23, United States Code
(Title 23), except as defined in section 179(b) and this policy. This
applies to the following major funding programs:
1. Surface Transportation Program (STP);
2. National Highway System;
3. Interstate Maintenance;
4. Bridges;
5. Interstate Construction;
6. Interstate Substitution; and
7. Congestion Mitigation and Air Quality Improvement Program
(CMAQ).
Projects funded under all other Title 23 programs and other
authorizations are also subject to sanctions, including demonstration
projects identified by the Congress and specified in the Intermodal
Surface Transportation Efficiency Act (ISTEA) of 1991 under sections
1103-1108 or in other laws, unless they meet the criteria set forth in
this policy memorandum. Additionally, projects to be funded under
previously authorized programs, such as Federal-aid Urban, etc., are
also subject to sanction.
Projects funded under title 49, U.S.C., chapter 53, the Federal
Transit Laws, as amended, are categorically exempt from sanctions by
law as are other transportation programs authorized by statutes other
than Title 23.
B. Typical Nonexempt Projects
The following types of projects generally do not meet the exemption
criteria in section 179(b)(1) and would not be allowed to proceed if
funded or approved under Title 23 unless it is demonstrated that they
meet one or more of the exemption criteria. These include projects that
expand highway or road capacity, nonexempt project development
activities and any other project that does not explicitly meet the
criteria in this notice. These may include activities for:
1. The addition of general purpose through lanes to existing roads;
2. New highway facilities on new locations;
3. New interchanges on existing highways;
4. Improvements to, or reconfiguration of, existing interchanges;
5. Additions of new access points to the existing road network;
6. Increasing functional capacity of the facility;
7. Relocating existing highway facilities;
8. Repaving or resurfacing except for safety purposes, as defined
by section 179(b);
9. Nonexempt projects, project development, including NEPA
documentation and preliminary engineering, right-of-way purchase,
equipment purchase, and construction;
10. Stand-alone projects that do not affect air quality but have
other environmentally beneficial impacts such as wetland mitigation,
planting and landscaping, purchase of scenic easements, billboard
and other sign removal, historic preservation, transportation
enhancements, and noise abatement.
C. Project Exemptions
Under section 179(b)(1) of the CAA, once the EPA imposes highway
sanctions, the FHWA may not approve or award any grants in the
sanctioned area except those which fall under three categories: (1)
safety programs and projects; (2) congressionally-authorized activities
under section 179(b)(1)(B); and (3) air quality improvement projects
that do not encourage single occupancy vehicle capacity.
1. Safety Programs and Projects
Safety projects are those for which the principal purpose is an
improvement in safety but the projects may also have other important
benefits. These projects must resolve a demonstrated safety problem
with the likely result being a significant reduction in or avoidance of
accidents as determined by the FHWA. Such demonstration must be
supported by accident or other data submitted by the State or
appropriate local government.
Three types of categories of safety-based programs and projects
could potentially meet the exemption criteria: grant programs and
related activities; statewide safety improvement programs; and specific
projects outside of a statewide safety program. Each category calls for
a different level of justification specific to a particular category.
a. Programs administered by the National Highway Traffic Safety
Administration qualify for blanket exemptions, on the basis that their
principal purpose is to improve safety and do not include any capital
improvements. Programs that fall within this category include but are
not limited to: Use of Safety Belts and Motorcycle Helmets (23 U.S.C.
153); National Maximum Speed Limit (23 U.S.C. 154); Highway Safety
Programs (23 U.S.C. 402); Highway Safety Research and Development (23
U.S.C. 403); Alcohol Traffic Safety Programs (23 U.S.C. 408); and
Alcohol-Impaired Driving Countermeasures (23 U.S.C. 401).
b. Statewide safety improvement programs include specific safety
projects that can be justified on the basis of State or national level
data, which will be additionally supported by data and analysis
stemming from the management system requirements once the systems are
fully operational. Projects meeting this exemption category would come
out of the Highway Safety Improvement Program (23 CFR part 924) and the
Highway Bridge Replacement and Rehabilitation Program (23 CFR part 650,
subpart D). The Highway Safety Improvement Program also includes the
Hazard Elimination Program (23 U.S.C. 152).
c. Specific projects for which justification is needed to show that
the project is related to safety, unless the project is drawn out of a
statewide safety program and would be likely to reduce accidents, would
include capital projects such as:
1. Elimination of, and safety features for, railroad-highway grade
crossings;
2. Repair of damage caused by natural disasters, civil unrest, or
terrorist acts;
3. Changes in vertical or horizontal alignment;
4. Increasing sight distance;
5. Elimination of high hazard locations or roadside obstacles;
6. Shoulder improvements, widening narrow pavements;
7. Adding or upgrading guardrail, medians and barriers, crash
cushions, fencing;
8. Pavement resurfacing or rehabilitation to improve skid
resistance;
9. Replacement or rehabilitation of unsafe bridges;
10. Safety roadside rest areas, truck size and weight inspection
stations;
11. Addition and upgrading of traffic control devices, (traffic
signals, signs, and pavement markings);
12. Lighting improvements; and
13. Truck climbing lanes.
Justification for an exemption on the grounds of safety must be
based on accident or other data such as the data derived from a safety
management system, bridge management system, the Highway Safety
Improvement Program, or the Highway Bridge Replacement and
Rehabilitation Program. Such data need not be specific to the proposed
project's location but may be based on accident or other data from
similar conditions, including national experience where such projects
have been implemented to remove safety hazards. For example,
[[Page 34319]]
rigid highway sign posts were identified in the past as a safety hazard
causing unnecessary deaths and injuries. The identification of this
hazard led to national policy requiring rigid posts to be replaced with
breakaway poles.
Projects exempted under the safety provision may not involve
substantial functional (such as upgrading major arterial to freeways),
locational, or capacity changes except when the safety problem could
not otherwise be solved. Although substantial changes to the function,
location, or capacity have been previously allowed for projects funded
under Emergency Relief, such projects could not proceed under sanction.
2. Congressionally Authorized Activities
Seven project types are identified specifically in CAA section
179(b)(1) as exempt from highway sanctions. Essentially these are
projects that discourage single occupancy vehicles or improve traffic
flow (e.g., intersections, turning lanes) in ways that reduce
congestion and emissions:
a. Capital programs for public transit. These include any capital
investment for new construction, rehabilitation, replacement, or
reconstruction of facilities and acquisition of vehicles and equipment;
b. Construction or restriction of certain roads or lanes solely for
the use of passenger buses or high occupancy vehicles (HOV). Exempt
projects include construction of new HOV lanes, if those lanes are
solely dedicated as 24-hour HOV facilities, and converting existing
lanes for HOV use during peak hours, including capital costs necessary
to restrict existing lanes (barriers, striping, signage, etc.);
c. Planning for requirements for employers to reduce employee work
trip-related vehicle emissions. This also includes promotional and
other activities associated with this type of program that are eligible
under Title 23;
d. Highway ramp metering, traffic signalization, and related
programs that improve traffic flow and achieve a net emission
reduction;
e. Fringe and transportation corridor parking facilities serving
multiple occupancy vehicle programs or transit operations (this
includes the construction of new facilities and the maintenance of
existing facilities);
f. Programs to limit or restrict vehicle use in downtown areas or
other areas of emission concentration, particularly during periods of
peak use, through road use charges, tolls, parking surcharges, or other
pricing mechanisms, vehicle restricted zones or periods, or vehicle
registration programs; exempt projects include all activities of these
types that are eligible under existing funding programs; and
g. Programs for breakdown and accident scene management,
nonrecurring congestion, and vehicle information systems, to reduce
congestion and emissions.
The FHWA will consult with the EPA on any project claimed to reduce
emissions; that is, with projects falling under paragraphs c, d, and g,
above. The final authority to determine whether a project meets the
criteria in this section and is therefore exempt from highway
sanctions, however, rests with the FHWA.
3. Air Quality Improvement Programs That Do Not Encourage Single
Occupancy Vehicle Capacity
Transportation programs not otherwise exempt that improve air
quality and which would not encourage single occupancy vehicle capacity
(as determined by EPA in consultation with DOT) are also exempt from
highway sanctions.
For example, transportation control measures (TCMs) listed in
section 108(f) of the CAA and projects funded under 23 U.S.C. 149, the
Congestion Mitigation and Air Quality Improvement (CMAQ) program, are
projects which the EPA and DOT may, after individual review of each
project, find to be exempt from highway sanctions. For these projects
to advance while highway sanctions are in place, the State must submit
to DOT an emissions reduction analysis similar to that required under
the CMAQ program. Upon receipt, DOT will forward it to the EPA. The EPA
will complete its review and make its finding regarding air quality and
single occupancy vehicle travel within 14 days of receipt of such
information.
The EPA and DOT have agreed that the following projects will be
categorically exempt from highway sanctions, and will not require
additional EPA review or an individual finding by EPA:
a. TCMs included in an EPA-approved State Implementation Plan (SIP)
or Federal Implementation Plan which have emission reduction credit and
will not encourage single occupant vehicle travel;
b. Inspection and maintenance facilities and activities eligible
for CMAQ funding;
c. Bicycle and pedestrian facilities and programs; and
d. Carpool/Vanpool programs.
In considering exempt projects, States should seek to ensure
adequate access to downtown and other commercial and residential areas,
and avoid increasing or relocating emissions and congestion rather than
reducing them.
D. Planning and Research Activities
Planning and research activities for transportation and/or air
quality purposes are exempt from highway sanctions (except as noted in
Section E. Project Development Activities). Such planning and research
is critical for the development of projects that improve safety and
address an area's transportation/air quality needs. Planning and
research activities include development of major investment studies
which may be coupled with the draft Environmental Impact Statement or
Environmental Assessment. Major investment studies take a multimodal
approach in considering transportation alternatives (including new
highway capacity) which would be exempt from highway sanctions if
advanced as stand alone projects.
Research activities also include those research, development,
testing, and planning projects involving the National Intelligent
Transportation Systems (ITS) Program. The goal of the ITS Program is to
use advanced technology to improve travel and roadway safety without
expanding existing infrastructure. ITS activities are generally done
under seven broad categories: Travel and transportation management;
travel demand management; public transportation operations; electronic
payment; commercial vehicle operations; emergency management; and
advanced vehicle control and safety systems.
For these reasons, planning and research activities can continue
even under highway sanctions. These studies may be carried out with any
Title 23 program funds (metropolitan planning, state planning and
research, STP, or other programs) under Sections 134, 135, and 307 or
other relevant sections.
E. Project Development Activities
Development and completion of studies that are necessary to meet
requirements under the National Environmental Policy Act (NEPA) are
exempt from highway sanctions as long as consideration of projects that
would be exempt under the policy statement, such as transit or other
transportation demand management (TDM) measures, are actively pursued
as reasonable independent alternatives. Once all alternatives that
could be considered exempt from highway sanctions under this policy
statement are eliminated, project development activities for NEPA or
other purposes are no longer exempt and can no longer be approved if
they are to be funded under Title 23. For
[[Page 34320]]
example, if prior to completion of NEPA documentation, all TDM measures
are eliminated from consideration and the sole remaining question is
the determination of an alignment for a highway capacity-expanding
project (which may include TDM), subsequent project development
activities are not exempt from highway sanctions.
The FHWA may not approve preliminary engineering for final design
of a project, nor can approval be granted for a project's plans,
specifications, and estimates (PS&E) after initiation of highway
sanctions for projects that are not exempt under this policy. Neither
right-of-way nor any necessary equipment may be purchased or leased
with Federal funds for nonexempt projects while an area is under
sanction. Federally-funded construction may not in any way begin on a
project that does not meet the exemption criteria described in this
policy while an area is under sanction.
Highway sanctions apply to those projects whose funds have not yet
been obligated by the FHWA by the date the highway sanction applies.
Those projects that have already received approval to proceed and had
obligated funds before the EPA imposes the prohibition may proceed even
while the area is under sanction, if no other FHWA action is required
to proceed. In the case of a phased project, only those phases that
have been approved and had obligated funds prior to the date of
sanction application may proceed. For example, if preliminary
engineering for a project was approved and funds were obligated prior
to application of sanctions but no approval was secured for later
project phases (such as right-of-way acquisition, construction, etc.),
preliminary engineering could proceed while the highway sanction
applies but no subsequent phases of the project could proceed with
Federal highway funds unless the total project meets the exemption
criteria in this policy. These restrictions pertain only to project
development activities that are to be approved or funded under Title
23. Activities funded under title 49, U.S.C., or through State or other
funds may proceed even after highway sanctions have been imposed
unless: (1)approval or action by FHWA under title 23 is required; and
(2) they do not otherwise meet the exemption criteria of this policy
statement.
F. Other Environmental Requirements
Exemption of a transportation project from the section 179(b)(1)
highway sanctions does not waive any applicable requirements under the
NEPA (e.g., environmental documents), section 176 of the CAA
(conformity requirement), or other Federal law.
Authority: 42 U.S.C. 7509(b); 23 U.S.C. 315; and 49 CFR 1.48.
Issued on: June 22, 1995.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 95-16103 Filed 6-29-95; 8:45 am]
BILLING CODE 4910-22-P
